EXHIBIT 4.44
Appendix 1 to the Tender Agreement
REMARKETING AGREEMENT
THIS REMARKETING AGREEMENT is dated
as of August 1, 2005 (the “ Agreement ”),
between EL PASO ELECTRIC COMPANY, a Texas corporation (the “
Company ”) and CITIGROUP GLOBAL MARKETS INC. (the
“ Agent ”).
W I T N E S S E T H :
WHEREAS, the Agent, the Company and
the City of Farmington, New Mexico (the “ City
”), have agreed for the Agent to act as exclusive remarketing
agent on behalf of the Company in connection with the offering and
sale from time to time in the secondary market of $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 ”) and to determine the interest rate necessary
to remarket the Bonds in accordance with and pursuant to the
City’s Ordinance No. 2002-1134 adopted by the City on July 9,
2002 (“ Ordinance No. 2002-1134 ”), 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 Union Bank of California, N.A. has accepted its
appointment as trustee under the Ordinance (the “
Trustee ”) (All capitalized terms used herein and not
defined herein shall have the meanings specified in the
Ordinance);
WHEREAS, concurrently with the
execution and delivery of this Agreement the Bonds will be
remarketed by the Agent pursuant to the 2005 Remarketing Supplement
(as hereinafter defined);
WHEREAS, concurrently with the
execution and delivery of this Agreement, the Company is entering
into a Tender Agreement, dated as of the date hereof (the “
Tender Agreement ”), with Citigroup Global Markets
Inc., as tender agent;
NOW, THEREFORE, in consideration of
the premises the parties hereto do hereby covenant and agree as
follows:
Section 1.
Appointment of Agent;
Responsibilities of Agent.
(a) Subject to the terms and
conditions herein contained, the Company, effective as of the date
hereof, hereby appoints the Agent, and the Agent hereby accepts
such appointment, as exclusive remarketing agent in connection with
the offering and sale of the Bonds from time to time in the
secondary market.
(b) The Agent hereby represents that
it is a member of the National Association of Securities Dealers,
Inc., and has a combined capital stock, surplus and undivided
profits of at least $15,000,000 and is authorized by law to perform
the duties imposed upon it by the Ordinance.
(c) The Agent accepts and assumes
all the obligations, duties and rights of the remarketing agent
under the Ordinance.
(d) The Agent’s
responsibilities hereunder will include (i) the soliciting of
purchases of Bonds from investors able to purchase municipal
obligations, (ii) effecting and processing such purchases, (iii)
billing and receiving payment for Bonds purchased, (iv) causing the
proceeds from the secondary sale of the Bonds to be transferred to
the Tender Agent or the Trustee, as the case may be, (v) keeping
such books and records as shall be consistent with prudent industry
practice and making such books and records available for inspection
by the Issuer, the Trustee, the Tender Agent and the Company at all
reasonable times and (vi) performing such other related functions
as may be requested by the Company and agreed to by the
Agent.
(e) In connection with the
performance of the foregoing responsibilities, the Agent further
agrees to hold all moneys delivered to it hereunder for the
purchase of Bonds as agent and bailee of, and in escrow for the
benefit of, the person or entity which shall have so delivered such
moneys.
Section 2.
Furnishing of Offering Materials .
(a) The Company agrees to furnish the Agent with as many copies as
the Agent may reasonably request of (i) the Remarketing Supplement,
dated July 27, 2005, (including all appendices thereto) describing
the Bonds (as amended and supplemented, the “ 2005
Remarketing Supplement ”), (ii) each document or report
relating to the Company which has been filed with the Securities
and Exchange Commission pursuant to Section 13, 14 or 15(d) of the
Securities Exchange Act of 1934, as amended (the “
Exchange Act ”), subsequent to the date of the 2005
Remarketing Supplement (an “ SEC Report ”),
(iii) an annual remarketing supplement to the 2005 Remarketing
Supplement if requested by the Agent or such other disclosure
document that may be used in connection with the remarketing of the
Bonds by the Agent, and (iv) such other information with respect to
the Company and the Bonds as the Agent shall reasonably request
from time to time.
(b) If, at any time during the term
of this Agreement, any event known to the Company relating to or
affecting the Company, the Ordinance, the Amended and Restated
Installment Sale Agreement dated as of August 1, 2002, between the
Issuer and the Company (the “Loan Agreement”), the
Tender Agreement or the Bonds shall occur which might affect the
correctness or completeness of any statement of a material fact
contained in the 2005 Remarketing Supplement, any supplement
thereto or any SEC Report, the Company will promptly notify the
Agent in writing of the circumstances and details of such
event.
Section 3.
