FIRST AMENDMENT TO SETTLEMENT AGREEMENT
FIRST AMENDMENT, dated as of April 24, 1992 (the "Amendment"), to the
Settlement Agreement dated as of November 2, 1989 (the "Settlement Agreement")
among Public Service Company of New Mexico, a New Mexico corporation ("PNM"),
the lender parties thereto (the "Lenders") and Chemical Bank as agent (the
"Agent") and collateral agent (the "Collateral Agent").
Background
A. PNM, the Lenders, the Agent and the Collateral Agent are parties to
the Settlement Agreement. All terms defined in or by preference in the
Settlement Agreement and not otherwise defined herein are used herein with the
meanings as so defined.
B. PNM, the Lenders, the Agent and the Collateral Agent have agreed to
amend the Settlement Agreement in the manner hereinafter set forth.
Terms and Conditions
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in reliance upon the mutual
undertakings of the parties hereto, PNM, the Agent, the Collateral Agent and the
Lenders hereby agree as follows:
1. Occurrence of Certain Events. Prior to or simultaneously with the
execution and delivery of this Amendment by all parties hereto, (a) ▇▇▇▇▇▇▇
Resources, Inc. ("▇▇▇▇▇▇▇"), the Agent, the Collateral Agent and the Lenders
shall have executed and delivered an amendment (in the form of Exhibit A
attached hereto) to that certain Restructuring Agreement dated as of February
14, 1990 among ▇▇▇▇▇▇▇, the Agent, the Collateral Agent and the Lenders (the
"First Restructuring Agreement Amendment") and PNM shall have consented thereto
and (b) PNM shall have delivered to the Agent, the Collateral Agent and the
Lenders a certificate of the Assistant Secretary of PNM, dated as of the date
hereof, substantially in the form of Exhibit B attached hereto and certifying
that (i) attached thereto is a true, correct and complete copy of resolutions
duly adopted by the full Board of Directors of PNM, authorizing the execution,
delivery and performance of this Amendment by PNM, (ii) such resolutions have
not been modified, rescinded or amended and are in full force and effect and
(iii) set forth in such certificate is the name, title and true signature of an
officer of PNM authorized to execute this Amendment and consent to the First
Restructuring Agreement Amendment.
2. Amendments to Settlement Agreement. Effective as of the date (the
"Approved Date") upon which an order from the New Mexico Public Service
Commission, in its Case No. 2429, approving the transactions contemplated by
this Section 2 becomes final and non-appealable, Section 3.4(a) of the
Settlement Agreement is hereby amended and restated in its entirety as follows
(which amendment and restatement shall be effective as of the Approval Date, it
being understood and agreed that the original terms of such Section 3.4(a)
(without such amendment and restatement) shall apply to all actions, events and
circumstances (including without limitation the remittal of sums by the
Collateral Agent to PNM or the Lenders) subject to such original terms and
occurring prior to the Approval Date):
"(a) Recapture. Subject to Sections 3.2, 3.3 and 3.4 (b) hereof, if at
any time the Agent, the Collateral Agent or the Lenders shall have received and
retained $115,540,000 after May 1, 1989 on the Debt from any source, including
without limitation payments from PNM under Section 3.1 hereof, the Collateral
Agent shall remit promptly to PNM as a refund of a portion of the damages paid
by PNM amounts equal to any sums subsequently received by the Collateral Agent
in respect of the Debt or of any interest in the residual value of ▇▇▇▇▇▇▇
allocated to the Lenders in connection with the ▇▇▇▇▇▇▇ Restructuring Agreement
(as hereinafter defined), until PNM has been fully reimbursed without interest,
for any payments it has made to the Collateral Agent under Sections 3.1(b), (c),
(d) or (e) or Section 3.3 hereof; provided, however, that no remittances shall
be made to PNM under this Section 3.4(a) until after the Collateral Agent has
received and distributed to the Lenders in accordance with the Consent and
Override Agreement (i) the payments contemplated to be made by ▇▇▇▇▇▇▇ pursuant
to Section 2 of the First Restructuring Agreement Amendment (as hereinafter
defined), (ii) other sums received by the Collateral Agent (up to $100,000 in
the aggregate) from any source in respect of the Debt and (iii) if the Bellamah
Release (as hereinafter defined) is effected pursuant to Section 4 of the First
Settlement Agreement Amendment (as hereinafter defined), the sum of $100, 000
(paid by ▇▇▇▇▇▇▇ and/or the Bellamah Trustee in Bankruptcy (the "Bellamah
Trustee")) plus the payments contemplated to be made by ▇▇▇▇▇▇▇ pursuant to
clause (e) of the second proviso to such Section 4, which amounts shall be in
addition to the sum referred to in the preceding clause (ii), as consideration
for the Lenders' consent to the full and complete release (the "Bellamah
Release") of (w) the ▇▇▇▇▇▇▇ Interests (as hereinafter defined), (x) the claims
of the Lenders, the Collateral Agent and the Agent against Bellamah arising with
respect to the ▇▇▇▇▇▇▇ Interests, (y) the Bellamah Obligations (as hereinafter
defined) and (z) the claims of the Collateral Agent, the Agent and the Lenders
against ▇▇▇▇▇▇ Ridge Metropolitan District No. 1 ("▇▇▇▇▇▇ Ridge"), which
