[EXECUTION COPY]
AMENDMENT No. 2
dated as of October 1, 1995
to the
REIMBURSEMENT AGREEMENT
dated as of November 1, 1992
between
PUBLIC SERVICE COMPANY
OF NEW MEXICO
and
CANADIAN IMPERIAL BANK OF COMMERCE,
NEW YORK AGENCY
relating to
Pollution Control Revenue
Refunding Bonds, 1992 Series A
(Public Service Company of New Mexico
Palo Verde Project)
AMENDMENT NO. 2
to the
REIMBURSEMENT AGREEMENT
THIS AMENDMENT NO. 2 (this "AMENDMENT"), dated as of October
1, 1995, to the Reimbursement Agreement, dated as of November 1,
1992 (as heretofore amended, the "EXISTING REIMBURSEMENT
AGREEMENT"), between PUBLIC SERVICE COMPANY OF NEW MEXICO, a New
Mexico corporation (the "Company"), and CANADIAN IMPERIAL OF
COMMERCE, acting through its New York Agency (the "Bank"),
W I T N E S S E T H:
WHEREAS, the Existing Reimbursement Agreement was executed by
the Company and the Bank in connection with the issuance by the
Bank of the Letter of Credit for the benefit of the Trustee in
support of the Bonds, and was amended pursuant to Amendment No. 1,
dated as of July 1, 1994;
WHEREAS, the Company desires, and the Bank is willing on the
terms and subject to the conditions hereinafter set forth, to
amend certain fee provisions of the Existing Reimbursement
Agreement and to extend the maturity of the Letter of Credit;
NOW, THEREFORE, in consideration, of the premises and the
mutual agreements herein contained, the Company and the Bank
hereby agree as follows:
SECTION 1. CERTAIN DEFINITIONS. The following terms
whether or not underscored) when used in this Amendment shall
have the following meanings:
"AMENDED REIMBURSEMENT AGREEMENT" means the Existing
Reimbursement Agreement as amended by this Amendment.
"AMENDMENT" is defined in the PREAMBLE.
"BANK" is defined in the PREAMBLE.
"COMPANY" is defined in the PREAMBLE.
"EFFECTIVE DATE" is defined in SECTION 4.
"EXISTING REIMBURSEMENT AGREEMENT" is defined in the PREAMBLE.
SECTION 2. OTHER DEFINITIONS. Terms for which meanings are
provided in the Existing Reimbursement Agreement are, unless
otherwise defined herein or the context otherwise requires, used
in this Amendment with such meanings.
SECTION 3. AMENDMENTS TO EXISTING REIMBURSEMENT
AGREEMENT. Effective on the Effective Date, the
Existing Reimbursement Agreement is hereby amended in
accordance with this Section 3. Except as expressly so
amended, the Existing Reimbursement Agreement shall
continue in full force and effect in accordance with
its terms.
SECTION 3.1. Section 1 (Definitions). Section 1
of the Existing Reimbursement Agreement is hereby
amended by amending and restating in their entirety
the definition of "Credit Agreement" and the
definition of "Scheduled Termination Date" as follows:
"'CREDIT AGREEMENT' means the
U.S.$100,000,000 Revolving Credit Agreement,
dated as of December 14, 1993, among the Company,
as borrower, Chemical Bank and Citibank N.A., as
co-agents thereunder, and the banks named
therein, as amended by Amendment No. 1, dated as
of June 7, 1995."
"'SCHEDULED TERMINATION DATE' means November 26,
1998.".
SECTION 3.2. SECTION 8 (FEES). CLAUSE (A) of
Section 8 of the Existing Reimbursement Agreement is
hereby amended by deleting SUBCLAUSES (I) through (V)
thereof and replacing them with the following
SUBCLAUSES (I) through (IV):
"(i) If the Bond Rating of Xxxxx'x or S&P is Baa3 or
BBB-, respectively, or higher, the Letter of Credit Fee
shall be .75%.
(ii) During such times as SUBCLAUSE (A)(I) of this
SECTION 8 is not applicable and the Bond Rating of Xxxxx'x
or S&P is at least Bal or BB+, respectively, the Letter of
Credit Fee shall be .85%.
(iii) During such times as SUBCLAUSES (A)(I) and
(A)(II) of this SECTION 8 are not applicable and the Bond
Rating of Xxxxx'x or S&P is at least Ba2 or BB,
respectively, the Letter of Credit Fee shall be 1.15%.
(iv) In all other cases, the Letter of Credit Fee
shall be 1.40%."
SECTION 3.3. SECTION 16 (COVENANTS). A new CLAUSE (l) is
hereby added to SECTION 16 of the Existing Reimbursement
Agreement to read as follows:
"(k) NO SURRENDER OF FIRST MORTGAGE BONDS.
Notwithstanding any provision contained in clause
(b) of Section 14.11 of the Indenture to the
contrary, the Company hereby agrees not to request
the Trustee to release to the Company any amount of
the First Mortgage Bonds (or Corresponding
Securities, as the case may be) and not to accept
any amount of the First Mortgage Bonds (or
Corresponding Securities, as the case may be) so
released."
SECTION 3.4. Section 17 (Events of Default). Clause (c)(i)
of SECTION 17 of the Existing Reimbursement Agreement is amended
and restated in its entirety to read as follows:
"(i) the Company shall default in the observance or
performance of any covenant incorporated in clause (a) of
SECTION 16 by reference to Section 5.01(h) or 5.02(i) of the
Credit Agreement, or contained in clause (b)(iii) or (l) of
Section 16;"
SECTION 4. EFFECTIVE DATE. When all of the conditions set
forth in this SECTION 4 have been satisfied, this Amendment shall
become effective as of October 1, 1995 (the "EFFECTIVE Date") and
thereafter shall be known, and may be referred to, as "Amendment
No. 2 to the Reimbursement Agreement".
SECTION 4.1. EXECUTION OF COUNTERPARTS OF THIS AMENDMENT. The
Bank shall have received executed counterparts of this Amendment
duly executed on behalf of the Company.
SECTION 4.2. EXECUTION OF AMENDMENT TO LETTER OF CREDIT. The
Bank shall have delivered to the Trustee an executed copy of the
notice of amendment to the Letter of Credit, substantially in the
form of Exhibit A hereto.
SECTION 4.3. UP-FRONT EXTENSION Fee. The Bank shall have
received a non-refundable up-front extension fee computed at a
rate of .10% of the Letter of Credit Amount on the Effective Date.
SECTION 4.4. OPINION OF SPECIAL Counsel. The Bank shall have
received the opinion of Xxxxxxx & XxXxxx, P.A., special counsel to
the Company, substantially in the form of EXHIBIT B attached
hereto.
SECTION 4.5. REPRESENTATIONS AND WARRANTIES; NO DEFAULT OR
EVENT OF DEFAULT. On the Effective Date,
(a) the representations and warranties contained in
SECTION 15 of the Reimbursement Agreement and each of the
other Related Documents shall be true and correct on and as
of the Effective Date as though made on such date, and the
Bank shall have received a certificate signed by an
Authorized Officer of the Company, dated the Effective Date,
to that effect; and
(b) no Default or Event of Default shall have occurred
and be continuing, or would result from the execution and
delivery of this Amendment, and the Bank shall have received
a certificate signed by an Authorized Officer of the Company,
dated as of the Effective Date, to that effect.
SECTION 4.6. RESOLUTIONS. The Bank shall have received
certified copies of the resolutions of the Board of Directors of
the Borrower approving this Amendment, and of all documents
evidencing other necessary corporate action and governmental
approvals permitting the extension of the Scheduled Termination
Date of the Letter of Credit, with respect to this Amendment and
the other documents to be delivered hereunder.
SECTION 4.7. SUPPLEMENTAL INDENTURES. The Bank shall have
received copies of the forty-third and forty-fourth supplemental
indentures to the First Mortgage Bond Indenture delivered in
connection with the effectiveness of Amendment No. 1 to the Credit
Agreement.
SECTION 4.8. LEGAL DETAILS, ETC. The Bank and its counsel
shall have received all information, and such counterpart
originals or such certified or other copies of such materials, as
the Bank or its counsel may reasonably request, and all legal
matters incident to the transactions contemplated by this
Amendment shall be satisfactory to the Bank and its counsel. All
documents executed or submitted pursuant hereto or in connection
herewith shall be satisfactory in form and substance to the Bank
and its counsel.
SECTION 5. REFERENCES. References in the Existing
Reimbursement Agreement shall hereinafter be deemed to be
references to the Amended Reimbursement Agreement.
SECTION 6. SUCCESSORS AND ASSIGNS. This Amendment shall be
binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns, subject to SECTION 30 of
the Amended Reimbursement Agreement.
SECTION 7. FULL FORCE AND EFFECT. Except as expressly
amended hereby, all of the representations, warranties, terms,
covenants, and conditions of the Existing Reimbursement Agreement
and each other Related Document shall remain unchanged and shall
remain in full force and effect in accordance with their
respective terms. The amendments set forth herein shall be
limited precisely as provided for herein to the provisions
expressly amended herein and shall not be deemed to be an
amendment or consent to or modification of any other
term or provision of the Existing Reimbursement
Agreement or of any term or provision of any other
Related Document or of any transaction or further or
future action on the part of the Company which would
require the consent of the Bank under the Existing
Reimbursement Agreement.
SECTION 8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
SECTION 9. COUNTERPARTS. This Amendment may be
signed in counterparts, each of which shall be an
original, with the same effect as if the signatures
thereto were upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused
this Amendment No. 2 to the Reimbursement Agreement to
be executed by their respective officers thereunto duly
authorized as of the day and year first above written.
PUBLIC SERVICE COMPANY OF NEW
MEXICO
By /s/ Xxx X. Xxxxxx
--------------------------
Title: Senior Vice President
and Chief Financial
Officer
CANADIAN IMPERIAL BANK OF
COMMERCE, NEW YORK AGENCY
By /s/ Xxxx X. Xxxxxxxx
--------------------------
Title: Authorized Signatory
