EE Excelerate Energy Inc

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

 

PURSUANT TO SECTION 13 OR 15 (d) OF THE

SECURITIES EXCHANGE ACT OF 1934

 

Date of Report (Date of earliest event reported):

December 1, 2014

 

 

El Paso Electric Company 

(Exact name of registrant as specified in its charter)

 

 

Texas	001-14206	74-0607870
(State or other jurisdiction of incorporation)	(Commission File Number)	(I.R.S. Employer Identification No.)

 

Stanton Tower, 100 North Stanton, El Paso, Texas	79901
(Address of principal executive offices)	(Zip Code)

 

(915) 543-5711

(Registrant’s telephone number, including area code)

 

N/A

(Former name or former address, if changed since last report)

 

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

o          Written communication pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

o          Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

o          Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

o          Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 

Item 8.01 Other Events.

 

Issuance of $150 million of Senior Notes

 

On December 1, 2014, El Paso Electric Company (the “Company”) closed its issuance and sale of $150,000,000 aggregate principal amount of its 5.000% Senior Notes due December 1, 2044 (the “Senior Notes”) pursuant to an underwriting agreement dated November 24, 2014 (the “Underwriting Agreement”) between the Company and J.P. Morgan Securities LLC and Mitsubishi UFJ Securities (USA), Inc., as representatives of the several underwriters named therein. The net proceeds from the sale of the Senior Notes will be used for general corporate purposes, which may include funding capital expenditures, and to repay outstanding short-term borrowings used for working capital purposes under the Company’s Second Amended and Restated Credit Agreement dated as of January 14, 2014. The Senior Notes were issued pursuant to an Indenture dated as of May 1, 2005 between the Company and The Bank of New York Mellon Trust Company, N.A. (formerly known as The Bank of New York Trust Company, N.A.), as successor to JPMorgan Chase Bank, National Association, as trustee (the “Trustee”), and as amended by the First Supplemental Indenture dated as of May 19, 2008 between the Company and the Trustee, and as further supplemented by a Securities Resolution No. 4 approved by the Pricing Committee of the Board of Directors of the Company, dated December 1, 2014. The terms and conditions of the Senior Notes are contained in Securities Resolution No. 4, to which a form of the global note representing the Senior Notes is attached. The offering of the Senior Notes has been registered under the Securities Act of 1933 (the “Act”) pursuant to a Registration Statement on Form S-3 (Reg. No. 333- 198989) filed with the Securities and Exchange Commission under the Act, which became automatically effective upon filing on September 26, 2014. Copies of the Underwriting Agreement, Securities Resolution No. 4, the opinion of Duggins Wren Mann & Romero, LLP regarding the validity of the Senior Notes, and the opinion of Davis Polk & Wardwell LLP regarding the validity of the Senior Notes, are attached hereto as Exhibits 1.1, 4.1, 5.1 and 5.2, respectively.

 

Item 9.01 Financial Statements and Exhibits

 

(d) Exhibits.

 

Exhibit Number	Description
1.1	Underwriting Agreement, dated November 24, 2014, between the Company and J.P. Morgan Securities LLC and Mitsubishi UFJ Securities (USA), Inc.
4.1	Securities Resolution No. 4 approved by the Pricing Committee of the Board of Directors of the Company, dated December 1, 2014
5.1	Opinion of Duggins Wren Mann & Romero, LLP
5.2	Opinion of Davis Polk & Wardwell LLP
23.1	Consent of Duggins Wren Mann & Romero, LLP (contained in Exhibit 5.1)
23.2	Consent of Davis Polk & Wardwell LLP (contained in Exhibit 5.2)

 

 

SIGNATURE

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

 

Dated: December 1, 2014

 

	EL PASO ELECTRIC COMPANY
	(Registrant)
	By:	/s/ Nathan T. Hirschi
	Name:	Nathan T. Hirschi
	Title:	Senior Vice President and Chief Financial Officer

 

 

Index to Exhibits

 

Exhibit Number	Description
1.1	Underwriting Agreement, dated November 24, 2014, between the Company and J.P. Morgan Securities LLC and Mitsubishi UFJ Securities (USA), Inc.
4.1	Securities Resolution No. 4 approved by the Pricing Committee of the Board of Directors of the Company, dated December 1, 2014
5.1	Opinion of Duggins Wren Mann & Romero, LLP
5.2	Opinion of Davis Polk & Wardwell LLP
23.1	Consent of Duggins Wren Mann & Romero, LLP (contained in Exhibit 5.1)
23.2	Consent of Davis Polk & Wardwell LLP (contained in Exhibit 5.2)

 

 

Exhibit 1.1

UNDERWRITING AGREEMENT

 

November 24, 2014

 

El Paso Electric Company 

Stanton Tower 

100 North Stanton 

El Paso, Texas 79901 

 

Ladies and Gentlemen:

 

We (the “Representatives”) are acting on behalf of the Underwriters (including ourselves) listed on Schedule II to this Agreement (such underwriter or underwriters being herein called the “Underwriters”) and we understand that El Paso Electric Company, a Texas corporation (the “Company”), proposes to issue and sell $150,000,000 aggregate principal amount of its 5.000% Senior Notes due 2044 (the “Offered Securities”). The terms of the Offered Securities are identified in Schedule I hereto.

 

The Offered Securities will be issued pursuant to a Debt Securities Indenture dated as of May 1, 2005 between the Company and The Bank of New York Mellon Trust Company, N.A., as successor to JPMorgan Chase Bank, National Association, as trustee, as amended and supplemented by a First Supplemental Debt Securities Indenture dated as of May 19, 2008.

 

Subject to the terms and conditions and in reliance upon the representations and warranties set forth herein or incorporated by reference herein, the Company agrees to sell and the Underwriters agree to purchase, severally and not jointly, at the purchase price set forth in Schedule I hereto, the principal amount of the Offered Securities set forth opposite their respective names in Schedule II hereto. For purposes of this Agreement, “Applicable Time” means 3:40 p.m. (New York time) on the date hereof.

 

Subject to the terms of this Agreement, payment of the purchase price for the Offered Securities shall be made to the Company by Federal funds wire transfer against delivery of the Offered Securities in book-entry form to the Representatives through the facilities of The Depository Trust Company for the respective accounts of the Underwriters. Such payment and delivery and all documents with respect to the purchase of the Offered Securities shall be delivered by the parties at the offices of counsel for the Underwriters, Hunton & Williams LLP, 200 Park Avenue, New York, New York 10166 at 10:00 A.M. (New York time) on December 1, 2014 or at such other time, not later than 1:00 P.M. (New York time) on such date as shall be designated in writing by the Representatives and the Company. The time and date of such payment and delivery are hereinafter referred to as the “Closing Date.”

 

All communications hereunder shall be in writing and effective only upon receipt and (a) if to the Underwriters, shall be delivered, mailed or sent via facsimile to (i) J.P. Morgan Securities LLC, 383 Madison Avenue, New York, New York 10179, Attention: High Grade Syndicate Desk, 3^rd Floor, facsimile number (212) 834-6081 or Mitsubishi UFJ Securities (USA), Inc., 1633 Broadway, 29^th Floor, New York, New York 10019, Attention: Capital Markets Group, facsimile number (646) 434-3455, or (b) if to the Company, shall be delivered, mailed or sent via facsimile to Stanton Tower, 100 North Stanton, El Paso, TX 79901, facsimile number (915) 472-1298, Attention: Corporate Secretary.

All the provisions contained in the document entitled El Paso Electric Company Underwriting Agreement Standard Provisions (the “Standard Provisions”), a copy of which is attached hereto, are herein incorporated by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein, except that (i) if any term defined in the Standard Provisions is otherwise defined herein, the definition set forth herein shall control, (ii) all references in the Standard Provisions to a type of security that is not an Offered Security and the related representations, warranties, opinions given or to be given in respect thereof and the related covenants, conditions and other obligations relating thereto shall not be deemed to be a part of this Agreement, (iii) all references in the Standard Provisions to a type of agreement that has not been entered into in connection with the transactions contemplated hereby shall not be deemed to be a part of this Agreement and (iv) the term “Representatives,” as used therein, shall, for purposes of this Agreement, mean J.P. Morgan Securities LLC and Mitsubishi UFJ Securities (USA), Inc.

 

It is understood and agreed that the only written information provided by the Underwriters through the Representatives expressly for use in the Registration Statement, the Prospectus, or any amendment or supplement thereto, or any related Preliminary Prospectus or Free Writing Prospectus, is the information described in Schedule IV hereto.

 

Please confirm your agreement by having an authorized officer sign a copy of this Agreement in the space set forth below. This Agreement may be signed in any number of counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument.

	Very truly yours,
	J.P. Morgan Securities LLC
	By:	/s/	Robert Bottamedi
	Name:		Robert Bottamedi
	Title:		Vice President

 

 

	Mitsubishi UFJ Securities (USA), Inc.
	By:	/s/	Richard Testa
	Name:		Richard Testa
	Title:		Managing Director

 

Accepted:

 

El Paso Electric Company

 

By:  Nathan T. Hirschi

Name: Nathan T. Hirschi

Title: Senior Vice President and Chief Financial Officer

 

 

 

 

[Signature page to El Paso Electric Company Underwriting Agreement]

Registration Statement No. 333-198989

 

SCHEDULE I 

TO UNDERWRITING AGREEMENT

 

Indenture: El Paso Electric Company Debt Securities Indenture dated as of May 1, 2005, as amended

 

Trustee: The Bank of New York Mellon Trust Company, N.A.

 

Title: El Paso Electric Company 5.000% Senior Notes due 2044

 

Aggregate Principal Amount: $150,000,000

 

Purchase Price: 98.77%

 

Maturity Date: December 1, 2044

 

Interest Rate: 5.000%

 

Interest Payment Dates: June 1 and December 1, commencing June 1, 2015 (Interest accrues from December 1, 2014)

 

Form and Denomination: The Offered Securities will be issued in fully registered form in denominations of $1,000 and in integral multiples in excess thereof.

 

Ranking: The Offered Securities will be the Company’s senior unsecured obligations and will rank equally with all its other existing and future senior unsecured debt, including all other debt securities issued under the indenture relating to the Offered Securities, from time to time outstanding.

 

Redemption Provisions: Prior to June 1, 2044, callable at any time at a make-whole premium of the greater of (i) 100% of the principal amount and (ii) discounted present value at Treasury Rate plus 30 basis points. On or after June 1, 2044, callable at any time at par.

 

CUSIP Number: 283677AZ5          

 

Settlement Date: December 1, 2014

 

Sinking Fund: None.

 

Listing: The Offered Securities will not be listed on any national securities exchange.

