UniSource TEP 8-K

0000950120-06-000306.txt : 20060612 0000950120-06-000306.hdr.sgml : 20060612 20060612171406 ACCESSION NUMBER: 0000950120-06-000306 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 7 CONFORMED PERIOD OF REPORT: 20060608 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Other Events ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20060612 DATE AS OF CHANGE: 20060612 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TUCSON ELECTRIC POWER CO CENTRAL INDEX KEY: 0000100122 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC SERVICES [4911] IRS NUMBER: 860062700 STATE OF INCORPORATION: AZ FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-05924 FILM NUMBER: 06900521 BUSINESS ADDRESS: STREET 1: ONE SOUTH CHURCH AVENUE STREET 2: SUITE 100 CITY: TUCSON STATE: AZ ZIP: 85701 BUSINESS PHONE: 520-571-4000 MAIL ADDRESS: STREET 1: ONE SOUTH CHURCH AVENUE, SUITE 100 STREET 2: P.O. BOX 711 CITY: TUCSON STATE: AZ ZIP: 85702 FORMER COMPANY: FORMER CONFORMED NAME: TUCSON GAS & ELECTRIC CO /AZ/ DATE OF NAME CHANGE: 19790528 FILER: COMPANY DATA: COMPANY CONFORMED NAME: UNISOURCE ENERGY CORP CENTRAL INDEX KEY: 0000941138 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC SERVICES [4911] IRS NUMBER: 860786732 STATE OF INCORPORATION: AZ FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-13739 FILM NUMBER: 06900520 BUSINESS ADDRESS: STREET 1: ONE SOUTH CHURCH AVENUE STREET 2: SUITE 100 CITY: TUCSON STATE: AZ ZIP: 85701 BUSINESS PHONE: 520-571-4000 MAIL ADDRESS: STREET 1: ONE SOUTH CHURCH AVENUE, SUITE 100 STREET 2: P.O. BOX 711 CITY: TUCSON STATE: AZ ZIP: 85702 8-K 1 form8k.htm UNISOURCE TEP 8-K UniSource TEP 8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d) OF THE

SECURITIES EXCHANGE ACT OF 1934

DATE OF REPORT

(DATE OF EARLIEST EVENT REPORTED): June 8, 2006

Commission File Number	Registrant; State of Incorporation; Address; and Telephone Number	IRS Employer Identification Number

1-13739	UNISOURCE ENERGY CORPORATION	86-0786732
	(An Arizona Corporation) One South Church Avenue, Suite 100 Tucson, AZ 85701 (520) 571-4000

1-5924	TUCSON ELECTRIC POWER COMPANY	86-0062700
	(An Arizona Corporation) One South Church Avenue, Suite 100 Tucson, AZ 85701 (520) 571-4000

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 1.01 - Entry into a Material Definitive Agreement.

See Item 8.01 below.

Item 8.01 - Other Events.

As previously reported, in 1985, Tucson Electric Power Company (“TEP”) sold and leased back its undivided one-half interest in the common facilities at the Springerville Generating Station (the “Springerville Common Facilities Leases”). The Springerville Common Facilities Leases have an initial term to December 2017 for one lease and January 2021 for the other two leases. Under the terms of the Springerville Common Facilities Leases, TEP was required to arrange for refinancing or refunding of the secured notes underlying the leases prior to June 30, 2006 in order to avoid a special event of loss which would have resulted in the termination of the leases and would have required TEP to purchase the facilities for approximately $125 million.

On June 8, 2006, the $68 million balance of secured notes was refinanced and the leases were amended to remove the requirement that the notes be periodically refinanced to avoid the occurrence of a special event of loss. The notes underlying one of the leases mature in June 2017 and the notes underlying the other two leases mature in January 2020. The terms of the notes were amended to provide that interest will be payable at LIBOR plus 1.5% for the next three years with the spread over LIBOR increasing by 1/8 of 1% every three years thereafter to 2% by June 2018. Interest had been payable at the rate of LIBOR plus 4%. The notes are callable at par at any time should TEP elect to cause the notes to be refinanced.

A portion of the rent payable by TEP pursuant to the Springerville Common Facilities Leases is determined by the amount of interest payable on the floating rate lease debt. On June 8, 2006, TEP entered into an interest rate swap to hedge a portion of the interest rate risk associated with the portion of rent determined by the interest rate on this debt. This swap has the effect of fixing the interest rate portion of rent at 7.27% on $37 million of the lease debt.

