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Exhibit 4.1
Supplemental Indenture
No. 7
_________________________
TUCSON ELECTRIC POWER
COMPANY
to
THE BANK OF NEW YORK,
Trustee
_________________________
Dated as of December 1, 2006
Supplemental to Indenture of Mortgage and
Deed of Trust,
dated as of December 1, 1992
_________________________
Creating A Series of Bonds
Designated
First Mortgage Bonds, Collateral Series F
_________________________
This instrument constitutes a mortgage, a
deed of trust and a security agreement.
SUPPLEMENTAL INDENTURE NO. 7 , dated as of December 1, 2006, 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 101 Barclay Street, 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. 7
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 "First Mortgage Bonds, Collateral Series
F" 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 $490,600,000,
such series of Bonds and such Bonds to be hereinafter sometimes
called, respectively, "Series 7" and "Series 7 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 7 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. 7 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. 7 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 7 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 Supplemental Indenture No. 7, 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 Supplemental Indenture No. 7 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. 7 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, and 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, and 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
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Supplemental Indenture No. 7 shall not result in
the Trustee having greater 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; 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; 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 under the Indenture 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 thereby (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; 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, in the Indenture and in the Bonds
set forth;
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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 or under the
Indenture) 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. 7, 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.
"Administrative Agent" means
Union Bank of California, N.A., in its capacity as Administrative
Agent under the Credit Agreement.
"Credit
Agreement" means the Amended and Restated
Credit Agreement, dated as of August 11, 2006, among the Company,
the Lenders party thereto, the Issuing Banks party thereto, the
Co-Syndication Agents party thereto, the Co-Documentation Agents
party thereto and Union Bank of California, N.A., as Administrative
Agent, as amended, amended and restated, 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 December 31, 2006.
"Maturity" means the date on
which the principal of the Series 7 Bonds becomes due and
payable, whether at stated maturity, upon redemption or
acceleration, or otherwise.
The following terms shall have the meanings
specified in the Credit Agreement: "Aggregate
Commitment", "Alternate Base Rate", "Issuing Bank", "Letter of
Credit", "Loans" and "Obligations".
A copy of the Credit Agreement is filed at the
office of the Administrative Agent at 445 South Figueroa Street, 15
th floor, Los Angeles, California 90071 and at the
office of the Company at One South Church Avenue, Tucson, Arizona
85701.
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ARTICLE II
Series 7 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 "First Mortgage Bonds, Collateral Series F" (such
Bonds being hereinafter sometimes called the "Series 7
Bonds");
(b) the aggregate principal amount of
Series 7 Bonds which may be authenticated and delivered under
the Indenture shall be limited to $490,600,000, except as
contemplated in subdivision (b) of Section 2 of Article II of the
Original Indenture;
(c) not applicable;
(d) the Series 7 Bonds
shall mature on June 30, 2013;
(e) during the period from and
including the date of the first authentication and delivery of the
Series 7 Bonds to and including the day next preceding the
first Interest Payment Date, the Series 7 Bonds shall bear
interest at the rate of eight per centum (8%) per annum;
thereafter, the Series 7 Bonds shall bear interest at a rate
equal to the Alternate Base Rate from time to time in effect plus
300 basis points; interest on the Series 7 Bonds shall accrue
from and including the date of the first authentication and
delivery of the Series 7 Bonds, except as otherwise provided
in the form of bond attached hereto as Exhibit A; interest on
the Series 7 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 7 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 7 Bonds and interest payable thereon at Maturity shall
be payable upon presentation thereof,
(ii) registrati
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