SCHEDULE II 

TO UNDERWRITING AGREEMENT

 

Underwriter	Principal Amount of   Offered Securities to be Purchased
J.P Morgan Securities LLC	$75,000,000
Mitsubishi UFJ Securities (USA), Inc.	$60,000,000
BBVA Securities Inc.	$15,000,000

 

SCHEDULE III 

TO UNDERWRITING AGREEMENT

 

Preliminary Prospectus Supplement dated November 24, 2014 filed with the Commission pursuant to Rule 424B2

 

Term sheet reflecting the terms on Schedule I

 

Net roadshow, dated November 2014

 

SCHEDULE IV 

TO UNDERWRITING AGREEMENT

 

·

The second, third, fourth and fifth sentences of the third paragraph, the third and fourth sentences of the seventh paragraph, and the eighth paragraph of text under the caption “Underwriting” appearing on pages S-22 and S-23 of the Preliminary Prospectus Supplement dated November 24, 2014 and the Prospectus dated November 24, 2014.

 

EL PASO ELECTRIC COMPANY

 

Debt Securities
First Mortgage Bonds
Preferred Stock 

Common Stock
Warrants
Purchase Contracts
Units

 

FORM OF UNDERWRITING AGREEMENT STANDARD PROVISIONS

 

1.            Introductory. From time to time, El Paso Electric Company, a Texas corporation (“Company”), may enter into one or more underwriting agreements that provide for the sale of designated securities to the several underwriters named therein. The standard provisions set forth herein may be incorporated by reference in any such underwriting agreement (an “Underwriting Agreement”). The Underwriting Agreement, including the provisions incorporated therein by reference, is herein referred to as this “Agreement.” Unless otherwise defined herein, terms defined in the Underwriting Agreement are used herein as therein defined.

 

The Company proposes to issue and sell from time to time certain of its unsecured debt securities, first mortgage bonds, preferred stock, no par value, common stock, no par value (“Common Stock”), warrants, purchase contracts, and units registered under the Registration Statement referred to in Section 2(a) (“Registered Securities”). The Registered Securities constituting unsecured debt securities will be issued under the Indenture dated May 1, 2005 by the Company and The Bank of New York Trust Mellon Company, N.A., as successor to JPMorgan Chase Bank, National Association, as Trustee, as supplemented by the First Supplemental Indenture dated May 19, 2008, (collectively, the “Indenture”), in one or more series, which series may vary as to interest rates, maturities, redemption provisions, selling prices and other terms pursuant to the Indenture. The Registered Securities constituting first mortgage bonds will be issued under the General Mortgage Indenture and Deed of Trust, dated as of February 1, 1996, as amended and supplemented, between the Company and U.S. Bank National Association as successor to State Street Bank and Trust Company, as Trustee (the “Mortgage”), in one or more series, which series may vary as to interest rates, maturities, redemption provisions, selling prices and other terms pursuant to the Mortgage. The Registered Securities constituting preferred stock may be issued in one or more series, which series may vary as to dividend rates, redemption provisions, selling prices and other terms, and which series will be issued under a statement of resolution establishing such series, subject to the Company’s Articles of Incorporation. The Registered Securities constituting warrants, purchase contracts or units will have such terms as are set forth in the Time of Sale Prospectus and the Prospectus referred to in Section 2(a) and will be issued under such agreements and documents as set forth in the Underwriting Agreement. Particular series or offerings of Registered Securities will be sold pursuant to the Underwriting Agreement, for resale in accordance with the terms of the offering determined at the time of sale.

 

The Registered Securities involved in any such offering are hereinafter referred to as the “Offered Securities.” The firm or firms which agree to purchase the Offered Securities are hereinafter referred to as the “Underwriters” of such securities, and the representative or representatives of the Underwriters, if any, specified in the Underwriting Agreement are hereinafter referred to as the “Representatives.”

 

2.            Representations and Warranties of the Company. The Company, as of the date of this Agreement, represents and warrants to, and agrees with, each Underwriter that:

 

   (a)            The Company has filed with the Securities and Exchange Commission (the “Commission”) a registration statement, including a prospectus (the file number of which is set forth in Schedule I hereto) on Form S-3, relating to Registered Securities, including the Offered Securities, to be issued from time to time by the Company. The registration statement as amended to the date of this Agreement, including the information (if any) deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430A or Rule 430B under the Securities Act of 1933, as amended (the “Securities Act”), is hereinafter referred to as the “Registration Statement,” and the related prospectus covering the Registered Securities is hereinafter referred to as the “Basic Prospectus.” The Basic Prospectus, in the form first used to confirm sales of the Offered Securities (or in the form first made available to the Underwriters by the Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act), as supplemented by the prospectus supplement specifically relating to the Offered Securities in the form first used to confirm sales of the Offered Securities (or in the form first made available to the Underwriters by the Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the “Prospectus,” and the term “preliminary prospectus” means any preliminary form of the Prospectus. For purposes of this Agreement, “free writing prospectus” has the meaning set forth in Rule 405 under the Securities Act, “Time of Sale Prospectus” means the Basic Prospectus and preliminary prospectus, if any, together with any free writing prospectuses identified in Schedule III of the Underwriting Agreement. A “broadly available road show” means a “bona fide electronic road show” as defined in Rule 433(h)(5) under the Securities Act that has been made available without restriction to any person. As used herein, the terms “Registration Statement,” “Basic Prospectus,” “preliminary prospectus,” “Time of Sale Prospectus” and “Prospectus” shall include in each case the documents, if any, incorporated by reference therein. The terms “supplement,” “amendment,” and “amend” as used herein with respect to the Registration Statement, the Basic Prospectus, the Time of Sale Prospectus, any preliminary prospectus or free writing prospectus shall include all documents subsequently filed by the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are deemed to be incorporated by reference therein.

 

   (b)            (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part became effective or was deemed effective, did not contain, and each such part, as amended or supplemented, if applicable, will not 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, (iii) the Registration Statement as of the date hereof does not 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, (iv) on the effective date of the Registration Statement and on the date hereof the Registration Statement and the Prospectus complied and comply, and as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (v) the Time of Sale Prospectus does not, and at the time of each sale of the Securities in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 3), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (vi) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (vii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this paragraph do not apply to (A) statements or omissions in the Registration Statement, the Time of Sale Prospectus or the Prospectus or any amendment or supplement thereto based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein or (B) that part of the Registration Statement that constitutes the Statement of Eligibility (Form T-I) under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), of the Trustee.

   (c)            The Company is a well-known seasoned issuer (as defined by Rule 405 under the Act), eligible to use the Registration Statement as an automatic shelf registration statement and the Company has not received notice that the Commission objects to the use of the Registration Statement as an automatic shelf registration statement.

 

   (d)            The Company is not an “ineligible issuer” in connection with the offering pursuant to Rules 164, 405 and 433 under the Act. Any free writing prospectus that the Company is required to file pursuant to Rule 433(d) under the Act has been, or will be, filed with the Commission in accordance with the requirements of the Act and the applicable rules and regulations of the Commission thereunder. Each free writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Act or that was prepared by or behalf of or used or referred to by the Company complies or will comply in all material respects with the requirements of the Act and the applicable rules and regulations of the Commission thereunder.

 

   (e)            The Company has been duly incorporated and is an existing corporation in good standing under the laws of the State of Texas, with power and authority (corporate and other) to own its properties and conduct its business as described in the Time of Sale Prospectus and the Prospectus; and the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification except where the failure to be so qualified would not have a material adverse effect on the condition (financial or other), business, properties or results of operations of the Company (“Material Adverse Effect”). The Company has no subsidiaries that (i) have assets of more than $1,000,000 and (ii) have conducted any new business activity during the prior six months.

 

    (f)            If the Offered Securities are debt securities/first mortgage bonds: The Indenture/Mortgage has been duly authorized and has been duly qualified under the Trust Indenture Act; the Offered Securities have been duly authorized; and when the Offered Securities are delivered and paid for pursuant to this Agreement on the Closing Date (as defined below in Section 3) or pursuant to Delayed Delivery Contracts (as hereinafter defined), the Indenture/Mortgage will have been duly executed and delivered, such Offered Securities will have been duly executed, authenticated, issued and delivered and will conform to the description thereof contained in the Time of Sale Prospectus and the Prospectus and the Indenture/Mortgage and such Offered Securities will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles and, in the case of first mortgage bonds, will be entitled to the security afforded by the Mortgage.

 

   (g)            If the Offered Securities are preferred stock: The Offered Securities have been duly authorized and, when the Offered Securities have been delivered and paid for in accordance with this Agreement on the Closing Date or pursuant to the Delayed Delivery Contracts, such Offered Securities will have been validly issued, fully paid and nonassessable and will conform to the description thereof contained in the Time of Sale Prospectus and the Prospectus; and the shareholders of the Company have no preemptive rights with respect to the Offered Securities.

 

   (h)            If the Offered Securities are Common Stock: The Offered Securities and all other outstanding shares of capital stock of the Company have been duly authorized; all outstanding shares of capital stock of the Company are, and, when the Offered Securities have been delivered and paid for in accordance with this Agreement on the Closing Date, such Offered Securities will have been, validly issued, fully paid and nonassessable and will conform to the description thereof contained in the Time of Sale Prospectus and the Prospectus; and the shareholders of the Company have no preemptive rights with respect to the Common Stock.

 

   (i)             If the Offered Securities are warrants, purchase contracts or units: The Offered Securities have been duly authorized and, when the Offered Securities have been delivered and paid for in accordance with this Agreement on the Closing Date or pursuant to the Delayed Delivery Contracts, such Offered Securities will have been validly issued, fully paid and nonassessable and will conform to the description thereof contained in the Time of Sale Prospectus and the Prospectus.

 

    (j)            If the Offered Securities are convertible, exchangeable or exercisable securities, including warrants and purchase contracts:

 

(i)            when the Offered Securities are delivered and paid for pursuant to this Agreement on the Closing Date, such Offered Securities will be convertible or exchangeable into or exercisable for debt or equity securities of the Company in accordance with their terms (if the Offered Securities are preferred stock, warrants or purchase contracts) or the Indenture/Mortgage (if the Offered Securities are debt securities/first mortgage bonds);

 

(ii)            if the Offered Securities are convertible or exchangeable into or exercisable for Common Stock, the shares of Common Stock initially issuable upon conversion, exchange or exercise of such Offered Securities have been duly authorized and reserved for issuance upon such conversion and, when issued upon such conversion, will be validly issued, fully paid and nonassessable; the outstanding shares of Common Stock have been duly authorized and validly issued, are fully paid and nonassessable and conform to the description thereof contained in the Time of Sale Prospectus and the Prospectus; and the shareholders of the Company have no preemptive rights with respect to the Common Stock; and

 

(iii)            if the Offered Securities are convertible or exchangeable into or exercisable for debt securities/first mortgage bonds, the Indenture/Mortgage has been duly authorized and has been duly qualified under the Trust Indenture Act; the debt securities/first mortgage bonds underlying the Offered Securities have been duly authorized; and when the debt securities/first mortgage bonds underlying the Offered Securities are delivered upon conversion, exchange or exercise of the Offered Securities, the Indenture/Mortgage will have been duly executed and delivered, such debt securities/first mortgage bonds will have been duly executed, authenticated, issued and delivered, will conform to the description thereof contained in the Time of Sale Prospectus and the Prospectus and the Indenture/Mortgage and will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles and, in the case of first mortgage bonds, will be entitled to the security afforded by the Mortgage.