Copies of the amendments to the leases and tax indemnity agreements which were entered into in connection with the refinancing are attached as exhibits hereto.

Item 9.01 Financial Statements and Exhibits.

(c) Exhibits

See Exhibit Index.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, each registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

Date: June 12, 2006		UNISOURCE ENERGY CORPORATION —————————————————— (Registrant) / s / Kevin P. Larson
		—————————————————— Senior Vice President and Principal Financial Officer
Date: June 12, 2006		TUCSON ELECTRIC POWER COMPANY —————————————————— (Registrant) / s / Kevin P. Larson
		—————————————————— Senior Vice President and Principal Financial Officer

EXHIBIT INDEX

Exhibit Number		Description of Exhibit
10.1		Amendment No. 4, dated as of June 1, 2006, to Lease Agreement, dated as of December 1, 1985, between TEP and San Carlos Resources Inc. (“San Carlos”), jointly and severally, as Lessee, and Wilmington Trust Company and William J. Wade, as Owner Trustee and Cotrustee, respectively, under a Trust Agreement with Philip Morris Capital Corporation as Owner Participant.
10.2		Amendment No. 4, dated as of June 1, 2006, to Lease Agreement, dated as of December 1, 1985, between TEP and San Carlos, jointly and severally, as Lessee, and Wilmington Trust Company and William J. Wade, as Owner Trustee and Cotrustee, respectively, under a Trust Agreement with Selco Service Corporation as Owner Participant.
10.3		Amendment No. 4, dated as of June 1, 2006, to Lease Agreement, dated as of December 1, 1985, between TEP and San Carlos, jointly and severally, as Lessee, and Wilmington Trust Company and William J. Wade, as Owner Trustee and Cotrustee, respectively, under a Trust Agreement with Emerson Finance LLC as Owner Participant.

10.4		Amendment No. 4, dated as of June 1, 2006 to Tax Indemnity Agreement, dated as of December 1, 1985, between TEP and San Carlos, as Lessee, and Philip Morris Capital Corporation as Owner Participant, beneficiary under a Trust Agreement, dated as of December 1, 1985, with Wilmington Trust Company and William J. Wade, as Owner Trustee and Cotrustee, respectively, together as Lessor.
10.5		Amendment No. 4, dated as of June 1, 2006 to Tax Indemnity Agreement, dated as of December 1, 1985, between TEP and San Carlos, as Lessee, and Selco Service Corporation as Owner Participant, beneficiary under a Trust Agreement, dated as of December 1, 1985, with Wilmington Trust Company and William J. Wade, as Owner Trustee and Cotrustee, respectively, together as Lessor.
10.6		Amendment No. 4, dated as of June 1, 2006 to Tax Indemnity Agreement, dated as of December 1, 1985, between TEP and San Carlos, as Lessee, and Emerson Finance LLC as Owner Participant, beneficiary under a Trust Agreement, dated as of December 1, 1985, with Wilmington Trust Company and William J. Wade, as Owner Trustee and Cotrustee, respectively, together as Lessor.

EX-10.1 2 amend4lease-philipmorris.htm AMENDMENT NO. 4 TO LEASE AGREEMENT (PHILIP MORRIS) Amendment No. 4 to Lease Agreement (Philip Morris)

Exhibit 10.1

AMENDMENT NO. 4

LEASE AGREEMENT

This AMENDMENT NO. 4, dated as of June 1, 2006, to Lease Agreement, dated as of December 1, 1985, between TUCSON ELECTRIC POWER COMPANY, an Arizona corporation (“TEP”), and SAN CARLOS RESOURCES INC., an Arizona corporation (“San Carlos”), jointly and severally as Lessee (such term and all other capitalized terms used herein without definition having the meanings provided in Section 1 hereof), and WILMINGTON TRUST COMPANY, a Delaware corporation, and WILLIAM J. WADE (not in their respective individual capacities but solely as Owner Trustee and Cotrustee, respectively, under the Trust Agreement between such parties and Philip Morris Capital Corporation, as Owner Participant), as Lessor (this “Lease Amendment”),

