Exhibit 4.03
EXHIBIT B
THIS BOND IS NOT TRANSFERABLE EXCEPT TO A SUCCESSOR AGENT UNDER THE LETTER OF
CREDIT AND REIMBURSEMENT AGREEMENT, DATED AS OF _________, 1997 AMONG THE
COMPANY, BARCLAYS BANK, PLC, NEW YORK BRANCH, AS ISSUING BANK, THE CREDITORS
SPECIFIED THEREIN, BARCLAYS BANK PLC, NEW YORK BRANCH, AS ADMINISTRATIVE AGENT
FOR THE ISSUING BANK AND THE CREDITORS (THE "AGENT"), AND UNION BANK OF
CALIFORNIA, N.A., AS DOCUMENTATION AGENT (SUCH REIMBURSEMENT AGREEMENT, AS
AMENDED FROM TIME TO TIME, THE "REIMBURSEMENT AGREEMENT").
EL PASO ELECTRIC COMPANY
No. RJ - ___________ $34,134,780
COLLATERAL SERIES J FIRST MORTGAGE BONDS
El Paso Electric Company, a Texas corporation (herein, together with
its successors and assigns, the "Company"), for value received promises to pay
to Barclays Bank PLC, New York Branch, as Agent, or registered assigns, the
principal sum of Thirty Four Million One Hundred Thirty Four Thousand Seven
Hundred Eighty Dollars or, at any time (if less), such lesser principal amount
as is equal to the sum of (a) the Available Amount under the Letter of Credit,
plus (b) the aggregate principal amount of all Tender Advances outstanding at
such time, plus (c) the aggregate amount of all other unreimbursed drawings of
the Letter of Credit which are outstanding at such time, on such date or dates
and in such amounts as set forth in the Reimbursement Agreement for the payment
of principal on Tender Advances and the reimbursement of drawings under the
Letter of Credit, but not later than the Stated Termination Date or
[____________], 2000, whichever shall occur first, at the same place or places
as set forth in the Reimbursement Agreement, in any coin or currency of the
United States of America which at the time of such payment shall be legal tender
for the payment of public and private debts and in the same manner set forth in
the Reimbursement Agreement. Interest will accrue and be payable on this Series
J Bond at the rates per annum, in the amounts, and on each date set forth in the
Reimbursement Agreement for the accrual and payment of interest, commissions,
fees, charges, expenses and other amounts in like coin or currency to the
registered owner hereof at said place or places and in the same manner set forth
in the Reimbursement Agreement. Such interest shall accrue and be payable until
maturity of this Series J Bond, or if the Agent shall demand redemption of this
Series J Bond, until the redemption date, or, if the Company shall default in
the payment of principal due on this Series J Bond, whether at maturity or upon
redemption, until the Company's obligation with respect to the payment of such
principal shall be discharged as provided in the Indenture (as hereinafter
defined). For purposes hereof, (i) interest shall include, without limitation,
interest provided for under Article II of the Reimbursement Agreement and (ii)
commissions and fees shall include, without limitation, the letter of credit
fees and fronting fees provided for under Section 2.04 of the Reimbursement
Agreement and the drawing fee, agency fee and transfer fee payable under Section
2.03 of the Reimbursement Agreement.
The Bonds of this series have been issued to the Agent for the issuer
of a Letter of Credit for the account of the Company and for certain creditors
pursuant to the Reimbursement Agreement, to secure the payment of principal,
reimbursement obligations, interest, fees, commissions, charges, expenses and
other amounts due thereunder. As used herein, the terms "Available Amount,"
"Tender Advances", "Letter of Credit" and "Stated Termination Date" shall have
the respective meanings set forth in the Reimbursement Agreement.
Except as hereinafter provided, this Series J Bond shall bear interest
(a) from the interest payment date next preceding the date of this Series J Bond
to which interest has been paid, or (b) if the date of this Series J Bond is an
interest payment date to which interest has been paid, then from such date, or
(c) if no interest has been paid on this Series J Bond, then from the date of
initial issue.
This Series J Bond is one of the bonds of the Company known as its
First Mortgage Bonds (the "Bonds"), issued and to be issued in one or more
series under and secured by a General Mortgage Indenture and Deed of Trust,
dated as of February 1, 1996, duly executed by the Company to State Street Bank
and Trust Company, a banking corporation organized under the laws of The
Commonwealth of Massachusetts, Trustee ("Trustee"), and indentures supplemental
thereto, heretofore or hereafter executed, to which General Mortgage Indenture
and Deed of Trust and all indentures supplemental thereto (collectively referred
to as the "Indenture") reference is hereby made for a description of the
property mortgaged and pledged, the nature and extent of the security, the terms
and conditions upon which the Bonds are, and are to be, issued and secured, and
the rights of the owners of the Bonds and the Trustee in respect of such
security. As provided in the Indenture, the Bonds may be in various principal
sums, are issuable in series, may mature at different times, may bear interest
at different rates and may otherwise vary as therein provided; and this Bond is
the only Bond of a series entitled "Collateral Series J First Mortgage Bonds",
created by a Second Supplemental Indenture dated as of August 19, 1997, as
provided for in the Indenture. The terms of this Series J Bond include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939, as amended (15 U.S. Code Sections 77aaa-77bbbb)
(the "Act"), as in effect on the date of the Indenture.
The Indenture authorizes the issuance of up to $34,134,780 aggregate
principal amount of Series J Bonds, but the aggregate principal amount of all
Series J Bonds outstanding at any time shall not exceed the lesser of such
amount and the amount that is equal to the sum of (a) the Available Amount of
the Letter of Credit, plus (b) the aggregate principal amount of all Tender
Advances outstanding at such time, plus (c) the aggregate amount of all other
unreimbursed drawings under such Letter of Credit which are outstanding at such
time.
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This Series J Bond has been issued by the Company to the Agent (i) to
provide for the payment of the Company's obligations to make payments in respect
of principal, reimbursement obligations, interest, fees, commissions, charges,
expenses, and other amounts to any person under the Reimbursement Agreement and
(ii) to provide to such persons the benefits of the security provided for by
this Series J Bond.
Any payment of principal, reimbursement obligations, interest, fees,
commissions, charges, expenses or other amounts made by or on behalf of the
Company in respect of its obligations to pay such principal, reimbursement
obligations, interest, fees, commissions, charges, expenses and other amounts
under and in accordance with the Reimbursement Agreement shall be deemed a
payment in respect of this Series J Bond, but such payment shall not reduce the
principal amount of this Series J Bond unless the sum of (a) the Available
Amount of the Letter of Credit outstanding at such time, plus (b) the aggregate
principal amount of all Tender Advances then outstanding under the Reimbursement
Agreement, plus (c) the aggregate amount of all other unreimbursed drawings
under the Letter of Credit which are then outstanding, is reduced concurrently
with such payment; provided, however, if after a drawing under any Letter of
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Credit issued under the Reimbursement Agreement such Letter of Credit shall have
been reinstated in respect of such drawing prior to the Agent having received
reimbursement for such drawing from the Company, the reimbursement of such
reinstated amount shall not reduce the principal amount of this Bond. In the
event that all of the Company's obligations under the Reimbursement Agreement
have been discharged, this Series J Bond shall be deemed paid in full and the
Agent shall surrender this Series J Bond to the Trustee for cancellation.
In the manner provided in the Indenture, this Series J Bond shall be
redeemed at a redemption price of 100% (expressed as a percentage of principal
amount) plus accrued interest thereon through the redemption date, in cash, upon
receipt by the Trustee of a written demand for redemption of this Series J Bond
from the Agent (the "Series J Redemption Demand"). This Series J Bond shall be
redeemed in the amount specified in the Series J Redemption Demand, which amount
shall be equal to the outstanding principal, reimbursement obligations,
interest, commissions, fees, charges, expenses, and other amounts then due and
owing under the Reimbursement Agreement. The Series J Redemption Demand shall
also state (i) that an "Event of Default" has occurred and is continuing under
the terms of the Reimbursement Agreement, (ii) that payment of the principal
amount and reimbursement obligations outstanding under the Reimbursement
Agreement, all interest, commissions and fees thereon and all charges, expenses,
and other amounts payable thereunder are immediately due and payable, and (iii)
that the Agent has demanded payment thereof from the Company. The portion of
this Series J Bond subject to redemption shall be redeemed on the fifth Business
Day following receipt by the Trustee of the Series J Redemption Demand. Any
payment made to the Agent pursuant to a Series J Redemption Demand shall
constitute a payment by the Company in respect of its obligations under the
Reimbursement Agreement. The Series J Redemption Demand shall be rescinded and
shall be null and void for all purposes of the Indenture upon receipt by the
Trustee, no later than the Business Day prior to the date fixed for redemption,
of a certificate of the Agent (a) stating
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that there has been a waiver of such Event of Default, or (b) withdrawing said
Series J Redemption Demand.
