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EXHIBIT 4.3
Execution Version
AND
THE BANK OF NEW YORK TRUST COMPANY, N.A.
as Trustee
______________________________________
SUPPLEMENTAL INDENTURE NO. 2
Dated as of May 16, 2008
To
INDENTURE
Dated as of March 15, 2005
______________________________________
43138.3
THIS SUPPLEMENTAL INDENTURE NO. 2 (this “ Supplemental
Indenture No. 2 ), dated as of May 16, 2008, between
PNM RESOURCES,
INC. , a New Mexico corporation (the “ Company
”), and THE
BANK OF NEW YORK TRUST COMPANY, N.A. , a national banking
association (as successor to JPMorgan Chase Bank, N.A.), as Trustee
(the “ Trustee
”).
RECITALS OF THE COMPANY
The Company has executed
and delivered to the Trustee an Indenture dated as of March
15, 2005, between the Company and the Trustee (the “
Base
Indenture ”) to provide for the issuance from
time to time of one or more series of the Company’s
senior notes (the “ Notes
”).
The
Company has executed and delivered to the Trustee a
Supplemental Indenture No. 1, dated as of March 30, 2005
(“ Supplemental
Indenture No. 1 ”), between the Company and
JPMorgan Chase Bank, N.A., as Trustee, supplemental to the
Base Indenture (the Base Indenture, as supplemented by
Supplemental Indenture No. 1, the “ Indenture
”), to establish the form and terms of a series of Notes
known as the Company’s Senior Notes, Series A (the
“ Series A
Notes ”).
On March 30, 2005, the
Company issued $247,250,000 aggregate principal amount of the
Series A Notes (the “ Initial Series
A Notes ”).
On
October 2, 2006, The Bank of New York Trust Company, N.A.
succeeded to JPMorgan Chase Bank, N.A. as
Trustee.
On
May 9, 2008, the Initial Series A Notes were the subject of a
Successful Remarketing (as defined in Section 5.02(b)(iv) of
the Purchase Contract and Pledge Agreement (as defined in
Section 1.02(e) hereof)).
The
Company has elected, pursuant to Section 2.02 of Supplemental
Indenture No. 1, to extend the Maturity Date (as defined in
Section 2.02 of Supplemental Indenture No. 1) of the Initial
Series A Notes in connection with the Successful Remarketing
and the Company desires to specify such extension of the
Maturity Date in this Supplemental Indenture No. 2 and in the
form of the Series A Notes.
In
connection with the Successful Remarketing, the Coupon Rate
(as defined in Supplemental Indenture No. 1) of the Initial
Series A Notes was reset by the Remarketing Agents (as defined
in the Remarketing Agreement (as defined in Section 1.02(e)
hereof)) to the Reset Rate (as defined in the Remarketing
Agreement) with effect from the Purchase Contract Settlement
Date (as defined in the Purchase Contract and Pledge
Agreement), as set forth in Section 8.03 of Supplemental
Indenture No. 1, and the Company desires to specify such reset
Coupon Rate in this Supplemental Indenture No. 2 and in the
form of the Series A Notes.
Section
9.01 of the Base Indenture provides that, without the consent
of any Holders, the Company, when authorized by or pursuant to
a Board Resolution, and the Trustee, at any time and from time
to time, may enter into one or more indentures supplemental to
the Indenture for any of the purposes as provided in Section
9.01 of the Base Indenture, and the Company desires to amend
the Indenture including the form of Series A Notes, as
hereinafter provided.
In
connection with the Successful Remarketing, the Company
desires to prepare and execute and cause the Trustee to
authenticate and deliver Initial Series A Notes, as modified
to conform to the provisions of this Supplemental Indenture
No. 2, and to exchange such Initial Series A Notes, as so
modified, for Outstanding Initial Series A Notes.
Pursuant
to Section 3.01 of the Base Indenture, the Company may
increase the aggregate principal amount of a series of Notes
without the consent of the Holders of the Notes of such series
to the maximum aggregate principal amount authorized with
respect to such series as increased, and the Company desires
to so increase the aggregate principal amount of the Series A
Notes and to provide for the issuance of additional Series A
Notes (the “ Additional
Series A Notes ”).
