Exhibit 4.05
$100,600,000
MARICOPA COUNTY, ARIZONA
POLLUTION CONTROL CORPORATION
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$63,500,000
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$37,100,000
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Pollution Control Refunding Revenue
Bonds,
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Pollution Control Refunding Revenue
Bonds,
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2009 Series A
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2009 Series B
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(El Paso Electric Company Palo Verde
Project)
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(El Paso Electric Company Palo Verde
Project)
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BOND PURCHASE AGREEMENT
March 19, 2009
Maricopa County, Arizona Pollution
Control Corporation
c/o Ryley Carlock &
Applewhite
One North Central Avenue
Suite 1200
Phoenix, Arizona 85004
Attention: President
Ladies and Gentlemen:
J.P. Morgan Securities Inc.,
authorized to act on behalf of the Underwriters as Senior Manager
(the “Senior Manager”), and BNY Mellon Capital Markets,
LLC (together with the Senior Manager, the
“Underwriters”), offer to enter into this Bond Purchase
Agreement (the “Bond Purchase Agreement”) with the
Maricopa County, Arizona Pollution Control Corporation (hereinafter
called the “Issuer”) which, upon your acceptance of
this offer, will be binding upon the Issuer and upon the
Underwriters. This offer is made subject to your acceptance of this
Bond Purchase Agreement hereof on or before 11:59 p.m., New York
City time, on the date hereof, and shall become effective upon your
mutual acceptance hereof.
1. Purchase and Sale of the
Bonds .
a. Subject to the terms and
conditions and in reliance upon the representations, warranties and
agreements set forth herein and in the Indemnity Agreement (as
defined herein), the Issuer hereby agrees to sell and deliver to
the Underwriters, all, but not less than all of, $63,500,000
aggregate principal amount of its Maricopa County, Arizona
Pollution Control Corporation Pollution Control Refunding Revenue
Bonds, 2009 Series A (El Paso Electric Company Palo Verde Project)
(the “Series A Bonds”) and $37,100,000 aggregate
principal amount of its Maricopa County, Arizona Pollution Control
Corporation Pollution Control Refunding Revenue Bonds, 2009 Series
B (El Paso Electric Company Palo Verde Project) (the “Series
B Bonds,” together with the Series A Bonds, the
“Bonds”) and the Underwriters hereby agree, jointly and
severally, to purchase from the Issuer all of such Bonds. The
purchase price for the Bonds shall be 100% of the principal amount.
The Bonds shall bear interest at the
rates, shall mature on the dates,
and shall have the terms set forth in the Official Statement and
Schedule III hereto.
b. The Bonds will be issued pursuant
to separate Indentures of Trust, dated as of March 1, 2009 for
the Series A Bonds and March 1, 2009 for the Series B Bonds
(collectively, the “Indenture”) between the Issuer and
Union Bank, N.A., as Trustee (the “Trustee”), and a
resolution adopted by the Issuer on March 17, 2009 (the
“Bond Resolution”) to provide for the refinancing of
certain pollution control facilities of the Company (the
“Project”), pursuant to separate Loan Agreements, dated
as of March 1, 2009 for the Series A Bonds and March 1,
2009 for the Series B Bonds (collectively, the “Loan
Agreement”), between the Issuer and El Paso Electric Company
(the “Company”), and in accordance with the provisions
of a Tax Certificate of the Issuer dated the date of issuance of
the Bonds and a Tax Certificate of the Company dated the date of
issuance of the Bonds (the “Tax Certificates”). Such
refinancing is to be accomplished by the redemption or purchase and
cancellation of two prior series of bonds, originally issued by the
Issuer in 2005 (the “Prior Bonds”) and described in the
separate Indentures of Trust thereof, on April 3, 2009 with
respect to the Series A Bonds and on April 1, 2009 with
respect to the Series B Bonds.
c. No provision, covenant or
agreement in this Bond Purchase Agreement or any obligation in this
Bond Purchase Agreement imposed upon the Issuer, or the breach
thereof, shall constitute an indebtedness of the Issuer within the
meaning of any state constitutional provision or statutory
limitation or shall constitute or give rise to a pecuniary
liability of the Issuer or a charge against the general credit or
taxing powers of the Issuer. No covenant or agreement contained in
this Bond Purchase Agreement shall be deemed to be a covenant or
agreement of any officer, agent or employee of the Issuer in his or
her individual capacity, and neither the members of the Issuer
Council of the Issuer nor any official shall be liable personally
or be subject to any personal liability or accountability by reason
of the execution of this Bond Purchase Agreement or the issuance or
sale of the Bonds.
d. The Company is entering into a
Continuing Disclosure Agreement dated as of the Closing Date (as
defined in Section 6 hereof) between the Company and the
Trustee (the “Continuing Disclosure Agreement”),
pursuant to which the Company will undertake to provide annual
reports and other documents and notice of certain material events.
