EXHIBIT 4.42
REMARKETING AND PURCHASE AGREEMENT
among
EL PASO ELECTRIC COMPANY
and
CITIGROUP GLOBAL MARKETS INC.
as Remarketing Agent
and
CITIGROUP GLOBAL MARKETS INC.
BNY CAPITAL MARKETS, INC.
J.P. MORGAN SECURITIES INC.
$33,300,000
CITY OF FARMINGTON, NEW MEXICO
Pollution Control Revenue Refunding
Bonds
2002 Series A
(El Paso Electric Company Four Corners
Project)
Dated July 27, 2005
REMARKETING AND PURCHASE AGREEMENT
THIS REMARKETING AND PURCHASE
AGREEMENT is dated July 27, 2005 (the “Remarketing and
Purchase Agreement”), between EL PASO ELECTRIC COMPANY, a
Texas corporation (the “Company”), CITIGROUP GLOBAL
MARKETS INC. (the “Remarketing Agent”), and CITIGROUP
GLOBAL MARKETS INC., BNY CAPITAL MARKETS, INC. and J. P. MORGAN
SECURITIES INC. (collectively, the “Underwriters”),
with respect to the remarketing and purchase of the $33,300,000
principal amount of the City of Farmington, New Mexico Pollution
Control Revenue Refunding Bonds, 2002 Series A (El Paso Electric
Company Four Corners Project) due June 1, 2032 (the
“Bonds”).
1) The Bonds were originally issued
on August 1, 2002, pursuant to the City of Farmington, New Mexico
(the “City” or the “Issuer”) Ordinance No.
2002-1134 adopted on July 9, 2002 (“Ordinance No.
2002-1134”), between the City and Union Bank of California,
N.A., as successor trustee (the “Trustee”) as
supplemented by Resolution No. 2002-1046 adopted by the City on
July 23, 2002 (the “Resolution,” and together with
Ordinance No. 2002-1134, (the “Ordinance”) and pursuant
to an Amended and Restated Installment Sale Agreement between the
City and the Company dated as of August 1, 2002 (the
“Financing Agreement”). (All capitalized terms used
herein and not defined herein shall have the meanings specified in
the Ordinance or in the Remarketing Supplement for the Bonds, as
defined below).
At the time of the initial issuance
of the Bonds, the Company elected that the Bonds bear interest at
an initial Long-Term Interest Rate of 6.375% per annum through July
31, 2005. The Bonds will be subject to mandatory tender for
purchase on August 1, 2005 (the “Purchase Date”). The
Bonds shall bear interest at the Long-Term Interest Rate of 4.00%
per annum for the Long-Term Interest Rate Period (as defined in the
Ordinance) beginning August 1, 2005 through July 31, 2012. The
Bonds will be subject to mandatory tender for purchase on August 1,
2012 at a price equal to 100% of the principal amount thereof. The
Company desires that (a) on the Purchase Date, the Underwriters
shall purchase the Bonds from the Company and (b) on the Purchase
Date, the Remarketing Agent and the Underwriters shall remarket the
Bonds.
The Bonds are to be as described in
the remarketing supplement dated the date hereof and attached
hereto as Exhibit A (the “Remarketing Supplement”).
Such Remarketing Supplement, including the Appendices thereto and
all material incorporated by reference, is hereinafter called the
“Remarketing Supplement”. The Company hereby represents
and warrants to the Remarketing Agent and the Underwriters that the
Remarketing Supplement is complete as of its date, within the
meaning of 15c2-12(e)(3) under the Exchange Act (hereinafter
defined). The Company hereby further represents and warrants to the
Remarketing Agent and the Underwriters that it deems the
Preliminary Remarketing Supplement dated July 25, 2005 to have been
final as of its date (except for the omission of the offering
price, interest rate, redemption prices and dates and selling
compensation, as applicable) within the meaning of 15c2-12(b)(1).
Not later than two business days after its acceptance hereof, the
Company will make available to the Remarketing Agent and the
Underwriters such number of copies of the Remarketing Supplement as
the Remarketing Agent and the Underwriters shall reasonably
request, but in any case a sufficient number of such copies to
permit delivery of copies of the Remarketing Supplement to any
person on request and to purchasers of the Bonds.
