SUPPLEMENTAL REMARKETING AGREEMENT
EXHIBIT
1.1
EXECUTION COPY
May 6,
0000
|
Xxxx
xx Xxxxxxx Securities LLC
Hearst
Tower
000
Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000
|
Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
0
Xxxxx Xxxxxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
|
Xxxxxx
Brothers Inc.
000
Xxxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
Xxxxxx
Xxxxxxx & Co. Incorporated
0000
Xxxxxxxx, Xxxxx 00
Xxx
Xxxx, Xxx Xxxx 00000
|
|
Citigroup
Global Markets Inc.
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
RBC
Capital Markets Corporation
Three
World Financial Center
000
Xxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx, XX 00000
|
|
Deutsche
Bank Securities Inc.
00
Xxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
Wachovia
Capital Markets, LLC
One
Wachovia Center, DC-6
000
Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000
|
|
X.X.
Xxxxxx Securities Inc.
000
Xxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
Wedbush
Xxxxxx Securities Inc.
0000
Xxxxxxxx Xxxxxxxxx
Xxx
Xxxxxxx, Xxxxxxxxxx 00000
|
|
The
Bank of New York
000
Xxxxxxx Xxxxxx, 0X
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Corporate Trust Division – Corporate Finance Unit
|
Ladies
and Gentlemen:
This
Supplemental Remarketing Agreement is dated as of May 6, 2008 (this “Agreement”) by
and among PNM Resources, Inc., a New Mexico corporation (the “Company”), Banc of
America Securities LLC, Citigroup Global Markets Inc., Deutsche Bank Securities
Inc., X.X. Xxxxxx Securities Inc., Xxxxxx Brothers Inc., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, Xxxxxx Xxxxxxx & Co.
Incorporated, RBC Capital Markets Corporation, Wachovia Capital Markets, LLC and
Wedbush Xxxxxx Securities Inc., as the reset agents and the remarketing agents
(together, the “Remarketing Agents”),
and The Bank of New York, a New York banking corporation (as successor to
JPMorgan Chase Bank, N.A.), not individually but solely as Purchase Contract
Agent (the “Purchase
Contract Agent”) and as attorney-in-fact of the holders of Purchase
Contracts (as defined in the Purchase Contract and Pledge Agreement referred to
below). This Agreement amends and supplements the Remarketing
Agreement, dated as of March 30, 2005, by and among the Company, the Remarketing
Agents and the Purchase Contract Agent.
Section
1. Definitions. (a)
Capitalized terms used and not defined in this Agreement shall have the meanings
set forth in the Purchase Contract and Pledge Agreement, dated as of March 30,
2005, among the Company, the Purchase Contract Agent and U.S. Bank Trust
National Association, as Collateral Agent, Custodial Agent and Securities
Intermediary, as amended from time to time (the “Purchase Contract and Pledge
Agreement”).
(b) As used
in this Agreement, the following terms have the following meanings:
“Applicable Time”
means the time on the applicable Remarketing Date when there is a Successful
Remarketing in accordance with this Agreement.
“Agreement” has the
meaning specified in the first paragraph of this Agreement.
“Additional Notes”
means the additional Senior Notes (that are not Remarketed Senior Notes) issued
pursuant to the Indenture, as supplemented by the First Supplemental Indenture
and the Second Supplemental Indenture, on May 16, 2008.
“Commission” means the
Securities and Exchange Commission.
“Company” has the
meaning specified in the first paragraph of this Agreement.
“Effective Date” means
any date as of which any part of such registration statement or post effective
amendment thereto relating to the Remarketed Senior Notes became, or is deemed
to have become, effective under the Securities Act in accordance with the Rules
and Regulations (including pursuant to Rule 430B of the Rules and
Regulations).
“Exchange Act” means
the Securities Exchange Act of 1934, as amended.
“Final Remarketing”
has the meaning specified in Section 2(b).
“Final Remarketing
Date” has the meaning specified in Section 2(b).
“Final Term Sheet”
means the term sheet prepared in connection with the Remarketing of the
Remarketed Senior Notes and the Company’s simultaneous offering of Additional
Notes pursuant to Section 5(a)(1) of this Agreement and substantially in the
form attached in Schedule 3 hereto.
“First Supplemental
Indenture” means Supplemental Indenture No. 1, dated as of March 30,
2005, to the Indenture, between the Company and the Trustee.
“Indenture” means the
Indenture dated as of March 15, 2005 between the Company and the
Trustee.
“Initial Remarketing”
has the meaning specified in Section 2(a).
“Initial Remarketing
Date” has the meaning specified in Section 2(a).
“Issuer Free Writing
Prospectus” means each “free writing prospectus” (as defined in Rule 405
of the Rules and Regulations) prepared by or on behalf of the Company or used or
referred to by the Company in connection with the Remarketing of the Remarketed
Senior Notes, including the Final Term Sheet.
“Material Adverse
Effect” has the meaning specified in Section 3(j).
“Preliminary
Prospectus” means any prospectus included in such registration statement
or filed with the Commission pursuant to Rule 424(b) of the Rules and
Regulations, including any preliminary prospectus supplement thereto, relating
to the Remarketed Senior Notes, other than a Prospectus.
“Pricing Disclosure
Package” means, as of the Applicable Time, the most recent Preliminary
Prospectus, together with the information included on Schedule 2 and each Issuer
Free Writing Prospectus filed or used by the Company on or before the Applicable
Time, other than a road show that is an Issuer Free Writing Prospectus under
Rule 433 of the Rules and Regulations.
“Prospectus” means the
final prospectus, including any prospectus supplement thereto, relating to the
Remarketed Senior Notes, as filed with the Commission pursuant to Rule 424(b) of
the Rules and Regulations.
“Purchase Contract and Pledge
Agreement” has the meaning specified in Section 1(a).
“Registration
Statement” means, collectively, the various parts of such registration
statement, each as amended as of the Effective Date for such part, including any
Preliminary Prospectus or the Prospectus and all exhibits to, and documents
incorporated by reference in, such registration statement.
“Remarketed Senior
Notes” means the Senior Notes (i) issued pursuant to the Indenture, as
supplemented by the First Supplemental Indenture and the Second Supplemental
Indenture, that are (ii) underlying the Pledged Applicable Ownership Interests
in Senior Notes and the Separate Senior Notes, if any, subject to Remarketing as
identified to the Remarketing Agents by the Purchase Contract Agent and the
Custodial Agent, respectively, promptly after 5:00 p.m., New York City time, on
the sixth Business Day immediately preceding the Purchase Contract Settlement
Date, and shall include: (a) the Senior Notes underlying the Pledged Applicable
Ownership Interests in Senior Notes of the Holders of Corporate Units who have
not notified the Purchase Contract Agent prior to 5:00 p.m., New York City time,
on the seventh Business Day immediately preceding the Purchase Contract
Settlement Date of their intention to effect a Cash Settlement of the related
Purchase Contracts pursuant to the terms of the Purchase Contract and Pledge
Agreement or who have so notified the Purchase Contract Agent but failed to make
the required cash payment prior to 5:00 p.m., New York City time, on the sixth
Business Day immediately preceding the Purchase Contract Settlement Date
pursuant to the terms of the Purchase Contract and Pledge Agreement, and (b) the
Separate Senior Notes of the holders of Separate Senior Notes, if any, who have
elected to have their Separate Senior Notes remarketed in such Remarketing prior
to 5:00 p.m., New York City time, on the seventh Business Day immediately
preceding the Purchase Contract Settlement Date pursuant to the terms of the
Purchase Contract and Pledge Agreement.
“Remarketing” means
the remarketing of the Remarketed Senior Notes pursuant to this Agreement on any
Remarketing Date.
“Remarketing Fee” has
the meaning specified in Section 4.
“Remarketing
Materials” means the Registration Statement, the Preliminary Prospectus,
the Prospectus or any other information furnished by the Company to the
Remarketing Agents for distribution to investors in connection with the
Remarketing.
“Remarketing Settlement
Date” means the Purchase Contract Settlement Date.
“Reset Rate” has the
meaning specified in Section 2(c).
“Second Remarketing”
has the meaning specified in Section 2(b).
“Second Remarketing
Date” has the meaning specified in Section 2(b).
“Second Supplemental
Indenture” means Supplemental Indenture No. 2, dated as of May 16, 2008,
to the Indenture, between the Company and the Trustee.
“Securities” has the
meaning specified in Section 10.
“Securities Act” means
the Securities Act of 1933, as amended.
“Significant
Subsidiaries” has the meaning specified in Section 3(j).
“Transaction
Documents” means this Agreement, the Remarketing Agreement, the Purchase
Contract and Pledge Agreement, the Indenture, the First Supplemental Indenture
and the Second Supplemental Indenture, in each case as amended or supplemented
from time to time.
“Trustee” means The
Bank of New York Trust Company, N.A. (as successor to JPMorgan Chase Bank,
N.A.), as trustee under the Indenture.
Section
2. Appointment and Obligations
of the Remarketing Agents. The
Company hereby appoints Banc of America Securities LLC, Citigroup Global Markets
Inc., Deutsche Bank Securities Inc., X.X. Xxxxxx Securities Inc., Xxxxxx
Brothers Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, Xxxxxx Xxxxxxx & Co. Incorporated, RBC Capital Markets
Corporation, Wachovia Capital Markets, LLC and Wedbush Xxxxxx Securities Inc. as
the exclusive Remarketing Agents, and, subject to the terms and conditions set
forth herein, Banc of America Securities LLC, Citigroup Global Markets Inc.,
Deutsche Bank Securities Inc., X.X. Xxxxxx Securities Inc., Xxxxxx Brothers
Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxx Xxxxxxx
& Co. Incorporated, RBC Capital Markets Corporation, Wachovia Capital
Markets, LLC and Wedbush Xxxxxx Securities Inc. hereby accept appointment as
Remarketing Agents, for the purpose of (i) remarketing the Remarketed Senior
Notes on behalf of the holders thereof, (ii) determining, in consultation with
the Company, in the manner provided for herein and in the Purchase Contract and
Pledge Agreement and the Indenture, the Reset Rate for the Remarketed Senior
Notes, and (iii) performing such other duties as are assigned to the Remarketing
Agents in the Transaction Documents.
(a) Unless a
Special Event Redemption or a Termination Event has occurred prior to such date,
on the fifth Business Day immediately preceding the Purchase Contract Settlement
Date (the “Initial
Remarketing Date”), the Remarketing Agents shall use their reasonable
efforts to remarket (the “Initial Remarketing”)
the Remarketed Senior Notes at the Remarketing Price.
(b) In the
case of a Failed Remarketing on the Initial Remarketing Date and unless a
Special Event Redemption or a Termination Event has occurred prior to such date,
on the fourth Business Day immediately preceding the Purchase Contract
Settlement Date (the “Second Remarketing
Date”), the Remarketing Agents shall use their reasonable efforts to
remarket (the “Second
Remarketing”) the Remarketed Senior Notes at the Remarketing Price. In
the case of a Failed Remarketing on the Second Remarketing Date and unless a
Special Event Redemption or a Termination Event has occurred prior to such date,
on the third Business Day immediately preceding the Purchase Contract Settlement
Date (the “Final
Remarketing Date”), the Remarketing Agents shall use their reasonable
efforts to remarket (the “Final Remarketing”)
the Remarketed Senior Notes at the Remarketing Price. It is understood and
agreed that the Remarketing on any Remarketing Date will be considered
successful and no further attempts will be made if the resulting proceeds are at
least equal to the Remarketing Price.
(c) In
connection with each Remarketing, the Remarketing Agents shall determine, in
consultation with the Company, the rate per annum, rounded to the nearest
one-thousandth (0.001) of one percent per annum, that the Remarketed Senior
Notes should bear (the “Reset Rate”) in order
for the Remarketed Senior Notes to have an aggregate offering price equal to the
Remarketing Price and that in the sole reasonable discretion of the Remarketing
Agents will enable them to remarket all of the Remarketed Senior Notes at the
Remarketing Price in such Remarketing; provided that such rate shall
not exceed the maximum interest rate permitted by applicable law.
(d) If, by
4:00 p.m., New York City time, on the applicable Remarketing Date, (1) the
Remarketing Agents are unable to remarket all of the Remarketed Senior Notes,
other than to the Company, at the Remarketing Price pursuant to the terms and
conditions hereof or (2) the Remarketing did not occur on such Remarketing Date
because one of the conditions set forth in Section 6 hereof was not satisfied, a
Failed Remarketing shall be deemed to have occurred, and the Remarketing Agents
shall so advise by telephone (promptly confirmed in writing) the Depositary, the
Purchase Contract Agent, the Collateral Agent and the Company. Whether or not
there has been a Failed Remarketing will be determined in the sole reasonable
discretion of the Remarketing Agents.