The Company also will provide a certificate which states that the
Preliminary Official Statement (as described below) is deemed final
as of its date for purposes of Rule 15c2-12 (“Rule
15c2-12”) under the Exchange Act (hereinafter defined),
except for the information not required to be included therein
under Rule 15c2-12.
2. Official Statement; Deliveries
upon Acceptance; End of the Underwriting Period .
a. The Preliminary Official
Statement, dated March 11, 2009 describing, among other
things, the Issuer, the Bonds, the Loan Agreement, and the
Continuing Disclosure Agreement including the cover page and the
Appendices thereto, as amended to the date hereof, is hereinafter
referred to as the “Preliminary Official Statement.”
The Official Statement, to be dated the date hereof, in
substantially the form of the
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Preliminary Official Statement, with
such changes as may be necessary to conform to the terms of this
Bond Purchase Agreement and as have been mutually agreed to by the
Company and the Underwriters, is hereinafter called the
“Official Statement.” The terms “amendment”
and “supplement” as used in this Bond Purchase
Agreement include, but such terms are not limited to, all documents
filed by the Company with the Securities and Exchange Commission
(the “Commission”) subsequent to the date hereof
pursuant to Sections 13, 14, or 15(d) of the Securities Exchange
Act of 1934 (the “Exchange Act”). The Official
Statement is attached hereto as Exhibit A.
b. Prior to or concurrently with the
acceptance hereof by the Issuer, the Underwriters shall have
obtained or received:
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i.
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copies of all
documents incorporated by reference in the Official Statement
through the date of acceptance hereof by the Issuer;
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ii.
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certified
copies of the Bond Resolution in the form it was adopted;
and
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iii.
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the
Representation and Indemnity Agreement between the Company and the
Issuer and the Underwriters dated the date hereof (the
“Indemnity Agreement”), in substantially the form of
Exhibit B attached hereto.
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c. Unless otherwise notified in
writing by the Underwriters, the Issuer and the Company may assume
that the “end of the underwriting period” for purposes
of Rule 15c2-12 under the Securities Exchange Act of 1934, as
amended (“Rule 15c2-12”), shall be the date of the
Closing (as defined in Section 6 hereof). In the event such
notice is so given in writing by the Underwriters, the Underwriters
agree to notify the Issuer and the Company in writing following the
occurrence of the “end of the underwriting period” for
the Bonds as defined in Rule 15c2-12. The “end of the
underwriting period” as used in this Bond Purchase Agreement
shall mean the date of the Closing (as defined in Section 6
hereof) or such later date as to which notice is given by the
Underwriters in accordance with the preceding sentence.
d. The Official Statement may be
delivered in printed and/or electronic form to the extent permitted
by applicable rules of the Municipal Securities Rulemaking Board
and as may be agreed by the Issuer, the Company and the Senior
Manager. If the Official Statement has been prepared in electronic
form, the Issuer hereby confirms that it does not object to
distribution of the Official Statement in electronic
form.
3. Sale to Underwriters
.
It shall be a condition to the
Issuer’s obligations to sell and deliver the Bonds to the
Underwriters and to the Underwriters’ obligation to purchase,
to accept delivery of and to pay for the Bonds that the entire
principal amount of the Bonds shall be issued, sold and delivered
by the Issuer and purchased, accepted and paid for by the
Underwriters at the Closing.
4. Use of Documents
.
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The Issuer hereby acknowledges the
use by the Underwriters of the Preliminary Official Statement and
the Official Statement including any supplements thereto or
amendments thereof, and the information therein contained in
connection with the public offering and sale of the Bonds. Neither
the Issuer nor any official or employee thereof shall assume or
have any responsibility as to the accuracy or completeness of the
information in the Preliminary Official Statement or the Official
Statement.