The
Company has requested that the Trustee join in the execution
and delivery of this Supplemental Indenture No. 2, and all
requirements necessary to make this Supplemental Indenture No.
2 a valid, binding and enforceable instrument in accordance
with its terms, and to make the Additional Series A Notes,
when executed by the Company and authenticated and delivered
by the Trustee, the valid, binding and enforceable obligations
of the Company, have been satisfied and performed, and the
execution and delivery of this Supplemental Indenture No. 2
has been duly authorized in all respects.
NOW,
THEREFORE, in consideration of the covenants and agreements
set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.01
Relation to
Base Indenture . This Supplemental
Indenture No. 2 constitutes an integral part of the
Indenture.
Section 1.02
Definition of
Terms . For all purposes of this
Supplemental Indenture No. 2:
(a) Capitalized
terms used herein without definition shall have the meanings
set forth in the Base Indenture, or, if not defined in the
Base Indenture, in Supplemental Indenture No. 1, in the
Purchase Contract and Pledge Agreement or in the Remarketing
Agreement;
(b) a term
defined anywhere in this Supplemental Indenture No. 2 has the
same meaning throughout;
(c) the singular
includes the plural and vice versa;
(d) headings are
for convenience of reference only and do not affect
interpretation; and
(e) the
following terms have meanings given to them in this Section
1.02(e):
“ Beneficial
Owner ”
has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5
under the Exchange Act, except that in calculating the beneficial
ownership of any particular “person” (as
that term is used in Section 13(d)(3) of the Exchange Act), such
“person” will be deemed to have beneficial ownership of
all securities that such “person” has the right to
acquire by conversion or exercise of other securities, whether such
right is currently exercisable or is exercisable only upon the
occurrence of a subsequent condition.
“
Capital
Stock ”
means:
(1)
in the case of a corporation, corporate stock;
(2)
in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents
(however designated) of corporate stock;
(3)
in the case of a partnership or limited liability company,
partnership or membership interests (whether general or
limited); and
(4)
any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person.
“ Change of
Control ” means the
occurrence of any of the following:
(1)
the direct or indirect sale, lease, transfer, conveyance or
other disposition (other than by way of merger or
consolidation), in one or a series of related transactions, of
all or substantially all of the properties or assets of the
Company and its Subsidiaries taken as a whole to any
“person” (as that term is used in Section 13(d)(3)
of the Exchange Act, including any “group” with
the meaning of the Exchange Act);
(2)
the adoption of a plan relating to the liquidation or
dissolution of the Company;
(3)
any “person” (as defined above) becomes the
Beneficial Owner, directly or indirectly, of more than 50% of
the Voting Stock of the Company, measured by voting power
rather than number of shares;
(4)
the first day on which a majority of the members of the Board
of Directors of the Company are not Continuing
Directors;
(5)
the first day on which the Company ceases to be a Beneficial
Owner of a majority of the Voting Stock of either Public
Service Company of New Mexico or Texas-New Mexico Power
Company;
(6)
the Company consolidates with, or merges with or into, any
Person, or any Person consolidates with, or merges with or
into, the Company, in any such event pursuant to a transaction
in which any of the outstanding Voting Stock of the Company or
such other Person is converted into or exchanged for cash,
securities or other property, other than any such transaction
where our outstanding Voting Stock immediately prior to such
transaction is converted into or exchanged for Voting Stock
(other than Disqualified Stock) of the surviving or transferee
Person constituting a majority of the outstanding shares of
such Voting Stock of such surviving or transferee Person
(immediately after giving effect to such
issuance).
“ Change of
Control Offer ,” “ Change of
Control Payment ,” and “ Change of
Control Payment Date ” shall have the meanings
set forth below in Section 2.03(a)(1).
“
Continuing
Directors ” means, as of any date of
determination, any member of the Board of Directors of the
Company who:
(1)
was a member of such Board of Directors on the date hereof;
or
(2)
was nominated for election or elected to such Board of
Directors with the approval of a majority of the Continuing
Directors who were members of such Board of Directors at the
time of such nomination or election.
“
Control
” means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or
policies of a Person, whether through the ability to exercise
voting power, by contract or otherwise. A Person shall be
deemed to Control another Person if such Person directly or
indirectly owns or controls more than 50% or more of the other
Person’s capital stock. The terms
“Controlling” and “Controlled” have
meanings correlative thereto.
