Exhibit 10(b)
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Supplemental Indenture No. 5
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TUCSON ELECTRIC POWER COMPANY
to
THE BANK OF NEW YORK,
Trustee
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Dated as of March 1, 2004
Supplemental to Indenture of Mortgage and Deed of Trust,
dated as of December 1, 1992
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Creating A Series of Bonds Designated
Second Mortgage Bonds, Collateral Series D
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This instrument constitutes a mortgage, a deed of trust and
a security agreement.
NY #577002 v4
SUPPLEMENTAL INDENTURE NO. 5, dated as of March 1, 2004, between TUCSON
ELECTRIC POWER COMPANY (hereinafter sometimes called (the "Company"), a
corporation organized and existing under the laws of the State of Arizona,
having its principal office at One South Church Avenue, in the City of Tucson,
Arizona, as trustor, and THE BANK OF NEW YORK (successor in trust to Bank of
Montreal Trust Company), a banking corporation organized and existing under the
laws of the State of New York and having its principal office at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, in the Borough of Manhattan, The City of New York, New York, as trustee
(hereinafter sometimes called the "Trustee"), under the Indenture of Mortgage
and Deed of Trust, dated as of December 1, 1992 (hereinafter called the
"Original Indenture"), as heretofore amended and supplemented, this Supplemental
Indenture No. 5 being supplemental thereto (the Original Indenture as heretofore
amended and supplemented, and as supplemented hereby, and as it may from time to
time be further supplemented, modified, altered or amended by any supplemental
indenture entered into in accordance with and pursuant to the provisions
thereof, is hereinafter called the "Indenture").
RECITALS OF THE COMPANY
WHEREAS the Original Indenture was authorized, executed and delivered
by the Company to provide for the issuance from time to time of its Bonds (such
term and all other capitalized terms used herein without definition having the
meanings assigned to them in the Original Indenture), to be issued in one or
more series as therein contemplated, and to provide security for the payment of
the principal of and premium, if any, and interest, if any, on the Bonds; and
WHEREAS, the Company proposes to establish a series of Bonds designated
"Second Mortgage Bonds, Collateral Series D" and to be limited in aggregate
principal amount (except as contemplated in clause (b) of Section 2 of Article
II of the Original Indenture) to $400,600,000, such series of Bonds and such
Bonds to be hereinafter sometimes called, respectively, "Series 5" and "Series 5
Bonds"; and
WHEREAS, all acts and proceedings required by law and by the articles
of incorporation and by-laws of the Company, including all action requisite on
the part of its shareholders, directors and officers, necessary to make the
Series 5 Bonds, when executed by the Company, authenticated and delivered by the
Trustee and duly issued, the valid, binding and legal obligations of the
Company, and to constitute this Supplemental Indenture a valid, binding and
legal instrument, in accordance with its and their terms, have been done and
taken; and the execution and delivery of this Supplemental Indenture No. 5 have
been in all respects duly authorized; and
WHEREAS, effective June 3, 1999, The Bank of New York succeeded to all
of the corporate trust business of Bank of Montreal Trust Company, and, as a
consequence, The Bank of New York, being otherwise qualified and eligible under
Article XII of the Original Indenture, became the successor trustee under the
Indenture without further act on the part of the parties thereto, as
contemplated by Section 11 of Article XII of the Original Indenture.
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GRANTING CLAUSES
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE NO. 5 WITNESSETH, that, in
order to secure the payment of the principal of and premium, if any, and
interest, if any, on all Bonds at any time Outstanding under the Indenture
according to their tenor, purport and effect, and to secure the performance and
observance of all the covenants and conditions therein and herein contained
(except any covenant of the Company with respect to the refund or reimbursement
of taxes, assessments or other governmental charges on account of the ownership
of the Bonds of any series or the income derived therefrom, for which the
Holders of the Bonds shall look only to the Company and not to the property
hereby mortgaged or pledged), and to declare the terms and conditions upon and
subject to which the Series 5 Bonds are to be issued, and for and in
consideration of the premises and of the mutual covenants herein contained and
of the purchase and acceptance of the Bonds by the Holders thereof, and of the
sum of $1 duly paid to the Company by the Trustee at or before the ensealing and
delivery hereof, and for other good and valuable consideration, the receipt and
sufficiency whereof are hereby acknowledged, the Company has executed and
delivered this Indenture, and by these presents does grant, bargain, sell,
release, convey, assign, transfer, mortgage, pledge, set over and confirm unto
the Trustee, and grant to the Trustee a security interest in:
All and singular the premises, property, assets, rights and franchises
of the Company (except Excepted Property), whether now or hereafter owned,
constructed or acquired, of whatever character and wherever situated including,
among other things (but reference to or enumeration of any particular kinds,
classes or items of property shall not be deemed to exclude from the operation
and effect of this Indenture any kind, class or item not so referred to or
enumerated), all right, title and interest of the Company in and to the property
described as granted in "Schedule A" attached to this Supplemental Indenture No.
