FIRST AMENDMENT TO CREDIT AGREEMENT
EXHIBIT
10.2
FIRST
AMENDMENT TO CREDIT AGREEMENT
THIS
FIRST AMENDMENT TO CREDIT AGREEMENT (this “Amendment”)
is
entered into as of November 3, 2006 among PNM RESOURCES, INC., a New Mexico
corporation (the “Company”),
FIRST
CHOICE POWER, L.P., a Texas limited partnership (“FCP”),
TEXAS-NEW
MEXICO POWER COMPANY,
a Texas
corporation (“TNMP”,
collectively with the Company and FCP, the “Borrowers”),
the
Lenders party hereto, and BANK OF AMERICA, N.A., as Administrative Agent for
the
Lenders (in such capacity, the “Administrative
Agent”).
Capitalized terms used herein and not otherwise defined shall have the meanings
ascribed thereto in the Credit Agreement (as defined below).
R
E C
I T A L S
WHEREAS,
the Borrowers, the Lenders party thereto and the Administrative Agent are
parties to that certain Amended and Restated Credit Agreement, dated as of
August 15, 2005 (as amended or modified from time to time, the
“Credit
Agreement”);
WHEREAS,
the Borrowers have requested that the Lenders agree to certain changes to the
Credit Agreement; and
WHEREAS,
the Lenders are willing to agree to certain changes to the Credit Agreement
as
more fully set forth below.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
A
G R
E E M E N T
1. Amendments.
Section
7.1.
Sections 7.1(a) and 7.1(b) of the Credit Agreement are hereby amended and
restated in their entireties to read as follows:
(a) Annual
Financial Statements.
As soon
as available, and in any event within 120 days after the close of each Fiscal
Year of such Borrower, a consolidated balance sheet and income statement of
such
Borrower and its Subsidiaries, as of the end of such Fiscal Year, together
with
the related consolidated statements of income and of cash flows for such Fiscal
Year, setting forth in comparative form figures for the preceding Fiscal Year,
all such financial information described above to be in reasonable form and
detail and (i) in the case of each of FCP and First Choice (to the extent such
Person is a Borrower), accompanied by a certificate of a Financial Officer
of
such Borrower to the effect that such annual financial statements fairly present
in all material respects the financial condition of such Borrower and have
been
prepared in accordance with GAAP and (ii) in all other cases, audited by
independent certified public accountants of recognized national standing
reasonably acceptable to the Required Lenders and whose opinion shall be
furnished to the Lenders, and shall be to the effect that such financial
statements have been prepared in accordance with GAAP (except for changes with
which such accountants concur) and shall not be limited as to the scope of
the
audit or qualified in any respect. Notwithstanding the forgoing, such financial
statements of each Borrower (other than the Company) shall not be required
to
contain comparative form figures for any portion of the preceding Fiscal Year,
if any, that the applicable Borrower has not been owned by the
Company.
(b) Quarterly
Financial Statements.
As soon
as available, and in any event within 60 days after the close of each Fiscal
Quarter of such Borrower (other than the fourth Fiscal Quarter), a consolidated
balance sheet and income statement of such Borrower and its Subsidiaries as
of
the end of such Fiscal Quarter, together with the related consolidated statement
of income for such Fiscal Quarter and a year to date statement of cash flows,
in
each case setting forth in comparative form figures for the corresponding period
of the preceding Fiscal Year, all such financial information described above
to
be in reasonable form and detail and reasonably acceptable to the Required
Lenders, and, in each case, accompanied by a certificate of a Financial Officer
of such Borrower to the effect that such quarterly financial statements fairly
present in all material respects the financial condition of such Person and
have
been prepared in accordance with GAAP, subject to changes resulting from audit
and normal year-end audit adjustments and except that the quarterly financial
statements have fewer footnotes than annual statements. Notwithstanding the
forgoing, such financial statements of each Borrower (other than the Company)
shall not be required to contain comparative form figures for any portion of
the
preceding Fiscal Year, if any, that the applicable Borrower has not been owned
by the Company.