“
Credit
Facility ” means the Amended and Restated Credit
Agreement dated August 15, 2005 among the Company and First
Choice Power, L.P., as borrowers, the lenders named therein
and Bank of America, N.A., as administrative
agent.
“
Debt
” means (1) any outstanding debt for money borrowed and
(2) any indebtedness evidenced by notes, debentures, bonds or
other similar instruments.
“
Disqualified
Stock ” means any Capital Stock that, by its
terms (or by the terms of any security into which it is
convertible, or for which it is exchangeable, in each case at
the option of the holder of the Capital Stock), or upon the
happening of any event (other than as a result of an optional
redemption by the issuer thereof), matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or
otherwise, or redeemable at the option of the holder of the
Capital Stock, in whole or in part, on or prior to the date
that is 91 days after the date on which the notes
mature.
“
Hedging
Obligations ” means,
with respect to any specified Person, the obligations of such
Person under: (1) interest rate swap agreements (whether from
fixed to floating or from floating to fixed), interest rate
cap agreements and interest rate collar agreements; (2) other
agreements or arrangements designed to manage interest rates
or interest rate risk; and (3) other agreements or
arrangements designed to protect such Person against
fluctuations in currency exchange rates or commodity
prices.
“
Liens
” shall have the meaning specified below in Section
2.03(a)(1) hereof.
“
Operating
Property ” means (1) any interest in real
property owned directly by the Company and (2) any asset owned
directly by the Company that is depreciable in accordance with
generally accepted accounting principles.
“
Payment
Default ” means a default under any mortgage,
indenture or instrument under which the Company may issue or
by which there may be secured or evidenced any Debt of the
Company (or the payment of which is guaranteed by the
Company), if that default is caused by a failure to pay
principal of, or interest or premium, if any, on such Debt
prior to the expiration of the grace period provided in such
Debt.
“ Purchase
Contract and Pledge Agreement ” means the
Purchase Contract and Pledge Agreement dated as of March 30,
2005 among the Company, The Bank of New York Trust Company,
N.A. (as successor to JPMorgan Chase Bank, N.A.), as Purchase
Contract Agent (as such term is defined in the Purchase
Contract and Pledge Agreement), and U.S. Bank Trust National
Association, as Collateral Agent, Custodial Agent and
Securities Intermediary (as such terms are defined in the
Purchase Contract and Pledge Agreement).
“ Remarketing
Agreement ” means the Remarketing Agreement,
dated as of March 30, 2005, as amended and supplemented by
the Supplemental Remarketing Agreement, dated as of May 6,
2008, among the Company, the Remarketing Agents named therein
and the Purchase Contract Agent named therein.
“ Sale and
Lease-Back Transaction ” means any arrangement
with any entity providing for the leasing to the Company of
any Operating Property (except for temporary leases for a
term, including any renewal thereof, of not more than 48
months), which Operating Property has been or is to be sold
or transferred by the Company to such entity; provided,
however, Sale and Lease-Back Transaction shall not include
any arrangement (i) first entered into prior to the date of
the Indenture and (ii) involving the exchange of any
Operating Property for any property subject to an arrangement
specified in the preceding clause (i).
“
Subsidiary
” means, with respect to any Person (the
‘‘parent’’) at any date, any
corporation, limited liability company, partnership,
association or other entity the accounts of which would be
consolidated with those of the parent in the parent’s
consolidated financial statements if such financial statements
were prepared in accordance with generally accepted accounting
principles as of that date, as well as any other corporation,
limited liability company, partnership, association or other
entity (1) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of
the ordinary voting power or, in the case of a partnership,
more than 50% of the general partnership interests are, as of
that date, owned, controlled or held or (2) that is, as of
that date, otherwise Controlled (within the meaning of the
first sentence of the definition of
‘‘Control’’), by the parent or one or
more subsidiaries of the parent.
“
Value
” means, with respect to a Sale and Lease-Back
Transaction, as of any particular time, the amount equal to
the greater of (1) the net proceeds to the Company from the
sale or transfer of the property leased pursuant to such Sale
and Lease-Back Transaction or (2) the net book value of such
property, as determined in accordance with generally accepted
accounting principles by the Company at the time of entering
into such Sale and Lease-Back Transaction, in either case
multiplied by a fraction, the numerator of which shall be
equal to the number of full years of the term of the lease
that is part of such Sale and Lease-Back Transaction remaining
at the time of determination and the denominator of which
shall be equal to the number of full years of such term,
without regard, in any case, to any renewal or extension
options contained in such lease.