Bellamah Release (aa) shall include but not be limited to the release of all
liens on and security interests in Bellamah and property of Bellamah conveyed by
Bellamah to ▇▇▇▇▇▇▇ and collaterally assigned by ▇▇▇▇▇▇▇ to the Collateral Agent
and (bb) notwithstanding the foregoing, shall not effect a release of the
obligations, if any, of the Bellamah Trustee of the kind (and in the maximum
amount) referred to in paragraph 6 of Exhibit C attached hereto; provided,
further, that if the Bellamah Release has not theretofore been so effected, the
Collateral Agent shall be required so to remit to PNM only fifty percent (50%)
of the sums so received by the Collateral Agent from any Bellamah Distribution
or Bellamah Sale (each as hereinafter defined), it being understood and agreed
that sums so received from Bellamah Distributions and Bellamah Sales and
distributed to the Lenders in accordance with the next succeeding sentence shall
not reduce the sums which the Collateral Agent is to distribute to the Lenders
under clause (ii) of the immediately preceding proviso. Any of the foregoing
sums received by the Collateral Agent in respect of the Debt and on account of
which the Collateral Agent (i) is required to make payment to PNM pursuant to
the immediately preceding sentence shall be paid by the Collateral Agent to PNM
and not distributed to the Lenders (ii) is not required to make such payment to
PNM shall be distributed by the Collateral Agent to the Lenders in accordance
with the Consent and Override Agreement. As used herein, (i) "First
Restructuring Agreement Amendment" shall have the meaning specified in that
certain First Amendment to Settlement Agreement dated as of April 24, 1992
executed by the parties hereto (the "First Settlement Agreement Amendment"),
(ii) "▇▇▇▇▇▇▇ Interests" shall mean ▇▇▇▇▇▇▇' claims against and direct and
indirect equity interests in Bellamah, (iii) "Bellamah Obligations" shall mean
the obligations of Bellamah under the Guarantee Agreement (as defined in the
Credit Agreement), (iv) "Bellamah Distribution" shall mean any distribution or
other realization of any nature in respect of the ▇▇▇▇▇▇▇ Interests or Bellamah
Obligations and (v) "Bellamah Sale" shall mean any sale, assignment or other
disposition of assets of Bellamah or of the ▇▇▇▇▇▇▇ Interests or Bellamah
Obligations."
3. No Other Amendments. Except as expressly provided in Section 2
hereof, the Settlement Agreement shall continue in full force and effect in
accordance with the provisions thereof, and nothing in this Amendment shall,
except as expressly provided in such Section 2, limit, impair, constitute or be
deemed to constitute a waiver of, or otherwise affect the rights and remedies of
PNM, the Agent, the Collateral Agent and the Lenders under the Settlement
Agreement.
4. Bellamah Release. Notwithstanding anything in any Loan Document or
Existing Agreement to the contrary, the Lenders hereby consent to the Bellamah
Release and direct the Collateral Agent and the Agent to execute and deliver (on
behalf of the Collateral Agent, the Agent and the Lenders) all documents
reasonably requested by PNM or ▇▇▇▇▇▇▇ to effectuate the Bellamah Release;
provided, however, that neither the Agent nor the Collateral Agent shall execute
and deliver any release (or covenant not to ▇▇▇) to effectuate the Bellamah
Release; unless the form of such release (or covenant) shall have been approved
in writing by the Lenders prior to such execution and delivery; provided,
further, that prior to or substantially simultaneously with such execution and
delivery, (a) the Lenders, the Collateral Agent and the Agent shall have
received written releases (or, in the case of ▇▇▇▇▇▇ Tax Free High Yield Fund,
MFS Managed High Yield Municipal Bond Trust, ▇▇▇▇▇ ▇▇▇▇▇ High Yield Municipal
Trust and their respective assignees (if any) (collectively, the "▇▇▇▇▇▇ Ridge
Institutional Investors"), written covenants not to ▇▇▇), in form and substance
reasonably satisfactory to the Collateral Agent, from each of the Bellamah
Trustee, ▇▇▇▇▇▇ Ridge, and the ▇▇▇▇▇▇ Ridge Institutional Investors, (b) the
amendments to Section 3.4(a) of the Settlement Agreement as set forth in Section
2 hereof shall have become effective, (c) the Collateral Agent shall have
received the $100,000 (in immediately available funds) referred to in clause
(iii) of the first proviso to Section 3.4(a) of the Settlement Agreement (as so
amended), (d) the Collateral Agent shall have received the amounts referred to
in Section 2 of the First Restructuring Agreement Amendment, (e) ▇▇▇▇▇▇▇ shall
have paid to the Collateral Agent in immediately available funds an amount (not
in excess of $50,000) equal to the legal fees and expenses (i) of the Collateral
Agent in connection with the negotiation, execution and delivery of this
Amendment, the First Restructuring Agreement Amendment, the Bellamah Release and
related documentation and (ii) not reimbursed by ▇▇▇▇▇▇▇ pursuant to clause (b)
of Section 2 of the First Restructuring Agreement Amendment and (f) additional
settlement arrangements with the Bellamah Trustee and ▇▇▇▇▇▇ Ridge, the
principal terms of which substantially conform to those described in Exhibit C-1
attached hereto, shall have been consummated.