W I T N E S S E T H

WHEREAS, the Lessee and the Lessor have heretofore entered into a Lease Agreement, dated as of December 1, 1985, as duly recorded in the office of the County Recorder of Apache County, Arizona on January 8, 1986, in Docket 499 at Pages 50-184, as supplemented by a Lease Supplement dated December 31, 1985, as duly recorded in the aforesaid office in Docket 499 at Pages 453-470, as amended by Amendment No. 1 to Lease Agreement, dated as of December 15, 1992, duly recorded in the aforesaid office in Docket 700 at Pages 318-344, as amended by Amendment No. 2 to Lease Agreement, dated as of December 1, 1999, duly recorded in the aforesaid office in Docket 969 at Pages 1-10, and as amended by Amendment No. 3 to Lease Agreement, dated as of June 1, 2003, duly recorded in the aforesaid office on June 25, 2003 as Instrument No. 2003-05402, providing for the lease by the Lessor to the Lessee of the Leased Assets (such Lease Agreement, as so supplemented and amended and as further amended, modified or supplemented from time to time in accordance with the provisions thereof, being hereinafter referred to as the “Lease”),

WHEREAS, the Lessee and the Lessor have agreed pursuant to a Refinancing Agreement, dated as of June 1, 2006 (as amended, modified or supplemented from time to time in accordance with the provisions thereof, the “Refinancing Agreement”), with the Owner Participant, the Loan Participants named therein, the Indenture Trustee and certain other parties to amend certain Operative Documents on the Amendment Date (as defined in the Refinancing Agreement),

WHEREAS, the Lessee and Lessor have agreed to amend the Lease as contemplated herein,

WHEREAS, Section 31(b) of the Lease provides, among other things, that until the Lessee has received notice from the Indenture Trustee that the Lien of the Indenture on the Trust Indenture Estate has been released, no term of the Lease shall be amended without the consent of the Indenture Trustee, and

WHEREAS, pursuant to Section 15.1 of the Indenture, the Indenture Trustee has, at the direction and with the consent of each holder of a Secured Note, consented, by executing and delivering the Refinancing Agreement, to the amendments to the Lease set forth in this Lease Amendment,

NOW THEREFORE, in consideration of the premises and of such other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

Section 1. Definitions.

(a) General Definitions. Except as otherwise expressly provided herein or unless the context otherwise requires, capitalized terms used herein shall have the meanings set forth in Section 1 of the Lease.

(b) Special Event of Loss. Clause (iii) of the definition of “Special Event of Loss” in Section 1 of the Lease is hereby amended in its entirety to read as follows:

(iii) [Deleted]

Section 2. Prepayment Upon a Special Event of Loss. The first proviso to Section 11(a) of the Lease is hereby amended by deleting the phrase “a Special Event of Loss described in (iii) of the definition thereof or” in its entirety.

Section 3. Counterpart Execution. This Lease Amendment may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts shall together constitute but one and the same instrument. The single executed original of this Lease Amendment which provides that it is the “original counterpart” and which contains the receipt therefor executed by the Indenture Trustee on or immediately following the signature page thereof shall evidence the monetary obligations of the Lessee hereunder and thereunder. To the extent, if any, that this Lease Amendment constitutes chattel paper (as such term is defined in the Uniform Commercial Code as in effect in any applicable jurisdiction), no security interest in this Lease Amendment may be created by the transfer or possession of any counterpart thereof other than the original counterpart and containing the receipt therefor executed by the Indenture Trustee on or immediately following the signature page thereof.

Section 4. Ratification of the Lease. This Lease Amendment is an amendment to the Lease. As amended by this Lease Amendment, the Lease is in all respects ratified, approved and confirmed, and the Lease and this Lease Amendment shall together constitute one and the same instrument.

Section 5. Governing Law. This Lease Amendment has been delivered in, and shall in all respects be governed by and construed in accordance with, the laws of the State of Arizona applicable to agreements made and to be performed entirely within such state, including matters of construction, validity and performance.

Section 6. Liabilities of Owner Participant. Sections 23 and 31 of the Lease are hereby incorporated by reference mutatis mutandis in this Lease Amendment.

IN WITNESS WHEREOF, the undersigned Lessee and Lessor have each caused this Lease Amendment to be duly executed and delivered and their corporate seals to be hereunto affixed and attested or witnessed by their respective officers thereunto duly authorized as of the day and year first above written.