 

   (k)            If the Offered Securities are Common Stock or are convertible into Common Stock: Except as disclosed in the Time of Sale Prospectus and the Prospectus, there are no contracts, agreements or understandings between the Company and any person that would give rise to a valid claim against the Company or any Underwriter for a brokerage commission, finder’s fee or other like payment.

 

     (l)             If the Offered Securities are Common Stock or are convertible into Common Stock: There are no contracts, agreements or understandings between the Company and any person granting, by reason of the execution of this Agreement, such person the right to require the Company to file a registration statement under the Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the securities registered pursuant to the Registration Statement or in any securities being registered pursuant to any other registration statement filed by the Company under the Act.

 

   (m)            If the Offered Securities constitute Common Stock or are convertible into Common Stock: The outstanding shares of Common Stock are listed on The New York Stock Exchange (the “Stock Exchange”) and the Offered Securities (if they are Common Stock) or the Common Stock into which the Offered Securities are convertible (if they are convertible) has been approved for listing on the Stock Exchange, subject to notice of issuance. If the Offered Securities are debt securities/first mortgage bonds or preferred stock, they have been approved for listing on an exchange as indicated in this Agreement, subject to notice of issuance.

 

   (n)            Each of the Federal Energy Regulatory Commission (“FERC”) and the New Mexico Public Regulation Commission (“NMPRC”) has issued its final order authorizing the issuance and sale of the Offered Securities by the Company; such orders are in full force and effect and are sufficient to authorize the transactions contemplated by this Agreement for a two-year period from the date of authorization; and no other consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement in connection with the issuance and sale of the Offered Securities by the Company, except such as have been obtained and made under the Act the filing with FERC of a subsequent report of the issuances made, and if the Offered Securities are debt securities/first mortgage bonds, the Trust Indenture Act and such as may be required under state securities laws.

 

   (o)            The execution, delivery and performance of the Indenture/Mortgage (if the Offered Securities are debt securities/first mortgage bonds), this Agreement and any Delayed Delivery Contracts and the issuance and sale of the Offered Securities and, if the Offered Securities are other than Common Stock, compliance with the terms and provisions thereof, will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, (A) any statute, any rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Company or any of its properties, (B) any agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties of the Company is subject, or (C) the articles of incorporation or by-laws of the Company, except insofar as any such breach or violation or default pursuant to any agreements or instrument described under clause (B) above would not reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, and the Company has full power and authority to authorize, issue and sell the Offered Securities as contemplated by this Agreement.

 

   (p)            If the Offered Securities are first mortgage bonds: The mortgage lien created by the Company pursuant to the terms of the Mortgage on the Closing Date will create a valid security interest in the Mortgaged Property (as defined therein) securing payment of the first mortgage bonds and the payment and performance of all of the Company’s other obligations under the Mortgage. On the Closing Date, (i) except as permitted by the Mortgage, such security interest will constitute a first, prior and exclusive lien with respect to the Mortgaged Property and (ii) no filings, registrations, recordings, deliveries or other actions on the part of the Company will be required in order to perfect the security interest in such Mortgaged Property created under the Mortgage, other than filings, recordings, deliveries or other actions which, on or before the Closing Date, will have been made by or on behalf of the Company and recordation of the Mortgage in the jurisdictions in which the Mortgaged Property subject thereto is located.

 

   (q)            This Agreement and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company.

 

    (r)            Except as disclosed in the Time of Sale Prospectus and the Prospectus, the Company has good and marketable title to all real properties and all other properties and assets owned by it, in each case free from liens, encumbrances and defects except liens for taxes not yet due and payable that would not materially affect the value thereof or materially interfere with the use made or to be made thereof by it; and except as disclosed in the Time of Sale Prospectus and the Prospectus, the Company holds any leased real or personal property under valid and enforceable leases with no exceptions that would materially interfere with the use made or to be made thereof by it.

 

    (s)            The Company possesses adequate certificates, authorities or permits issued by appropriate governmental agencies or bodies necessary to conduct the business now operated by it and has not received any notice of proceedings relating to the revocation or modification of any such certificate, authority or permit that, if determined adversely to the Company, would individually or in the aggregate have a Material Adverse Effect.

 

    (t)            There is (i) no significant unfair labor practice complaint pending against the Company or, to the best knowledge of the Company, threatened against it before the National Labor Relations Board or any state or local labor relations board, and no significant grievance or more significant arbitration proceeding arising out of or under any collective bargaining agreement is so pending against the Company, or, to the best knowledge of the Company, threatened against it and (ii) no significant strike, labor dispute, slowdown or stoppage pending against the Company or, to the best knowledge of the Company, threatened against it except for such actions specified in clauses (i) or (ii) above, which, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.

 

   (u)            Except as otherwise set forth in the Time of Sale Prospectus and the Prospectus, the Company has not violated any safety or similar law applicable to its business, nor any federal, state or local law relating to discrimination in the hiring, promotion or pay of employees nor any applicable federal or state wages and hours laws, nor any provisions of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or the rules and regulations promulgated thereunder, which in each case would result in a Material Adverse Effect. Except as otherwise set forth in the Time of Sale Prospectus and the Prospectus, the Company is in compliance with all applicable existing federal, state, local and foreign laws and regulations relating to protection of human health or the environment or imposing liability or standards of conduct concerning any Hazardous Material (“Environmental Laws”), except for such instances of noncompliance which, either singly or in the aggregate, would not have a Material Adverse Effect. The term “Hazardous Material” means (i) any “hazardous substance” as defined by the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, (ii) any “hazardous waste” as defined by the Resource Conservation and Recovery Act, as amended, (iii) any petroleum or petroleum product, (iv) any polychlorinated biphenyl and (v) any pollutant or contaminant or hazardous, dangerous or toxic chemical, material, waste or substance regulated under or within the meaning of any other Environmental Law.

 

   (v)            In the ordinary course of its business, the Company conducts a periodic review of the effect of Environmental Laws on the business, operations and properties of the Company, in the course of which it identifies and evaluates associated costs and liabilities (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties). On the basis of such review, the Company has reasonably concluded that such associated costs and liabilities would not, individually or in the aggregate, have a Material Adverse Effect.

 

  (w)            Except as disclosed in the Time of Sale Prospectus and the Prospectus, there are no pending actions, suits or proceedings against or affecting the Company or any of its respective properties that, if determined adversely to the Company, would individually or in the aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Company to perform its obligations under the Indenture/Mortgage (if the Offered Securities are debt securities/first mortgage bonds), this Agreement or any Delayed Delivery Contracts, or which are otherwise material in the context of the sale of the Offered Securities; and, to the Company’s knowledge, no such actions, suits or proceedings are threatened or contemplated.

 

   (x)            KPMG LLP (the “Accountants”), who have audited certain financial statements of the Company, are independent registered public accountants as required by the Act and the Rules and Regulations. The financial statements included in the Registration Statement, the Time of Sale Prospectus, and the Prospectus present fairly the financial position of the Company as of the dates shown and its results of operations and cash flows for the periods shown, and, except as otherwise disclosed in the Time of Sale Prospectus and the Prospectus, such financial statements have been prepared in conformity with the generally accepted accounting principles in the United States applied on a consistent basis; any schedules included in the Registration Statement present fairly the information required to be stated therein.

 

   (y)            Except as disclosed in the Time of Sale Prospectus and the Prospectus, since the date of the latest audited financial statements included in the Time of Sale Prospectus and the Prospectus there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the financial position, stockholders’ equity or results of operations of the Company and, except as disclosed in or contemplated by the Time of Sale Prospectus and the Prospectus, there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.

 

   (z)            The Company is subject to the reporting requirements of either Section 13 or Section 15(d) of the Exchange Act and files reports with the Commission on the Electronic Data Gathering, Analysis, and Retrieval (EDGAR) system.

 

(aa)            The Company is not and, after giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof as described in the Time of Sale Prospectus and the Prospectus, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended.

 

(bb)            The Company is not (i) in violation of its Articles of incorporation or by-laws, (ii) to the best knowledge of the Company, after due inquiry, other than as described in the Time of Sale Prospectus and the Prospectus, in violation of any law, ordinance, administrative or governmental rule or regulation, the violation of which would reasonably be expected to have a Material Adverse Effect, or of any decree of any court or governmental agency or body having jurisdiction over the Company, or (iii) in default in the performance or observance of any obligation, agreement, 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 or any of its properties may be bound, which default would reasonably be expected to have a Material Adverse Effect.

 

(cc)            The Company maintains (x) systems of internal controls and processes 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-14(c) under the Exchange Act).

 

(dd)            The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.

 

(ee)            The operations of the Company are and have been conducted at all times in compliance with the applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.

 

(ff)             No part of the proceeds from the sale of the Offered Securities hereunder will be used, directly or indirectly, for any payment to any governmental official or employee, political party, official of a political party, candidate for political office or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended.

 

(gg)            Neither the Company nor, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company is currently subject to any sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.

 

3.            Purchase and Offering of Offered Securities. The obligation of the Underwriters to purchase the Offered Securities shall be evidenced by the Underwriting Agreement at the time the Company determines to sell the Offered Securities. The Underwriting Agreement specifies the firm or firms which will be Underwriters, the names of any Representatives, the principal amount or number of Offered Securities to be purchased by each Underwriter, the purchase price to be paid by the Underwriters and (if the Offered Securities are other than Common Stock) the terms of the Offered Securities not already specified (in the Indenture/Mortgage, in the case of Offered Securities that are debt securities/first mortgage bonds), as applicable, including, but not limited to, interest rate, dividend rate, maturity, any redemption provisions and any sinking fund requirements, conversion rate, exercise conditions and whether any of the Offered Securities may be sold to institutional investors pursuant to Delayed Delivery Contracts. The Underwriting Agreement also specifies the time and date of delivery and payment (such time and date, or such other time not later than seven full business days thereafter as the Underwriter first named in the Underwriting Agreement (the “Representatives”) and the Company agree as the time for payment and delivery (being herein and in the Underwriting Agreement referred to as the “Closing Date”), the place of delivery and payment and any details of the terms of offering that should be reflected in the Time of Sale Prospectus and the Prospectus. For purposes of Rule 15c6-1 under the Exchange Act, the Closing Date (if later than the otherwise applicable settlement date) shall be the date for payment of funds and delivery of securities for all the Offered Securities sold pursuant to the offering, other than Contract Securities for which payment of funds and delivery of securities shall be as hereinafter provided. The obligations of the Underwriters to purchase the Offered Securities are several and not joint. It is understood that the Underwriters propose to offer the Offered Securities for sale as set forth in the Time of Sale Prospectus and the Prospectus.

