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Exhibit 10.41
REMARKETING AGREEMENT
THIS REMARKETING AGREEMENT (the "Agreement") dated as of
September 1, 2006
is made by and between Snowflake White Mountain Power, LLC (the
"Company"), an
Arizona limited liability company and a wholly-owned indirect
subsidiary of NZ
Legacy, LLC, an Arizona limited liability company, and Thornton
Farish Inc.
The Industrial Development Authority of the City of Show Low,
Arizona (the
"Issuer"), a nonprofit corporation designated as a political
subdivision under
the Constitution and laws of the State of Arizona, is issuing
$39,250,000
aggregate principal amount of its Solid Waste Disposal Revenue
Bonds (Snowflake
White Mountain Power, LLC Project) Series 2006 (the "Bonds")
pursuant to an
Indenture of Trust dated as of September 1, 2006 (the
"Indenture") between the
Issuer and J.P. Morgan Trust Company, National Association, as
trustee (the
"Trustee").
The proceeds of the sale of the Bonds will be used to provide
funds to loan
to the Company pursuant to the Loan Agreement dated as of
September 1, 2006,
between the Issuer and the Company, to finance the costs of the
acquisition,
construction and installation of certain solid waste disposal
facilities for use
by the Company, as part of the Company's electric generation
facility in Navajo
County, Arizona.
The Company will also cause CoBank, ACB (the "Fronting Credit
Facility
Provider"), to deliver its irrevocable direct-pay letter of
credit (the
"Fronting Credit Facility") to the Trustee and will cause
JPMorgan Chase Bank,
N.A. (the "Confirming Credit Facility Provider," and together
with the Fronting
Credit Facility Provider, the "Credit Facility Provider") to
deliver its
irrevocable confirmation (the "Confirming Credit Facility," and
together with
the Fronting Credit Facility, the "Credit Facility") to the
Trustee, to support
payment of the principal and purchase prices of and interest on
the Bonds during
the term of the Credit Facility.
Intending to be legally bound, the parties hereto agree as
follows:
1. Acceptance of Appointment and Obligations of Remarketing
Agent.
(a) Thornton Farish Inc. hereby accepts its appointment as the
Remarketing
Agent (the "Remarketing Agent") for the Bonds and hereby accepts
and agrees to
perform the duties and obligations imposed upon it as
Remarketing Agent under
the Indenture. The Remarketing Agent hereby represents that it
is qualified to
act as Remarketing Agent in accordance with the requirements of
the Indenture
and agrees to abide by all of the provisions of the Indenture
insofar as they
govern its activities as Remarketing Agent for the Bonds. The
Remarketing Agent
will promptly notify the Company if it ceases to meet the
requirements of the
Indenture. Unless defined otherwise, all terms used herein shall
have the same
meaning as in the Indenture.
(b) The Remarketing Agent shall determine the Weekly Rates and,
if
applicable, the Fixed Rate in accordance with Article II of the
Indenture, and
shall give notice of such rates in the manner and to the persons
specified
therein.
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(c) The Remarketing Agent shall keep such books and records with
respect to
its duties as Remarketing Agent as shall be consistent with
prudent industry
practice and shall make such books and records available for
inspection by the
Issuer, the Trustee and the Company at all reasonable times
during its normal
business hours.
(d) The Remarketing Agent shall use its best efforts to remarket
Bonds in
accordance with the Indenture and perform all other duties
assigned to it under
the Indenture.
(e) The Remarketing Agent shall hold all Bonds delivered to it
for the
benefit of the respective registered owners of the Bonds which
shall have so
delivered such Bonds until moneys representing the purchase
price of such Bonds
shall have been delivered to or for the account of or to the
order of such
registered owners.
(f) The Remarketing Agent shall hold all moneys delivered to it
for the
purchase of Bonds in trust for the benefit of the person or
entity which shall
have so delivered such moneys until the Bonds purchased with
such moneys shall
have been delivered to or for the account of such person or
entity.