	TUCSON ELECTRIC POWER COMPANY, as Lessee
	By:	_____________________________
		Name: Title:
[seal] Attest:
_______________________
Assistant Secretary
	SAN CARLOS RESOURCES INC. as Lessee
	By:	_____________________________
		Name: Title:
[seal] Attest:
_______________________
Assistant Secretary

	WILMINGTON TRUST COMPANY, not in its individual capacity but solely as Owner Trustee under the Trust Agreement, as Lessor
	By:	_____________________________
		Name: Title:
[seal] Attest:
_______________________
Title:
	_____________________________
	WILLIAM J. WADE, not in his individual capacity but solely as Cotrustee under the Trust Agreement, as Lessor
Witness:
_______________________

Receipt of this original counterpart of the foregoing Amendment No. 4 to Lease Agreement is hereby acknowledged on this day of June, 2006.

	THE BANK OF NEW YORK, as Indenture Trustee
	By:	_______________________
		Name: Title:

ACKNOWLEDGEMENTS TO LEASE AMENDMENT

STATE OF ARIZONA )

) ss.:

COUNTY OF PIMA )

The foregoing instrument was acknowledged before me this ____ day of June, 2006, by _________________, _________________ of TUCSON ELECTRIC POWER COMPANY, an Arizona corporation, on behalf of said corporation.

________________________

Notary Public

My Commission Expires:

_____________________

STATE OF ARIZONA )

) ss.:

COUNTY OF PIMA )

The foregoing instrument was acknowledged before me this _____ day of June, 2006, by _________________, _____________________ of SAN CARLOS RESOURCES INC., an Arizona corporation, on behalf of said corporation.

________________________

Notary Public

My Commission Expires:

_____________________

STATE OF DELAWARE )

) ss.:

COUNTY OF NEW CASTLE )

The foregoing instrument was acknowledged before me this _____ day of June, 2006, by __________________, __________________ of WILMINGTON TRUST COMPANY, a Delaware banking corporation, on behalf of said corporation.

________________________

Notary Public

My Commission Expires:

_____________________

STATE OF DELAWARE )

) ss.:

COUNTY OF NEW CASTLE )

The foregoing instrument was acknowledged before me this _____ day of June, 2006, by WILLIAM J. WADE, an individual.

________________________

Notary Public

My Commission Expires:

_____________________

EX-10.2 3 amend4lease-selco.htm AMENDMENT NO. 4 TO LEASE AGREEMENT (SELCO) Amendment No. 4 to Lease Agreement (SELCO)

Exhibit 10.2

AMENDMENT NO. 4

LEASE AGREEMENT

This AMENDMENT NO. 4, dated as of June 1, 2006, to Lease Agreement, dated as of December 1, 1985, between TUCSON ELECTRIC POWER COMPANY, an Arizona corporation (“TEP”), and SAN CARLOS RESOURCES INC., an Arizona corporation (“San Carlos”), jointly and severally as Lessee (such term and all other capitalized terms used herein without definition having the meanings provided in Section 1 hereof), and WILMINGTON TRUST COMPANY, a Delaware corporation, and WILLIAM J. WADE (not in their respective individual capacities but solely as Owner Trustee and Cotrustee, respectively, under the Trust Agreement between such parties and SELCO Service Corporation (as successor to IBM Credit LLC), as Owner Participant), as Lessor (this “Lease Amendment”),

W I T N E S S E T H

WHEREAS, the Lessee and the Lessor have heretofore entered into a Lease Agreement, dated as of December 1, 1985, as duly recorded in the office of the County Recorder of Apache County, Arizona on January 8, 1986, in Docket 499 at Pages 185-318, as supplemented by a Lease Supplement dated December 31, 1985, as duly recorded in the aforesaid office in Docket 499 at Pages 471-488, as amended by Amendment No. 1 to Lease Agreement, dated as of December 15, 1992, duly recorded in the aforesaid office in Docket 700 at Pages 345-371, as amended by Amendment No. 2 to Lease Agreement, dated as of December 1, 1999, duly recorded in the aforesaid office in Docket 968 at Pages 586-593, and as amended by Amendment No. 3 to Lease Agreement, dated as of June 1, 2003, duly recorded in the aforesaid office on June 25, 2003 as Instrument No. 2003-05404, providing for the lease by the Lessor to the Lessee of the Leased Assets (such Lease Agreement, as so supplemented and amended and as further amended, modified or supplemented from time to time in accordance with the provisions thereof, being hereinafter referred to as the “Lease”),

WHEREAS, the Lessee and Lessor have agreed to amend the Lease as contemplated herein,

Section 1. Definitions.