 

If the Underwriting Agreement provides for sales of Offered Securities pursuant to delayed delivery contracts, the Company authorizes the Underwriters to solicit offers to purchase Offered Securities pursuant to delayed delivery contracts substantially in the form of Annex I attached hereto (“Delayed Delivery Contracts”) with such changes therein as the Company may authorize or approve. Delayed Delivery Contracts are to be with institutional investors, including commercial and savings banks, insurance companies, pension funds, investment companies and educational and charitable institutions. On the Closing Date the Company will pay, as compensation, to the Representatives for the accounts of the Underwriters, the fee set forth in such Underwriting Agreement in respect of the principal amount or number of Offered Securities to be sold pursuant to Delayed Delivery Contracts (“Contract Securities”). The Underwriters will not have any responsibility in respect of the validity or the performance of Delayed Delivery Contracts. If the Company executes and delivers Delayed Delivery Contracts, the Contract Securities will be deducted from the Offered Securities to be purchased by the several Underwriters and the amount of Offered Securities to be purchased by each Underwriter will be reduced pro rata in proportion to the amount of Offered Securities set forth opposite each Underwriter’s name in such Underwriting Agreement, except to the extent that the Representatives determines that such reduction shall be otherwise than pro rata and so advise the Company. The Company will advise the Representatives not later than the business day prior to the Closing Date of the amount of Contract Securities.

 

If the Offered Securities are preferred stock or Common Stock, the certificates for the Offered Securities delivered to the Underwriters on the Closing Date will be in definitive form, and otherwise, the Offered Securities delivered to the Underwriters on the Closing Date will be in definitive fully registered form, in each case in such denominations and registered in such names as the Representatives requests.

 

If the Underwriting Agreement for the Offered Securities specifies “Book-Entry Only” settlement or otherwise states that the provisions of this paragraph shall apply, the Company will deliver against payment of the purchase price the Offered Securities in the form of one or more permanent global securities in definitive form (the “Global Securities”) deposited with the applicable Trustee as custodian for The Depository Trust Company (“DTC”) and registered in the name of Cede & Co., as nominee for DTC. Interests in any permanent global securities will be held only in book-entry form through DTC, except in the limited circumstances described in the Time of Sale Prospectus and the Prospectus. Payment for the Offered Securities shall be made by the Underwriters in Federal (same day) funds by official check or checks or wire transfer to an account previously designated by the Company at a bank acceptable to the Representatives, in each case drawn to the order of the Company at the place of payment specified in the Underwriting Agreement on the Closing Date, against delivery to the applicable Trustee as custodian for DTC of the Global Securities representing all of the Offered Securities.

 

4.            Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to counsel for the Underwriters, one signed copy of the Registration Statement relating to the Registered Securities, in the form it became effective and of all amendments thereto and that, in connection with each offering of Offered Securities:

 

   (a)            The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, subparagraph (5) not later than the second business day following the execution and delivery of this Agreement.

 

   (b)            Before amending or supplementing the Registration Statement, Time of Sale Prospectus or the Prospectus, the Company will furnish the Representatives a copy of such proposed amendment or supplement, and will incorporate any reasonable comments that the Representatives may have. The Company will advise the Representatives of any institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof.

 

   (c)            The Company will furnish to the Representatives a copy of each proposed free writing prospectus and each broadly available road show prepared by or on behalf of, used by, or referred to by the Company and the Company will not use or refer to any proposed free writing prospectus or broadly available road show to which the Representatives reasonably object.

 

   (d)            The Company will not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.

 

   (e)            If prior to the Applicable Time, the Time of Sale Prospectus is being used to solicit offers to buy the Offered Securities and any event occurs as a result of which the Time of Sale Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Company promptly will notify the Representatives of such event and will promptly prepare and file with the Commission, at its own expense, an amendment or supplement to the Time of Sale Prospectus which will correct such statement or omission.

 

    (f)            If, at any time when a Prospectus relating to the Offered Securities is required to be delivered under the Act in connection with sales by any Underwriter or dealer, any event occurs 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 to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will notify the Representatives of such event and will promptly prepare and file with the Commission, at its own expense, an amendment or supplement to the Prospectus which will correct such statement or omission.

 

   (g)            As soon as practicable the Company will make generally available to its securityholders an earning statement covering a period of 12 months beginning after the date hereof which will satisfy the provisions of Section 11(a) of the Act and the Rules and Regulations.

 

   (h)            The Company will furnish to the Representatives, without cost, copies of the Registration Statement, including all exhibits, any related Preliminary Prospectus, any related Free Writing Prospectuses, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as the Representatives reasonably request.

 

   (i)              The Company will endeavor to qualify the Offered Securities for sale under the laws of such jurisdictions as the Representatives reasonably request and will continue such qualifications in effect so long as required for the distribution.

 

   (j)              The Company will pay all expenses incident to the performance of its obligations under this Agreement, for any filing fees or other expenses (including fees and disbursements of counsel) in connection with qualification of the Registered Securities for sale, for any fees charged by investment rating agencies for the rating of the Offered Securities (if they are debt securities/first mortgage bonds or preferred stock), for any applicable filing fee incident to any review by the Financial Industry Regulatory Authority, Inc. of the Registered Securities, for any travel expenses of the Company’s officers and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of Registered Securities and for expenses incurred in distributing the Prospectus, any Preliminary Prospectus, any Free Writing Prospectuses or any other amendments or supplements to the Prospectus to the Underwriters.

 

   (k)            If the Offered Securities are debt securities/first mortgage bonds or preferred stock, the Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Act relating to United States dollar-denominated debt securities/first mortgage bonds issued or guaranteed by the Company and having a maturity of more than one year from the date of issue (if the Offered Securities are debt securities/first mortgage bonds) or any series of preferred stock issued (if the Offered Securities are preferred stock), without the prior written consent of the Representatives for a period beginning at the time of execution of this Agreement and ending the number of days after the Closing Date specified in the Underwriting Agreement, subject to such exceptions as are specified in this Agreement.

 

   (l)              If the Offered Securities are Common Stock or are convertible, exchangeable or exercisable into Common Stock, the Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Act relating to, any additional shares of its Common Stock or securities convertible into or exchangeable or exercisable for any shares of its Common Stock, without the prior written consent of the Representatives for a period beginning at the time of execution of this Agreement and ending the number of days after the Closing Date specified in the Underwriting Agreement, except grants of employee stock options pursuant to the terms of a plan in effect on the date of this Agreement, issuances of Common Stock pursuant to the exercise of such options or the exercise of any other employee stock options outstanding on the date of this Agreement and such other exceptions as are specified in this Agreement.

 

5.            Certain Agreements of the Underwriters. Each Underwriter severally covenants with the Company not to take any action that would result in the Company being required to file with the Commission under Rule 433(d) a free writing prospectus prepared by or on behalf of such Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.

 

6.            [Reserved]

 

7.            Conditions to the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Offered Securities will be subject to the accuracy of the representations and warranties on the part of the Company herein, to the accuracy of the statements of Company officers made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions precedent:

 

   (a)            On or prior to the date of this Agreement, the Representatives shall have received a letter, dated the date of delivery thereof, in form and substance satisfactory to the Underwriters of the Accountants containing statements and information of the type ordinarily included in accountants’ “comfort letters” to the underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference in the Registration Statement, the Time of Sale Prospectus, and the Prospectus.

 

   (b)            (i) No stop order suspending the effectiveness of the Registration Statement shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the Commission; and (ii) there shall have been no material adverse change, nor any development or event involving a prospective material adverse change, in the financial position, stockholders’ equity or results of operation of the Company from that set forth in the Time of Sale Prospectus; and the Underwriters shall have received, on the Closing Date, a certificate, dated the Closing Date and signed by an officer of the Company, to the foregoing effect. The officer making such certificate may rely upon the best of his knowledge as to proceedings pending or threatened.

 

   (c)            Subsequent to the execution of this Agreement, there shall not have occurred (i) any material adverse change, nor any development or event involving a prospective material adverse change, in the financial position, stockholders’ equity or results of operation of the Company which, in the judgment of a majority in interest of the Underwriters including any Representatives, makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for the Offered Securities; (ii) any downgrading in the rating of any debt securities or preferred stock of the Company by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities or preferred stock of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of a majority in interest of the Underwriters including any Representatives, be likely to prejudice materially the success of the proposed issue, sale or disposition of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (v) or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by U.S. Federal or New York authorities; (vii) any major disruption of settlements of securities or clearance services in the United States; or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of a majority in interest of the Underwriters including any Representatives, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for the Offered Securities.

 

   (d)            The Representatives shall have received an opinion or opinions, dated the Closing Date, of counsel for the Company, including Texas, New Mexico, Arizona and federal regulatory counsel, in form and substance reasonably satisfactory to them, which shall address, among other things, federal and state regulatory matters, and, if the Offered Securities are first mortgage bonds, the liens created by the Mortgage.

 

   (e)            The Representatives shall have received from counsel for the Underwriters, such opinion or opinions, dated the Closing Date, which are in form and substance reasonably satisfactory to them.

 

It is understood that the Company’s special outside counsel and the Underwriters’ counsel may base their opinions as to all matters relating to the laws of Texas, New Mexico, Arizona, and federal regulatory matters upon the opinion of the Company’s relevant local and regulatory counsel. It is further understood that the opinion of special outside counsel of the Company shall be limited to the federal laws of the United States and the laws of the State of New York. Counsel may state that with respect to certain opinions their belief or opinion, as the case may be, is based upon their participation in the preparation of the Registration Statement, the Time of Sale Prospectus, and the Prospectus and any supplements and amendments thereto and review and discussion of the contents thereof, but is without independent check or verification except as specified.

 

    (f)            The Representatives shall have received a certificate, dated the Closing Date, of the President or any Vice President and a principal financial or accounting officer of the Company in which such officers, to the best of their knowledge after reasonable investigation, shall state that the representations and warranties of the Company in this Agreement are true and correct, that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, that no stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.

 

   (g)            The Representatives shall have received a letter, dated the Closing Date, of the Company’s independent public accountants which meets the requirements of subsection (a) of this Section, except that the specified date referred to in such subsection will be a date not more than three days prior to the Closing Date for the purposes of this subsection.

 

The Company will furnish the Representatives with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. The Representatives in their sole discretion may jointly agree to waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters under this Agreement.

 

In case any of the conditions specified above in this Section 7 shall not have been fulfilled, this Agreement may be terminated by the Representatives at any time upon mailing or otherwise delivering written notice thereof to the Company. Any such termination shall be without liability of either party to the other party except as otherwise provided in Section 4(j) and Section 10 and except for any liability under Section 8.

 

8.            Indemnification and Contribution.

 

   (a)            The Company will indemnify and hold harmless each Underwriter, its partners, members, directors, officers and affiliates and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement, the Prospectus, the Time of Sale Prospectus, or any amendment or supplement thereto, or any related Preliminary Prospectus or Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives, if any, specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in the Underwriting Agreement.