5. Representations and Warranties
of the Issuer .
The Issuer hereby represents and
warrants to the Underwriters that the representations and
warranties set forth in Schedule II are true, accurate and complete
on and as of the date of this Bond Purchase Agreement.
6. Closing .
a. At 10:00 a.m., New York City time
on March 26, 2009, or at such other time, date (the
“Closing Date”) and place as shall have been mutually
agreed upon by the Issuer, the Company and the Underwriters (the
“Closing”), subject to the terms and conditions hereof,
the Bonds will be delivered to the Underwriters duly executed and
authenticated, together with the other documents hereinafter
mentioned, and the Underwriters will, subject to the terms and
conditions hereof, accept such delivery and pay the purchase price
of the Bonds as set forth in Section 1 hereof by wire transfer
of Federal or other immediately available funds payable to the
order of the Trustee for the account of the Issuer. The Closing
shall be held at the offices of Katten Muchin Rosenman LLP in Los
Angeles, CA, or such other place as shall have been mutually agreed
upon by the Issuer, the Company and the Underwriters.
b. Delivery of the Bonds shall be
made at The Depository Trust Company (“DTC”), 55 Water
Street, New York, New York 10041, and will be delivered to the
Trustee to be held in its custody pursuant to a FAST Delivery
arrangement with and on behalf of DTC. The Bonds shall be delivered
in fully registered form bearing one or more CUSIP numbers without
coupons and registered in the name of Cede & Co. and shall
be made available to the Underwriters at least one business day
before the Closing for purposes of inspection.
7. Closing Conditions
.
a. The obligations of the
Underwriters to purchase and pay for the Bonds will be subject to
the accuracy of the representations and warranties on the part of
the Issuer in this Bond Purchase Agreement, to the accuracy of the
representations and warranties on part of the Company in the
Indemnity Agreement, to the accuracy of the statements of the
Issuer and Company officers made pursuant to the provisions of this
Bond Purchase Agreement and of the Indemnity Agreement,
respectively, to the performance by the Issuer and the Company of
their obligations hereunder and under the Indemnity Agreement,
respectively, to the satisfaction of the conditions set forth
herein and in the Indemnity Agreement and to the Underwriters
having received, at or prior to the Closing, each of the
following:
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i.
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A copy of the
Official Statement, and any amendment thereof or supplement thereto
through the date of Closing (if any);
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ii.
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An executed
copy of each of the Indenture, the Loan Agreement, the Escrow
Agreement, dated as of March 26, 2009 (the “Escrow
Agreement”) between the Company and Union Bank, N.A. as
trustee for the Prior Bonds, and the Continuing Disclosure
Agreement which shall have been executed and delivered by the
parties thereto in substantially the same form as the drafts
referenced herein, with such changes (1) as shall have been
previously furnished to the Underwriters and (2) as to which
the Senior Manager shall not have reasonably objected;
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iii.
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Opinions, dated
the date of Closing, of (1) Ryley Carlock &
Applewhite, Issuer’s counsel; (2) Katten Muchin Rosenman
LLP, bond counsel; (3) Davis Polk & Wardwell, counsel
to the Company; (4) Perkins Coie Brown & Bain,
Arizona counsel to the Company; (5) Clark, Thomas &
Winters, a Professional Corporation, Texas counsel to the Company;
(6) White & Case LLP, FERC counsel to the Company;
(7) Randall W. Childress, P.C., New Mexico counsel to the
Company, and (8) Squire, Sanders & Dempsey L.L.P.,
counsel to the Underwriters, in each case in such form as shall
have been approved by the Underwriters;
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iv.
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A reliance
letter, dated the date of Closing, from Katten Muchin Rosenman LLP,
bond counsel, addressed to the Underwriters, to the effect that the
Underwriters may rely on their opinion relating to the Bonds, a
form of which is attached to the Official Statement as Exhibit B,
as if such opinion had been addressed to the
Underwriters;
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v.
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Certified
copies of the Bond Resolution and all other resolutions of the
Issuer relating to the Bonds;
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vi.