5 and made part of these Granting Clauses to the same extent as if fully set
forth in the same, and all plants for the generation of electricity by water,
steam and/or other power; all power houses, substations, transmission lines,
distributing systems; all offices, buildings and structures, and the equipment
thereof; all machinery, engines, boilers, dynamos, machines, regulators, meters,
transformers, generators and motors; all appliances whether electrical, gas or
mechanical, conduits, cables and lines; all pipes, service pipes, fittings,
valves and connections, poles, wires, tools, implements, apparatus, furniture,
and chattels; all municipal franchises and other franchises; all lines for the
transmission and/or distribution of electric current, including towers, poles,
wires, cables, pipes, conduits, street lighting systems and all apparatus for
use in connection therewith; all real estate, lands, leaseholds; all easements,
servitudes, licenses, permits, rights, powers, franchises, privileges,
rights-of-way and other rights in or relating to real estate or the occupancy of
the same and all the right, title and interest of the Company in and to all
other property of any kind or nature appertaining to and/or used and/or occupied
and/or enjoyed in connection with any property hereinbefore described; it being
the intention of the parties that all property of every kind, real, personal or
mixed (including, but not limited to, all property of the types hereinbefore
described), other than Excepted Property, which may be acquired by the Company
after the date hereof, shall, immediately upon the acquisition thereof by the
Company, to the extent of such acquisition, and without any further conveyance
or assignment, become and be subject to the direct lien of the Indenture as
fully and completely as though now owned by the Company and described in said
"Schedule A"; it further being the intention of the parties, however, that the
lien of and security interest granted by this Indenture shall not result in the
Trustee having greater
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rights with respect to any property of the Company, real, personal or mixed
(including, but not limited to, leasehold interests in property) than the rights
of the Company with respect to such property.
TOGETHER WITH all and singular the tenements, hereditaments and
appurtenances belonging or in any wise appertaining to the aforesaid premises,
property, assets, rights and franchises or any part thereof, with the reversion
and reversions, remainder and remainders, and all the estate, right, title and
interest and claim whatsoever, at law as well as in equity, which the Company
now has or may hereafter acquire in and to the aforesaid premises, property,
assets, rights and franchises and every part and parcel thereof.
Subject, however, to the reservations, exceptions, limitations and
restrictions contained in the several deeds, leases, servitudes, contracts,
decrees, judgments, or other instruments through which the Company acquired or
claims title to or enjoys the use of the aforesaid properties; and subject also
to such easements, leases, reservations, servitudes, reversions and other rights
and privileges of others and such mortgages, liens and other encumbrances in,
on, over, across or through said properties as existed at the time of the
acquisition of such properties by the Company or as have been granted by the
Company to other persons at or prior to the time of the issuance and delivery of
the Bonds of the Initial Series, including, but not limited to, the lien of the
1941 Mortgage and the security interest created thereby; and subject also to
Permitted Encumbrances and, as to any property acquired by the Company after the
time of the issuance and delivery of the Bonds of the Initial Series, to any
easements, leases, reservations, servitudes, reversions and other rights and
privileges of others and mortgages, liens or other encumbrances thereon
existing, and to any mortgages, liens and other encumbrances for unpaid portions
of the purchase money placed thereon, at the time of such acquisition, it being
understood that with respect to any such after-acquired property the Lien of the
Indenture (as hereinafter defined) shall at all times be junior, subject and
subordinate to the lien of the 1941 Mortgage and the security interest created
thereby; and subject also to the provisions of Article XI of the Original
Indenture;
TO HAVE AND TO HOLD the Trust Estate and all and singular the lands,
properties, estates, rights, franchises, privileges and appurtenances hereby
granted, bargained, sold, released, conveyed, assigned, transferred, mortgaged,
pledged, set over and confirmed, together with all the appurtenances thereunto
appertaining, unto the Trustee and its successors and assigns, forever;
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 authenticated and delivered hereunder and duly issued by the Company,
without any discrimination, preference or priority of any one Bond over any
other by reason of priority in the time of issue, sale or negotiation thereof or
otherwise, except as provided in Section 2 of Article IV of the Original
Indenture, so that, subject to said provisions, each and all of said Bonds shall
have the same right, lien and privilege under the Indenture and shall be equally
secured hereby (except as any sinking, amortization, improvement, renewal or
other fund, established in accordance with the provisions of the Indenture, may
afford additional security for the Bonds of any particular series), and shall
have the same proportionate interest and share in the Trust Estate, with the
same effect as if all of the Bonds had been issued, sold and negotiated
simultaneously on the date of the delivery hereof;
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and in trust for enforcing payment of the principal of the Bonds, and premium,
if any, and interest, if any, thereon, according to the tenor, purport and
effect of the Bonds and of the Indenture, and for enforcing the terms,
provisions, covenants and agreements herein and in the Bonds set forth;
UPON CONDITION that, until the happening of a Default, 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 hereunder) and to
receive and use the rents, issues, income, revenues, earnings and profits
therefrom, all as more specifically provided in Section 1 of Article VII of the
Original Indenture;
AND UPON THE TRUSTS, USES AND PURPOSES and subject to the covenants,
agreements and conditions hereinafter set forth and declared.
