EXECUTION
COUNTERPART
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AMENDMENT NO. 1
Dated as of September 21, 1993
to the
UNIT 2
FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
Dated as of January 8, 1992
among
TEXAS-NEW MEXICO POWER COMPANY
and
TEXAS GENERATING COMPANY II
and
THE BANKS NAMED HEREIN
as Banks
and
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION)
as Agent
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AMENDMENT NO. 1 (this "Amendment") dated as of
September 21, 1993 to the UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT dated as of January 8, 1992
(the "Credit Agreement"), among TEXAS-NEW MEXICO POWER COMPANY
("TNP"), TEXAS GENERATING COMPANY II ("TGC II"), each of the
lenders that is a signatory hereto identified under the caption
"BANKS" on the signature pages hereto or which, pursuant to
Section 4.05(g) or 16.01 hereof, shall become a "Bank" hereunder,
the Voting Participants and THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION), as agent for the Banks (in such capacity, the
"Agent").
RECITALS
1. The parties hereto have previously entered into the
Credit Agreement which became effective on the Effective Date,
January 24, 1992, upon the satisfaction of the conditions
precedent thereto as set out in Section 8.01 of the Credit
Agreement.
2. On January 27, 1992, TNP and TGC II satisfied the
conditions in Section 8.02 of the Credit Agreement to cause the
occurrence of the Extension Date. Among other things, TNP issued
its Series T Bonds and its First Secured Debentures, due January
15, 1999, and applied the net proceeds thereof to, among other
things, purchase pro rata from the Banks $65,000,000 of the
Existing Loans outstanding under the Credit Agreement. The
Existing Loans acquired by TNP were, automatically upon their
purchase by TNP, converted into the First Replacement Loan,
evidenced by the First Replacement Note that is secured pursuant
to the Security Documents pari passu with the other Obligations
under the Credit Agreement and the other Project Documents. The
First Secured Debentures are secured by TNP's pledge of the First
Replacement Note to the First Debenture Trustee under the First
Secured Debenture Indenture. As a result of the pledge of the
First Replacement Note, the First Secured Debentures indirectly
share pari passu in the Banks' Collateral.
3. TNP and TGC II have the right to secure additional debt
securities with the Collateral, subject to the terms and
conditions of Section 9.33 of the Credit Agreement. Other than
with respect to the January 27, 1992 transactions described in
Recital 2 hereof, however, no specific procedures were
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 1>
established in the Credit Agreement for TNP or TGC II to
secure additional debt securities with the Collateral.
4. The parties desire to amend the Credit Agreement as
provided for in this Amendment to facilitate TNP's or TGC II's
securing certain additional debt securities and, upon the
payment, prepayment or purchase in full of the Project Loans
outstanding on the First Amendment Effective Date, all interest
due and payable thereon and all other amounts due and payable by
TNP and TGC II to the Banks under the Credit Agreement
(including, without limitation, all Supplemental Advances) and
the other Project Documents, debt with the Collateral from time
to time in furtherance of and as necessary for the parties to
achieve the purposes and objectives, to perform the obligations
and to exercise the rights, all as set forth in or contemplated
by the Credit Agreement and as modified by this Amendment.
5. On July 2, 1993, TNP requested certain amendments to
the Credit Agreement to provide, among other things, for the
extension of certain scheduled repayment dates and the prepayment
by TGC II of $75,750,000 of Existing Project Loans. On July 2,
1993, TNP requested certain amendments to the Unit 1 First
Amended and Restated Project Loan and Credit Agreement dated as
of January 8, 1992 among TNP, TGC, the banks and the other
parties thereto and Chase, as Agent (as amended, modified and
supplemented and in effect from time to time, the "Unit 1 Credit
Agreement") and simultaneously with the entering into of this
Amendment the parties to the Unit 1 Credit Agreement are entering
into Amendment No. 1 to the Unit 1 Credit Agreement in order to
effect such amendments to the Unit 1 Credit Agreement.
6. The funds necessary for the payments and prepayments of
Existing Project Loans are expected to be provided by the
issuance by TNP of new first mortgage bonds (the "New Bonds") in
an aggregate principal amount of up to $100,000,000 under the TNP
Bond Indenture and available cash.
7. Certain provisions of this Amendment will become
effective only upon the prepayment of a portion of the Existing
Project Loans and the prepayment and purchase of certain of the
indebtedness under the Unit 1 Credit Agreement and the
satisfaction of certain other conditions.
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 2>
8. By virtue of the First Debenture Trustee Consent, the
Replacement Note Holder has consented to the extent required to
the provisions of this Amendment.
NOW, THEREFORE, for and in consideration of the premises and
other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. Definitions.
Unless otherwise defined herein, the capitalized terms
utilized herein (including the Recitals hereinabove set forth)
which are defined in the Credit Agreement shall have the meanings
ascribed to them in the Credit Agreement. The capitalized terms
defined herein, in the context of amending the Credit Agreement,
shall, when used herein (including the Recitals hereinabove set
forth), have the meanings ascribed to them in such amending
language.
SECTION 2. Conditions Precedent.
(a) The effectiveness of this Amendment shall be subject to
the condition precedent that, on or before September
30, 1993, this Amendment shall have been executed and
delivered by TNP, TGC II, the Banks, the Voting
Participants (if any), the Agent and the Collateral
Agent, and to the satisfaction of the following
additional conditions precedent, in each case for the
benefit of the parties hereto and the other Secured
Parties:
(i) TNP and TGC II each shall deliver to the Agent
certified copies of the resolutions of their
respective boards of directors authorizing the
execution, delivery and performance of this
Amendment and each of the other First Amendment
Documents to which such Person is or is intended
to be a party and the transactions contemplated
by the issuance by TNP of New Bonds in an
aggregate principal amount of up to $100,000,000
under the TNP Bond Indenture and all other
documents evidencing other necessary action with
respect thereto;
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 3>
(ii) TNP and TGC II each shall deliver to the Agent a
certificate, in form and substance satisfactory
to the Agent, signed by an Authorized Officer of
TNP or TGC II, as applicable, certifying that,
except as disclosed in such certificate, there
shall be no injunction, writ, preliminary
restraining order or any order of any nature
issued by any arbitrator, court or other
governmental authority directing that this
Amendment not be consummated as herein provided
and certifying further that, except as disclosed
in such certificate, there shall be no material
litigation, investigation or proceeding of or
before any arbitrator, court or other
governmental authority pending or (to the best
of such Authorized Officer's knowledge,
threatened) against TNP or TGC II or affecting
in any material respect any of its respective
properties, revenues or assets;
(iii) TNP and TGC II each shall deliver to the Agent a
certificate signed by an Authorized Officer of
TNP or TGC II, as applicable, certifying that
(A) the representations and warranties of each
of TNP and TGC II, as applicable, contained in
Section 2 of the Credit Agreement, as amended by
this Amendment, and in each of the other Project
Documents to which such Person is a party shall
be true and correct on and as of such date as if
made on and as of such date (or, if stated to
have been made solely as of an earlier date,
were true and correct as of such earlier date),
(B) no Default under the Credit Agreement, as
amended by this Amendment, and no default by
either TNP or TGC II under any of the other
Project Documents to which either TNP or TGC II
is a party, has occurred and is continuing on
such date and (C) to the best of such Authorized
Officer's knowledge, no default by any other
Person to any other Project Document has
occurred and is continuing on such date;
(iv) TNP and TGC II each shall deliver to the Agent a
certificate signed by an Authorized Officer of
TNP or TGC II, as applicable, certifying that
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 4>
(A) it has obtained all Government Approvals necessary
under applicable laws and regulations in connection with the due
execution, delivery and performance of this Amendment and
transactions contemplated hereby (except Section 3 hereof) and
(B) all such Government Approvals have been duly obtained, were
validly issued and are held by and in the name of TNP or TGC II,
as applicable, and are final, in full force and effect and not
subject to appeal;
(v) TNP and TGC II each shall deliver to the Agent
legal opinions from counsel to TNP and TGC II in
form and substance satisfactory to the Agent;
(vi) the Intercreditor Amendment No. 2 shall have
been duly executed and delivered by the intended
parties thereto;
(vii) the First Debenture Trustee Consent shall have
been duly executed by the First Indenture
Trustee and delivered to the Agent;
(viii) the Fourth TGC II Modification and Extension
Agreement shall have been duly executed and
delivered by the intended parties thereto and,
at the sole cost of TNP and TGC II, the Title
Company shall have issued to the Agent (A) a
T-38 endorsement to Stewart Title Guaranty
Mortgage Policy No. M-5802-561740 and a T-38
endorsement to Stewart Title Guaranty Mortgage
Policy No. M-5832-25812, each with respect to
such Fourth TGC II Mortgage Modification and
Extension Agreement and (B) a title information
report in form and substance satisfactory to and
approved by the Agent, showing good and
indefeasible title to the TGC II Mortgage Trust
Estate is vested in TGC II and that the TGC II
Mortgage constitutes a valid first mortgage lien
on the TGC II Mortgage Trust Estate and showing
that there are no intervening liens which would
adversely affect the priority of the liens
securing the Loans, subject only to Permitted
Liens;
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 5>
(ix) the TNP Second Lien Mortgage Modification No. 2
shall have been duly executed and delivered by
the intended parties thereto;
(x) the Facility Purchase Agreement Amendment No. 1,
in form and substance satisfactory to the Agent,
shall have been duly executed and delivered by
the intended parties thereto;
(xi) evidence that the First Amendment Documents and
all other instruments to be recorded or filed in
connection with the effectiveness of this
Amendment have been duly recorded and filed in
all places wherein such recording and filing are
necessary to perfect the interests of the Agent
in and to the Collateral covered thereby;
(xii) TNP and TGC II shall each deliver to the Agent
such other certificates, documents or other
information with respect to the matters
contemplated by this Amendment as the Agent may
reasonably determine are necessary to effect the
transactions contemplated by this Amendment; and
(xiii) Amendment No. 1 to the Unit 1 Credit Agreement
shall have been duly executed and delivered by
TNP, TGC, the Banks (under and as defined in the
Unit 1 Credit Agreement), the Agent (under and
as defined in the Unit 1 Credit Agreement) and
the Collateral Agent (under and as defined in
the Intercreditor Agreement) and each of the
conditions precedent described in Sections
2(a)(i) through (xi) of Amendment No. 1 to the
Unit 1 Credit Agreement shall have been
satisfied.
(b) The effectiveness of Section 3 of this Amendment
shall be subject to the further conditions precedent
that, on or before June 30, 1994, each of the
following additional conditions precedent, in each
case for the benefit of the parties hereto and the
other Secured Parties, shall have been fulfilled:
(i) TNP and TGC each shall have effected a Section
4.05 Closing, under and as defined in the Unit 1
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 6>
Credit Agreement, as amended by Amendment No. 1 thereto,
with respect to Second Secured Debentures, as defined in, and
issued in accordance with the terms and conditions of Section
4.05 of, the Unit 1 Credit Agreement, as amended by
Amendment No. 1 thereto (the "Second Secured Debentures"),
in an aggregate principal amount of $140,000,000 and TNP
shall have contemporaneously issued New Bonds in an
aggregate principal amount of up to $100,000,000 and (A) TNP
shall have applied the proceeds from the Second Secured
Debentures to purchase "Project Notes," under and as defined
in the Unit 1 Credit Agreement, as amended by Amendment No.
1 thereto, in the amount of $140,000,000 and (B) TNP and
TGC II shall have applied a portion of the proceeds of the New
Bonds and available cash to prepay the Existing Project Loans in
the amount of $75,750,000 and TNP or TGC shall have prepaid
the "Project Loans," under and as defined in the Unit 1 Credit
Agreement, as amended by Amendment No. 1 thereto, in the
amount of $6,000,000;
(ii) TNP and TGC II each shall deliver to the Agent a
certificate signed by an Authorized Officer of
TNP or TGC II, as applicable, certifying that
(A) the representations and warranties of each
of TNP and TGC II, as applicable, contained in
Section 2 of the Credit Agreement, as amended by
this Amendment, and in each of the other Project
Documents to which such Person is a party shall
be true and correct on and as of such date as if
made on and as of such date (or, if stated to
have been made solely as of an earlier date,
were true and correct as of such earlier date),
(B) no Default under the Credit Agreement, as
amended by this Amendment, and no default by
either TNP or TGC II under any of the other
Project Documents to which either TNP or TGC II
is a party, has occurred and is continuing on
such date and (C) to the best of such Authorized
Officer's knowledge, no default by any other
Person to any other Project Document has
occurred and is continuing on such date;
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 7>
(iii) TNP and TGC II each shall deliver to the Agent a
certificate signed by an Authorized Officer of
TNP or TGC II, as applicable, certifying that
(A) it has obtained all Government Approvals
necessary under applicable laws and regulations
in connection with the provisions of, and the
transactions contemplated by, Section 3 hereof
(and the transactions contemplated by Section 4
hereof that are contemplated to occur as a
consequence of the occurrence of the Section 3
Effective Date) and (B) all such Government
Approvals have been duly obtained, were validly
issued and are held by and in the name of the
proper party (either directly or by transfer
from the original applicant therefor) and are
final, in full force and effect and not subject
to appeal;
(iv) TNP and TGC II each shall deliver to the Agent a
certificate, in form and substance satisfactory
to the Agent, signed by an Authorized Officer of
TNP or TGC II, as applicable, certifying that,
except as disclosed in such certificate, there
shall be no injunction, writ, preliminary
restraining order or any order of any nature
issued by any arbitrator, court or other
governmental authority directing that this
Amendment not be consummated as herein provided
and certifying further that, except as disclosed
in such certificate, there shall be no material
litigation, investigation or proceeding of or
before any arbitrator, court or other
governmental authority pending or (to the best
of such Authorized Officer's knowledge,
threatened) against TNP or TGC II or affecting
in any material respect any of its respective
properties, revenues or assets;
(v) TNP and TGC II each shall deliver to the Agent
legal opinions of counsel to TNP and TGC II
(which may take the form of bring-down letters
with respect to legal opinions delivered on the
First Amendment Effective Date) in form and
substance satisfactory to the Agent;
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 8>
(vi) the Fifth TGC II Modification and Extension
Agreement shall have been duly executed and
delivered by the intended parties thereto and,
at the sole cost of TNP and TGC II, the Title
Company shall have issued to the Agent (A) a
T-38 endorsement to the Stewart Title Guaranty
Mortgage Policy issued pursuant to Section 17.22
of the Credit Agreement, as amended by this
Amendment, and a T-38 endorsement to Stewart
Title Guaranty Mortgage Policy No. M-5832-25812,
each with respect to such Fifth TGC II Mortgage
Modification and Extension Agreement and (B) a
title information report in form and substance
satisfactory to and approved by the Agent,
showing good and indefeasible title to the TGC
II Mortgage Trust Estate is vested in TGC II and
that the TGC II Mortgage constitutes a valid
first mortgage lien on the TGC II Mortgage Trust
Estate and showing that there are no intervening
liens which would adversely affect the priority
of the liens securing the Loans, subject only to
Permitted Liens;
(vii) evidence that the First Amendment Documents and
all other instruments to be recorded or filed in
connection with the effectiveness of Section 3
of this Amendment have been duly recorded and
filed in all places wherein such recording and
filing are necessary to perfect the interests of
the Agent in and to the Collateral covered
thereby; and
(viii) TNP and TGC II shall each deliver to the Agent
such other certificates, documents or other
information with respect to the matters
contemplated by Section 3 of this Amendment as
the Agent may reasonably determine are necessary
to effect the transactions contemplated by
Section 3 of this Amendment.
(c) Promptly upon the satisfaction of the conditions
precedent to the effectiveness of this Amendment, as
described in Section 2(a) of this Amendment, the Agent
shall confirm in writing delivered to TNP and TGC II
that the provisions of this Amendment (except Section 3
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 9>
hereof) have become effective. Promptly upon the
satisfaction of the conditions precedent described in Section
2(b) of this Amendment (i) TNP or TGC II shall pay to the Agent
for the ratable benefit of the Banks a non-refundable extension
fee in the amount of 1/4 of 1% of the aggregate principal amount
of Existing Project Loans outstanding on the Bond Proceeds
Payment Date after giving effect to the prepayments on such date
and (ii) the Agent shall confirm in writing delivered to TNP and
TGC II that the provisions of Section 3 of this Amendment have
become effective.
SECTION 3. Extension of Maturities and Changes to
"Applicable Margins".
SECTION 3.01. Extension of Maturities; Changes to
"Applicable Margins".
(a) Section 1.01 of the Credit Agreement shall be amended
as follows:
(i) Delete the following terms and their definitions
in their entirety: "Final Maturity Date", "First
Scheduled Reduction Date", "Scheduled Reduction
Dates" and "Second Scheduled Reduction Date";
(ii) Insert the following new terms and their
definitions in the appropriate alphabetical order:
""Final Maturity Date" shall mean December
31, 1998.
"First Prospect Purchase Carryforward Amount"
shall mean the excess (if any) of (a) Period 1
Prospect Purchases over (b) $1,567,992.42.
"First Scheduled Reduction Date" shall mean
December 31, 1995.
"First Supplemental Advance Bank Purchase
Carryforward Amount" shall mean the excess (if
any) of (a) Period 1 Supplemental Advance Bank
Purchases over (b) the excess (if any) of (i)
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 10>
$35,369,507.58 over (ii) Period 1 Section 5.02(a)
Prepayments.
"Period 1 Prospect Purchases" shall have the
meaning ascribed to such term in Section
5.02(b)(i)(A)(2)(y)(II) hereof.
"Period 1 Section 5.02(a) Prepayments" shall
have the meaning ascribed to such term in Section
5.02(b)(i)(A)(1)(y)(I) hereof.
"Period 1 Supplemental Advance Bank
Purchases" shall have the meaning ascribed to such
term in Section 5.02(b)(i)(A)(1)(y)(II) hereof.
"Period 2 Prospect Purchases" shall have the
meaning ascribed to such term in Section
5.02(b)(i)(B)(2)(y)(I)(bb) hereof.
"Period 2 Section 5.02(a) Prepayments" shall
have the meaning ascribed to such term in Section
5.02(b)(i)(B)(1)(y)(I)(aa) hereof.
"Period 2 Supplemental Advance Bank
Purchases" shall have the meaning ascribed to such
term in Section 5.02(b)(i)(B)(1)(y)(I)(bb) hereof.
"Period 3 Section 5.02(a) Prepayments" shall
have the meaning ascribed to such term in Section
5.02(b)(i)(C)(1)(y)(I)(aa) hereof.
"Period 3 Supplemental Advance Bank
Purchases" shall have the meaning ascribed to such
term in Section 5.02(b)(i)(C)(1)(y)(I)(bb) hereof.
"Scheduled Reduction Dates" shall mean the
First Scheduled Reduction Date, the Second
Scheduled Reduction Date, the Third Scheduled
Reduction Date, the Final Maturity Date and each
Replacement Note Maturity Date.
"Second Prospect Purchase Carryforward
Amount" shall mean the excess (if any) of (a) the
sum of (i) the First Prospect Purchase
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 11>
Carryforward Amount plus (ii) Period 2 Prospect
Purchases over (b) $1,567,992.42.
"Second Scheduled Reduction Date" shall mean
December 31, 1996.
"Second Supplemental Advance Bank Purchase
Carryforward Amount" shall mean the excess (if
any) of (a) the sum of (i) the First Supplemental
Advance Bank Purchase Carryforward Amount plus
(ii) Period 2 Supplemental Advance Bank Purchases
over (b) the excess (if any) of (i) $35,369,507.58
over (ii) Period 2 Section 5.02(a) Prepayments.
"Third Scheduled Reduction Date" shall mean
December 31, 1997."; and
(iii) Delete the term "Applicable Margin" and the
definition thereof and substitute in its place the
following:
""Applicable Margins" shall mean:
(i) with respect to Prime Rate Loans,
(a) for the period from September 23, 1991
through and including December 31, 1992,
1-1/8%,
(b) for the period from but excluding
December 31, 1992 through and including
December 31, 1993, 1-3/8%,
(c) for the period from but excluding
December 31, 1993 through and including
December 31, 1994, 1-7/8%,
(d) for the period from but excluding
December 31, 1994 through and including
December 31, 1995, 2-3/8%,
(e) for the period from but excluding
December 31, 1995 through and including
December 31, 1996, 2-5/8%,
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 12>
(f) for the period from but excluding
December 31, 1996 through and including
December 31, 1997, 2-7/8%, and
(g) thereafter, 3-1/8%;
(ii) with respect to CD Rate Loans,
(a) for the period from September 23, 1991
through and including December 31, 1992,
1-5/8%,
(b) for the period from but excluding
December 31, 1992 through and including
December 31, 1993, 1-7/8%,
(c) for the period from but excluding
December 31, 1993 through and including
December 31, 1994, 2-3/8%,
(d) for the period from but excluding
December 31, 1994 through and including
December 31, 1995, 2-7/8%,
(e) for the period from but excluding
December 31, 1995 through and including
December 31, 1996, 3-1/8%,
(f) for the period from but excluding
December 31, 1996 through and including
December 31, 1997, 3-3/8%, and
(g) thereafter, 3-5/8%; and
(iii) with respect to Eurodollar Rate Loans,
(a) for the period from September 23, 1991
through and including December 31, 1992,
1-1/2%,
(b) for the period from but excluding
December 31, 1992 through and including
December 31, 1993, 1-3/4%,
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 13>
(c) for the period from but excluding
December 31, 1993 through and including
December 31, 1994, 2-1/4%,
(d) for the period from but excluding
December 31, 1994 through and including
December 31, 1995, 2-3/4%,
(e) for the period from but excluding
December 31, 1995 through and including
December 31, 1996, 3%,
(f) for the period from but excluding
December 31, 1996 through and including
December 31, 1997, 3-1/4%, and
(g) thereafter, 3-1/2%.".
(b) Section 5.02(b)(iii) of the Credit Agreement shall be
deleted in its entirety and replaced with the
following:
"(iii) [INTENTIONALLY OMITTED].".
(c) Section 5.02(b)(i) of the Credit Agreement shall be
deleted in its entirety and replaced with the
following:
"(i) TGC II shall prepay, or TNP shall purchase in
accordance with the terms and conditions of Section
4.05 hereof, the Project Loans and in the case of
clause (E), the applicable Replacement Loans, in the
following amounts:
(A) On the First Scheduled Reduction Date (1) the
Existing Project Loans held by the Supplemental
Advance Banks shall be repaid pro rata to the
Supplemental Advance Banks in an aggregate
principal amount equal to the excess (if any) of
(x) $35,369,507.58 over (y) the sum of, in each
case for the period after the Bond Proceeds
Payment Date and before the First Scheduled
Reduction Date (I) the aggregate principal amount
of Existing Project Loans prepaid pursuant to
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 14>
Section 5.02(a) hereof ("Period 1 Section 5.02(a)
Prepayments") plus (II) the aggregate principal amount of
Existing Project Loans purchased at Section 4.05 Closings, on TNP
Purchase Dates or on the Designee Purchase Date ("Period 1
Supplemental Advance Bank Purchases") and (2) the Existing
Project Loans held by Prospect shall be repaid in an aggregate
principal amount equal to the excess (if any) of (x)
$1,567,992.42 over (y) the sum of, in each case from the period
after the Bond Proceeds Payment Date and before the First
Scheduled Reduction Date (I) the aggregate principal amount of
proceeds received by Prospect in respect of the aggregate
principal amount of Existing Project Loans prepaid pursuant to
the provisions of this Agreement (except for prepayments made
pursuant to Section 5.02(a) hereof) plus (II) the aggregate
principal amount of proceeds received by Prospect in respect of
the aggregate principal amount of Existing Project Loans
purchased at Section 4.05 Closings, on TNP Purchase Dates or on
the Designee Purchase Date ("Period 1 Prospect Purchases");
(B) On the Second Scheduled Reduction Date (1) the
Existing Project Loans held by the Supplemental
Advance Banks shall be repaid pro rata to the
Supplemental Advance Banks in an aggregate
principal amount equal to the excess (if any) of
(x) $35,369,507.58 over (y) the sum of (I) in each
case for the period after the First Scheduled
Reduction Date and before the Second Scheduled
Reduction Date (aa) the aggregate principal amount
of Existing Project Loans prepaid pursuant to
Section 5.02(a) hereof ("Period 2 Section 5.02(a)
Prepayments") plus (bb) the aggregate principal
amount of Existing Project Loans purchased at
Section 4.05 Closings, on TNP Purchase Dates or on
the Designee Purchase Date ("Period 2 Supplemental
Advance Bank Purchases") plus (II) the First
Supplemental Advance Bank Purchase Carryforward
Amount and (2) the Existing Project Loans held by
Prospect shall be repaid in an aggregate principal
amount equal to the excess (if any) of (x)
$1,567,992.42 over (y) the sum of (I) in each case
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 15>
from the period after the First Scheduled Reduction
Date and before the Second Scheduled Reduction Date (aa) the
aggregate principal amount of proceeds received by Prospect in
respect of the aggregate principal amount of Existing Project
Loans prepaid pursuant to the provisions of this Agreement
(except for prepayments made pursuant to Section 5.02(a) hereof)
plus (bb) the aggregate principal amount of proceeds received by
Prospect in respect of the aggregate principal amount of Existing
Project Loans purchased at Section 4.05 Closings, on TNP Purchase
Dates or on the Designee Purchase Date ("Period 2 Prospect
Purchases") plus (II) the First Prospect Purchase Carryforward
Amount;
(C) On the Third Scheduled Reduction Date (1) the
Existing Project Loans held by the Supplemental
Advance Banks shall be repaid pro rata to the
Supplemental Advance Banks in an aggregate
principal amount equal to the excess (if any) of
(x) $35,369,507.58 over (y) the sum of (I) in each
case for the period after the Second Scheduled
Reduction Date and before the Third Scheduled
Reduction Date (aa) the aggregate principal amount
of Existing Project Loans prepaid pursuant to
Section 5.02(a) hereof ("Period 3 Section 5.02(a)
Prepayments") plus (bb) the aggregate principal
amount of Existing Project Loans purchased at
Section 4.05 Closings, on TNP Purchase Dates or on
the Designee Purchase Date ("Period 3 Supplemental
Advance Bank Purchases") plus (II) the Second
Supplemental Advance Bank Purchase Carryforward
Amount and (2) the Existing Project Loans held by
Prospect shall be repaid in an aggregate principal
amount equal to the excess (if any) of (x)
$1,567,992.42 over (y) the sum of (I) in each case
from the period after the Second Scheduled
Reduction Date and before the Third Scheduled
Reduction Date (aa) the aggregate principal amount
of proceeds received by Prospect in respect of the
aggregate principal amount of Existing Project
Loans prepaid pursuant to the provisions of this
Agreement (except for prepayments made pursuant to
Section 5.02(a) hereof) plus (bb) the aggregate
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 16>
principal amount of proceeds received by Prospect in
respect of the aggregate principal amount of Existing Project
Loans purchased at Section 4.05 Closings, on TNP Purchase Dates
or on the Designee Purchase Date plus (II) the Second Prospect
Purchase Carryforward Amount;
(D) on the Final Maturity Date, the Existing Project
Loans shall be repaid in an aggregate principal
amount equal to 100% of the outstanding Existing
Project Loans; and
(E) on each Replacement Note Maturity Date and subject
to Section 4.05(i) hereof, the aggregate principal
amount of Replacement Loans maturing on such
date;".
SECTION 3.02. Joinder of Guarantor.
TNP, as the Guarantor, hereby confirms and consents to
each and every of the terms and conditions of Section 3 of this
Amendment and the Credit Agreement as amended by Section 3 of
this Amendment (including, without limitation Section 17.13 of
the Credit Agreement), and agrees that the terms and conditions
of the Guaranty are in full force and effect and unaffected by
the effectiveness of Section 3 of this Amendment and acknowledges
that there are no claims or offsets against, or defenses or
counterclaims to, the Guaranty.
SECTION 4. Conforming Changes to the Credit Agreement.
SECTION 4.01. Future Issuances of Secured Debentures.
(a) The introductory paragraph of the Credit Agreement
shall be amended by adding an "s" to the end of the
term "Replacement Note Holder" in both occurrences of
such term.
(b) Recital 7 of the Credit Agreement shall be amended by
inserting the word "First" before each occurrence of
the following terms: "Secured Debentures", "Secured
Debenture Indenture", "Replacement Loans", "Replacement
Note" and "Debenture Trustee".
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 17>
(c) Recital 8 of the Credit Agreement shall be amended by
inserting the word "First" before the term "Secured
Debentures".
(d) Section 1.01 of the Credit Agreement shall be further
amended as follows:
(i) Delete the following terms and their definitions
in their entirety: "Banks", "Debenture Trustee",
"Project Loans", "Project Notes", "Replacement
Loan", "Replacement Note", "Replacement Note
Holder", "Replacement Note Maturity Date",
"Secured Debenture Indenture", "Secured
Debentures", "Security Documents" and "TGC II
Mortgage Modifications";
(ii) Insert the following new terms and their
definitions in the appropriate alphabetical order:
""4.05 Notice" shall have the meaning
ascribed to such term in Section 4.05(c) hereof.
"Aggregate Commitment" shall mean, for each
Bank, the amount set forth opposite the name of
such Bank on the signature pages of the First
Amendment under the caption "Aggregate
Commitment".
"Bond Proceeds Payment Date" shall mean the
date on which (a) TNP or TGC II prepays the
Existing Loans in an aggregate principal amount of
$75,750,000, (b) TNP purchases $140,000,000 of
"Project Loans," under and as defined in the Unit
1 Credit Agreement, as amended by Amendment No. 1
thereto and (c) TNP or TGC prepays $6,000,000 of
"Project Loans," under and as defined in the Unit
1 Credit Agreement, as amended by Amendment No. 1
thereto.
"Banks" shall mean the Existing Project Banks
and the Supplemental Advance Banks.
"Class" shall mean, with respect to each
Loan, whether such Loan is an Existing Project
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 18>
Loan, a Supplemental Advance or a Replacement Loan,
each of which constitutes a Class.
"Collateral Coverage Maximum Amount" shall
mean, as of any date of determination on or after
the First Amendment Effective Date, (a)
$288,500,000 minus (b) the amount of payments made
by TNP resulting in transfers made by TGC II (on
or after the First Amendment Effective Date)
which, in accordance with the terms and conditions
of the Facility Purchase Agreement, have resulted
in transfers of Interests (as defined in the
Facility Purchase Agreement) in Unit 2 from TGC II
to TNP which Interests (as so defined) have been
released from the lien of the TGC II Mortgage. On
the Bond Proceeds Payment Date (after giving
effect to the transactions contemplated to occur
on or prior to the Bond Proceeds Payment Date),
the Collateral Coverage Maximum Amount shall be
$212,750,000 subject to reduction thereafter by
virtue of transactions described in clause (b) of
the preceding sentence occurring after the Bond
Proceeds Payment Date.
"Debenture Trustees" shall mean the First
Debenture Trustee and any Subsequent Debenture
Trustee, and "Debenture Trustee" shall mean any of
them.
"Designee" shall have the meaning ascribed
to such term in Section 4.05(g) hereof.
"Designee Purchase Date" shall have the
meaning ascribed to such term in Section 4.05(g)
hereof.
"Designee Purchase Notice" shall have the
meaning ascribed to such term in Section 4.05(g)
hereof.
"Existing Banks" shall have the meaning
ascribed to such term in Section 4.01(a) hereof.
"Existing Loans" shall have the meaning
ascribed to such term in Section 4.01(a) hereof.
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 19>
"Existing Notes" shall have the meaning
ascribed to such term in Section 4.01(a) hereof.
"Existing Project Banks" shall mean the
Existing Banks and the New Advance Banks.
"Existing Project Loans" shall mean the
Existing Loans and the New Advances.
"Facility Purchase Agreement Amendment No. 1"
shall mean Amendment No. 1 dated as of September
21, 1993 to the Unit 2 First Amended and Restated
Facility Purchase Agreement among TNP, TGC II, the
Agent and the Collateral Agent entered into to
correct an inaccurate numerical reference therein.
"Fifth TGC II Modification and Extension
Agreement" shall mean the Fifth TGC II
Modification and Extension Agreement among the
Agent, the Collateral Agent, TNP and TGC II,
substantially in the form of Exhibit E to the
First Amendment.
"First Amendment" shall mean the Amendment
No. 1 dated as of September 21, 1993 to this
Agreement among TNP, TGC II, the Banks, the Voting
Participants and the Agent.
"First Amendment Documents" shall mean the
First Amendment, the Intercreditor Amendment No.
2, the First Debenture Trustee Consent and the
First Amendment Security Documents.
"First Amendment Effective Date" shall mean
the date on which all of the conditions set forth
in Section 2(a) of the First Amendment shall have
been satisfied.
"First Amendment Security Documents" shall
mean the First Amendment TGC II Mortgage
Modifications, the TNP Second Lien Mortgage
Modification No. 2 and the Facility Purchase
Agreement Amendment No. 1.
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 20>
"First Amendment TGC II Mortgage
Modifications" shall mean the Fourth TGC II
Mortgage Modification and Extension Agreement and
the Fifth TGC II Mortgage Modification and
Extension Agreement.
"First Debenture Trustee" shall mean IBJ, as
trustee under, or any successor trustee under, the
First Secured Debenture Indenture.
"First Debenture Trustee Consent" shall mean
a First Debenture Trustee Consent duly executed
and delivered by the First Debenture Trustee,
substantially in the form of Exhibit J to the
First Amendment.
"First Replacement Loan" shall have the
meaning ascribed to such term in Section 4.05(a)
hereof.
"First Replacement Note" shall have the
meaning ascribed to such term in Section 4.05(a)
hereof.
"First Replacement Note Maturity Date" shall
mean, subject to Section 4.05(i) hereof, the
stated maturity date of the First Secured
Debentures.
"First Secured Debenture Indenture" shall
mean the Indenture and Security Agreement dated as
of January 15, 1992 between TNP and IBJ, as
trustee, as the same may from time to time be
amended, modified or supplemented or its
provisions waived.
"First Secured Debentures" shall mean the
debentures, due January 15, 1999, issued by TNP on
January 27, 1992 under the First Secured Debenture
Indenture.
"Fourth TGC II Modification and Extension
Agreement" shall mean the Fourth TGC II
Modification and Extension Agreement among the
Agent, the Collateral Agent, TNP and TGC II,
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 21>
substantially in the form of Exhibit D to the First
Amendment.
"IBJ" shall mean IBJ Schroder Bank & Trust
Company, a New York banking corporation.
"Intercreditor Amendment No. 2" shall mean
Amendment No. 2 to the Intercreditor Agreement
dated as of September 21, 1993 among TNP, TGC,
TGC II, the banks and the other parties party
thereto and Chase in its several capacities as the
Agent, the Collateral Agent and the Agent under
the Unit 1 Credit Agreement, substantially in the
form of Exhibit C to the First Amendment.
"New Advance Banks" shall mean Chase and
NationsBank of Texas, N.A ("NationsBank").
"New Advance Closing Date" shall mean the
Bond Proceeds Payment Date.
"New Advance Commitment" shall mean (a) for
Chase, the obligation of Chase to make New
Advances in an aggregate amount up to but not
exceeding $10,000,000 and (b) for NationsBank, the
obligation of NationsBank to make New Advances in
an aggregate amount up to but not exceeding
$16,000,000. The original aggregate principal
amount of the New Advance Commitments is
$26,000,000.
"New Advance Commitment Termination Date"
shall mean 4:00 p.m. New York time on the Bond
Proceeds Payment Date.
"New Advances" shall have the meaning
ascribed to such term in Section 4.01(b) hereof.
"New Project Notes" shall mean the promissory
notes provided for by Section 4.06 hereof and all
promissory notes delivered to the Banks in
substitution or exchange therefor, in each case as
the same may be amended, modified and supplemented
and in effect from time to time.
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 22>
"Permitted Collateralized Indebtedness" shall
have the meaning ascribed to such term in Section
4.05(b)(i) hereof.
"Permitted Demand Date" shall mean, at any
time, with respect to any Replacement Loan or any
Replacement Note (subject to Section 4.05(i)
hereof, other than the First Replacement Loan and
the First Replacement Note), the stated maturity
date of the Secured Debentures issued on the basis
of (and at such time collateralized by) such
Replacement Loan and Replacement Note.
"Permitted Section 4.05(b)(ii) Collateralized
Indebtedness" shall have the meaning ascribed to
such term in Section 4.05(b)(ii) hereof.
"Project Loans" shall mean the Existing
Project Loans and the Supplemental Advances.
"Project Notes" shall mean the Existing Notes
and the New Project Notes.
"Register" shall have the meaning ascribed to
such term in Section 4.05(h) hereof.
"Relevant Instruments" shall have the meaning
ascribed to such term in Section 4.05(c) hereof.
"Replacement Agent" shall have the meaning
ascribed to such term in Section 15.08 hereof.
"Replacement Loans" shall mean the First
Replacement Loan, any Subsequent Replacement Loans
and any Temporary Replacement Loans, and
"Replacement Loan" shall mean any of them.
"Replacement Note Holders" shall mean:
(a) (i) with respect to the First
Replacement Note, on the Extension Date and
prior to the pledge of the First Replacement
Note by TNP to the First Debenture Trustee
pursuant to the First Secured Debenture
Indenture, TNP; and
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 23>
(ii) with respect to any Subsequent
Replacement Note or any other Replacement
Note (other than a Released Replacement Note)
available at such time for pledge in
conjunction with a future Section 4.05
Closing, prior to the pledge of such
Subsequent Replacement Note or such other
Replacement Note by TNP to a Subsequent
Debenture Trustee pursuant to a Subsequent
Secured Debenture Indenture in conjunction
with such future Section 4.05 Closing, TNP;
(b) immediately upon any such pledge of
any such Replacement Note referred to in
subclause (i) or (ii) of the preceding
subsection (a), but only with respect to such
Replacement Note so pledged (a "Pledged
Replacement Note"):
(i) with respect to any benefits
(including, without limitation, rights to
vote on amendments or defaults and to attend
bank meetings) accruing to, and any
obligations pursuant to Sections 6.03, 15.05,
17.16 and 17.18 hereunder of, the holder of
such Pledged Replacement Note, the Debenture
Trustee to which such Pledged Replacement
Note was pledged (whether or not it shall
have become the legal and beneficial owner of
such Pledged Replacement Note for all
purposes); and
(ii) with respect to any other
obligations of the holder of such Pledged
Replacement Note, TNP;
(c) following the release of any such
pledge of any such Pledged Replacement Note,
but only with respect to such Pledged
Replacement Note so released (a "Released
Replacement Note") and prior to the pledge of
such Released Replacement Note in conjunction
with a future Section 4.05 Closing, TNP; and
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 24>
(d) following the transfer of any
Replacement Note upon the exercise of
remedies by a Debenture Trustee under the
applicable Secured Debenture Indenture, any
transferee of such Replacement Note (other
than such Debenture Trustee in its capacity
as trustee);
provided that each of TNP, each Debenture Trustee
and any transferee shall have signed (as a
condition to becoming a Replacement Note Holder)
an instrument of adoption, substantially in the
form of Exhibit G hereto, agreeing to be bound by
and (in the case of each Debenture Trustee,
subject to the provisions of clause (b) above)
comply with terms and conditions of (x) this
Agreement applicable to Replacement Note Holders
and (y) the Intercreditor Agreement applicable to
the "Unit 2 Banks" (as defined in the
Intercreditor Agreement); and "Replacement Note
Holder" shall mean any of them. Anything in the
foregoing to the contrary notwithstanding, TNP, as
Replacement Note Holder of any Replacement Note,
shall have no voting rights under this Agreement
and shall not be considered in the determination
of "Majority Banks" for purposes of this
Agreement.
"Replacement Note Maturity Dates" shall mean
the First Replacement Note Maturity Date and with
respect to any other Replacement Note, such
Replacement Note's Permitted Demand Date or if no
demand is made on or within 90 days after such
Permitted Demand Date, January 1, 2050.
"Replacement Notes" shall mean the First
Replacement Note, any Subsequent Replacement Notes
and any Temporary Replacement Notes, and
"Replacement Note" shall mean any of them.
"Section 3 Effective Date" shall mean the
date on which all of the conditions set forth in
Section 2(b) of the First Amendment shall have
been satisfied.
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 25>
"Section 4.05 Closing" shall have the meaning
ascribed to such term in Section 4.05(d) hereof.
"Section 4.05 Closing Date" shall have the
meaning ascribed to such term in Section 4.05(d)
hereof.
"Secured Debenture Indentures" shall mean the
First Secured Debenture Indenture and any
Subsequent Secured Debenture Indentures, and
"Secured Debenture Indenture" shall mean any of
them.
"Secured Debentures" shall mean the First
Secured Debentures and any Subsequent Secured
Debentures (which may include subsequent series of
debentures issued under any indenture supplemental
to any Subsequent Secured Debenture Indenture),
and may refer to the Secured Debentures of any one
or more such series, as the context may require.
"Security Documents" shall mean,
collectively, the TNP Security Agreement, the
Subordination Agreement, the TGC II Mortgage, the
TNP Second Lien Mortgage, the Amendment Security
Documents and the First Amendment Security
Documents.
"Subject Date" shall have the meaning
ascribed to such term in Section 17.21(a) hereof.
"Subsequent Debenture Trustee" shall mean,
with respect to any Subsequent Secured Debenture
Indenture, the trustee, or any successor trustee,
under such Subsequent Secured Debenture Indenture
or, if there shall be no "trustee," per se, any
person serving in a capacity or performing
functions, in each case, similar to those of a
trustee under an indenture, regardless of the name
or legal characterization of said capacity or
functions and, in each case, any successor in such
capacity or performing such functions under such
Subsequent Secured Debenture Indenture.
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 26>
"Subsequent Replacement Loan" shall have the
meaning ascribed to such term in Section 4.05(e)
hereof.
"Subsequent Replacement Note" shall have the
meaning ascribed to such term in Section 4.05(e)
hereof.
"Subsequent Secured Debenture Indentures"
shall mean any indenture or agreement, other than
the First Secured Debenture Indenture, which
provides for the issuance of and sets out the
terms and conditions of any TNP debt which is to
be directly or indirectly secured by the
Collateral pursuant to and in accordance with
Section 4.05 hereof, whether or not said agreement
shall be denominated an "indenture" and whether or
not said debt shall be denominated "debentures,"
in each case, as the same may from time to time be
amended, modified or supplemented or its
provisions waived.
"Subsequent Secured Debentures" shall mean
any TNP debt, other than the First Secured
Debentures, which is to be directly or indirectly
secured by the Collateral pursuant to and in
accordance with Section 4.05 hereof, whether or
not said debt shall be denominated "debentures".
Said term may refer to Subsequent Secured
Debentures of any one or more such series, as the
context may require.
"Subsequent TGC II Modification and Extension
Agreement" shall mean a TGC II Modification and
Extension Agreement among the Agent, the
Collateral Agent, TNP and TGC II, substantially in
the form of Exhibit F to the First Amendment, and
otherwise duly completed.
"Temporary Replacement Loan" shall have the
meaning ascribed to such term in Section 4.05(f)
hereof.
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 27>
"Temporary Replacement Note" shall have the
meaning ascribed to such term in Section 4.05(f)
hereof.
"Ten Acre Releases" shall have the meaning
ascribed to such term in Section 17.20(c) hereof.
"TGC II Mortgage Modifications" shall mean
(a) the First TGC II Modification and Extension
Agreement among the Agent, the Collateral Agent,
Donald H. Snell as mortgage trustee, TNP and
TGC II, (b) the Second TGC II Modification and
Extension Agreement among the Agent, the
Collateral Agent, TNP and TGC II, (c) the Third
TGC II Modification and Extension Agreement among
the Agent, the Collateral Agent, TNP and TGC II,
(d) the Fourth TGC II Modification and Extension
Agreement, among the Agent, the Collateral Agent,
TNP and TGC II, (e) the Fifth TGC II Modification
and Extension Agreement among the Agent, the
Collateral Agent, TNP and TGC II, (f) each
Subsequent TGC II Modification and Extension
Agreement among the Agent, the Collateral Agent,
TNP and TGC II and (g) any other modification and
extension agreement among the Agent, the
Collateral Agent, TNP and TGC II, which shall
evidence of record that Replacement Loans and the
Replacement Notes, issued in accordance with
Section 4.05 hereof, are secured by the
Collateral.
"TNP Purchase Date" shall have the meaning
ascribed to such term in Section 4.05(f) hereof.
"TNP Purchase Notice" shall have the meaning
ascribed to such term in Section 4.05(f) hereof.
"TNP Second Lien Mortgage Modification No. 2"
shall mean the Second Lien Mortgage and Deed of
Trust (with Security Agreement) Modification,
Extension and Amendment Agreement No. 2 among the
Agent and TNP, substantially in the form of
Exhibit G to the First Amendment.";
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 28>
(iii) The definition of "Amendment Documents" shall be
amended by inserting the word "First" before the
term "Replacement Note";
(iv) Delete clause (c) in the definition of "Interest
Payment Date" and substitute in its place the
following:
"(c) as to (i) the First Replacement Loan,
each date on which TNP is obligated to make a
deposit of cash collateral in respect of interest
on the First Secured Debentures pursuant to
Section 1119 of the First Secured Debenture
Indenture and (ii) any Subsequent Replacement
Loan, each date on which TNP is obligated to make
a deposit of cash collateral in respect of
interest on any Subsequent Secured Debentures
pursuant to provisions of the applicable
Subsequent Secured Debenture Indenture similar to
the provisions referred to in subclause (i) of
this clause (c) and providing for the deposit of
cash collateral in respect of payment of
interest.";
(v) The definition of "Loans" shall be amended by
adding an "s" to the end of the term "Replacement
Loan";
(vi) The definition of "Majority Banks" shall be
amended by adding an "s" to the end of the term
"Replacement Note Holder";
(vii) The definition of "Net Proceeds" shall be amended
by inserting the phrase "when used in Section
8.02(c) hereof," after the term "Net Proceeds";
(viii) The definition of "New Debt Securities" shall be
amended by inserting the word "First" before the
term "Secured Debentures";
(ix) The definition of "Notes" shall be amended by
adding an "s" to the end of term "Replacement
Note";
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 29>
(x) Delete clause (b) in the definition of "Post-
Default Rate" and substitute in its place the
following:
"(b) Subject to Section 4.05(i) hereof, in
respect of any principal of any Replacement Loan
or Replacement Note, a rate per annum, as of any
date of determination, equal to the interest rate
applicable to (x) the Secured Debentures to which
such Replacement Loan relates as of such date of
determination as specified in the applicable
Secured Debenture Indenture pursuant to which such
Secured Debentures were issued or (y) if such
Replacement Loan does not as of such date of
determination serve as the basis for the issuance
of any outstanding Secured Debentures, a rate per
annum, as of any date of determination, equal to
the Prime Rate.";
(xi) The definition of "Principal Office" shall be
amended by adding an "s" to the end of the term
"Replacement Note Holder";
(xii) The definition of "Project Creditors" shall be
amended by (A) deleting the phrase ", after the
Extension Date," and (B) adding an "s" to the end
of the term "Replacement Note Holder";
(xiii) The definition of "Project Documents" shall be
amended by (A) adding an "s" to the end of the
term "Replacement Note" and (B) inserting the term
"the First Amendment Documents," after the term
"this Agreement,";
(xiv) The definition of "Secured Parties" shall be
amended by adding an "s" to the end of the term
"Replacement Note Holder"; and
(xv) The definition of "Voting Participant Notice"
shall be amended by (A) substituting the word "a"
for "the" before the first occurrence of the term
"Replacement Note Holder" and (B) substituting the
word "such" for "the" before the second occurrence
of such term.
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 30>
(e) Section 1.02 of the Credit Agreement shall be amended
by (A) deleting the phrase "the Replacement Note
Holder" in the second sentence thereof and inserting in
lieu thereof the phrase "any of the Replacement Note
Holders" and (B) deleting the phrase "the Secured
Debenture Indenture" in the third sentence thereof and
inserting in lieu thereof the phrase "any of the
Secured Debenture Indentures".
(f) Section 2 of the Credit Agreement shall be amended by
inserting the phrase "and, with respect to a Section
4.05 Closing, the purchase by TNP of Project Loans on a
TNP Purchase Date or the purchase by the Designee of
Project Loans on the Designee Purchase Date (in each
case, assuming the due execution and delivery of
documents required to be delivered in connection
therewith and the performance of other conditions
precedent thereto by the parties (other than TNP or TGC
II) thereto), the applicable Section 4.05 Closing Date,
TNP Purchase Date or Designee Purchase Date" after each
occurrence of the term "Extension Date" therein.
(g) Section 2.10 of the Credit Agreement shall be amended
by inserting after the word "Except" the following:
"(i) for the replacement of Project Notes by
Replacement Notes, and (ii)".
(h) Section 2.22 of the Credit Agreement shall be amended
by inserting after the word "Except" the following:
"(i) for the replacement of Project Notes by
Replacement Notes, and (ii)".
(i) Section 4.01 of the Credit Agreement shall be deleted
in its entirety and replaced with the following:
"SECTION 4.01. Existing Loans; New Advance
Commitments and New Advances.
(a) Existing Loans. The parties hereto
acknowledge, confirm and agree that there are
outstanding on the First Amendment Effective Date loans
(the "Existing Loans") under the Credit Agreement in an
aggregate principal amount of $223,500,000, the
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 31>
principal amount of such Existing Loans held by banks
(the "Existing Banks") on the First Amendment Effective Date
being the amount set forth opposite the name of such Existing
Bank's name on the signature pages of the First Amendment under
the caption "Existing Loan". Prior to the Bond Proceeds Payment
Date, the Existing Loans shall be evidenced by notes (the
"Existing Notes") held by the Existing Banks and on and after the
Bond Proceeds Payment Date, the Existing Loans shall be evidenced
by the New Project Notes held by the Existing Banks. The
Existing Loans may be continued or Converted pursuant to Section
4.04 hereof. TGC II hereby agrees to repay the principal of, and
to pay interest on, the Existing Loans as set forth in this
Agreement. No Existing Bank shall be entitled to have its
Existing Note subdivided, by exchange or otherwise, except in
connection with a sale, assignment or transfer of all or any
portion of such Existing Bank's Loans and Notes pursuant to
Section 16.01 hereof. Each Bank hereby waives the aggregate
amount (if any) payable to such Bank under Section 7.05 hereof as
a result of TGC II's prepayments of Existing Project Loans made
on the Bond Proceeds Payment Date.
(b) New Advances.
(i) New Advances. Each New Advance Bank
severally agrees, on the terms and conditions of this
Agreement, to make a single loan to TGC II in Dollars
on the New Advance Closing Date in an aggregate
principal amount up to but not exceeding the amount of
the New Advance Commitment of such New Advance Bank
(such loans being herein called "New Advances"). Any
portion of the New Advance Commitments not used on the
New Advance Closing Date shall be automatically
terminated on the New Advance Closing Date. The New
Advance Commitments once terminated may not be
reinstated. The New Advances may be continued or
Converted pursuant to Section 4.04 hereof. TGC II
hereby agrees to repay the principal of, and to pay
interest on, the New Advances as set forth in this
Agreement. The New Advances made by each New Advance
Bank shall be evidenced by the New Project Note of such
New Advance Bank.
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 32>
(ii) Borrowings and Notices.
(A) If TGC II shall have given the Agent
notice of borrowing in accordance with clause (C)
of this Subsection 4.01(b)(ii), not later than
1:00 p.m. New York time on the New Advance Closing
Date, each New Advance Bank shall make available
the amount of the New Advance or New Advances to
be made by it on such date to the Agent, at
account number NYAO-DI-900-9-000002 maintained by
the Agent with Chase at the Principal Office, in
immediately available funds, for account of TGC
II.
(B) TGC II hereby irrevocably instructs the
Agent to apply the proceeds of the New Advances to
the immediate prepayment of a like principal
amount of Existing Loans of the Existing Banks.
Notwithstanding anything contained herein to the
contrary, such prepayment shall not result in an
increase in the Available Supplemental Advance
Commitment.
(C) A notice by TGC II to the Agent of
borrowings of New Advances shall be irrevocable
and shall be effective only if received by the
Agent not later than 11:00 a.m. New York time one
Business Day (with respect to a Prime Rate Loan),
two Business Days (with respect to a CD Rate Loan)
and three Business Day (with respect to a
Eurodollar Rate Loan) prior to the New Advance
Closing Date, and the Agent shall give each New
Advance Bank prompt notice thereof. Such notice
shall specify the amount of New Advances to be
borrowed and the Type of New Advances to be
borrowed. Such notice shall specify the duration
of an Interest Period (if any) and the New Advance
to which such Interest Period is to relate. In
the event that TGC II fails to select the Type of
New Advance, or the duration of any Interest
Period for a Eurodollar Rate Loan or CD Rate Loan,
as provided in this subsection (ii), such New
Advance shall be made as a Prime Rate Loan.
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 33>
(D) Unless the Agent shall have received
notice from a New Advance Bank prior to the date
of any borrowing that such New Advance Bank will
not make available to the Agent the amount of such
New Advance Bank's New Advance Commitment, the
Agent may assume that such New Advance Bank has
made such portion available to the Agent on the
date of such borrowing in accordance with clause
(A) of Subsection 4.01(b)(ii) hereof and the Agent
may, in reliance upon such assumption, make
available to TGC II on such date a corresponding
amount. If the amount of such New Advance Bank's
New Advance Commitment is made available to the
Agent on a date after the date of such borrowing,
such New Advance Bank shall pay to the Agent on
demand an amount equal to the product of (A) the
daily average Federal Funds Rate during such
period as quoted by the Agent times (B) the amount
of such New Advance Bank's New Advance Commitment
times (C) the number of days that elapse from and
including the date of such borrowing to the date
on which such New Advance Bank's ratable portion
of such borrowing shall have been made available
to the Agent. A certificate of the Agent
submitted to any New Advance Bank with respect to
any amounts owing under this Section 4.01 shall be
conclusive absent manifest error. If the amount
of such New Advance Bank's New Advance Commitment
is not in fact made available to the Agent by such
New Advance Bank within three Business Days after
the date of such borrowing, TGC II agrees to pay
to the Agent, on demand, an amount equal to the
amount of such New Advance Bank's New Advance
Commitment together with interest thereon, for
each day from the date such amount was made
available to TGC II until the date such amount is
repaid to the Agent, at the interest rate
applicable at the time to the Loans comprising
such borrowing.
(iii) Several Obligations; Remedies Independent.
The failure of any New Advance Bank to make the New
Advance to be made by it on the date specified therefor
shall not relieve any other New Advance Bank of its
obligation to make its New Advance on such date, but
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 34>
neither any New Advance Bank nor the Agent shall be
responsible for the failure of any other New Advance Bank to make
a New Advance to be made by such other New Advance Bank, and no
New Advance Bank shall have any obligation to the Agent or any
other New Advance Bank for the failure by such New Advance Bank
to make any New Advance required to be made by such New Advance
Bank. The amounts payable by TGC II at any time hereunder and
under the New Project Notes to each New Advance Bank shall be a
separate and independent debt and each New Advance Bank shall be
entitled to protect and enforce its rights arising out of this
Agreement and the New Project Notes, and it shall not be
necessary for any other Bank or the Agent to consent to, or be
joined as an additional party in, any proceedings for such
purposes.".
(j) Section 4.05 of the Credit Agreement shall be amended
as follows:
(i) Subsection (a) shall be amended by inserting, with
or without underscoring as appropriate, the word
"First" before each occurrence of the following
terms: "Secured Debentures", "Replacement Loan"
and "Replacement Note";
(ii) Delete subsection (b) in its entirety; and
(iii) Add new subsections (b), (c), (d), (e), (f), (g),
(h) and (i) as follows:
"(b) (i) Subject to the provisions of
Section 4.05(b)(ii) hereof, additional or
replacement (A) indebtedness of TNP consisting of
Secured Debentures issued on the basis of (and
collateralized by) Replacement Notes issued
hereunder which are in turn secured by the
Collateral and/or (B) indebtedness of TGC II
consisting of (1) Project Loans and/or (2)
Replacement Loans (the indebtedness referred to in
the foregoing clauses (A) and (B) hereinafter
referred to as "Permitted Collateralized
Indebtedness") may be secured, directly or
indirectly, by the Collateral, provided that in
any such case the liens and security interests on
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 35>
the Collateral directly or indirectly securing
Permitted Collateralized Indebtedness are provided on
substantially the same terms and conditions as the liens and
security interests securing the Loans outstanding on the First
Amendment Effective Date and (B) the aggregate principal amount
of Loans outstanding hereunder may not at any time be greater
than the Collateral Coverage Maximum Amount at such time.
(ii) Until the payment, prepayment or
purchase in full of the Project Loans outstanding
on the First Amendment Effective Date, all
interest due and payable thereon and all other
amounts due and payable by TNP and TGC II to the
Banks under this Agreement (including, without
limitation, all Supplemental Advances) and the
other Project Documents and so long as any of the
First Secured Debentures remain outstanding, only
additional or replacement Permitted Collateralized
Indebtedness constituting debt securities (and not
bank debt) or Loans ("Section 4.05(b)(ii)
Permitted Collateralized Indebtedness") may be
secured, directly or indirectly, by the Collateral
and only if (A) the terms, conditions and
limitations of Section 4.05(b)(i) hereof are
satisfied and complied with, (B) the proceeds of
any such additional Permitted Section 4.05(b)(ii)
Permitted Collateralized Indebtedness of TNP are
applied to purchase Project Loans outstanding on
the First Amendment Effective Date or Supplemental
Advances, (C) any such additional or replacement
Permitted Section 4.05(b)(ii) Collateralized
Indebtedness of TNP (and the related Section
4.05(b)(ii) Collateralized Indebtedness of TGC II
constituting Replacement Loans) has maturities
longer than the Project Notes outstanding on the
First Amendment Effective Date and then
outstanding and not shorter than the maturity of
the First Secured Debentures then outstanding, (D)
any such additional or replacement Permitted
Section 4.05(b)(ii) Collateralized Indebtedness of
TNP (and the related Section 4.05(b)(ii)
Collateralized Indebtedness of TGC II constituting
Replacement Loans) is not subject to prepayment
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 36>
(except on the same terms and conditions of prepayment
applicable to the First Secured Debentures) prior to the maturity
date of the First Secured Debentures then outstanding and (E) any
such additional or replacement Permitted Section 4.05(b)(ii)
Collateralized Indebtedness of TNP (and the related Section
4.05(b)(ii) Collateralized Indebtedness of TGC II constituting
Replacement Loans) is subject to other covenants, terms,
conditions and restrictions for the benefit of the Secured
Parties substantially the same as those herein with respect to
the First Secured Debentures.
(c) Upon each occasion that TNP or TGC II
desires to issue additional or replacement
Permitted Collateralized Indebtedness (other than
Permitted Collateralized Indebtedness constituting
Project Loans):
(i) TNP and TGC II shall deliver, not
less than 30 days prior to the anticipated date of
the applicable Section 4.05 Closing (which shall
be a Business Day other than a Scheduled Reduction
Date), to the Agent (A) an initial notice (a "4.05
Notice") of its intention to issue such Permitted
Collateralized Indebtedness containing the
proposed terms of such Permitted Collateralized
Indebtedness and the terms of the security
therefor in sufficient detail to enable the Agent,
the Banks (if any Project Loans are outstanding)
and the Replacement Note Holders to determine
whether such terms comply with the terms and
conditions of Section 4.05(b) hereof, (B)
substantially final forms of each document,
certificate, title information report, Uniform
Commercial Code financing statement and other
instrument (the "Relevant Instruments") required
to be delivered by TNP or TGC II to the Agent
under this Section 4.05 in connection with the
applicable Section 4.05 Closing, (C) a certificate
signed by an Authorized Officer of each of TNP and
TGC II to the effect that such terms comply with
the terms and conditions of Section 4.05(b) hereof
and (D) an opinion of counsel for each of TNP and
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 37>
TGC II substantially in the form of Exhibit H to the
First Amendment. TNP and TGC II shall deliver promptly to the
Agent such additional information as the Agent may reasonably
request concerning the proposed transaction;
(ii) the Agent shall within five days of
receipt of a 4.05 Notice forward to each Bank (if
any Project Loans are outstanding) and each
Replacement Note Holder a copy of such 4.05 Notice
and a copy of each of the Relevant Instruments
received by the Agent in connection with such 4.05
Notice. Not later than ten days after receipt of
such 4.05 Notice from the Agent, the Majority
Banks or the Banks (if any Project Loans are
outstanding) holding at least 66-2/3% of the
outstanding principal amount of the Project Loans,
or the Agent acting with the consent of such
Banks, may forward to each of TNP and TGC II a
notice stating that, the terms and conditions of
the proposed Section 4.05 Closing do not meet the
terms and conditions set forth in Section 4.05
hereof and stating with reasonable specificity why
said terms and conditions do not meet the terms
and conditions of Section 4.05 hereof; and
(iii) TNP or TGC II shall (A) revise the
terms and conditions of the proposed transaction
such that the terms and conditions of Section 4.05
hereof are in fact satisfied by the terms and
conditions of the proposed transaction or (B)
cancel the proposed transaction.
(d) TNP shall designate a date that is a
Business Day for the closing of the proposed
transactions. The designation shall be made by
notice received by the Agent not less than 20 days
after the notice under Section 4.05(c)(i) and not
less than six days prior to such designated date.
The proposed transaction shall be effected at a
closing (a "Section 4.05 Closing") on such
designated date or such other date (a
"Section 4.05 Closing Date") as may be agreed upon
by TNP, TGC II and the Agent. Prior to or at each
Section 4.05 Closing:
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 38>
(i) TNP, TGC II, the Agent and, as
applicable, the Collateral Agent each shall sign
and deliver, in recordable form to the Agent and,
as applicable, the Collateral Agent, such
financing statements under the Uniform Commercial
Code as are necessary to protect, preserve and
maintain the priority of the liens contemplated by
the Security Documents and TNP and TGC II shall
provide (A) copies of Uniform Commercial Code
search reports with respect to each of TGC II and
TNP, as "debtor", in each jurisdiction in which
such financing statements are to be filed and (B)
all other instruments to be recorded or filed or
delivered in connection with such Section 4.05
Closing;
(ii) TGC II shall deliver to the Agent a
Subsequent TGC II Modification and Extension
Agreement and, at the sole cost of TNP and TGC II,
the Title Company shall have issued to the Agent,
a T-38 endorsement (or if a T-38 endorsement is no
longer available, such other endorsement as shall
have the same scope and purpose as a T-38
endorsement on the First Amendment Effective Date)
to the title policy or policies which insure the
lien of the TGC II Mortgage securing the Loans
outstanding hereunder and evidenced by Project
Notes or Replacement Notes on such date, each with
respect to such Subsequent TGC II Mortgage
Modification and Extension Agreement;
(iii) At the sole cost of TNP and TGC II,
the Title Company shall deliver to the Agent a
title information report, showing that good and
indefeasible title to the TGC II Mortgage Trust
Estate is vested in TGC II and that the TGC II
Mortgage constitutes a valid first mortgage lien
on the TGC II Mortgage Trust Estate and showing
that there are no intervening liens which would
adversely affect the priority of the liens
securing the Loans, subject only to the Permitted
Liens;
(iv) TNP and TGC II each shall deliver
to the Agent legal opinions of counsel to TNP and
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 39>
TGC II dated the applicable Section 4.05 Closing Date
and substantially in the forms of Exhibit I hereto;
(v) TNP and TGC II each shall deliver
to the Agent (A) certified copies of the
resolutions of its board of directors authorizing
the issuance of such Permitted Collateralized
Indebtedness and the collateral therefor furnished
pursuant to the terms and conditions of this
Section 4.05 and authorizing the execution,
delivery and performance of the documentation
necessary therefor and (B) certified copies of its
charter, bylaws, good standing certificates and
franchise tax certificates from the State of Texas
and all other places where necessary in light of
the business and properties it conducts and owns
and intends to conduct and own;
(vi) TNP and TGC II each shall deliver
to the Agent a certificate signed by an Authorized
Officer of TNP or TGC II, as applicable, and dated
the applicable Section 4.05 Closing Date
certifying the name, incumbency and signature of
each individual authorized to execute any
documents or certificates in connection with such
Section 4.05 Closing, upon which certificates and
documents the Secured Parties may conclusively
rely;
(vii) TNP and TGC II each shall deliver
to the Agent a certificate signed by an Authorized
Officer of TNP or TGC II, as applicable, and dated
the applicable Section 4.05 Closing Date
certifying that there shall be no injunction,
writ, preliminary restraining order or any other
order of any nature issued by any arbitrator,
court or other governmental authority directing
that the transactions conducted, or the
transactions contemplated in the documentation
executed and/or delivered, at such Section 4.05
Closing not be consummated as herein or therein
provided and certifying further, except as
disclosed herein, there shall be no material
litigation, investigation or proceeding of or
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 40>
before any arbitrator, court or other governmental
authority pending or (to the best of such Authorized Officer's
knowledge, threatened) against TNP or TGC II or affecting any of
their respective properties, rights, revenues or assets, or the
Project or any of the transactions to be effected at such Section
4.05 Closing;
(viii) TNP and TGC II each shall deliver
to the Agent a certificate signed by an Authorized
Officer of TNP or TGC II, as applicable, and dated
the applicable Section 4.05 Closing Date
certifying that (A) the representations and
warranties of each of TNP and TGC II, as
applicable, contained in Section 2 hereof and in
each of the other Project Documents to which such
Person is a party shall be true and correct on and
as of such Section 4.05 Closing Date as if made on
and as of such date (or, if stated to have been
made solely as of an earlier date, were true and
correct as of such earlier date), (B) no Default
hereunder, and no default by either TNP or TGC II
under any of the other Project Documents to which
either TNP or TGC II is a party, has occurred and
is continuing on such date and (C) to the best of
such Authorized Officer's knowledge, no default by
any other Person to any other Project Document has
occurred and is continuing on such date;
(ix) TNP and TGC II each shall deliver
to the Agent a certificate signed by an Authorized
Officer of TNP or TGC II, as applicable,
certifying that (A) it has obtained all Government
Approvals necessary under applicable laws and
regulations in connection with each of the
transactions contemplated by the applicable
Section 4.05 Closing and (B) all such Government
Approvals have been duly obtained, were validly
issued and are held by and in the name of TNP or
TGC II, as applicable, and are final, in full
force and effect and not subject to appeal; and
(x) TNP and TGC II shall (A) if the
transactions then consummated involve a refunding
of existing Secured Debentures already secured by
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 41>
the Collateral, pay to the relevant Debenture Trustee
in Dollars, in immediately available funds, all amounts due and
payable under the applicable Secured Debenture Indenture, (B) if
the transactions then consummated involve the purchase by TNP or
TGC II of Existing Project Loans, pay to the Agent in Dollars, in
immediately available funds, the purchase price for the Existing
Project Loans then being purchased pro rata from the Existing
Project Banks and (C) if the transactions then consummated
involve the purchase by TNP or TGC II of Supplemental Advances,
pay to the Agent in Dollars, in immediately available funds, the
purchase price for the Supplemental Advances then being purchased
pro rata from the Supplemental Advance Banks.
After the payment, prepayment or purchase in full
of the Project Loans outstanding on the First
Amendment Effective Date, all interest due and
payable thereon and all other amounts due and
payable by TNP and TGC II to the Banks under this
Agreement (including, without limitation, all
Supplemental Advances) and the other Project
Documents, the Agent shall be entitled to rely
solely upon the certificates and opinions of
counsel delivered hereunder in making any
determinations required to be made by the Agent in
this Section 4.05.
(e) If the transactions then consummated
involve the purchase by TNP of Existing Project
Loans or Supplemental Advances, then on each such
Section 4.05 Closing Date (and, if such Section
4.05 Closing Date is prior to the Section 3
Effective Date, subject to Section 5.02(b)(iii)
hereof) TNP shall purchase from each of the Banks
holding Project Loans of the applicable Class (pro
rata according to the aggregate outstanding
principal amount of each such Bank's Project Loans
of such Class held by such Bank) a portion of such
Bank's Project Loans of the applicable Class and
each Bank shall sell to TNP (without recourse and
without any representation or warranty whatsoever
other than as to title and absence of liens) such
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 42>
pro rata portion of such Bank's Project Loans of the
applicable Class such that the aggregate principal amount of
Project Loans of the applicable Class so purchased is equal to
the amount of the proceeds (at the election of TNP, net of any
offering or similar transaction costs) from any Subsequent
Secured Debentures issued on such Section 4.05 Closing Date. The
purchase price for the Project Loans of the applicable Class so
purchased by TNP shall be equal to the principal amount thereof.
Simultaneously with the sale of each Bank's Project Loans of the
applicable Class to TNP, TGC II shall pay to the Agent, for the
account of each Bank holding Project Loans of applicable Class,
all accrued and unpaid interest on such portion of such Bank's
Project Loans of the applicable Class to be sold to TNP plus the
aggregate amount (if any) which would have been payable to each
Bank holding Project Loans of applicable Class under Section 7.05
hereof had such portion of the Project Loans of the applicable
Class then been prepaid rather than purchased. TNP shall pay the
aggregate amount of such purchase price at such Section 4.05
Closing to the Agent, for the account of each respective Bank
holding Project Loans of the applicable Class, in Dollars in
immediately available funds. Effective immediately upon the
payment by TNP of such purchase price, the aggregate principal
amount of the outstanding Project Loans of the applicable Class
so purchased by TNP shall be converted into a loan or loans (with
respect to such purchase of Project Loans of the applicable Class
from the proceeds of any Subsequent Secured Debentures, in each
case, whether one or more, each a "Subsequent Replacement Loan")
of equal principal amount. TGC II shall execute and deliver to
TNP at such Section 4.05 Closing a promissory note or notes (with
respect to the purchase of each Subsequent Replacement Loan, in
each case, whether one or more, each a "Subsequent Replacement
Note") payable to TNP or its registered assigns in an aggregate
principal amount equal to the aggregate principal amount of such
Subsequent Replacement
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 43>
Loan, as applicable, and, in each case, substantially
in the form of Exhibit B to the First Amendment and otherwise
duly completed. Any such Subsequent Replacement Notes shall be
dated, and shall bear interest from, the Section 4.05 Closing
Date on which any such Subsequent Replacement Notes, as
applicable, are issued. No Replacement Note Holder shall be
entitled to have its Replacement Note subdivided, by exchange for
promissory notes of lesser denominations or otherwise, except in
connection with a Section 4.05 Closing or in connection with an
assignment to TNP of a portion of a Replacement Loan and
Replacement Note in conjunction with a release of a Pledged
Replacement Note (as defined in the definition of "Replacement
Note Holder" in Section 1.01 hereof) expressly contemplated by
the related Secured Debenture Indenture. The indebtedness
evidenced by any Subsequent Replacement Notes, together with the
indebtedness evidenced by the First Replacement Note and by the
Project Notes, shall be secured by the Security Documents. Each
Bank shall, prior to any transfer of such Bank's Project Note,
place on such Project Note a notation to the effect that a
portion of the indebtedness evidenced thereby has been
transferred to TNP pursuant to this Section 4.05; provided, that,
if TNP purchases the entire outstanding principal amount of a
Bank's Project Loans and TNP pays to such Bank all interest due
and payable on such Project Loans and all other amounts due and
payable by TNP and TGC II to such Bank under this Agreement and
the other Project Documents, such Bank shall endorse and deliver
its Project Note to TNP and, upon endorsement to TNP of all such
Project Notes (x) such Project Notes shall automatically, without
further action by any Person, become Subsequent Replacement Notes
(and the indebtedness evidenced thereby shall automatically,
without further action by any Person, become Subsequent
Replacement Loans) having an outstanding principal amount equal
to the outstanding principal amount of the Project Loans at the
time of such purchase and shall automatically, without further
action by any
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 44>
Person, have the Replacement Note Maturity Date, the
interest rate (including without limitation the Post-Default
Rate) and all other terms and conditions contemplated by this
Agreement to be applicable to a Subsequent Replacement Loan and a
Subsequent Replacement Note that do not at such time serve as the
basis for the issuance of outstanding Secured Debentures and (y)
such Project Notes (and the indebtedness evidenced thereby) as so
recharacterized as Subsequent Replacement Notes and Subsequent
Replacement Loans shall be available to TNP and TGC II for use in
conjunction with a future Section 4.05 Closing (and in connection
therewith, such Project Note as so recharacterized as a
Subsequent Replacement Note may, at the option of TNP and TGC II,
be replaced by a replacement Replacement Note in the form of
Exhibit B to the First Amendment).
(f) (i) Subject to the provisions of this
clause (f), TNP shall have the right to purchase
Project Loans of any Class from the Banks at any
time or from time to time provided that: (A) TNP
shall give the Agent notice of each such purchase
which notice shall be irrevocable, shall be
effective only if received by the Agent not later
than 12:00 noon New York time five Business Days
prior to the date of the purchase and shall
specify the aggregate principal amount and Class
of the Project Loans to be purchased and the date
of purchase (which shall be a Business Day) (each
such notice, a "TNP Purchase Notice" and each such
date of purchase, a "TNP Purchase Date"), (B) TNP
shall not be entitled to designate a Scheduled
Reduction Date as a TNP Purchase Date and (C) TNP
shall satisfy the conditions precedent to such
purchase set forth in clause (ii) below. The
Agent shall promptly notify the Banks and each
Replacement Note Holder of the contents of each
TNP Purchase Notice. On each TNP Purchase Date,
TNP shall purchase from each of the Banks holding
Project Loans of the applicable Class (pro rata
according to the aggregate outstanding principal
amount of each such Bank's Project Loans of such
Class held by such Bank) a portion of such Bank's
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 45>
Project Loans of the applicable Class and each Bank
shall sell to TNP (without recourse and without any
representation or warranty whatsoever other than as to title and
absence of liens) such pro rata portion of such Bank's Project
Loans of the applicable Class such that the aggregate principal
amount of Project Loans of the applicable Class so purchased is
equal to the amount of Project Loans of the applicable Class
specified for purchase in the TNP Purchase Notice related to such
TNP Purchase Date. The purchase price for the Project Loans of
the applicable Class so purchased by TNP shall be equal to the
principal amount thereof. Simultaneously with the sale of each
Bank's Project Loans of the applicable Class to TNP, TGC II shall
pay to the Agent, for the account of each Bank holding Project
Loans of applicable Class, all accrued and unpaid interest on
such portion of such Bank's Project Loans of the applicable Class
to be sold to TNP plus the aggregate amount (if any) which would
have been payable to each Bank holding Project Loans of
applicable Class under Section 7.05 hereof had such portion of
the Project Loans of the applicable Class then been prepaid
rather than purchased. TNP shall pay the aggregate amount of
such purchase price on such TNP Purchase Date to the Agent, for
the account of each respective Bank holding Project Loans of the
applicable Class, in Dollars in immediately available funds.
Effective immediately upon the payment by TNP of such purchase
price, the aggregate principal amount of the outstanding Project
Loans of the applicable Class so purchased by TNP shall be
converted into a loan or loans (with respect to each such
purchase of Project Loans of the applicable Class, each a
"Temporary Replacement Loan") of equal principal amount. TGC II
shall execute and deliver to TNP on such TNP Purchase Date a
promissory note or notes (with respect to the purchase of each
Temporary Replacement Loan, whether one or more, the "Temporary
Replacement Note") payable to TNP or its registered assigns in an
aggregate principal amount equal to the aggregate principal
amount of
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 46>
such Temporary Replacement Loan and, in each case,
substantially in the form of Exhibit B hereto and otherwise duly
completed. Each Temporary Replacement Note shall be dated, and
shall bear interest from, the TNP Purchase Date on which such
Temporary Replacement Note is issued. The indebtedness evidenced
by any Temporary Replacement Notes, together with the
indebtedness evidenced by the other Replacement Notes and by the
Project Notes, shall be secured by the Security Documents. Each
Bank shall, prior to any transfer of such Bank's Project Note,
place on such Project Note a notation to the effect that a
portion of the indebtedness evidenced thereby has been
transferred to TNP pursuant to this clause (f); provided, that,
if TNP purchases the entire outstanding principal amount of a
Bank's Project Loans and TNP pays to such Bank all interest due
and payable on such Project Loans and all other amounts due and
payable by TNP and TGC II to such Bank under this Agreement and
the other Project Documents, such Bank shall endorse and deliver
its Project Note to TNP and, upon endorsement to TNP of all such
Project Notes (x) such Project Notes shall automatically, without
further action by any Person, become Subsequent Replacement Notes
(and the indebtedness evidenced thereby shall automatically,
without further action by any Person, become Subsequent
Replacement Loans) having an outstanding principal amount equal
to the outstanding principal amount of the Project Loans at the
time of such purchase and shall automatically, without further
action by any Person, have the Replacement Note Maturity Date,
the interest rate (including without limitation the Post-Default
Rate) and all other terms and conditions contemplated by this
Agreement to be applicable to a Subsequent Replacement Loan and a
Subsequent Replacement Note that do not at such time serve as the
basis for the issuance of outstanding Secured Debentures and (y)
such Project Notes (and the indebtedness evidenced thereby) as so
recharacterized as Subsequent Replacement Notes and Subsequent
Replacement Loans shall be available to TNP and TGC II for use in
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 47>
conjunction with a future Section 4.05 Closing (and in
connection therewith, such Project Note as so recharacterized as
a Subsequent Replacement Note may, at the option of TNP and TGC
II, be replaced by a replacement Replacement Note in the form of
Exhibit B to the First Amendment). Temporary Replacement Loans
and Temporary Replacement Notes shall be held by TNP and may not
be assigned in whole or in part, and TNP shall not be entitled to
have any Temporary Replacement Note subdivided, by exchange for
promissory notes of lesser denominations or otherwise, except in
conjunction with a future Section 4.05 Closing in which event the
portion of such Temporary Replacement Loans and Temporary
Replacement Notes assigned to a Replacement Note Holder or
Replacement Note Holders shall be and become Subsequent
Replacement Loans and Subsequent Replacement Notes for all
purposes under this Agreement.
(ii) Prior to or on each TNP Purchase
Date:
(A) TNP, TGC II, the Agent and, as
applicable, the Collateral Agent each shall
sign and deliver, in recordable form to the
Agent and, as applicable, the Collateral
Agent, financing statements under the Uniform
Commercial Code as are necessary to protect,
preserve and maintain the priority of liens
contemplated by the Security Documents and
TNP and TGC II shall provide (A) copies of
Uniform Commercial Code search reports with
respect to each of TGC II and TNP, as
"debtor", in each jurisdiction in which such
financing statements are to be filed and (B)
all other instruments to be recorded or filed
or delivered in connection with the purchases
of Project Loans to be made on such TNP
Purchase Date;
(B) TGC II shall deliver to the Agent a
Subsequent TGC II Modification and Extension
Agreement and, at the sole cost of TNP and
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 48>
TGC II, the Title Company shall have issued to the
Agent, a T-38 endorsement (or if a T-38 endorsement is no longer
available, such other endorsement as shall have the same scope
and purpose as a T-38 endorsement on the First Amendment
Effective Date) to the title policy or policies which insure the
lien of the TGC II Mortgage securing the Loans outstanding
hereunder and evidenced by Project Notes or Replacement Notes on
such date, each with respect to such Subsequent TGC II Mortgage
Modification and Extension Agreement;
(C) At the sole cost of TNP and TGC II,
the Title Company shall deliver to the Agent
a title information report, showing that good
and indefeasible title to the TGC II Mortgage
Trust Estate is vested in TGC II and that the
TGC II Mortgage constitutes a valid first
mortgage lien on the TGC II Mortgage Trust
Estate and showing that there are no
intervening liens which would adversely
affect the priority of the liens securing the
Loans, subject only to the Permitted Liens;
and
(D) TNP or TGC II shall deliver to the
Agent such other certificates, documents or
other information in connection with the
purchases of Project Loans to be made on such
TNP Purchase Date as the Agent may reasonably
determine are necessary to effect the
transactions contemplated on such TNP
Purchase Date.
(g) (i) Subject to the provisions of this
clause (g), TNP shall have the right to cause a
purchase by one or more banks or other financial
institutions (or an agent on behalf of one or more
banks or other financial institutions) designated
by TNP (such banks or financial institutions or
such agent herein being collectively referred to
as the "Designee") of all (but not part) of the
outstanding Project Loans from the Banks at any
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 49>
time or from time to time provided that: (A) TNP shall
give the Agent notice of each such purchase which notice shall be
irrevocable, shall be effective only if received by the Agent not
later than 12:00 noon New York time five Business Days prior to
the date of the purchase (which shall be a Business Day) (each
such notice, a "Designee Purchase Notice" and each such date of
purchase, a "Designee Purchase Date"), (B) TNP shall not be
entitled to designate a Scheduled Reduction Date as a Designee
Purchase Date and (C) TNP shall satisfy the conditions precedent
to such purchase set forth in clause (ii) below. The Agent shall
promptly notify the Banks and each Replacement Note Holder of the
contents of each Designee Purchase Notice. On each Designee
Purchase Date, the Designee shall purchase from each of the Banks
all of such Bank's Project Loans and each Bank shall sell to the
Designee (without recourse and without any representation or
warranty whatsoever other than as to title and absence of liens)
all of such Bank's Project Loans. The purchase price for the
Project Loans so purchased by the Designee shall be equal to the
principal amount thereof. Simultaneously with the sale of each
Bank's Project Loans to the Designee, TGC II shall pay to the
Agent, for the account of each Bank all accrued and unpaid
interest on such Bank's Project Loans plus the aggregate amount
(if any) which would have been payable to each Bank under Section
7.05 hereof had such Project Loans then been prepaid rather than
purchased. The Designee shall pay the aggregate amount of such
purchase price on such Designee Purchase Date to the Agent, for
the account of the Banks, in Dollars in immediately available
funds. Each Bank shall, prior to any transfer of such Bank's
Project Note, place on such Project Note a notation to the effect
that the indebtedness evidenced thereby has been transferred to
the Designee pursuant to this clause (g).
(ii) Prior to or on each Designee
Purchase Date:
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 50>
(A) TNP, TGC II, the Agent and, as
applicable, the Collateral Agent each shall
sign and deliver, in recordable form to the
Agent and, as applicable, the Collateral
Agent, financing statements under the Uniform
Commercial Code as are necessary to protect,
preserve and maintain the priority of the
liens contemplated by the Security Documents
and TNP and TGC II shall provide (A) copies
of Uniform Commercial Code search reports
with respect to each of TGC II and TNP, as
"debtor", in each jurisdiction in which such
financing statements are to be filed and (B)
all other instruments to be recorded or filed
or delivered in connection with the purchases
of Project Loans to be made on such Designee
Purchase Date;
(B) TGC II shall deliver to the Agent a
Subsequent TGC II Modification and Extension
Agreement and, at the sole cost of TNP and
TGC II, the Title Company shall have issued
to the Agent, a T-38 endorsement (or if a
T-38 endorsement is no longer available, such
other endorsement as shall have the same
scope and purpose as a T-38 endorsement on
the First Amendment Effective Date) to the
title policy or policies which insure the
lien of the TGC II Mortgage securing the
Loans outstanding hereunder and evidenced by
Project Notes or Replacement Notes on such
date, each with respect to such Subsequent
TGC II Mortgage Modification and Extension
Agreement;
(C) At the sole cost of TNP and TGC II,
the Title Company shall deliver to the Agent
a title information report, showing that good
and indefeasible title to the TGC II Mortgage
Trust Estate is vested in TGC II and that the
TGC II Mortgage constitutes a valid first
mortgage lien on the TGC II Mortgage Trust
Estate and showing that there are no
intervening liens which would adversely
affect the priority of the liens securing the
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 51>
Loans, subject only to the Permitted Liens; and
(D) TNP or TGC II shall deliver to the
Agent such other certificates, documents or
other information in connection with the
purchases of Project Loans to be made on such
Designee Purchase Date as the Agent may
reasonably determine are necessary to effect
the transactions contemplated on such
Designee Purchase Date.
(h) The Agent will keep at its principal
office in New York, New York, or such other office
as the Agent may designate in writing to the
Replacement Note Holders, a register (the
"Register") in which the Agent will provide for
the registration of Replacement Loans and
Replacement Notes and the registration of
transfers of Replacement Loans and Replacement
Notes. In the event that any Replacement Loan or
any Replacement Note is held by TNP or serves as
the basis for the issuance of any outstanding
Secured Debentures in accordance with Section 4.05
hereof, the applicable Replacement Note Holder
shall notify the Agent for notation in the
Register of the Permitted Demand Date, the
interest rate and the Post-Default Rate applicable
to such Replacement Loan or Replacement Note. The
Agent may treat the Person in whose name any
Replacement Loan or Replacement Note is registered
in such Register as the owner thereof for the
purpose of receiving payment of the principal of
and the premium, if any, and interest on such
Replacement Loan or Replacement Note and for all
other purposes under this Agreement. The Agent
may rely upon the information set forth in the
Register for any determination of the Permitted
Demand Date, the interest rate and the Post-
Default Rate applicable to any Replacement Loan or
Replacement Note required under or in connection
with this Agreement.
(i) If, on or before any date on which
TGC II is obligated to make any payment of any
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 52>
principal of or interest under a Replacement Note, no
Event of Default (as defined in the Secured Debenture Indenture
the lien of which attaches to such Replacement Note) shall have
occurred and be continuing and TNP shall have delivered (i) if
such Replacement Note is the First Replacement Note, to the First
Debenture Trustee pursuant to Section 1119 of the First Secured
Debenture Indenture and (ii) if such Replacement Note is a
Subsequent Replacement Note, to the applicable Debenture Trustee
pursuant to a provision in the applicable Secured Debenture
Indenture similar to the provision referred to in subclause (i)
of this clause (i), cash to be held as collateral security under
the applicable Secured Debenture Indenture that is at least equal
in amount to the payment owing on such date by TGC II under such
Replacement Note, then TGC II shall not be required to make such
payment under such Replacement Note; provided, that, if at any
time and for any reason any such payment by TNP is rescinded or
otherwise required to be restored by the applicable Debenture
Trustee or any holder of the applicable Secured Debentures,
whether as a result of bankruptcy or reorganization proceedings
or otherwise, immediately upon such rescission or restoration
being imposed or required
(A) an amount equal to the amount that has been
rescinded or is required to be restored shall
become immediately due and payable by TGC II
under such Replacement Note, and
(B) TGC II shall pay to such Replacement Note
Holder an amount equal to all reasonable
costs and expenses (including, without
limitation, attorney's fees and any interest
payable by the applicable Debenture Trustee
in connection with such rescission or
restoration).
In the event that any Secured Debenture is paid in
full by TNP and, by operation of this clause (i),
TGC II is not obligated to make further payments
of principal and interest under or with respect to
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 53>
the related Replacement Loan and Replacement Note, (x)
the indebtedness of TGC II under this Agreement with respect to
such Replacement Loan and Replacement Note shall not be
discharged but shall be continued, (y) such Replacement Loan and
Replacement Note, shall automatically, without further action by
any Person, have the Replacement Note Maturity Date, the interest
rate (including without limitation the Post-Default Rate) and all
other terms and conditions contemplated by this Agreement to be
applicable to a Subsequent Replacement Loan and a Subsequent
Replacement Note that do not at such time serve as the basis for
the issuance of outstanding Secured Debentures and (z) such
Replacement Loan and Replacement Note shall be available to TNP
and TGC II for use in conjunction with a future Section 4.05
Closing (and in connection therewith, such Replacement Note may,
at the option of TNP and TGC II, be replaced by a replacement
Replacement Note in the form of Exhibit B to the First
Amendment).
Notwithstanding any other provision in this
Section 4.05 to the contrary, until the payment,
prepayment or purchase in full of the Project
Loans outstanding on the First Amendment Effective
Date, all interest due and payable thereon and all
other amounts due and payable by TNP and TGC II to
the Banks under this Agreement (including, without
limitation, all Supplemental Advances) and the
other Project Documents, no Section 4.05 Closing,
closing contemplated by Section 4.50(f) hereof or
closing contemplated by Section 4.05(g) hereof
shall occur unless TNP and TGC II shall each have
delivered to the Agent such other certificates,
documents or other information in connection
therewith as the Agent may reasonably determine
are necessary to effect the transactions
contemplated thereby.".
(k) Add Section 4.06 of the Credit Agreement as follows:
"SECTION 4.06. New Project Notes.
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 54>
(i) On and after the Bond Proceeds Payment Date,
the Existing Loans, the New Advances and the
Supplemental Advances made by each Bank shall be
evidenced by a single promissory note of TGC II
substantially in the form of Exhibit A to the First
Amendment, dated the Bond Proceeds Payment Date,
payable to such Bank in a principal amount equal to the
amount of its Aggregate Commitment as originally in
effect and otherwise duly completed.
(ii) The date, amount, Type, interest rate and
duration of Interest Period (if applicable) of each
Existing Loan, New Advance (if any) or Supplemental
Advance (if any) made by each Bank to TGC II, and each
payment made on account of the principal thereof, shall
be recorded by such Bank on its books and, prior to any
transfer of the New Project Note held by it, endorsed
by such Bank on the schedule attached to such New
Project Note or any continuation thereof; provided that
the failure of such Bank to make any such recordation
or endorsement shall not affect the obligations of TGC
II to make a payment when due of any amount owing
hereunder or under such New Project Note in respect of
the Existing Loans, the New Advances (if any) or
Supplemental Advances (if any).
(iii) No Bank shall be entitled to have its New
Project Note subdivided, by exchange for promissory
notes of lesser denominations or otherwise, except in
connection with a sale, assignment or transfer of all
or any portion of such Bank's Aggregate Commitment,
Project Loans and New Project Note pursuant to
Section 16.01 hereof.".
(l) Section 5.01 of the Credit Agreement shall be deleted
in its entirety and replaced with the following:
"SECTION 5.01. [INTENTIONALLY OMITTED].".
(m) Section 5.02 of the Credit Agreement shall be amended
as follows:
(A) in subsection (b)(i) insert, after the words
"TGC II shall repay", the words "or TNP shall
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 55>
purchase in accordance with the terms and conditions of
Section 4.05 hereof,";
(B) in subsections (b)(i)(C) insert the word
"Existing" before each occurrence of the term
"Project Loan";
(C) delete the word "and" at the end of subsection
(b)(i)(C) thereof;
(D) in subsection (b)(i)(D), substitute the word
"each" for the word "the" before the term
"Replacement Note" and substitute the word
"maturing" for the word "outstanding";
(E) delete the preface of subsection (b)(iii) in its
entirety and substitute in its place the
following:
"If all of the Project Loans under, and as defined
in, the Unit 1 Credit Agreement have been paid,
prepaid or purchased by TGC or TNP, then on each
date upon which TNP receives the proceeds of any
Permanent Financing (other than the proceeds from
the issuance of the New Debt Securities which have
been applied in accordance with Section 8.02(c)
hereof and the proceeds from the issuance of the
Second Secured Debentures, as defined in the
Unit 1 Credit Agreement, as amended by Amendment
No. 1 thereto, and the first mortgage bonds issued
in connection therewith which have been applied in
accordance with Section 2(b)(i) of the First
Amendment), TNP or TGC II shall prepay or purchase
the Existing Project Loans in an amount equal to
(a) 100% (except as provided in subparagraph (C)
hereof) of the net proceeds of such Permanent
Financing less (b) all amounts prepaid since the
date of the previous prepayment under this Section
5.02(b)(iii), except to the extent such
proceeds:";
(F) in subsection (b)(iii)(B)(aa) delete the
parenthetical expression "(other than the Secured
Debentures)" in its entirety;
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 56>
(G) delete subsection (b)(iii)(D) in its entirety,
substitute a "." for the phrase "; or" at the end
of subsection (b)(iii)(C) and insert the word "or"
after the ";" at the end of subsection
(b)(iii)(B);
(H) in subsection (g) add an "s" to the end of the
term "Replacement Note Holder"; and
(I) in subsection (h) substitute the word "a" for
"the" before the term "Replacement Loan" and
insert after the term "Replacement Note" the
phrase "evidencing such Replacement Loan".
(n) Delete Section 5.04 of the Credit Agreement in its
entirety and substitute in its place the following:
"SECTION 5.04. Pro Rata Treatment. Subject to
Section 5.02(a) hereof, each payment or prepayment of
principal of Existing Project Loans or Supplemental
Advances by TNP or TGC II shall be made for account of
the relevant Banks pro rata in accordance with the
respective unpaid principal amounts of the Project
Loans of such Class held by such Banks. In the event
that, by reason of the acceleration thereof or
otherwise, the principal amount of any Replacement Loan
shall become due and payable at a time when the
principal amount of the Project Loans shall be due and
payable, each payment of principal of Loans shall be
made pro rata among the Secured Parties holding Loans
according to the respective unpaid principal amounts of
the Loans held by the Secured Parties. Each payment of
interest on the Loans shall be made pro rata among the
Banks and the Replacement Note Holders according to the
respective accrued and unpaid amounts of interest then
due and owing to such Persons. Any Replacement Note
Holder or any Bank receiving a disproportionate share
of any such payment shall, on demand by the Agent,
return the same to the Agent, which shall pay the same
to any Bank or any Replacement Note Holder which had
not received its proportionate share of any such
payment.".
(o) Section 5.05 of the Credit Agreement shall be amended
as follows:
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 57>
(A) substitute the word "each" for "the" before the
term "Replacement Note Holder" in the first
sentence of subsection (a) thereof; and
(B) delete subsection (a)(iv) in its entirety and
substitute in its place the following:
"(iv) Replacement Loan and Replacement Note Rate.
Subject to Section 4.05(i) hereof, if such
Loan is a Replacement Loan, a rate per annum
at all times equal to (A) the rate of
interest payable on the Secured Debentures
the proceeds of which were used to purchase
the Project Loans that were converted into
such Replacement Loan and as specified in the
Secured Debenture Indenture pursuant to which
such Secured Debentures were issued, as in
effect on (x) with respect to the First
Secured Debenture Indenture, the Extension
Date and (y) with respect to any Subsequent
Secured Debenture Indenture, the applicable
Section 4.05 Closing Date, as the case may
be, (B) the rate of interest payable on the
Secured Debentures, the proceeds of which
were used to refund the Secured Debentures to
which such Replacement Loan theretofore
related and as specified in the Subsequent
Secured Debenture Indenture, pursuant to
which such refunding Secured Debentures were
issued, as in effect on the applicable
Section 4.05 Closing Date or (C) if such
Replacement Loan does not serve as the basis
for the issuance of any outstanding Secured
Debentures, a rate per annum equal to the
Prime Rate.".
(p) Delete Section 5.10 of the Credit Agreement in its
entirety and substitute in its place the following:
"SECTION 5.10. [INTENTIONALLY OMITTED].".
(q) Section 6.02 of the Credit Agreement shall be amended
as follows:
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 58>
(A) in the last sentence of subsection (a) add an "s"
to the end of the terms "Replacement Note" and
"Replacement Note Holder" and insert the word
"applicable" before the term "Replacement Note
Holders" (as so amended);
(B) in the second sentence of subsection (b) add an
"s" to the end of the term "Replacement Loan"; and
(C) in subsection (c) substitute the word "any" for
"the" before both occurrences of the term
"Replacement Note" and insert the word "related"
before the term "Secured Debentures".
(r) Delete Section 6.03 of the Credit Agreement in its
entirety and substitute in its place the following:
"SECTION 6.03. Sharing of Payments, Etc. If any
Bank or any Replacement Note Holder shall obtain any
payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise) on
account of the Loans made or acquired by it (other than
pursuant to Section 7 hereof) in excess of its ratable
share of payments on account of the Loans of any Class
obtained by all the Banks and all the Replacement Note
Holders holding Loans of such Class, such Bank or such
Replacement Note Holder shall forthwith purchase from
the other Banks and the other Replacement Note Holders
such participations in the Loans of such Class held by
them as shall be necessary to cause such purchasing
Bank or such purchasing Replacement Note Holder to
share the excess payment ratably with each of them;
provided, that, if all or any portion of such excess
payment is thereafter recovered from such purchasing
Bank or such purchasing Replacement Note Holder, such
purchase from such Bank or such Replacement Note Holder
shall be rescinded and such Bank or such Replacement
Note Holder shall repay to the purchasing Bank or the
purchasing Replacement Note Holder the purchase price
to the extent of such recovery together with an amount
equal to such Bank's or such Replacement Note Holder's
ratable share (according to the proportion of (a) the
amount of such Bank's or such Replacement Note Holder's
required repayment to (b) the total amount so recovered
from the purchasing Bank or the Replacement Note
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 59>
Holder) of any interest or other amount paid or payable
by the purchasing Bank or the purchasing Replacement Note Holder
in respect of the total amount so recovered. TGC II agrees that
any Bank or Replacement Note Holder so purchasing a participation
from another Bank or Replacement Note Holder pursuant to this
Section 6.03 may, to the fullest extent permitted by law,
exercise all of its rights of payment (including the right of
set-off) with respect to such participation as fully as if such
Bank or such Replacement Note Holder were the direct creditor of
TGC II in the amount of such participation.".
(s) Section 9.11 of the Credit Agreement shall be amended
as follows:
(A) inserting, immediately preceding the first
sentence, the phrase "Prior to the First Amendment
Effective Date,"; and
(B) inserting the following new sentence at the end of
such Section:
"TGC II shall use the proceeds of Supplemental
Advances solely for working capital and other
lawful purposes not prohibited by this
Agreement.".
(t) Section 9.33(a) of the Credit Agreement shall be
amended by deleting the last sentence thereof.
(u) Section 10.03 of the Credit Agreement shall be amended
by deleting the reference to "Section 9.32(a)" and
substituting in its place a reference to "Section
4.05(b)".
(v) Section 10.06 of the Credit Agreement shall be amended
by deleting the "." and substituting in its place the
following:
"provided, that TGC II may advance to TNP funds
obtained as proceeds of Project Loans.".
(w) Section 10.08(e) of the Credit Agreement shall be
amended by deleting the phrase "the last sentence of
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 60>
Section 9.33(a)" and substituting in its place "Section
4.05".
(x) Delete Section 10.09 of the Credit Agreement in its
entirety and substitute in its place the following:
"SECTION 10.09. TGC II shall not permit the
aggregate principal amount of Loans outstanding
hereunder to exceed at any time the Collateral Coverage
Maximum Amount at such time.".
(y) Delete Section 10.13 of the Credit Agreement in its
entirety and substitute in its place the following:
"SECTION 10.13. TNP shall not permit the
aggregate principal amount of Loans outstanding
hereunder to exceed at any time the Collateral Coverage
Maximum Amount at such time.".
(z) Section 10.16 of the Credit Agreement shall be amended
by (A) adding an "s" to the end of the term "Secured
Debenture Indenture" in clause (d) thereof and (B)
deleting the reference to "Section 9.33(a)" and
substituting in its place a reference to "Section
4.05(b)".
(aa) Delete Section 10.21(b) of the Credit Agreement in its
entirety and substitute in its place the following:
"(b) TNP will provide the Banks and the
Replacement Note Holders, as soon as available and in
any event within 60 Business Days after each Quarterly
Date, a certificate of an Authorized Officer of TNP
showing, in reasonable detail, the calculation of
Interest Coverage, Cumulative Common Dividends,
Cumulative Net Income Available for Common, Equity
Capital and Total Capitalization, and for the period
from January 1, 1993 until the provisions of Section
9.33 hereof have terminated, Available Amount
(including the components thereof); in each case
determined as of such Quarterly Date.".
(bb) Delete Section 10.22 of the Credit Agreement in its
entirety and substitute in its place the following:
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 61>
"SECTION 10.22. Equity Capital. TNP will not pay
or declare any Common Dividend if the ratio of Equity
Capital to Total Capitalization, determined from time
to time as of the next preceding Quarterly Date, is
less than 20%.".
(cc) Delete Section 10.23 of the Credit Agreement in its
entirety and substitute in its place the following:
"SECTION 10.23. Amendment or Modification of
Secured Debenture Indentures. Until the payment,
prepayment or purchase in full of the Project Loans
outstanding on the First Amendment Effective Date, all
interest due and payable thereon and all other amounts
due and payable by TNP and TGC II to the Banks under
this Agreement (including, without limitation, all
Supplemental Advances) and the other Project Documents
and so long as any of the First Secured Debentures
remain outstanding, without the consent of the Majority
Banks (excluding for such purpose the Replacement Note
Holder with respect to the affected Secured Debenture
Indenture, or supplement thereto, referred to below),
neither TNP nor any of its Affiliates may enter into
any amendment, modification, supplement or waiver of a
Secured Debenture Indenture which shall (1) shorten the
stated maturity of the principal of, or any installment
of interest on, any Secured Debenture then outstanding,
or increase the principal amount thereof or the rate of
interest thereon, (2) grant any additional collateral
security for any Secured Debenture or (3) have the
effect of impairing in any material respect, directly
or indirectly, the rights or interests of the Banks or
the Replacement Note Holders in the Collateral or under
this Agreement or any other Project Document; provided,
that nothing in this Section 10.23 shall prohibit (i)
the pledge of the First Replacement Note under the
First Secured Debenture Indenture as in effect on the
Extension Date and (ii) securing Secured Debentures in
accordance with Section 4.05 hereof under Subsequent
Secured Debenture Indentures (including provisions for
substitution of collateral) in each case as in effect
on the applicable Section 4.05 Closing Date.".
(dd) Section 11 of the Credit Agreement shall be amended by
(A) substituting the word "any" for "the" before the
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 62>
term "Secured Debenture Indenture" in subsection (m)
thereof and (B) substituting the word "each" for "the" before the
term "Replacement Note Holder" in the last sentence of said
Section.
(ee) Delete Section 11(n) of the Credit Agreement in its
entirety and substitute in its place the following:
"(n) Except in accordance with the terms and
conditions of Section 4.05 hereof, prior to the
payment, prepayment or purchase in full of the
Project Loans outstanding on the First Amendment
Effective Date, all interest due and payable
thereon and all other amounts due and payable by
TNP and TGC II to the Banks under this Agreement
(including, without limitation, all Supplemental
Advances) and the other Project Documents and so
long as the First Secured Debentures remain
outstanding, TNP shall have, or shall have
permitted any of its Affiliates to, prepay,
repay or make any other payments (except the
payment of interest and the reimbursement of
costs and expenses of a Secured Debenture
Trustee or holders of Secured Debentures or
payments pursuant to indemnification of a
Secured Debenture Trustee) or distributions
on account of, or the setting apart of money
for a sinking fund or other analogous fund
for, the purchase, redemption, refund or
other acquisition of, any Secured Debentures,
but excluding any payments with respect to
interest payable thereon; provided, that, so
long as TNP shall be complying with the
provisions of Section 9.34 hereof in the same
manner and at the same time that TNP is
complying with the provisions of Section 1009
of the First Secured Debenture Indenture (as
in effect on the Extension Date) or any
Subsequent Secured Debenture Indenture (in
each case, as in effect on the applicable
Section 4.05 Closing Date), it shall not be a
default if TNP purchases or otherwise
acquires First Secured Debentures or
Subsequent Secured Debentures, as applicable,
after the occurrence of a Change of Control
Event pursuant to Section 1009 of the First
Secured Debenture Indenture, or such similar
provisions of any Subsequent Secured
Debenture
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 63>
Indenture pursuant to which such Subsequent Secured
Debentures were issued.".
(ff) Section 12.01 of the Credit Agreement shall be amended
by adding at the beginning of the text thereof, prior
to the term "TGC II", the following:
"Prior to the payment, prepayment or purchase in full
of the Project Loans outstanding on the First Amendment
Effective Date, all interest payable thereon and all
other amounts due and payable by TNP and TGC II to the
Banks under this Agreement (including, without
limitation, all Supplemental Advances) and the other
Project Documents,".
(gg) Section 12.04 of the Credit Agreement shall be deleted
in its entirety and replaced with the following:
"SECTION 12.04. [INTENTIONALLY OMITTED].".
(hh) Section 15.01 of the Credit Agreement shall be amended
as follows:
(A) in the first sentence substitute the word "each"
for "the" before the term "Replacement Note
Holder";
(B) in the second sentence substitute the word "any"
for "the" before the term "Replacement Note
Holder";
(C) in the third sentence delete clause (b) in its
entirety and substitute in its place the
following:
"(b) in the event that any Debenture Trustee
shall at any time become the Agent hereunder, its
duties and obligations in its capacity as Agent
shall be subject to the same qualifications,
conditions and limitations as are set forth in (i)
with respect to the First Debenture Trustee,
Article Six and Sections 904 and 1106 of the First
Secured Debenture Indenture with respect to its
duties and obligations as the First Debenture
Trustee and (ii) with respect to any applicable
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 64>
Subsequent Debenture Trustee, provisions in any
Subsequent Secured Debenture Indenture similar to the provisions
referred to in subclause (i) of this clause (b) with respect to
such applicable Debenture Trustee's duties and obligations as
Debenture Trustee thereunder, and any such Debenture Trustee
shall be under no obligation to take any action as Agent except
under circumstances in which it would be required to take action
in its capacity as First Debenture Trustee or Subsequent
Debenture Trustee, as applicable."; and
(D) in the fourth sentence substitute the word "any"
for "the" before the first occurrence of the term
"Replacement Note Holder" and substitute the words
"any other" for "the" before the second occurrence
of such term.
(ii) Section 15.02 of the Credit Agreement shall be amended
as follows:
(A) in the second sentence delete the phrase "the
Replacement Note Holder" and insert in lieu
thereof the phrase "all of the Replacement Note
Holders"; and
(B) in the third sentence (i) delete the phrase "the
Replacement Note Holder shall not" and insert in
lieu thereof the phrase "no Replacement Note
Holder shall", (ii) substitute the word "such" for
"the" before the second and third occurrences of
the term "Replacement Note Holder" and (iii)
insert the word "applicable" before the term
"Secured Debentures".
(jj) Section 15.03 of the Credit Agreement shall be amended
as follows:
(A) substitute the word "a" for "the" before the first
occurrence of the term "Replacement Note Holder";
and
(B) delete the proviso in the last sentence in its
entirety and substitute in its place the
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 65>
following: "provided, that, unless and until the Agent
shall have received such direction, the Agent may (but shall not
be obligated to) take such action, or refrain from taking such
action, with respect to such Default as it shall deem advisable
in the best interest of the Secured Parties.".
(kk) Section 15.04 of the Credit Agreement shall be amended
by substituting the word "any" for "the" before the
term "Replacement Note Holder".
(ll) Section 15.05 of the Credit Agreement shall be amended
as follows:
(A) substitute the word "each" for "the" before the
first occurrence of the term "Replacement Note
Holder";
(B) in the first proviso, delete the phrase "no Bank
or the Replacement Note Holder" and insert in lieu
thereof the phrase "neither any Bank nor any
Replacement Note Holder";
(C) delete clauses (x) and (y) of the second proviso
in their entirety and substitute in their place
the following:
"(x) so long as any Debenture Trustee shall
be a Replacement Note Holder (whether as the
pledgee of a Replacement Note or as the legal and
beneficial owner thereof following a foreclosure
or other exercise of remedies by such Debenture
Trustee with respect thereto), the obligations of
such Replacement Note Holder under this Section
15.05 shall be limited to, and solely payable out
of, amounts paid by TNP and/or TGC II and/or the
holders of the applicable Secured Debentures to
such Debenture Trustee under this Agreement or any
other Project Document that such Debenture Trustee
shall not have theretofore applied pursuant to the
applicable Secured Debenture Indenture for any
purpose other than the payment of amounts owing
under this clause (x), and
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 66>
(y) in the case of any Replacement Note
Holder (other than a Debenture Trustee in its
capacity as trustee) acquiring a Replacement Note
upon a foreclosure or other exercise of remedies
by a Debenture Trustee with respect thereto, the
obligations of such Replacement Note Holder under
this Section 15.05 shall be limited to obligations
arising from and after the date on which it shall
have acquired such Replacement Note."; and
(D) in the last sentence, add an "s" to the end of the
term "Replacement Note Holder".
(mm) Section 15.06 of the Credit Agreement shall be amended
by (A) substituting the word "each" for "the" before
the first occurrence of the term "Replacement Note
Holder" and (B) substituting the word "such" for "the"
before the second occurrence of such term.
(nn) Section 15.07 of the Credit Agreement shall be deleted
in its entirety and replaced with the following:
"SECTION 15.07. Non-Reliance on Agent and Other
Banks and Other Replacement Note Holders. Each Bank
and TNP, as the initial Replacement Note Holder of each
Replacement Note, represents that it has, independently
and without reliance on the Agent or any other Bank or
any other Replacement Note Holder, and based on such
documents and information as it has deemed appropriate,
made its own appraisal of the financial condition and
affairs of TNP and TGC II and decision to enter into
this Agreement, and agrees that it will, independently
and without reliance upon the Agent or any other Bank
or any other Replacement Note Holder, and based on such
documents and information as it shall deem appropriate
at the time, continue to make its own appraisals and
decisions in taking or not taking action under this
Agreement. Neither the Agent nor any Bank nor any
Replacement Note Holder shall be required to keep
informed as to the performance or observance by TNP or
TGC II under this Agreement or any other document
referred to or provided for herein or to make inquiry
of, or to inspect the properties or books of, TNP or
TGC II. Except for notices, reports and other
documents and information expressly required to be
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 67>
furnished to the Banks and the Replacement Note Holders
by the Agent hereunder, neither the Agent nor any Bank nor any
Replacement Note Holder shall have any duty or responsibility to
provide any Bank or any Replacement Note Holder with any credit
or other information concerning TNP and TGC II, or any Affiliate
of either of them, which may come into the possession of the
Agent or such Bank or such Replacement Note Holder or any of its
or their affiliates.".
(oo) Section 15.08 of the Credit Agreement shall be deleted
in its entirety and replaced with the following:
"SECTION 15.08. Resignation or Removal of Agent.
Subject to the appointment and acceptance of a
successor Agent as provided below, the Agent may resign
at any time by giving notice thereof to the Banks and
the Replacement Note Holders, TNP and TGC II, and the
Agent may be removed at any time with or without cause
by the Majority Banks. Upon any such resignation or
removal, the Majority Banks shall have the right to
appoint a successor Agent, which Agent shall be
reasonably acceptable to TNP and TGC II (unless an
Event of Default has occurred and is continuing). If
no successor Agent shall have been appointed by the
Majority Banks and shall have accepted such appointment
within 30 days after the retiring Agent's giving of
notice of resignation or the Majority Banks' removal of
the retiring Agent, then the retiring Agent may, on
behalf of the Banks and the Replacement Note Holders,
appoint a successor Agent, which shall be either a bank
with an office (or an affiliate with an office) in New
York, New York, having a combined capital and surplus
of not less than U.S. $500,000,000 and which shall be
reasonably acceptable to TNP. Upon the acceptance of
any appointment as Agent hereunder by a successor
Agent, such successor Agent shall thereupon succeed to
and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and
obligations hereunder. After any retiring Agent's
resignation or removal hereunder as Agent, the
provisions of this Section 15 shall continue in effect
for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as Agent.
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 68>
Notwithstanding any other provision in this Agreement
to the contrary (i) upon the payment, prepayment or purchase in
full of the Project Loans outstanding on the First Amendment
Effective Date, all interest due and payable thereon and all
other amounts due and payable by TNP and TGC II to the Banks
under this Agreement (including, without limitation, all
Supplemental Advances) and the other Project Documents, Chase
shall resign as Agent hereunder at which time, the Debenture
Trustee for the earliest maturing Secured Debentures then
outstanding (if any), or its designee, (a "Replacement Agent")
automatically shall be appointed as successor Agent effective
upon the acceptance of such appointment by such Replacement Agent
and (ii) upon the payment in full of the principal of (and
premium, if any, on) the Secured Debentures for which a
Replacement Agent is Debenture Trustee, all interest thereon and
all other amounts due and payable by TNP and TGC II pursuant to
the applicable Secured Debenture Indenture, such Replacement
Agent shall resign as Agent hereunder at which time, the
Debenture Trustee for the earliest maturing Secured Debentures
then outstanding (if any), or its designee, (also a "Replacement
Agent") automatically shall be appointed as successor Agent
effective upon the acceptance of such appointment by such
Replacement Agent. Until the payment, prepayment or purchase in
full of the Project Loans outstanding on the First Amendment
Effective Date, all interest due and payable thereon and all
other amounts due and payable by TNP and TGC II to the Banks
under this Agreement (including, without limitation, all
Supplemental Advances) and the other Project Documents, the
Replacement Note Holders shall not be considered in the
determination of "Majority Banks" for purposes of this Section
15.08. Notwithstanding any provision herein or in any Secured
Debenture Indenture to the contrary, in the event a Debenture
Trustee becomes Agent hereunder, it shall promptly upon the
request of TNP and TGC II from time to time execute releases of
liens in accordance with the Facility Purchase Agreement;
provided, that, any such release shall contain a provision to the
effect that such release is made in its capacity as Agent and
Collateral Agent, if applicable, pursuant to the Facility
Purchase Agreement
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 69>
but without warranty by, or recourse to, such Debenture
Trustee either in its capacity as trustee or individually.".
(pp) Section 15.09 of the Credit Agreement shall be deleted
in its entirety and replaced with the following:
"SECTION 15.09. Authorization. The Agent is
hereby authorized by the Banks (so long as any Project
Loans are outstanding), and the Replacement Note
Holders (each by its acceptance of the pledge of the
applicable Replacement Note), to execute, deliver and
perform, each of the Project Documents to which the
Agent is or is intended to be a party and each Bank (so
long as any Project Loans are outstanding), and each
Replacement Note Holder (each by its acceptance of the
pledge of the applicable Replacement Note), agrees to
be bound by all of the agreements of the Agent
contained in the Project Documents.".
(qq) Section 16.01 of the Credit Agreement shall be deleted
in its entirety and replaced with the following:
"SECTION 16.01. Participation and Assignment.
Each Bank and each Replacement Note Holder may sell,
assign or transfer all or any portion of its Loans or
Notes to any other Person provided that no Bank shall
sell, assign or transfer all or any portion of its
Loans or Notes to Prospect. Each Bank and each
Replacement Note Holder shall pay to the Agent (for its
own account) a non-refundable assignment fee of $5,000
at the time of each permitted sale, assignment or
transfer made by such Bank or such Replacement Note
Holder. If any Supplemental Advance Bank sells,
assigns or transfers all or any portion of its Project
Loans, the purchaser, assignee or transferee thereof
shall assume all of the obligations (including, without
limitation, the obligations set forth in Section 17.21
hereof) of such Supplemental Advance Bank. Nothing
herein provided shall prevent any Bank or any
Replacement Note Holder from selling at any time a
participation in its Loans, any fees payable to it
hereunder or any other rights hereunder (the purchaser
of any such participation being hereinafter sometimes
referred to as a "Participant"); provided, that,
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 70>
(except as provided in Section 16.02 hereof): (a) no
such sale or participation shall alter such Bank's or such
Replacement Note Holder's obligations hereunder and (b) any
agreement pursuant to which any Bank or any Replacement Note
Holder may grant any such participation shall provide that such
Bank or such Replacement Note Holder shall retain the sole right
and responsibility and exercise the rights of such Bank or such
Replacement Note Holder, and enforce the obligations of TNP or
TGC II relating to the Loans, the fees payable hereunder and any
other right of such Bank or such Replacement Note Holder,
including, without limitation, the right to approve any
amendment, modification or waiver of any provision of this
Agreement or any other Project Document and the right to take
action to have the Loans declared due and payable. Except as
provided in Section 16.02 hereof, no Participant shall have any
rights under this Agreement or in respect of a Bank's or a
Replacement Note Holder's Loans, fees payable to it hereunder or
any other rights hereunder other than to receive payments in
respect of such Participant's participation from such Bank or
such Replacement Note Holder. Notwithstanding the foregoing, a
Debenture Trustee, in its capacity as pledgee of a Replacement
Note, shall have no right to sell, assign or otherwise transfer
any participation in, all or any portion of the Replacement Loan
evidenced by such Replacement Note or such Replacement Note to
any Person except TNP in accordance with the terms of the Secured
Debenture Indenture pursuant to which such Debenture Trustee is
acting as trustee unless a default shall have occurred and be
continuing under such Secured Debenture Indenture. TNP shall
have no right to sell, assign or otherwise transfer all or any
portion of the Replacement Loans or the Replacement Notes except
under a Secured Debenture Indenture, provided, that such
prohibition shall not apply to the Debenture Trustee under such
Secured Debenture Indenture or any permitted assignee or
transferee thereof.".
(rr) Section 16.02 of the Credit Agreement shall be amended
by substituting the word "a" for "the" before the term
"Replacement Note Holder".
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 71>
(ss) Section 17.03 of the Credit Agreement shall be amended
by (A) inserting the word "a" before the first
occurrence of the term "Replacement Note Holder", (B)
inserting the word "applicable" before the phrase
"instrument of adoption" and (C) deleting the term
""Replacement Note Holder"" and inserting in lieu
thereof the term ""Replacement Note Holders"".
(tt) Section 17.04 of the Credit Agreement shall be deleted
in its entirety and replaced with the following:
"SECTION 17.04. Successors and Assigns. This
Agreement shall be binding upon and inure to the
benefit of TNP, TGC II, the Secured Parties and their
respective successors and permitted assigns (including
each Debenture Trustee, as the prospective pledgee or
pledgee of a Replacement Note), except that neither
TGC II nor TNP (except as contemplated in the Project
Documents) may assign or otherwise transfer all or any
part of its rights or obligations hereunder (other than
its rights in respect of the Replacement Loans and the
Replacement Notes as permitted hereunder) without the
prior written consent of each Secured Party. The Agent
and each of the Banks (so long as any Project Loans are
outstanding) consents to the pledge of the Replacement
Notes to the applicable Debenture Trustees.".
(uu) Section 17.08 of the Credit Agreement shall be amended
as follows:
(A) adding an "s" to the end of the terms "Replacement
Note Maturity Date" and "Replacement Note Holder"
in subsection (a) thereof; and
(B) in the last paragraph thereof:
(1) inserting "(1)" immediately after the phrase
"Notwithstanding the above,";
(2) adding an "s" to the end of both occurrences
of the term "Replacement Note Holder";
(3) in subclause (v), deleting the phrase
"provided that such change does not result"
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 72>
and inserting in lieu thereof the phrase "provided
that, if such change would result";
(4) at the end of subclause (v), deleting the
term "the Replacement Loans" and substituting
in lieu thereof the phrase "any Replacement
Loan, then the consent of the Replacement
Note Holder in respect of such Replacement
Loans shall be required"; and
(5) immediately before the "." inserting the
following:
"and (2) until the payment, prepayment or
purchase in full of the Project Loans
outstanding on the First Amendment Effective
Date, all interest payable thereon and all
other amounts due and payable by TNP and TGC
II to the Banks under this Agreement
(including, without limitation, all
Supplemental Advances) and the other Project
Documents (and notwithstanding whether the
Total Supplemental Advance Commitments, the
Available Supplemental Advance Commitment or
the any portion of either thereof is then
available to TGC II hereunder) Banks holding
at least 66-2/3% of the outstanding principal
amount of the Project Loans, or the Agent
acting with the consent of such Banks, shall
have consented in writing to any amendment,
supplement, modification or waiver of Section
8 of this Agreement, or any provisions of
this Agreement or any other instrument,
document or agreement, directly or indirectly
referred to in or ancillary to, Section 8 of
this Agreement, that could have an adverse
effect on the interests of the Banks, the
value of the security provided to the Agent,
as agent for the Banks and the other Secured
Parties, under the Security Documents or the
ability of TNP or TGC II to perform its
obligations under this Agreement or any of
the other Project Documents".
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 73>
(vv) Section 17.16 of the Credit Agreement shall be amended
by substituting the word "each" for "the" before the
term "Replacement Note Holder".
(ww) Section 17.18 of the Credit Agreement shall be amended
by (A) substituting the word "each" for "the" before
the first occurrence of the term "Replacement Note
Holder", (B) substituting the word "such" for "the"
before the second and third occurrences of the term
"Replacement Note Holder", (C) inserting the words "any
of" before the fourth occurrence of the term "the
Replacement Note Holder" and adding an "s" to the end
of such occurrence of such term, (D) substituting the
word "any" for "the" before the fifth and seventh
occurrences of the term "Replacement Note Holder" and
(E) adding an "s" to the end of the sixth occurrence of
the term "Replacement Note Holder".
(xx) Section 17.20 of the Credit Agreement shall be
redesignated as "SECTION 17.23", and new
Sections 17.20, 17.21 and 17.22 shall be inserted as
follows:
"SECTION 17.20. Further Releases and Consents.
(a) Notwithstanding any provisions to the
contrary in this Agreement or in any other Project
Document, each of the Secured Parties hereunder other
than the Replacement Note Holder holding the First
Replacement Note hereby consents and each of the future
Replacement Note Holders (each by acceptance of the
pledge of the applicable Replacement Note) is deemed to
have consented to the transfer by TNP of up to six ten-
acre tracts of real property located in the Site after
such time as (i) there has been payment, prepayment or
purchase in full of the Project Loans evidenced by the
New Project Notes outstanding, all interest due and
payable thereon and all other amounts due and payable
by TNP and TGC II to the Banks under this Agreement and
the other Project Documents and (ii) no First Secured
Debentures and no Second Secured Debentures, as defined
in the Unit 1 Credit Agreement, as amended by Amendment
No. 1 thereto, remain outstanding.
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 74>
(b) As a condition precedent to each transfer
under this Section 17.20, TNP, TGC and TGC II each
shall deliver to the Agent a certificate signed by an
Authorized Officer of TNP, TGC or TGC II, as
applicable, which certificate represents and warrants
that (i) such transfer will not materially adversely
affect TNP, TGC or TGC II's financial condition or
ability to perform their respective obligations under
this Agreement or any other Project Document and,
except as contemplated by the Ten Acre Releases, has
not and will not adversely affect the Collateral and
(ii) the ten-acre tract(s) to be conveyed are not
necessary to the use or operation of Unit 1 or Unit 2,
and TNP's transfers of said ten-acre tract(s) and the
resulting loss of access to and across and the loss of
the use of said ten-acre tract(s) would neither
adversely affect or interfere with the use or operation
of Unit 1 or Unit 2 or the value of either thereof nor
impair commercial acceptability of the security granted
to the Secured Parties pursuant to the Security
Documents.
(c) In connection with each transfer permitted by
Section 17.20 (a) hereof and subject to the terms and
conditions of this Section 17.20, each Secured Party
hereby consents to the execution and delivery by the
Agent, the Collateral Agent and, if required, the
Mortgage Trustee, of one or more partial releases of
liens (collectively, the "Ten Acre Releases") to effect
the releases hereinabove described in this
Section 17.20.
(d) The consents contained in this Section 17.20
shall be effective only in the specific instances and
for the specific purposes for which they are given and
shall not be deemed to be a waiver of any past or a
consent to any future action, other event or condition
in connection with this Agreement.
SECTION 17.21. Supplemental Advance Sharing
Provisions.
(a) If at such time as any of the events set
forth in Section 11(e) or Section 11(f) hereof shall
occur (a "Subject Date"), any Supplemental Advance
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 75>
Bank's percentage of the aggregate principal amount of
outstanding Project Loans is less than such Supplemental Advance
Bank's percentage of the aggregate principal amount of the
Project Loans outstanding on the Bond Proceeds Payment Date after
giving effect to the transactions contemplated to be effected on
such date by this Agreement (as adjusted by virtue of sales,
assignments and transfers of all or any portion of its Project
Loans in accordance with Section 16.01 hereof and except for any
amount received by such Supplemental Advance Bank in accordance
with Section 7.01 hereof), such Supplemental Advance Bank shall
promptly purchase from Prospect participations in (or, if and to
the extent specified by Prospect, direct interests in) the
Project Loans owing to Prospect in such amounts, and make such
other adjustments from time to time as shall be equitable, to the
end that (except for any amounts received by a Bank in accordance
with Section 7.01 hereof) each Bank's percentage of the aggregate
principal amount of Project Loans outstanding on such Subject
Date shall be equal to such Bank's percentage of the aggregate
principal amount of Project Loans outstanding on the Bond
Proceeds Payment Date after giving effect to the transactions
contemplated on such date (as so adjusted); provided that if any
Supplemental Advance Bank sells, assigns or transfers all or any
portion of its Project Loans in accordance with Section 16.01
hereof, the purchaser, assignee or transferee of such Project
Loans shall (unless otherwise expressed in the relevant
instrument of sale, assignment or transfer) be subject to the
provisions of this Section 17.21.
(b) TGC II and TNP agree that, notwithstanding
the provisions of Section 16.01 hereof, any
Supplemental Advance Bank so purchasing such a
participation (or direct interest) may exercise all
rights of set-off, banker's lien, counterclaim or
similar rights with respect to such participation as
fully as if such Supplemental Advance Bank were a
direct holder of Project Loans owing to such
Supplemental Advance Bank in the amount of such
participation.
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 76>
(c) If, under any applicable bankruptcy,
insolvency or other similar law, any Supplemental
Advance Bank receives a secured claim in lieu of a
set-off to which this Section 17.21 applies, such
Supplemental Advance Bank shall, to the extent
practicable, exercise its rights in respect of such
secured claim in a manner consistent with the rights of
Prospect to share in the benefits of any recovery on
such secured claim.
SECTION 17.22. New Title Insurance Policy. On
the Bond Proceeds Payment Date, and at the sole cost of
TNP and TGC II, TNP and TGC II shall furnish to the
Agent (A) a policy or policies of title insurance,
together with evidence of the payment of all premiums
due thereon and expenses payable in connection
therewith and together with such reinsurance on such
forms and in such amounts as the Banks may require, on
forms of and issued by the Title Company, in form and
substance satisfactory to the Banks, (x) insuring the
Agent for the benefit of the Banks in the amount of
$147,750,000 that good and indefeasible title to the
Site is vested in TGC II and the TGC II Mortgage
constitutes a valid first mortgage lien on the TGC II
Mortgage Trust Estate subject only to Permitted Liens,
(y) providing full coverage against all mechanics' and
materialmen's liens and (z) providing a T-35 revolving
credit endorsement and a T-33 adjustable mortgage loan
endorsement and (B) a title information report in form
and substance satisfactory to and approved by the
Agent, showing good and indefeasible title to the TGC
II Mortgage Trust Estate is vested in TGC II and that
the TGC II Mortgage constitutes a valid first mortgage
lien on the TGC II Mortgage Trust Estate subject only
to Permitted Liens.".
SECTION 4.02. Supplemental Advance Facility.
SECTION 4.02A. Conforming changes to Credit Agreement.
(a) Section 1.01 of the Credit Agreement shall be amended
as follows:
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 77>
(i) Delete the term "Proportionate Share" and its
definition in its entirety; and
(ii) Insert the following new terms and their
definitions in the appropriate alphabetical order:
""Available Supplemental Advance Commitment"
shall mean (a) prior to the date that the Section
3 Effective Date occurs, as of any date of
determination after the Bond Proceeds Payment Date
and on or before the Final Maturity Date, the sum
of (A) the aggregate principal amount of Existing
Project Loans prepaid pursuant to Section 5.02(a)
hereof after the Bond Proceeds Payment Date minus
(B) the aggregate principal amount of Supplemental
Advances outstanding on the date of determination
and (b) on and after the date that the Section 3
Effective Date occurs (i) as of any date of
determination after the First Amendment Effective
Date and on or before the First Scheduled
Reduction Date, the sum of (A) the aggregate
principal amount of Existing Project Loans prepaid
pursuant to Section 5.02(a) hereof after the Bond
Proceeds Payment Date minus (B) the aggregate
principal amount of Supplemental Advances
outstanding on such date of determination and (ii)
as of any date of determination after the First
Scheduled Reduction Date and before the
Supplemental Advance Commitment Termination Date,
the sum of (A) the aggregate principal amount of
Existing Project Loans prepaid pursuant to Section
5.02(a) hereof after the immediately preceding
Scheduled Reduction Date plus (B) the excess (if
any) of (1) the applicable Carryforward Amount (if
any) minus (2) the aggregate principal amount of
Supplemental Advances outstanding on such date of
determination. Anything in the foregoing to the
contrary notwithstanding in the event that the
Available Supplemental Advance Commitment as
computed in the foregoing sentence would on any
date of determination exceed the aggregate amount
of the Total Supplemental Advance Commitments, the
Available Supplemental Advance Commitment shall be
deemed to equal the aggregate amount of the Total
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 78>
Supplemental Advance Commitments on such date of
determination.
"Carryforward Amount" shall mean (i) with
respect to the period commencing on the First
Scheduled Reduction Date and ending on the Second
Scheduled Reduction Date, the excess (if any) of
(a) Period 1 Section 5.02(a) Prepayments over (b)
the excess (if any) of (1) $35,369,507.58 over (2)
Period 1 Supplemental Advance Bank Purchases (the
"First Carryforward Amount"); (ii) with respect to
the period commencing on the Second Scheduled
Reduction Date and ending on the Third Scheduled
Reduction Date, the excess (if any) of (a) the sum
of (1) the First Carryforward Amount plus (2)
Period 2 Section 5.02(a) Prepayments over (b) the
excess (if any) of (1) $70,739,015.16 over (2)
Period 2 Supplemental Advance Bank Purchases (the
"Second Carryforward Amount"); and (iii) with
respect to the period commencing on the Third
Scheduled Reduction Date and ending on the Final
Maturity Date, the excess (if any) of (a) the sum
of (1) the Second Carryforward Amount plus (2)
Period 3 Section 5.02(a) Prepayments over (b) the
excess (if any) of $106,108,522.74 over (3) Period
3 Supplemental Advance Bank Purchases.
"Proportionate Share" shall mean, with
respect to each Supplemental Advance Bank, the
percentage set out under the caption
"Proportionate Share" opposite such Supplemental
Advance Bank's name on the signature pages of the
First Amendment.
"Prospect" shall mean Prospect Street Senior
Portfolio, L.P.
"Supplemental Advance Banks" shall mean (a)
on the Bond Proceeds Payment Date, the Banks
having Total Supplemental Advance Commitments on
the signature pages of the First Amendment and (b)
thereafter, the Banks from time to time holding
Supplemental Advances and Total Supplemental
Advance Commitments after giving effect to any
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 79> sales, assignments or transfers thereof in accordance
with Section 4.05(g) or 16.01 hereof.
"Supplemental Advance Commitment Termination
Date" shall mean the Business Day preceding the
Final Maturity Date.
"Supplemental Advances" shall have the
meaning ascribed to such term in Section 4.02(a)
hereof.
"Total Supplemental Advance Commitment" shall
mean, for each Supplemental Advance Bank, the
obligation of such Supplemental Advance Bank to
make Supplemental Advances in an aggregate amount
at any one time outstanding up to but not
exceeding the amount set opposite the name of such
Supplemental Advance Bank on the signature pages
of the First Amendment under the caption "Total
Supplemental Advance Commitment" (as the same may
be reduced from time to time pursuant to Section
4.02(b) hereof). The original aggregate amount of
the Total Supplemental Advance Commitments is
$141,478,030.31.".
(b) Section 5.02(a) of the Credit Agreement shall be
deleted in its entirety and replaced with the
following:
"(a) Prepayments. (i) TGC II may, subject to
Section 7.05 hereof and subject to the prior payment in
full of all interest on, and principal of (i) the
"Project Loans" under and as defined in the Unit 1
Credit Agreement and (ii) the Supplemental Advances
then outstanding, prepay the Existing Project Loans
held by the Supplemental Advance Banks in whole or in
part, without premium (except as provided in Section
9.34 hereof) or penalty, upon at least three Business
Days' prior notice by TGC II to the Agent in the case
of Eurodollar Rate Loans, at least two Business Days'
prior notice to the Agent in the case of CD Rate Loans
and at least one Business Day's prior notice to the
Agent in the case of Prime Rate Loans (in each case,
each such notice to the Agent to be irrevocable),
specifying the date and amount of such prepayment and
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 80>
whether the prepayment is of Eurodollar Rate Loans,
Prime Rate Loans or CD Rate Loans or a combination thereof. If
such notice is given, TGC II shall make such prepayment and the
payment amount specified in such notice shall be due and payable
on the date specified therein. Partial prepayments shall be in
an aggregate principal amount of at least $1,000,000 or an
integral multiple of $500,000 in excess thereof. Any prepayments
of Existing Project Loans made pursuant to this Section 5.02(a)
shall be made pro rata among the Supplemental Advance Banks
according to their Proportionate Share. Upon the payment,
prepayment or purchase in full of the Project Loans outstanding
on the First Amendment Effective Date, all interest due and
payable thereon and any other amounts due and payable by TNP and
TGC II to the Banks under this Agreement (including, without
limitation, all Supplemental Advances) and the other Project
Documents, and subject to the terms and conditions of Section
4.05 hereof, TNP and TGC II may prepay or otherwise reduce or
cancel the Replacement Loans in accordance with the terms and
conditions of the applicable Secured Debenture Indenture.".
(c) Section 5.02(b)(i)(B) of the Credit Agreement shall be
deleted in its entirety and replaced with the
following:
"(B) on the Second Scheduled Reduction Date, an
amount equal to the sum of (1) the excess of (x) 50% of
the sum of (I) the aggregate outstanding principal
amount of Project Loans (other than Supplemental
Advances) of the Supplemental Advance Banks on such
date plus (II) the Supplemental Advance Banks' ratable
share (computed on the basis of Existing Project Loans
outstanding on the Bond Proceeds Payment Date) of
$75,750,000 plus (III) the aggregate principal amount
of Project Loans (other than Supplemental Advances)
prepaid after the Bond Proceeds Payment Date and before
the Second Scheduled Reduction Date over (y) the sum of
(I) the Supplemental Advance Banks' ratable share
(computed on the basis of Existing Project Loans
outstanding on the Bond Proceeds Payment Date) of
$75,750,000 plus (II) the aggregate principal amount of
Project Loans (other than Supplemental Advances)
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 81>
prepaid after the Bond Proceeds Payment Date and before
the Second Scheduled Reduction Date plus (2) the excess of (x)
50% of the sum of (I) the aggregate outstanding principal amount
of Project Loans of Prospect on such date plus (II) Prospect's
ratable share (computed on the basis of Existing Project Loans
outstanding on the Bond Proceeds Payment Date) of $75,750,000
plus (III) the aggregate principal amount of Prospect's Project
Loans prepaid after the Bond Proceeds Payment Date and before the
Second Scheduled Reduction Date over (y) the sum of (I)
Prospect's ratable share (computed on the basis of Existing
Project Loans outstanding on the Bond Proceeds Payment Date) of
$75,750,000 plus (II) the aggregate principal amount of
Prospect's Project Loans prepaid after the Bond Proceeds Payment
Date and before the Second Scheduled Reduction Date.".
SECTION 4.02B. Supplemental Advances.
(a) Section 4.02 of the Credit Agreement shall be deleted
in its entirety and replaced with the following:
"SECTION 4.02. Total Supplemental Advance
Commitments, Available Supplemental Advance Commitment
and Supplemental Advances.
(a) Supplemental Advances. Each Supplemental
Advance Bank severally agrees, on the terms and
conditions of this Agreement, to make loans to TGC II
in Dollars during the period from and including the
Bond Proceeds Payment Date to but not including the
Supplemental Advance Commitment Termination Date in an
aggregate principal amount at any one time outstanding
up to but not exceeding the amount of such Supplemental
Advance Bank's Proportionate Share of the Available
Supplemental Advance Commitment as in effect from time
to time (such loans being herein called "Supplemental
Advances"); provided that no additional Supplemental
Advances shall be made on, and TGC II hereby agrees not
to request any borrowings of Supplemental Advances on,
a Scheduled Reduction Date. Subject to the terms and
conditions of this Agreement, during such period TGC II
may borrow, repay and reborrow up to the amount of the
Available Supplemental Advance Commitment by means of
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 82>
Prime Rate Loans, CD Rate Loans and Eurodollar Rate
Loans and may Convert Supplemental Advances of one Type into
Supplemental Advances of another Type (as provided in
Section 4.04 hereof) or continue Supplemental Advances of one
Type as Supplemental Advances of the same Type (as provided in
Section 4.04 hereof); provided that no more than six separate
Interest Periods in respect of CD Rate Loans and Eurodollar Rate
Loans from each Supplemental Advance Bank may be outstanding at
any one time. TGC II shall give the Agent (which shall promptly
notify the Supplemental Advance Banks) notice of each borrowing
hereunder as provided in Section 6.01 hereof. TGC II hereby
agrees to repay the principal of, and to pay interest on, the
Supplemental Advances as set forth in this Agreement. TGC II
hereby promises to pay to the Agent for account of each
Supplemental Advance Bank the entire outstanding principal amount
of such Supplemental Advance Bank's Supplemental Advances, and
each Supplemental Advance shall mature, on the Final Maturity
Date. The Supplemental Advances made by each Supplemental
Advance Bank shall be evidenced by the New Project Note of such
Supplemental Advance Bank.
(b) Changes of Total Supplemental Advance
Commitments.
(i) The aggregate amount of the Total
Supplemental Advance Commitments shall be automatically
reduced to zero on the Supplemental Advance Commitment
Termination Date.
(ii) In the event that the Section 3 Effective
Date does not occur, the aggregate amount of the Total
Supplemental Advance Commitments shall be automatically
reduced on the Second Scheduled Reduction Date by an
amount equal to the amount of the prepayment referred
to in Section 5.02(b)(i)(B)(1) and shall be
automatically reduced to zero on the Final Maturity
Date.
(iii) The aggregate amount of the Total
Supplemental Advance Commitments shall be automatically
reduced on each Scheduled Reduction Date set forth in
column (A) below to the amount (subject to reduction
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 83>
pursuant to subclause (iii) below) set forth in column
(B) below opposite such Scheduled Reduction Date:
(A) (B)
Total Supplemental
Advance Commitments
Reduced to the Following
Scheduled Reduction Date: Amounts ($):
First Scheduled Reduction
Date $106,108,522.73
Second Schedule Reduction
Date $ 70,739,015.15
Third Scheduled Reduction
Date $ 35,369,507.57
Final Maturity Date $ -0-
(iv) TGC II shall have the right at any time or
from time to time (A) so long as no Supplemental
Advances are outstanding, to terminate the Total
Supplemental Advance Commitments and (B) to reduce the
aggregate unused amount of the Total Supplemental
Advance Commitments; provided that TGC II shall give
notice of each such termination or reduction as
provided in, and comply with the terms and conditions
of, Section 6.01 hereof.
(v) The Total Supplemental Advance Commitments
once terminated or reduced may not be reinstated.
(c) Available Supplemental Advance Commitment
Fee. TGC II shall pay to the Agent for account of each
Supplemental Advance Bank a commitment fee on the daily
average unused amount of such Supplemental Advance
Bank's Proportionate Share of the Available
Supplemental Advance Commitment, for the period from
and including the Bond Proceeds Payment Date to but not
including the earlier of the date the Total
Supplemental Advance Commitments are terminated and the
Supplemental Advance Commitment Termination Date, at a
rate per annum equal to 1/4 of 1%. Accrued commitment
fee shall be payable on each Quarterly Date and on the
earlier of the date the Total Supplemental Advance
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 84>
Commitments are terminated and the Supplemental Advance
Commitment Termination Date.
(d) Prepayments of Supplemental Advances. (i)
TGC II may, subject to Section 7.05 hereof, prepay the
Supplemental Advances in whole or in part, without
premium (except as provided in Section 9.34 hereof) or
penalty, upon at least three Business Days' prior
notice by TGC II to the Agent in the case of Eurodollar
Rate Loans, at least two Business Days' prior notice to
the Agent in the case of CD Rate Loans and at least one
Business Day's prior notice to the Agent in the case of
Prime Rate Loans (in each case, each such notice to the
Agent to be irrevocable), specifying the date and
amount of such prepayment and whether the prepayment is
of Eurodollar Rate Loans, Prime Rate Loans or CD Rate
Loans or a combination thereof. If such notice is
given, TGC II shall make such prepayment and the
payment amount specified in such notice shall be due
and payable on the date specified therein. Partial
prepayments shall be in an aggregate principal amount
of at least $1,000,000 or an integral multiple of
$500,000 in excess thereof. Until the Supplemental
Advance Commitment Termination Date, from time to time
TGC II shall prepay, or TNP shall purchase in
accordance with the terms and conditions of Section
4.05 hereof, the Supplemental Advances in such
principal amounts and on such dates as shall be
necessary so that (x) the aggregate amount outstanding
principal amount of the Supplemental Advances shall at
no time exceed the aggregate amount of the Total
Supplemental Advance Commitments and (y) the aggregate
principal amount of Loans outstanding hereunder shall
not exceed the Collateral Coverage Maximum Amount at
such time.".
(b) Section 6.01 of the Credit Agreement shall be deleted
in its entirety and replaced with the following:
"SECTION 6.01. Making the Supplemental Advances.
(a) Each termination or reduction of the Total
Supplemental Advance Commitments and each borrowing of
Supplemental Advances shall be made upon notice to the
Agent given by TGC II. Each notice of borrowing of
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 85>
Supplemental Advances shall be given not later than
11:00 a.m. (New York City time) one Business Day (with respect to
each Prime Rate Loan), two Business Days (with respect to each CD
Rate Loan) and three Business Days (with respect to each
Eurodollar Rate Loan) prior to the date of the proposed borrowing
of Supplemental Advances, and the Agent shall give to each
Supplemental Advance Bank prompt notice thereof and of each other
notice received from TGC II hereunder. Each notice of
termination or reduction of Total Supplemental Advance
Commitments shall be given to the Agent not later than five
Business Days prior to the proposed termination or reduction and
such notice shall specify the amount of Total Supplemental
Advance Commitments to be terminated or reduced (which amount
shall be $1,000,000 or an integral multiple of $500,000 in excess
thereof). Each such notice of a borrowing (a "Notice of
Borrowing") shall be in the form of Exhibit O hereto, may be
delivered by telex, telecopy or cable, in any case confirmed
immediately in writing, shall specify therein (i) the date of
such borrowing, (ii) the Type of Supplemental Advances comprising
such borrowing, (iii) the aggregate amount of such borrowing
(which shall be $1,000,000 or an integral multiple of $500,000 in
excess thereof), and (iv) in the case of a borrowing comprised of
Eurodollar Rate Loans or CD Rate Loans, the initial Interest
Period for each such Loan, and shall be otherwise duly completed.
In the case of a proposed borrowing comprised of Eurodollar Rate
Loans or CD Rate Loans, the Agent shall promptly notify each
Supplemental Advance Bank of the applicable interest rate
pursuant to Section 5.05 hereof. Each Supplemental Advance Bank
shall, before 11:00 a.m. (New York City time) on the date of such
borrowing, make available for the account of its Applicable
Lending Office to the Agent at its Principal Office, in same day
funds, such Supplemental Advance Bank's Proportionate Share of
such borrowing. After the Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in Sections
8.03 and 8.04 hereof, the Agent will make such funds available to
TGC II, by depositing the proceeds thereof, in immediately
available funds, in the TGC II Receipt Account. For purposes of
determining whether the applicable conditions set forth in
Sections 8.03
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 86>
and 8.04 hereof have been fulfilled, the Agent may (but
is not obligated to) assume the truth of the statements contained
in certificates delivered pursuant to said Section.
(b) Each Notice of Borrowing shall be irrevocable
and binding on TGC II. TGC II shall advise the Agent
by telephone of its intention to deliver a Notice of
Borrowing prior to the delivery thereof.
(c) Unless the Agent shall have received notice
from a Supplemental Advance Bank prior to the date of
any borrowing pursuant to Section 6.01(a) hereof that
such Supplemental Advance Bank will not make available
to the Agent such Supplemental Advance Bank's
Proportionate Share of such borrowing, the Agent may
assume that such Supplemental Advance Bank has made
such portion available to the Agent on the date of such
borrowing in accordance with Section 6.01(a) hereof and
the Agent may, in reliance upon such assumption, make
available to TGC II on such date a corresponding
amount. If such Supplemental Advance Bank's
Proportionate Share of such borrowing is made available
to the Agent on a date after the date of such
borrowing, such Supplemental Advance Bank shall pay to
the Agent on demand an amount equal to the product of
(i) the daily average Federal Funds Rate during such
period as quoted by the Agent times (ii) the amount of
such Supplemental Advance Bank's Proportionate Share of
such borrowing times (iii) the number of days that
elapse from and including the date of such borrowing to
the date on which such Supplemental Advance Bank's
ratable portion of such borrowing shall have been made
available to the Agent. A certificate of the Agent
submitted to any Supplemental Advance Bank with respect
to any amounts owing under this Section 6.01(c) shall
be conclusive absent manifest error. If such
Supplemental Advance Bank's Proportionate Share of such
borrowing is not in fact made available to the Agent by
such Supplemental Advance Bank within three Business
Days after the date of such borrowing, TGC II agrees to
pay to the Agent, on demand, an amount equal to such
Proportionate Share of such borrowing together with
interest thereon, for each day from the date such
amount was made available to TGC II until the date such
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 87>
amount is repaid to the Agent, at the interest rate
applicable at the time to the Loans comprising such borrowing.
(d) The failure of any Supplemental Advance Bank
to make the Supplemental Advance to be made by it as
part of any borrowing shall not relieve any other
Supplemental Advance Bank of its obligation hereunder
to make its Supplemental Advance on the date of such
borrowing, but no Supplemental Advance Bank shall be
responsible for the failure of any other Supplemental
Advance Bank to make the Supplemental Advance to be
made by such other Supplemental Advance Bank on the
date of any borrowing.".
(c) Section 8.04 of the Credit Agreement shall be
redesignated as "SECTION 8.05" and Section 8.03 of the
Credit Agreement shall be deleted in its entirety and
replaced with the following:
"SECTION 8.03 Supplemental Advances. The
obligation of the Supplemental Advance Banks to make
any Supplemental Advance to TGC II upon the occasion of
each borrowing hereunder (including the initial
borrowing) is subject to the conditions precedent that,
both immediately prior to the making of such
Supplemental Advance and also after giving effect
thereto and to the intended use thereof:
(a) no Default shall have occurred and be
continuing;
(b) the representations and warranties made
by TGC II and TNP in Section 2 hereof, and in each
of the other Project Documents, shall be true and
complete on and as of the date of the making of
such Supplemental Advance in all material respects
with the same force and effect as if made on and
as of such date (or, if any such representation or
warranty is expressly stated to have been made as
of a specific date, as of such specific date);
(c) all Government Approvals set forth in
Schedule 1 hereto shall be in full force and
effect or are reasonably expected to be obtained
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 88>
such that there will not be a material adverse effect
on the construction or operation of the Project;
(d) the amount of such borrowing shall not
cause the aggregate principal amount of the
Supplemental Advances outstanding to exceed the
aggregate amount of the Available Supplemental
Advance Commitment (before giving effect to such
borrowing) on such date;
(e) no default shall have occurred and be
continuing under any Secured Debenture Indenture;
and
(f) the aggregate principal amount of Loans
(including the amount of such borrowing) shall not
exceed the Collateral Coverage Maximum Amount at
such time.
Each notice of borrowing by TGC II hereunder shall
constitute a certification by TGC II to the effect set
forth in clauses (a) through (f) above (both as of the
date of such notice and, unless TGC II otherwise
notifies the Agent prior to the date of such borrowing,
as of the date of such borrowing).
SECTION 8.04 Financial Tests for Supplemental
Advances. The obligation of the Supplemental Advance
Banks to make any Supplemental Advance to TGC II upon
the occasion of each borrowing hereunder (including the
initial borrowing) is subject to the further conditions
precedent that (a) Interest Coverage, as determined on
and as of the Quarterly Date most recently falling
prior to the date 60 Business Days prior to the date of
borrowing, shall not be less than 1.0 and (b) the ratio
of Equity Capital to Total Capitalization, as
determined on and as of the Quarterly Date most
recently falling prior to the date 60 Business Days
prior to the date of borrowing, is greater than or
equal to 20%.".
SECTION 5. Counterparts.
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 89>
This Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one
and the same instrument and any of the parties hereto may execute
this Amendment by signing any such counterpart.
SECTION 6. Project Documents.
Except as expressly amended hereby, the Credit
Agreement shall continue in full force and effect in accordance
with the terms and conditions thereof. All references in any
Project Document to the Credit Agreement and any Schedule or
Exhibit thereto shall be deemed to be references to the Credit
Agreement and any Schedule or Exhibit thereto as amended.
SECTION 7. Joinder of Guarantor.
Contemporaneously with the execution and delivery of
this Amendment, and as consideration therefor, TNP, as the
Guarantor, hereby confirms and consents to each and every of the
terms and conditions of this Amendment and the Credit Agreement
as amended by this Amendment (including, without limitation
Section 17.13 of the Credit Agreement), and agrees that the terms
and conditions of the Guaranty are in full force and effect and
unaffected by the execution by TGC II and TNP of this Amendment
and acknowledges that there are no claims or offsets against, or
defenses or counterclaims to, the Guaranty.
SECTION 8. Headings.
The headings of the various sections of this Amendment
are for convenience of reference only, do not constitute a part
hereof and shall not be interpreted or construed to affect the
meanings or construction of any provision hereof.
SECTION 9. GOVERNING LAW.
THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 90>
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered as of the day and
year first above written.
TEXAS-NEW MEXICO POWER COMPANY
By: /s/ D. R. Barnard
Title:
D.R. Barnard
Vice President
and Chief Financial Officer
TEXAS GENERATING COMPANY II
By: /s/ D. R. Barnard
Title:
D. R. Barnard
President
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 91> BANKS
Existing Loans: ABN AMRO BANK N.V.,
$8,127,272.71 HOUSTON AGENCY
Aggregate Commitment:
$4,427,272.72
Total Supplemental Advance By: /s/Michael A. Tribolet
Commitment: Title: Vice President
$4,427,272.72
Proportionate Share: By: /s/ C. Lipchutz
3.13% Title: Vice President
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 92>
Existing Loans: BANK OF AMERICA NT & SA
$20,318,181.84
Aggregate Commitment:
$11,068,181.83 By: /s/ Mark F. Milner
Title: Vice President
Total Supplemental Advance
Commitment:
$11,068,181.83
Proportionate Share:
7.82%
<PAGE 93>
Existing Loans: THE BANK OF NEW YORK
$35,218,181.82
Aggregate Commitment:
$19,184,848.48 By:/s/ Michael F. Donohue, Jr.
Title: Senior Vice President
Total Supplemental Advance
Commitment:
$19,184,848.48
Proportionate Share:
13.56%
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
PAGE 94
Existing Loans: THE BANK OF NOVA SCOTIA
$23,704,545.46
Aggregate Commitment:
$12,912,878.79 By: /s/ A. S. Norsworthy
Title: Assistant Agent
Total Supplemental Advance
Commitment:
$12,912,878.79
Proportionate Share:
9.13%
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
PAGE 95
Existing Loans: THE CHASE MANHATTAN BANK
$16,931,819.00 (NATIONAL ASSOCIATION)
Aggregate Commitment:
$19,223,485.29
By: James T. Beal, Jr.
Total Supplemental Advance Title: Managing Director
Commitment:
$19,223,485.29
Proportionate Share:
13.59%
** Existing Loans:
$23,704,545.41
** Aggregate Commitment:
$22,912,878.76
** Total Supplemental Advance
Commitment:
$22,912,878.76
** Proportionate Share:
16.20%
* Net of participation of Christiana Bank.
** Without regard to participation of Christiana
Bank. These are the amounts or
definitions of "Aggregate Commitment",
"Proportionate Share" and "Total Supplemental
Advance Commitment" and Section Credit
Agreement, as amended by the First Amendment.
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 96>
Existing Loans: CREDIT SUISSE
$13,545,454.54
Aggregate Commitment:
$7,378,787.88 By:/s/ Guy R. Cirincione
Title: Member of Senior Management
Total Supplemental Advance
Commitment:
$7,378,787.88
Proportionate Share:
5.22%
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
PAGE 97
Existing Loans: FLEET BANK OF MASSACHUSETTS, N.A.
$10,159,090.92
Aggregate Commitment:
$5,534,090.91 By: /s/ Fred M. Manning
Title: Senior Vice President
Total Supplemental Advance
Commitment:
$5,534,090.91
Proportionate Share:
3.91%
** Existing Loans:
$20,318,181.84
** Aggregate Commitment:
$11,068,181.82
** Total Supplemental Advance
Commitment:
$11,068,181.82
** Proportionate Share:
7.82%
* Net of participation of The Nippon Credit Bank, Ltd.
** Without regard to participation of The Nippon
Credit Bank, Ltd.
These are the amounts or entries referred to in the
definitions of "Aggregate Commitment",
"Proportionate Share" and "Total
Supplemental Advance Commitment" and Section 4.01 of
the Credit Agreement, as amended by the First
Amendment.
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 98>
Existing Loans: NATIONSBANK OF TEXAS, N.A.
$11,513,636.36
Aggregate Commitment:
$22,271,969.69 By: /s/ Vincent Liberio
Title: Senior Vice President
Total Supplemental Advance
Commitment:
$22,271,969.69
Proportionate Share:
15.74%
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 99>
Existing Loans: PROSPECT STREET SENIOR PORTFOLIO,
$11,513,636.36 L.P.
By: PROSPECT STREET SENIOR LOAN
Aggregate Commitment: CORP., as general partner
$6,271,969.69
By: /s/ Preston I. Carnes, Jr.
Title: Vice President
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 100>
Existing Loans: UNION BANK
$11,513,636.36
Aggregate Commitment:
$6,271,969.69 By: /s/ Peter R. Saggau
Title: Vice President
Total Supplemental Advance
Commitment:
$6,271,969.69
Proportionate Share:
4.43%
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 101>
Existing Loans: WESTPAC BANKING CORPORATION
$23,704,545.46
Aggregate Commitment:
$12,912,878.79 By: /s/ Officer of Westpac
Title: Vice President
Total Supplemental Advance
Commitment:
$12,912,878.79
Proportionate Share:
9.13%
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 102>
Existing Loans: Z-LANDERBANK BANK AUSTRIA A.G.
$20,318,181.84
Aggregate Commitment:
$11,068,181.83 By: /s/ Kevin McGinn
Title: Senior Vice President
Total Supplemental Advance
Commitment:
$11,068,181.83
By: /s/ Peter Scharf
Proportionate Share: Title: Assistant Vice President
7.82%
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 102>
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Agent
By /s/ James T. Beale, Jr.
Title: Managing Director
Acknowledged and Agreed to:
THE CHASE MANHATTAN BANK,
(NATIONAL ASSOCIATION), as
Collateral Agent
By /s/ James T. Beale, Jr.
Title: Managing Director
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 104>
VOTING PARTICIPANT
Existing Loans: The following Voting Participant
$6,772,726.41 consents and agrees to the foregoing
Amendment No. 1 to the Unit 2
Aggregate Commitment: First Amended and Restated Project
$3,689,393.47 Loan and Credit Agreement:
Total Supplemental Advance CHRISTIANA BANK
Commitment:
$3,689,393.47
By:/s/Jahn O. Roising Peter M. Dodge
Proportionate Share: Title:
2.61% First Vice President Vice President
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 105>
VOTING PARTICIPANT
Existing Loans: The following Voting Participant
$10,159,090.92 consents and agrees to the foregoing
Amendment No. 1 to the Unit 2
Aggregate Commitment: First Amended and Restated Project
$5,534,090.91 Loan and Credit Agreement:
Total Supplemental Advance THE NIPPON CREDIT BANK, LTD.
Commitment:
$5,534,090.91
By:/s/ Peter Capitelli
Proportionate Share: Title: Vice President & Manager
3.91%
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 106> EXHIBIT A
TO AMENDMENT NO. 1 TO
UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
[FORM OF NEW PROJECT NOTE]
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE >
EXHIBIT B
TO AMENDMENT NO. 1 TO
UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
[FORM OF REPLACEMENT NOTE]
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE >
EXHIBIT C
TO AMENDMENT NO. 1 TO
UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
[FORM OF INTERCREDITOR AMENDMENT NO. 2]
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE >
EXHIBIT D
TO AMENDMENT NO. 1 TO
UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
[FORM OF FOURTH TGC II MODIFICATION
AND EXTENSION AGREEMENT]
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE >
EXHIBIT E
TO AMENDMENT NO. 1 TO
UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
[FORM OF FIFTH TGC II MODIFICATION
AND EXTENSION AGREEMENT]
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE >
EXHIBIT F
TO AMENDMENT NO. 1 TO
UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
[FORM OF SUBSEQUENT TGC II MODIFICATION
AND EXTENSION AGREEMENT]
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE >
EXHIBIT G
TO AMENDMENT NO. 1 TO
UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
[FORM OF TNP SECOND LIEN MORTGAGE MODIFICATION NO. 2]
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE >
EXHIBIT H
TO AMENDMENT NO. 1 TO
UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
[FORM OF SECTION 4.05 LEGAL OPINION]
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE >
EXHIBIT I
TO AMENDMENT NO. 1 TO
UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
[FORMS OF SECTION 4.05 CLOSING DATE LEGAL OPINIONS]
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE >
EXHIBIT J
TO AMENDMENT NO. 1 TO
UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
[FORM OF FIRST DEBENTURE TRUSTEE CONSENT]
AMENDMENT NO. 1 TO UNIT 2 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE >