Contract
EXHIBIT 10.2
AMENDMENT
NO. 1
to
THIS
AMENDMENT NO. 1 TO CREDIT AGREEMENT (the “Amendment”) is made
as of October 31, 2008 by and among TEXAS-NEW MEXICO POWER COMPANY (the “Borrower”), the
institutions from time to time parties thereto as Lenders (the “Lenders”), and
JPMORGAN CHASE BANK, N.A., in its capacity as Administrative Agent for itself
and the other Lenders (the “Administrative
Agent”) under that certain Credit Agreement dated as of May 15, 2008 by
and among the Borrower, the financial institutions party thereto, and the
Administrative Agent (as the same may be amended, restated, supplemented or
otherwise modified from time to time, the “Credit
Agreement”). Defined terms used herein and not otherwise
defined herein shall have the meaning given to them in the Credit
Agreement.
WITNESSETH
WHEREAS,
the Borrower, the Lenders, and the Administrative Agent are parties to the
Credit Agreement; and
WHEREAS,
the Borrower has requested that the Administrative Agent and the requisite
number of Lenders under Section 11.6 of the
Credit Agreement amend the Credit Agreement on the terms and conditions set
forth herein; and
WHEREAS,
the Borrower, the requisite number of Lenders under Section 11.6 of the
Credit Agreement and the Administrative Agent have agreed to amend the Credit
Agreement on the terms and conditions set forth herein;
NOW,
THEREFORE, in consideration of the premises set forth above, the terms and
conditions contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
have agreed to the following amendments to the Credit Agreement:
1.
Amendments to the Credit
Agreement. Effective as of October 31, 2008 (the “Effective Date”) and
subject to the satisfaction of the condition precedent set forth in Section 2 below, the
Credit Agreement is hereby amended as follows:
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1.1
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Section
1.1 to the Credit Agreement is amended to insert the following
definitions in alphabetical order:
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“Note Facilities
Documentation” means one or more note purchase agreements, indentures or
other similar documentation, and any related notes or other securities issued
pursuant thereto or in connection therewith, to be dated on or prior to March
30, 2009, by and among the Borrower and the purchasers or holders of the
Indebtedness issued pursuant thereto (or any trustee or other representative on
behalf of such
purchasers
or holders), as the same may be amended, supplemented, extended or otherwise
modified from time to time; provided that (i) such Note Facilities Documentation
shall evidence the issuance of Indebtedness in an aggregate principal
amount
not to exceed $318,000,000 and (ii) such Note Facilities Documentation shall as
of the effective date thereof have representations and warranties, covenants and
events of default no less favorable to the Borrower and its Subsidiaries in any
material respect than the terms and conditions set forth in the draft Note
Purchase Agreement (draft stamp: “Draft dated September 19, 2008”)
provided to the Administrative Agent and the Lenders by the Borrower on October
29, 2008.
“2008 Term Loan Credit
Agreement” means that certain Term Loan Credit Agreement, dated as of
October 31, 2008, by and among the Borrower, the lenders and financial
institutions parties thereto, and Union Bank of California, N.A., as
administrative agent, as it may be amended, supplemented, extended or otherwise
modified from time to time, provided that the aggregate outstanding principal
amount of Indebtedness under such Term Loan Credit Agreement does not exceed
$150,000,000 minus the aggregate outstanding principal amount of the
Indebtedness under the Note Facilities Documentation at any time.
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1.2
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Section 1.1 to
the Credit Agreement is hereby amended to delete the definition of “Base
Rate” in its entirety, and to substitute the following
therefor:
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“Base
Rate” means for any day a fluctuating rate per annum equal to the higher of (a)
the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for
such day as publicly announced from time to time by the Administrative Agent as
its “prime rate” (the “Prime Rate”) and (c) the Adjusted Eurodollar Rate for a
one month Interest Period on such day (or if such day is not a Business Day, the
immediately preceding business Day) plus 1%, provided that for the avoidance of
doubt, the Adjusted Eurodollar Rate for any day shall be based on the rate
appearing on the Reuters BBA Libor Rates Page 3750 (or on any successor or
substitute page of such page) at approximately 11:00 a.m. (London time) on such
day. The Prime Rate is a rate publicly announced from time to time by
the Administrative Agent as its prime rate in effect at its principal office in
New York City, and is used as a reference point for pricing some loans, which
may be priced at, above, or below such announced rate. Any change in
the Base Rate due to a change in the Prime Rate, the Federal Funds Rate or the
Adjusted Eurodollar Rate shall be effective from and including the effective
date of such change in the Prime Rate, the Federal Funds Rate or the Adjusted
Eurodollar Rate, respectively.