2. Conditions
Precedent.
This
Amendment shall be effective upon receipt by the Administrative Agent of copies
of this Amendment duly executed by each Borrower and the Required
Lenders.
3. Ratification
of Credit Agreement.
The
term “Credit Agreement” as used in each of the Credit Documents shall hereafter
mean the Credit Agreement as amended by this Amendment. Except as herein
specifically agreed, the Credit Agreement is hereby ratified and confirmed
and
shall remain in full force and effect according to its terms.
4. Authority/Enforceability.
Each
Borrower represents and warrants as follows:
(a) It
has
taken all necessary action to authorize the execution, delivery and performance
of this Amendment.
(b) This
Amendment has been duly executed and delivered by such Person and constitutes
such Person’s legal, valid and binding obligations, enforceable in accordance
with its terms, except as such enforceability may be subject to (i) bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer, moratorium or
similar laws affecting creditors’ rights generally and (ii) general principles
of equity (regardless of whether such enforceability is considered in a
proceeding at law or in equity).
(c) No
consent, approval, authorization or order of, or filing, registration or
qualification with, any court or governmental authority or third party is
required in connection with the execution, delivery or performance by such
Person of this Amendment.
5. Representations
and Warranties.
Each
Borrower represents and warrants to the Lenders that (a) the
representations and warranties of such Borrower set forth in Section 6 of
the Credit Agreement are true and correct as of the date hereof, unless they
specifically refer to an earlier date, (b) no
event has occurred and is continuing which constitutes a Default or an Event
of
Default, and (c) it
has no claims, counterclaims, offsets, credits or defenses to its obligations
under the Credit Documents or to the extent it has any they are hereby released
in consideration of the Lenders entering into this Amendment.
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6. No
Conflicts.
Neither
the execution and delivery of this Amendment, nor the consummation of the
transactions contemplated herein, nor performance of and compliance with the
terms and provisions hereof by any Borrower will (a) violate,
contravene or conflict with any provision of its respective articles or
certificate of incorporation, bylaws or other organizational or governing
document, (b) violate,
contravene or conflict with any law, rule, regulation, order, writ, judgment,
injunction, decree or permit applicable to a Borrower, (c) violate,
contravene or conflict with contractual provisions of, or cause an event of
default under, any indenture, loan agreement, mortgage, deed of trust, contract
or other agreement or instrument to which a Borrower is a party or by which
it
or its properties may be bound or (d) result
in or require the creation of any Lien upon or with respect to a Borrower’s
properties.
7. Counterparts/Telecopy.
This
Amendment may be executed in any number of counterparts, each of which when
so
executed and delivered shall be an original, but all of which shall constitute
one and the same instrument. Delivery of executed counterparts by telecopy
shall
be effective as an original and shall constitute a representation that an
original will be delivered if requested.
8. GOVERNING
LAW.
THIS
AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
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Each
of
the parties hereto has caused a counterpart of this Amendment to be duly
executed and delivered as of the date first above written.
BORROWERS:
PNM
RESOURCES, INC.,
a
New
Mexico corporation
By: /s/
Xxxxx X. Xxxxxxx
Name: Xxxxx
X. Xxxxxxx
Title: Vice
President and Treasurer
FIRST
CHOICE POWER, L.P.,
a
Texas
limited partnership
By: /s/
Xxxxx X. Xxxxxxx
Name: Xxxxx X.
Xxxxxxx
Title:
Vice
President and Treasurer
TEXAS-NEW
MEXICO POWER COMPANY,
a
Texas
corporation
By: /s/
Xxx Xxxxxxx
Name: Xxxxxx
X. Xxxxxxx
Title: Vice
President, Controller and Treasurer
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|
LENDERS:
|
BANK
OF AMERICA, N.A.,
as
a Lender and L/C
Issuer
|
By: /s/
Xxxxx Xxxxxxxxx
Name: Xxxxx
Xxxxxxxxx
Title: Senior
Vice President
WACHOVIA
BANK, NATIONAL ASSOCIATION,
as
a
Lender and L/C Issuer
By: /s/
Xxxxxxxxx X. Xxxxx
Name: Xxxxxxxxx
X. Xxxxx
Title: Managing
Director
UNION
BANK OF CALIFORNIA, N.A.