(g) The Remarketing Agent will not offer any of the Bonds in
any
jurisdiction except under circumstances that will result in
compliance with the
applicable laws thereof.
2. Fees and Expenses. While the Bonds bear interest at the
Weekly Rate, the
Company shall pay the Remarketing Agent, as compensation for its
services
hereunder, a fee equal to one-tenth of one percent (.10%) per
annum of the
weighted average principal amount of Bonds outstanding during
each three-month
period, or such other amount as may be agreed upon from time to
time by the
Company and the Remarketing Agent, payable quarterly in arrears
on each January
1, April 1, July 1 and October 1, commencing October 1, 2006.
The Remarketing
Agent will not be entitled to compensation after this
Remarketing Agreement
shall be terminated except for a pro rata portion of the fee in
respect of the
quarter in which such termination occurs. Additionally, the
Company will
reimburse the Remarketing Agent for its reasonable out-of-pocket
expenses in
performing its obligations hereunder, including, without
limitation, expenses
incurred in the preparation and distribution of the disclosure
documents
referred to in Section 3 hereof and in connection with any
proposed conversion
of the Bonds from the Weekly Rate Period to the Fixed Rate
Period. The Issuer
shall have no responsibility, obligation or liability with
respect to any
payments hereunder. The parties anticipate that separate
arrangements for
compensation will be made for the remarketing of Bonds in
connection with a
conversion from the Weekly Rate Period to the Fixed Rate Period
at the time of
such conversion.
3. Disclosure Document. If required under any applicable law or
as a result
of any material change in the information in a disclosure
document theretofore
used by the Remarketing Agent in connection with the remarketing
of the Bonds
(which may include the Official Statement distributed in
connection with the
sale of the Bonds by the Underwriter (the "Official
Statement")), the Company
promptly will provide the Remarketing Agent with a disclosure
document
reasonably satisfactory to the Remarketing Agent and its counsel
in respect of
the Bonds. The Company will supply the Remarketing Agent with
such number of
copies of the disclosure document as the Remarketing Agent
reasonably requests
from time to time. The
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Company will supplement and amend the disclosure document so
that, at all times
when used in connection with the remarketing of the Bonds, the
disclosure
document will not contain any untrue statement of a material
fact or omit to
state a material fact necessary to make the statements in the
disclosure
document, in the light of the circumstances under which they
were made, not
misleading. The Company shall not, however, be required to make
representations
or warranties as to statements or omissions based upon
information furnished to
the Company in writing by or on behalf of the Remarketing Agent
expressly for
use therein.
The Company agrees to notify the Remarketing Agent promptly in
writing of
the occurrence of any of the following events:
(a) any Default or Event of Default under the Indenture of which
it has
knowledge;
(b) any notice to the Company from the Trustee that it intends
to resign;
(c) any event with respect to the Bonds which requires the
delivery of an
opinion of Bond Counsel pursuant to the Indenture;
(d) any optional redemption or extraordinary optional redemption
pursuant
to the Indenture; or
(e) any mandatory redemption pursuant to the Indenture.
The Company hereby acknowledges the requirements imposed on the
Remarketing
Agent by Securities and Exchange Commission Rule 15c2-12, as
amended (the
"Rule"). The Bonds are currently exempt under Section (d)(1) of
the Rule. The
Company covenants and agrees that, should the Bonds no longer be
exempt under
the Rule, the Company will comply with the continuing disclosure
requirements
pursuant to Section (b)(5)(i) of the Rule and take such other
actions as shall
be reasonably necessary to enable the Remarketing Agent to
comply with the Rule.
4. Indemnification. The Company agrees to indemnify and hold
harmless the
Remarketing Agent, its directors, officers and employees and
each person, if
any, who controls the Remarketing Agent within the meaning of
either Section 15
of the Securities Act of 1933, as amended (the "Securities
Act"), or Section 20
of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), 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
any disclosure document referred to in Section 3 hereof
distributed in
connection with the remarketing of the Bonds or caused by any
omission or
alleged omission to state therein a material fact requir
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