FOURTH TGC II MODIFICATION AND EXTENSION AGREEMENT
ATTENTION ROBERTSON COUNTY, TEXAS RECORDER:
RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO:
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION)
c/o DONALD H. SNELL
O'Neill, Snell, Banowsky & McClure
200 Crescent Court, Suite 1030
Dallas, Texas 75201
THE STATE OF TEXAS
COUNTY OF ROBERTSON
FOURTH TGC II MODIFICATION AND EXTENSION AGREEMENT
THIS FOURTH TGC II MODIFICATION AND EXTENSION AGREEMENT
(this "Agreement") is made as of September 29, 1993 among the
banks (the "Banks") which are parties to that certain Unit 2
First Amended and Restated Project Loan and Credit Agreement
dated as of January 8, 1992 (as amended by the First Amendment
(as defined below), and as further amended, supplemented or
modified and in effect from time to time, the "Credit
Agreement"), THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), as
agent for the Banks and the Replacement Note Holder (in such
capacity, together with its successors in such capacity, the
"Agent") (the Banks, the Replacement Note Holder and the Agent
collectively herein referred to as the "Secured Parties"), TEXAS-
NEW MEXICO POWER COMPANY, a Texas corporation ("TNP") and TEXAS
GENERATING COMPANY II, a Texas corporation ("TGC II" or the
"Borrower"). Unless otherwise defined herein, the capitalized
terms used herein shall have the meanings given to those terms in
the Credit Agreement.
W I T N E S S E T H:
Recitals:
A. The Banks, the Agent, Texas PFC, Inc., a Delaware
corporation ("TPFC") and TNP have heretofore entered into the
Project Loan and Credit Agreement dated as of October 1, 1988
(the "Project Credit Agreement") pursuant to the terms of which
the Banks made Loans, prior to the Alternative Assumption Date,
FOURTH TGC II MODIFICATION AND EXTENSION AGREEMENT
<PAGE 1>
to TPFC and, thereafter, to the Borrower in a maximum
outstanding aggregate principal amount of TWO HUNDRED EIGHTY
EIGHT MILLION FIVE HUNDRED THOUSAND DOLLARS ($288,500,000).
B. The Alternative Assumption Date occurred as of May 31,
1991. Certain of the obligations of TPFC under the terms of the
Project Credit Agreement were assumed by the Borrower pursuant to
that certain Assumption Agreement recorded in Volume 566 at Page
252 of the Public Records of Robertson County, Texas. The
Mortgage Trust Estate was conveyed by TPFC to the Borrower
pursuant to that certain Conveyance and Bill of Sale dated
effective as of May 31, 1991, recorded in Volume 566 at Page 283
of the Public Records of Robertson County, Texas.
C. The Obligations under the terms of the Credit Agreement
are secured, in part, by the terms, provisions, liens and
security interests of that certain Mortgage and Deed of Trust
(with Security Agreement and UCC Financing Statement for Fixture
Filing), dated as of October 1, 1988 (the "Mortgage") which was
filed of record on October 4, 1988 in Volume 521 at Page 601 of
the Public Records of Robertson County, Texas. The Mortgage
covers certain property as more particularly described therein.
D. TNP, the Borrower and the Secured Parties entered into
the Credit Agreement and executed and delivered the (i) First TGC
II Modification and Extension Agreement dated as of January 24,
1992 and caused it to be recorded in Volume 573 at Page 484 of
the Public Records of Robertson County, Texas, (ii) the Second
TGC II Modification and Extension Agreement dated as of January
27, 1992 and caused it to be recorded in Volume 573 at Page 511
of the Public Records of Robertson County, Texas and (iii) the
Third TGC II Modification and Extension Agreement dated as of
January 27, 1992 and caused it to be recorded in Volume 573 at
Page 525 of the Public Records of Robertson County, Texas, in
each case as a memorial of certain modifications of, amendments
to or occurrence of events under the Credit Agreement and to
confirm the validity and priority of the liens, security
interests and assignments of the Mortgage securing the
Obligations.
E. TNP, the Borrower and the Secured Parties have modified
the terms of the Credit Agreement as set forth in the First
Amendment (as defined below) and have executed, delivered and
caused this Agreement to be filed of record as a memorial of the
occurrence of such modifications and to confirm the validity and
priority of the liens, security interests and assignments of the
Mortgage securing the Obligations.
FOURTH TGC II MODIFICATION AND EXTENSION AGREEMENT
<PAGE 2>
F. The Agent is authorized by Section 15.01 of the Credit
Agreement to execute and deliver this Agreement.
Agreements
NOW, THEREFORE, for good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, TNP, the
Borrower and the Agent, on behalf of the Secured Parties, agree
as follows:
1. Modification of Terms of the Credit Agreement. The
terms and provisions of the Credit Agreement are amended and
modified pursuant to that certain Amendment No. 1 dated as of
September 21, 1993 to the Unit 2 First Amended and Restated
Project Loan and Credit Agreement of even date herewith, executed
and delivered by TNP, the Borrower and the Banks and other
parties thereto (the "First Amendment"). The First Amendment,
among other things (A) facilitates TNP's or TGC II's issuing
Permitted Collateralized Indebtedness that, upon the fulfillment
of certain terms and conditions of the Credit Agreement, shall be
Obligations secured by the liens, security interests and
assignments of the Mortgage from time to time, (B) provides for
the issuance of new promissory notes (referred to as New Project
Notes) to evidence the aggregate principal amount of all
outstanding indebtedness ("Project Loans") owed to the Banks
(including amounts under the revolving loan facility referred to
in clause (C) of this Section 1), (C) provides for TGC II to
borrow under a revolving loan facility and (D) provides that the
current aggregate principal amount of Project Loans outstanding,
$147,750,000, is the maximum aggregate principal amount that may
be outstanding as Project Loans (of which up to an aggregate
principal amount of $141,478,030.31 may be outstanding as
revolving loans). In addition, there remains outstanding under
the Credit Agreement $65,000,000 of Replacement Loans evidenced
by the First Replacement Note.
