EXHIBIT 4.38
TENDER AGREEMENT
Between
EL PASO ELECTRIC COMPANY
and
CITIGROUP GLOBAL MARKETS INC.
$59,235,000
MARICOPA COUNTY, ARIZONA
POLLUTION CONTROL CORPORATION
Pollution Control Refunding Revenue
Bonds,
2005 Series A (El Paso Electric Company, Palo
Verde Project)
$63,500,000
MARICOPA COUNTY, ARIZONA
POLLUTION CONTROL CORPORATION
Pollution Control Refunding Revenue
Bonds,
2005 Series B (El Paso Electric Company, Palo
Verde Project)
$37,100,000
MARICOPA COUNTY, ARIZONA
POLLUTION CONTROL CORPORATION
Pollution Control Refunding Revenue
Bonds,
2005 Series C (El Paso Electric Company, Palo
Verde Project)
Dated as of August 1, 2005
TENDER AGREEMENT
THIS TENDER AGREEMENT is dated as of
August 1, 2005 (the “Agreement”), between EL PASO
ELECTRIC COMPANY, a corporation organized and existing under the
laws of the State of Texas (the “Company”), and
CITIGROUP GLOBAL MARKETS INC. (the “Tender Agent”).
Capitalized terms used herein and not otherwise defined shall have
the meaning given to such terms in the Indenture (defined
below).
W I T N E S S E T H :
WHEREAS, at the request of the
Company, Maricopa County, Arizona Pollution Control Corporation
(the “Issuer”) and Union Bank of California, N.A., as
Trustee (the “Trustee”) have entered into separate
Indentures of Trust dated as of July 1, 2005 (collectively, the
“Indenture”), and the Indenture provides that owners of
the $59,235,000 principal amount of the Maricopa County, Arizona
Pollution Control Corporation Pollution Control Refunding Revenue
Bonds, 2005 Series A (El Paso Electric Company Palo Verde Project)
due August 1, 2040 (the “ Series A Bonds ”),
$63,500,000 principal amount of the Maricopa County, Arizona
Pollution Control Corporation Pollution Control Refunding Revenue
Bonds, 2005 Series B (El Paso Electric Company Palo Verde Project)
due July 1, 2040 (the “ Series B Bonds ”) and
$37,100,000 principal amount of the Maricopa County, Arizona
Pollution Control Corporation Pollution Control Refunding Revenue
Bonds, 2005 Series C (El Paso Electric Company Palo Verde Project)
due May 1, 2040 (the “ Series C Bonds ”,
together with the Series A Bonds and the Series B Bonds, the
“ Bonds ”) may deliver their Bonds (or portions
thereof) to the Tender Agent for purchase in accordance with the
Indenture;
WHEREAS, concurrently with the
execution and delivery of this Agreement, the Company is entering
into a Remarketing Agreement, dated as of the date hereof (the
“Remarketing Agreement”), with Citigroup Global Markets
Inc., as remarketing agent.
NOW, THEREFORE, in consideration of
the premises the parties hereto do hereby covenant and agree as
follows:
Section 1.
The Tender Agent hereby accepts and
assumes all the obligations, duties and rights of