Representations, Warranties,
Covenants and Agreements of the Company. The Company represents,
warrants, covenants, and agrees with the Agent as
follows:
(a) The Company has been duly
incorporated and is in good standing under the laws of the State of
Texas, has corporate power and authority to own its properties and
to conduct its business and possesses all material licenses and
approvals necessary for the conduct of its business and the Company
is duly qualified to do business and is in good standing as a
foreign corporation in the States of New Mexico and
Arizona;
(b) The Company has full power and
authority to take all actions required or permitted to be taken by
it by or under, and to perform and observe the covenants and
agreements on its part contained in, this Agreement, the Tender
Agreement, the Loan Agreement, the Continuing Disclosure Agreement
with respect to the Bonds dated as of August 1, 2005 (the
“Continuing Disclosure Agreement”) and any other
instrument or agreement relating thereto to which it is a
party;
(c) The Company has, on or before
the date hereof, duly taken all action necessary to be taken by it
prior to such date for: (i) the execution, delivery and performance
of this Agreement, the Tender Agreement, the Loan Agreement, the
Continuing Disclosure Agreement and any other instrument or
agreement to which it is a party and which has been or will be
executed in connection with the transactions contemplated by the
foregoing documents, and (ii) the carrying out, giving effect to,
consummation and performance of the transactions and obligations
contemplated hereby and by the 2005 Remarketing Supplement;
provided, that no representation is made with respect to compliance
with the securities or “Blue Sky” laws of the various
states of the United States;
(d) This Agreement, the Loan
Agreement, the Tender Agreement, the Continuing Disclosure
Agreement and any other instrument or agreement to which the
Company is a party and which has been or will be executed in
connection with the consummation of the transactions contemplated
by the foregoing documents, when duly and validly executed and
delivered by the parties hereto and thereto, will constitute valid
and binding obligations of the Company, enforceable against the
Company in accordance with their respective terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws, judicial decisions or
principles of equity relating to or affecting the enforcement of
creditors’ rights or contractual obligations
generally;
(e) The execution and delivery of
this Agreement, the Loan Agreement, the Tender Agreement, the
Continuing Disclosure Agreement and any other instrument or
agreement to which the Company is a party and which has been or
will be executed in connection with the consummation of the
transactions contemplated by the foregoing documents, the
compliance with the terms, conditions or provisions hereof and
thereof, and the consummation of the transactions herein and
therein contemplated did not upon the date of execution and
delivery thereof and will not violate any law or any regulation,
order, writ, injunction or decree of any court or governmental
instrumentality applicable to the Company, or result in a breach of
any of the terms, conditions or provisions of, or constitute a
default under, or result in the creation or imposition of any
mortgage, lien, charge or encumbrance of any nature whatsoever upon
any of the properties or assets of the Company pursuant to the
terms of its Articles of Incorporation or By-laws, or any mortgage,
Ordinance, agreement or instrument to which the Company is a party
or by which it or any of its properties is bound;
(f) All authorizations, consents and
approvals of, notices to, registrations or filings with, or actions
in respect of any governmental body, agency or other
instrumentality or court required in connection with the execution,
delivery and performance by the Company of
this Agreement, the Tender Agreement, the
Continuing Disclosure Agreement, the Loan Agreement and any other
agreement or instrument to which the Company is a party and which
has been or will be executed in connection with the consummation of
the transactions contemplated by the foregoing documents have been
obtained, given or taken and are in full force and effect, provided
that no representation is made with respect to compliance with the
securities or “Blue Sky” laws of the various states of
the United States;
(g) Except as described in the 2005
Remarketing Supplement or any SEC Report, there is no action, suit,
proceeding, inquiry or investigation before or by any court, public
board or body pending or, to the knowledge of the Company,
threatened against or affecting the Company wherein an unfavorable
decision, ruling or finding would have a material adverse effect on
the properties, business, condition (financial or other) or results
of operations of the Company or the transactions contemplated by
this Agreement or by the 2005 Remarketing Supplement or which would
materially adversely affect the validity or enforceability of, or
the authority or ability of the Company to perform its obligations
under, this Agreement, the Loan Agreement, the Tender Agreement,
the Continuing Disclosure Agreement or any other agreement or
instrument to which the Company is a party and which is used or
contemplated for use in consummation of the transactions
contemplated by this Agreement or the 2005 Remarketing
Supplement.
(h) The Company is not in violation
of any provision of its Articles of Incorporation or
By-laws;
(i) The Company will not take or
omit to take any action which action or omission would in any way
cause the interest on the Bonds to be subject to Federal income tax
under the Code;
(j) The Company will cooperate with
the Agent in the qualification of the Bonds for offering and sale
and the determination of the eligibility of the Bonds for
investment under the laws of such jurisdictions as the Agent shall
designate and will use its best efforts to continue any such
qualification in effect so long as required for the distribution of
the Bonds by the Agent, provided that the Company shall not be
required to qua