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A certificate or certificates,
dated the date of Closing, of the President of the Issuer or other
duly authorized officer or official of the Issuer satisfactory to
the Senior Manager and counsel to the Underwriters, to the effect
that: (1) each of the representations and warranties set forth
in Schedule II is true, accurate and complete, in all material
respects, on and as of the date of the Closing and the Issuer has
duly performed all of its obligations herein to be performed at or
prior to the Closing; and (2) the Bonds, and each of the
agreements of the Issuer set forth in this Bond Purchase Agreement
to be complied with at or prior to the Closing, as executed by the
Issuer, are in the form or in substantially the form
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approved for such execution by
appropriate proceedings of the Issuer;
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vii.
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A certificate,
dated the date of Closing, signed by an Authorized Borrower
Representative, as defined in the Indenture, of the Company to the
effect that (1) each of the representations and warranties set
forth in Schedule I is true, accurate and complete, in all material
respects, on and as of the date of the Closing; and (2) each
of the agreements of the Company to be complied with and each of
the obligations to be performed by the Company pursuant to the
Indemnity Agreement, the Loan Agreement, the Escrow Agreement, and
the Continuing Disclosure Agreement on or before the date of the
Closing have been complied with and performed;
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viii.
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Evidence that
the Bonds shall have received a long-term rating from
Standard & Poor’s Corporation and Moody’s
Investors Services Inc. of BBB and Baa, respectively, or
better;
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ix.
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A certificate
as to arbitrage, dated the date of the Closing, executed by an
authorized officer of the Issuer as to such matters as are required
by Bond Counsel to render its opinion as to the exclusion from
gross income for Federal income tax purposes of interest on the
Bonds;
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x.
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A letter or
letters, dated the date of the Closing, of the Company confirming
and acknowledging certain of the facts required for the certificate
as to arbitrage required by clause (ix) of this
Section 7(a);
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xi.
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Such additional
certificates, opinions and other documents as the Underwriters may
reasonably request to evidence the due satisfaction at or prior to
such time of all conditions then to be satisfied in connection with
the transactions contemplated hereby;
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b. The Underwriters shall have
received, at the Closing Date, “an agreed upon
procedure” letter dated the Closing Date, in form and
substance satisfactory to the Senior Manager from KPMG, LLP,
independent public accountants, containing the information and
statements of the type ordinarily included in such “agreed
upon procedure” letters dated the Closing Date;
c. All of the opinions, letters,
certificates, instruments and other documents mentioned above or
elsewhere in this Bond Purchase Agreement or in the Indemnity
Agreement shall be deemed to be in compliance with the provisions
hereof if, but only if, they are in form and substance reasonably
satisfactory to the Senior Manager; and
d. If the conditions to the
obligations of the Underwriters to purchase, to accept delivery of
and to pay for the Bonds contained in this Bond Purchase
Agreement
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are not satisfied, or if the
obligations of the Underwriters to purchase, to accept delivery of
and to pay for the Bonds shall be terminated for any reason
permitted by this Bond Purchase Agreement, this Bond Purchase
Agreement shall terminate and neither the Underwriters nor the
Issuer shall be under any further obligation hereunder, except that
the obligations of the Underwriters set forth in Section 11
hereof shall continue in full force and effect.
