EXHIBIT 4.01
AMENDMENT NO.1
AMENDMENT NO. 1, dated as of February 1, 1999 (the "Amendment No. 1"), to
the Letter of Credit and Reimbursement Agreements dated as of August 27, 1997
(collectively, the "Agreement"), among El Paso Electric Company, a Texas
corporation (the "Company"), Barclays Bank PLC, New York Branch ("Barclays"), as
issuing bank (the "Issuing Bank"), the Creditors (as defined in the Agreement),
Barclays, as administrative agent for the Issuing Bank and the Creditors (the
"Administrative Agent") and Union Bank of California, N.A. as documentation
agent (the "Documentation Agent"). Capitalized terms used herein and not
otherwise defined shall have the meanings assigned to them in the Agreement.
WHEREAS, on February 12, 1996 the Company issued and sold $100,000,000 of
11.40% Series A Preferred Stock (the "Preferred Stock"), which, in the Company's
opinion, is an expensive security that is no longer appropriate in the capital
structure and is a security whose redemption is in the best interests of the
Company;
WHEREAS, the Company has taken steps and expects to redeem the Preferred
Stock no later than May 1, 1999;
WHEREAS, the Agreement prohibits the Company from having a debt to
capitalization ratio (the "Ratio Test") in excess of specified levels, and the
redemption of the Preferred Stock may make it difficult for the Company to meet
the Ratio Test; and
WHEREAS, the Company wishes and Requisite Creditors agree to amend the
Ratio Test to facilitate the redemption of the Preferred Stock;
NOW AND THEREFORE, in consideration of the mutual agreements contained
herein and other good and valuable consideration, the sufficiency and receipt of
which are hereby acknowledged, the parties hereto agree as follows:
Section 1. Amendment to Section 5.03(p) of the Agreement. The last line
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of Section 5.03(p) of the Agreement shall be deleted and replaced with the
following language:
"and 0.70:1.0 for each fiscal quarter thereafter."
Section 2. Amendments to Section 1.01 of the Agreement.
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(a) The following definition of "Excess Cash" shall be added to
precede the definition of "Exchange Act":
"Excess Cash" means, as of any date of determination, the sum
of (a) cash and (b) the fair market value of all Permitted
Investments as shown on the Company's consolidated balance
sheet on such date minus $25,000,000; provided, however; that
in no event shall "Excess Cash" be deemed to be less than zero.
(b) The definition of "Total Debt" shall be replaced in its
entirety with the following language:
"Total Debt" means, as of any date of determination, all
Indebtedness (excluding letters of credit and Hedging
Obligations of the Company at such date), minus Excess Cash.
Section 3. Conditions to Effectiveness. This Amendment No. 1 shall be
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effective as of the date first written above upon its execution by the Company
and the Requisite Creditors.
Section 4. Representations and Warranties of the Company. The Company
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represents and warrants as follows:
(a) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Texas.
(b) The execution, delivery and performance by the Company of this
Amendment No. 1 are within its corporate powers, have been duly
authorized by all necessary corporate action, and do not
contravene the Company's articles of incorporation or by-laws.
(c) No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory
body is required for the due execution, delivery and
performance by the Company of this Amendment No. 1.
(d) This Amendment No. 1 has been duly executed and delivered by
the Company. This Amendment No. 1 is the legal, valid and
binding obligation of the Company, enforceable against the
Company, in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the enforceability of creditors' rights
generally and by general principles of equity.
(e) The representations and warranties contained in Section 4.01 of
the Agreement (other than those contained in subsections (m),
(n), (p) and (q)) are correct in all material respects on and
as of the date hereof, as though made on and as of the date
hereof.
(f) No event has occurred and is continuing which constitutes a
Default.
Section 5. Effect of Amendment. Except as expressly set forth herein,
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this Amendment No. 1 shall not by implication or otherwise alter, modify, amend
or in any way affect any of the terms, conditions, obligations, covenants or
agreements contained in the Agreement, all of which are ratified and affirmed in
all respects and shall continue in full force and effect. This Amendment No. 1
shall apply and be effective only with respect to the provisions of the
Agreement specifically referred to herein.
