REMARKETING AGREEMENT
Exhibit
4.9
EXECUTION
COPY
October
7, 0000
Xxxx
xx
Xxxxxxx Securities LLC
0
Xxxx
00xx Xxxxxx
Xxx
Xxxx,
XX 00000
U.S.
Bank
National Association
000
Xxxx
Xxxxxx, Xxxxx 0000
Xxx
Xxxx,
XX 00000
Ladies
and Gentlemen:
This
Remarketing Agreement is dated as of October 7, 2005 (the “Agreement”)
among
PNM Resources, Inc., a New Mexico corporation (the “Company”),
Banc
of America Securities LLC, as the Remarketing Agent (the “Remarketing
Agent”),
and
U.S. Bank National Association, a national banking association, 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 Agreement referred to below).
Section
1. Definitions.
(a) Capitalized
terms used and not defined in this Agreement shall have the respective meanings
set forth in the Purchase Contract Agreement, dated as of October 7, 2005,
between the Company and U.S. Bank National Association, as Purchase Contract
Agent, as amended from time to time (the “Purchase
Contract Agreement”).
(b) As
used
in this Agreement, the following terms have the following meanings:
“Agreement”
has
the
meaning set forth in the first paragraph of this agreement.
“Company”
has the
meaning set forth in the first paragraph of this Agreement.
“Depositary”
means a
clearing agency registered under Section 17A of the Exchange Act that is
designated by the Company to act as Depositary for the Units.
“Depositary
Participant”
means a
broker, dealer, bank, other financial institution or other Person for whom
from
time to time the Depositary effects book-entry transfers and pledges of
securities deposited with the Depositary.
“Most
Recent Agreement” means
the
underwriting agreement to which the Company or Public Service Company of New
Mexico (“PNM”)
is a
party with respect to the issuance and sale by the Company or PNM, as the case
may be, of its senior unsecured notes or securities comprised in part of its
senior unsecured notes, which agreement was entered into most recently prior
to
the Remarketing Date.
“Preliminary
Prospectus”
means
any preliminary prospectus relating to the Remarketed Senior Notes included
in
the Registration Statement or supplementing such Registration Statement pursuant
to Rule 424(b) under the Securities Act, including the documents incorporated
by
reference therein as of the date of such Preliminary Prospectus; and any
reference to any amendment or supplement to such Preliminary Prospectus shall
be
deemed to refer to and include any documents filed after the date of such
Preliminary Prospectus under the Exchange Act, and incorporated by reference
in
such Preliminary Prospectus.
“Prospectus”
means
the prospectus relating to the Remarketed Senior Notes included in the
Registration Statement, in the form in which it was first used by the
Remarketing Agent to confirm sales of the Remarketed Senior Notes in the
Remarketing, including the documents incorporated by reference therein as of
the
date of such Prospectus; and any reference to any amendment or supplement to
such Prospectus shall be deemed to refer to and include any documents filed
after the date of such Prospectus under the Exchange Act, and incorporated
by
reference in such Prospectus.
“Purchase
Contract Agent”
has the
meaning set forth in the first paragraph of this Agreement.
“Registration
Statement”
means a
registration statement under the Securities Act of 1933, as amended (the
“Securities
Act”)
prepared by the Company pursuant to Section
5
hereunder covering, inter alia, the Remarketing of the Remarketed Senior Notes,
including all exhibits thereto and the documents incorporated by reference
in
the prospectus contained in such registration statement, and any post-effective
amendments thereto.
“Remarketed
Senior Notes”
means
the Pledged Senior Notes and the Separate Senior Notes, if any, subject to
Remarketing as identified to the Remarketing Agent by the Purchase Contract
Agent and the Custodial Agent, respectively, after 11:00 a.m., New York City
time, on the Business Day immediately preceding the applicable Remarketing
Date,
and shall include: (a) (i) in the case of the Initial Remarketing, the Pledged
Senior Notes and (ii) in the case of the Final Remarketing, the Senior Notes
of
the Holders of Corporate Units who have not notified the Purchase Contract
Agent
on or prior to 5:00 p.m., New York Time, on the fifth 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 Agreement or who have so notified the Purchase Contract Agent
but failed to make the required cash payment on the fourth Business Day
immediately preceding the Purchase Contract Settlement Date pursuant to the
terms of the Purchase Contract 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 be remarketed in such Remarketing pursuant to the terms
of
the Purchase Contract Agreement.
“Remarketing”
means
the remarketing of the Remarketed Senior Notes pursuant to this
Agreement.
2
“Remarketing
Agent”
means
Banc of America Securities LLC or any successor remarketing agent appointed
by
the Company pursuant to Section
10
hereof.
“Remarketing
Date”
means
either the Initial Remarketing Date (as defined herein) or the Final Remarketing
Date (as defined herein), as context requires.
“Remarketing
Materials”
means
the Preliminary Prospectus, the Prospectus or any other information furnished
by
the Company to the Remarketing Agent for distribution to investors in connection
with the Remarketing.
“Senior
Notes”
means
the senior notes due 2010 of the Company.
“Transaction
Documents”
means
this Agreement, the Purchase Contract Agreement, the Pledge Agreement and the
Indenture, in each case as amended or supplemented from time to
time.
Section
2. Appointment
and Obligations of the Remarketing Agent.
