EXECUTION
COUNTERPART
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AMENDMENT NO. 1
Dated as of September 21, 1993
to the
UNIT 1
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
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 1 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 ("TGC"), each of the lenders that is a
signatory hereto identified under the caption "BANKS" on the
signature pages hereof or which, pursuant to Section 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 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
Project Loans outstanding under the Credit Agreement. The
Project 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 have the right to secure additional debt
securities with the Collateral, subject to the terms and
conditions of Section 9.32 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 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 1>
established in the Credit Agreement for TNP or TGC 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'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 to the Banks under the Credit Agreement 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
purchase by TNP, of $140,000,000 of Project Loans. On July 2,
1993, TNP requested certain amendments to the Unit 2 First
Amended and Restated Project Loan and Credit Agreement dated as
of January 8, 1992 among TNP, TGC II, 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 2 Credit
Agreement") and simultaneously with the entering into of this
Amendment the parties to the Unit 2 Credit Agreement are entering
into Amendment No. 1 to the Unit 2 Credit Agreement in order to
effect such amendments to the Unit 2 Credit Agreement.
6. The funds necessary for the payments, prepayments and
purchase of 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 the issuance by TNP of Second Secured
Debentures in an aggregate principal amount of up to $140,000,000
under the Second Secured Debenture Indenture. The $140,000,000
of Project Loans acquired by TNP will, automatically upon their
purchase by TNP, be converted to the Second Replacement Loan,
which Loan will be evidenced by the Second Replacement Note which
Note will be secured pursuant to the Security Documents pari
passu with the other Obligations under the Credit Agreement, the
other Project Documents and the First Replacement Loan. The
Second Secured Debentures will be secured by TNP's pledge of the
Second Replacement Note to the Second Debenture Trustee under the
Second Secured Debenture Indenture. As a result of the pledge of
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
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the Second Replacement Note, the Second Secured Debentures will
indirectly share pari passu in the Collateral securing the
remaining Project Loans and the First Replacement Loan and,
indirectly, the First Secured Debentures.
7. Certain provisions of this Amendment will become
effective only upon the payment, prepayment and purchase of a
portion of the Project Loans and the prepayment of certain of the
indebtedness under the Unit 2 Credit Agreement and the
satisfaction of certain other conditions.
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, 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 each shall deliver to the Agent
certified copies of the resolutions of their
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
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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 the issuance by TNP
of Second Secured Debentures in an aggregate principal amount of
up to $140,000,000 under the Second Secured Debenture Indenture
and all other documents evidencing other necessary action with
respect thereto;
(ii) TNP and TGC 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, 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 or affecting in
any material respect any of its respective
properties, revenues or assets;
(iii) TNP and TGC each shall deliver to the Agent a
certificate signed by an Authorized Officer of
TNP or TGC, as applicable, certifying that (A)
the representations and warranties of each of
TNP and TGC, 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,
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
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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 under any of the other Project
Documents to which either TNP or TGC 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 each shall deliver to the Agent a
certificate signed by an Authorized Officer of
TNP or TGC, as applicable, certifying that (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 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, as applicable,
and are final, in full force and effect and not
subject to appeal;
(v) TNP and TGC each shall deliver to the Agent
legal opinions from counsel to TNP and TGC 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 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, the Title
Company shall have issued to the Agent (A) a
T-38 endorsement to Stewart Title Guaranty
Mortgage Policy No. M-5802-482888 and a T-38
endorsement to Stewart Title Guaranty Mortgage
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
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Policy No. M-5832-25812, each with respect to such Fourth TGC
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 Mortgage Trust Estate is vested in TGC and that the TGC
Mortgage constitutes a valid first mortgage lien on the TGC
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;
(ix) the TNP Second Lien Mortgage Modification No. 2
shall have been duly executed and delivered by
the intended parties thereto;
(x) 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;
(xi) TNP and TGC 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
(xii) Amendment No. 1 to the Unit 2 Credit Agreement
shall have been duly executed and delivered by
TNP, TGC II, the Banks (under and as defined in
the Unit 2 Credit Agreement), the Agent (under
and as defined in the Unit 2 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 (xii) of Amendment No. 1 to the
Unit 2 Credit Agreement shall have been
satisfied.