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1.3
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Section 1.1 to
the Credit Agreement is hereby amended to delete the definition of
“Defaulting Lender” in its entirety, and to substitute the following
therefor:
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“Defaulting Lender”
means any Lender, as determined by the Administrative Agent, that has (a) failed
to fund any portion of its Revolving Loans or Participation Interest within
three Business Days of the date required to be funded by it hereunder, (b)
notified the Borrower, the Administrative Agent, the L/C Issuer or any Lender in
writing that it does not intend to comply with any of its funding obligations
under this Agreement
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or
has made a public statement to the effect that it does not intend to comply with
its funding obligations under this Agreement or under other agreements in which
it commits to extend credit, (c) failed, within three Business Days after
request by the Administrative Agent, to confirm that it will comply with the
terms of this Agreement relating to its obligations to fund prospective
Revolving Loans and Participation Interests, (d) otherwise failed to pay over to
the Administrative Agent or any other Lender any other amount required to be
paid by it hereunder within three Business Days of the date when due, unless the
subject of a good faith dispute, or (e) (i) become or is insolvent or has a
parent company that has become or is insolvent or (ii) become the subject of a
bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee
or custodian appointed for it, or has taken any action in furtherance of, or
indicating its consent to, approval of or acquiescence in any such proceeding or
appointment or has a parent company that has become the subject of a bankruptcy
or insolvency proceeding, or has had a receiver, conservator, trustee or
custodian appointed for it, or has taken any action in furtherance of, or
indicating its consent to, approval of or acquiescence in any such proceeding or
appointment.
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1.4
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Section 3 to
the Credit Agreement is hereby amended to insert the following new Section 3.16 at
the end thereof:
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3.16
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Defaulting
Lenders.
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Notwithstanding
any provision of this Agreement to the contrary, if any Lender becomes a
Defaulting Lender, then the following provisions shall apply for so long as such
Lender is a Defaulting Lender:
(a) if
any L/C Obligations exists at the time a Lender is a Defaulting Lender, the
Borrower shall within one Business Day following notice by the Administrative
Agent cash collateralize such Defaulting Lender’s Participation Interest in
accordance with the procedures set forth in Section 2.2(g) for so long as such
L/C Obligations are outstanding; and
(b) the
Issuing Bank shall not be required to issue, amend or increase any Letter of
Credit unless it is satisfied that cash collateral will be provided by the
Borrower in accordance with Section 3.16(a).
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1.5
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Section 8.5 to
the Credit Agreement is hereby amended to delete subclause (p)
thereof in its entirety, and to substitute the following
therefor:
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(p)
Liens upon any property in favor of the administrative agent for the benefit of
the lenders (the “2008 Term Loan Administrative Agent”) under
the 2008 Term Loan Credit Agreement securing Indebtedness thereunder;
provided that (i) the Borrower Obligations shall concurrently be secured equally
and ratably with (or prior to) such Indebtedness under such 2008 Term Loan
Credit Agreement so long as such other Indebtedness shall be secured and (ii)
the Borrower, the 2008 Term Loan Administrative Agent and the Administrative
Agent, for the benefit of the Lenders, shall have entered into
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such
security agreements, collateral trust and sharing agreements, intercreditor
agreements and other documentation deemed necessary by the Administrative Agent
in respect of such Lien on terms and conditions acceptable to the Administrative
Agent(including, without limitation, with respect to the voting of claims and
release or modification of any such Lien on all or any portion of the collateral
thereunder),
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1.6
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Section 8.5 to
the Credit Agreement is hereby amended to delete subclause (q)
thereof in its entirety, and to substitute the following
therefor:
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(q)
Liens upon any property in favor of the purchasers or holders or any trustee,
agent or other representative on behalf of the purchasers or holders (any of the
foregoing being, collectively, the “Note Facilities Secured Party”) under the