8. Termination . The
Underwriters shall have the right to terminate in their absolute
discretion the Underwriters’ obligations under this Bond
Purchase Agreement to purchase, to accept delivery of and to pay
for the Bonds by the Senior Manager notifying the Company and the
Issuer of their election to do so if, after the execution hereof
and prior to the Closing:
a. legislation (including any
amendment thereto) shall have been introduced in or adopted by
either House of the Congress of the United States or recommended to
the Congress or otherwise endorsed for passage by the President of
the United States, the Treasury Department of the United States,
the Internal Revenue Service or the Chairman or ranking minority
member of the Committee on Finance of the United States Senate or
the Committee on Ways and Means of the United States House of
Representatives, or legislation is proposed for consideration by
either such committee by any member thereof or presented as an
option for consideration by either such committee by the staff of
such committee, or by the staff of the Joint Committee on Taxation
of the Congress of the United States, or a bill to amend the
Internal Revenue Code (which, if enacted, would be effective as of
a date prior to the Closing) shall be filed in either house, or
(ii) a decision shall have been rendered by a court
established under Article II of the Constitution of the United
States, by the United States Tax Court, or by an Arizona State or
local court, or (iii) an order, filing, ruling or regulation
shall have been issued or proposed by or on behalf of the Treasury
Department of the United States or the Internal Revenue Service or
any other agency of the United States, or (iv) a release or
official statement shall have been issued by the President of the
United States or by the Treasury Department of the United States or
by the Internal Revenue Service, the effect of which, in any such
case described in clause (i), (ii), (iii), or (iv), would be to
impose, directly or indirectly, federal income taxation upon
interest received on obligations of the general character of the
Bonds or upon income of the general character to be derived by the
Issuer, other than as imposed on the Bonds under the federal tax
laws in effect on the date hereof, in such a manner as in the
judgment of the Senior Manager would make it impracticable to
market the Bonds on the terms and in the manner contemplated in the
Official Statement;
b. any action shall have been taken
by the Commission or by a court which would require registration of
any security under the Securities Act of 1933 (the
“Securities Act”), or qualification of any indenture
under the Trust Indenture Act of 1939 (the “Trust Indenture
Act”), in connection with the public offering of the Bonds,
or any action shall have been taken by any court or by any
governmental authority suspending the use of the Official Statement
or any amendment or supplement thereto, or any proceeding for that
purpose shall have been initiated or threatened in any such court
or by any such authority;
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c.(i) the Constitution of the State
of Arizona shall be amended or an amendment shall be proposed, or
(ii) legislation shall be enacted, or (iii) a decision
shall have been rendered as to matters of Arizona law, or
(iv) any order, ruling or regulation shall have been issued or
proposed by or on behalf of the State of Arizona by an official,
agency or department thereof, affecting, in each case, the tax
status of the Issuer, its property or income, its notes or bonds
(including the Bonds) or the interest thereon, which in the
judgment of the Senior Manager would make it impracticable to sell
the Bonds on the terms and in the manner contemplated in the
Official Statement;
d. any fact or event shall exist or
have existed that, in the judgment of the Senior Manager, requires
or has required an amendment of or supplement to the Official
Statement;
e.(i) trading generally shall have
been suspended or materially limited on or by, as the case may be,
any of the New York Stock Exchange, Inc., the American Stock
Exchange, the National Association of Securities Dealers, Inc., the
Chicago Board Options Exchange, the Chicago Mercantile Exchange or
the Chicago Board of Trade, (ii) trading of any securities of
the Issuer or the Company shall have been suspended on any exchange
or in any over-the-counter market, (iii) a general moratorium
on commercial banking activities in New York shall have been
declared by either Federal or New York State authorities, or
(iv) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national
emergency or war or other calamity or crisis the effect of which on
financial markets is such as to make it, in the sole judgment of
the Senior Manager, impractical or inadvisable to proceed with the
offering or delivery of the Bonds as contemplated by the Official
Statement;
f. there shall have occurred any
downgrading, or any notice shall have been given of any intended or
potential downgrading or negative change in the rating accorded any
of the Company’s obligations (including the rating to be
accorded the Bonds) by any “nationally recognized statistical
rating organization”, as such term is defined for purposes of
Rule 436(g)(2) under the Securities Act;
g. legislation shall have been
enacted by the federal government or the State of Arizona, a
decision of any federal or State of Arizona court shall have been
made, or a ruling or regulation (proposed, temporary or final) of
the Commission or other governmental agency shall have been made or
issued that, in the reasonable opinion of counsel for the
Underwriters, has the effect of requiring the contemplated
distribution of the Bonds or any agreement offered in connection
therewith to be registered under the Securities Act or the
Indenture to be qualified under the Trust Indenture Act;
or
h. legislation shall have been
enacted by the federal government or the State of Arizona, a
decision of any federal or State of Arizona court shall have been
made, or a ruling or regulation (proposed, temporary or final) of
any governmental authority, board, agency or commission shall have
been made or issued that, in the reasonable opinion of counsel for
the Underwriters, prohibits the purchase of and payment for the
Bonds by the Underwriters, or the sale of the Bonds by the
Underwriters, on the terms and conditions herein
provided.