 

   (b)            Each Underwriter will severally and not jointly indemnify and hold harmless the Company, its directors and officers and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, to the same extent as the indemnity from the Company to each Underwriter set forth in Section 8(a), against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement, the Prospectus, or any amendment or supplement thereto, or any related Preliminary Prospectus or Free Writing Prospectus, or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but 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 such Underwriter through the Representatives, if any, specifically for use therein, and will reimburse any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such loss, claim, damage, liability or action as such expenses are incurred, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in the Underwriting Agreement.

 

   (c)            Promptly after receipt by an indemnified party under this Section of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under subsection (a) or (b) above, notify the indemnifying party of the commencement thereof but the failure to so notify such indemnifying party shall not relieve such indemnifying party from any liability except to the extent that it has been prejudiced in any material respect by such failure or from any liability that it may have to any such indemnified party otherwise than under subsection (a) or (b) above. In case any such action is brought against any indemnified party and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of such indemnified party, be counsel to such indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party will not be liable to such indemnified party under this Section for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof. Notwithstanding the foregoing, the indemnified party shall have the right to employ separate counsel at the indemnifying party’s expense and to control its defense of such action if (i) the indemnifying party and the indemnified party agree to the retention of that counsel, (ii) the indemnifying party’s failure to assume the defense of such action in a timely manner is reasonably likely to prejudice the indemnified party in a material respect or (iii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, including legal defenses available to the indemnified party that are different from or in addition to those available to the indemnifying party. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened action in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party unless such settlement includes an unconditional release of such indemnified party from all liability on any claims that are the subject matter of such action and does not include a statement as to, or an admission of, fault, culpability or a failure to act by or on behalf of any indemnified party.

 

   (d)            If the indemnification provided for in this Section is unavailable or insufficient to hold harmless an indemnified party under subsection (a) or (b) above, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities referred to in subsection (a) or (b) above (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other from the offering of the Offered Securities 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 Underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by the Underwriters. The relative fault of the Company on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The amount paid by an indemnified party as a result of the losses, claims, damages or liabilities referred to in the first sentence of this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any action or claim which is the subject of this subsection (d). Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Offered Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter 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 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations in this subsection (d) to contribute are several in proportion to their respective underwriting obligations and not joint.

 

   (e)            The obligations of the Company under this Section shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any Underwriter within the meaning of the Act; and the obligations of the Underwriters under this Section shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each director of the Company, to each officer of the Company who has signed the Registration Statement and to each person, if any, who controls the Company within the meaning of the Act.

 

9.            Default of Underwriters. If any Underwriter or Underwriters default in their obligations to purchase Offered Securities under this Agreement and the amount of Offered Securities that such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of the total amount of Offered Securities, the Representatives may make arrangements satisfactory to the Company for the purchase of such Offered Securities by other persons, including any of the Underwriters, but if no such arrangements are made by the Closing Date, the non-defaulting Underwriters shall be obligated severally, in proportion to their respective commitments under this Agreement, to purchase the Offered Securities that such defaulting Underwriters agreed but failed to purchase. If any Underwriter or Underwriters so default and the amount of Offered Securities with respect to which such default or defaults occur exceeds 10% of the total amount of Offered Securities and arrangements satisfactory to the Representatives and the Company for the purchase of such Offered Securities by other persons are not made within 36 hours after such default, this Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company, except as provided in Section 8. As used in this Agreement, the term “Underwriter” includes any person substituted for an Underwriter under this Section. Nothing herein will relieve a defaulting Underwriter from liability for its default. The respective commitments of the several Underwriters for the purposes of this Section shall be determined without regard to reduction in the respective Underwriters’ obligations to purchase the amounts of Offered Securities set forth opposite their names in the Underwriting Agreement as a result of Delayed Delivery Contracts entered into by the Company.

 

10.            Survival of Certain Representations and Obligations. The respective indemnities, agreements, representations, warranties and other statements of the Company or its officers and of the several Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation, or statement as to the results thereof, made by or on behalf of any Underwriter, the Company or any of their respective representatives, officers or directors or any controlling person, and will survive delivery of and payment for the Offered Securities.

 

11.            Notices. All communications hereunder will be in writing and, if sent to the Underwriters, will be mailed, delivered or sent by facsimile and confirmed to them at their address furnished to the Company in writing for the purpose of communications hereunder or, if sent to the Company, will be mailed, delivered or sent by facsimile and confirmed to it at Stanton Tower, 100 North Stanton, El Paso, TX 79901, Attention: Corporate Secretary.

 

12.            Successors. This Agreement will inure to the benefit of and be binding upon the Company and such Underwriters as are identified in the Underwriting Agreement and their respective successors and the officers and directors and controlling persons referred to in Section 8, and no other person will have any right or obligation hereunder.

 

13.            Representation of Underwriters. Any Representatives will act for the several Underwriters in connection with the financing described in the Underwriting Agreement, and any action under this Agreement taken by the Representatives jointly will be binding upon all the Underwriters.

 

14.            Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same Agreement.

 

15.            Entire Agreement. (A) This Agreement, together with any contemporaneous written agreements and any prior written agreements (to the extent not superseded by this Agreement) that relate to the offering of the Offered Securities, represents the entire agreement between the Company and the Underwriters with respect to the preparation of any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, the conduct of the offering, and the purchase and sale of the Offered Securities.

 

   (a)            The Company acknowledges that in connection with the offering of the Offered Securities: (i) the Underwriters have acted at arms length, are not agents of, and owe no fiduciary duties to, the Company or any other person, (ii) the Underwriters owe the Company only those duties and obligations set forth in this Agreement, any contemporaneous written agreements, and prior written agreements (to the extent not superseded by this Agreement), if any, and (iii) the Underwriters may have interests that differ from those of the Company. The Company waives to the full extent permitted by applicable law any claims it may have against the Underwriters arising from an alleged breach of fiduciary duty in connection with the offering of the Shares.

 

16.            Applicable Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.

 

ANNEX I

 

FORM OF DELAYED DELIVERY CONTRACT

 

                    ________, 20__

 

Ladies and Gentlemen:

 

The undersigned hereby agrees to purchase from El Paso Electric Company, a Texas corporation (the “Company”), and the Company agrees to sell to the undersigned the Company’s securities described in Schedule A annexed hereto (the “Securities”), offered by the Company’s Prospectus dated ________________, 20__ and Prospectus Supplement dated ________________, 20__, receipt of copies of which are hereby acknowledged, at a purchase price stated in Schedule A and on the further terms and conditions set forth in this Agreement. The undersigned does not contemplate selling Securities prior to making payment therefor.

 

The undersigned will purchase from the Company Securities in the principal amount and numbers on the delivery dates set forth in Schedule A. Each such date on which Securities are to be purchased hereunder is hereinafter referred to as a “Delivery Date.”

 

Payment for the Securities which the undersigned has agreed to purchase on each Delivery Date shall be made to the Company in Federal or other funds immediately available on the Delivery Date, upon delivery to the undersigned of the Securities to be purchased by the undersigned on the Delivery Date, in such denominations and registered in such names as the undersigned may designate by written or telegraphic communication addressed to the Company not less than five full business days prior to the Delivery Date.

 

The obligation of the undersigned to take delivery of and make payment for the Securities on the Delivery Date shall be subject to the conditions that (1) the purchase of Securities to be made by the undersigned shall not at the time of delivery be prohibited under the laws of the jurisdiction to which the undersigned is subject and (2) the Company shall have sold, and delivery shall have taken place to the underwriters (the “Underwriters”) named in the Prospectus Supplement referred to above of, such part of the Securities as is to be sold to them. Promptly after completion of sale and delivery to the Underwriters, the Company will mail or deliver to the undersigned as its address set forth below notice to such effect, accompanied by a copy of the opinion of counsel for the Company delivered to the Underwriters in connection therewith.

 

Failure to take delivery of and make payment for Securities by any purchaser under any other Delayed Delivery Contract shall not relieve the undersigned of its obligations under this agreement.

 

This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors, but will not be assignable by either party hereto without the written consent of the other.

 

If this Agreement is acceptable to the Company, it is requested that the Company sign the form of acceptance below and mail or deliver one of the counterparts hereof to the undersigned at its address set forth below. This will become a binding agreement, as of the date first above written, between the Company and the undersigned when such counterpart is so mailed or delivered.

 

This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York. 

 

		Very truly yours,
		(Purchaser)
		By:
			(Title)
			(Address)

 

	Accepted:
	EL PASO ELECTRIC COMPANY
By:
	Name:
	Title:

 

PURCHASER — PLEASE COMPLETE AT TIME OF SIGNING

 

The name and telephone and department of the representative of the Purchaser with whom details of delivery on the Delivery Date may be discussed is as follows: (Please print.)

 

Name		Telephone No. (Including Area Code)		Department

 

SCHEDULE A

 

Securities:

 

 

Principal Amounts to be Purchased:

 

 

Purchase Price:

 

 

Delivery:

 

 

Exhibit 4.1

CERTIFICATION

 

I, Jessica Goldman, Secretary of El Paso Electric Company (the “Company”), do hereby certify that the attached is a true and correct copy of Securities Resolution No. 4 duly adopted by the Pricing Committee of the Company pursuant to authorization delegated to them by the Board of Directors of the Company at a meeting called and held on September 16, 2014; and I do further certify that said resolution and delegation by the Board of Directors of the Company have not been rescinded and remain in full force and effect.

 

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the corporate seal of El Paso Electric Company this 1st day of December, 2014.

 

	By:	/s/ Jessica Goldman
		Jessica Goldman
		Corporate Secretary

 

5.000% Senior Notes due 2044
SECURITIES RESOLUTION NO. 4
OF
EL PASO ELECTRIC COMPANY

 

The actions described below were unanimously approved by the Pricing Committee (the “Committee”) of El Paso Electric Company (the “Company”), to be effective on December 1, 2014, pursuant to delegation, in accordance with resolutions adopted by the Board of Directors of the Company on September 16, 2014, and Section 2.01 of the Indenture dated as of May 1, 2005 (the “Base Indenture”) between the Company and The Bank of New York Mellon Trust Company, N.A. (formerly known as The Bank of New York Trust Company, N.A.), as successor to JPMorgan Chase Bank, National Association, as Trustee, as amended by the First Supplemental Indenture dated as of May 19, 2008 between the Company and the Trustee (together, the “Indenture”). Terms used herein and not defined have the same meaning given such terms in the Indenture.

 

RESOLVED, that a new series of Securities is authorized as follows:

 

1.             5.000% Senior Notes due 2044. The title of the series is 5.000% Senior Notes due 2044 (the “Senior Notes”). The initial aggregate principal amount of the Senior Notes is $150,000,000. The maturity date for the Senior Notes is December 1, 2044.