5. Representations and Warranties.
(a) PNM Representations and Warranties. PNM hereby represents and warrants
to the Agent, the Collateral Agent and the Lenders that (a) PNM is authorized to
execute, deliver and perform this Amendment, (b) PNM's execution, delivery and
performance of this Amendment does not violate any law, statute, ordinance,
rule, regulation, charter, bylaw or agreement to which PNM is subject or by
which PNM is bound, (c) the persons executing and delivering this Amendment and
each instrument or document delivered pursuant hereto on PNM's behalf are
authorized to do so and (d) this Amendment constitutes the legal, valid and
binding obligation of PNM, enforceable against PNM in accordance with its terms.
(b) Lender Representations and Warranties.
Each Lender hereby separately represents and warrants to PNM that (a) such
Lender is authorized to execute, deliver and perform this Amendment, (b) such
Lender's execution, delivery and performance of this Amendment does not violate
any law, statute, ordinance, rule, regulation, charter, bylaw or agreement to
which such Lender is subject or by which such Lender is bound, (c) the persons
executing and delivering this Amendment and each instrument or document
delivered pursuant hereto on such Lender's behalf are authorized to do so and
(d) this Amendment constitutes the legal, valid and binding obligation of such
Lender, enforceable against such Lender in accordance with its terms.
(c) Agent and Collateral Agent Representations and Warranties. Each of the
Agent and the Collateral Agent hereby separately represents and warrants to PNM
that (a) it is authorized to execute, deliver and perform this Amendment, (b)
the execution, delivery and performance of this Amendment does not violate any
law, statute, ordinance, rule, regulation, charter, bylaw or agreement to which
it is subject or by which it is bound, (c) the persons executing this Amendment
and each instrument or document delivered pursuant hereto on its behalf are
authorized to do so and (d) this Amendment constitutes the legal, valid and
binding obligation of the Agent or the Collateral Agent, as the case may be,
enforceable against the Agent or the Collateral Agent, as the case may be, in
accordance with its terms.
6. PNM Waiver. PNM hereby waives all rights and remedies referred to in the
second paragraph of that certain letter dated December 31, 1990 from PNM to the
Collateral Agent (a copy of which letter is attached hereto as Exhibit D).
7. Notices. Notices and other communications in connection herewith shall
be in writing and shall be delivered (which delivery may be affected by
telecopy, facsimile transmission, telex, graphic scanning or other telegraphic
communications equipment) mailed or addressed.
(a) if to PNM, at ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
(telecopy no. (▇▇▇) ▇▇▇-▇▇▇▇), Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.,
Senior Vice President and General Counsel, with copies to ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇, P.A.., Public Service Building, P.O. Drawer AA, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (telecopy no. (505)
764-9643), Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.; and
(b) if to the Agent, the Collateral Agent or any Lender, at its address
set forth on Schedule 1 hereto, with a copy to Wachtell, Lipton, ▇▇▇▇▇
& ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (telecopy no. (212)
371-1658), Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
8. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK FOR CONTRACTS MADE AND WHOLLY
PERFORMED WITHIN THAT STATE.
9. Counterparts and Signatures. This Amendment may be executed in two or
more counterparts, each of which shall constitute an original but all of which
when taken together shall constitute but one contract. This Amendment shall be
deemed executed and delivered by any party hereto if a copy or facsimile of a
signature page hereof executed by such party is delivered to the Collateral
Agent in accordance with Section 7 hereof.
10. Headings. Section headings used herein are for convenience of reference
only and are not to affect the construction of, or to be taken into
consideration in interpreting, this Amendment.