ARTICLE I
ADDITIONAL DEFINITIONS
SECTION 1. Applicability of Article
For all purposes of this Supplemental Indenture No. 5, except as
otherwise expressly provided or unless the context otherwise requires, the terms
defined in this Article shall have the meanings herein specified and include the
plural as well as the singular.
SECTION 2. Additional Definitions.
"Credit Agreement" means the Credit Agreement, dated as of March 25,
2004, among the Company, the Lenders party thereto, the Issuing Banks party
thereto, JPMorgan Chase Bank, Credit Suisse First Boston, acting through its
Cayman Islands Branch, and ▇▇▇▇▇▇ Brothers Inc., as Co-Administrative Agents,
Credit Suisse First Boston, acting through its Cayman Islands Branch, as Paying
Agent, and JPMorgan Chase Bank, Credit Suisse First Boston, acting through its
Cayman Islands Branch, and ▇▇▇▇▇▇ Brothers Inc., as Co-Lead Arrangers and Joint
Bookrunners, as amended, supplemented or otherwise modified from time to time.
"Interest Payment Date" means the last day of each March, June,
September and December; provided, however, that the first interest payment date
shall be June 30, 2004.
"Maturity" means the date on which the principal of the Series 5 Bonds
becomes due and payable, whether at stated maturity, upon redemption or
acceleration, or otherwise.
"Paying Agent" means Credit Suisse First Boston, acting through its
Cayman Islands Branch, in its capacity as Paying Agent under the Credit
Agreement.
The following terms shall have the meanings specified in the Credit
Agreement: "Alternate Base Rate", "Commitment", "Issuing Bank", "Letter of
Credit", "Loans", "Obligations" and "Tranche B Maturity Date".
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A copy of the Credit Agreement is filed at the office of the Paying
Agent at Eleven Madison Avenue, OMA-2, New York, New York 10010 and at the
office of the Company at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
ARTICLE II
SERIES 5 BONDS
There is hereby established a series of Bonds having the following
terms and characteristics (the lettered subdivisions set forth below
corresponding to the lettered subdivisions of Section 2 of Article II of the
Indenture):
(a) the title of the Bonds of such series shall be "Second
Mortgage Bonds, Collateral Series D" (such Bonds being hereinafter
sometimes called the "Series 5 Bonds");
(b) the aggregate principal amount of Series 5 Bonds which may
be authenticated and delivered under the Indenture shall be limited to
$400,600,000, except as contemplated in subdivision (b) of Section 2 of
Article II of the Original Indenture;
(c) not applicable;
(d) the Series 5 Bonds shall mature on June 30, 2011;
(e) during the period from and including the date of the first
authentication and delivery of the Series 5 Bonds to and including the
day next preceding the first Interest Payment Date, the Series 5 Bonds
shall bear interest at the rate of ten per centum (10%) per annum;
thereafter, the Series 5 Bonds shall bear interest at a rate equal to
the Alternate Base Rate from time to time in effect plus 500 basis
points; interest on the Series 5 Bonds shall accrue from and including
the date of the first authentication and delivery of the Series 5
Bonds, except as otherwise provided in the form of bond attached hereto
as Exhibit A; interest on the Series 5 Bonds shall be payable on each
Interest Payment Date and at Maturity, and the Regular Record Date for
the interest payable on each Interest Payment Date shall be the day
next preceding such Interest Payment Date; interest payable at Maturity
shall be paid to the Person to whom principal shall be paid; and
interest on the Series 5 Bonds during any period for which payment is
made shall be computed in accordance with the Credit Agreement;
(f) the office of the Trustee in New York, New York, shall be
the office or agency of the Company in The City of New York where (i)
the principal of the Series 5 Bonds and interest payable thereon at
Maturity shall be payable upon presentation thereof, (ii) notices,
presentations and demands to or upon the Company in respect of the
Series 5 Bonds or the Indenture may be served or made and (iii) Series
5 Bonds may be surrendered for registration of transfer or exchange;
the principal office of the Company in Tucson, Arizona shall be an
additional financial office or agency where the principal of the Series
5 Bonds and interest payable thereon at Maturity shall be payable upon
presentation thereof; interest payable on the Series 5 Bonds prior to
Maturity shall be paid by the Company directly to the Holders thereof.