2.             Interest. The Company will pay interest semi-annually in arrears on December 1 and June 1 of each year commencing on June 1, 2015. Interest on the Senior Notes will accrue from December 1, 2014. Interest will be computed on the basis of a 360-day year of twelve 30-day months. The record dates for payments of interest will be the November 15 and May 15 preceding each related interest payment date 

3.             Method of Payment. The Company will pay interest on the Senior Notes to the persons who are registered holders of Senior Notes at the close of business on the record date for the next interest payment date, except as otherwise provided in the Indenture. Holders must surrender Senior Notes to a Paying Agent to collect principal payments. The Company will pay principal and interest in money of the United States that at the time of payment is legal tender for payment of public and private debts. The Company may pay principal and interest by check payable in such amount. It may mail an interest check to a holder’s registered address. Notwithstanding the foregoing, as long as the Senior Notes are represented by a global note and held by DTC (as defined herein), or a custodian thereof, all payments of principal and interest on the Senior Notes will be made to DTC in accordance with DTC procedures.

4.             Agents. Initially, pursuant to Section 2.03 of the Indenture, The Bank of New York Mellon Trust Company, N.A. (formerly known as The Bank of New York Trust Company, N.A.), as successor to JPMorgan Chase Bank, National Association will act as Paying Agent, Transfer Agent and Registrar. The Company may change any Paying Agent, Transfer Agent or Registrar or provide for more than one such agent. The Company or any Affiliate may act in any such capacity. Subject to certain conditions, the Company may change the Trustee.

 

5.             Indenture. The terms of the Senior Notes include those stated herein, in the Indenture and those made part of the Indenture by the Trust Indenture Act of 1939, as amended (the “Act”). 

6.             Optional Redemption. Prior to June 1, 2044, the Senior Notes will be redeemable at the Company’s option, at any time in whole, or from time to time in part, at a redemption price equal to the greater of:

·

100% of the principal amount of the Senior Notes being redeemed on the redemption date; and

 

·

the sum of the present values of the remaining scheduled payments of principal and interest on the Senior Notes being redeemed on that redemption date (exclusive of interest accrued to the redemption date) discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 30 basis points,

 

plus, in either case, accrued and unpaid interest thereon to, but excluding, the redemption date.

 

On or after June 1, 2044, the Senior Notes will be redeemable at the Company’s option, at any time in whole, or from time to time in part, at a redemption price equal to 100% of the principal amount of the Senior Notes to be redeemed plus accrued and unpaid interest on the principal amount being redeemed to, but excluding, the redemption date.

 

“Treasury Rate” means, with respect to any redemption date, the rate per annum equal to the semiannual equivalent yield to a maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount equal to the Comparable Treasury Price for such redemption date). The Treasury Rate will be calculated on the third business day preceding the redemption date.

 

“Comparable Treasury Issue” means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term of the Senior Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of such Senior Notes.

 

“Comparable Treasury Price” means, with respect to any redemption date, (1) the average, as determined by the Company, of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or (2) if the Company obtains fewer than four such Reference Treasury Dealer Quotations, the average, as determined by the Company, of all such Quotations.

 

“Independent Investment Banker” means one of the Reference Treasury Dealers that the Company appoints.

 

“Reference Treasury Dealers” means (1) J.P. Morgan Securities LLC and a Primary Treasury Dealer (as defined below) selected by Mitsubishi UFJ Securities (USA), Inc., and their respective successors; provided, however, that if any of the foregoing shall cease to be a primary U.S. Government securities dealer (a “Primary Treasury Dealer”), the Company shall substitute another nationally recognized investment banking firm that is a Primary Treasury Dealer, and (2) two other Primary Treasury Dealers selected by the Company.

 

“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Company, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Company by such Reference Treasury Dealer at 5:00 p.m. on the third business day preceding such redemption date.

 

The Trustee shall be under no duty to inqire into, may conclusively presume the correctness of, and shall be fully protected in acting upon the calculation by the Company of any redemption price of the Senior Notes.

 

7.             Notice of Redemption. Notice of redemption will be mailed at least 30, but no more than 60, days before the redemption date to each holder of Senior Notes to be redeemed at his registered address.

8.             Conversion. None.

9.             Denominations, Form, Transfer, Exchange. The Senior Notes initially will be in registered global form without coupons, in the name of Cede & Co., as The Depository Trust Company’s (“DTC”) partnership nominee. The global note representing the Senior Notes will be deposited with, or on behalf of, DTC. Subject to any restrictions related to global notes, the transfer of Senior Notes may be registered and Senior Notes may be exchanged as provided in the Indenture. The Transfer Agent may require a holder, among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or the Indenture. The Senior Notes may be issued in denominations of $1,000 and integral multiples in excess thereof.

10.            Persons Deemed Owners. The registered holder of a Senior Note may be treated as its owner for all purposes.

11.            Restrictive Covenants. The Senior Notes will be subject to the covenants set forth in the Indenture. In addition, the Senior Notes will be subject to the restrictive covenant contained in Annex A hereto.

12.            Defaults. The Senior Notes will be subject to the events of default contained in the Indenture; in addition, it will be an event of default under the Senior Notes if the Company fails to observe or perform any term, covenant, condition or agreement contained in any agreement or instrument evidencing or governing any Debt (as defined in Annex A hereto) in a principal amount in excess of $10,000,000 if the effect of any such failure is to cause such Debt to become due prior to its stated maturity.

 

13.             Fungibility.   The Senior Notes need not be issued at the same time. Subject to the limitations of the Senior Notes with respect to the principal amount of Senior Notes which may be issued thereunder, the Company may, from time to time, at its option and without the consent of any holder of the Senior Notes, reopen the Senior Notes for issuance of additional Senior Notes (the “Additional Notes”); provided that if such Additional Notes are not fungible with the previously issued Senior Notes for United States federal income tax purposes, the Additional Notes will have a separate CUSIP number, and further provided that Additional Notes shall rank pari passu with any outstanding Senior Notes, shall be consolidated with and treated as a single class with the outstanding Senior Notes for all purposes, and shall have terms and conditions identical to those of the other outstanding Senior Notes, except that Additional Notes may differ with respect to:

(i) the date of issuance;

 

(ii) the initial interest accrual date;

 

(iii) the first interest payment date;

 

(iv) the issue price; and/or

 

(v) any adjustments necessary in order to conform to and ensure compliance with the Securities Act of 1933, as amended (or other applicable securities laws), which are not adverse in any material respect to the holder of any outstanding Senior Notes.

 

           Additional Notes executed by the Company in accordance with Section 2.02 of the Indenture and delivered to the Trustee, shall be authenticated and delivered to or upon the written order of the Company, upon receipt by the Trustee of the Officers’ Certificate and Opinion of Counsel required by Section 12.04 of the Indenture.

 

14.             Defeasance. The Senior Notes will be subject to covenant defeasance and legal defeasance pursuant to the terms and conditions set forth in Article 9 of the Indenture, provided that all references to Holder therein shall instead refer to beneficial owners of the notes.

15.             Authentication. The Senior Notes shall not be valid until authenticated by a manual or facsimile signature of the Registrar.

16.             Abbreviations. Customary abbreviations may be used in the name of a holder or an assignee, such as: TEN COM (=tenants in common), TEN ENT (=tenants by the entirety), JT TEN (=joint tenants with right of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gifts to Minors Act).

17.             Form. The form of the Senior Notes shall be substantially in form of Annex B hereto.

Annex A

 

Limitation on Liens to Secure Debt

 

So long as any Senior Notes are outstanding, the Company may not create or permit to be created any mortgage, security interest, pledge, lien or other encumbrance (“Lien”) of or upon any Operating Property (as defined herein), whether owned at the date of the Indenture or thereafter acquired, to secure any Debt (as defined herein), without effectively securing the Senior Notes (together with, if the Company shall so determine, any of the Company’s other Debt ranking senior to, or equally with, the Senior Notes) equally and ratably with such Debt (but only so long as such Debt is so secured), subject to the following exceptions, one or more of which may apply to any particular Lien.

 

The foregoing restriction will not apply to:

 

(1)               Liens to secure Debt incurred without limitation as to amount under the Mortgage (as defined herein);

 

(2)               Liens to secure Debt existing on the date of the issuance of the Senior Notes and obligations under the Credit Facility (not to exceed the total amount available under the Credit Facility on the date of such issuance);

 

(3)               Liens on any Operating Property which existed on such property prior to the acquisition thereof by the Company, to secure Debt assumed by the Company in connection with such acquisition;

 

(4)               Liens to secure Debt incurred by the Company in connection with the acquisition or lease by the Company in the ordinary course of business, after the date of the issuance of the Senior Notes, of furniture, fixtures, equipment and other assets not owned by the Company as of the date of issuance of the Senior Notes provided that (a) such Debt shall not be secured by any Operating Property of the Company other than the Operating Property with respect to which such Debt is incurred, and (b) the Lien securing such Debt shall be created within 90 days of the incurrence of such Debt;

 

(5)               Liens to secure Debt of any entity existing at the time such entity is merged into or consolidated with, or such entity disposes of all or substantially all its properties (or those of a division) to, the Company;

 

(6)               Liens to secure Debt incurred to acquire, construct, develop or substantially repair, alter or improve Operating Property or to provide funds for any such purpose or for reimbursement of funds previously expended for any such purpose; provided that such Debt is incurred contemporaneously with, or within 24 months after, such acquisition or the completion of construction, development or substantial repair, alteration or improvement;

 

(7)               Liens to secure, directly or indirectly, the Company’s obligations with respect to debt issued by any Governmental Authority (as defined herein), including debt represented by securities issued by any such Governmental Authority (or providers of credit enhancement with respect to such securities), including, without limitation, the Company’s obligations with respect to industrial development, pollution control or similar revenue bonds incurred for the purpose of financing all or any part of the purchase price or the cost of substantially repairing or altering, constructing, developing or substantially improving Operating Property;

 

(8)               Liens to secure Debt which has been defeased, including the Senior Notes;

 

(9)               Liens to secure Debt incurred in connection with an accounts receivable facility and/or contract payments facility or the securitization of any Excepted Assets (as defined herein); and

 

(10)              Liens to secure any extension, renewal or replacement (or successive extensions, renewals or replacements), in whole or in part, of an instrument or agreement creating any Debt referred to in clauses (1) through (9).

 

Also, the foregoing restriction will not apply to Liens, otherwise subject to the foregoing restrictions, to secure Debt of up to an aggregate principal amount (not including Debt secured by Liens permitted by any of the foregoing exceptions) which, immediately following the creation of such Lien, together with all other Debt so secured, does not exceed 15% of Capitalization (as defined herein).

 

Certain Definitions

 

“Capitalization” means the total of all the following items appearing on, or included in, the Company’s balance sheet:

 

(a)

liabilities for Debt; and

 

(b)

common stock, preferred stock, hybrid preferred securities, premium on capital stock, capital surplus, capital in excess of par value and retained earnings (however the foregoing may be designated), less, to the extent not otherwise deducted, the cost of shares of the Company’s capital stock held in the Company’s treasury.

