AMENDMENT NO. 2 to TERM LOAN CREDIT AGREEMENT
EXECUTION
COPY
Exhibit
10.2
AMENDMENT
NO. 2
to
THIS
AMENDMENT NO. 2 TO TERM LOAN CREDIT AGREEMENT (the “Amendment”) is made
as of October 9, 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;
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;
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;
WHEREAS,
JPMorgan Chase Bank, N.A. (“JPMCB”), pursuant to Section 10.6 of the Credit
Agreement, has notified the Borrower and the Lenders that it intends to resign
as Administrative Agent under the Credit Agreement, effective October 9, 2008
and to assign to Union Bank of California, N.A. (“UBOC”) all of its rights under
the Credit Agreement as Administrative Agent; and
WHEREAS,
UBOC, pursuant to Section 10.6 of the Credit Agreement, has agreed to act as
successor Administrative Agent under the Credit Agreement, effective October 9,
2008 and to assume the obligations of JPMCB as Administrative Agent under the
Credit Agreement, and, by their signatures set forth below, each of the Lenders
and the Borrower under the Credit Agreement have consented to the resignation of
JPMCB and the appointment of UBOC as successor Administrative Agent under the
Credit Agreement;
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 9, 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 “Maturity
Date” in its entirety and to substitute the following
therefor:
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“Maturity Date” means
October 17, 2008 or any later date as may bespecified as the Maturity Date in
accordance with Section 2.5.
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1.2.
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Section 1.1 of
the Credit Agreement is amended to delete the defined term “JPMCB” in its
entirety.
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1.3.
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Section 1.1 of
the Credit Agreement is amended to insert the following definition in
alphabetical order:
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“UBOC” means Union
Bank of California, N.A., together with itssuccessors and/or
assigns.
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1.4.
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Each
reference to “JPMCB” now appearing in the Credit Agreement shall instead
refer to “UBOC”.
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2. Conditions of
Effectiveness. The effectiveness of this Amendment is subject
to the conditions precedent that UBOC, as successor Administrative Agent
pursuant to this Amendment, 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, JPMCB, as the resigning Administrative Agent and
UBOC, as successor Administrative
Agent;
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(B)
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notwithstanding
anything to the contrary in the Credit Agreement, evidence satisfactory to
it that JPMCB shall have received not less than $75,188,927.09 as payment
in full of all outstanding loans and other obligations owing to it as a
Lender and as the resigning Administrative Agent on the date hereof;
and
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(C)
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such
other documents, instruments and agreements as UBOC, as successor
Administrative Agent pursuant to this Amendment, 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
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2
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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. Successor Administrative
Agent.
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(A)
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JPMCB
hereby assigns all of its rights as Administrative Agent under the Credit
Agreement to UBOC, all on the terms and subject to the conditions set
forth in the Credit Agreement. From and after the date hereof,
JPMCB acknowledges and agrees that it shall cease to have any rights as
Administrative Agent under the Credit Agreement and the other Credit
Documents. It is understood and agreed that the assignment and
assumption hereunder are made without recourse to JPMCB and that JPMCB
makes no representation or warranty of any kind to
UBOC.
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(B)
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UBOC
hereby assumes the performance of all of the duties and obligations of
JPMCB as Administrative Agent under the Credit Agreement and the other
Credit Documents (collectively the “Assumed Duties”) and hereby agrees to
perform the Assumed Duties as required under the Credit Agreement and the
other Credit Documents. UBOC acknowledges that JPMCB has
assigned to UBOC all of the rights of JPMCB as Administrative Agent under
the Credit Agreement and the other Credit Documents, all on the terms and
subject to the conditions set forth in the Credit Agreement and the other
Credit Documents. From and after the date hereof, UBOC agrees
to perform all of the Assumed Duties to be performed or observed by JPMCB
individually and as Administrative Agent under the Credit Agreement, or
any other Credit Document or in connection therewith, and to be bound in
all respects by the terms of the Credit Agreement and the other Credit
Documents as they relate to JPMCB as Administrative Agent. From
and after the date hereof, each reference in the Credit Agreement and the
other Credit Documents to JPMCB individually and as the “Administrative
Agent” as defined in the Credit Agreement shall be deemed to be a
reference to UBOC. Pursuant to Section 11.1 of the Credit
Agreement, UBOC as successor Administrative Agent hereby notifies the
parties hereto that its address for purposes of the Credit Documents
is:
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For
payments and requests for Credit Extensions:
Union Bank of California,
N.A.
Commercial Loan &
Documentation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Commercial Loan Operations
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Telecopier: 800.446.9951
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Payment
Instructions:
Union Bank of California,
N.A.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ABA # ▇▇▇-▇▇▇-▇▇▇
Acct #77070-196431
Attention: Commercial Loan
Operations
Ref: Texas New Mexico Power
Company
Other
Notices as Administrative Agent:
Union Bank of California,
N.A.
Energy Capital Services
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇,
SVP
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Telecopier: 213.236.4096
Electronic Mail:
▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇.▇▇▇
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(C)
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Upon
the effectiveness of this Agreement, JPMCB shall be discharged from all of
its duties and obligations, as Administrative Agent, under the Credit
Agreement and the other Credit
Documents.
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5. 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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(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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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.
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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.
TEXAS-NEW
MEXICO POWER COMPANY, as the Borrower
By: /s/ ▇▇▇▇▇
▇.
▇▇▇▇
Name: ▇▇▇▇▇
▇. ▇▇▇▇
Title: Vice
President and Treasurer
UNION
BANK OF CALIFORNIA, N.A., as successor Administrative Agent and as a
Lender
By: /s/ ▇▇▇▇▇▇
▇.
▇▇▇▇
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇
Title: Vice
President
JPMORGAN
CHASE BANK, N.A., as the resigning Administrative Agent and as a
Lender
By: /s/ ▇▇▇▇▇▇▇
▇.
▇▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
Title: Senior
Vice President
Signature
Page to Amendment No. 2