By: /s/
Xxxxxx Xxxx
Name: Xxxxxx
Xxxx
Title: Vice
President
JPMORGAN
CHASE BANK, N.A.
By: /s/
Xxxxxxx XxXxxxx
Name: Xxxxxxx
XxXxxxx
Title: Vice
President
CITIBANK,
N.A.
By: /s/
J.
Xxxxxxxx XxXxx
Name: Xxxxxxxx
XxXxx
Title: Managing
Director
XXXXX
FARGO BANK, N.A.
By: /s/
Xxxxxx X. Xxxxxxx
Name: Xxxxxx
Xxxxxxx
Title: Vice
President
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XXXXXXX
XXXXX BANK USA
By: /s/
Xxxxx
Xxxxx
Name: Xxxxx
Xxxxx
Title: Director
XXXXXX
XXXXXXX BANK
By:
Name:
Title:
UBS
LOAN FINANCE LLC
By: /s/
Xxxx X. Xxxx -- /s/Xxxxxxx X. Tavros
Name: Xxxx
X. Xxxx -- Xxxxxxx X. Tavros
Title: Associate
Director Director
Banking
Products Services, US
XXXXXX
BROTHERS BANK, FSB
By: /s/
Xxxxxx X Xxxxxx
Name: Xxxxxx
X. Xxxxxx
Title: Authorized
Signatory
XXXXXXX
STREET COMMITMENT CORPORATION
(Recourse
only to assets of Xxxxxxx Street Commitment
Corporation)
By: /s/
Xxxx Xxxxxx
Name: Xxxx
Xxxxxx
Title: Assistant
Vice President
CREDIT
SUISSE, CAYMAN ISLANDS BRANCH
By: /s/
Xxxxx Xx
Name: Xxxxx
Xx
Title: Director
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By: /s/Xxxxxxxx
Xxxxxxx
Name: Xxxxxxxx
Xxxxxxx
Title: Associate
U
S BANK NATIONAL ASSOCIATION
By: /s/
Xxxxx X. Xxxxxx
Name: Xxxxx
X. Xxxxxx
Title: Vice
President
HSBC
BANK USA, NATIONAL ASSOCIATION
By: /s/
Xxxxxxxx Xxxxxxx #75329
Name: Xxxxxxxx
Xxxxxxx
Title: Assistant
Vice President
MELLON
BANK, N.A.
By: /s/
Xxxx X. Xxxxxx
Name: Xxxx
X. Xxxxxx
Title: Vice
President
ROYAL
BANK OF CANADA
By: /s/
Xxxxx X. XxXxxxxxx
Name: Xxxxx
X. XxXxxxxxx
Title: Authorized
Signatory
COMPASS
BANK
By:
Name:
Title:
SOUTHWEST
SECURITIES BANK
By: /s/
Xxxxxx Xxxxxx
Name: Xxxxxx
Xxxxxx
Title: President,
North Arlington Banking Center
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BANK
OF ALBUQUERQUE, N.A.
By: /s/
Xxxx X. Xxxxxx
Name: Xxxx
X. Xxxxxx
Title: Vice
President
BANK
HAPOALIM BM
By: /s/
Xxxxx X. Xxxxxxx /s/ Xxxxxxx XxXxxxxxxx
Name: Xxxxx
X. Xxxxxxx Xxxxxxx XxXxxxxxxx
Title: Vice
President Senior Vice President
ADMINSTRATIVE
AGENT: BANK
OF AMERICA, N.A.
By: /s/
Xxxxx X. XxXxxxx
Title: Vice
President
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