(b) Special Event of Loss. Clause (iii) of the definition of “Special Event of Loss” in Section 1 of the Lease is hereby amended in its entirety to read as follows:

(iii) [Deleted]

Section 6. Liabilities of Owner Participant. Sections 23 and 31 of the Lease are hereby incorporated by reference mutatis mutandis in this Lease Amendment.

	TUCSON ELECTRIC POWER COMPANY, as Lessee
	By:	_____________________________
		Name: Title:
[seal] Attest:
_______________________
Assistant Secretary
	SAN CARLOS RESOURCES INC. as Lessee
	By:	_____________________________
		Name: Title:
[seal] Attest:
_______________________
Assistant Secretary

	WILMINGTON TRUST COMPANY, not in its individual capacity but solely as Owner Trustee under the Trust Agreement, as Lessor
	By:	_____________________________
		Name: Title:
[seal] Attest:
_______________________
Title:
	_____________________________
	WILLIAM J. WADE, not in his individual capacity but solely as Cotrustee under the Trust Agreement, as Lessor
Witness:
_______________________

Receipt of this original counterpart of the foregoing Amendment No. 4 to Lease Agreement is hereby acknowledged on this day of June, 2006.

	THE BANK OF NEW YORK, as Indenture Trustee
	By:	_______________________
		Name: Title:

ACKNOWLEDGEMENTS TO LEASE AMENDMENT

STATE OF ARIZONA )

) ss.:

COUNTY OF PIMA )

________________________

Notary Public

My Commission Expires:

_____________________

STATE OF ARIZONA )

) ss.:

COUNTY OF PIMA )

________________________

Notary Public

My Commission Expires:

_____________________

STATE OF DELAWARE )

) ss.:

COUNTY OF NEW CASTLE )

________________________

Notary Public

My Commission Expires:

_____________________

STATE OF DELAWARE )

) ss.:

COUNTY OF NEW CASTLE )

The foregoing instrument was acknowledged before me this _____ day of June, 2006, by WILLIAM J. WADE, an individual.

________________________

Notary Public

My Commission Expires:

_____________________

EX-10.3 4 amend4lease-emerson.htm AMENDMENT NO. 4 TO LEASE AGREEMENT (EMERSON) Amendment No. 4 to Lease Agreement (Emerson)

Exhibit 10.3

AMENDMENT NO. 4

LEASE AGREEMENT

This AMENDMENT NO. 4, dated as of June 1, 2006, to Lease Agreement, dated as of December 1, 1985, between TUCSON ELECTRIC POWER COMPANY, an Arizona corporation (“TEP”), and SAN CARLOS RESOURCES INC., an Arizona corporation (“San Carlos”), jointly and severally as Lessee (such term and all other capitalized terms used herein without definition having the meanings provided in Section 1 hereof), and WILMINGTON TRUST COMPANY, a Delaware corporation, and WILLIAM J. WADE (not in their respective individual capacities but solely as Owner Trustee and Cotrustee, respectively, under the Trust Agreement between such parties and Emerson Finance LLC (formerly known as Emerson Finance Co.), as Owner Participant), as Lessor (this “Lease Amendment”),

W I T N E S S E T H

WHEREAS, the Lessee and the Lessor have heretofore entered into a Lease Agreement, dated as of December 1, 1985, as duly recorded in the office of the County Recorder of Apache County, Arizona on January 8, 1986, in Docket 499 at Pages 319-452, as supplemented by a Lease Supplement dated December 31, 1985, as duly recorded in the aforesaid office in Docket 499 at Pages 489-506, as amended by Amendment No. 1 to Lease Agreement, dated as of December 15, 1992, duly recorded in the aforesaid office in Docket 700 at Pages 372-398, as amended by Amendment No. 2 to Lease Agreement, dated as of December 1, 1999, duly recorded in the aforesaid office in Docket 968 at Pages 594-601, and as amended by Amendment No. 3 to Lease Agreement, dated as of June 1, 2003, duly recorded in the aforesaid office on June 25, 2003 as Instrument No. 2003-05403, providing for the lease by the Lessor to the Lessee of the Leased Assets (such Lease Agreement, as so supplemented and amended and as further amended, modified or supplemented from time to time in accordance with the provisions thereof, being hereinafter referred to as the “Lease”),

WHEREAS, the Lessee and Lessor have agreed to amend the Lease as contemplated herein,

Section 1. Definitions.