2) On the basis of the
representations and agreements herein contained, but subject to the
terms and conditions herein set forth, the Underwriters agree to
purchase the Bonds at a purchase price of 100% of the principal
amount thereof plus accrued and unpaid interest to the Purchase
Date. The Company shall pay the Remarketing Agent and Underwriters
directly, as compensation for the Remarketing and Purchase of the
Bonds hereunder, a fee equal to $166,500 plus expenses. The Issuer
shall have no responsibility, obligation or liability with respect
to any payments hereunder.
3) The date of delivery and payment
for the Bonds (the “Purchase Date”) will be the
Purchase Date or such other time as the Remarketing Agent,
Citigroup Global Markets Inc., as representative of the
Underwriters, and the Company determine, in which event the
Purchase Date will be the date so determined. Settlement will be
through the facilities of The Depository Trust Company, New York,
New York.
The Remarketing Agent will instruct
the Citigroup Global Markets Inc., as tender agent (the
“Tender Agent”) to cause the Trustee or Registrar to
deliver the Bonds to the Underwriters in the manner contemplated in
the Ordinance on the Purchase Date against payment therefor in
immediately available funds to the order of the Tender Agent for
disposition in accordance with the terms of the Ordinance. The
delivery of the documents referred to in Section 11 hereof will be
made simultaneously at the offices of Pillsbury Winthrop Shaw
Pittman LLP, or such other place as may be mutually agreed to by
the Company, the Remarketing Agent and Citigroup Global Markets
Inc., as representative of the Underwriters. The Bonds will be
delivered in the form and shall be otherwise as described in the
Ordinance.
4) The Company represents and
warrants to the Remarketing Agent and the Underwriters that the
representations and warranties of the Company set forth in Schedule
I hereto are true and will remain true on and as of the Purchase
Date.
5) The Company agrees to indemnify
and hold harmless the Remarketing Agent, its directors, officers,
and employees (each a “Remarketing Agent indemnified
party”), and each Underwriter and each person, if any who
controls the related Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act
(each a “Underwriter indemnified party”) from and
against any and all losses, claims, damages and liabilities (a)
caused by any untrue statement or alleged untrue statement of a
material fact contained in the Preliminary Remarketing Supplement
or the Remarketing Supplement (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto)
or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading, except with respect to
indemnification of a Remarketing Agent indemnified party or
Underwriter indemnified party, insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon
information relating to the Remarketing Agent or Underwriters
furnished to the Company in writing by the Remarketing Agent or
Underwriters expressly for use therein or (b) caused by the failure
to comply with the informational reporting requirements of the
Exchange Act, the failure to file a registration statement under
the Securities Act or the failure to qualify an indenture under the
Trust and Indenture Act of 1939, as amended (the “Trust
Indenture Act”) in connection with the remarketing and sale
of the Bonds.
The Remarketing Agent and the
Underwriters agree to indemnify and hold harmless the Company, its
directors, officers and employees, and each person, if any, who
controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act (each, a
“Company indemnified party”) to the same extent as set
forth in paragraph (a) of the foregoing indemnity from the Company
to the Remarketing Agent and the Underwriters, but only with
reference to information relating to, and provided in writing by,
the Remarketing Agent or the Underwriters expressly for use in the
Preliminary Remarketing Supplement or the Remarketing Supplement or
any amendment or supplement thereto.
In case any proceeding (including
any governmental investigation) shall be instituted involving any
person in respect of which indemnity may be sought pursuant to
either of the two preceding paragraphs, such person (hereinafter
called the “indemnified party”) shall promptly notify
the person against whom such indemnity may be sought (hereinafter
called the “indemnifying party”) in writing and the
indemnifying party, upon request of the indemnified party, shall
retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying
party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any
such proceeding, any indemnified party shall have the right to
retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel or (ii) the named parties
to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests
between them. It is understood that the indemnifying party shall
not, in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the fees and expenses of more
than one separate firm (in addition to any local counsel) for all
such indemnified parties, and that all such fees and expenses shall
be reimbursed as they are incurred. Such firm shall be designated
in writing by the Remarketing Agent in the case of Remarketing
Agent indemnified parties, by the related Underwriter in the case
of Underwriter indemnified parties or by the Company in the case of
Company indemnified parties. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there is a
final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall
have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by the third
sentence of this paragraph, the indemnifying party agrees that it
shall be liable for any one settlement of any proceeding effected
without its written consent if (i) such settlement is entered into
more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by each indemnified
party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the
subject matter of such proceeding.