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(g) the Series 5 Bonds shall not be redeemable, in whole
or in part, at the option of the Company;
(h) upon (i) the occurrence of an Event of Default under the
Credit Agreement, and further upon the condition that, in accordance
with the terms of the Credit Agreement, the Commitments shall have been
or shall have terminated and the Loans shall have been declared to be
or shall have otherwise become due and payable immediately and the
Paying Agent shall have delivered to the Company a notice demanding
redemption of the Series 5 Bonds which notice states that it is being
delivered pursuant to Article VII of the Credit Agreement, (ii) the
occurrence of an Event of Default under clause (h) or (i) of Article
VII of the Credit Agreement, or (iii) the Tranche B Maturity Date, then
all Series 5 Bonds shall be redeemed immediately at the principal
amount thereof plus accrued interest to the date of redemption;
(i) the Series 5 Bonds shall be issued in denominations
of $1,000 and any amount in excess thereof;
(j) not applicable;
(k) not applicable;
(l) not applicable;
(m) not applicable;
(n) no service charge shall be made for the registration
of transfer or exchange of Series 5 Bonds;
(o) (i) the Series 5 Bonds are to be issued and delivered to
the Paying Agent in order to provide collateral security for the
obligation of the Company under the Credit Agreement to pay the
Obligations, to the extent and subject to the limitations set forth in
clauses (ii) and (iii) of this subdivision.
(ii) the obligation of the Company to pay interest on
the Series 5 Bonds on any Interest Payment Date prior to Maturity (a)
shall be deemed to have been satisfied and discharged in full in the
event that all amounts then due in respect of the Obligations shall
have been paid or (b) shall be deemed to remain unsatisfied in an
amount equal to the aggregate amount then due in respect of the
Obligations and remaining unpaid (not in excess, however, of the amount
otherwise then due in respect of interest on the Series 5 Bonds).
(iii) the obligation of the Company to pay the
principal of and accrued interest on the Series 5 Bonds at or after
Maturity (x) shall be deemed to have been satisfied and discharged in
full in the event that all amounts then due in respect of the
Obligations shall have been paid and no Letter of Credit shall remain
outstanding or (y) shall be deemed to remain unsatisfied in an amount
equal to the aggregate amount then due in respect of the Obligations
and remaining unpaid plus the aggregate stated
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amount of the outstanding Letters of Credit (not in excess, however, of
the amount otherwise then due in respect of principal of and accrued
interest on the Series 5 Bonds).
(iv) the Trustee shall be entitled to presume that
the obligation of the Company to pay the principal of and interest on
the Series 5 Bonds as the same shall become due and payable shall have
been fully satisfied and discharged unless and until it shall have
received a written notice from the Paying Agent, signed by an
authorized officer thereof, stating that the principal of and/or
interest on the Series 5 Bonds has become due and payable and has not
been fully paid, and specifying the amount of funds required to make
such payment;
(p) in the event of an application by the Paying Agent for
payment or for a substituted Series 5 Bond pursuant to Section 11 of
Article II of the Original Indenture, the Paying Agent shall not be
required to provide any indemnity or pay any expenses or charges as
contemplated in said Section 11; and
(q) the Series 5 Bonds shall have such other terms as are set
forth in the form of bond attached hereto as Exhibit A, which form is
hereby designated as the form of the Series 5 Bonds.
ARTICLE III
MISCELLANEOUS PROVISIONS
This Supplemental Indenture No. 5 is a supplement to the Original
Indenture. As heretofore supplemented and further supplemented by this
Supplemental Indenture No. 5, the Original Indenture is in all respects
ratified, approved and confirmed, and the Original Indenture as heretofore
supplemented and this Supplemental Indenture No. 5 shall together constitute one
and the same instrument.
The Trustee makes no representation as to the validity or sufficiency
of this Supplemental Indenture No. 5. The statements herein are deemed to be
those of the Company and not of the Trustee.
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IN WITNESS WHEREOF, Tucson Electric Power Company has caused its
corporate name to be hereunto affixed, and this instrument to be signed by one
of its Vice Presidents, and its corporate seal to be hereunto affixed and
attested by one of its Assistant Secretaries for and in its behalf; and The Bank
of New York, as trustee, in evidence of its acceptance of the trust hereby
created, has caused its corporate name to be hereunto affixed, and this
instrument to be signed by one of its Vice Presidents and its corporate seal to
be hereunto affixed and attested by one of its Vice Presidents, for and in its
behalf, all as of the day and year first above written.
TUCSON ELECTRIC POWER COMPANY
By
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Vice President
Attest:
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Assistant Secretary
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THE BANK OF NEW YORK,
Trustee
By
---------------------------------
Vice President
Attest:
------------------------------
Vice President
9
STATE OF ARIZONA )
) ss.:
COUNTY OF PIMA )
This instrument was acknowledged before me this ___ day of March 2004
by _______________________, as Vice President, and _______________________, as
Assistant Secretary, of TUCSON ELECTRIC POWER COMPANY, an Arizona corporation,
known to me to be the individuals who executed this instrument, and known to me
to be a Vice President and an Assistant Secretary, respectively, of said
corporation, and who personally acknowledged before me and stated that they
executed said instrument on behalf of said corporation for the purposes and
consideration therein expressed.
---------------------------------
NOTARY PUBLIC
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) ss.:
COUNTY OF NEW YORK )
This instrument was acknowledged before me this ___ day of March 2004
by _______________________, as Vice President, and _______________________, as
Vice President, of THE BANK OF NEW YORK, a New York banking corporation, known
to me to be the individuals who executed this instrument, and known to me to be
Vice Presidents, of said corporation, and who personally acknowledged before me
and stated that they executed said instrument on behalf of said corporation for
the purposes and consideration therein expressed.
