SUPPLEMENTAL INDENTURE
EXHIBIT 4.02
THIS INSTRUMENT GRANTS A SECURITY INTEREST BY A UTILITY.
THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS.
EIGHTH
SUPPLEMENTAL INDENTURE
_________________________
EL PASO ELECTRIC COMPANY
To
U.S. BANK NATIONAL ASSOCIATION
Trustee
Dated as of July 7, 2015
_________________________
Supplemental to General Mortgage Indenture
and Deed of Trust
Dated as of February 1, 1996
THIS IS A SECURITY AGREEMENT GRANTING A SECURITY INTEREST IN PERSONAL PROPERTY INCLUDING PERSONAL PROPERTY AFFIXED TO REALTY AS WELL AS A MORTGAGE UPON REAL ESTATE AND OTHER PROPERTY.
EIGHTH SUPPLEMENTAL INDENTURE
THIS EIGHTH SUPPLEMENTAL INDENTURE, dated as of July 7, 2015 (the “Supplemental Indenture”), between EL PASO ELECTRIC COMPANY, a Texas corporation (the “Company”), whose principal office is located at Xxxxxxx Tower, 000 Xxxxx Xxxxxxx, Xx Xxxx, Xxxxx, 00000, and U.S. BANK NATIONAL ASSOCIATION, a national banking association organized under the laws of the United States, as successor Trustee to State Street Bank and Trust Company (the “Trustee”), whose corporate trust office is located at Xxx Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx, 00000.
WITNESSETH
WHEREAS, the Company and the Trustee have entered into that (i) General Mortgage Indenture and Deed of Trust, dated as of February 1, 1996 (the “Original Indenture”), relating to the issuance of Bonds as may be created and established from time to time in one or more series; (ii) First Supplemental Indenture dated as of February 1, 1996 (the “First Supplemental Indenture”); (iii) Second Supplemental Indenture dated as of August 19, 1997 (the “Second Supplemental Indenture”); (iv) Third Supplemental Indenture dated as of January 29, 1999 (the “Third Supplemental Indenture”); (v) Fourth Supplemental Indenture dated as of January 25, 2002 (the “Fourth Supplemental Indenture”); (vi) Fifth Supplemental Indenture dated as of December 17, 2004 (the “Fifth Supplemental Indenture”); (vii) Sixth Supplemental Indenture dated as of May 5, 2005 (the “Sixth Supplemental Indenture”); (viii) Seventh Supplemental Indenture dated as of April 11, 2006 (the “Seventh Supplemental Indenture” and, together with the Original Indenture, the First Supplemental Indenture, the Second Supplemental Indenture, the Third Supplemental Indenture, the Fourth Supplemental Indenture, the Fifth Supplemental Indenture and the Sixth Supplemental Indenture, the “Indenture”).
WHEREAS, the Company has, from time to time, issued Bonds pursuant to the terms of the Indenture and mortgaged and pledged the Mortgaged Property to secure payment of such Bonds;
WHEREAS, the Company has, as of the date hereof, retired all of the Bonds which were previously issued pursuant to the terms of the Indenture;
WHEREAS, any Bonds issued in the future will be limited in principal amount to 75% of the amount of Unfunded Bondable Property existing at the time of such issuance;
WHEREAS, the Company desires to have the ability to release Mortgaged Property free of the lien of this Indenture, at any time when no Bonds are Outstanding;
WHEREAS, because no Bonds are currently Outstanding, this Supplemental Indenture will not adversely affect or diminish the legal rights under the Indenture of any Holder of Outstanding Bonds or materially impair the security of the Indenture, and therefore, the Company and the Trustee may enter into this Supplemental Indenture without the consent of any Bondholder pursuant to Section 14.01 of the Original Indenture; and
WHEREAS, all acts and things have been done and performed which are necessary to make this Supplemental Indenture, when duly executed and delivered, a valid, binding and legal
instrument in accordance with its terms and for the purposes herein expressed; and the execution and delivery of this Supplemental Indenture have been in all respects duly authorized.
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, it is agreed by and between the Company and the Trustee as follows:
ARTICLE 1
DEFINITIONS
Section 1.01. Terms Incorporated By Reference. Except for the terms defined in this Supplemental Indenture, all capitalized terms used in this Supplemental Indenture have the respective meanings set forth in the Indenture.
ARTICLE 2
AMENDMENT OF ORIGINAL INDENTURE
Section 2.01. Addition of Section 9.13. The following provision is hereby added to the Original Indenture as Section 9.13:
SECTION 9.13 Release of Mortgaged Property Subject to the Lien of this Indenture When No Bonds are Outstanding.
