EXHIBIT 4.23
EXECUTION COPY
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TENDER AGREEMENT
Between
EL PASO ELECTRIC COMPANY
and
XXXXX XXXXXX 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 as of August 1, 2002
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TENDER AGREEMENT
THIS TENDER AGREEMENT is dated as of August 1, 2002 (the "Agreement"),
between EL PASO ELECTRIC COMPANY, a corporation organized and existing under the
laws of the State of Texas (the "Company"), and XXXXXXX XXXXX BARNEY (the
"Tender Agent"). Capitalized terms used herein and not otherwise defined shall
have the meaning given to such terms in the Ordinance (defined below).
W I T N E S S E T H :
WHEREAS, at the request of the Company, the City of Farmington (the "City")
adopted on July 9, 2002 the City's Ordinance No. 2002-1134 ("Ordinance No.
94-1018"), as supplemented by Resolution No. 2002-1046 adopted July 23, 2002
(the "Resolution", and together with Ordinance No. 2002-1134, the "Ordinance")
(as amended and supplemented, the "Ordinance"), JPMorgan Chase Bank has accepted
its appointment as trustee under the Ordinance (the "Trustee"), and the
Ordinance provides that owners of the $33,300,000 principal amount of the City's
Pollution Control Revenue Refunding Bonds, 2002 Series A (El Paso Electric
Company, Four Corners Project) due June 1, 2032 (the "Bonds") may deliver their
Bonds (or portions thereof) to the Tender Agent for purchase in accordance with
the Ordinance;
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 Xxxxxxx Xxxxx Xxxxxx, 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 the tender agent under the Ordinance.
Section 2. Compensation paid by the Company to the Tender Agent for
services rendered hereunder as Tender Agent shall be at such rate as the parties
hereto may from time to time agree.
Section 3. The Tender Agent represents that it is a corporation duly
organized under the laws of the United States of America or any state or
territory thereof, having a combined capital stock, surplus and undivided
profits of at least $25,000,000 and authorized by law to perform all the duties
imposed upon it hereunder and under the Ordinance.
Section 4. (a) The Tender Agent may at any time resign and be discharged of
its duties and obligations hereunder and under the Ordinance by giving at least
thirty (30) days' notice to the City, the Company, the Trustee and the
Remarketing Agent. Such resignation shall take effect on the day a successor
Tender Agent shall have been appointed by the Company and shall have accepted
such appointment.
(b) The Tender Agent may be removed at any time by an instrument
signed by the Company, filed with the Tender Agent, the City, the Trustee and
the Remarketing Agent.
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(c) In the event of the resignation or removal of the Tender Agent,
the Tender Agent shall deliver any Bonds and moneys held by it in such capacity
to its successor or, if there is no successor, to the Trustee.
Section 5. At any time the Tender Agent may consult counsel for the Company
or its own counsel in respect of any matter arising in connection with the
agency hereunder, and it shall not be liable or accountable for any action taken
or omitted by it in good faith in accordance with the opinion of such counsel.
Section 6. The Tender Agent shall be protected:
(a) in acting upon any paper or document reasonably believed by it to
be genuine and to have been signed by the proper person or persons; and
(b) in recognizing Bonds which it reasonably believes to bear the
proper manual or facsimile signatures of the officers of the City.
The Tender Agent shall not be held to have notice of any change of
authority of any officer, employee or agent of the Company until receipt of
written notification thereof from the Company.
Section 7. The following sections of the Remarketing Agreement are hereby
incorporated into this Agreement and all references to the "Agent" in those
sections shall be deemed to refer to the Tender Agent:
(a) Section 3, Representations, Warranties, Covenants and Agreements
of the Company; and
(b) Section 4, Conditions to Agent's Obligations.
Section 8. The indemnification provisions, Section 7, of the Remarketing
Agreement are hereby incorporated in full into this Agreement.
Section 9. The principal office of the Tender Agent is hereby designated to
be:
Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Municipal Syndicate Operations
Section 10. This Agreement may be amended in any respect but only by
written agreement of the parties hereto, subject to the limitations upon such
amendments set forth in the Ordinance.
Section 11. This Agreement may be executed in any number of counterparts,
each of which, when so executed and delivered, shall be an original; but such
counterparts shall together constitute but one and the same Agreement.
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Section 12. If any clause, provision or section of this Agreement be held
illegal or invalid by any court, the invalidity of such clause, provision or
section shall not affect any of the remaining clauses, provisions or sections
hereof, and this Agreement shall be construed and enforced as if such illegal or
invalid clause, provision or section had not been contained herein. In case any
agreement or obligation contained in this Agreement shall be held to be in
violation of law, then such agreement or obligation shall be deemed to be the
agreement or obligation of the City or the Company, as the case may be, to the
full extent permitted by law.
Section 13. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Tender
Agreement to be duly executed as of the date first above written.
EL PASO ELECTRIC COMPANY
By /s/ Xxxxxxx Xxxx
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Name: Xxxxxxx Xxxx
Title: Treasurer
XXXXXXX XXXXX XXXXXX
By /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Director
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