(e) In the
event of a Successful Remarketing, by approximately 4:30 p.m., New York City
time, on the applicable Remarketing Date, the Remarketing Agents shall advise,
by telephone (promptly confirmed in writing in the case of clause
(1)):
(1) the
Depositary, the Purchase Contract Agent, the Trustee and the Company of the
Reset Rate determined by the Remarketing Agents in such Remarketing and the
number of Remarketed Senior Notes sold in such Remarketing;
(2) each
purchaser (or the Depositary Participant thereof) of Remarketed Senior Notes of
the Reset Rate and the number of Remarketed Senior Notes such purchaser is to
purchase;
(3) each such
purchaser (if other than a Depositary Participant) to give instructions to its
Depositary Participant to pay the purchase price on the Remarketing Settlement
Date in same day funds against delivery of the Remarketed Senior Notes purchased
through the facilities of the Depositary; and
(4) each such
purchaser (or Depositary Participant thereof) that the Remarketed Senior Notes
will not be delivered until the Remarketing Settlement Date, and, in the case of
the Initial Remarketing Date or the Second Remarketing, the Remarketing
Settlement Date will be five Business Days or four Business Days, respectively,
following the date of such Remarketing and that if such purchaser wishes to
trade the Remarketed Senior Notes that it has purchased prior to the third
Business Day preceding the Remarketing Settlement Date, such purchaser will have
to specify an alternative settlement cycle at the time of any such trade to
prevent failed settlement.
The
Remarketing Agents shall also, if required by the Securities Act, deliver, in
conformity with the requirements of the Securities Act, to each purchaser a
Prospectus in connection with the Remarketing.
(f) The
proceeds from a Successful Remarketing (i) with respect to the Senior Notes
underlying the Applicable Ownership Interests in Senior Notes that are
components of the Corporate Units shall be paid to the Collateral Agent in
accordance with Section 5.02 of the Purchase Contract and Pledge Agreement and
(ii) with respect to the Separate Senior Notes, shall be paid to the Custodial
Agent for payment to the holders of such Separate Senior Notes in accordance
with Section 5.02 of the Purchase Contract and Pledge Agreement.
(g) The right
of each holder of Remarketed Senior Notes to have such Remarketed Senior Notes
remarketed and sold on any Remarketing Date shall be subject to the conditions
that (i) the Remarketing Agents conduct (A) an Initial Remarketing, (B) a Second
Remarketing in the event of a Failed Remarketing on the Initial Remarketing Date
and (C) a Final Remarketing in the event of a Failed Remarketing on the Second
Remarketing Date, each pursuant to the terms of this Agreement, (ii) neither a
Special Event Redemption nor a Termination Event has occurred prior to such
Remarketing Date, (iii) the Remarketing Agents are able to find a purchaser or
purchasers for Remarketed Senior Notes at the Remarketing Price based on the
Reset Rate, and (iv) such purchaser or purchasers of the Remarketed Senior Notes
deliver the purchase price therefor to the Remarketing Agents as and when
required.
(h) It is
understood and agreed that the Remarketing Agents shall not have any obligation
whatsoever to purchase any Remarketed Senior Notes, whether in the Remarketing
or otherwise, and shall in no way be obligated to provide funds to make payment
upon tender of Remarketed Senior Notes for Remarketing or to otherwise expend or
risk its own funds or incur or to be exposed to financial liability in the
performance of its duties under this Agreement. Neither the Company nor the
Remarketing Agents shall be obligated in any case to provide funds to make
payment upon tender of the Remarketed Senior Notes for Remarketing.
Section
3. Representations and Warranties of the
Company. The
Company represents and warrants (i) on and as of the date any Remarketing
Materials are first distributed in connection with the Remarketing, (ii) on and
as of the Applicable Time and (iii) on and as of the Remarketing Settlement
Date, that:
(a) Filing of Registration
Statement and Preliminary Prospectus; No Stop Order: A Registration
Statement on Form S-3 (No. 333-150101) relating to the Remarketed Senior Notes
(i) has been prepared by the Company in conformity with the requirements of
the Securities Act, and the rules and regulations (the “Rules and
Regulations”) of the Commission thereunder; (ii) has been filed with
the Commission under the Securities Act; and (iii) upon its filing with the
Commission automatically became and is effective under the Securities
Act. Copies of such Registration Statement and any amendment thereto
have been delivered by the Company to the Remarketing Agents.
Any
reference to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any documents incorporated by reference therein pursuant to
Form S-3 under the Securities Act as of the date of such Preliminary Prospectus
or the Prospectus, as the case may be. Any reference to the “most
recent Preliminary Prospectus” shall be deemed to refer to the latest
Preliminary Prospectus included in the Registration Statement or filed pursuant
to Rule 424(b) prior to or on the date hereof (including, for purposes hereof,
any documents incorporated by reference therein prior to or on the date
hereof). Any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
any document filed under the Exchange Act, after the date of such Preliminary
Prospectus or the Prospectus, as the case may be, and incorporated by reference
in such Preliminary Prospectus or the Prospectus, as the case may be; and any
reference to any amendment to the Registration Statement shall be deemed to
include any annual report of the Company on Form 10-K filed with the Commission
pursuant to Section 13(a) or 15(d) of the Exchange Act after the Effective Date
that is incorporated by reference in the Registration Statement.
The
Commission has not issued any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending the effectiveness of the
Registration Statement, and no proceeding or examination for such purpose has
been instituted or, to the knowledge of the Company, threatened by the
Commission. The Commission has not notified the Company of any
objection to the use of the form of the Registration Statement.
(b) Well-Known Seasoned Issuer;
Automatic Shelf Registration Statement: The Company has been since the
time of initial filing of the Registration Statement and continues to be a
“well-known seasoned issuer” (as defined in Rule 405) eligible to use Form
S-3 for the offering of the Remarketed Senior Notes, including
not having been an “ineligible issuer” (as defined in Rule 405) at any such time
or date. The Registration Statement is an “automatic shelf
registration statement” (as defined in Rule 405) and
was filed not earlier than the date that is three years prior to the Remarketing
Settlement Date.
(c) Conformity to Description of
Registration Statement, Preliminary Prospectus, Prospectus: The
Registration Statement conformed and will conform in all material respects on
the Effective Date and on the Remarketing Settlement Date, and any amendment to
the Registration Statement filed after the date hereof will conform in all
material respects, when filed, to the requirements of the Securities Act and the
Rules and Regulations. The Preliminary Prospectus conformed, and the
Prospectus will conform, in all material respects when filed with the Commission
pursuant to Rule 424(b) and on the Remarketing Settlement Date to the
requirements of the Securities Act and the Rules and Regulations. The
documents incorporated by reference in any Preliminary Prospectus or the
Prospectus conformed, and any further documents so incorporated will conform,
when filed with the Commission, in all material respects to the requirements of
the Exchange Act or the Securities Act, as applicable, and the rules and
regulations of the Commission thereunder.
(d) Registration
Statement: The Registration Statement did not, as of the Effective Date,
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided that no representation or warranty is made as to
information contained in or omitted from the Registration Statement in reliance
upon and in conformity with written information furnished to the Company by the
Remarketing Agents specifically for inclusion therein, which information is
specified in Section 7(d) or in a separate letter addressing such
information.
(e) Prospectus: The
Prospectus will not, as of its date and on the Remarketing Settlement Date,
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided that no representation or warranty is made as to information contained
in or omitted from the Prospectus in reliance upon and in conformity with
written information furnished to the Company by the Remarketing Agents
specifically for inclusion therein, which information is specified in Section
7(d) or in a separate letter addressing such information.
(f) Incorporated
Documents: The documents incorporated by reference in the Registration
Statement, any Preliminary Prospectus or the Prospectus did not, and any further
documents filed and incorporated by reference therein will not, when filed with
the Commission, contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that the foregoing
representation and warranty is given on the basis that any statement contained
in a document incorporated by reference therein shall be deemed not to be
contained therein if the statement has been modified or superseded by any
statement in a subsequently filed document incorporated by reference therein or
in any amendment or supplement thereto.
(g) The Pricing Disclosure
Package: The Pricing Disclosure Package did not, as of the Applicable
Time, contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided that no
representation or warranty is made as to information contained in or omitted
from the Pricing Disclosure Package in reliance upon and in conformity with
written information furnished to the Company by the Remarketing Agents
specifically for inclusion therein, which information is specified in Section
7(d) or in a separate letter addressing such information.
(h) Issuer Free Writing
Prospectus: Each Issuer Free Writing Prospectus (including, without
limitation, any road show that is a free writing prospectus under Rule 433) when
considered together with the Pricing Disclosure Package as of the Applicable
Time, did not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(i) Conformity to Description,
Use, and Retaining of Issuer Free Writing Prospectuses: Each Issuer Free
Writing Prospectus conformed or will conform in all material respects to the
requirements of the Securities Act and the Rules and Regulations on the date of
first use, and the Company has complied with any filing requirements applicable
to such Issuer Free Writing Prospectus pursuant to the Rules and Regulations.
The Company has not made any offer relating to the Remarketed Senior Notes that
would constitute an Issuer Free Writing Prospectus without the prior written
consent of the Remarketing Agents. The Company will, pursuant to reasonable
procedures developed in good faith, retain in accordance with the Rules and
Regulations all Issuer Free Writing Prospectuses that were not required to be
filed pursuant to the Rules and Regulations.
(j) Due Incorporation and
Qualification: Each of the Company and EnergyCo, LLC and the Company’s
significant subsidiaries (within the meaning of Rule 1-02(w) of Regulation S-X
under the Securities Act, and collectively with EnergyCo, LLC only for purposes
of this Agreement, the “Significant
Subsidiaries”) has been duly incorporated or organized, is validly
existing as a corporation or other business entity in good standing under the
laws of the jurisdiction in which it is chartered or organized with full
corporate power and authority to own its properties and conduct its business as
described in any Preliminary Prospectus and the Prospectus. Each of
the Company and each Significant Subsidiary is duly qualified to do business as
a foreign corporation or other business entity and is in good standing under the
laws of each jurisdiction which requires such qualification, except where the
failure to be so qualified or in good standing could not, in the aggregate,
reasonably be expected to have a material adverse effect on (i) the condition
(financial or otherwise), results of operations, stockholders’ equity,
properties or business of the Company and its subsidiaries taken as a whole or
(ii) the ability of the Company to perform its obligations under the Transaction
Documents (a “Material
Adverse Effect”). The Company does not own or control,
directly or indirectly, any corporation, association or other entity other than
the subsidiaries listed in Schedule 1(j) attached hereto. None of the
subsidiaries of the Company is a “significant subsidiary” (within the meaning of
Rule 1-02(w) of Regulation S-X under the Securities Act), other than Public
Service Company of New Mexico, Texas-New Mexico Power Company, First Choice
Power Special Purpose, L.P., First Choice Power, L.P., FCP Enterprises, Inc. and
TNP Enterprises, Inc.
(k) Capitalization: The
Company has an authorized capitalization as set forth in each of the most recent
Preliminary Prospectus and the Prospectus. All of the issued and
outstanding shares of capital stock or equivalent equity rights of each
Significant Subsidiary have been duly authorized and validly issued, are fully
paid and non-assessable and, with the exception of the outstanding preferred
stock of Public Service Company of New Mexico and a 50% interest in EnergyCo,
LLC, which are owned by third parties, are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, and defects of title, other
than as listed on Schedule 1(k) attached hereto.
(l) The Indenture, First
Supplemental Indenture and Second Supplemental Indenture: The Indenture,
the First Supplemental Indenture and the Second Supplemental Indenture have been
duly authorized, executed and delivered by the Company and are valid and binding
agreements of the Company enforceable against the Company in accordance with
their terms, except in each case as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization or similar laws relating to or affecting
creditors’ rights generally and by general equitable principles (regardless of
whether such enforceability is considered in a proceeding in equity or at
law). The Indenture, the First Supplemental Indenture and the Second
Supplemental Indenture (i) have been duly qualified under the Trust Indenture
Act of 1939, as amended (the “Trust Indenture Act”), (ii) comply as to form with
the requirements of the Trust Indenture Act and (iii) conform to the description
thereof in the most recent Preliminary Prospectus and the
Prospectus.
(m) The Remarketed Senior
Notes: The Remarketed Senior Notes have been duly authorized, issued and
delivered by the Company, and constitute valid and binding obligations of the
Company, entitled to the benefits of the Indenture, the First Supplemental
Indenture and the Second Supplemental Indenture, enforceable against the Company
in accordance with their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization or other similar laws relating to or
affecting the enforcement of creditors’ rights generally and by general
equitable principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law), and the Remarketed Senior Notes conform to
the description thereof in the Pricing Disclosure Package and the
Prospectus.
(n) This Agreement: The
Company has all the requisite corporate power and authority to execute, deliver
and perform its obligations under this Agreement. This Agreement has
been duly authorized, executed and delivered by the Company.
(o) The Purchase Contract and
Pledge Agreement: The Purchase Contract and Pledge Agreement
has been duly authorized, executed and delivered by the Company and is a valid
and binding agreement of the Company enforceable against the Company in
accordance with its terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization or similar laws relating to or
affecting creditors’ rights generally and by general equitable principles
(regardless of whether such enforceability is considered in a proceeding in
equity or at law). The Purchase Contract and Pledge Agreement
conforms to the description thereof in the most recent Preliminary Prospectus
and the Prospectus.