11. No Third Party Beneficiaries; No Admissions. The agreements set forth
herein with respect to the Bellamah Release are solely for the benefit of the
parties hereto, and no third party (including without limitation the Bellamah
Trustee, ▇▇▇▇▇▇ Ridge and the ▇▇▇▇▇▇ Ridge Institutional Investors) shall (i) be
entitled to rely upon the terms and provisions hereof for any purpose whatsoever
or (ii) have any claim whatsoever against any party hereto arising out of any
failure or alleged failure of such party to perform its obligations hereunder.
Nothing set forth herein or in any exhibit hereto shall constitute an admission
of fault or inability on the part of any party hereto with respect to any
matters concerning Bellamah or ▇▇▇▇▇▇ Ridge.
First Amendment to Settlement Agreement
Signature Page
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day and year first above written.
PUBLIC SERVICE COMPANY
OF NEW MEXICO
By:
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Title:
CHEMICAL BANK,
individually and as Agent
and Collateral Agent
By:
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Title:
THE BANK OF NEW YORK (formerly
known as Irving Trust Company
By:
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Title:
BARCLAYS BANK PLC
By:
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Title:
UNION BANK
By:
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Title:
FIRST NATIONAL BANK IN
ALBUQUERQUE
By:
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Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
COMMERCIAL PAPER
INCORPORATED
By:
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Title:
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK
By:
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Title:
UNITED NEW MEXICO BANK (formerly
FIRST INTERSTATE BANK OF
ALBUQUERQUE)
By:
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Title:
FIRST NATIONAL BANK OF BELEN
By:
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Title:
FIRST AMENDMENT TO SETTLEMENT AGREEMENT
EXHIBIT A
FIRST AMENDMENT TO RESTRUCTURING AGREEMENT
FIRST AMENDMENT, dated as of April 24, 1992 (the "Amendment"), to the
Restructuring Agreement dated as of February 14, 1990 (the "Restructuring
Agreement") among ▇▇▇▇▇▇▇ Resources, Inc., a New Mexico corporation ("▇▇▇▇▇▇▇"),
the lender parties thereto (the "Lenders") and Chemical Bank as agent (the
"Agent") and collateral agent (the "Collateral Agent").
Background
▇. ▇▇▇▇▇▇▇, the Lenders, the Agent and the Collateral Agent are parties
to the Restructuring Agreement. All terms defined in or by reference in the
Restructuring Agreement and not otherwise defined herein are used herein with
the meanings as so defined.
▇. ▇▇▇▇▇▇▇, the Lenders, the Agent and the Collateral Agent have agreed
to amend the Restructuring Agreement in the manner hereinafter set forth.
Terms and Conditions
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in reliance upon the mutual
undertakings of the parties hereto, ▇▇▇▇▇▇▇, the Agent, the Collateral Agent and
the Lenders hereby agree as follows:
1. Occurrence of Effective Time. Prior to or simultaneously with the
execution and delivery of this Amendment by all parties hereto (the "Effective
Time"), Public Service Company of New Mexico ("PNM"), the Agent, the Collateral
Agent and the Lenders shall have executed and delivered an amendment (in the
form of Exhibit A hereto) to that certain Settlement Agreement dated as of
November 2, 1989 among PNM, the Agent, the Collateral Agent and the Lenders (the
"First Settlement Agreement Amendment").
2. Certain Payments by ▇▇▇▇▇▇▇. Upon the date on which an order from
the New Mexico Public Service Commission, in its Case No. 2429, approving the
transactions contemplated by Section 2 of the First Settlement Agreement
Amendment becomes final and non-appealable, ▇▇▇▇▇▇▇ shall pay (a) the sum of
$100,000 in immediately available funds to the Collateral Agent for distribution
to the Lenders in accordance with the Consent and Override Agreement and (b) to
the Collateral Agent in immediately available funds an amount (not in excess of
$50,000) equal to the legal fees and expenses of the Collateral Agent in
connection with the negotiation, execution and delivery of this Amendment, the
First Settlement Agreement Amendment, the Bellamah Release (as defined in the
First Settlement Agreement Amendment) and related documentation. Such amounts
shall constitute partial consideration for the Bellamah Release.
3. Amendments to Restructuring Agreement. Effective as of the Effective
Time, the Restructuring Agreement is hereby amended as follows:
(a) Section 2.1(a) of the Restructuring Agreement is amended by
deleting the reference to "March 31, 1992" and replacing such reference with
"September 30, 1993."
(b) Section 2.1(a) (iii) (w) of the Restructuring Agreement is
amended by adding after the word "hereof": "or to repay (pursuant to Section 3.6
hereof) amounts owed to PNM under the PNM Loan Agreement (as hereinafter
defined)."
(c) Section 2.2 of the Restructuring Agreement is amended by
deleting the reference to "March 31, 1992" and replacing such reference with
"September 30, 1993."