(b) Special Event of Loss. Clause (iii) of the definition of “Special Event of Loss” in Section 1 of the Lease is hereby amended in its entirety to read as follows:

(iii) [Deleted]

Section 6. Liabilities of Owner Participant. Sections 23 and 31 of the Lease are hereby incorporated by reference mutatis mutandis in this Lease Amendment.

	TUCSON ELECTRIC POWER COMPANY, as Lessee
	By:	_____________________________
		Name: Title:
[seal] Attest:
_______________________
Assistant Secretary
	SAN CARLOS RESOURCES INC. as Lessee
	By:	_____________________________
		Name: Title:
[seal] Attest:
_______________________
Assistant Secretary

	WILMINGTON TRUST COMPANY, not in its individual capacity but solely as Owner Trustee under the Trust Agreement, as Lessor
	By:	_____________________________
		Name: Title:
[seal] Attest:
_______________________
Title:
	_____________________________
	WILLIAM J. WADE, not in his individual capacity but solely as Cotrustee under the Trust Agreement, as Lessor
Witness:
_______________________

Receipt of this original counterpart of the foregoing Amendment No. 4 to Lease Agreement is hereby acknowledged on this day of June, 2006.

	THE BANK OF NEW YORK, as Indenture Trustee
	By:	_______________________
		Name: Title:

ACKNOWLEDGEMENTS TO LEASE AMENDMENT

STATE OF ARIZONA )

) ss.:

COUNTY OF PIMA )

________________________

Notary Public

My Commission Expires:

_____________________

STATE OF ARIZONA )

) ss.:

COUNTY OF PIMA )

________________________

Notary Public

My Commission Expires:

_____________________

STATE OF DELAWARE )

) ss.:

COUNTY OF NEW CASTLE )

________________________

Notary Public

My Commission Expires:

_____________________

STATE OF DELAWARE )

) ss.:

COUNTY OF NEW CASTLE )

The foregoing instrument was acknowledged before me this _____ day of June, 2006, by WILLIAM J. WADE, an individual.

________________________

Notary Public

My Commission Expires:

_____________________

EX-10.4 5 amend4tax-philipmorris.htm AMENDMENT NO. 4 TO TAX INDEMNITY AGREEMENT (PHILIP MORRIS) Amendment No. 4 to Tax Indemnity Agreement (Philip Morris)

Exhibit 10.4

AMENDMENT NO. 4

dated as of June 1, 2006

TAX INDEMNITY AGREEMENT

dated as of December 1, 1985

between

PHILIP MORRIS CAPITAL CORPORATION

beneficiary under a Trust Agreement

dated as of December 1, 1985

with Wilmington Trust Company

and

William J. Wade,

as Owner Trustee and Cotrustee, respectively,

Lessor

and

TUCSON ELECTRIC POWER COMPANY,

and

SAN CARLOS RESOURCES INC.,

Lessee

_______________________________________

Common Plant

Springerville Generating Station

AMENDMENT NO. 4

TAX INDEMNITY AGREEMENT

This AMENDMENT NO. 4 (this “Amendment”), dated as of June 1, 2006 to TAX INDEMNITY AGREEMENT, dated as of December 1, 1985, between TUCSON ELECTRIC POWER COMPANY, an Arizona corporation, and SAN CARLOS RESOURCES INC., an Arizona corporation, as Lessee (the “Lessee”), and PHILIP MORRIS CAPITAL CORPORATION, a Delaware corporation (the “Owner Participant”), beneficiary under a Trust Agreement, dated as of December 1, 1985, with Wilmington Trust Company and William J. Wade, as Owner Trustee and Cotrustee, respectively (the “Lessor”).

W I T N E S S E T H

WHEREAS, the Owner Participant (or its predecessor in interest) and the Lessee entered into a Tax Indemnity Agreement, dated as of December 1, 1985, as amended by Amendment No. 1, dated as of December 15, 1992, to Tax Indemnity Agreement dated as of December 1, 1985, by Amendment No. 2, dated as of December 1, 1999, to Tax Indemnity Agreement dated as of December 1, 1985 and by Amendment No. 3, dated as of June 1, 2003 (such Tax Indemnity Agreement, as so amended and as further amended, modified or supplemented from time to time, being referred to herein as the “Tax Indemnity Agreement”);

WHEREAS, the Lessee, the Lessor, the Owner Participant and certain other parties have agreed pursuant to an Refinancing Agreement, dated as June 1, 2006 (as amended, modified or supplemented from time to time, the “Refinancing Agreement”) to amend the Lease and the Indenture to permit a refinancing of the outstanding Secured Notes on the Amendment Date (as defined in the Refinancing Agreement);

WHEREAS, the Owner Participant and the Lessee wish to amend the Tax Indemnity Agreement as contemplated herein in order to reflect agreements and amendments contemplated by the Refinancing Agreement;

NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

Section 1. Definitions. General. Capitalized terms used herein and not otherwise defined herein shall have the respective meanings specified in the Tax Indemnity Agreement and the Indenture, as amended and supplemented from time to time, including, without limitation, by Supplemental Indenture No. 3, dated as of June 1, 2003, and the Supplemental Indenture No. 4, dated as of the date hereof.