(p) No Conflicts: The
execution and delivery of this Agreement and the performance of the Transaction
Documents by the Company, the issuance of the Remarketed Senior Notes, the
consummation of the transactions contemplated in the Transaction Documents and
the application of the proceeds from the sale of the Remarketed Senior Notes as
described under “Use of Proceeds” in the most recent Preliminary Prospectus will
not (i) conflict with or result in a breach or violation of any of the
terms or provisions of, impose any lien, charge or encumbrance upon any property
or assets of the Company and its subsidiaries, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement, or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject;
(ii) result in any violation of the provisions of the charter, by-laws or
other organizational documents of the Company or any of its subsidiaries; or
(iii) result in any violation of any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their properties.
(q) No Consents Required:
No consent, approval, authorization or order of, or filing or registration with,
any court or governmental agency or body having jurisdiction over the Company or
any of its subsidiaries or any of their properties is required to be obtained by
the Company for the execution, delivery and performance of the Transaction
Documents, the issuance of the Remarketed Senior Notes, the consummation of the
transactions contemplated in the Transaction Documents and the application of
the proceeds from the sale of the Remarketed Senior Notes as described under
“Use of Proceeds” in the most recent Preliminary Prospectus, except for the
registration of the Remarketed Senior Notes under the Securities Act and such
consents, approvals, authorizations, registrations or qualifications as may be
required under applicable state securities or blue sky laws in connection with
the purchase and sale of the Remarketed Senior Notes by the Remarketing
Agents.
(r) No Material Adverse
Changes: Except as described in the most recent Preliminary Prospectus,
neither the Company nor any of its subsidiaries has sustained, since the date of
the latest audited financial statements included or incorporated by reference in
the most recent Preliminary Prospectus, any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, and since such date, there has not been any change in the capital
stock, long-term debt, consolidated net current assets or stockholders’ equity
of the Company and/or any of its subsidiaries or any adverse change, or any
development involving a prospective adverse change, in or affecting the
condition (financial or otherwise), results of operations, stockholders’ equity,
properties, management, business or prospects of the Company and its
subsidiaries taken as a whole, in each case except as could not, in the
aggregate, reasonably be expected to have a Material Adverse
Effect.
(s) Historical Financial
Statements: The consolidated historical financial statements and
schedules of the Company and its consolidated subsidiaries included or
incorporated by reference in the most recent Preliminary Prospectus comply as to
form in all material respects with the requirements of Regulation S-X under the
Securities Act and present fairly in all material respects the consolidated
financial condition of the Company and its consolidated subsidiaries as of the
dates indicated therein and the consolidated results of their operations and
cash flows for the periods specified therein. Except as stated
therein, such financial statements have been prepared in conformity with
generally accepted accounting principles in the United States applied on a
consistent basis throughout the periods involved.
(t) Independent Public
Accountants: Deloitte & Touche LLP, who have certified certain
financial statements of the Company and its consolidated subsidiaries, and which
have audited the Company’s internal control over financial reporting, are an
independent registered public accounting firm as required by the Securities Act
and the Rules and Regulations and the rules and regulations of the Public
Company Accounting Oversight Board.
(u) Compliance: The
Company owns or leases all such properties as are necessary to the conduct of
its operations as presently conducted. The Company is not in
non-compliance with any term or condition of, nor has failed to obtain and
maintain in effect, any license, certificate, permit or other governmental
authorization required for the ownership or lease of its property or the conduct
of its business, which violation, non-compliance or failure, individually or in
the aggregate, could reasonably be expected to have a Material Adverse Effect,
except as set forth the most recent Preliminary Prospectus. The
Company has not received notice of any proceedings relating to the revocation or
material modification of any such license, certificate, permit or other
authorization.
(v) Litigation: Other
than as set forth in the most recent Preliminary Prospectus, there are no legal
or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of its
subsidiaries is the subject which individually or in the aggregate could
reasonably be expected to have a Material Adverse Effect or could, in the
aggregate, reasonably be expected to have a material adverse effect on the
performance of the Transaction Documents, the issuance of the Remarketed Senior
Notes or the consummation of the transactions contemplated in the Transaction
Documents. To the Company’s knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others.
(w) No Labor Disturbance:
No labor disturbance by or dispute with the employees of the Company exists or
is, to the best knowledge of the Company, threatened or is imminent that could
reasonably be expected to have a Material Adverse Effect, except as set forth in
the most recent Preliminary Prospectus.
(x) No Defaults: Neither
the Company nor any of its Significant Subsidiaries is in violation of its
charter, bylaws or other organizational documents, or, except as would not
reasonably be likely to have a Material Adverse Effect, (i) is in default in the
performance or observance of any term, material obligation, covenant or
condition contained in any indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument to which it is a party or by which it is
bound or to which any of its properties is subject, (ii) is in violation of any
statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over it or its property or (iii) has failed to obtain
any license, permit, certificate, franchise or other governmental authorization
or permit necessary to the ownership of its property or to the conduct of its
business.
(y) Xxxxxxxx-Xxxxx: To
the best of its knowledge, the Company is in compliance in all material respects
with the applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 that are
effective and the rules and regulations of the SEC that have been adopted and
are effective thereunder.
(z) Environmental
Matters: Except as described in the most recent Preliminary Prospectus,
each of the Company and each of its subsidiaries (i) is in compliance with any
and all applicable federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (“Environmental Laws”), (ii)
has received all permits, licenses or other approvals required of it under
applicable Environmental Laws to conduct its business and (iii) is in compliance
with all terms and conditions of any such permit, license or approval, except
where such non-compliance with Environmental Laws or failure to receive, or
comply with the terms and conditions of required permits, licenses or approvals,
would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(aa) Accounting Controls and
Disclosure Controls: The Company and its subsidiaries maintain (x)
systems of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management’s
general or specific authorizations; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management’s general or
specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences and (y) disclosure controls and
procedures (as defined in Rule 13a-15(e) under the Exchange Act).
(bb) Distribution of Remarketing
Materials: The Company has not distributed and, prior to the later to
occur of the Remarketing Settlement Date and completion of the distribution of
the Remarketed Senior Notes, will not distribute any offering material in
connection with the offering and sale of the Remarketed Senior Notes or the
Additional Notes other than any Preliminary Prospectus, the Prospectus, and any
Issuer Free Writing Prospectus to which the Remarketing Agents have consented
(which consent being deemed to have been given with respect to (i) the Final
Term Sheet prepared and filed pursuant to Section 5(a)(1) hereof and (ii) any
other Issuer Free Writing Prospectus identified on Schedule 2
hereto).
(cc) Anti-Manipulation:
The Company has not taken, directly or indirectly, any action intended or which
might reasonably be expected to cause or result in the stabilization or
manipulation of the price of any security of the Company in a manner which would
violate the Securities Act or the Exchange Act.
(dd) Investment Company
Act: The Company is not, and as of the Remarketing Settlement
Date and, after giving effect to the offer and sale of the Notes and the
application of the proceeds therefrom as described under “Use of Proceeds” in
the most recent Preliminary Prospectus and the Prospectus, will not be, an
“investment company” within the meaning of such term under the Investment
Company Act of 1940, as amended (the “Investment Company Act”).
Any
certificate signed by any officer of the Company and delivered to the
Remarketing Agents or their counsel in connection with the offering of the
Remarketed Senior Notes shall be deemed a representation and warranty by the
Company, as to matters covered thereby but only as of the date thereof, to each
Remarketing Agent.
Section
4. Fees. In the event of a Successful
Remarketing of the Remarketed Senior Notes, the Company shall pay the
Remarketing Agents a remarketing fee equal to 1.50% of the principal amount of
the Remarketed Senior Notes (the “Remarketing Fee”).
Such Remarketing Fee shall be paid by the Company on the Remarketing Settlement
Date in cash by wire transfer of immediately available funds to an account
designated by the Remarketing Agents.
Section
5. Further Agreements of the
Company and the Remarketing Agents
(a) The
Company covenants and agrees as follows:
(1) Filing of Prospectus:
Amendments and Supplements; Filing of Exchange Act Reports; Notice of Stop
Orders: To prepare the Prospectus in a form approved by the
Remarketing Agents and to file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than the Commission’s close of business on the second
Business Day following the Applicable Time; to make no further amendment or any
supplement to the Registration Statement or the Prospectus prior to the
Remarketing Settlement Date except as provided herein; to advise the Remarketing
Agents, promptly after it receives notice thereof, of the time when any
amendment or supplement to the Registration Statement or the Prospectus has been
filed and to furnish the Remarketing Agents with copies thereof and for so long
as the delivery of a prospectus is required in connection with the offering or
sale of the Remarketed Senior Notes; to file promptly all reports and any
definitive proxy or information statements required to be filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus is required in connection with the offering or sale of
the Remarketed Senior Notes; to prepare the Final Term Sheet, substantially in
the form of Schedule 3 hereto and approved by the Remarketing Agents and file
the Final Term Sheet pursuant to Rule 433(d) of the Rules and Regulations within
the time period prescribed by such Rule; to advise the Remarketing Agents,
promptly after it receives notice thereof, of the issuance by the Commission of
any stop order or of any order preventing or suspending the use of the
Prospectus or any Issuer Free Writing Prospectus, of the suspension of the
qualification of the Remarketed Senior Notes for offering or sale in any
jurisdiction, of the initiation or threatening by the Commission of any
proceeding or examination for any such purpose, of any notice from the
Commission objecting to the use of the form of the Registration Statement or any
post-effective amendment thereto or of any request by the Commission for the
amending or supplementing of the Registration Statement, the Prospectus or any
Issuer Free Writing Prospectus or for additional information; and, in the event
of the issuance of any stop order or of any order preventing or suspending the
use of the Prospectus or any Issuer Free Writing Prospectus or suspending any
such qualification, to use promptly its best efforts to obtain its
withdrawal;
(2) Payment of Commission
Fees: To pay the applicable Commission filing fees relating to
the Remarketed Senior Notes within the time required by Rule 456(b)(1)
without regard to the proviso therein;
(3) Copies of Preliminary
Prospectus, Prospectus, Issuer Free Writing Prospectus and Incorporated
Documents; Certain Events and Amendments or Supplements: To
deliver promptly to the Remarketing Agents on or prior to the Remarketing
Settlement Date such number of the following documents as the Remarketing Agents
shall reasonably request: (A) conformed copies of the Registration Statement as
originally filed with the Commission and each amendment thereto (in each case
excluding exhibits other than this Agreement and the computation of per share
earnings), (B) each Preliminary Prospectus, the Prospectus and any amended or
supplemented Prospectus, (C) the Final Term Sheet and each other Issuer Free
Writing Prospectus and (D) any document incorporated by reference in any
Preliminary Prospectus or the Prospectus; and, if the delivery of a prospectus
is required at any time after the date hereof in connection with the offering or
sale of the Remarketed Senior
Notes and
if at such time any events shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue statement of
a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if for any other
reason it shall be necessary to amend or supplement the Prospectus or to file
under the Exchange Act any document incorporated by reference in the Prospectus
in order to comply with the Securities Act or the Exchange Act, to notify the
Remarketing Agents and, upon their request, to file such document and to prepare
and furnish without charge to each Remarketing Agent and to any dealer in
securities as many copies as the Remarketing Agents may from time to time
reasonably request of an amended or supplemented Prospectus that will correct
such statement or omission or effect such compliance;
(4) Filing of Amendments or
Supplements: To file promptly with the Commission any
amendment or supplement to the Registration Statement or the Prospectus that
may, in the judgment of the Company or the Remarketing Agents, be required by
the Securities Act or requested by the Commission;
(5) Furnishing of Amendments or
Supplements: Prior to filing with the Commission any amendment
or supplement to the Registration Statement or the Prospectus, any document
incorporated by reference in the Prospectus or any amendment to any document
incorporated by reference in the Prospectus, to furnish a copy thereof to the
Remarketing Agents and their counsel and not file any of the same with the
Commission to which the Remarketing Agents shall reasonably object, for so long
as the delivery of a prospectus is required in connection with the offering or
sale of the Remarketed Senior Notes;
(6) Offers by Issuer Free
Writing Prospectuses: Not to make any offer relating to the
Remarketed Senior Notes or the Additional Notes that would constitute an Issuer
Free Writing Prospectus without the prior written consent of the Remarketing
Agents (which consent being deemed to have been given with respect to (A) the
Final Term Sheet prepared and filed pursuant to Section 5(a)(1) hereof and (B)
any other Issuer Free Writing Prospectus identified on Schedule 2
hereto);
(7) Rule 433; Certain Events and
Amendments or Supplements to Issuer Free Writing
Prospectus: To comply with all applicable requirements of Rule
433 with respect to any Issuer Free Writing Prospectus; and if at any time after
the date hereof any events shall have occurred as a result of which any Issuer
Free Writing Prospectus, as then amended or supplemented, would conflict with
the information in the Registration Statement, the most recent Preliminary
Prospectus or the Prospectus or would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or, if for any other reason it shall be necessary to amend
or supplement any Issuer Free Writing Prospectus, to notify the Remarketing
Agents and, upon their request, to file such document and to prepare and furnish
without charge to the Remarketing Agents as many copies as the Remarketing
Agents may from time to time reasonably request of an amended or supplemented
Issuer Free Writing Prospectus that will correct such conflict, statement or
omission or effect such compliance;
(8) Earnings
Statement: As soon as practicable after the Effective Date and
in any event not later than 16 months after the date hereof, to make generally
available to the Company’s security holders an earnings statement of the Company
and its subsidiaries (which need not be audited) complying with Section 11(a) of
the Securities Act and the Rules and Regulations (including in accordance with
Rule 158 under the Securities Act);
(9) Blue Sky
Qualifications: Promptly from time to time to take such action
as the Remarketing Agents may reasonably request to qualify the Remarketed
Senior Notes for offering and sale under the securities laws of such
jurisdictions as the Remarketing Agents may request and to comply with such laws
so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of
the Remarketed Senior Notes; provided that in connection therewith the Company
shall not be required to (i) qualify as a foreign corporation in any
jurisdiction in which it would not otherwise be required to so qualify, (ii)
file a general consent to service of process in any such jurisdiction or (iii)
subject itself to taxation in any jurisdiction in which it would not otherwise
be subject;
(10) Clear
Market: Until 10 days following the Remarketing Settlement
Date, to not, without the prior written consent of the Remarketing Agents,
directly or indirectly, issue, sell, offer to sell, grant any option for the
sale of or otherwise dispose of, any debt securities that are substantially
similar to the Remarketed Senior Notes (including, without limitation, with
respect to the maturity, currency, interest rate and other material terms of the
Remarketed Senior Notes); provided that this Section 5(a)(10) does not apply to
the offer, sale and issuance of senior notes of the Company being offered
simultaneously with the Remarketed Senior Notes pursuant to the Preliminary
Prospectus;
(11) Application of Net
Proceeds: To apply the net proceeds from the sale of the
Remarketed Senior Notes being sold by the Company as set forth in the
Prospectus; and
(12) Anti-manipulation: Not
to at any time, directly or indirectly, take any action intended, or which might
reasonably be expected, to cause or result in the stabilization or manipulation
of the price of any security of the Company in a manner that would violate the
Securities Act or the Exchange Act.