(a) The
Company hereby appoints Banc of America Securities LLC as the exclusive
Remarketing Agent, and, subject to the terms and conditions set forth herein,
Banc of America Securities LLC hereby accepts appointment as Remarketing Agent,
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 Agreement and the
Indenture, the Reset Rate for the Senior Notes, and (iii) performing such other
duties as are assigned to the Remarketing Agent in the Transaction
Documents.
(b) Unless
a
Special Event Redemption has occurred prior to such date, on the third Business
Day immediately preceding August 16, 2008 (the “Initial
Remarketing Date”),
the
Remarketing Agent shall use commercially reasonable efforts to remarket (based
on the Reset Rate) (the “Initial
Remarketing”)
the
Remarketed Senior Notes, at a price (the “Remarketing
Price”)
equal
to approximately 100.25% (or, if the Remarketing Agent is unable to remarket
the
Remarketed Senior Notes at such a rate, at a rate below 100.25% in the
discretion of the Remarketing Agent, but in no event less than 100.00%) of
the
sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes
Purchase Price.
(c) In
the
case of a Failed Initial Remarketing and unless a Special Event Redemption
has
occurred prior to such date, on the third Business Day immediately preceding
the
Purchase Contract Settlement Date (the “Final
Remarketing Date”),
the
Remarketing Agent shall use its commercially reasonable efforts to remarket
(based on the Reset Rate) (the “Final
Remarketing”)
the
Remarketed Senior Notes at a price (the “Final
Remarketing Price”)
equal
to approximately 100.25% (or, if the Remarketing Agent is unable to remarket
the
Remarketed Senior Notes at such a rate, at a rate below 100.25% in the
discretion of the Remarketing Agent, but in no event less than 100.00%) of
the
aggregate principal amount of the Remarketed Senior Notes being remarketed
in
such Final Remarketing. 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 100% of the sum of the Treasury
Portfolio Purchase Price and the Separate Senior Notes Purchase Price, in the
case of the Initial Remarketing, and at least 100% of the aggregate principal
amount of the Remarketed Senior Notes, in the case of the Final
Remarketing.
3
(d) In
connection with each Remarketing, the Remarketing Agent 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 Senior Notes should
bear (the “Reset
Rate”)
in
order for the Remarketed Senior Notes to have an aggregate market value equal
to
the Remarketing Price or the Final Remarketing Price, as the case may be, and
that in the sole reasonable discretion of the Remarketing Agent will enable
it
to remarket all of the Remarketed Senior Notes at the Remarketing Price or
Final
Remarketing Price, as the case may be, in such Remarketing.
(e) In
the
event of a Failed Remarketing or if no Senior Notes are included in Corporate
Units, and if none of the holders of the Separate Senior Notes elect to have
Senior Notes be remarketed in such Remarketing, the applicable interest rate
on
the Senior Notes will not be reset and will continue to be the Coupon Rate
set
forth in the Indenture as supplemented from time to time.
(f) If,
by
4:00 p.m. (New York City time) on the applicable Remarketing Date, (i) the
Remarketing Agent is unable to remarket all of the Remarketed Senior Notes
at
the Remarketing Price or the Final Remarketing Price, as the case may be,
pursuant to the terms and conditions hereof or (ii) the Remarketing did not
occur on such Remarketing Date because one of the conditions set forth in
Section
7
hereof
was not satisfied, a Failed Remarketing shall be deemed to have occurred, and
the Remarketing Agent shall so advise, by telephone, the Depositary, the
Purchase Contract Agent and the Company. Whether or not there has been a Failed
Remarketing will be determined in the sole reasonable discretion of the
Remarketing Agent. Promptly following any Failed Remarketing, the Remarketing
Agent shall return Separate Senior Notes submitted for remarketing, if any,
to
the Custodial Agent for distribution to the appropriate Holders.
(g) In
the
event of a Successful Remarketing, by approximately 4:30 p.m. (New York City
time) on the applicable Remarketing Date, the Remarketing Agent shall advise,
by
telephone:
(i) the
Depositary, the Purchase Contract Agent and the Company of the Reset Rate
determined by the Remarketing Agent in such Remarketing and the number of
Remarketed Senior Notes sold in such Remarketing; and
(ii) 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; and
(iii) each
such
purchaser to give instructions to its Depositary Participant to pay the purchase
price on the third Business Day immediately following the date of such
Successful Remarketing in same-day funds against delivery of the Remarketed
Senior Notes purchased through the facilities of the Depositary.
4
The
Remarketing Agent shall also, if required by the Securities Act or the rules
and
regulations promulgated thereunder, deliver to each purchaser a Prospectus
in
connection with the Remarketing.
(h) After
deducting any fees specified in Section
4
below,
the proceeds from a Successful Remarketing (i) with respect to the Senior Notes
that are components of the Corporate Units, shall be paid to the Collateral
Agent in accordance with Sections
5.07
and
7.05
of the
Pledge Agreement, as the case may be, and Section
5.02
of the
Purchase Contract 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 Agreement and Sections
5.07
and
7.05
of the
Pledge Agreement.