 

Subject to the foregoing, Capitalization shall be determined in accordance with generally accepted accounting principles applicable to the type of business in which the Company is engaged and that are approved by independent accountants regularly retained by the Company, and may be determined as of a date not more than sixty (60) days prior to the happening of an event for which such determination is being made.

 

“Credit Facility” means the Second Amended and Restated Credit Agreement dated as of January 14, 2014 among El Paso Electric Company, The Bank of New York Trust Company, National Association, as trustee of the Rio Grande Resources Trust II, the lenders party thereto and JPMorgan Chase Bank, National Association as Administrative Agent and Issuing Bank.

 

“Debt” means any of the Company’s outstanding debt for money borrowed evidenced by notes, debentures, bonds, or other securities, or guarantees of any thereof.

 

“Excepted Assets” means all bills, notes and other instruments, accounts receivable, claims, credits, judgments, demands, general intangibles, licenses and privileges (except franchises and permits), emissions allowances, choses in action, patents, patent applications, patent licenses and other patent rights, trade names, trademarks and all contracts, leases and agreements of whatsoever kind and nature, other than any of the foregoing which are by the express provisions of the Mortgage subjected or required to be subjected to the Lien of the Mortgage.

 

“Governmental Authority” means any federal, state, local or foreign court or governmental agency, authority, instrumentality or regulatory body.

 

“Mortgage” means the General Mortgage Indenture and Deed of Trust dated February 1, 1996 between the Company and U.S. Bank National Association, as successor to State Street Bank and Trust Company, as trustee, as amended, supplemented, substituted or replaced from time to time; provided, however, that any such substitution or replacement will provide for a Lien on substantially all of the Company’s Operating Property subject to exceptions substantially similar to those contained in the previously existing Mortgage.

 

“Operating Property” means, as of any particular time, (i) all of the real, personal and mixed property which is an integral part of or is used or to be used as an integral part of the electric generating, transmission and/or distribution operations of the Company, (ii) any undivided legal interest of the Company in any such property which is jointly owned by the Company and any other person or persons and (iii) franchises and permits owned by the Company in connection with the electric generating, transmission and/or distribution operations of the Company, including, without limitation all of such property which is acquired by the Company after the date of the issuance of the Senior Notes; provided, however, that Operating Property shall not be deemed to include Excepted Property (as defined in the Mortgage).

 

Annex B

 

Form of Senior Note

 

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR THE REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

 

TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.

 

No. S-

CUSIP No. 283677AZ5

 

EL PASO ELECTRIC COMPANY
5.000% Senior Note due 2044

 

El Paso Electric Company, a Texas corporation, promises to pay to Cede & Co., or registered assigns, except to the extent previously redeemed, the principal sum of $___________ on December 1, 2044 (or such other amount as reflected on the Schedule of Increases or Decreases in Global Security attached hereto).

 

Interest Payment Dates: December 1 and June 1 of each year, commencing on June 1, 2015.

 

Record Dates: November 15 and May 15 of each year.

 

	EL PASO ELECTRIC COMPANY
	By
		Name:	Nathan T. Hirschi
		Title:	Senior Vice President and
			Chief Financial Officer
	By:
		Name:	John R. Boomer
		Title:	Vice President and General
			Counsel

 

Dated: December 1, 2014

 

Trustee, Registrar and Paying Agent Authentication

 

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,

 

as Trustee, Registrar and Paying Agent certifies that this is one 

of the Securities, of the series herein designated, 

referred to in the within-mentioned Indenture.

 

By ______________________________________

Authorized Signature

 

 

 

 

 

[Signature Page to Senior Note]

 

EL PASO ELECTRIC COMPANY
5.000% Senior Note due 2044

 

All capitalized terms used but not defined herein shall have the meaning given to such terms in the Securities Resolution No. 4 effective as of December 1, 2014 (the “Securities Resolution”). Other than as set forth below, the terms of the Senior Notes are as set forth in the Indenture dated as of May 1, 2005 between the Company and The Bank of New York Mellon Trust Company, N.A. (formerly known as The Bank of New York Trust Company, N.A.), as successor to JPMorgan Chase Bank, National Association, as Trustee, as amended by the First Supplemental Indenture dated as of May 19, 2008 between the Company and the Trustee (together, the “Indenture”), and the Securities Resolution.

 

1.             Interest. The Company will pay interest semi-annually in arrears on December 1 and June 1 of each year commencing on June 1, 2015. Interest on the Senior Notes will accrue from December 1, 2014 or from the most recent date to which interest has been paid. Interest will be computed on the basis of a 360-day year of twelve 30-day months. The record dates for payments of interest will be the November 15 and May 15 preceding each related interest payment date.

 

2.             Method of Payment. The Company will pay interest on the Senior Notes to the persons who are registered holders of Senior Notes at the close of business on the record date for the next interest payment date, except as otherwise provided in the Indenture. Holders must surrender Senior Notes to a Paying Agent to collect principal payments. The Company will pay principal and interest in money of the United States that at the time of payment is legal tender for payment of public and private debts. The Company may pay principal and interest by check payable in such amount. It may mail an interest check to a holder’s registered address. Notwithstanding the foregoing, as long as the Senior Notes are represented by a global note and held by DTC (as defined herein), or a custodian thereof, all payments of principal and interest on the Senior Notes will be made to DTC in accordance with DTC procedures.

 

3.             Agents. Initially, pursuant to Section 2.03 of the Base Indenture, The Bank of New York Mellon Trust Company, N.A. (formerly known as The Bank of New York Trust Company, N.A.), as successor to JPMorgan Chase Bank, National Association, will act as Paying Agent, Transfer Agent and Registrar. The Company may change any Paying Agent, Transfer Agent or Registrar or provide for more than one such agent. The Company or any Affiliate may act in any such capacity. Subject to certain conditions, the Company may change the Trustee.

 

4.             Indenture. The terms of the Senior Notes include those stated in the Securities Resolution, the Indenture and those made part of the Indenture by the Trust Indenture Act of 1939, as amended (the “Act”).

 

5.             Optional Redemption. Prior to June 1, 2044, the Senior Notes will be redeemable at the Company’s option, at any time in whole, or from time to time in part, at a redemption price equal to the greater of:

 

·

100% of the principal amount of the Senior Notes being redeemed on the redemption date; and

 

·

the sum of the present values of the remaining scheduled payments of principal and interest on the Senior Notes being redeemed on that redemption date (exclusive of interest accrued to the redemption date) discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 30 basis points,

 

plus, in either case, accrued and unpaid interest thereon to, but excluding, the redemption date.

 

On or after June 1, 2044, the Senior Notes will be redeemable at the Company’s option, at any time in whole, or from time to time in part, at a redemption price equal to 100% of the principal amount of the Senior Notes to be redeemed plus accrued and unpaid interest on the principal amount being redeemed to, but excluding, the redemption date.

 

6.             Notice of Redemption. Notice of redemption will be mailed at least 30, but no more than 60, days before the redemption date to each holder of Senior Notes to be redeemed at his registered address.

 

A notice of redemption may provide that it is subject to the occurrence of any event before the date fixed for such redemption as described in such notice (“Conditional Redemption”) and such notice of Conditional Redemption shall be of no effect unless all such conditions to the redemption have occurred before such date or have been waived by the Company.

 

7.             Conversion. None.

 

8.             Denominations, Form, Transfer, Exchange. The Senior Notes initially will be in registered global form without coupons, in the name of Cede & Co., as The Depository Trust Company’s (“DTC”) partnership nominee. The global note representing the Senior Notes will be deposited with, or on behalf of, DTC. Subject to any restrictions related to global notes, the transfer of Senior Notes may be registered and Senior Notes may be exchanged as provided in the Indenture. The Transfer Agent may require a holder, among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or the Indenture. The Senior Notes may be issued in denominations of $1,000 and integral multiples in excess thereof.

 

9.             Persons Deemed Owners. The registered holder of a Senior Note may be treated as its owner for all purposes.

 

10.            Amendments and Waivers. Subject to certain exceptions, the Indenture, the Senior Notes or any coupons may be amended with the consent of the holders of a majority in principal amount of the Securities of all series affected by the amendment. Subject to certain exceptions, a default on a series may be waived with the consent of holders of a majority in principal amount of the series.

 

Without the consent of any holder, the Indenture or the Senior Notes may be amended, among other things, to cure any ambiguity, omission, defect or inconsistency; to provide for assumption of Company obligations to holders; to provide that specific provisions of the Indenture shall not apply to a series not previously issued; to create a series and establish its terms; to provide for a separate Trustee for one or more series; or to make any change that does not materially adversely affect the rights of any holder.

 

11.             Successors. When a successor assumes all the obligations of the Company under the Senior Notes, any coupons and the Indenture, the Company will be released from those obligations.

 

12.             Defeasance Prior to Redemption or Maturity. Subject to certain conditions, the Company at any time may terminate some or all of its obligations under the Senior Notes, any related coupons and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal and interest on the Senior Notes to redemption or maturity. U.S. Government Obligations means direct obligations of (i) the United States or (ii) an agency or instrumentality of the United States, the payment of which is unconditionally guaranteed by the United States, which, in either case, have the full faith and credit of the United States pledged for payment and which are not callable at the Company’s option, or certificates representing an ownership interest in such obligations.

 

13.             Restrictive Covenants. The Senior Notes will be subject to the covenants set forth in the Indenture. In addition, the Senior Notes will be subject to the covenant contained in Annex A to the Securities Resolution.

 

14.             Defaults. The Senior Notes will be subject to the events of default contained in the Indenture; in addition, it will be an event of default under the Senior Notes if the Company fails to observe or perform any term, covenant, condition or agreement contained in any agreement or instrument evidencing or governing any Debt in a principal amount in excess of $10,000,000 if the effect of any such failure is to cause such Debt to become due prior to its stated maturity.

 

15.             No Recourse Against Others. A director, officer, employee or stockholder, as such, of the Company or of any successor corporation shall not have any liability for any obligations of the Company under the Senior Notes or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each holder by accepting a Senior Note waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Senior Notes.

 

16.             Authentication. The Senior Notes shall not be valid until authenticated by a manual or facsimile signature of the Registrar.

 

17.             Abbreviations. Customary abbreviations may be used in the name of a holder or an assignee, such as: TEN COM (=tenants in common), TEN ENT (=tenants by the entirety), JT TEN (=joint tenants with right of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gifts to Minors Act).

 

The Company will furnish to any holder upon written request and without charge a copy of the Indenture and the Securities Resolution. Requests may be made to: El Paso Electric Company, Stanton Tower, 100 North Stanton, El Paso, TX 79901, Attention: Corporate Secretary.