(d) Section 2.3 of the Restructuring Agreement is amended by adding
the following at the end thereof: "Notwithstanding the foregoing, the Borrower
shall be entitled during the calendar year 1992 to use its assets (including
without limitation the proceeds of any loans made by PNM to the Borrower
pursuant to the PNM Loan Agreement) to fund Liquidation Expenses in an aggregate
amount not in excess of $991,000. For purposes of this Section 2.3, the
repayment of the principal amount of any borrowings by the Borrower under the
PNM Loan Agreement shall not be counted as a use of assets to fund Liquidation
Expenses.
(e) Section 3.1 is amended by adding the following at the end
thereof: "Notwithstanding the foregoing, the Borrower shall be entitled during
the calendar year 1992 to use the proceeds of any sales contemplated by this
Section 3.1 for any purpose permitted by Section 2.1(a) (iii)."
(f) The following Section 3.6 is added at the end of Article III of
the Restructuring Agreement:
"3.6 PNM Loan Agreement. The Lenders hereby waive compliance
(a) in the case of the Banks and the Existing Creditors, with all
provisions of the Loan Documents and (b) in the case of each Existing
Creditor, with all provisions of the Existing Agreements for which such
Existing Creditor is a party, in each case to the extent and only to
the extent necessary to permit ▇▇▇▇▇▇▇ to (a) execute, deliver and
perform a Loan Agreement (the "PNM Loan Agreement") in the form of
Exhibit B (with such changes to the date of such Loan Agreement as may
be appropriate) to that certain First Amendment to Restructuring
Agreement, dated as of April 24, 1992, executed by the parties hereto,
(b) make borrrowings and payments to the extent contemplated under the
PNM Loan Agreement and (c) convey to PNM (pursuant to one or more
collateral agreements in form and substance reasonably satisfactory to
the Collateral Agent) a lien on and security in the assets of ▇▇▇▇▇▇▇
identified in Schedule 2 of the PNM Loan Agreement, in order to secure
the obligations of ▇▇▇▇▇▇▇ to PNM thereunder. ▇▇▇▇▇▇▇ agrees to deliver
to the Collateral Agent copies of reports required under Section 3(a)
of the PNM Loan Agreement, as and when such reports are delivered to
PNM."
4. Bellamah Release. Notwithstanding anything in any Loan Document or
Existing Agreement to the contrary, the Lenders hereby consent to the Bellamah
Release and direct the Collateral Agent and the Agent to execute and deliver (on
behalf of the Collateral Agent, the Agent and the Lenders) all documents
reasonably requested by PNM or ▇▇▇▇▇▇▇ to effectuate the Bellamah Release;
provided, however, that neither the Agent nor the Collateral Agent shall execute
and deliver any release (or covenant not to ▇▇▇) to effectuate the Bellamah
Release, unless the form of such release (or covenant) shall have been approved
in writing by the Lenders prior to such execution and delivery; provided,
further, that prior to or substantially simultaneously with such execution and
delivery, (a) the Lenders, the Collateral Agent and the Agent shall have
received written releases (or, in the case of ▇▇▇▇▇▇ Tax Free High Yield Fund,
MFS Managed High Yield Municipal Bond Trust, ▇▇▇▇▇ ▇▇▇▇▇ High Yield Municipal
Trust and their respective assignees (if any) (collectively, the "▇▇▇▇▇▇ Ridge
Institutional Investors"), written covenants not to ▇▇▇), in form and substance
reasonably satisfactory to the Collateral Agent, from each of the Bellamah
Trustee in Bankruptcy (the "Bellamah Trustee"), the ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇. ▇ ("▇▇▇▇▇▇ Ridge") and the ▇▇▇▇▇▇ Ridge Institutional Investors,
(b) the amendments to Section 3.4(a) of the Settlement Agreement as set forth in
Section 2 of the First Settlement Agreement Amendment shall have become
effective, (c) the Collateral Agent shall have received the $100,000 (in
immediately available funds) referred to in clause (iii) of the first proviso to
Section 3.4(a) of the Settlement Agreement (as so amended), (d) the Collateral
Agent shall have received the amounts referred to in Section 2 of this
Amendment, (e) ▇▇▇▇▇▇▇ shall have paid to the Collateral Agent in immediately
available funds an amount (not in excess of $50,000) equal to the legal fees and
expenses (i) of the Collateral Agent in connection with the negotiation,
execution and delivery of this Amendment, the First Settlement Agreement
Amendment, the Bellamah Release and related documentation and (ii) not
reimbursed by ▇▇▇▇▇▇▇ pursuant to clause (b) of Section 2 of this Amendment and
(f) additional settlement arrangements with the Bellamah Trustee and ▇▇▇▇▇▇
Ridge, the principal terms of which substantially conform to those described in
Exhibit C-1 attached hereto, shall have been consummated.