---------------------------------
NOTARY PUBLIC
11
Exhibit A
[Form of Bond]
This bond is non-transferable,
except to a successor Paying Agent under the
Credit Agreement referred to herein.
No. ________________ $________
TUCSON ELECTRIC POWER COMPANY
SECOND MORTGAGE BOND, COLLATERAL SERIES D
DUE JUNE 30, 2011
TUCSON ELECTRIC POWER COMPANY, a corporation of the State of Arizona
(hereinafter sometimes called the Company), for value received, promises to pay
to
as Paying Agent under the Credit Agreement hereinafter referred to or registered
assigns, the principal sum of
DOLLARS
on June 30, 2011 in coin or currency of the United States of America which at
the time of payment shall be legal tender for the payment of public and private
debts, at the office or agency of the Company in The City of New York, or in the
City of Tucson, Arizona, upon presentation hereof, and quarterly, on March 31,
June 30, September 30 and December 31 in each year, commencing June 30, 2004
(each an "Interest Payment Date"), and at Maturity (as defined in Supplemental
Indenture No. 5 hereinafter referred to), to pay interest thereon in like coin
or currency at the rate specified below, from the Interest Payment Date next
preceding the date of this bond (unless this bond be dated on an Interest
Payment Date, in which case from the date hereof; or unless this bond be dated
prior to the first interest payment date, in which case from and including the
date of the first authentication and delivery of the bonds of this series),
until the Company's obligation with respect to such principal sum shall be
discharged.
During the period from and including the date of the first
authentication and delivery of the bonds of this series to and including the day
next preceding the first Interest Payment Date, the bonds of this series shall
bear interest at the rate of ten per centum (10%) per annum; thereafter, the
bonds of this series shall bear interest at a rate equal to the Alternate Base
Rate (as defined in Supplemental Indenture No. 5 hereinafter referred to) from
time to time in effect plus 500 basis points. Interest on the bonds of this
series during any period for which payment is made shall be computed in
accordance with the Credit Agreement.
This bond is one of an issue of bonds of the Company, issued and to be
issued in one or more series under and equally and ratably secured (except as
any sinking, amortization, improvement, renewal or other fund, established in
accordance with the provisions of the
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indenture hereinafter mentioned, may afford additional security for the bonds of
any particular series) by the Indenture of Mortgage and Deed of Trust, dated as
of December 1, 1992 (the "Original Indenture"), from the Company to The Bank of
New York, (successor in trust to Bank of Montreal Trust Company), trustee (the
"Trustee"), as supplemented by five supplemental indentures including
Supplemental Indenture No. 5, dated as of March 1, 2004 (the Original Indenture,
as so supplemented, and such Supplemental Indenture being hereinafter called the
"Indenture" and "Supplemental Indenture No. 5", respectively), to which
Indenture reference is hereby made for a description of the property mortgaged
and pledged, the nature and extent of the security provided by the Indenture,
the rights and limitations of rights of the Company, the Trustee and the holders
of said bonds with respect to the security provided by the Indenture, the
powers, duties and immunities of the Trustee, the terms and conditions upon
which such bonds are and are to be secured, and the circumstances under which
additional bonds may be issued. The acceptance of this bond shall be deemed to
constitute the consent and agreement by the holder hereof to all of the terms
and provisions of the Indenture. This bond is one of a series of bonds
designated as the Second Mortgage Bonds, Collateral Series D, of the Company.
The Indenture permits, with certain exceptions as therein provided, the
Trustee to enter into one or more supplemental indentures for the purpose of
adding any provisions to, or changing in any manner or eliminating any of the
provisions of, the Indenture with the consent of the holders of not less than
sixty per centum (60%) in aggregate principal amount of the bonds of all series
then outstanding under the Indenture, considered as one class; provided,
however, that if there shall be bonds of more than one series outstanding under
the Indenture and if a proposed supplemental indenture shall directly affect the
rights of the holders of bonds of one or more, but less than all, of such
series, then the consent only of the holders of bonds in aggregate principal
amount of the outstanding bonds of all series so directly affected, considered
as one class, shall be required; and provided, further, that if the bonds of any
series shall have been issued in more than one tranche and if the proposed
supplemental indenture shall directly affect the rights of the holder of bonds
of one or more, but less than all, of such tranches, then the consent only of
the holders of bonds in aggregate principal amount of the outstanding bonds of
all tranches so directly affected, considered as one class, shall be required;
and provided, further, that the Indenture permits the Trustee to enter into one
or more supplemental indentures for limited purposes without the consent of any
holders of bonds. Any such consent by the holder of this bond shall be
conclusive and binding upon such holder and upon all future holders of this bond
and of any bond issued upon the registration of transfer hereof or in exchange
therefor or in lieu hereof, whether or not notation of such consent is made upon
this bond.