(i) The
right
of each holder of Separate Senior Notes or Corporate Units to have Remarketed
Senior Notes remarketed and sold on any Remarketing Date shall be subject to
the
conditions that (i) the Remarketing Agent conducts a Remarketing pursuant to
the
terms of this Agreement, (ii) a Special Event Redemption has not occurred prior
to such Remarketing Date, (iii) the Remarketing Agent is able to find a
purchaser or purchasers for Remarketed Senior Notes at the Remarketing Price
or
the Final Remarketing Price, as the case may be, based on the Reset Rate, and
(iv) such purchaser or purchasers deliver the purchase price therefor to the
Remarketing Agent as and when required.
(j) It
is
understood and agreed that the Remarketing Agent 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 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, and without limitation of the foregoing, the
Remarketing Agent shall not be deemed an underwriter of the Remarketed Senior
Notes. The Company shall similarly not be obligated in any case to provide
funds
to make payment upon tender of the 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 (the
“Commencement
Date”)
and
(ii) on and as of the applicable Remarketing Date that:
(a) Each
of
the representations and warranties of the Company or PNM, as the case may be,
in
the Most Recent Agreement are, as to the Company mutatis mutandis
(with
respect to the Remarketed Senior Notes and the circumstances of their
remarketing), true and correct (with such representations and warranties, as
so
modified, being set forth at length in a certificate by the Company as to the
Company to be delivered pursuant to Section
7(a)
hereof).
(b) The
Registration Statement, if any, in the form delivered prior to the applicable
date set forth in the first paragraph of this Section
3
or to be
delivered to the Remarketing Agent, has been declared effective by the
Securities and Exchange Commission (the “Commission”)
under
the Securities Act and no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose has
been initiated or, to the best knowledge of the Company, threatened by the
Commission.
5
(c) The
documents incorporated by reference in the Prospectus, if any, at the time
when
they were filed with the Commission, complied in all material respects with
the
requirements of the Exchange Act and the rules and regulations of the Commission
thereunder, and, when read together with the other information in the
Prospectus, if any, at the time the Registration Statement and any amendments
thereto became effective, and at the Commencement Date, applicable Remarketing
Date and applicable settlement date, will not contain an untrue statement of
a
material fact or omit to state a material fact required to be stated therein
or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading; provided,
however,
that
this representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information relating to the
Remarketing Agent furnished in writing to the Company by the Remarketing Agent
or its counsel expressly for use in the Prospectus.
(d) The
Registration Statement, if any, complies, and any post-effective amendment
thereto, any Rule 462(b) Registration Statement and any Remarketing Materials
(and any amendment or supplement thereto) will comply in all material respects
with the requirements of the Securities Act and the rules and regulations
promulgated thereunder, and the Trust Indenture Act, and the Registration
Statement as amended and supplemented by the Prospectus, any post-effective
amendment thereto and any Rule 462(b) Registration Statement do not and will
not, as of the applicable effective date thereof, contain any 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. The
Prospectus, if any, as amended or supplemented, as of its date, and any further
supplements to the Prospectus, as of the applicable filing date as to any such
supplement and any Remarketing Materials (and any amendment or supplement
thereto), as of the date of such Remarketing Materials and the Remarketing
Date,
do not and will not contain any untrue statement of a material fact or omit
to
state a material fact necessary in order to make the statements therein, in
the
light of the circumstances under which they were made, not misleading. No
representation and warranty is made as to any statement of eligibility on Form
T-1 filed or incorporated by reference as part of the Registration Statement,
the Prospectus or the Remarketing Materials, or as to statements in or omissions
from the Registration Statement, the Prospectus or the Remarketing Materials
made in reliance upon and in conformity with written information furnished
to
the Company by the Remarketing Agent.
(e) This
Agreement has been duly authorized, executed and delivered by the
Company.
Section
4. Fees.
(a) In
the
event of a Successful Initial Remarketing of the Remarketed Senior Notes, the
Remarketing Agent will retain from any proceeds of the Successful Remarketing
as
a remarketing fee an amount equal to the lesser of (i) 25 basis points (.25%)
of
the sum of the Treasury Portfolio Purchase Price and the Separate Senior Note
Purchase Price and (ii) the amount of the proceeds of such Successful
Remarketing in excess of the Treasury Portfolio Purchase Price plus the Separate
Senior Notes Purchase Price; provided,
however,
that to
the extent that such amount is less than 25 basis points of the Treasury
Portfolio Price plus the Separate Senior Notes Purchase Price, the Company
shall
pay an amount, as an additional remarketing fee, to the Remarketing Agent equal
to such shortfall (such amount, together with the amount in the previous
sentence, the “Remarketing
Fee”).
6
(b) In
the
event of a Successful Final Remarketing of the Remarketed Senior Notes, the
Remarketing Agent will retain from any proceeds of the Successful Final
Remarketing as a remarketing fee an amount equal to the lesser of (i) 25 basis
points (.25%) of the aggregate principal amount of the Remarketed Senior Notes
and (ii) the amount of the proceeds of such Successful Final Remarketing in
excess of the aggregate principal amount of the Remarketed Senior Notes;
provided,
however,
that to
the extent that such amount is less than 25 basis points of the aggregate
principal amount of the remarketed Pledged Senior Notes and Separate Senior
Notes, the Company shall pay an amount, as an additional remarketing fee, to
the
Remarketing Agent equal to such shortfall (such amount, together with the amount
in the previous sentence, the “Final
Remarketing Fee”).