Section 2. Additional Definition. As used herein, Refinancing Agreement shall mean the Refinancing Agreement dated as of June 1, 2006, among Lessee, Owner Participant, Lessor and certain parties (as such Refinancing Agreement may be amended, modified or supplemented from time to time).

Section 3. Indemnified Losses. (a) Section 3.1(c) is hereby amended to read in its entirety as set forth below:

“(c) if, as a result of the Lessee paying any Transaction Expenses (as defined in the Refinancing Agreement), Transaction Expenses (as defined in the Refunding Agreement) or Transaction Expenses (as defined in the 1999 Refunding Agreement) the Owner Participant shall be required to include any amount in its gross income; or”.

(c) Section 3.1 is hereby amended by adding at the end of subsection (e) (i.e. prior to the phrase “(any of the events”) the following:

“; or (f) if, as a result of the Lessee paying any Supplemental Rent under Section 3(c) of the Lease with respect to payments contemplated by Section 2 of the Supplemental Indenture No. 4, dated as of June 1, 2006, to the Indenture the Owner Participant shall be required to include any amount in its gross income”.

(d) Section 3.1 is hereby amended by replacing the phrase “(any of the events described in these subsections (a)(2), (b), (c), (d) or (e) being referred to hereinafter as a “Loss”)” with the following:

“(any of the events described in these subsections (a)(2), (b), (c), (d), (e) or (f) being referred to hereinafter as a “Loss”)”.

Section 4. Counterpart Execution. This Amendment may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts shall together constitute but one and the same instrument.

Section 5. Ratification of the Tax Indemnity Agreement. As amended by this Amendment, the Tax Indemnity Agreement is in all respects ratified, approved and confirmed, and the Tax Indemnity Agreement and this Amendment shall together constitute one and the same instrument.

Section 6. Governing Law. This Amendment has been delivered in, and shall in all respects be governed by, construed in accordance with, the laws of the State of New York applicable to agreements made and to be performed entirely within such State, including such laws applicable to matters of construction, validity and performance.

Section 7. Representation of Lessee. Lessee represents that the rate of interest payable in respect of the Series 4 Notes as determined pursuant to Supplemental Indenture No. 4, dated as of June 1, 2006, to the Indenture, including the use of Applicable Base Rate Margin and Applicable Libor Margin that increase over time (i) represents an arm’s length rate, (ii) is consistent with market practice for long-term floating rate financings, and (iii) was determined without reference to federal income tax considerations to any person.

IN WITNESS WHEREOF, the Owner Participant and the Lessee have caused this Amendment to be duly executed by their respective officers hereunto duly authorized as of the date set forth above.


	TUCSON ELECTRIC POWER COMPANY

	By
		Name
		Title:


	SAN CARLOS RESOURCES INC.

	By
		Name
		Title:


	PHILIP MORRIS CAPITAL CORPORATION

	By
		Name:
		Title:

EX-10.5 6 amend4tax-selco.htm AMENDMENT NO. 4 TO TAX INDEMNITY AGREEMENT (SELCO) Amendment No. 4 to Tax Indemnity Agreement (SELCO)

Exhibit 10.5

AMENDMENT NO. 4

dated as of June 1, 2006

TAX INDEMNITY AGREEMENT

dated as of December 1, 1985

between

SELCO SERVICE CORPORATION

(as successor to

IBM Credit LLC)