If at any time no Bonds are Outstanding, subject to Section 9.12, upon receipt of a written application of the Company signed by an Authorized Executive Officer requesting release of Mortgaged Property, the Trustee shall execute and deliver to the Company the documents and instruments described in Section 9.13(i) releasing such Mortgaged Property from the Lien of this Indenture, upon receipt by the Trustee of:
(i) appropriate documents and instruments evidencing the lien and describing in reasonable detail the Mortgaged Property to be released, together with appropriate documents and instruments suitable for filing in the appropriate real property records of the county in which the Mortgaged Property is located releasing without recourse the interest of the Trustee in the Mortgaged Property to be released;
(ii) an Officers’ Certificate, dated the date of such application, pursuant to Section 20.01(b), stating that no Bonds are Outstanding and that to the knowledge of such officers all conditions precedent to the release of the Mortgaged Property have been complied with and no Default or Event of Default has occurred and is continuing; and
(iii) an Opinion of Counsel, dated the date of such application, pursuant to Section 20.01(b), as to whether in the opinion of such person the terms and conditions permitting such release have been complied with.
ARTICLE 3
THE TRUSTEE
Section 3.01. Trustee’s Disclaimer. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or the due execution hereof by the Company, or for or in respect of the recitals and statements contained herein, all of which recitals and statements are made solely by the Company.
Except as herein otherwise provided, no duties, responsibilities or liabilities are assumed, or shall be construed to be assumed, by the Trustee by reason of this Supplemental Indenture other than as set forth in the Indenture, and this Supplemental Indenture is executed and accepted on behalf of the Trustee, subject to all the terms and conditions set forth in the Indenture, as fully to all intents as if the same were set forth at length herein.
ARTICLE 4
MISCELLANEOUS
Section 4.01. Reference to Original Indenture. Except insofar as otherwise expressly provided herein, all the provisions, definitions, terms and conditions of the Original Indenture, as it has been and may from time to time be amended, shall be deemed to be incorporated in and made a part of this Supplemental Indenture; and the Original Indenture as heretofore supplemented and as supplemented by this Supplemental Indenture is in all respects ratified and confirmed; and the Original Indenture, as amended, and this Supplemental Indenture shall be read, taken and construed as one and the same instrument.
Section 4.02. Governing Law. In view of the fact that Bondholders may reside in various states and the desire to establish with certainty that this Supplemental Indenture will be governed by and construed and interpreted in accordance with the law of a state having a well developed body of commercial and financial law relevant to transactions of the type contemplated herein, this Supplemental Indenture shall be construed in accordance with and governed by the laws of the State of New York (without regard to the conflict of laws provisions thereof) applicable to agreements made and to be performed therein, except to the extent that the TIA shall be applicable and except to the extent the law of any jurisdiction wherein any portion of the Mortgaged Property is located shall mandatorily govern the perfection, priority or enforcement of the Lien of the Indenture with respect to such portion of the Mortgaged Property.
Section 4.03. Successors. All covenants, stipulations and agreements of the Company in this Supplemental Indenture shall bind its successors and assigns. All agreements of the Trustee in this Supplemental Indenture shall bind its successor.
Section 4.04. Counterparts. This Supplemental Indenture may be executed in any number of counterparts, and each of such counterparts when so executed shall be deemed to be an original, but all such counterparts shall together constitute by one and the same instrument.
IN WITNESS WHEREOF, EL PASO ELECTRIC COMPANY has caused this Supplemental Indenture to be executed by its Chairman of the Board, Chief Executive Officer, President or one of its Vice Presidents, and duly attested by its Secretary or one of its Assistant Secretaries, and U.S. BANK NATIONAL ASSOCIATION has caused the same to be executed by one of its Vice Presidents and duly attested by one of its Vice Presidents, as of the day and year first above written.
EL PASO ELECTRIC COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and Chief Financial Officer
Attest: [Seal]
/s/ Xxxxxxx Xxxxxxx
Secretary
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: Vice President
Attest:
/s/ Xxxx Xxxxxxx
Title: Vice President
ACKNOWLEDGEMENT
STATE OF TEXAS )
) SS.
COUNTY OF EL PASO )
On the 7 day of July, 2015, before me personally came Xxxxxx Xxxxxxx, to me known, who, being by me duly sworn, did depose and say that s/he resides in El Paso County, Texas; that s/he is the SVP- CFO of El Paso Electric Company, a Texas corporation, the corporation described in and which executed the foregoing instrument; and that s/he signed his/her name thereto by authority of the board of directors of said corporation.
/s/ Xxxxxxx X. Pugh___________________________
Notary Public
[Notary Seal]
ACKNOWLEDGEMENT
COMMONWEALTH OF MASSACHUSETTS )
) SS.
COUNTY OF SUFFOLK )
On the 7th day of July, 2015, before me personally came Xxxxx Xxxxxxxx, to me known, who, being by me duly sworn, did depose and say that s/he resides in Milton, Massachusetts; that s/he is the Vice President of U.S. Bank National Association, a national banking association organized under the laws of the United States of America, the corporation described in and which executed the foregoing instrument; and that she signed her name thereto by her authority.
/s/ Xxxxx X. Gilbert________________________
Notary Public
[Notary Seal]