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9. Conditions of the
Issuer’s Obligation . The Issuer’s obligation to
deliver the Bonds is subject to the performance of the obligations
of the Underwriters hereunder, and is also subject to the following
conditions:
a. As of the Closing, no litigation
shall be pending or, to the knowledge of the President of the
Issuer, threatened against the Issuer to restrain or enjoin the
issuance or sale of the Bonds or in any way affecting any authority
for or the validity of the Bonds, the Indenture or the Loan
Agreement.
b. As of the Closing, the Issuer
shall receive and be entitled to rely upon the certificate of the
Company referred to in clause (vii) of Section 7(a) of
this Bond Purchase Agreement and shall have received and be
entitled to rely upon the opinions of Katten Muchin Rosenman LLP as
bond counsel; Squire, Sanders & Dempsey L.L.P. as counsel
to the Underwriters; Davis Polk & Wardwell, counsel to the
Company; Clark, Thomas & Winters, a Professional
Corporation, Texas counsel to the Company; Perkins Coie
Brown & Bain, Arizona counsel to the Company;
White & Case LLP, FERC counsel to the Company; and Randall
W. Childress, P.C., New Mexico counsel, all pursuant to clause
(iii) of Section 7(a) of this Bond Purchase Agreement,
and also shall have received the opinion of its counsel, Ryley
Carlock & Applewhite.
c. All opinions, certificates and
other documents relating to the participation by the Issuer in the
transactions contemplated by this Bond Purchase Agreement shall be
satisfactory in form and substance to the Issuer and its
counsel.
d. As of the Closing, the Issuer
shall receive and be entitled to rely upon such additional opinions
and certificates as it may reasonably request.
e. The Indenture shall be
effective.
f. If any condition to the
obligations of the Issuer contained in this Bond Purchase Agreement
to be satisfied at or prior to the Closing is not so satisfied, the
Issuer may, in its discretion, waive such condition or may
terminate this Bond Purchase Agreement, and if this Bond Purchase
Agreement is so terminated, or if the obligations of the Issuer
shall be terminated for any other reason permitted by this Bond
Purchase Agreement, neither the Underwriters nor the Issuer shall
have any further obligations hereunder.
10. Expenses.
a. The Underwriters and the Issuer
shall be under no obligation to pay, and the Company shall pay as
provided in the Indemnity Agreement, any expenses incident to the
performance of the Issuer’s obligations hereunder and to the
issue, sale and delivery of the Bonds to the Underwriters,
including, but not limited to (i) the cost of the preparation,
printing and delivery of the Preliminary Official Statement and the
Official Statement; (ii) the cost of preparation, printing and
delivery of the Loan Agreement, the Indemnity Agreement, the
Indenture, the Escrow Agreement, the Continuing Disclosure
Agreement and all related documents and preparation and delivery of
the Bonds; (iii) the reasonable fees and expenses of Katten
Muchin Rosenman LLP, bond counsel; (iv) the
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reasonable fees and expenses of
Squire, Sanders & Dempsey L.L.P., counsel to the
Underwriters; (v) the reasonable fees and expenses of Davis
Polk & Wardwell, counsel to the Company; (vi) the
reasonable fees and expenses of Ryley Carlock &
Applewhite, counsel to the Issuer; (vii) the reasonable fees
and expenses of Perkins Coie Brown & Bain for their
services as Arizona counsel to the Company; (viii) the
reasonable fees and expenses of Clark, Thomas & Winters, a
Professional Corporation, for their services as Texas counsel to
the Company; (ix) the reasonable fees and expenses of
White & Case LLP, FERC counsel to the Company,
(x) the reasonable fees and expenses of Randall W. Childress,
P.C., New Mexico counsel to the Company, (xi) the reasonable
fees and expenses of KPMG, LLP for its services as the independent
accountants of the Company; (xii) the fees, if any, for bond
ratings; (xiii) compensation to the Underwriters in connection
with the offering and sale of the Bonds in the amount of
$1,257,500, payable to the order of the Senior Manager and
delivered on the Closing Date in immediately available funds by
wire transfer of federal or other immediately available funds;
(xiv) the fee, if any, of DTC; (xv) the fees and expenses
incurred in any qualification of the Bonds for sale under the
securities laws of such jurisdictions as the Senior Manager may
designate and in continuing such qualification in effect and
(xvi) the fees and expenses of the Trustee and the Company.