The Company has issued and delivered the bonds of this series to Credit
Suisse First Boston, acting through its Cayman Islands Branch, as Paying Agent
(the "Paying Agent") under the Credit Agreement, dated as of March 25, 2004,
among the Company, the Lenders party thereto, the Issuing Banks party thereto,
JPMorgan Chase Bank, Credit Suisse First Boston, acting through its Cayman
Islands Branch, and ▇▇▇▇▇▇ Brothers Inc., as Co-Administrative Agents, Credit
Suisse First Boston, acting through its Cayman Islands Branch, as Paying Agent,
and JPMorgan Chase Bank, Credit Suisse First Boston, acting through its Cayman
Islands Branch, and ▇▇▇▇▇▇ Brothers Inc., as Co-Lead Arrangers and Joint
Bookrunners, as amended, supplemented or otherwise modified from time to time
(the "Credit Agreement"), in order to provide collateral security for the
obligation of the Company thereunder to pay the Obligations (as defined in
Supplemental Indenture No. 5).
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Upon (i) the occurrence of an Event of Default under the Credit
Agreement, and further upon such additional conditions as are set forth in
subdivision (h) of Article II of Supplemental Indenture No. 5, or (ii) the
Tranche B Maturity Date under the Credit Agreement, then all bonds of this
series shall be redeemed immediately at the principal amount thereof plus
accrued interest to the date of redemption.
The obligation of the Company to pay interest on the bonds of this
Series on any Interest Payment Date prior to Maturity (a) shall be deemed to
have been satisfied and discharged in full in the event that all amounts then
due in respect of the Obligations shall have been paid or (b) shall be deemed to
remain unsatisfied in an amount equal to the aggregate amount then due in
respect of the Obligations and remaining unpaid (not in excess, however, of the
amount otherwise then due in respect of interest on the bonds of this Series).
The obligation of the Company to pay the principal of and accrued
interest on the bonds of this series at or after Maturity (x) shall be deemed to
have been satisfied and discharged in full in the event that all amounts then
due in respect of the Obligations shall have been paid and no Letter of Credit
(as defined in Supplemental Indenture No. 5) shall remain outstanding or (y)
shall be deemed to remain unsatisfied in an amount equal to the aggregate amount
then due in respect of the Obligations and remaining unpaid plus the aggregate
stated amount of the outstanding Letters of Credit (not in excess, however, of
the amount otherwise then due in respect of principal of and accrued interest on
the bonds of this series).
The principal of this bond and the interest accrued hereon may become
or be declared due and payable before the stated maturity hereof, on the
conditions, in the manner and at the times set forth in the Indenture, upon the
happening of a default as therein provided.
This bond is non-transferable except as required to effect transfer to
any successor paying agent under the Credit Agreement, any such transfer to be
made at the office or agency of the Company in The City of New York, upon
surrender and cancellation of this bond, and upon any such transfer a new bond
of this series, for the same aggregate principal amount and having the same
stated maturity date, will be issued to the transferee in exchange herefor.
Prior to due presentment for registration of transfer, the Company and the
Trustee may deem and treat the person in whose name this bond is registered as
the absolute owner hereof for the purpose of receiving payment and for all other
purposes. This bond, alone or with other bonds of this series, may in like
manner be exchanged at such office or agency for one or more bonds of this
series of the same aggregate principal amount and having the same stated
maturity date and interest rate, all as provided in the Indenture.
No recourse shall be had for the payment of the principal of or
interest on this bond, or for any claim based hereon or otherwise in respect
hereof or of the Indenture, against any incorporator, shareholder, director or
officer, as such, past, present or future, of the Company or of any predecessor
or successor corporation, either directly or through the Company or any
predecessor or successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or by
any legal or equitable proceeding or otherwise howsoever (including, without
limiting the generality of the foregoing, any proceeding to enforce any claimed
liability of shareholders of the Company, based upon any theory of disregarding
the corporate entity of the Company or upon any theory that the Company
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was acting as the agent or instrumentality of the shareholders); all such
liability being, by the acceptance hereof and as a part of the consideration for
the issuance hereof, expressly waived and released by every holder hereof, and
being likewise waived and released by the terms of the Indenture under which
this bond is issued, as more fully provided in said Indenture.
This bond shall not be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been signed by The Bank of
New York, or its successor, as Trustee under the Indenture.
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IN WITNESS WHEREOF, the Company has caused this bond to be signed in
its name by the manual or facsimile signature of its President or one of its
Vice Presidents, and its corporate seal, or a facsimile thereof, to be impressed
or imprinted hereon and attested by the manual or facsimile signature of its
Secretary or one of its Assistant Secretaries.
Dated:
TUCSON ELECTRIC POWER COMPANY
By:
---------------------------------
Attest:
--------------------------
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[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the bonds, of the series designated therein, described
in the within-mentioned Indenture.