 

SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY

 

The initial principal amount of this Global Security is $___________. The following increases or decreases in this Global Security have been made:

 

Date of Exchange	Amount of decrease in Principal Amount of this Global Security	Amount of increase in Principal Amount of this Global Security	Principal amount of this Global Security following such decrease or increase	Signature of authorized signatory of Trustee or Securities Custodian

 

Exhibit 5.1

Exhibit 23.1

 

 

One American Center
600 Congress
Suite 1900	December 1, 2014
Austin, TX 78701
P.O. Box 1149
Austin, TX 78767
p: 512.744.9300
f: 512.744.9399
www.dwmrlaw.com

 

 

El Paso Electric Company 

Stanton Tower 

100 North Stanton Street 

El Paso, Texas 79901

 

Ladies and Gentlemen:

 

We have acted as special Texas counsel for El Paso Electric Company, a Texas corporation (the “Company”), with regard to matters of Texas law in connection with the issuance and sale (the “Issuance”) by the Company on December 1, 2014 of $150,000,000 in aggregate principal amount of 5.000% Senior Notes due December 1, 2044 (the “Securities”) pursuant to an Underwriting Agreement dated November 24, 2014, which incorporates the provisions of the Company’s Underwriting Agreement Standard Provisions attached thereto, among the Company and J.P. Morgan Securities LLC and Mitsubishi UFJ Securities (USA), Inc., acting on behalf of the underwriters named in the Underwriting Agreement. The Securities were (i) issued pursuant to an indenture dated as of May 1, 2005 between the Company and The Bank of New York Mellon Trust Company, N.A. (formerly known as The Bank of New York Trust Company, N.A.) as successor to JPMorgan Chase Bank, National Association, as Trustee, as supplemented by First Supplemental Indenture dated May 19, 2008, and as further supplemented by Securities Resolution No. 4 dated December 1, 2014 (including the terms of the Securities established thereunder, the “Indenture”), (ii) registered under the Company’s Registration Statement on Form S-3 No. 333-198989, filed with the Securities and Exchange Commission on September 26, 2014 and automatically effective upon filing, including the documents incorporated by reference therein, and (iii) described in the Company’s Prospectus dated September 26, 2014, as supplemented by a Prospectus Supplement dated November 24, 2014 relating to the Securities, including the documents incorporated therein by reference.

 

We, as the Company’s special Texas counsel, have examined originals or copies, certified or otherwise identified to our satisfaction, of the Securities, the Indenture, resolutions of the board of directors of the Company, and such other documents, corporate records, certificates of public officials, and other instruments as we have deemed necessary for the purposes of rendering this opinion letter.

 

 

 

December 1, 2014
Page 2

 

As to certain factual matters material to the opinions hereinafter expressed, we have, when relevant facts were not independently established by us, relied (where such reliance is reasonable), without objection by you, on representations contained in certificates of the Company or its officers and/or directors, on certificates of public officials, and on representations made by the Company in the Indenture or other applicable documents.

 

We have assumed, without objection by you and without investigation, (i) the due execution and delivery, pursuant to due authorization, of all the documents (other than, with respect to the Company, the Indenture and the Securities) relevant to the Issuance by each party thereto; (ii) that each document relevant to the Issuance constitutes the legally valid and binding obligation of each party thereto, enforceable against each party in accordance with its terms; (iii) that each party (other than the Company) has the full power, authority, and legal right, corporate or other, to enter into and perform its obligations under all documents relevant to the Issuance; and (iv) that each party (other than the Company) is duly formed, validly existing, and in good standing under the laws of its jurisdiction of formation. We further assume, without objection by you and without investigation, that all conditions precedent with regard to the legal and valid execution and delivery of and performance under the documents that we have examined (other than, with respect to the Company, the execution and delivery of the Indenture and the Securities) and the documents relevant to the Issuance by each party thereto have been made or satisfied or have occurred and are in full force and effect. Any reference to “documents relevant to the Issuance” herein includes all documents and instruments executed, filed, or issued on or prior to the date of this opinion letter that relate to the Issuance of the Securities or any additional transactions contemplated thereby, as well as any documents and instruments to be executed, filed, or issued in the future in connection with the Issuance of the Securities or any additional transactions contemplated thereby.

 

We have also examined originals or copies of such agreements and other instruments, documents, and records as we have deemed relevant and necessary as a basis for the opinions expressed below. We have assumed, without objection by you and without investigation, the genuineness of all signatures (other than those in the Indenture and the Securities on behalf of the Company), the authenticity and completeness of all documents submitted to us as originals, including, without limitation, the Indenture and the Securities, and the completeness and conformity with originals of all documents submitted to us as copies.

 

 

 

December 1, 2014
Page 3

Opinions

 

On the basis of the foregoing, we advise you that, in our opinion:

 

1.

The Company has been duly incorporated and is an existing corporation in good standing under the laws of the State of Texas.

 

2.

The Indenture has been duly authorized, executed, and delivered by the Company.

 

3.

The Securities have been duly authorized, executed, issued, and delivered by the Company.

 

Additional Assumptions and Qualifications

 

A.    In each instance in this opinion in which we state that we have made certain assumptions, we wish to advise you that we have no knowledge of any inaccuracy of any such assumption. As used in the immediately preceding sentence, the word “knowledge” means actual conscious awareness, on the date hereof, on the part of those lawyers in our firm having primary responsibility for the matters covered by this opinion letter.

 

B.    We have not acted as general counsel to the Company, and our opinions relating to matters about the Company are solely based on information provided to us by the Company, which we have not independently investigated, and information we have obtained from third-party sources, which we believe to be reliable but have not independently investigated.

 

C.    We express no opinion except as expressly provided herein and our opinions are as of the date hereof and are based, in each case, upon existing laws and regulations effective as of the date hereof and assume the application of such laws and regulations to events that may occur after the date of this letter, and we undertake no obligation (i) to advise you of changes that may come to our attention or that become effective after the date hereof or (ii) to withdraw, reissue, or supplement the opinions expressed herein as a result of any subsequent change to relevant facts or applicable law or any discovery by us that any assumption or factual conclusion set forth in this letter was incorrect as of the date hereof. Moreover, in connection with our opinions, we have not reviewed or considered, and are not rendering any opinions on or with respect to, any proposed or pending local, state, or federal rules, regulations, or legislation as to their possible impact on the Issuance of the Securities.

 

 

 

December 1, 2014
Page 4

 

 

D.    We are members of the Bar of the State of Texas and the foregoing opinions are limited to the laws of the State of Texas.

 

We hereby consent to the filing of this opinion letter as an exhibit to the Company’s 8-K to be filed on or about December 1, 2014. In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.

 

This opinion letter is rendered solely to you in connection with the above matter and may not be relied upon by you for any other purpose or relied upon by or furnished to any other person without our prior written consent.

 

	Very truly yours,
	/s/ Duggins Wren Mann & Romero, LLP

 

Exhibit 5.2

Exhibit 23.2

 

		New York Menlo Park Washington DC São Paulo London	Paris Madrid Tokyo Beijing Hong Kong
Davis Polk & Wardwell LLP  450 Lexington Avenue New York, NY 10017	212 450 4000 tel  212 701 5800 fax

 

December 1, 2014

 

El Paso Electric Company
Stanton Tower
100 North Stanton
El Paso, Texas 79901

 

Ladies and Gentlemen:

 

El Paso Electric Company, a Texas corporation (the “Company”), has filed with the Securities and Exchange Commission a Registration Statement on Form S-3 (File No. 333-198989) (the “Registration Statement”) for the purpose of registering under the Securities Act of 1933, as amended (the “Securities Act”), certain securities, including $150,000,000 aggregate principal amount of the Company’s 5.000% Senior Notes due 2044 (the “Securities”). The Securities are to be issued pursuant to an Indenture dated as of May 1, 2005 between the Company and The Bank of New York Mellon Trust Company, N.A. (formerly known as The Bank of New York Trust Company, N.A.), as successor to JPMorgan Chase Bank, National Association, as trustee (the “Trustee”), and as amended by the First Supplemental Indenture dated as of May 19, 2008 between the Company and the Trustee, and as further supplemented by Securities Resolution No. 4 effective December 1, 2014 (together, the “Indenture”). The Securities are to be sold pursuant to the Underwriting Agreement dated November 24, 2014 (the “Underwriting Agreement”) among the Company and the several underwriters named therein (the “Underwriters”).

 

We, as your counsel, have examined originals or copies of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary or advisable for the purpose of rendering this opinion.

 

In rendering the opinion expressed herein, we have, without independent inquiry or investigation, assumed that (i) all documents submitted to us as originals are authentic and complete, (ii) all documents submitted to us as copies conform to authentic, complete originals, (iii) all documents filed as exhibits to the Registration Statement that have not been executed will conform to the forms thereof, (iv) all signatures on all documents that we reviewed are genuine, (v) all natural persons executing documents had and have the legal capacity to do so, (vi) all statements in certificates of public officials and officers of the Company that we reviewed were and are accurate and (vii) all representations made by the Company as to matters of fact in the documents that we reviewed were and are accurate.

 

El Paso Electric Company

2

December 1, 2014

 

Based upon the foregoing, and subject to the additional assumptions and qualifications set forth below, we advise you that, in our opinion, when the Securities have been duly authorized, executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to the Underwriting Agreement, the Securities will constitute valid and binding obligations of the Company, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability, provided that we express no opinion as to the enforceability of any waiver of rights under any usury or stay law or to the validity, legally binding effect or enforceability of any provision that permits holders to collect any portion of stated principal amount upon acceleration of the Securities to the extent determined to constitute unearned interest.

 

In connection with the opinions expressed above, we have assumed that, at or prior to the time of the delivery of the Securities, the Company is a validly existing corporation in good standing under the laws of the State of Texas, and the Indenture and the Securities are each valid, binding and enforceable agreements of each party thereto (other than as expressly covered above in respect of the Company). We have also assumed that the execution, delivery and performance by each party to each Document to which it is a party (a) are within its corporate powers, (b) do not contravene, or constitute a default under, the certificate of incorporation or bylaws or other constitutive documents of such party, (c) require no action by or in respect of, or filing with, any governmental body, agency or official and (d) do not contravene, or constitute a default under, any provision of applicable law or regulation or any judgment, injunction, order or decree or any agreement or other instrument binding upon such party, provided that we make no such assumption to the extent that we have specifically opined as to such matters with respect to the Company.

 

We are members of the Bar of the State of New York and the foregoing opinion is limited to the laws of the State of New York, except that we express no opinion as to any law, rule or regulation that is applicable to the Company, the Documents or such transactions solely because such law, rule or regulation is part of a regulatory regime applicable to any party to any of the Documents or any of its affiliates due to the specific assets or business of such party or such affiliate.

 

We hereby consent to the filing of this opinion as an exhibit to a report on Form 8-K to be filed by the Company on the date hereof and its incorporation by reference into the Registration Statement and further consent to the reference to our name under the caption “Validity of the Senior Notes” in the prospectus supplement which is a part of the Registration Statement. In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.

 

Very truly yours,

 

 

/s/ Davis Polk & Wardwell LLP