2. Effect of Modification. The Obligations as described
in the Credit Agreement are secured by the liens, security
interests and assignments of the Mortgage and the other Security
Documents. The validity and priority of the liens, security
interests and assignments of the Mortgage shall not be
extinguished, impaired, reduced, released, or adversely affected
by the terms of this Agreement or the First Amendment.
3. Extension of Rights and Liens. The Borrower hereby
extends all rights, titles, liens, security interests,
assignments, powers and privileges securing the Obligations as
described in the Credit Agreement by virtue of the Mortgage until
all of such Obligations have been paid in full and agrees that
FOURTH TGC II MODIFICATION AND EXTENSION AGREEMENT
<PAGE 3>
the execution of this Agreement shall in no manner impair the
rights, titles, liens, security interests, assignments, powers
and privileges existing by virtue of the Mortgage, as they are
extended and modified hereby.
4. Joinder of Guarantor. TNP, as guarantor under the TNP
Guaranty, hereby (i) consents to the execution, delivery and
performance by TGC II of this Agreement and any other Amendment
Document to which TGC II is or is intended to be a party and the
consummation of the transactions contemplated hereby and thereby,
(ii) agrees that the TNP Guaranty shall remain in full force and
effect after giving effect to such transactions and (iii)
acknowledges that there are no claims or offsets against, or
defenses or counterclaims to, the TNP Guaranty.
5. Successors and Assigns. This Agreement shall be
binding upon, and inure to the benefit of, the successors and
assigns of TNP, the Borrower and the Agent, for the benefit of
the Secured Parties; provided, however, nothing contained in this
Section is intended to authorize TNP or the Borrower to assign
any of the Obligations or to sell any of the Mortgage Trust
Estate except in accordance with the Credit Agreement and the
Facility Purchase Agreement.
6. Counterparts. This Agreement 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 Agreement by signing any such
counterpart.
FOURTH TGC II MODIFICATION AND EXTENSION AGREEMENT
<PAGE 4>
EXECUTED as of the date first hereinabove written.
SECURED PARTIES:
THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION), as Agent
By:/s/Bettylou J. Robert
Title: Vice President
BORROWER:
TEXAS GENERATING COMPANY II,
a Texas corporation
By:/s/ D. R. Barnard
Title: President
The undersigned hereby
consents and agrees to
the foregoing pursuant
to Section 1(c) of the
Intercreditor Agreement
as defined in the Credit
Agreement.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Collateral Agent
By:/s/ Bettylou J. Robert
Title: Vice President
FOURTH TGC II MODIFICATION AND EXTENSION AGREEMENT
<PAGE 5>
The undersigned is a party to
this Agreement for the sole
purpose of agreeing to the
provisions of Section 4 to
this Agreement.
TNP:
TEXAS-NEW MEXICO POWER COMPANY,
a Texas corporation
By:/s/ D. R. Barnard
Title: Sector Vice President
& Chief Financial Officer
FOURTH TGC II MODIFICATION AND EXTENSION AGREEMENT
<PAGE 6>
STATE OF NEW YORK
COUNTY OF NEW YORK
This instrument was acknowledged before me on the 27th day
of September, 1993, by Bettylou J. Robert, Vice President of THE
CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), as Agent.
/s/ Elizabeth A. Sullivan
NOTARY PUBLIC in and for
the State of NEW YORK
My Commission Expires:
February 1, 1995
FOURTH TGC II MODIFICATION AND EXTENSION AGREEMENT
<PAGE 7>
STATE OF NEW YORK
COUNTY OF NEW YORK
This instrument was acknowledged before me on the 27th day
of September, 1993, by Bettylou J. Robert, Vice President of THE
CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), as Collateral Agent.
/s/ Elizabeth A. Sullivan
NOTARY PUBLIC in and for
the State of NEW YORK
My Commission Expires:
February 1, 1995
FOURTH TGC II MODIFICATION AND EXTENSION AGREEMENT
<PAGE 8>
STATE OF NEW YORK
COUNTY OF NEW YORK
This instrument was acknowledged before me on the 27th day
of September, 1993, by D. R. Barnard, Sector Vice President &
CFO of TEXAS-NEW MEXICO POWER COMPANY, a Texas corporation, on
behalf of said corporation.
/s/ Aisha Piracha
NOTARY PUBLIC in and for
the State of NEW YORK
My Commission Expires:
November 16, 1994
FOURTH TGC II MODIFICATION AND EXTENSION AGREEMENT
<PAGE 9>
STATE OF NEW YORK
COUNTY OF NEW YORK
This instrument was acknowledged before me on the 27th day
of September, 1993, by D. R. Barnard, President of TEXAS
GENERATING COMPANY II, a Texas corporation, on behalf of said
corporation.
/s/ Aisha Piracha
NOTARY PUBLIC in and for
the State of TEXAS
My Commission Expires:
November 16, 1994
FOURTH TGC II MODIFICATION AND EXTENSION AGREEMENT
<PAGE 10>