The Company shall pay for all expenses (included in the expense
component of the spread) incurred on behalf of the Issuer’s
employees which are incidental to implementing this Bond Purchase
Agreement, including but not limited to, meals, transportation,
lodging and entertainment of employees.
b. The Underwriters shall be
reimbursed for all reasonable out-of-pocket expenses incurred by
them in connection with the public offering of the Bonds (excluding
the fees and expenses of Squire, Sanders & Dempsey L.L.P.,
which the Company has agreed to pay pursuant to clause (iv) of
Section 10(a) hereof and Section 5(i) of the Indemnity
Agreement).
c. If this Bond Purchase Agreement
shall be terminated by the Underwriters because of any failure or
refusal on the part of the Issuer to comply with the terms or to
fulfill any of the conditions of this Bond Purchase Agreement, or
if for any reason the Issuer shall be unable to perform its
obligations under this Bond Purchase Agreement, the Company as
provided in the Indemnity Agreement will reimburse the Underwriters
for all out-of-pocket expenses (including the reasonable fees and
expenses of their counsel) reasonably incurred by the Underwriters
in connection with this Bond Purchase Agreement or the offering
contemplated hereunder.
11. Indemnification
.
a. Each Underwriter severally and
not jointly agrees to indemnify and hold harmless the Issuer, each
of its officials, directors, officers and employees, and each
person who controls the Issuer within the meaning of either the
Securities Act or the Exchange Act, but only with reference to
written information relating to such Underwriter furnished to the
Issuer by or on behalf of such Underwriter through the Senior
Manager on behalf of the Underwriters specifically for inclusion in
the Official Statement (or in any amendment or supplement thereto).
This indemnity agreement will
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be in addition to any liability
which any Underwriter may otherwise have. The Issuer acknowledges
that the statements set forth in the inside cover page regarding
the delivery of the Bonds, the legend in block capital letters and
the related disclosure therein concerning stabilization and, under
the heading “UNDERWRITING”, and the paragraph related
to stabilization in the Official Statement, constitute the only
information furnished in writing by or on behalf of the
Underwriters for inclusion in the Official Statement (or in any
amendment or supplement thereto).
b. Promptly after receipt by an
indemnified party under this Section 11 of notice of the
commencement of any action, such indemnified party will, if a claim
in respect thereof is to be made against the indemnifying party
under this Section 11, notify the indemnifying party in
writing of the commencement thereof; but the failure so to notify
the indemnifying party (i) will not relieve it from liability
under paragraph (a) above unless and to the extent it did not
otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and
defenses; and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraph
(a) above. The indemnifying party shall be entitled to appoint
counsel of the indemnifying party’s choice at the
indemnifying party’s expense to represent the indemnified
party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for
the fees and expenses of any separate counsel retained by the
indemnified party or parties except as set forth below); provided,
however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party’s election to
appoint counsel to represent the indemnified party in an action,
the indemnified party shall have the right to employ separate
counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate
counsel if (i) the use of counsel chosen by the indemnifying
party to represent the indemnified party would present such counsel
with a conflict of interest; (ii) the actual or potential
defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified
party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying
party; (iii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the
institution of such action; or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at
the expense of the indemnifying party. An indemnifying party will
not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may
be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such
claim, action, suit or proceeding.
12. Notices . Any notice or
other communication to be given to the Issuer under this Bond
Purchase Agreement may be given by delivering the same in writing
to Maricopa County,
11
Arizona Pollution Control Corporation c/o Ryley
Carlock & Applewhite, One North Central Avenue, Suite
1200, Phoenix, Arizona 85004, Attention: President and any notice
or other communication to be given to the Underwriters under this
Bond Purchase Agreement may be given by delivering the same in
writing to the Senior Manager at 383 Madison Avenue, 23rd Floor,
New York, New York 10179, Attention: Ivan Naguit, Executive
Director.
13. Parties in Interest .
This Bond Purchase Agreement as heretofore specified shall
constitute the entire agreement between us and is made solely for
the benefit of the Issuer, the Underwriters (including successors
or assigns of the Underwriters) and no other person shall acquire
or have any right hereunder or by virtue hereof. No purchaser of
any of the Bonds from the Underwriters shall be construed a
successor or assign merely by reason of such purchase. This Bond
Purchase Agreement may not be assigned by the Issuer or the
Underwriters. All of the Issuer’s representations, warranties
and agreements contained in this Bond Purchase Agreement shall
remain operative and in full force and effect regardless of
(i) any investigations made by or on
