Exhibit 4(b)
================================================================================
SUPPLEMENTAL INDENTURE NO. 6
_____________________
TUCSON ELECTRIC POWER COMPANY
TO
THE BANK OF NEW YORK,
TRUSTEE
_____________________
Dated as of May 1, 2005
Supplemental to Indenture of Mortgage and Deed of Trust,
dated as of December 1, 1992
_____________________
Creating A Series of Bonds Designated
Second Mortgage Bonds, Collateral Series E
_____________________
================================================================================
This instrument constitutes a mortgage, a
deed of trustand a security agreement.
<PAGE>
SUPPLEMENTAL
INDENTURE NO. 6, dated as of May 1, 2005, 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. 6 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
E" 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 6" and "Series 6
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 6
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. 6 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.
1
<PAGE>
GRANTING CLAUSES
NOW, THEREFORE,
THIS SUPPLEMENTAL INDENTURE NO. 6 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 6 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.
6, 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. 6 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. 6 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 Supplemental Indenture No.
6 shall not result in the Trustee
2
<PAGE>
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, 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 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
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,
3
<PAGE>
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;
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. 6, 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 Credit Agreement, dated as of May 4, 2005,
among the Company, the Lenders party
thereto, the Issuing Banks party thereto,
the Syndication Agent party thereto, the
Documentation Agent party thereto and
Union Bank of California, N.A., as
Administrative Agent, 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, 2005.
"MATURITY" means
the date on which the principal of the Series 6 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, 15th
floor, Los Angeles, California 90071
and at the office of the Company at One
South Church Avenue, Tucson, Arizona
85701.
4
<PAGE>
ARTICLE II
SERIES 6 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 E" (such Bonds being hereinafter sometimes
called
the "Series 6
Bonds");
(b) the aggregate principal amount of Series 6 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 6 Bonds shall mature on June 30, 2012;
(e) during the period from and including the date of the first
authentication
and delivery of the Series 6 Bonds to and including the day
next preceding
the first Interest Payment Date, the Series 6 Bonds shall
bear interest at
the rate of ten per centum (10%) per annum; thereafter,
the Series 6
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 6
Bonds shall accrue from and including the date of the first
authentication
and delivery of the Series 6 Bonds, except as otherwise
provided in the
form of bond attached hereto as Exhibit A; interest on the
Series 6 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