Dated: March __, 2004
The Bank of New York,
Trustee
By:
----------------------------------------------
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SCHEDULE A
DESCRIPTION OF MORTGAGED PROPERTY
GENERIC DESCRIPTION
All electric generating plants, gas generating plant, gas
holders, steam plant, gas regulating stations, substations and other properties
of the Company, including all power houses, transmission lines, buildings,
pipes, structures and works, and the lands of the Company on which the same are
situated, and all the Company's lands, easements, rights, rights-of-way, water
rights, rights to the use of water, including all of the Company's right, title
and interest in and to any and all decrees therefor, permits, franchises,
consents, privileges, licenses, poles, towers, wires, switch racks, insulators,
pipes, machinery, engines, boilers, motors, regulators, meters, tools,
appliances, equipment, appurtenances and supplies, forming a part of or
appertaining to said plants, holders, sites, stations or other properties, or
any of them, or used or enjoyed, or capable of being used or enjoyed in
conjunction or connection therewith; and
All electric substations and substation sites of the Company
including all buildings, structures, towers, poles, lines, and all equipment,
appliances, and devices for transforming, converting and distributing electric
energy, and all the right, title and interest of the Company in and to the land
on which the same are situated, and all of the Company's lands, easements,
rights-of-way, rights, franchises, privileges, machinery, equipment, fixtures,
appliances, devices, appurtenances and supplies forming a part of said
substation or any of them, or used or enjoyed, or capable of being used or
enjoyed, in conjunction or connection therewith; and
All warehouses, buildings, structures, works and sites and the
Company's lands on which the same are situated, and all easements,
rights-of-way, permits franchises, consents, privileges, licenses, machinery,
equipment, furniture and fixtures, appurtenances and supplies forming a part of
said warehouses, buildings, structures, works and sites, or any of them, or used
or enjoyed or capable of being used or enjoyed in connection or conjunction
therewith; and
All electric distribution systems of the Company, including
towers, poles, wires, insulators, appliances, devices, appurtenances and
equipment, and all the Company's other property, real, personal or mixed,
forming a part of, or used, occupied or enjoyed in connection with or in any way
appertaining to said distribution systems, or any of them, together with all of
the Company's rights-of-way, easements, permits, privileges, municipal or other
franchises, licenses, consents and rights for or relating to the construction,
maintenance or operation thereof through, over, under or upon any public streets
or highways, or public or private lands; and also all branches, extensions,
improvements and developments of or appertaining to or connected with said
electric distribution systems, or any of them, and all other electric
distribution systems of the Company and parts thereof wherever situated, and
whether now owned or hereafter acquired, as well as all rights-of-way,
easements, privileges, permits, municipal or other franchises, consents and
rights for or relating to the construction, maintenance or operation thereof, or
any part thereof, through, over, under or upon public or private lands, whether
now owned or hereafter acquired; and
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All electric transmission and/or distribution lines of the
Company, including the towers, poles, pole lines, wires, switch racks,
insulators, supports, guys, telephone and telegraph lines and other appliances
and equipment, and all other property of the Company, real, personal or mixed,
forming a part thereof or appertaining thereto, together with all of the
Company's rights-of-way, easements, permits, privileges, municipal or other
franchises, consents, licenses and rights, for or relating to the construction,
maintenance or operation thereof, through, over, under or upon any public
streets or highways or other lands, public or private; also all extension,
branches, taps, developments and improvements of or to any and all of the
above-described transmission and/or distribution lines, telephone and telegraph
lines or any of them, as well as all rights-of-way, easements, permits,
privileges, rights and municipal or other franchises, licenses and consents, for
or relating to the construction, maintenance or operation of said lines or any
of them, or any part thereof, through, over, under or upon any public streets or
highways or any public or private lands, whether now owned or hereafter
acquired;
Excepting, however, any property of the character of "Excepted
Property" within the meaning of the Supplemental Indenture to which this
Schedule A is attached.
SPECIFIC DESCRIPTION OF ADDITIONAL REAL PROPERTY
Specific descriptions of additional portions of the Mortgaged
Property which constitute real property are contained in Annex 1 to this
Schedule A.