beneficiary under a Trust Agreement

dated as of December 1, 1985

with Wilmington Trust Company

and

William J. Wade,

as Owner Trustee and Cotrustee, respectively,

Lessor

and

TUCSON ELECTRIC POWER COMPANY,

and

SAN CARLOS RESOURCES INC.,

Lessee

_______________________________________

Common Plant

Springerville Generating Station

AMENDMENT NO. 4

TAX INDEMNITY AGREEMENT

This AMENDMENT NO. 4 (this “Amendment”), dated as of June 1, 2006 to TAX INDEMNITY AGREEMENT, dated as of December 1, 1985, between TUCSON ELECTRIC POWER COMPANY, an Arizona corporation, and SAN CARLOS RESOURCES INC., an Arizona corporation, as Lessee (the “Lessee”), and SELCO SERVICE CORPORATION (as successor to IBM Credit LLC), an Ohio corporation (the “Owner Participant”), beneficiary under a Trust Agreement, dated as of December 1, 1985, with Wilmington Trust Company and William J. Wade, as Owner Trustee and Cotrustee, respectively (the “Lessor”).

W I T N E S S E T H

NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

Section 3. Indemnified Losses. (a) Section 3.1(c) is hereby amended to read in its entirety as set forth below:

(c) Section 3.1 is hereby amended by adding at the end of subsection (e) (i.e. prior to the phrase “(any of the events”) the following:

“(any of the events described in these subsections (a)(2), (b), (c), (d), (e) or (f) being referred to hereinafter as a “Loss”)”.

IN WITNESS WHEREOF, the Owner Participant and the Lessee have caused this Amendment to be duly executed by their respective officers hereunto duly authorized as of the date set forth above.


	TUCSON ELECTRIC POWER COMPANY

	By
		Name:
		Title:


	SAN CARLOS RESOURCES INC.

	By
		Name:
		Title:


	SELCO SERVICE CORPORATION

	By
		Name:
		Title:

EX-10.6 7 amend4tax-emerson.htm AMENDMENT NO. 4 TO TAX INDEMNITY AGREEMENT (EMERSON) Amendment No. 4 to Tax Indemnity Agreement (Emerson)

Exhibit 10.6

AMENDMENT NO. 4

dated as of June 1, 2006

TAX INDEMNITY AGREEMENT

dated as of December 1, 1985

between

EMERSON FINANCE LLC

(formerly known as

Emerson Finance Co.)

beneficiary under a Trust Agreement

dated as of December 1, 1985

with Wilmington Trust Company

and

William J. Wade,

as Owner Trustee and Cotrustee, respectively,

Lessor

and

TUCSON ELECTRIC POWER COMPANY,

and

SAN CARLOS RESOURCES INC.,

Lessee

_______________________________________

Common Plant

Springerville Generating Station

AMENDMENT NO. 4

TAX INDEMNITY AGREEMENT

This AMENDMENT NO. 4 (this “Amendment”), dated as of June 1, 2006 to TAX INDEMNITY AGREEMENT, dated as of December 1, 1985, between TUCSON ELECTRIC POWER COMPANY, an Arizona corporation, and SAN CARLOS RESOURCES INC., an Arizona corporation, as Lessee (the “Lessee”), and EMERSON FINANCE LLC (formerly known as Emerson Finance Co.), a Delaware limited liability company (the “Owner Participant”), beneficiary under a Trust Agreement, dated as of December 1, 1985, with Wilmington Trust Company and William J. Wade, as Owner Trustee and Cotrustee, respectively (the “Lessor”).

W I T N E S S E T H

NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

Section 3. Indemnified Losses. (a) Section 3.1(c) is hereby amended to read in its entirety as set forth below:

(c) Section 3.1 is hereby amended by adding at the end of subsection (e) (i.e. prior to the phrase “(any of the events”) the following:

“(any of the events described in these subsections (a)(2), (b), (c), (d), (e) or (f) being referred to hereinafter as a “Loss”)”.

Section 8. Affiliated Group. Section 9 is hereby amended to read in its entirety as set forth below:

“Section 9. Affiliated Group. For purposes of this Tax Indemnity Agreement, the term “Owner Participant” shall include the Owner Participant and any beneficial owner of the Owner Participant and the group or any member of an affiliated group of corporations of which the Owner Participant or any beneficial owner of the Owner Participant is, or may become, a member if consolidated or combined returns are filed for such affiliated group for federal income tax purposes.”

IN WITNESS WHEREOF, the Owner Participant and the Lessee have caused this Amendment to be duly executed by their respective officers hereunto duly authorized as of the date set forth above.


	TUCSON ELECTRIC POWER COMPANY

	By
		Name:
		Title:


	SAN CARLOS RESOURCES INC.

	By
		Name:
		Title:


	EMERSON FINANCE LLC

	By
		Name:
		Title: