3. Ratification of Credit Agreement. The term “Credit Agreement” as used in each of the Credit Documents shall hereafter mean the Credit Agreement as amended and modified by this Waiver and as amended and modified from time to time hereafter. Except as herein specifically agreed, the Credit Agreement, as amended by this Waiver, is hereby ratified and confirmed and shall remain in full force and effect according to its terms. Each party hereto acknowledges and consents to the waiver set forth herein and agrees that, other than as explicitly set forth in Section 1 above, this Waiver does not impair, reduce or limit any of its obligations under the Credit Documents (including, without limitation, the indemnity obligations set forth therein) and that, after the date hereof, this Waiver shall constitute a Credit Document. The execution, delivery and effectiveness of this Waiver shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of the Lender under any of the Credit Documents or constitute a waiver of any provision of any of the Credit Documents.
4. Authority/Enforceability. The Borrower represents and warrants as follows:
(a) It has taken all necessary action to authorize the execution, delivery and performance of this Waiver.
(b) This Waiver has been duly executed and delivered by the Borrower and constitutes the Borrower’s legal, valid and binding obligation, enforceable in accordance with its terms, except as such enforceability may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).
(c) No consent, approval, authorization or order of, or filing, registration or qualification with, any court or governmental authority or third party is required in connection with the execution, delivery or performance by the Borrower of this Waiver, or, if required, any such consent, approval, authorization, order, filing, registration or qualification has been previously obtained or made.
5. Representations and Warranties. The Borrower represents and warrants to the Lender that (a) the representations and warranties of the Borrower set forth in any Credit Document (other than the representations and warranties incorporated from Section 6.7(a) of the PNM Resources Credit Agreement (but only with respect to clause (a) of the definition of Material Adverse Effect) and Section 6.9 of the PNM Resources Credit Agreement), as amended by this Waiver, are true and correct in all material respects (except to the extent that any representation and warranty that is qualified by materiality, Material Adverse Effect or Material Adverse Change shall be true and correct in all respects) as of the date hereof, unless they specifically refer to an earlier date, (b) after giving effect to this Waiver, no event has occurred and is continuing which constitutes a Default or an Event of Default, and (c) it has no claims, counterclaims, offsets, credits or defenses to its obligations under the Credit Documents, or to the extent it has any, they are hereby released in consideration of the Lender entering into this Waiver.
6. No Conflicts. The Borrower represents and warrants that the execution and delivery of this Waiver, the consummation of the transactions contemplated herein and in the Credit Agreement (before and after giving effect to this Waiver), and the performance of and compliance with the terms and provisions hereof by the Borrower will not (a) violate, contravene or conflict with any provision of its articles or certificate of incorporation, bylaws or other organizational or governing document, (b) violate, contravene or conflict with any law, rule, regulation (including, without limitation, Regulation U and Regulation X), order, writ, judgment, injunction, decree or permit applicable to the Borrower, (c) violate, contravene or conflict with contractual provisions of, or cause an event of default under, any indenture, loan agreement, mortgage, deed of trust, contract or other agreement or instrument to which the Borrower is a party or by which it or its properties may be bound, the violation of which would have or would be reasonably expected to have a Material Adverse Effect or (d) result in or require the creation of any Lien upon or with respect to the Borrower’s properties.
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