Exhibit 4.02
EXHIBIT A
THIS BOND IS NOT TRANSFERABLE EXCEPT TO A SUCCESSOR 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. RI - ___________ [$163,841,823]
COLLATERAL SERIES I 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 [spell out amount of bond] Dollars or, at any time (if less),
such lesser principal amount as is equal to the sum of (a) the aggregate
Available Amount of all Letters of Credit outstanding at such time, plus (b) the
aggregate principal amount of all Tender Advances which are outstanding at such
time, plus (c) the aggregate amount of all other unreimbursed drawings under all
Letters 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 Letters
of Credit, but not later than the Stated Termination Date for the last Letter of
Credit outstanding under the Reimbursement Agreement and [_________], 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 I 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 (all such interest, commissions, fees, charges,
expenses and other amounts payable under the Reimbursement Agreement being
referred to collectively as "Interest") 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. Interest shall accrue and be payable until
maturity of this Series I Bond, or if the Agent shall demand redemption of this
Series I Bond, until the redemption date, or, if the Company shall default in
the payment of principal due on this Series I 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 under the
Reimbursement Agreement shall include, without limitation, interest provided for
under Article II of the Reimbursement Agreement and (ii) commissions and fees
under the Reimbursement Agreement 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
provided for under Section 2.03 of the Reimbursement Agreement.
The Bonds of this series have been issued to the Agent for the issuer
of Letters 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 to the Holder under the Reimbursement Agreement. As used
herein, the terms "Available Amount," "Tender Advances", "Letters of Credit",
"Participation Percentage" and "Stated Termination Date" shall have the
respective meanings set forth in the Reimbursement Agreement.
Except as hereinafter provided, this Series I Bond shall bear interest
(a) from the interest payment date next preceding the date of this Series I Bond
to which interest has been paid, or (b) if the date of this Series I 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 I Bond, then from the date of
initial issue.
This Series I 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 I 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 I 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 $163,841,823 aggregate
principal amount of Series I Bonds, but the aggregate principal amount of all
Series I 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 aggregate Available
Amount of all Letters of Credit outstanding at such time, plus (b) the aggregate
principal amount of all Tender Advances outstanding at such time, plus (c) the
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aggregate amount of all other unreimbursed drawings under such Letters of Credit
which are outstanding at such time.
This Series I 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 person the benefits of the security provided for by this
Series I Bond.
Any payment of principal, reimbursement obligations, interest, fees,
charges, expenses, commissions 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 I Bond, but such payment shall not reduce the
principal amount of this Series I Bond then in effect unless the sum of (a) the
aggregate Available Amount of all Letters of Credit outstanding at such time,
plus (b) the aggregate principal amount of Tender Advances which are then
outstanding under the Reimbursement Agreement, plus (c) the aggregate amount of
all other unreimbursed drawings under such Letters of Credit which are then
outstanding, is reduced concurrently with such payment; provided, however, if
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after a drawing under any Letter of 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
I Bond shall be deemed paid in full and the Holder shall surrender this Series I
Bond to the Trustee for cancellation.
In the manner provided in the Indenture, this Series I 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 I Bond
from the Agent on behalf of the Holder (the "Series I Redemption Demand"). This
Series I Bond shall be redeemed in the amount specified with respect thereto in
the Series I Redemption Demand, which amount shall be equal to the portions of
the outstanding principal, reimbursement obligation, interest, commissions,
fees, charges, expenses and other amounts then due and owing under the
Reimbursement Agreement. The Series I 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
I Bond subject to redemption shall be redeemed on the fifth Business Day
following receipt by the Trustee of the Series I Redemption Demand. Any payment
made to the Agent pursuant to a Series I Redemption Demand shall constitute a
payment by the Company in respect of its obligations under the Reimbursement
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Agreement. The Series I 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 that there has been a waiver of such Event of Default,
or (b) withdrawing said Series I Redemption Demand.
The principal of this Series I 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 of any Series 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 I 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,
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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 I Bond.
This Series I 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 I 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 I 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.
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IN WITNESS WHEREOF, the Company has caused this Series I 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 of Officer]
Attest:
By:
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Authorized Officer
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[Assistant] Secretary
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ASSIGNMENT
To assign this Series I Bond, fill in the form below:
(I) or (we) assign and transfer this Series I 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 I 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 I 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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