Note Facilities Documentation securing Indebtedness thereunder; provided that
(i) the Borrower Obligations shall concurrently be secured equally and ratably
with (or prior to) such Indebtedness under the Note Facilities Documentation so
long as such other Indebtedness shall be secured and (ii) the Borrower, the Note
Facilities Secured Party and the Administrative Agent, for the benefit of the
Lenders, shall have entered into such security agreements, collateral trust and
sharing agreements, intercreditor agreements and other documentation deemed
necessary by the Administrative Agent in respect of such Lien on terms and
conditions acceptable to the Administrative Agent (including, without
limitation, with respect to the voting of claims and release or modification of
any such Lien on all or any portion of the collateral thereunder),
and
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1.7
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Section 8.5 to
the Credit Agreement is hereby amended to add the following as subclause
(r):
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(r) Liens
on Property, in addition to those otherwise permitted by clauses (a)
through (q) above, securing, directly or indirectly, Indebtedness or obligations
of the Borrower and its Subsidiaries arising pursuant to other agreements
entered into in the ordinary course of business which do not exceed, in the
aggregate at any one time outstanding, $25,000,000.
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1.8
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Section 8.7 to
the Credit Agreement is hereby amended to delete the current Section 8.7 in
its entirety and to substitute the following new Section 8.7
therefor:
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The
Borrower will not (nor will it permit any of its Subsidiaries to) enter into any
contractual obligation that limits the ability (a) of any Subsidiary of the
Borrower to make Restricted Payments to the Borrower or to otherwise transfer
property to the Borrower or (b) of the Borrower to create, incur, assume or
suffer to exist Liens on its property in favor of the Administrative Agent, for
the benefit of the Lenders, other than (i) any such contractual obligation
contained in the Credit Documents; (ii) any such contractual obligation
contained in the “Credit Documents” as defined in the 2008 Term Loan Credit
Agreement (as such contractual obligations in such “Credit Documents” exist as
of the date hereof without giving effect to any subsequent amendment or other
modification to such contractual obligations); and (iii) any such contractual
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obligation
contained in the Note Facilities Documentation (which contractual obligation
shall be on terms no less favorable to the Administrative Agent and the Lenders
as such contractual obligations set forth in the draft Note Purchase Agreement
(draft stamp: “Draft dated September 19, 2008”) provided to the
Administrative Agent and the Lenders on October29, 2008, without giving effect
to any amendment or other modification to such contractual
obligations).
2.
Conditions of
Effectiveness. The effectiveness of this Amendment is subject
to the conditions precedent that the Administrative Agent shall have received
the following:
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(A)
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duly
executed originals of this Amendment from the Borrower, the requisite
number of Lenders under Section 11.6 of
the Credit Agreement and the Administrative
Agent;
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(B)
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the
Amendment Fee (as defined below) payable for the account of each Lender
executing this Amendment; and
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(C)
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such
other documents, instruments and agreements as the Administrative Agent
may reasonably request.
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3.
Amendment
Fee. Each Lender that delivers a duly executed signature page
to this Amendment to the Administrative Agent’s counsel, Sidley Austin LLP,
Attention: Xxxxx Xxxxx, by facsimile or e-mail PDF copy
(fax: 000-000-0000; e-mail: xxxxx.xxxxx@xxxxxx.xxx) by
5:00 p.m. (Chicago time) on October 31, 2008, shall be entitled to an amendment
fee (the “Amendment
Fee”) equal to 0.03% (3 basis points) multiplied by such consenting
Lender’s Commitment.
4.
Representations and
Warranties of the Borrower.
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(A) |
The
Borrower hereby represents and warrants that (i) this Amendment and the
Credit Agreement, as previously executed and as amended hereby, constitute
legal, valid and binding obligations of the Borrower and are enforceable
against the Borrower in accordance with their terms (except as
enforceability may be limited by bankruptcy, insolvency, or similar laws
affecting the enforcement of creditors’ rights generally) and (ii) no
Default or Event of Default has occurred and is
continuing.