Section
5. Covenants
of the Company.
If and
to the extent the Remarketed Senior Notes are required, in connection with
the
Remarketing (in the view of counsel, which need not be in the form of a written
opinion, for either the Remarketing Agent or the Company), to be registered
under the Securities Act as in effect at the time of the Remarketing, the
Company covenants and agrees as follows:
(a) The
Company shall prepare the Registration Statement and the Prospectus, in a form
approved by the Remarketing Agent, which approval shall not be unreasonably
withheld, shall file any such Prospectus pursuant to the Securities Act within
the period required by the Securities Act and the rules and regulations
thereunder and shall use reasonable best efforts to cause the Registration
Statement to be declared effective by the Commission prior to the second
Business Day immediately preceding the applicable Remarketing Date.
(b) The
Company shall file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the Prospectus
that may, in the reasonable judgment of the Company or the Remarketing Agent,
be
required by the Securities Act or requested by the Commission.
(c) The
Company shall advise the Remarketing Agent, promptly after it receives notice
thereof, of the time when any amendment to the Registration Statement has been
filed or becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed and to furnish the Remarketing Agent with copies
thereof.
(d) The
Company shall 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.
(e) The
Company shall advise the Remarketing Agent, 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, of the suspension of the
qualification of any of the Remarketed Senior Notes for offering or sale in
any
jurisdiction, of the initiation or
7
threatening
of any proceeding for any such purpose, or of any request by the Commission
for
the amending or supplementing of the Registration Statement or the 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 any Prospectus or suspending
any such qualification, to use promptly reasonable best efforts to obtain its
withdrawal.
(f) The
Company shall furnish promptly to the Remarketing Agent such copies of the
following documents as the Remarketing Agent 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); (B)
the
Preliminary Prospectus and any amended or supplemented Preliminary Prospectus;
(C) the Prospectus and any amended or supplemented Prospectus; and (D) any
document incorporated by reference in the Prospectus (excluding exhibits
thereto); and, if at any time when delivery of a prospectus is required in
connection with the Remarketing, (i) any event shall have occurred as a result
of which the Prospectus as then amended or supplemented would include any 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
(ii)
for any other reason it shall otherwise be necessary during such same period
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 Agent and, upon
its request, to file such document and to prepare and furnish without charge
to
the Remarketing Agent and to any dealer in securities as many copies as the
Remarketing Agent may from time to time reasonably request of an amended or
supplemented Prospectus that will correct such statement or omission or effect
such compliance.
(g) Prior
to
filing with the Commission (A) any amendment to the Registration Statement
or
supplement to the Prospectus (other than any amendment or supplement resulting
solely from the incorporation by reference of any report under the Exchange
Act)
or (B) any Prospectus pursuant to Rule 424 under the Securities Act, the Company
shall furnish a copy thereof to the Remarketing Agent and counsel to the
Remarketing Agent; and shall not file any such amendment or supplement that
shall be reasonably disapproved by the Remarketing Agent.
(h) As
soon
as practicable, but in any event not later than eighteen months, after the
effective date of the Registration Statement, the Company shall make “generally
available to its 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 thereunder (including, at the
option of the Company, Rule 158 under the Securities Act). The terms
“generally
available to its security holders”
and
“earnings
statement”
shall
have the meanings set forth in Rule 158 under the Securities Act.
(i) The
Company shall take such action as the Remarketing Agent may reasonably request
in order to qualify the Remarketed Senior Notes for offer and sale under the
securities or “blue sky” laws of such jurisdictions as the Remarketing Agent may
reasonably request; provided
that in
no event shall the Company be required to qualify as a foreign corporation
or to
file a general consent to service of process in any jurisdiction or to subject
itself to taxation or any other obligation in any jurisdiction in which it
is
not otherwise subject.
8
(j) The
Company shall furnish the Remarketing Agent with such information and documents
as the Remarketing Agent may reasonably request in connection with the
transactions contemplated hereby, and to make reasonably available to the
Remarketing Agent and any accountant, attorney or other advisor retained by
the
Remarketing Agent 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.
Section
6. Payment
of Expenses.
The
Company agrees to pay (a) all costs incident to the preparation and printing
of
the Registration Statement, if any, any Prospectus and any other Remarketing
Materials and any amendments or supplements thereto, (b) all costs of
distributing the Registration Statement, if any, any Prospectus and any other
Remarketing Materials and any amendments or supplements thereto, (c) any fees
and expenses of qualifying the Remarketed Senior Notes under the securities
laws
of the several jurisdictions as provided in Section
5(i)
and of
preparing, printing and distributing a Blue Sky Memorandum, if any (including
the reasonable fees and expenses of counsel to the Remarketing Agent), (d)
all
other costs and expenses incident to the performance of the obligations of
the
Company hereunder and the Remarketing Agent hereunder and (e) the reasonable
fees and expenses of counsel to the Remarketing Agent in connection with its
duties hereunder.
Section
7. Conditions
to the Remarketing Agent’s Obligations. The obligations of the Remarketing Agent
hereunder shall be subject to the following conditions:
(a) The
representations and warranties of the Company contained herein shall be true
and
correct in all material respects on and as of the applicable Remarketing Date,
and the Company, the Purchase Contract Agent and the Collateral Agent shall
have
performed in all material respects all covenants and agreements contained herein
or in the Purchase Contract Agreement or Pledge Agreement to be performed on
their part at or prior to such date.