The principal of this Series J Bond may be declared or may become due
before the maturity hereof, on the conditions, in the manner and at the times
set forth in the Indenture, upon the happening of an Event of Default as therein
defined.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Bonds which would be affected by
the action to be taken, the Company and the Trustee may from time to time and at
any time, enter into a Supplemental Indenture for the purpose of adding any
provision or changing in any manner or eliminating any provision of the
Indenture or of any Supplemental Indenture or of modifying in any manner the
rights of the Holders of Bonds and any coupons; provided, however, that (i) no
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such Supplemental Indenture shall, without the consent of the Holder of each
Outstanding Bond affected thereby (a) reduce the principal amount of Bonds whose
Holders must consent to an amendment, supplement or waiver, (b) reduce the
Principal of or change the fixed maturity of any Bond, or alter the provisions
with respect to any sinking, improvement, maintenance, replacement or analogous
fund or conversion, redemption or repurchase rights with respect to any Bond,
(c) reduce the rate of or change the time for payment of interest on any Bond,
(d) waive a Default or Event of Default in the payment of Principal of or
interest on the Bonds (except a rescission of acceleration of the Bonds pursuant
to the Indenture where the Event of Default has been remedied), (e) make any
Bond payable in money other than that stated in such Bond, (f) make any change
in the provisions of the Indenture relating to waivers of past Defaults or the
rights of Holders of Bonds to receive payments of Principal of or interest on
the Bonds, (g) waive a redemption payment with respect to any Bond, (h) limit
the right of a Holder of Bonds to institute suit for the enforcement of payment
of Principal of or interest on such Bonds in accordance with the terms of said
Bonds, (i) permit the creation by the Company of any Prior Lien (but no merger
or consolidation permitted under the Indenture of the Company with any other
Person owning property which is subject to a Prior Lien, shall be deemed the
creation of a Prior Lien), or (j) make any change in the Indenture pertaining to
amendments, supplements or waivers to the Indenture or any Supplemental
Indenture with the consent of the Holders, and (ii) if there shall be Bonds of
more than one series of Bonds outstanding and if such proposed action shall
materially adversely affect the rights of Holders of Bonds of one or more such
series, then the consent (including consents obtained in connection with a
tender offer or exchange offer for Bonds) only of the Holders of a majority in
aggregate principal amount of the outstanding Bonds of all series so affected,
considered as one class, shall be required.
No incorporator, stockholder, director, officer or employee of the
Company shall have any liability for any obligations of the Company under this
Series J Bond and the Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Any and all such rights and
claims against every such incorporator, stockholder, director, officer or
employee, as such, whether arising at common law or in equity, or created by
rule of law, statute, constitution or otherwise, are expressly released and
waived as a condition of, and as part of the consideration for, the execution of
the Indenture and the issuance of this Series J Bond.
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This Series J Bond is nontransferable except to effect transfer to any
successor to the Agent under the Reimbursement Agreement, but is exchangeable by
the registered holder hereof, in person or by attorney duly authorized, at the
corporate trust office of the Trustee, any such permitted transfer or exchange
to be made in the manner and upon the conditions prescribed in the Indenture,
upon the surrender and cancellation of this Series J Bond and the payment of any
applicable taxes and fees required by law, and upon any such transfer or
exchange a new registered bond or bonds or the same series and tenor, will be
issued to the authorized transferee, or the registered holder, as the case may
be.
This Series J Bond shall not be valid until authenticated by the
manual signature of the Trustee, or a successor trustee or authenticating agent
appointed pursuant to the Indenture.
IN WITNESS WHEREOF, the Company has caused this Series J Bond to be
executed in its name by the manual or facsimile signature of its Chairman of the
Board, its Chief Executive Officer, its President or one of its Vice Presidents,
and attested by the manual or facsimile signature of its Secretary or one of its
Assistant Secretaries.
Issue Date:
Authentication Date:
This Bond is one of the Bonds of the EL PASO ELECTRIC COMPANY,
series designated therein, described in as Issuer
the within-mentioned Indenture.
STATE STREET BANK AND By:
TRUST COMPANY, --------------------------------
as Trustee Title:
Attest:
By:
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Authorized Officer
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[Assistant] Secretary
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ASSIGNMENT
To assign this Series J Bond, fill in the form below:
(I) or (we) assign and transfer this Series J Bond to
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(Insert assignee's soc. sec. or tax I.D. no.)
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(Print or type assignee's name, address and zip code)
and irrevocably appoint _______________________________________________________
_____________________________agent to transfer this Series J Bond on the books
of the Company. The agent may substitute another to act for him.
Date:
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Your Signature:
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(Sign exactly as your name appears on this Series J Bond)
Signature
Guarantee:
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(Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Registrar, which
requirements will include membership or participation in STAMP or
such other "signature guarantee program" as may be determined by
the Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Exchange Act.)
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