5. ▇▇▇▇▇▇▇' Waivers. ▇▇▇▇▇▇▇ hereby (i) represents and warrants to the
Agent, the Collateral Agent and the Lenders that ▇▇▇▇▇▇▇ has succeeded to all of
the rights of North Sandia Partners, Inc. ("NSP") under that certain Incentive
Fee Agreement dated as of February 14, 1990 (the "Incentive Fee Agreement")
among NSP, the Lenders, the Agent and the Collateral Agent, (ii) waives all
rights to Target Level Excess Payments (as defined in the Incentive Fee
Agreement) with respect to amounts contemplated to be paid to the Collateral
Agent pursuant to Sections 2 and 4 of this Amendment and clause (ii) of the
first proviso to Section 3(a) of the Settlement Agreement (as amended by the
First Settlement Agreement Amendment) and (iii) waives all rights and remedies
referred to in the second paragraph of that certain letter dated December 31,
1990 from ▇▇▇▇▇▇▇ to the Collateral Agent (a copy of which is attached hereto as
Exhibit D).
6. Notices. Notices and other communications in connection herewith
shall be in writing and shall be delivered (which delivery may be effected by
telecopy, facsimile transmission, telex, graphic scanning or other telegraphic
communications equipment) mailed to addressed,
(a) if to ▇▇▇▇▇▇▇, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (telecopy, no. (▇▇▇) ▇▇▇-▇▇▇▇),
Attention: M.A. ▇▇▇▇▇▇▇, with copies to ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A., Public
Service Building, P.O. Drawer AA, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (telecopy no. (▇▇▇) ▇▇▇-▇▇▇▇), Attention: ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, Esq.; and
(b) if to the Agent, the Collateral Agent or any Lender, at its
address set forth on Schedule 1 hereto, with a copy to Wachtell,
Lipton, ▇▇▇▇▇ & ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(telecopy no. (▇▇▇) ▇▇▇-▇▇▇▇), Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
7. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK FOR CONTRACTS MADE AND WHOLLY
PERFORMED WITHIN THAT STATE.
8. Counterparts and Signatures. This Amendment may be executed in two
or more counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one contract. This Amendment
shall be deemed executed and delivered by any party hereto if a copy or
facsimile of a signature page hereof executed by such party is delivered to the
Collateral Agent in accordance with Section 6 hereof.
9. Headings. Section headings used herein are for convenience of
reference only and are not to affect the construction of, or to be taken into
consideration in interpreting, this Amendment.
10. No Third Party Beneficiaries; No Admissions. The agreements set
forth herein with respect to the Bellamah Release are solely for the benefit of
the parties hereto, and no third party (including without limitation the
Bellamah Trustee, ▇▇▇▇▇▇ Ridge and the ▇▇▇▇▇▇ Ridge Institutional Investors)
shall (i) be entitled to rely upon the terms and provisions hereof for any
purpose whatsoever or (ii) have any claim whatsoever against any party hereto
arising out of any failure or alleged failure of such party to perform its
obligations hereunder. Nothing set forth herein or in any exhibit hereto shall
constitute any admission of fault or liability on the part of any party hereto
with respect to any matters concerning Bellamah or ▇▇▇▇▇▇ Ridge.
First Amendment to Restructuring Agreement
Signature Page
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day and year first above written.
▇▇▇▇▇▇▇ RESOURCES, INC.
By:
----------------------------------
Title:
CHEMICAL BANK,
individually and as Agent
and Collateral Agent
By:
----------------------------------
Title:
THE BANK OF NEW YORK (formerly
known as Irving Trust Company)
By:
----------------------------------
Title:
BARCLAYS BANK PLC
By:
----------------------------------
Title:
UNION BANK
By:
----------------------------------
Title:
FIRST NATIONAL BANK IN
ALBUQUERQUE
By:
----------------------------------
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
COMMERCIAL PAPER
INCORPORATED
By:
----------------------------------
Title:
▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK
By:
----------------------------------
Title:
UNITED NEW MEXICO BANK (formerly
FIRST INTERSTATE BANK OF
ALBUQUERQUE)
By:
----------------------------------
Title:
FIRST NATIONAL BANK OF BELEN
By:
----------------------------------
Title:
Consent
The undersigned hereby consents to the execution and delivery of the foregoing
First Amendment to Restructuring Agreement.
PUBLIC SERVICE COMPANY OF
NEW MEXICO
By:
-----------------------------------------------
Title
FIRST AMENDMENT TO SETTLEMENT AGREEMENT
EXHIBIT B
ASSISTANT SECRETARY'S CERTIFICATE
Pursuant to Section 1 of that certain First Amendment to Settlement
Agreement dated as of April 24, 1992 (the "Amendment") to the Settlement
Agreement dated as of November 2, 1989 among Public Service Company of New
Mexico ("PNM"), the lender parties thereto and Chemical Bank as agent and
collateral agent, the undersigned, in her capacity as Assistant Secretary of
PNM, hereby certifies as follows:
(i) Attached hereto as Exhibit A is a true, correct and complete copy
of resolutions (the "Resolutions") duly adopted by the full Board of Directors
of PNM, authorizing the execution, delivery and performance of this Amendment by
PNM.
