AMENDMENT NO. 1 to TERM LOAN CREDIT AGREEMENT
EXECUTION
COPY
Exhibit
10.1
AMENDMENT
NO. 1
to
THIS
AMENDMENT NO. 1 TO TERM LOAN CREDIT AGREEMENT (the “Amendment”) is made
as of May 15, 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 Term Loan Credit Agreement dated as of March 7, 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 May 15, 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 delete the definition of “Applicable
Percentage” in its entirety and to substitute the following
therefor:
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“Applicable
Percentage” means, for Eurodollar Loans, 0.75% per annum.
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1.2.
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Section 1.1 to
the Credit Agreement is amended to insert the following definition in
alphabetical order:
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“Revolving Loan
Agreement” means that certain Credit Agreement, dated as of May 15, 2008,
by and among the Borrower, the lenders and financial institutions parties
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1.3.
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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 “Revolving Loan Administrative Agent”) under the Revolving Loan
Agreement (as it may be amended, supplemented or otherwise modified from time to
time) securing Indebtedness thereunder; provided that (i) the Borrower
Obligations shall concurrently be secured equally and ratably with (or prior to)
such Indebtedness under the Revolving Loan Agreement so long as such other
Indebtedness shall be secured and (ii) the Borrower, the Revolving Loan
Administrative Agent 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 or all or any portion of the collateral thereunder),
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1.4.
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Section 8.7 to
the Credit Agreement is hereby amended to delete the second parenthetical
therein and to substitute the following therefor: “(other than
(i) the Credit Documents and (ii) the “Credit Documents” as defined in the
Revolving Loan Agreement)”
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1.5.
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Schedule 11.1
to the Credit Agreement is hereby amended to delete the notice information
for the Administrative Agent set forth therein and to substitute the
following therefor:
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ADMINISTRATIVE
AGENT:
Administrative
Agent’s Office
(for
payments and Requests for Credit Extensions):
JPMorgan
Chase Bank, N.A.
Floor
7, Mail Code IL1-0010
00
X. Xxxxxxxx Xx.
Xxxxxxx,
XX 00000
Attention: Credit
Services
Telephone: 000.000.0000
Telecopier: 312.385.7096
Electronic
Mail: xxxxxxx.x.xxxxxxx@xxxxxxxx.xxx
Account
No. 9008109962C2236
Ref: TNMP
Account
Name: Loan Processing DP
ABA#: 000000000
2
Other
Notices as Administrative Agent:
JPMorgan
Chase Bank, N.A.
00
X. Xxxxxxxx Xx.
Xxxxxxx,
XX 00000
Attention: Xxxxx
X. Xxxxx
Floor
9, Mail Code IL-0090
Telephone: 000.000.0000
Telecopier: 312.732.1762
Electronic
Mail: xxxxx.x.xxxxx@xxxxxxxx.xxx
Attention: Xxxx
Xxxxxxx
Floor
9, Mail Code IL1-0874
Telephone: 000.000.0000
Telecopier: 312.325.3238
Electronic
Mail: xxxx.xxxxxxx@xxxxx.xxx
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;
and
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(B)
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such
other documents, instruments and agreements as the Administrative Agent
may reasonably request.
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3. Representations and
Warranties of the Borrower.
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(A)
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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)
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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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4. References to the Credit
Agreement.
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(A)
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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 thereto)
or in any other Credit Document shall mean and be a reference to the
Credit Agreement as amended hereby.
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3
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(B)
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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)
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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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5. GOVERNING
LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
6. 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.
7. 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.
TEXAS-NEW
MEXICO POWER COMPANY, as the Borrower
By: /s/ Xxxxx
X.
Xxxx
Name: Xxxxx
X. Xxxx
Title: Vice
President and Treasurer
JPMORGAN
CHASE BANK, N.A., as Administrative Agent and as a Lender
By:
/s/ Xxxxx
X. Xxxxx
Name: Xxxxx
X. Xxxxx
Title: Vice
President
UNION
BANK OF CALIFORNIA, N.A., as a Lender
By:
/s/ Xxxxx X.
Xxxxx
Name: Xxxxx
X. Xxxxx
Title: Senior
Vice President
Signature
Page to Amendment No. 1