(b) There
shall not have occurred any of the following: (i) Trading generally shall have
been suspended or materially limited on the New York Stock Exchange, (ii)
trading of any securities of the Company shall have been materially suspended
or
limited on the New York Stock Exchange, (iii) a banking moratorium shall have
been declared by either Federal or New York State authorities, or (iv) there
shall have occurred a material adverse change in the financial markets, any
escalation of hostilities involving the United States or the declaration by
the
United States of a national emergency or war, if the effect of any such event
specified in this clause (b) in the judgment of the Remarketing Agent makes
it
impracticable or inadvisable to proceed with the Remarketing or the delivery
of
the Remarketed Senior Notes on the terms and in the manner contemplated in
the
Transaction Documents.
9
(c) The
Prospectus, if any, shall have been filed with the Commission pursuant to Rule
424(b) in the manner and within the time period required by Rule 424(b) under
the Securities Act; no stop order suspending the effectiveness of the
Registration Statement, any Rule 462(b) Registration Statement, or any
post-effective amendment to the Registration Statement shall be in effect and
no
proceedings for such purpose shall have been instituted or threatened by the
Commission and any request of the Commission for inclusion of additional
information in the Registration Statement or the Prospectus or otherwise shall
have been complied with.
(d) The
Company shall have furnished to the Remarketing Agent a certificate, dated
the
applicable Remarketing Date, of the Chief Financial Officer satisfactory to
the
Remarketing Agent stating that: (1) no order suspending the effectiveness of
the
Registration Statement, if any, or prohibiting the sale of the Remarketed Senior
Notes is in effect, and no proceedings for such purpose are pending before
or,
to the best knowledge of such officer, threatened by the Commission; (2) the
representations and warranties of the Company in Section
3
are true
and correct on and as of the applicable Remarketing Date, and the Company has
performed in all material respects all covenants and agreements contained herein
to be performed on its part at or prior to such Remarketing Date; and (3) the
Registration Statement, if any, as of its effective date, did not contain any
untrue statement of a material fact and did not omit to state any material
fact
required to be stated therein or necessary to make the statements therein not
misleading and the Prospectus or any other Remarketing Material did not, as
of
the date of such Prospectus or such Remarketing Material, if any, contain any
untrue statement of material fact or omit to state a material fact required
to
be stated therein or necessary to make the statements therein, in light of
the
circumstances under which they were made, not misleading.
(e) On
the
applicable Remarketing Date, the Remarketing Agent shall have received a letter
addressed to the Remarketing Agent and dated such date, in form and substance
satisfactory to the Remarketing Agent, from the Company’s independent
accountants reasonably acceptable to the Remarketing Agent, containing
statements and information of the type ordinarily included in accountants’
“comfort letters” with respect to the financial statements and certain financial
information of the Company and its consolidated subsidiaries contained in the
Remarketing Materials, if any.
(f) Xxxxxxxxx
& Xxxxxxxx LLP, or such other counsel reasonably acceptable to the
Remarketing Agent, shall have furnished to the Remarketing Agent its opinion,
as
counsel to the Company, addressed to the Remarketing Agent and dated the
applicable Remarketing Date, in form and substance reasonably satisfactory
to
the Remarketing Agent addressing such matters as are set forth in such counsel’s
opinion furnished pursuant to the Most Recent Agreement, adapted as necessary
to
relate to the securities being remarketed hereunder and to the Remarketing
Materials, if any, or to any changed circumstances or events occurring
subsequent to the date of this Agreement, such adaptations being reasonably
acceptable to counsel to the Remarketing Agent.
(g) Xxxxxxxx
Xxxxxxx LLP, or such other counsel reasonably acceptable to the Remarketing
Agent, shall have furnished to the Remarketing Agent its written opinion, as
special counsel to the Company, addressed to the Remarketing Agent and dated
the
applicable Remarketing Date, in form and substance satisfactory to the
Remarketing Agent addressing such matters as are set forth in such counsel’s
opinion furnished pursuant to the Most Recent Agreement.
10
(h) Counsel
for the Remarketing Agent shall have furnished to the Remarketing Agent its
opinion, addressed to the Remarketing Agent and dated the applicable Remarketing
Date, in form and substance reasonably satisfactory to the Remarketing
Agent.
(i) There
shall not have occurred any downgrading, nor shall any notice have been given
of
any intended or potential downgrading or of any review for a possible change
that does not indicate an improvement, in the rating accorded any of the
Company’s securities by any “nationally
recognized statistical rating organization,”
as such
term is defined for purposes of Rule 436(g)(2) under the Securities
Act.
(j) The
Senior Notes shall not have been called for redemption following the occurrence
of a Special Event.
If
any
condition specified in this Section
7
is not
satisfied when and as required to be satisfied, this Agreement may be terminated
by the Remarketing Agent by notice to the Company at any time on or prior to
the
applicable Remarketing Date, which termination shall be without liability on
the
part of any party to any other party, except that Sections
6,
8
and
9
shall at
all times be effective and shall survive such termination.
Section
8. Indemnification.
(a)
The
Company agrees to indemnify and hold harmless the Remarketing Agent, its
affiliates, their respective officers, directors, employees, representatives
and
agents, and each person, if any, who controls the Remarketing Agent within
the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
from and against any loss, claim, damage, liability, joint or several, or any
action in respect thereof to which the Remarketing Agent or any such affiliate
officer, employee, representative, agent or controlling person may become
subject, 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 the Registration Statement, any Preliminary
Prospectus or the Prospectus, or in any amendment or supplement thereto, or
(ii)
the omission or alleged omission to state in the Registration Statement, any
Preliminary Prospectus, or the Prospectus or in any amendment or supplement
thereto, in any Remarketing Materials or any amendment or supplement thereto,
or
in any Blue Sky Application, any material fact necessary to make the statements
therein not misleading; and shall reimburse the Remarketing Agent and each
such
affiliate, officer, employee, representative, agent or controlling person
promptly upon demand for any legal or other expenses reasonably incurred by
the
Remarketing Agent or any such affiliate, officer, employee, representative
agent
or controlling person in 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 the Registration Statement, any Preliminary Prospectus or the
Prospectus, or in any such amendment or supplement, or any other Remarketing
Materials (or any amendment or supplement thereto), in reliance upon and in
conformity with the written information furnished to the Company by or on behalf
of the
11
Remarketing
Agent concerning the Remarketing Agent specifically for inclusion therein;
and
provided,
further,
that
the Company shall not be liable to the Remarketing Agent under the indemnity
agreement in this subsection with respect to any Preliminary Prospectus to
the
extent that such loss, claim, damaged, liability or action of the Remarketing
Agent results from the fact that the Remarketing Agent sold the Remarketed
Senior Notes to a person as to whom it shall be established that such sale
was
an initial resale by the Remarketing Agent and there was not sent or given
to
such person, if required by law to have been so sent or given, at or prior
to
the written confirmation of the sale to such person, a copy of the Prospectus,
if the Company had previously furnished copies thereof pursuant to Section
5(f)
and the
loss, claim, damage or liability of the Remarketing Agent results from an untrue
statement or omission of a material fact contained in the Preliminary Prospectus
which was (i) identified to the Remarketing Agent prior to the furnishing to
the
Remarketing Agent of the corrected Prospectus and (ii) corrected in the
Prospectus. The foregoing indemnity agreement is in addition to any liability
which the Company may otherwise have to the Remarketing Agent or to any
affiliate, officer, employee, representative, agent or controlling person of
the
Remarketing Agent.
(b) The
Remarketing Agent shall indemnify and hold harmless the Company, its affiliates,
their respective officers, directors, employees, representatives and agents,
and
each person, if any, who controls the Company within the meaning of the
Securities Act or the Exchange Act from and against any loss, claim, damage,
liability or any action in respect thereof, to which the Company, or any such
affiliate, director, officer, employee, representative, agent or controlling
person may become subject, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue or alleged untrue
statement of a material fact contained in the Registration Statement, any
Preliminary Prospectus, or the Prospectus (or any amendment or supplement
thereto), or (ii) the omission or alleged omission to state in the Registration
Statement, any Preliminary Prospectus, or the Prospectus (or any amendment
or
supplement thereto), or any
material fact necessary to make the statements therein not misleading, but
in
each case only to the extent that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by the Remarketing
Agent specifically for inclusion therein; and shall reimburse the Company and
any such director, officer or controlling person promptly upon demand for any
legal and other expenses reasonably incurred by the Company or any such
affiliate, director, officer, employee, representative, agent or controlling
person in connection with investigating, defending, or preparing to defend
against any such loss, claim, damage, liability or action as such expenses
are
incurred. The Company hereby acknowledges that the only information that the
Remarketing Agent has furnished to the Company expressly for use in the
Registration Statement, any Preliminary Prospectus, or the Prospectus is the
information set forth in a certificate to be provided by the Remarketing Agent
on or prior to the Remarketing Date.
(c) Promptly
after receipt by an indemnified party under this Section
8
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
8,
notify
the indemnifying party in writing of the claim or 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 had under this Section
8
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
12
from
any
liability which it may have to an indemnified party otherwise than under this
Section
8.
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 such 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
8
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,
(1) if
the defendants in any such action include both the indemnified party and the
indemnifying party, (2) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such action, or (3) the
indemnifying party and the indemnified party shall have mutually agreed to
the
retention of such counsel at the expense of the indemnifying party then and
the
indemnified party shall have reasonably concluded that a conflict may arise
between the positions of the indemnifying party and the indemnified party in
conducting the defense of any such action or that there may be legal defenses
available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, then the indemnified
party or parties shall have the right to select separate counsel to assume
such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of such indemnifying party’s
election so to assume the defense of such action and approval by the indemnified
party of counsel, the indemnifying party will not be liable to such indemnified
party in connection with the defense thereof unless the indemnified party shall
have employed separate counsel in accordance with the proviso to the next
preceding sentence (it being understood, however, that the indemnifying party
shall not be liable for the expenses of more than one separate counsel (together
with local counsel), approved by the indemnifying party (the Remarketing Agent
in the case of Section
8(b),
representing the indemnified parties who are parties to such action). No
indemnifying party shall, (i) without the prior written consent of the
indemnified parties settle or compromise or consent to the entry of any judgment
with respect to any pending or threatened claim, action, suit or proceeding
in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to
such
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out
of such claim, action, suit or proceeding, and contains no statement as to
fault, or (ii) be liable for any settlement of any such action effected without
its written consent, but if settled with its written consent or if there be
a
final judgment of the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against
any
loss of liability by reason of such settlement or judgment.
Section
9. Contribution.
If the
indemnification provided for in Section
8
is for
any reason held to be unavailable or insufficient to hold harmless an
indemnified party under Section
8(a)
or
8(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
13
appropriate
to reflect the relative benefits received by the Company, on the one hand,
and
the Remarketing Agent, on the other hand, from the Remarketing of the Remarketed
Senior Notes pursuant to this Agreement 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 Agent, on the other hand, with respect to the statements or
omissions or alleged statements or alleged 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 Agent, on the other hand, with
respect to the Remarketing of the Remarketed Senior Notes pursuant to this
Agreement shall be deemed to be in the same respective proportions as the total
net proceeds from the Remarketing of the Remarketed Senior Notes pursuant to
this Agreement received by holders of the Remarketed Senior Notes on the one
hand, and the total Remarketing Fee received by the Remarketing Agent, on the
other hand, bear to the aggregate Remarketing Price plus an additional
Remarketing Fee paid by the Company which is not included in the Remarketing
Price of the Remarketed Senior Notes. The relative fault of the Company, on
the
one hand, and the Remarketing Agent, on the other hand, 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 Agent, on the
other
hand, 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 Agent agree that it would not be just and equitable
if the amount of contributions pursuant to this Section
9
were
determined by pro rata allocation or by any other method of allocation which
does not take account of 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 in this
Section
9
shall be
deemed to include, for purposes of this Section
9,
any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim.
Notwithstanding
the provisions of this Section
9,
the
Remarketing Agent shall not be required to contribute any amount in excess
of
the amount by which the fees received by it under Section
4
exceeds
the amount of any damages which the Remarketing Agent has otherwise been
required to pay by reason of such 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. For purposes of this Section
9,
each
officer and employee of the Remarketing Agent and each person, if any, who
controls the Remarketing Agent within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights
to
contribution as the Remarketing Agent, and each director of the Company, each
officer of the Company who signed the Registration Statement, and each person,
if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights
to
contribution as the Company.
14
Section
10. Resignation
and Removal of the Remarketing Agent.
The
Remarketing Agent may resign and be discharged from its duties and obligations
hereunder, and the Company may remove the Remarketing Agent, by giving 30 days’
prior written notice, in the case of a resignation, to the Company, the Purchase
Contract Agent and the Depositary and, in the case of a removal, to the removed
Remarketing Agent, the Purchase Contract Agent and the Depositary; 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 such successor Remarketing Agent shall have
entered into a remarketing agreement with the Company and the Purchase Contract
Agent, 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 with
such person as soon as reasonably practicable.
Section
11. Dealing
in Securities.
The
Remarketing Agent, when acting as a Remarketing Agent or in its individual
or
any other capacity, 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 Agent 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 Agent, in its individual capacity, 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 it did not act in any
capacity hereunder.
Section
12. Remarketing
Agent’s Performance; Duty of Care. The duties and obligations of the
Remarketing Agent shall be determined solely by the express provisions of this
Agreement and the Transaction Documents. No implied covenants or obligations
of
or against the Remarketing Agent shall be read into this Agreement or any of
the
Transaction Documents. In the absence of bad faith on the part of the
Remarketing Agent, the Remarketing Agent may conclusively rely upon any document
furnished to it, as to the truth of the statements expressed in any of such
documents. The Remarketing Agent shall be protected in acting upon any document
or communication reasonably believed by it to have been signed, presented or
made by the proper party or parties except as otherwise set forth herein. The
Remarketing Agent, acting under this Agreement, shall incur no liability to
the
Company or to any holder of Remarketed Senior Notes in its individual capacity
or as Remarketing Agent for any action or failure to act, on its part in
connection with a Remarketing or otherwise, except if such liability is
judicially determined to have resulted from its failure to comply with the
material terms of this Agreement or the gross negligence or willful misconduct
on its part. The provisions of this Section
12
shall
survive the termination of this Agreement and shall survive the resignation
or
removal of any Remarketing Agent pursuant to this Agreement.
Section
13. Termination.
This Agreement shall automatically terminate (i) as to the Remarketing Agent
on
the effective date of the resignation or removal of the Remarketing Agent
pursuant to Section
10
and (ii)
on the earlier of (x) any Special Event Redemption Date and (y) the Purchase
Contract Settlement Date. If this Agreement is terminated pursuant to any of
the
15
other
provisions hereof, except as otherwise provided herein, the Company shall not
be
under any liability to the Remarketing Agent and the Remarketing Agent shall
not
be under any liability to the Company, except that if this Agreement is
terminated by the Remarketing Agent 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 Agent for all
of
its out-of-pocket expenses (including the fees and disbursements of its counsel)
reasonably incurred by it. Sections
8,
9
and
12
hereof
shall survive the termination of this Agreement or the resignation or removal
of
the Remarketing Agent.
Section
14. Notices.
All statements, requests, notices and agreements hereunder shall be in writing,
and:
(a) if
to the
Remarketing Agent, shall be delivered or sent by mail, telex or facsimile
transmission to:
Banc
of
America Securities LLC
0
Xxxx
00xx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Telecopier
No.: (000) 000-0000
Attention:
Xxxxx Xxxxxx
(b) if
to the
Company, shall be delivered or sent by mail, telex or facsimile transmission
to
PNM Resources, Inc., Xxxxxxxx Xxxxxx XX-0000, Xxxxxxxxxxx, Xxx Xxxxxx 00000,
Telephone No.: (000) 000-0000, Telecopier No.: (000) 000-0000; Attention:
Treasurer; and
(c) if
to the
Purchase Contract Agent, shall be delivered or sent by mail, telex or facsimile
transmission to U.S. Bank National Association, 000 Xxxx Xxxxxx, Xxxxx 0000,
Xxx
Xxxx, Xxx Xxxx 00000, Telephone No.: (000) 000-0000, Telecopier No.: (000)
000-0000; Attention: Corporate Trust Administration.
Any
such
statements, requests, notices or agreements shall take effect at the time of
receipt thereof.
16
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
Agent and the person or persons, if any, who control the Remarketing Agent
within the meaning of Section 15 of the Securities Act and (y) the indemnity
agreement of the Remarketing Agent contained in Section
8 of
this
Agreement shall be deemed to be for the benefit of the Company’s directors and
officers who sign 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.
Notwithstanding Section
13,
the
respective indemnities, representations, warranties and agreements of the
Company and the Remarketing Agent 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 New York.
Section
18. 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
19. 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
20. 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
21. Amendments.
This Agreement may be amended by an instrument in writing signed by the parties
hereto. The Company 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 Senior Notes or the Corporate Units that would
in
any way adversely affect the rights, duties or obligations of the Remarketing
Agent, without the prior written consent of the Remarketing Agent.
17
Section
22. Successors
and Assigns. The rights and obligations of the Company hereunder may not be
assigned or delegated to any other Person without the prior written consent
of
Banc of America. The rights and obligations of the Remarketing Agent hereunder
may not be assigned or delegated to any other Person (other than an affiliate
of
the Remarketing Agent) without the prior written consent of the
Company.
Section
23. No
Advisory or Fiduciary Responsibility.
The
Company acknowledges and agrees that: (i) the Remarketing pursuant to this
Agreement, including the determination of the Remarketing Price and the
Remarketing Fee, is an arm’s-length commercial transaction between the Company,
on the one hand, and the Remarketing Agent, on the other hand, and the Company
is capable of evaluating and understanding and understands and accepts the
terms, risks and conditions of the transactions contemplated by this Agreement;
(ii) in connection with each transaction contemplated hereby and the process
leading to such transaction the Remarketing Agent is and has been acting solely
as a principal and is not the financial advisor, agent or fiduciary of the
Company, or its affiliates, stockholders, creditors or employees or any other
party; (iii) the Remarketing Agent has not assumed or will assume an advisory,
agency or fiduciary responsibility in favor of the with respect to any of the
transactions contemplated hereby or the process leading thereto (irrespective
of
whether the Remarketing Agent has advised or is currently advising the Company
on other matters) and the Remarketing Agent does not have any obligation to
the
Company with respect to the offering contemplated hereby except the obligations
expressly set forth in this Agreement; (iv) the Remarketing Agent and its
affiliates may be engaged in a broad range of transactions that involve
interests that differ from those of the Company and that the Remarketing Agent
has no obligation to disclose any of such interests by virtue of any advisory,
agency or fiduciary relationship; and (v) the Remarketing Agent has not provided
any legal, accounting, regulatory or tax advice with respect to the offering
contemplated hereby and the Company has consulted its own legal, accounting,
regulatory and tax advisors to the extent it deemed appropriate.
This
Agreement supersedes all prior agreements and understandings (whether written
or
oral) between the Company and the Remarketing Agent with respect to the subject
matter hereof. The Company hereby waives and releases, to the fullest extent
permitted by law, any claims that the Company may have against the Remarketing
Agent with respect to any breach or alleged breach of agency or fiduciary
duty.
If
the
foregoing correctly sets forth the agreement by and between the Company, the
Remarketing Agent and the Purchase Contract Agent, please indicate your
acceptance in the space provided for that purpose below
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK;
SIGNATURE
PAGE FOLLOWS]
18
[SIGNATURE
PAGE TO REMARKETING AGREEMENT]
Very
truly yours,
PNM
RESOURCES, INC.
By:
_/s/
Xxxxx X. Horn_________________
Xxxxx
X.
Xxxx,
Vice
President, Corporate Secretary, and
Acting
Chief Financial Officer
CONFIRMED
AND ACCEPTED:
BANC
OF
AMERICA SECURITIES LLC,
not
individually, but solely as Remarketing Agent
By:
__/s/
Lily Chang_____
Name:
Xxxx Xxxxx
Title:
Principal
U.S.
BANK
NATIONAL ASSOCIATION,
not
individually but solely as Purchase Contract Agent and as attorney-in-fact
for
the Holders of the Purchase Contracts
By:
____/s/
Xxxxxxx X. Fahey_____
Name:
Xxxxxxx X. Xxxxx
Title:
Vice President
19