(ii) the Resolutions have not been modified, rescinded or amended and
are in full force and effect and
(iii) the following named individual is a duly elected, qualified and
acting officer of PNM holding the office set forth below as of the date hereof,
and the signature set opposite such individual's name and title is a true and
authentic signature.
Name Title Signature
---- ----- ---------
▇.▇. ▇▇▇▇▇▇▇, ▇▇. Senior Vice President
------------------------------
------------------------------
Assistant Secretary
Dated as of April 24, 1992
PUBLIC SERVICE COMPANY OF NEW MEXICO
CERTIFICATE OF ASSISTANT SECRETARY
I, ▇.▇. ▇▇▇▇▇▇, do hereby certify that I am the duly elected, qualified
and acting Assistant Secretary of Public Service Company of New Mexico, a
corporation organized and existing under the laws of the State of New Mexico,
and that a meeting of the Board of Directors of said Corporation duly called and
held on the 4th day of February, 1992, at which a quorum was present and voting,
the following resolutions were unanimously adopted:
WHEREAS, by Application (the "Application") filed with the New Mexico
Public Service Commission (the "Commission") in Case No. 2429, the
Company requested authority from the Commission to make a loan (the
"Loan") of up to $750,000 to ▇▇▇▇▇▇▇ Resources, Inc. ("▇▇▇▇▇▇▇") for
the purpose of funding certain expenses incurred or to be incurred by
▇▇▇▇▇▇▇ in liquidating its business and disposing of its assets;
WHEREAS, by its Order Adopting Recommended Decision to Allow Interim
Relief, issued on January 6, 1992 (the "Interim Order"), the Commission
authorized the Company to make the loan. The Interim Order states,
among other things, (i) that if, after final hearing on the
Application, the Commission disapproves the Loan, the Company will
immediately seek to have ▇▇▇▇▇▇▇ repay the funds advanced by the
Company, and (ii) that the Company will have the burden of establishing
that its ratepayers have been held harmless from the Loan;
WHEREAS, the Loan is to bear interest at a rate equal to the Company's
average cost of short-term funds, is to be secured by certain assets of
▇▇▇▇▇▇▇, is to be repaid from the proceeds received by ▇▇▇▇▇▇▇ from
disposition of its assets, and is otherwise to be on terms and
conditions that are consistent with the Application and the Interim
Order;
WHEREAS, Chemical Bank, as Collateral Agent for certain creditors of
▇▇▇▇▇▇▇ ("Chemical Bank"), and perhaps some or all of such creditors,
will be requested to consent to the Loan, and the Loan will not be made
without such consent. In connection with such request, Chemical Bank
may seek amendments to the Settlement Agreement dated as of November 2,
1989, among the Company, the lender parties thereto (the "Lenders") and
Chemical Bank (the "Settlement Agreement"); pursuant to the Settlement
Agreement the Company is entitled, under circumstances specified
therein, to receive "Recapture Payments" from Chemical Bank with
respect to damages heretofore paid by the Company to the Lenders in
connection with disputes involving indebtedness of ▇▇▇▇▇▇▇ to the
Lenders;
NOW, THEREFORE, it is HEREBY RESOLVED that the Company be, and it
hereby is, authorized and empowered to make the Loan to ▇▇▇▇▇▇▇, on
terms permitted by and subject to the conditions set forth in the
Application and the Interim Order.
FURTHER RESOLVED, that in connection with the Loan the Company may
agree to such amendments to the Settlement Agreement, and may make such
other agreements with Chemical Bank and the Lenders, as the proper
officers of the Company may determine to be in the best interests of
the Company; and
FURTHER RESOLVED, that in connection with the Loan, the proper officers
of the Company are hereby authorized and empowered on behalf of the
Company to do such acts and to execute such agreements and other
instruments as they may determine to be appropriate or desirable, and
to cause the Company to perform its obligations under such agreements
and instruments.
I DO FURTHER CERTIFY that the above has not been amended, modified, or
rescinded, but remains in full force and effect. IN WITNESS WHEREOF, I
have hereunto set my hand and affixed the seal of the said Corporation
as of the 24th day of April
1992.
-----------------------------------
Assistant Secretary
FIRST AMENDMENT TO SETTLEMENT AGREEMENT
EXHIBIT C
Principal Terms of Additional Bellamah
and ▇▇▇▇▇▇ Ridge Settlement Arrangements
1. ▇▇▇▇▇▇▇, Crestar Capital Corporation ("Crestar") and all other parties
released by the Bellamah Trustee as contemplated in Paragraph 3 below
will release all claims they have made in the Bellamah bankruptcy
proceedings including, but not limited to, the priority administrative
claim filed by ▇▇▇▇▇▇▇ in the amount of $330,000 plus interest.