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(B) |
Upon
the effectiveness of this Amendment and after giving effect hereto, the
Borrower hereby reaffirms all covenants, representations and warranties
made in the Credit Agreement as amended hereby, and agrees that all such
covenants, representations and warranties shall be true and correct as of
the effective date of this Amendment (unless such representation and
warranty is made as of a specific date, in which case such representation
and warranty shall be true and correct as of such
date).
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5.
References to the Credit
Agreement.
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(A) |
Upon
the effectiveness of Section 1
hereof, on and after the date hereof, each reference in the Credit
Agreement (including any reference therein to “this Credit Agreement,”
“hereunder,” “hereof,” “herein” or words of like import
referring
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thereto) or in any other Credit
Document shall mean and be a reference to the Credit Agreement as amended
hereby.
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(B) |
Except
as specifically amended above, the Credit Agreement and all other
documents, instruments and agreements executed and/or delivered in
connection therewith, shall remain in full force and effect, and are
hereby ratified and confirmed.
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(C) |
The
execution, delivery and effectiveness of this Amendment shall not, except
as expressly provided herein, operate as a waiver of any right, power or
remedy of the Administrative Agent or the Lenders, nor constitute a waiver
of any provision of the Credit Agreement or any other documents,
instruments and agreements executed and/or delivered in connection
therewith.
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6.
GOVERNING
LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE
OF NEW
YORK.
7. Headings. Section
headings in this Amendment are included herein for convenience of reference only
and shall not constitute a part of this Amendment for any other
purpose.
8.
Counterparts. This
Amendment may be executed by one or more of the parties to this Amendment on any
number of separate counterparts and all of said counterparts taken together
shall be deemed to constitute one and the same instrument.
[REMAINDER OF PAGE
INTENTIONALLY BLANK]
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IN
WITNESS WHEREOF, this Amendment has been duly executed as of the day and year
first above written.
BORROWER:
TEXAS-NEW
MEXICO POWER COMPANY
a Texas
corporation
By: /s/ Xxxxx X.
Xxxx
Name: Xxxxx X.
Xxxx
Title: VP and
Treasurer
Signature
Page to Amendment No. 1
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LENDERS:
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JPMORGAN CHASE BANK,
N.A.,
individually
in its capacity as a Lender and in
its
capacity as Administrative Agent and L/C Issuer
By: /s/ Xxxxx X.
Xxxxx
Name: Xxxxx X.
Xxxxx
Title: Vice
President
UNION BANK OF CALIFORNIA,
N.A.,
individually
in its capacity as a Lender and in its capacity as Syndication
Agent
By: /s/ Xxxxxx X.
Xxxx
Name: Xxxxxx X.
Xxxx
Title: Vice
President
Signature
Page to Amendment No. 1
SUNTRUST BANK,
individually
in its capacity as a Lender
By: /s/ Xxxxxx
Xxxxxxx
Name: Xxxxxx
Xxxxxxx
Title: Director
Signature
Page to Amendment No. 1
XXXXX FARGO BANK,
N.A.,
individually
in its capacity as a Lender
By: /s/ Xxxxx X.
Xxxx
Name: Xxxxx X.
Xxxx
Title: Loan Team
Manager
Signature
Page to Amendment No. 1
KEYBANK NATIONAL
ASSOCIATION,
individually
in its capacity as a Lender
By: /s/ Xxxxx X.
Xxxxx
Name: Xxxxx X.
Xxxxx
Title: Senior Vice
President
Signature
Page to Amendment No. 1
COMPASS BANK,
individually
in its capacity as a Lender
By: /s/ Xxxxxxx X.
Xxxxxxx
Name: Xxxxxxx X.
Xxxxxxx
Title: Vice
President
Signature
Page to Amendment No. 1
SOUTHWEST SECURITIES,
FSB,
individually
in its capacity as a Lender
By: /s/ Xxxxxx
Xxxxxx
Name: Xxxxxx
Xxxxxx
Title: President -
NABR
Signature
Page to Amendment No. 1
UNITED WESTERN
BANK,
individually
in its capacity as a Lender
By: /s/ Xxxxxx
Xxxxx
Name: Xxxxxx
Xxxxx
Title: Regional
President
Signature
Page to Amendment No. 1