(b) The
Company agrees, whether or not the transactions contemplated by the Transaction
Documents are consummated or this Agreement is terminated, to pay all costs,
expenses, fees and taxes incident to and in connection with (a) the Remarketing
of the Remarketed Senior Notes and any stamp duties or other taxes payable in
that connection; (b) the preparation, printing and filing under the Securities
Act of the Registration Statement (including any exhibits thereto), any
Preliminary Prospectus, the Prospectus, any
Issuer
Free Writing Prospectus and any amendment or supplement thereto; (c) the
distribution of the Registration Statement (including any exhibits thereto), any
Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus and
any amendment or supplement thereto, or any document incorporated by reference
therein, all as provided in this Agreement; (d) the production and distribution
of the Transaction Documents and the Remarketed Senior Notes and any other
related documents in connection with the offering, purchase, sale and delivery
of the Remarketed Senior Notes; (e) the qualification of the Remarketed Senior
Notes under the securities laws of the several jurisdictions as provided in
Section 5(a)(9) and the preparation, printing and distribution of a Blue Sky
Memorandum (including related fees and expenses of counsel to the Remarketing
Agents in an amount that is not greater than $5,000); (f) the
services of the Purchase Contract Agent and the Trustee and any agent therefor
(including the fees and disbursements of counsel for the Purchase Contract Agent
or the Trustee); (g) the services of the Custodial Agent, Collateral Agent and
Securities Intermediary (including the fees and disbursements of counsel
therefor); (h) the investor presentations on any “road show” undertaken in
connection with the marketing of the Remarketed Senior Notes, including, without
limitation, expenses associated with any electronic roadshow, travel and lodging
expenses of the representatives and officers of the Company and the cost of any
aircraft chartered in connection with the road show; (i) the services of the
Company’s independent registered public accounting firm; (j) the services of the
Company’s counsel; (k) any rating of the Remarketed Senior Notes by rating
agencies; (l) any required review by the Financial Industry Regulatory Authority
of the terms of the sale of the Remarketed Senior Notes (including related
reasonable and documented fees and expenses of counsel to the Remarketing
Agents); (m) the reasonable and documented fees and expenses of counsel to the
Remarketing Agents in connection with their duties hereunder; and (n) all other
costs and expenses incident to the performance of the obligations of the Company
under the Transaction Documents.
(c) The
Company covenants and agrees to furnish the Remarketing Agents with such
information and documents as the Remarketing Agents may reasonably request in
connection with the transactions contemplated in the Transaction Documents, and
to make reasonably available to the Remarketing Agents and any accountant,
attorney or other advisor retained by the Remarketing Agents such information
that parties would customarily require in connection with a due diligence
investigation conducted in accordance with applicable securities laws and to
cause the Company’s officers, directors, employees and accountants to
participate in all such discussions and to supply all such information
reasonably requested by any such Person in connection with such
investigation.
(d) Each
Remarketing Agent severally agrees that, unless it obtains the prior consent of
the Company, it has not made and will not make any offer relating to the
Remarketed Senior Notes or Additional Notes that would constitute an “issuer
free writing prospectus,” as defined in Rule 433, or that would otherwise
constitute a “free writing prospectus,” as defined in Rule 405, required to be
filed with the Commission; provided, however, that the Remarketing Agents may
use a term sheet substantially in the form of Schedule 3 hereto without the
consent of the Company. Any such free writing prospectus consented to
by the Company is hereinafter referred to as “Permitted Issuer
Information.”
Section
6. Conditions to the
Remarketing Agents’ Obligations. The
respective obligations of the Remarketing Agents hereunder are subject to the
accuracy, as of the date hereof, the Applicable Time and on the Remarketing
Settlement Date, of the representations and warranties of the Company contained
herein, to the performance by the Company of its obligations hereunder, and to
each of the following additional terms and conditions:
(a) Filing of Prospectus and
Free Writing Prospectus; No Stop Order: The Prospectus shall have been
timely filed with the Commission in accordance with Section 5(a)(1); the Company
shall have complied with all filing requirements applicable to any Issuer Free
Writing Prospectus used or referred to after the date hereof; no stop order
suspending the effectiveness of the Registration Statement or preventing or
suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall
have been issued and no proceeding or examination for such
purpose shall have been initiated or, to the knowledge of the
Company, threatened by the Commission; any request of the Commission for
inclusion of additional information in the Registration Statement or the
Prospectus shall have been complied with; and the Commission shall not have
notified the Company of any objection to the use of the form of the Registration
Statement.
(b) No Discovery of Untrue
Statements or Omissions: No Remarketing Agent shall have discovered and
disclosed to the Company on or prior to the Remarketing Settlement
Date that the Registration Statement, the Prospectus or the Pricing
Disclosure Package, or any amendment or supplement thereto, contains an untrue
statement of a fact which, in the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP,
counsel for the Remarketing Agents, is material or omits to state a fact which,
in the opinion of such counsel, is material and is required to be stated therein
or is necessary to make the statements therein not misleading.
(c) Other Documents and
Certificates: All corporate proceedings and other legal matters incident
to the authorization, form and validity of the Transaction Documents, the
Remarketed Senior Notes, the Registration Statement, the Prospectus and any
Issuer Free Writing Prospectus, and all other legal matters relating to the
Transaction Documents and the transactions contemplated thereby shall be
reasonably satisfactory in all material respects to counsel for the Remarketing
Agents, and the Company shall have furnished to such counsel all documents and
information that they may reasonably request to enable them to pass upon such
matters.
(d) Opinions of Company
Counsel: Xxxxxxx X. Xxxxx, Associate General Counsel, SEC Reporting and
Corporate Transactions, of the Company, shall have furnished to the Remarketing
Agents his written opinion, as counsel to the Company, addressed to the
Remarketing Agents and dated the Remarketing Settlement Date, substantially in
the form attached hereto as Exhibit
X. Xxxxxxxx Xxxxxxx LLP shall have furnished to the
Remarketing Agents its written opinion, as counsel to the Company, addressed to
the Remarketing Agents and dated the Remarketing Settlement Date, substantially
in the form attached hereto as Exhibit
B.
(e) Opinions of Remarketing
Agents’ Counsel: The Remarketing Agents shall have received from Xxxxxxx
Xxxxxxx & Xxxxxxxx LLP, counsel for the Remarketing Agents, such opinion or
opinions, dated the Remarketing Settlement Date, with respect to the issuance
and sale of the Remarketed Senior Notes, the Indenture, the First Supplemental
Indenture, the Second Supplemental Indenture, the Registration Statement, the
Prospectus and the Pricing Disclosure Package and other related matters as the
Remarketing Agents may reasonably require, and the Company shall have furnished
to such counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(f) Compliance with
Representations and Warranties, Covenants: The representations and
warranties of the Company contained herein shall be true and correct on and as
of the applicable Remarketing Date and the Remarketing Settlement Date, and the
Company, the Purchase Contract Agent and the Collateral Agent shall have
performed all covenants and agreements contained herein or in the Purchase
Contract and Pledge Agreement to be performed on their part at or prior to such
Remarketing Date and such Remarketing Settlement Date.
(g) Initial Comfort
Letter: At or prior to the Applicable Time, the Remarketing Agents shall
have received from Deloitte & Touche LLP a letter, in form and substance
satisfactory to the Remarketing Agents, addressed to the Remarketing Agents and
dated the date hereof (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in compliance with
the applicable requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the
Applicable Time (or, with respect to matters involving changes or developments
since the respective dates as of which specified financial information is given
in the most recent Preliminary Prospectus, as of a date not more than three
business days prior to the Applicable Time), the conclusions and findings of
such firm with respect to the financial information and other matters ordinarily
covered by accountants’ “comfort letters” to remarketing agents or underwriters
in connection with a remarketing or a registered offering of debt securities, as
the case may be.
(h) Bring-down Comfort
Letter: With respect to the letter of Deloitte & Touche LLP referred
to in the preceding paragraph and delivered to the Remarketing Agents at the
Applicable Time (the “initial letter”), the
Company shall have furnished to the Remarketing Agents a letter (the “bring-down letter”)
of such accountants, addressed to the Remarketing Agents and dated the
Remarketing Settlement Date (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in compliance with
the applicable requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date
of the bring-down letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Prospectus, as of a date not more than three
business days prior to the date of the bring-down letter), the conclusions and
findings of such firm with respect to the financial information and other
matters covered by the initial letter and (iii) confirming in all material
respects the conclusions and findings set forth in the initial
letter.
(i) Officers’
Certificates: The Company shall have furnished to the Remarketing Agents
a certificate, dated the Remarketing Settlement Date, of its Chief Executive
Officer and President, President of Utilities, Executive Vice President, Chief
Financial Officer or any Senior Vice President, and any Vice President or
Treasurer, satisfactory to the Remarketing Agents stating that:
(1) The
representations, warranties and agreements of the Company in Section 3 are true
and correct on and as of the Remarketing Settlement Date, and the Company has
complied with all its agreements contained herein and satisfied all the
conditions on its part to be performed or satisfied hereunder at or prior to the
Remarketing Settlement Date;
(2) No stop
order suspending the effectiveness of the Registration Statement has been
issued; no proceedings or examination for that purpose have been
instituted or, to the knowledge of such officers, threatened; and the Commission
has not notified the Company of any objection to the use of the form of the
Registration Statement or any post-effective amendment thereto; and
(3) They have
carefully examined the Registration Statement, the Prospectus and the Pricing
Disclosure Package, and, in their opinion, (A) (1) the Registration Statement,
as of the Effective Date, (2) the Prospectus, as of its date and on the
Remarketing Settlement Date, or (3) the Pricing Disclosure Package, as of the
Applicable Time, did not and do not contain any untrue statement of a material
fact and did not and do not omit to state a material fact required to be stated
therein or necessary to make the statements therein (except in the case of the
Registration Statement, in the light of the circumstances under which they were
made) not misleading and (B) since the Effective Date, no event has occurred
that should have been set forth in a supplement or amendment to the Registration
Statement, the Prospectus or any Issuer Free Writing Prospectus that has not
been so set forth.