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Annex 1
to
Schedule A
1. That portion of Parcel 16 described within Book 7630 at page 717 in the
office of the Recorder, Pima County, Arizona, situated in the Northeast Quarter
of Section 36, Township 16 South, Range 13 East, Gila and Salt River Base and
Meridian, Pima County, Arizona, more particularly described as follows:
COMMENCING at the North Quarter corner of said Section 36;
THENCE South 00 degrees 06 minutes 54 seconds East, 271.38 feet along the West
line of said Northeast Quarter of Section 36;
THENCE North 89 degrees 53 minutes 06 seconds East, 40.00 feet to the POINT OF
BEGINNING; THENCE South 83 degrees 55 minutes 21 seconds East, 1361.71 feet;
THENCE North 89 degrees 08 minutes 18 seconds East, 373.51 feet parallel with
the North line of said Northeast Quarter of Section 36 to a point on the East
line of said Parcel 16; THENCE South 10 degrees 29 minutes 58 seconds East,
188.22 feet along said East line; THENCE South 03 degrees 18 minutes 02 seconds
West, 580.17 feet along said East line; THENCE South 07 degrees 29 minutes 58
seconds East, 119.72 feet along said East line; THENCE South 53 degrees 54
minutes 58 seconds East, 335.00 feet along said East line; THENCE South 34
degrees 19 minutes 58 seconds East, 689.33 feet along said East line; THENCE
South 00 degrees 34 minutes 58 seconds East, 274.11 feet along said East line;
THENCE South 02 degrees 50 minutes 02 seconds West, 295.58 feet along said East
line to a point on the South line of said Northeast Quarter of Section 36, and,
also being, the Southeast corner of said Parcel 16;
THENCE South 89 degrees 07 minutes 44 seconds West, 54.05 feet along said South
line of the Northeast Quarter of Section 36 and, also being, the South line of
said Parcel 16; THENCE North 31 degrees 45 minutes 46 seconds West, 227.81 feet
along said South line; THENCE South 80 degrees 42 minutes 09 seconds West,
839.83 feet along said South line; THENCE South 09 degrees 14 minutes 43 seconds
East, 17.19 feet along said South line; THENCE South 88 degrees 42 minutes 54
seconds West, 1329.59 feet along said South line;
THENCE South 64 degrees 09 minutes 37 seconds West, 16.58 feet along said South
line to a point of intersection with the prolongation of the East line of a
public ingress/egress easement recorded in Docket 11766 at page 2245 and
described on Exhibit "A";
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THENCE North 11 degrees 41 minutes 27 seconds West, 136.39 feet along the
aforesaid East line to a point of curvature concave to the East and having a
radius of 760.00 feet;
THENCE Northerly along said curve through a central angle of 11 degrees 34
minutes 33 seconds an arc distance of 153.55 feet along said East line;
THENCE North 00 degrees 06 minutes 54 seconds West, 2068.16 feet parallel with
the West line of the said Northeast Quarter of Section 36 to the POINT OF
BEGINNING.
2. ▇▇▇▇ ▇▇ ▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, a subdivision of Pima County,
Arizona, according to the map or plat thereof of record in the office of the
County Recorder of Pima County, Arizona, in Book 35 of Maps and Plats at page 50
thereof.
3. DESCRIPTION of parcel of land located in Section ▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇
13 East, Gila & Salt River Meridian, Santa ▇▇▇▇ County, Arizona. Said parcel
being more fully described as follows:
COMMENCING at the stone monument marking the North Quarter corner of said
Section 12 (from which a B.L.M brass cap marking the Northeast corner of said
Section 12 bears North 89(degree) 16'48" East, a distance of 2654.20 feet);
THENCE South 00(degree)34'56 East along the Center Section line of said section
12, a distance of 646.69 feet to the TRUE POINT OF BEGINNING;
THENCE continuing along said Center Section line South 00(degree)34'56" East, a
distance of 1117.40 feet to the Northwest corner of Lot F, MARIPOSA NORTH
INDUSTRIAL PARK, as recorded in Book 4 of Maps and Plats, page ▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇;
THENCE North 61(degree)28'01" East along the North line of said lot F, a
distance of 172.13 feet;
THENCE continuing along said North line North 41(degree)00'11" East, a distance
197.77 feet to a 1/2 rebar marking the Northwest Corner of lot G of said Plat;
THENCE along the North line of said lot G North 83(degree)11'50" East, a
distance of 254.11 feet to the Northwest corner of Lot H of said plat;
THENCE along the North line of said Lot H North 89(degree)35'24" East, a
distance of 440.37 feet, more or less, to the West line of Common Area "A" of
said plat;
THENCE along said West line, along a non-tangent curve to the left for an arc
length of 20.06 feet (said curve having a radius of 770.00 feet, a central angle
of 1(degree)29'34, and a radial line in of South 66(degree)57'18" West and a
radial line out of North 65(degree)27'44" East) to a 1/2" rebar;
THENCE continuing along said West line North 24(degree)36'57" West, a distance
of 31.45 feet to a 1/2 rebar marking the Northwest corner of Common Area "A";
THENCE along the North line of said Common Area "A" North 65(degree)29'25" East,
a distance of 60.20 feet, more or less, to a 1/2" rebar marking the Northwest
corner of Lot J of said plat;
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THENCE along the North line of said Lot J North 65(degree)27'56" East, a
distance of 447.00 feet to a 1/2" rebar;
THENCE continuing along said North line South 89(degree)57'51" East, a distance
of 180.68 feet to a 1/2" rebar;
THENCE continuing along said North line South 44(degree)45'10" East, a distance
of 145.02 feet, more or less to a point on the westerly right-of- way of
Mariposa Ranch Road;
THENCE North 00(degree)34'56" West, a distance of 715.52 feet;
THENCE South 89(degree)25'04" West, a distance of 1700.86 feet to the TRUE POINT
OF BEGINNING.
Said parcel containing an approximate area of 1,380,999 square feet or 31.70
acres of land, more or less.
(The intent of said description to more specifically describe proposed ▇▇▇ ▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ II, not recorded as of this date, which
will supercede the values shown herein.)
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