“
Voting
Stock ” of any Person as of any date means the
Capital Stock of such Person that is at the time entitled to
vote in the election of the Board of Directors of such
Person.
The
terms “Additional Series A Notes,” “Base
Indenture, ” “Company,” “Coupon
Rate,” “Indenture,” “Initial Series A
Notes,” “Notes,” “Purchase
Contract Settlement Date,” “Maturity Date,”
“Remarketing Agents,” “Reset Rate,”
“Successful Remarketing,” “Supplemental
Indenture No. 1,” “Supplemental Indenture No.
2,” “Series A Notes” and
“Trustee” shall have the respective meanings set
forth in the recitals to this Supplemental Indenture No. 2 and
the paragraph preceding such recitals.
ARTICLE I I
CHANGES
TO THE TERMS AND CONDITIONS OF
THE
SERIES A NOTES
Section
2.01 Maturity
Date . Pursuant to Section 2.02 of Supplemental
Indenture No. 1, from and after May 16, 2008, the Maturity
Date of the Series A Notes is and shall be May 15,
2015.
Section
2.02 Coupon
Rate . Pursuant to the Remarketing
Agreement and Section 8.03 of Supplemental Indenture No. 1,
on and after May 16, 2008, the Coupon Rate is and shall be
9.25% per annum.
Section
2.03. Pursuant to Section 9.01 of the Base
Indenture, the Indenture is hereby amended, effective from and
after May 16, 2008, to add the following
provisions:
(a)
Restrictions on
Liens .
(1) Except
as permitted by Subsection 2.03(a)(2) below, for so long as
any of the Series A Notes are Outstanding, the Company will
not issue, assume, or guarantee any Debt secured by any
mortgage, security interest, pledge, lien, charge or similar
encumbrance (collectively, “ Liens
”) of or upon any of the property or assets of the
Company or upon any property or assets of any Subsidiary of
the Company, owned as of the date specified hereof or
thereafter acquired, without also securing the Outstanding
Series A Notes (together with, if the Company shall so
determine, any other Debt of or guaranteed by the Company
ranking senior to, or equally with, the Series A Notes)
equally and ratably with such Debt so long as such other Debt
is so secured; provided, however, that the foregoing
restriction shall not apply to Debt secured by any of the
following:
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(i)
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Liens
created, incurred, assumed or existing on property of the Company
in favor of the lenders, letter of credit issuers or hedge
providers under the Credit Facility and related Hedging Obligations
in an aggregate principal amount up to $600 million;
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(ii)
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Liens
on any property or shares of stock of a Person existing at the time
of a sale, lease or other disposition of all or substantially all
of the properties or assets of a Person or an operating business of
a Person to the Company; provided, however, that such Lien was not
incurred in anticipation of the merger, consolidation, or sale,
lease, other disposition or other such transaction;
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(iii)
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Liens
on any property to secure all or part of the cost of acquiring,
constructing, developing, or repairing, altering or improving the
property, or to secure Debt incurred to provide funds for any of
these purposes or for the reimbursement of funds previously
expended for any of these purposes; provided, however, that the
principal amount of Debt secured by each such Lien was incurred
concurrently with, or within 18 months of, the acquisition,
construction, development, repair, alteration or improvement of
such property and does not exceed the cost (as determined in
accordance with generally accepted accounting principles) to the
Company of the property subject to the Lien;
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(iv)
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Liens
in favor of the United States of America or any State thereof, or
any department, agency, or instrumentality or political subdivision
of the United States of America or any State thereof, or for the
benefit of holders of securities issued by any such entity, to
secure any Debt incurred for the purpose of financing all or any
part of the purchase price or the cost of constructing, developing
or repairing, altering, or improving the property subject to such
Liens; or
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(v)
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the
extension, renewal or replacement of any Lien referred to above;
provided, however, that such extension, renewal or replacement Lien
will be limited to the same property that secured the Lien so
extended, renewed or replaced; and the maximum principal amount
of
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