If the indemnification provided for
in the first or second paragraph of this Section 5 is unavailable
to an indemnified party under such paragraph in respect of any
losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to
the amount paid or payable by such indemnified party as a result of
such losses, claims, damages or liabilities (i) in such proportion
as is appropriate to reflect the relative benefits received by the
Remarketing Agent, the Company, and the Underwriters, as
appropriate, or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to
in clause (i) above but also the relative fault of the Company, the
Remarketing Agent, and the Underwriters in connection with the
statements or omissions that resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable
considerations.
It is hereby understood and agreed
that (i) the benefits received by the Company from the reoffering
of the Bonds are the proceeds of the purchase price paid to the
Remarketing Agent and Underwriters pursuant to Section 2 hereof;
and (ii) the benefit received by the Remarketing Agent and the
Underwriters from the Remarketing and Purchase of the Bonds is the
fee set forth in Section 2 of this Remarketing and Purchase
Agreement. The relative benefits received by the Remarketing Agent,
the Company, and the Underwriters shall be in proportion to the
benefits described above. The relative fault of the Company, the
Remarketing Agent, and the Underwriters shall be determined by
reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied
by the Company, the Remarketing Agent, or by the Underwriters and
the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission, it being understood and agreed by the parties that, for
purposes of determining the contribution under this paragraph,
information relating to the Issuer shall be attributed to the
Company.
The Company, the Remarketing Agent
and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this Section 5 were determined by pro
rata allocation or by any other method of allocation that does not
take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph
shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this
Section 5, the Remarketing Agent and the Underwriters shall not be
required to contribute any amount in excess of the amount by which
the total price at which the Bonds were underwritten and
distributed to the public exceeds the amount of any damages that
the Remarketing Agent and Underwriters have otherwise been required
to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
The scope of the indemnification and
contribution provided for herein by the Company to the Remarketing
Agent and the Underwriters shall not be limited by the exclusion
from paragraph (j) of Section 4 hereof with respect to information
relating to or provided by the Issuer.
The indemnity and contribution
agreements contained in this Section 5 and the representations and
warrantees of the Company, the Remarketing Agent and the
Underwriters contained herein shall remain operative and in full
force and effect regardless of (i) any termination of this
Remarketing and Purchase Agreement, (ii) any investigation made by
or on behalf of the Company, the Underwriters, the Remarketing
Agent or any of their respective officers or directors or any other
person controlling the Company or the Remarketing Agent and (iii)
acceptance of and payment for any of the Bonds.
6) The Company will endeavor in good
faith to cooperate with the Underwriters in qualifying the Bonds
for sale under the securities laws of such jurisdictions as
Citigroup Global Markets Inc. designates, and in continuing such
qualification in effect so long as required for the distribution of
the Bonds. The Company will also execute the Continuing Disclosure
Agreement attached to the Remarketing Supplement.
7) Before amending or supplementing
the Remarketing Supplement, the Company will furnish the
Underwriters with a copy of each such proposed amendment or
supplement and will not use any such proposed amendment or
supplement to which the Underwriters reasonably object. The Company
will advise Citigroup Global Markets Inc., as representative of the
Underwriters, promptly if, to its knowledge, any proceedings
affecting the use of the Remarketing Supplement in connection with
the remarketing and sale of the Bonds have been
instituted.
8) If, after the date of this
Remarketing and Purchase Agreement until twenty-five (25) days
after the end of the underwriting period (as described below), any
event shall occur as a result of which it is necessary to amend or
supplement the Remarketing Supplement in order to make the
statements therein, in light of the circumstances when the
Remarketing Supplement is delivered to a purchaser, not misleading,
or if it is necessary to amend or supplement the Remarketing
Supplement to comply with applicable law, t