(j) No Material Changes:
Except as described in the most recent Preliminary Prospectus, (i) neither the
Company nor any of its subsidiaries shall have sustained, since the date of the
latest audited financial statements included or incorporated by reference in the
most recent Preliminary Prospectus, any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or
decree or (ii) since the date of the most recent Preliminary Prospectus, there
shall not have been any change in the capital stock, long-term debt,
consolidated net current assets or stockholders’ equity of the Company and/or
any of its subsidiaries or any change, or any development involving a
prospective change, in or affecting the condition (financial or otherwise),
results of operations, stockholders’ equity, properties, management or business
of the Company and its subsidiaries taken as a whole, the effect of which, in
any such case described in clause (i) or (ii), is, in the judgment of the
Remarketing Agents, so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Remarketed Senior Notes being delivered on the Remarketing Settlement Date on
the terms and in the manner contemplated in the Prospectus.
(k) No Downgrading:
Subsequent to the execution and delivery of this Agreement (i) no downgrading
shall have occurred in the rating accorded the Company’s debt securities or
preferred stock by any “nationally recognized statistical rating organization”
(as that term is defined by the Commission for purposes of Rule 436(g)(2) of the
Rules and Regulations), and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of any of the Company’s debt securities or preferred
stock.
(l) Non-Occurrence of Certain
Events: Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange or the American Stock
Exchange or in the over-the-counter market, or trading in any securities of the
Company on any exchange or in the over-the-counter market, shall have been
suspended or materially limited or the settlement of such trading generally
shall have been materially disrupted or minimum prices shall have been
established on any such exchange or such market by the Commission, by such
exchange or by any other regulatory body or governmental authority having
jurisdiction, (ii) a banking moratorium shall have been declared by federal or
state authorities, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities involving the
United States or there shall have been a declaration of a national emergency or
war by the United States or (iv) there shall have occurred such a material
adverse change in general economic, political or financial conditions,
including, without limitation, as a result of terrorist activities after the
date hereof (or the effect of international conditions on the financial markets
in the United States shall be such), as to make it, in the judgment of the
Remarketing Agents, impracticable or inadvisable to proceed with the public
offering or delivery of the Remarketed Senior Notes being delivered on the
Remarketing Settlement Date on the terms and in the manner contemplated in the
Prospectus.
All
opinions, letters, evidence and certificates mentioned above or elsewhere in
this Agreement shall be deemed to be in compliance with the provisions hereof
only if they are in form and substance as provided in exhibits to this
Agreement, and if not so provided, then in form and substance reasonably
satisfactory to counsel for the Remarketing Agents.
Section
7. Indemnification.
(a) The
Company shall indemnify and hold harmless each Remarketing Agent, its directors,
officers and employees and each person, if any, who controls each Remarketing
Agent within the meaning of Section 15 of the Securities Act, from and against
any loss, claim, damage or liability, joint or several, or any action in respect
thereof (including, but not limited to, any loss, claim, damage, liability or
action relating to purchases and sales of Notes), to which that Remarketing
Agent, director, officer, employee or controlling person may become subject,
under the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in (A) any Preliminary
Prospectus, the Registration Statement, the Prospectus or in any amendment or
supplement thereto, (B) any Issuer Free Writing Prospectus or in any amendment
or supplement thereto, (C) any Permitted Issuer Information used or referred to
in any “free writing prospectus” (as defined in Rule 405) used or referred to by
the Remarketing Agents or (D) any “road show” (as defined in Rule 433) not
constituting an Issuer Free Writing Prospectus (a “Non-Prospectus Road
Show”), (ii) the omission or alleged omission to state in any Preliminary
Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing
Prospectus or in any amendment or supplement thereto or in any Permitted Issuer
Information, any Non Prospectus Road Show, any material fact required to be
stated therein or necessary to make the statements therein not misleading, or
(iii) any act or failure to act or any alleged act or failure to act by each
Remarketing Agent in connection with, or relating in any manner to, the
Remarketed Senior Notes or the Remarketing contemplated hereby (provided that
the Company shall not be liable to a Remarketing Agent under this clause (iii)
to the extent that it is determined in a final judgment by a court of competent
jurisdiction that such loss, claim, damage, liability or action resulted
directly from any such acts or failures to act undertaken or
omitted
to be taken by such Remarketing Agent through its gross negligence or willful
misconduct), and shall reimburse each Remarketing Agent and each such director,
officer, employee or controlling person promptly upon demand for any legal or
other expenses reasonably incurred by that Remarketing Agent, director, officer,
employee or controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing
Prospectus or in any such amendment or supplement thereto or in any Permitted
Issuer Information, any Non Prospectus Road Show in reliance upon and in
conformity with written information concerning such Remarketing Agent furnished
to the Company by the Remarketing Agents specifically for inclusion therein,
which information consists solely of the information specified in Section 7(d)
or in a separate letter addressing such information. The foregoing
indemnity agreement is in addition to any liability which the Company may
otherwise have to each Remarketing Agent or to any director, officer, employee
or controlling person of that Remarketing Agent.
(b) Each
Remarketing Agent, severally and not jointly, shall 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,
from and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof, to which the Company or any such director, officer,
employee or controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement, the Prospectus, any Issuer Free Writing Prospectus or in any
amendment or supplement thereto or in any Non-Prospectus Road Show, or (ii) the
omission or alleged omission to state in any Preliminary Prospectus, the
Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in
any amendment or supplement thereto or in any Non-Prospectus Road Show, any
material fact required to be stated therein or necessary to make the statements
therein not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information concerning such
Remarketing Agent furnished to the Company by such Remarketing Agent
specifically for inclusion therein, which information is limited to the
information set forth in Section 7(d) or in a separate letter addressing such
information. The foregoing indemnity agreement is in addition to any
liability that each Remarketing Agent may otherwise have to the Company or any
such director, officer, employee or controlling person.
(c) Promptly
after receipt by an indemnified party under this Section 7 of notice of any
claim or the commencement of any action, the indemnified party shall, if a claim
in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the claim or the
commencement of that action; provided, however, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have under this Section 7 except to the extent it has been materially
prejudiced by such failure and, provided, further, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under this
Section
7. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it wishes, jointly with any other similarly notified indemnifying party, to
assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim or action,
the indemnifying party shall not be liable to the indemnified party under this
Section 7 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation; provided, however, that the
indemnified party shall have the right to employ counsel to represent jointly
the indemnified party and those other indemnified parties and their respective
directors, officers, employees and controlling persons who may be subject to
liability arising out of any claim in respect of which indemnity may be sought
under this Section 7 if (i) the indemnified party and the indemnifying party
shall have so mutually agreed; (ii) the indemnifying party has failed within a
reasonable time to retain counsel reasonably satisfactory to the indemnified
party; (iii) the indemnified party and its respective directors, officers,
employees and controlling persons shall have reasonably concluded that there may
be legal defenses available to them that are different from or in addition to
those available to the indemnifying party; or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the indemnified
parties or their respective directors, officers, employees or controlling
persons, on the one hand, and the indemnifying party, on the other hand, and
representation of both sets of parties by the same counsel would be
inappropriate due to actual or potential differing interests between them, and
in any such event the fees and expenses of such separate counsel shall be paid
by the indemnifying party. No indemnifying party shall
(i) without the prior written consent of the indemnified parties (which
consent shall not be unreasonably withheld), 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 and does not
include any findings of fact or admissions of fault or culpability as to the
indemnified party, or (ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with the consent of the indemnifying party or if there
be a final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment.
(d) The
Remarketing Agents severally confirm and the Company acknowledges and agrees
that the statements regarding delivery of the Remarketed Senior Notes by the
Remarketing Agents set forth in the last paragraph on the cover page of, and the
paragraph relating to stabilization by the Remarketing Agents and the concession
and reallowance figures appearing under the caption “Plan of Distribution and
Underwriting” in, the most recent Preliminary Prospectus and the Prospectus
constitute the only information furnished in writing to the Company by or on
behalf of the Remarketing Agents specifically for inclusion in any Preliminary
Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing
Prospectus or in any amendment or supplement thereto or in any Non-Prospectus
Road Show.
Section
8. Contribution.
(a) If the
indemnification provided for in Section 7 shall for any reason be unavailable to
or insufficient to hold harmless an indemnified party under Section 7(a) or 7(b)
in respect of any loss, claim, damage or liability, or any action in respect
thereof, referred to therein, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company, on the one hand, and the
Remarketing Agents, on the other, from the Remarketing of the Remarketed Senior
Notes 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, on the one hand, and the Remarketing Agents, on the other, with
respect to the statements or omissions that resulted in such loss, claim, damage
or liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the
Company, on the one hand, and the Remarketing Agents, on the other, with respect
to such Remarketing shall be deemed to be in the same proportions as the
aggregate principal amount of the Remarketed Senior Notes (less the Remarketing
Fee) received by the Company, on the one hand, and the Remarketing Fee received
by the Remarketing Agents, on the other hand, bear to the aggregate principal
amount of the Remarketed Senior Notes. The relative fault shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company on the one hand or the Remarketing Agents
on the other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company and the Remarketing Agents agree that it would
not be just and equitable if contributions pursuant to this Section 8 were to be
determined by pro rata allocation (even if the Remarketing Agents were treated
as one entity for such purpose) or by any other method of allocation that does
not take into account the equitable considerations referred to
herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section 8 shall be deemed to include, for purposes of
this Section 8, 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 8, no
Remarketing Agent shall be required to contribute any amount in excess of the
amount by which its portion of the Remarketing Fee exceeds the amount of any
damages that such Remarketing Agent has otherwise paid or become liable to pay
by reason of any 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 Remarketing Agents’ obligations to contribute
as provided in this Section 8 are several on a pro rata basis and not
joint.
Section
9. Resignation and Removal of
the Remarketing Agents. The Remarketing Agents may resign and
be discharged from their duties and obligations hereunder, and the Company may
remove the Remarketing Agents, by giving 30 days’ prior written notice, in the
case of a resignation, to the Company and the Purchase Contract Agent and, in
the case of a removal, to the removed Remarketing Agent or Agents and the
Purchase Contract Agent; provided, however, that no
such resignation nor any such removal shall become effective until the Company
shall have appointed at least one nationally recognized broker-dealer as
successor Remarketing Agent and each such successor Remarketing Agent shall have
entered into a remarketing agreement with the Company (or agreed to become a
party to this Agreement), in which it shall have agreed to conduct the
Remarketing in accordance with the Transaction Documents in all material
respects.
In any
such case, the Company will use commercially reasonable efforts to appoint a
successor Remarketing Agent and enter into such a remarketing agreement (or an
appropriate amendment to this Agreement) with such person as soon as reasonably
practicable. The provisions of Section 7 and Section 8 shall survive the
resignation or removal of any Remarketing Agents pursuant to this
Agreement.
Section
10. Dealing in Securities.
The
Remarketing Agents, when acting as Remarketing Agents or in their individual or
any other capacities, may, to the extent permitted by law, buy, sell, hold and
deal in any of the Remarketed Senior Notes, Corporate Units, Treasury Units or
any of the securities of the Company (together, the “Securities”). The
Remarketing Agents may exercise any vote or join in any action which any
beneficial owner of such Securities may be entitled to exercise or take pursuant
to the Indenture with like effect as if it did not act in any capacity
hereunder. The Remarketing Agents, in their individual capacities, either as
principal or agent, may also engage in or have an interest in any financial or
other transaction with the Company as freely as if they did not act in any
capacity hereunder.
Section
11. Remarketing Agents’ Performance; Duty of
Care. The
duties and obligations of the Remarketing Agents shall be determined solely by
the express provisions of this Agreement and the other Transaction Documents. No
implied covenants or obligations of or against the Remarketing Agents shall be
read into this Agreement or any of the other Transaction Documents. In the
absence of bad faith on the part of the Remarketing Agents, the Remarketing
Agents may conclusively rely upon any document furnished to them, as to the
truth of the statements expressed in any of such documents. The Remarketing
Agents shall be protected in acting upon any document or communication
reasonably believed by them to have been signed, presented or made by the proper
party or parties except as otherwise set forth herein. The Remarketing Agents
shall have no obligation to determine whether there is any limitation under
applicable law on the Reset Rate on the Remarketed Senior Notes or, if there is
any such limitation, the maximum permissible Reset Rate on the Remarketed Senior
Notes, and they shall rely solely upon written notice from the Company (which
the Company agrees to provide prior to the eighth Business Day before the
Initial Remarketing Date) as to whether or not there is any such limitation and,
if so, the maximum permissible Reset Rate. The Remarketing Agents, acting under
this Agreement, shall incur no liability to the Company or to any holder of
Remarketed Senior Notes in their individual capacities or as Remarketing Agents
for any action or failure to act, on their part in connection with a Remarketing
or otherwise, except if such liability is judicially determined to have resulted
from their failure to comply with the material terms of this Agreement or bad
faith, gross negligence or willful misconduct on its part. The provisions of
this Section 11 shall survive the termination of this Agreement and shall
survive the resignation or removal of any Remarketing Agents pursuant to this
Agreement.
Section
12. No Fiduciary
Duty. The
Company acknowledges and agrees that in connection with the Remarketing or any
other services the Remarketing Agents may be deemed to be providing under the
Transaction Documents, notwithstanding any preexisting relationship, advisory or
otherwise, between the parties or any oral representations or assurances
previously or subsequently made by the Remarketing Agents: (i) no
fiduciary or agency relationship between the Company and any other person, on
the one hand, and the Remarketing Agents, on the other, exists; (ii) the
Remarketing Agents are not acting as advisors, expert or otherwise, to the
Company, including, without limitation, with respect to the determination of the
Remarketing Price of the Remarketed Senior Notes, and such relationship between
the Company, on the one hand, and the Remarketing Agents, on the other, is
entirely and solely commercial, based on arms-length negotiations; (iii) any
duties and obligations that the Remarketing Agents may have to the Company shall
be limited to those duties and obligations specifically stated herein; and (iv)
the Remarketing Agents and their respective affiliates may have interests that
differ from those of the Company. The Company hereby waives any
claims that the Company may have against the Remarketing Agents with respect to
any breach of fiduciary duty in connection with the Remarketing.
Section
13. Termination. This Agreement shall
automatically terminate (i) as to the Remarketing Agents on the Effective Date
of the resignation or removal of the Remarketing Agents pursuant to Section 9
and (ii) on the earlier of (x) any Special Event Redemption Date, (y) the
occurrence of a Termination Event and (z) the Business Day immediately following
the Purchase Contract Settlement Date. If this Agreement is terminated pursuant
to any of the other provisions hereof, except as otherwise provided herein, the
Company shall not be under any liability to the Remarketing Agents and the
Remarketing Agents shall not be under any liability to the Company, except that
if this Agreement is terminated by the Remarketing Agents because of any failure
or refusal on the part of the Company to comply with the terms or to fulfill any
of the conditions of this Agreement, the Company will reimburse the Remarketing
Agents for all of their reasonable and documented out-of-pocket expenses
(including the reasonable and documented fees and disbursements of its counsel)
reasonably incurred by it. Notwithstanding any termination of this Agreement, in
the event there has been a Successful Remarketing, the obligations set forth in
Section 4 hereof shall survive and remain in full force and effect until all
amounts payable under said Section 4 shall have been paid in full. In addition,
Sections 7, 8, 11, 17 and 18 hereof shall survive the termination of this
Agreement or the resignation or removal of the Remarketing Agents.
Section
14. Notices. All
statements, requests, notices and agreements hereunder shall be in writing,
and:
(a) if to the
Remarketing Agents, shall be delivered or sent by mail, telex or facsimile
transmission on behalf of all the Remarketing Agents to Banc of America
Securities LLC, 000 Xxxxx XxXxxxx Xxxxxx, XX0-000-00-00, Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx XxXxxxxxx (Fax: 000-000-0000) and to Xxxxxx Brothers Inc., 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: Debt Capital Markets, Power
Group (Fax: 000-000-0000) with a copy to the General Counsel at the same
address;
(b) if to the
Company, shall be delivered or sent by mail, telex or facsimile transmission to
PNM Resources, Inc., Xxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxx Xxxxxx 00000, Attention:
Treasurer (Fax: (000) 000-0000); and
(c) if to the
Purchase Contract Agent, shall be delivered or sent by mail or facsimile
transmission to The Bank of New York, x/x Xxx Xxxx xx Xxx Xxxx Trust Company,
N.A., 000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000,
Attention: Corporate Trust Administration (Fax: (000) 000-0000).
Any such
statements, requests, notices or agreements shall take effect at the time of
receipt thereof.
Section
15. Persons Entitled to Benefit of
Agreement. This
Agreement shall inure to the benefit of and be binding upon each party hereto
and its respective successors. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except that (x) the
representations, warranties, indemnities and agreements of the Company contained
in this Agreement shall also be deemed to be for the benefit of the Remarketing
Agents and the person or persons, if any, who control one or more of the
Remarketing Agents within the meaning of Section 15 of the Securities Act and
(y) the indemnity agreement of the Remarketing Agents contained in Section 7 of
this Agreement shall be deemed to be for the benefit of the Company’s directors
and officers who signed the Registration Statement, if any, and any person
controlling the Company within the meaning of Section 15 of the Securities Act.
Nothing contained in this Agreement is intended or shall be construed to give
any person, other than the persons referred to herein, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
contained herein.
Section
16. Survival.
The
respective indemnities, representations, warranties and agreements of the
Company and the Remarketing Agents contained in this Agreement or made by or on
behalf of them, respectively, pursuant to this Agreement, shall survive any
Remarketing and shall remain in full force and effect, regardless of any
investigation made by or on behalf of any of them or any person controlling any
of them.
Section
17. Governing Law.
This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York.
Section
18. Judicial
Proceedings.
(a) Each
party hereto expressly accepts and irrevocably submits to the non-exclusive
jurisdiction of the United States Federal or New York State court sitting in the
Borough of Manhattan, The City of New York, New York, over any suit, action or
proceeding arising out of or relating to this Agreement or the Remarketed Senior
Notes. To the fullest extent it may effectively do so under applicable law, each
party hereto irrevocably waives and agrees not to assert, by way of motion, as a
defense or otherwise, any claim that it is not subject to the jurisdiction of
any such court, any objection that it may now or hereafter have to the laying of
the venue of any such suit, action or proceeding brought in any such court and
any claim that any such suit, action or proceeding brought in any such court has
been brought in an inconvenient forum.
(b) Each
party hereto agrees, to the fullest extent that it may effectively do so under
applicable law, that a judgment in any suit, action or proceeding of the nature
referred to in Section 18(a) brought in any such court shall be conclusive and
binding upon such party, subject to rights of appeal, and may be enforced in the
courts of the United States of America or the State of New York (or any other
court the jurisdiction to which the Company is or may be subject) by a suit upon
such judgment.
Section
19. Counterparts. This
Agreement may be executed in one or more counterparts and, if executed in more
than one counterpart, the executed counterparts shall each be deemed to be an
original but all such counterparts shall together constitute one and the same
instrument.
Section
20. Headings. The
headings herein are inserted for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this
Agreement.
Section
21. Severability. If any
provision of this Agreement shall be held or deemed to be or shall, in fact, be
invalid, inoperative or unenforceable as applied in any particular case in any
or all jurisdictions because it conflicts with any provisions of any
constitution, statute, rule or public policy or for any other reason, then, to
the extent permitted by law, such circumstances shall not have the effect of
rendering the provision in question invalid, inoperative or unenforceable in any
other case, circumstance or jurisdiction, or of rendering any other provision or
provisions of this Agreement invalid, inoperative or unenforceable to any extent
whatsoever.
Section
22. Amendments. This
Agreement may be amended by an instrument in writing signed by the parties
hereto. Each of the Company and the Purchase Contract Agent agrees that it will
not enter into, cause or permit any amendment or modification of the Transaction
Documents or any other instruments or agreements relating to the Applicable
Ownership Interests in Senior Notes, the Remarketed Senior Notes or the
Corporate Units that would in any way adversely affect the rights, duties and
obligations of the Remarketing Agents, without the prior written consent of the
Remarketing Agents.
Section
23. Successors and
Assigns. Except
in the case of a succession pursuant to the terms of the Purchase Contract and
Pledge Agreement, the rights and obligations of the Company hereunder may not be
assigned or delegated to any other Person without the prior written consent of
the Remarketing Agents. The rights and obligations of the Remarketing Agents
hereunder may not be assigned or delegated to any other Person (other than an
affiliate of the Remarketing Agents) without the prior written consent of the
Company.
If the
foregoing correctly sets forth the agreement by and among the Company, the
Remarketing Agents and the Purchase Contract Agent, please indicate your
acceptance in the space provided for that purpose below.
[SIGNATURES
ON THE FOLLOWING PAGES]
Very
truly yours,
PNM
RESOURCES, INC.
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx
X. Xxxx
Title: Vice
President and Treasurer
CONFIRMED
AND ACCEPTED:
BANC OF
AMERICA SECURITIES LLC, as Remarketing Agent
By:
/s/ Xxx Xxxxxxxx
Name: Xxx
Xxxxxxxx
Title:
Managing Director
CONFIRMED
AND ACCEPTED:
XXXXXX
BROTHERS INC., as Remarketing Agent
By: /s/ Xxxxxxx X. Xxxx
Name:
Xxxxxxx X. Xxxx
Title:
Managing Director
CONFIRMED
AND ACCEPTED:
CITIGROUP
GLOBAL MARKETS INC., as Remarketing Agent
By: /s/ Xxxxx Bednowski
Name: Xxxxx
Bednowski
Title:
Managing Director
CONFIRMED
AND ACCEPTED:
DEUTSCHE
BANK SECURITIES INC., as Remarketing Agent
By: /s/ Ben Smitchensky
Name: Ben
Smitchensky
Title:
Managing Director
By:
/s/ Xxxx Xxxxxxxxxx
Name:
Xxxx Xxxxxxxxxx
Title:
Director
CONFIRMED
AND ACCEPTED:
X.X.
XXXXXX SECURITIES INC., as Remarketing Agent
By:
/s/ Xxxxxxx X.
Xxxxxxx
Name:
Xxxxxxx Xxxxxxx
Title:
Vice President
CONFIRMED
AND ACCEPTED:
XXXXXXX
LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED,
as Remarketing Agent
By: /s/ Xxxxxx Xxxxxx
Name:
Xxxxxx Xxxxxx
Title:
Vice President
CONFIRMED
AND ACCEPTED:
XXXXXX
XXXXXXX & CO. INCORPORATED, as Remarketing Agent
By: /s/ Xxxx
Xxxxxxxxxxx
Name: Xxxx
Xxxxxxxxxxx
Title:
Executive Director
CONFIRMED
AND ACCEPTED:
RBC
CAPITAL MARKETS CORPORATION, as Remarketing Agent
By: /s/ Xxxx Xxxx
Name:
Xxxx Xxxx
Title:
Managing Director
[PNM
Resources, Inc. Supplemental Remarketing Agreement]
CONFIRMED
AND ACCEPTED:
WACHOVIA
CAPITAL MARKETS, LLC, as Remarketing Agent
By: /s/ Xxx Kabutznick
Name: Xxx
Kabutznick
Title:
Managing Director
[PNM
Resources, Inc. Supplemental Remarketing Agreement]
CONFIRMED
AND ACCEPTED:
WEDBUSH
XXXXXX SECURITIES INC., as Remarketing Agent
By: /s/ Xxxxxxx Xxxxxxx
Name:
Xxxxxxx Xxxxxxx
Title:
Executive Vice President
[PNM
Resources, Inc. Supplemental Remarketing Agreement]
THE BANK
OF NEW YORK,
not
individually, but solely as Purchase
Contract
Agent and as attorney-in-fact for
the
Holders of the Purchase Contracts
By: /s/ Xxxxxx X. Xxxxxxx
Name:
Xxxxxx X. Xxxxxxx
Title:
Assistant Vice President
[PNM
Resources, Inc. Supplemental Remarketing Agreement]
SCHEDULE
1(j)
List of all subsidiaries of
the Company
|
1. Avistar,
Inc.
|
19. EIP
Refunding Corporation
|
|
2. FCP
Enterprises, Inc.
|
20. Facility
Works, Inc.
|
|
3. First
Choice Power GP, LLC
|
21. MCB
Financial Group, Inc.
|
|
4. First
Choice Power Retail LP
|
22. Xxxxxxx
Resources, Inc.
|
|
5. First
Choice Power Special Purpose, L.P.
|
23. PNM
Electric & Gas Services, Inc.
|
|
6. First
Choice Power, L.P.
|
24. PNMR
Development and Management Corporation
|
|
7. First
Choice Special Purpose GP, LLC
|
25. PNM
Merger Sub LLC
|
|
8. Xxxx
Power Company, LLC
|
26. Republic
Holding Company
|
|
9. PNM
Receivables Corp.
|
27. Republic
Savings Bank, F.S.B.
|
|
10. PNMR
Services Company
|
28. Sunbelt
Mining Company, Inc.
|
|
11. Public
Service Company of New Mexico
|
29. Sunterra
Gas Gathering Company
|
|
12. Texas-New
Mexico Power Company
|
30. Sunterra
Gas Processing Company
|
|
13. TNP
Enterprises, Inc.
|
31. Texas
Generating Company II, LLC
|
|
14. Bellamah
Associates Ltd.
|
32. Texas
Generating Company, L.P.
|
|
15. Bellamah
Community Development
|
33. TNP
Operating Company
|
|
16. Bellamah
Holding Company
|
34. TNP
Technologies L.L.C.
|
|
17. Bellamah
Holding Ltd.
|
35. TNPE
– Magnus L.L.C.
|
|
18. Bellamah
Investors Ltd.
|
36. XXXXX.xxx
|
SCHEDULE
2
|
·
|
Final
Term Sheet, to be dated the Applicable Time relating to the Remarketed
Senior Notes and the Additional Notes, as filed pursuant to Rule 433 under
the Securities Act and attached as Schedule 3
hereto.
|
|
·
|
[any
others to come]
|
SCHEDULE
3
FORM OF FIXED RATE TERM
SHEET
PNM
RESOURCES, INC.
[__]%
SENIOR UNSECURED NOTES DUE 2015
|
Issuer:
|
PNM
Resources, Inc.
|
|
Ratings:
|
[__]/[__]
(Xxxxx’x/S&P)
|
|
Aggregate
Principal Amount of Remarketed Notes and Underwritten
Notes:
|
$350,000,000
|
|
Security
Type:
|
Senior
Unsecured Notes
|
|
Legal
Format:
|
SEC
Registered
|
|
Settlement
Date:
|
May
16, 2008
|
|
Maturity
Date:
|
May
16, 2015
|
|
Issue
Price:
|
[__]%
of principal amount
|
|
Coupon:
|
[__]%
|
|
Benchmark
Treasury:
|
[__]%
due _______, 20[__]
|
|
Spread
to Benchmark Treasury:
|
[__]
basis points ([__]%)
|
|
[Treasury
Strike:
|
[__]%]
|
|
All-in
Yield:
|
[__]%
|
|
Interest
Payment Dates:
|
Semi-annually
on May 16 and November 16, commencing on November 16,
2008
|
|
Redemption
Provisions:
|
Not
redeemable
|
|
Denominations:
|
$1,000
and integral multiples thereof
|
|
Remarketing
Agents (reasonable efforts basis):
|
Banc
of America Securities LLC, Citigroup Global Markets Inc., Deutsche Bank
Securities Inc., X.X. Xxxxxx Securities Inc., Xxxxxx Brothers Inc.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxx
Xxxxxxx & Co. Incorporated, RBC Capital Markets Corporation, Wachovia
Capital Markets, LLC and Wedbush Xxxxxx Securities Inc.
|
|
Underwriters
(firm commitment):
|
Banc
of America Securities LLC, Citigroup Global Markets Inc., Deutsche Bank
Securities Inc., X.X. Xxxxxx Securities Inc., Xxxxxx Brothers Inc.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxx
Xxxxxxx & Co. Incorporated, RBC Capital Markets Corporation, Wachovia
Capital Markets, LLC and Wedbush Xxxxxx Securities Inc.
|
|
Qualified
Independent Underwriter:
|
Deutsche
Bank Securities Inc.
|
The
issuer has filed a registration statement (including a prospectus) with the U.S.
Securities and Exchange Commission (SEC) for this offering. Before
you invest, you should read the prospectus for this offering in that
registration statement, and other documents the issuer has filed with the SEC
for more complete information about the issuer and this offering. You
may get these documents for free by searching the SEC online database (XXXXX®)
at xxx.xxx.xxx. Alternatively,
you may obtain a copy of the prospectus from Banc of America Securities LLC by
calling 1-800-294-1322 or from Xxxxxx Brothers Inc. by calling
0-000-000-0000.
Note:
a securities rating is not a recommendation to buy, sell or hold securities and
may be subject to revision or withdrawal at any time.
EXHIBIT
A
FORM OF OPINION OF XXXXXXX
X. XXXXX
May 16,
0000
|
Xxxx
xx Xxxxxxx Securities LLC
Hearst
Tower
000
Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000
|
Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
0
Xxxxx Xxxxxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
|
Xxxxxx
Brothers Inc.
000
Xxxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
Xxxxxx
Xxxxxxx & Co. Incorporated
0000
Xxxxxxxx, Xxxxx 00
Xxx
Xxxx, Xxx Xxxx 00000
|
|
Citigroup
Global Markets Inc.
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
RBC
Capital Markets Corporation
Three
World Financial Center
000
Xxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
|
Deutsche
Bank Securities Inc.
00
Xxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
Wachovia
Capital Markets, LLC
One
Wachovia Center, DC-6
000
Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000
|
|
X.X.
Xxxxxx Securities Inc.
000
Xxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
Wedbush
Xxxxxx Securities Inc.
0000
Xxxxxxxx Xxxxxxxxx
Xxx
Xxxxxxx, Xxxxxxxxxx 00000
|
Ladies
and Gentlemen:
I have
acted as counsel for PNM Resources, Inc., a New Mexico corporation (the
“Company”), in connection with the remarketing by the Company of $[____] million
aggregate principal amount of [__]% Senior Notes due [____] (the “Remarketed
Senior Notes”) pursuant to the Supplemental Remarketing Agreement, dated as of
May [__], 2008 (the “Agreement”) by and among the Company, Banc of America
Securities LLC, Citigroup Global Markets Inc., Deutsche Bank Securities Inc.,
X.X. Xxxxxx Securities Inc., Xxxxxx Brothers Inc., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, Xxxxxx Xxxxxxx & Co.
Incorporated, RBC Capital Markets Corporation, Wachovia Capital Markets, LLC and
Wedbush Xxxxxx Securities Inc., as the reset agents and the remarketing agents
(together, the “Remarketing Agents”), and The Bank of New York, a New York
banking corporation (as successor to JPMorgan Chase Bank, N.A.), not
individually but solely as Purchase Contract Agent (the “Purchase Contract
Agent”) and as attorney-in-fact of the holders of Purchase Contracts, and
pursuant to the Indenture dated as of March 15, 2005 between the Company and The
Bank of New York (as successor to JPMorgan Chase Bank, N.A.), as Trustee (the
“Trustee”) (the “Indenture”), as supplemented by the Supplemental Indenture No.
1 dated as of March 30, 2005 between the Company and the Trustee (the “First
Supplemental Indenture”) and the Supplemental Indenture No. 2 dated as of May
16, 2008 between the Company and the Trustee (the “Second Supplemental
Indenture”). Capitalized terms used herein which are defined in the Agreement
have the meanings set forth in the Agreement, unless otherwise defined
herein.
A-1
This
opinion letter is delivered to you at the request of the Company pursuant to
Section 6(d) of the Agreement.
In
rendering the opinions set forth below, I have reviewed and examined the
Transaction Documents, the global Note, the Registration Statement, the
Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus
and such other documents as I have deemed necessary to render such
opinions. I have also examined originals or copies, certified or
otherwise identified to my satisfaction, of the articles of incorporation and
the bylaws or other organizational documents of the Company and each Significant
Subsidiary, resolutions of the Board of Directors of the Company and of the
pricing committee thereof, and certificates of public officials concerning the
legal existence and/or good standing of the Company and its Significant
Subsidiaries. In addition, I have examined such other records, agreements,
documents and other instruments, and such certificates or comparable documents
of public officials and of officers and representatives of the Company and its
Significant Subsidiaries, and have made such inquiries of such officers and
representatives, as I have deemed relevant and necessary as a basis for the
opinions hereinafter set forth.
As to
questions of fact material to such opinions, I have, when relevant facts were
not independently established, relied upon certificates of the Company and of
its officers, upon certificates and comparable documents of public officials,
and upon statements in the Registration Statement, the Preliminary Prospectus,
the Prospectus and each Issuer Free Writing Prospectus.
In making
the examinations of the Transaction Documents and the other documents described
above, I have assumed the genuineness of all signatures (other than the
signatures of the Company), the legal capacity of all natural persons, the
authenticity of all documents submitted to me as originals, the conformity to
original documents of all documents submitted to me as certified or photostatic
copies (including telecopies) and the authenticity of the originals of such
documents and the correctness of all statements of fact contained in all such
original documents. No opinion is expressed regarding compliance with covenants
in any agreement to which the Company or any of its subsidiaries is a party
incorporating calculations of a financial or accounting nature. I
have also assumed the validity and constitutionality of each relevant statute,
rule, regulation and agency covered by this opinion letter.
Based
upon the foregoing and subject to and limited by the qualifications stated
herein, I am of the opinion that:
(i) The
Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of New Mexico, with full corporate
power and authority to own its properties and conduct its business as described
in the most recent Preliminary Prospectus and the Prospectus and to enter into
and to perform its obligations under, or as contemplated by, the
Agreement. The Company is duly qualified to do business as a foreign
corporation in good standing under the laws of each jurisdiction which requires
such qualification where the failure to be so qualified would, individually, or
in the aggregate, reasonably be expected to have a Material Adverse
Effect.
A-2
(ii) Each
of Public Service Company of New Mexico, a New Mexico corporation, Texas-New
Mexico Power Company, a Texas corporation, TNP Enterprises, Inc., a Texas
corporation, First Choice Power, L.P., a Texas limited partnership, First Choice
Power Special Purpose, L.P., a Texas limited partnership, has been duly
incorporated or organized with full power and authority to own its properties
and conduct its business as described in the Prospectus. Each
Significant Subsidiary is validly existing as a corporation or other business
entity in good standing under the laws of the jurisdiction in which it is
chartered or organized. Each Significant Subsidiary is duly qualified
to do business as a foreign corporation or other business entity and is in good
standing under the laws of each jurisdiction which requires such qualification,
where the failure to be so qualified would, individually, or in the aggregate,
reasonably be expected to have a Material Adverse Effect. In giving
the opinions in the second sentence of this paragraph (ii), I have relied solely
on the certificates of recent dates issued by the jurisdiction of incorporation
or organization of each respective Significant Subsidiary as to the continued
existence and good standing of each Significant Subsidiary in its jurisdiction
of incorporation or organization listed in Annex A hereto and no other
investigation or inquiry with respect thereto has been made. In
giving the opinion in the third sentence of this paragraph (ii) as to the due
qualification and good standing of each Significant Subsidiary as a foreign
entity, I have relied solely on the certificates of good standing issued by the
jurisdiction where each Significant Subsidiary is qualified to do business as a
foreign entity listed in Annex A hereto and no other investigation or inquiry
with respect thereto has been made.
(iii)
The Company has an authorized capitalization as set forth in each of the most
recent Preliminary Prospectus and the Prospectus.
(iv) All
of the issued and outstanding shares of capital stock or equivalent equity
rights of each Significant Subsidiary of the Company have been duly authorized
and validly issued, are fully paid and non-assessable, and (except for
outstanding preferred stock of Public Service Company of New Mexico, which is
owned by third parties) are owned directly or indirectly by the Company, and
are, to my knowledge after reasonable inquiry, free from liens, encumbrances and
defects of title.
(v) None
of the execution, delivery and performance of the Transaction Documents by the
Company, the consummation of the transactions contemplated in the Transaction
Documents and the application of the proceeds from the sale of the Remarketed
Senior Notes as described under “Use of Proceeds” in the most recent Preliminary
Prospectus and Prospectus, will (i) conflict with, result in a breach or
violation of, or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any of its Significant Subsidiaries pursuant to, any
statute, law, rule, regulation or, to my knowledge after reasonable inquiry,
judgment, order or decree applicable to the Company or any of its Significant
Subsidiaries of any court, regulatory body, administrative agency, governmental
body, arbitrator or other authority having jurisdiction over the Company or any
of its Significant Subsidiaries or any of its or their properties or (ii)
conflict with, result in a breach or violation of, or imposition of any lien,
charge or encumbrance upon any property or assets of the Company and its
subsidiaries, or constitute a default under any indenture, mortgage, deed of
trust, loan agreement, license or other agreement or instrument known to me
after reasonable inquiry to which the Company or any of its Significant
Subsidiaries is a party or by which the Company or any of its Significant
Subsidiaries is subject.
A-3
(vi) To
my knowledge after reasonable inquiry, and except as described in each of the
most recent Preliminary Prospectus and the Prospectus, (A) no action, suit or
proceeding by or before any court or governmental agency, authority or body or
any arbitrator involving the Company or any of its Significant Subsidiaries or
its or their property is pending or threatened that (1) could reasonably be
expected to have a material adverse effect on the performance of the Agreement
or the consummation of any of the transactions contemplated thereby or (2) could
reasonably be expected to have a Material Adverse Effect; and (B) no labor
disturbance by or dispute with the employees of the Company exists or is
threatened or is imminent that could reasonably be expected to have a Material
Adverse Effect.
(vii) The
statements set forth in the most recent Preliminary Prospectus and the
Prospectus under the caption “Description of Notes” and “Description of Debt
Securities” insofar as they purport to constitute a summary of the terms of the
securities, are accurate summaries in all material respects.
(viii) Each
of the Indenture, the First Supplemental Indenture and the Second Supplemental
Indenture has been duly authorized, executed and delivered by the
Company.
(ix) The
Agreement has been duly authorized, executed and delivered by the
Company.
(x)
The Remarketed Senior Notes have been duly authorized, executed and validly
issued by the Company.
I am a
member of the Bar of the State of New Mexico, and, except as to the opinion
provided in paragraph (ii) above as to the due incorporation or organization of
each Significant Subsidiary incorporated or organized in the State of Texas, as
to which I am relying on [name], [title] of [the Company] who is an expert on
the laws of the State of Texas, for purposes of this opinion, do not hold myself
out as an expert on the laws of any jurisdiction other than the State of New
Mexico and express no opinion as to any choice of law matters nor as to, or the
effect or applicability of, any laws other than the laws of the State of New
Mexico, except that I express no opinion as to the applicability of, or
compliance with, New Mexico “blue sky” or state securities laws. The
opinions herein are expressed as of the date hereof, and I assume no obligation
to revise, update or supplement such opinions to reflect any change in any fact
or circumstance that hereafter comes to my attention, or any change in law that
may hereafter occur, whether by legislative action, judicial decision, or in any
other manner. This opinion letter is furnished only to you in
connection with the contemplated transactions and is solely for your
benefit. This opinion letter may not be used, relied upon,
circulated, quoted or otherwise referred to for any purpose without my prior
written consent (including by any person who acquires Remarketed Senior Notes
from the Remarketing Agents), except as may be required by applicable law or
regulation.