Section 6. Counterparts. This Amendment No. 1 may be executed in any
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number of counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall constitute but one
and the same contract. Delivery of an executed counterpart of a signature page
of this Amendment No. 1 by facsimile transmission shall be as effective as
delivery of a manually executed counterpart hereof.
Section 7. Applicable Law. THIS AMENDMENT NO. 1 SHALL BE GOVERNED BY, AND
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CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 8. Headings. The headings of this Amendment No. 1 are for
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purposes of reference only and shall not limit or otherwise affect the meaning
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to
be duly executed by their duly authorized officers, all as of the date first
above written.
EL PASO ELECTRIC COMPANY
By: /s/ XXXX X. XXXXXXX
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Vice President, Treasurer
And Chief Financial Officer
Issuing Bank and Administrative
Agent
BARCLAYS BANK PLC, NEW
YORK BRANCH
By: /s/ XXXXXX X. XXXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxxx
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Title: Director
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By:____________________________________
Name:_______________________________
Title:______________________________
Documentation Agent
UNION BANK OF CALIFORNIA,
N.A.
By: /s/ XXXXX X. XXXXXXXX
----------------------------------------
Name: Xxxxx X. XxXxxxxx
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Title: Vice President
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CREDITORS
BARCLAYS BANK PLC, NEW
YORK BRANCH
By: /s/ XXXXXX X. XXXXXX
----------------------------------------
Name: Xxxxxx X. Xxxxxx
----------------------------------
Title: Director
---------------------------------
CREDITORS
UNION BANK OF
CALIFORNIA, N.A.
By: /s/ XXXXX X. XxXXXXXX
--------------------------------------
Name: Xxxxx X. XxXxxxxx
-----------------------------------
Title: Vice President
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CREDITORS
THE MITSUBISHI TRUST AND
BANKING CORPORATION, LOS
ANGELES AGENCY
By: /s/ YASUSHI SATOMI
----------------------------------------
Name: Yasushi Satomi
-----------------------------------
Title: Senior Vice President
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CREDITORS
CREDIT LYONNAIS NEW YORK
BRANCH
By: /s/ XXXXXX XXXXXXXXX
----------------------------------------
Name: Xxxxxx Xxxxxxxxx
-----------------------------------
Title: Senior Vice President
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CREDITORS
THE INDUSTRIAL BANK OF
JAPAN TRUST COMPANY
By: /s/ XXXX XXXXX
----------------------------------------
Name: Xxxx Xxxxx
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Title: Senior Vice President
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THE INDUSTRIAL BANK OF JAPAN, LIMITED, HOUSTON OFFICE
(Authorized Representative)
CREDITORS
ABN AMRO BANK
By: /s/ XXXXX X. XxXXXXXX
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Name: Xxxxx X. XxXxxxxx
------------------------------------
Title: Vice Presient
-----------------------------------
By: /s/ XXXX X. XXXXXXXXX
-----------------------------------------
Name: Xxxx X. Xxxxxxxxx
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Title: Vice President & Director
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CREDITORS
THE CHASE MANHATTAN
BANK
By: /s/
-------------------------------------
Name:________________________________
Title:_______________________________
CREDITORS
BANKBOSTON, N.A.
By: /s/ XXXXXXX X. XXXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
---------------------------------
Title: Managing Director
--------------------------------
CREDITORS
BANK OF SCOTLAND
By: /s/ XXXXX XXXX TAT
---------------------------------------
Name: Xxxxx Xxxx Tat
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Title: Senior Vice President
---------------------------------
CREDITORS
THE MITSUI TRUST AND
BANKING COMPANY, LIMITED
By: /s/
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Name:__________________________________
Title:_________________________________
CREDITORS
BANQUE PARIBAS
By:___________________________________
Name:______________________________
Title:_____________________________
CREDITORS
BAYERISCHE HYPO-UND VEREINSBANK
AG NEW YORK BRANCH
By: /s/ XXXXXX XXXXX
----------------------------------------
Name: Xxxxxx Xxxxx
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Title: Director
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By: /s/ XXXXX XXXXXXXX
----------------------------------------
Name: Xxxxx Xxxxxxxx
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Title: Associate Director
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