2. Crestar will assign to the Bellamah Trustee its entire one-half
interest in the real property lien on Lakepointe Tract C-7 and its
interest in or lien upon all escrowed funds.
3. The parties will execute mutual, global releases, with the Bellamah
Trustee releasing ▇▇▇▇▇▇▇, Crestar, PNM and certain, as yet
unidentified, PNM subsidiaries and their affiliates.
4. ▇▇▇▇▇▇▇/PNM will pay the Bellamah Trustee the cash sum of $1,500,000.00.
5. ▇▇▇▇▇▇▇ and PNM will provide the Bellamah Trustee access, on a
reasonable basis, to documents which may be necessary or useful to the
Bellamah Trustee in the prosecution of the claims that he will retain
against ▇▇▇▇▇, Jennings, Roundtree, Crocker, Bobb, and Joint Asset
Escrow.
6. After the Bellamah Trustee has received the net sum of $3,500,000.00
from the sale of property encumbered by the ▇▇▇▇▇▇▇ liens (the "▇▇▇▇▇▇▇
Liens") collaterally assigned to the Collateral Agent, the Bellamah
Trustee will pay to ▇▇▇▇▇▇▇ (for distribution under amended Section
3.4(a) of the Settlement Agreement) one-half of the net proceeds from
additional sales of property encumbered by the ▇▇▇▇▇▇▇ Liens, up to a
maximum of $50,000.
7. See attached Exhibit C-1, which is incorporated herein by this reference.
FIRST AMENDMENT TO SETTLEMENT AGREEMENT
EXHIBIT D
PUBLIC SERVICE COMPANY OF NEW MEXICO
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Via Telecopy and Federal Express
December 31, 1990
Chemical Bank, as Collateral Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Gentlemen:
Reference is made to (1) the Assignment, Security Agreement and Waiver
(the "Security Agreement") dated as of November 2, 1989, among ▇▇▇▇▇▇▇
Resources, Inc. ("▇▇▇▇▇▇▇"), the lenders party thereto (the "Lenders") and
Chemical Bank, as Agent and Collateral Agent (the "Collateral Agent"), (2) the
Settlement Agreement (the "Settlement Agreement") dated as of November 2, 1989,
among Public Service Company of New Mexico ("PNM"), the Lenders and the
Collateral Agent (3) the Certification and Request made by ▇▇▇▇▇▇▇ pursuant to
the Security Agreement on November 7, 1990, for withdrawal of $1,353,779, (4)
the Certification and Request made by ▇▇▇▇▇▇▇ pursuant to the Security Agreement
on December 21, 1990, for withdrawal of $228,519.75, (5) the Certification and
Request made by ▇▇▇▇▇▇▇ pursuant to the Security Agreement on December 27, 1990,
for withdrawal of $25,499.50 (the Certifications and Requests referred to in
items (3), (4) and (5) are hereinafter referred to collectively as the
"Requests").
Pursuant to Section 3.1(a) of the Settlement Agreement, and in reliance
upon the objections and reservations set forth in the letter of even date from
▇▇▇▇▇▇▇ to the Collateral Agent, PNM is remitting to the Collateral Agent, PNM
is remitting to the Collateral Agent the sum of $1,276,850.52. Said remittance
is $878,434.12 more than it would have been had the Collateral Agent honored the
Requests. PNM believes that the Requests were properly made and should have been
honored. PNM therefore reserves all rights and remedies it may have to recover
from each Lender any portion of the $878,434.12 received by such Lender. PNM
also reserves all rights and remedies it may have with respect to disbursements
made pursuant to Section 5.3 of the Restructuring Agreement dated as of February
14, 1990, among ▇▇▇▇▇▇▇, the Lenders
December 31, 1990
Page Two
and the Collateral Agent (the "Restructuring Agreement") and amounts withheld
from the Account (as defined in the Security Agreement) on account of claims or
possible claims of North Sandia Partners, Inc., to disbursements under said
Section 5.3.
Very truly yours,
Public Service Company
of New Mexico
By:
---------------------------------
▇. ▇. ▇▇▇▇▇▇▇, ▇▇.,
Senior Vice President
FIRST AMENDMENT TO SETTLEMENT AGREEMENT
SCHEDULE 1
Chemical Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Barclays Bank PLC
Barclays Bank Building
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The Bank of New York
Legal Department
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ Highland, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ Guaranty Trust Company
of New York
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
United New Mexico Bank
Special Assets Department
▇▇▇ ▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
First National Bank In Albuquerque
▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
First National Bank of Belen
▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Union Bank
Energy Capital Services
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