A-4
Very truly yours,
By Xxxxxxx
X. Xxxxx
Associate General Counsel
PNM Resources, Inc.
A-5
EXHIBIT
B
FORM OF OPINION OF XXXXXXXX
XXXXXXX LLP
May 16,
0000
|
Xxxx
xx Xxxxxxx Securities LLC
Hearst
Tower
000
Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000
|
Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
0
Xxxxx Xxxxxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
|
Xxxxxx
Brothers Inc.
000
Xxxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
Xxxxxx
Xxxxxxx & Co. Incorporated
0000
Xxxxxxxx, Xxxxx 00
Xxx
Xxxx, Xxx Xxxx 00000
|
|
Citigroup
Global Markets Inc.
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
RBC
Capital Markets Corporation
Three
World Financial Center
000
Xxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
|
Deutsche
Bank Securities Inc.
00
Xxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
Wachovia
Capital Markets, LLC
One
Wachovia Center, DC-6
000
Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000
|
|
X.X.
Xxxxxx Securities Inc.
000
Xxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
Wedbush
Xxxxxx Securities Inc.
0000
Xxxxxxxx Xxxxxxxxx
Xxx
Xxxxxxx, Xxxxxxxxxx 00000
|
Ladies
and Gentlemen:
We have
acted as counsel for PNM Resources, Inc., a New Mexico corporation (the
“Company”), in connection with the remarketing by the Company of $[____] million
aggregate principal amount of [__]% Senior Notes due [____] (the “Remarketed
Senior Notes”) pursuant to the Supplemental Remarketing Agreement, dated as of
May [__], 2008 (the “Agreement”) by and among the Company, Banc of America
Securities LLC, Citigroup Global Markets Inc., Deutsche Bank Securities Inc.,
X.X. Xxxxxx Securities Inc., Xxxxxx Brothers Inc., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, Xxxxxx Xxxxxxx & Co.
Incorporated, RBC Capital Markets Corporation, Wachovia Capital Markets, LLC and
Wedbush Xxxxxx Securities Inc., as the reset agents and the remarketing agents
(together, the “Remarketing Agents”), and The Bank of New York, a New York
banking corporation (as successor to JPMorgan Chase Bank, N.A.), not
individually but solely as Purchase Contract Agent (the “Purchase Contract
Agent”) and as attorney-in-fact of the holders of Purchase Contracts, and
pursuant to the Indenture dated as of March 15, 2005 between the Company and The
Bank of New York (as successor to JPMorgan Chase Bank, N.A.), as Trustee (the
“Trustee”) (the “Indenture”), as supplemented by Supplemental Indenture No. 1
dated as of March 30, 2005 between the Company and the Trustee (the “First
Supplemental Indenture”) and Supplemental Indenture No. 2 dated as of May 16,
2008 between the Company and the Trustee (the “Second Supplemental Indenture”).
Capitalized terms used herein which are defined in the Agreement have the
meanings set forth in the Agreement, unless otherwise defined
herein.
B-1
This
opinion letter is delivered to you at the request of the Company pursuant to
Section 6(d) of the Agreement.
In
rendering the opinions set forth below, we have reviewed and examined the
Transaction Documents, the global Note, the Registration Statement, the
Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus
and such other documents as we have deemed necessary to render such
opinions. We have also examined originals or copies, certified or
otherwise identified to our satisfaction, of the articles of incorporation and
the bylaws or other organizational documents of the Company, FCP Enterprises,
Inc., a Delaware corporation (“FCPE”), EnergyCo, LLC, a Delaware limited
liability company (“EC”), and resolutions of the Board of Directors of the
Company and the pricing committee thereof. In addition, we have
examined such other records, agreements, documents and other instruments, and
such certificates or comparable documents of public officials and of officers
and representatives of the Company, and have made such inquiries of such
officers and representatives, as we have deemed relevant and necessary as a
basis for the opinions hereinafter set forth.
As to
questions of fact material to such opinions, we have, when relevant facts were
not independently established, relied upon certificates of the Company and of
its officers, upon certificates and comparable documents of public officials,
and upon statements in the Registration Statement, the Preliminary Prospectus,
the Prospectus and each Issuer Free Writing Prospectus. As to all
matters of New Mexico law, including the opinion set out in paragraph 2 below,
to the extent that it relates to New Mexico law, we are relying exclusively on
the opinion letter of Xxxxxxx X. Xxxxx, Associate General Counsel, SEC Reporting
and Corporate Transactions, of the Company, dated May 16, 2008. As
used herein, the phrase “to the best of our knowledge” means knowledge based
upon and limited to the representations and warranties of the Company contained
in the Agreement and in the documents delivered by the Company pursuant to the
Agreement, inquiries of an appropriate officer of the Company whom we have
determined is likely to have personal knowledge of the matters covered by the
opinion, and the current conscious awareness of facts of the attorneys currently
practicing law with our firm who had involvement in the transaction contemplated
by the Agreement.
In making
the examinations of the Transaction Documents and the other documents described
above, we have assumed the genuineness of all signatures (other than the
signatures of the Company), the legal capacity of all natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies (including telecopies) and the authenticity of the originals of such
documents and the correctness of all statements of fact contained in all such
original documents. No opinion is expressed regarding compliance with
covenants in any agreement to which the Company or any of its subsidiaries is a
party incorporating calculations of a financial or accounting
nature. We have also assumed the due authorization, execution and
delivery of such documents by parties other than the Company and the validity
and constitutionality of each relevant statute, rule, regulation and agency
covered by this opinion letter.
B-2
Based
upon the foregoing and subject to and limited by the qualifications stated
herein, we are of the opinion that:
(1) Each
of FCPE and EC have been duly incorporated or organized with full power and
authority to own its properties and conduct its business as described in the
Prospectus.
(2) Each
of the Indenture, the First Supplemental Indenture and the Second Supplemental
Indenture constitutes a valid and binding agreement of the Company enforceable
against the Company in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization or similar laws
relating to or affecting creditors’ rights generally and by general equitable
principles (regardless of whether such enforceability is considered in a
proceeding in equity or at law); and the Indenture has been duly qualified under
the Trust Indenture Act.
(3) The
Remarketed Senior Notes have been duly issued and delivered, and constitute
valid and binding obligations of the Company, entitled to the benefits of the
Indenture, the First Supplemental Indenture and the Second Supplemental
Indenture, enforceable against the Company in accordance with their terms,
except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or other similar laws relating to or affecting the enforcement of
creditors’ rights generally and by general equitable principles (regardless of
whether such enforceability is considered in a proceeding in equity or at
law).
(4) The
Agreement has been duly and validly authorized, executed and delivered by the
Company.
(5) None
of the execution, delivery and performance of the Transaction Documents by the
Company, the consummation of the transactions contemplated in the Transaction
Documents and the application of the proceeds from the sale of the Remarketed
Senior Notes as described under “Use of Proceeds” in the most recent Preliminary
Prospectus and Prospectus, will conflict with, result in a breach or violation
or imposition of any lien, charge or encumbrance upon any property or assets of
the Company or any of its Significant Subsidiaries pursuant to, (A) the charter,
bylaws, or other organizational documents of the Company or any of its
Significant Subsidiaries or (B) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which the Company or any of its
Significant Subsidiaries is a party or bound or to which its or their property
is subject and which is filed as an exhibit to the Company’s most recent Annual
Report on Form 10-K filed with the Commission.
(6) No
consent, approval, authorization, filing with or order of any court or
governmental agency or body is required to be obtained by the Company for the
solicitation of offers to purchase the Remarketed Senior Notes, the remarketing
of the Remarketed Senior Notes or the consummation by the Company of the
transactions contemplated by the Transaction Documents, except such as have been
obtained under the Securities Act and such as may be required under the blue sky
laws of any jurisdiction (as to which we do not express any opinion) in
connection with the remarketing and distribution of the Remarketed Senior Notes
in the manner contemplated in the Agreement and in the Prospectus.
B-3
(7) The
Registration Statement became effective under the Securities Act as of the date
it was filed with the Commission, and the Prospectus was filed with the
Commission pursuant to Rule 424(b) under the Securities Act on May [__],
2008. To the best of our knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceeding
for that purpose is pending or threatened.
(8) (A)
The Registration Statement, on the latest Effective Date and on the Remarketing
Settlement Date, and (B) the Prospectus, when filed with the Commission pursuant
to Rule 424(b) and on the Remarketing Settlement Date, (except in each case as
to financial statements and other financial or statistical data contained or
incorporated by reference therein, upon which such counsel need not pass),
complied as to form in all material respects with the requirements of the
Securities Act and the respective rules and regulations of the Commission
thereunder; each document incorporated therein by reference as originally filed
pursuant to the Exchange Act (except as to financial statements and other
financial or statistical data contained or incorporated by reference therein,
upon which we do not express any opinion) complied as to form when so filed in
all material respects with the requirements of the Exchange Act and the rules
and regulations of the Commission thereunder.
(9) The
statements made in each of the most recent Preliminary Prospectus and the
Prospectus under the caption “Certain United States Federal Income Tax
Considerations,” insofar as they purport to constitute summaries of matters of
United States federal tax law and regulations or legal conclusions with respect
thereto, constitute accurate summaries of the matters described therein in all
material respects.
(10) The
Company is not and after the application of the proceeds from the remarketing of
the Remarketed Senior Notes as described in the Prospectus, will not be, an
“investment company,” or an entity “controlled” by an investment company, as
such terms are defined in the Investment Company Act of 1940, as
amended.
* * * *
We have
participated in conferences with officers and other representatives of the
Company at which the contents of the Registration Statement, the Prospectus, the
Preliminary Prospectus and related matters were discussed and we have consulted
with officers and other employees of the Company to inform them of the
disclosure requirements under the Securities Act. We have examined
various reports, records, contracts and other documents of the Company and
orders and instruments of public officials, which our investigation led us to
deem pertinent. In addition, we participated in one or more due
diligence conferences with representatives of the Company and attended the
closing at which the Company satisfied the conditions contained in Section 7 of
the Agreement. We have not, however, undertaken to make any
independent review of other records of the Company which our investigation did
not lead us to deem pertinent. As to the statistical statements in
the most recent Preliminary Prospectus, Prospectus and Registration Statement
(which includes the documents incorporated by reference therein), we have relied
solely on the officers of the Company. We accordingly assume no
responsibility for the
B-4
accuracy,
completeness or fairness of the statements contained in the most recent
Preliminary Prospectus, the Prospectus or the Registration Statement, except as
specifically stated in numbered opinion (7) above, and we have not made any
independent check or verification thereof. But such conferences,
consultation, examination and attendance disclosed to us no information with
respect to such other matters that gives us reason to believe that and, on the
basis of the foregoing, no facts have come to our attention which have led us to
believe that (i) the Registration Statement, as of the Effective Date and as of
May [__], 2008, contained or contains any untrue statement of a material fact or
omitted or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) the Prospectus, as
of its date and as of the date hereof, contained or contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading, or (iii) the most recent Preliminary Prospectus,
together with the Issuer Free Writing Prospectuses in the Pricing Disclosure
Package, as of the Applicable Time, contained any untrue statement of a material
fact or omits to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading; in each case, except with respect to the financial statements and
other financial or statistical data included in or incorporated by reference in
the Registration Statement, the Prospectus, the most recent Preliminary
Prospectus and the Issuer Free Writing Prospectus in the Disclosure Package, as
to which we express no opinion.
The
Agreement is governed by the laws of the State of New York. We
express no opinion as to, or the effect or applicability of, any laws other than
the laws of the State of New York, the federal laws of the United States of
America and, in the case of the opinion in paragraph (1) above relating to FCPE,
the general corporate laws of the State of Delaware. We
express no opinion as to the applicability of, or compliance with, any state
securities or blue sky laws.
The
opinions herein are expressed as of the date hereof, and we assume no obligation
to revise, update or supplement such opinions to reflect any change in any fact
or circumstance that hereafter comes to our attention, or any change in law that
may hereafter occur, whether by legislative action, judicial decision, or in any
other manner. This opinion letter is furnished only to you in
connection with the contemplated transactions and is solely for your
benefit. This opinion letter may not be used, relied upon,
circulated, quoted or otherwise referred to for any purpose without our prior
written consent (including by any person who acquires Remarketed Senior Notes
from the Remarketing Agents), except as may be required by applicable law or
regulation.
Very
truly yours,
B-5