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
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(b) The effectiveness of Section 3 of this Amendment shall
be subject to the further conditions precedent that, on
or before December 21, 1993, 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 (provided that, if such Section
4.05 Closing shall occur on or before
November 15, 1993 the parties hereto hereby
waive all notices required under Sections
4.05(c) and 4.05(d) of the Credit Agreement (as
amended by this First Amendment) and evidence
that there is no objection to the terms and
conditions of the Second Secured Debentures, due
2003) with respect to Second Secured Debentures
in an aggregate principal amount of $140,000,000
and TNP shall have contemporaneously issued New
Bonds in the amount of up to $100,000,000 and
(A) TNP shall have applied the proceeds from
newly issued Second Secured Debentures (which
meet the terms and conditions of Section 4.05 of
the Credit Agreement as amended by this
Amendment) to purchase Project Notes in the
amount of $140,000,000 and (B) TNP or TGC shall
have prepaid the Project Loans in the amount of
$6,000,000 and TNP or TGC II shall have applied
the proceeds of the New Bonds plus existing cash
to prepay the "Project Loans," under and as
defined in the Unit 2 Credit Agreement, as
amended by Amendment No. 1 thereto, in the
amount of $75,750,000;
(ii) The Banks (excluding the New Participants) shall
have received payment in full of all accrued
interest on the Project Loans purchased, and
simultaneously prepaid, at the Section 4.05
Closing referred to in clause (i) of this
subsection (b). The New Participants shall have
received payment in full of all principal of and
accrued interest on the participations in the
Project Loans acquired by each such New
Participant from the Banks (excluding the New
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
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Participants) under the New Participation Agreement.
(iii) TNP and TGC each shall deliver to the Agent a
certificate signed by an Authorized Officer of
TNP or TGC, 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 (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 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, 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 or affecting in
any material respect any of its respective
properties, revenues or assets;
(v) TNP and TGC each shall deliver to the Agent
legal opinions of counsel to TNP and TGC (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 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
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(vi) the Fifth TGC 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, the Title
Company shall have issued to the Agent (A) a
T-38 endorsement to Stewart Title Guaranty
Mortgage Policy No. M-5832-25812, a T-38
endorsement to the Stewart Title Guaranty
Mortgage Policy issued pursuant to Section 17.21
of the Credit Agreement, as amended by this
Amendment and T-38 endorsement to Stewart Title
Guaranty Mortgage Policy No. M-5802-482888, each
with respect to such Fifth TGC 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 in defeasible title to the TGC
Mortgage Trust Estate is vested in TGC and that
the TGC Mortgage constitutes a valid first
mortgage lien on the TGC 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 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
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 9>
shall confirm in writing delivered to TNP and TGC that the
provisions of this Amendment (except Section 3 hereof) have
become effective. Promptly upon the satisfaction of the
conditions precedent described in Section 2(b) of this Amendment
the Agent shall confirm in writing delivered to TNP and TGC that
the provisions of Section 3 of this Amendment have become
effective.
SECTION 3.
SECTION 3.01 Additional Amendments.
(a) Section 5.01 of the Credit Agreement shall be deleted
in its entirety and replaced with the following:
"SECTION 5.01. Outstanding Loans.
As of the Section 3 Effective Date, the parties hereto
hereby acknowledge the payment, prepayment or purchase
in full of the Project Loans, all interest due and
payable thereon and all other amounts due and payable
by TNP and TGC to the Banks under this Agreement and
the other Project Documents. TNP and TGC hereby
acknowledge and agree that as of the Section 3
Effective Date there are outstanding $65,000,000 in
First Replacement Loans and $140,000,000 in Second
Replacement Loans.".
(b) Section 5.02(b)(iii) of the Credit Agreement shall be
deleted in its entirety and replaced with the
following:
"(iii) [INTENTIONALLY OMITTED].".
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.
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
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SECTION 4. Conforming Changes to the Credit Agreement.
(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 9 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".
(c) Recital 10 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: "Debenture Trustee",
"Replacement Loan", "Replacement Note",
"Replacement Note Holder", "Replacement Note
Maturity Date", "Scheduled Reduction Dates",
"Secured Debenture Indenture", "Secured
Debentures", "Security Documents" and "TGC
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.
"Collateral Coverage Maximum Amount" shall
mean, as of any date of determination on or after
the First Amendment Effective Date, (a)
$270,000,000 minus (b) the amount of payments made
by TNP resulting in transfers made by TGC (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 1 from TGC to TNP
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
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which Interests (as so defined) have been released from the lien
of the TGC Mortgage. On the First Section 4.05 Closing Date
(after giving effect to the transactions contemplated to occur on
or prior to the First Section 4.05 Closing Date), the Collateral
Coverage Maximum Amount shall be $205,000,000 subject to
reduction thereafter by virtue of transactions described in
clause (b) of the preceding sentence occurring after the First
Section 4.05 Closing Date.
"Debenture Trustees" shall mean the First
Debenture Trustee, the Second Debenture Trustee
and any Subsequent Debenture Trustee, and
"Debenture Trustee" shall mean any of them.
"Fifth TGC Modification and Extension
Agreement" shall mean the Fifth TGC Modification
and Extension Agreement among the Agent, the
Collateral Agent, TNP and TGC, substantially in
the form of Exhibit D to the First Amendment.
"First Amendment" shall mean the Amendment
No. 1 dated as of September 21, 1993 to this
Agreement among TNP, TGC, the Banks, the Voting
Participants and the Agent.
"First Amendment Documents" shall mean the
First Amendment, the Second Replacement Note, 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 Mortgage
Modifications and the TNP Second Lien Mortgage
Modification No. 2.
"First Amendment TGC Mortgage Modifications"
shall mean the Fourth TGC Mortgage Modification
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
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and Extension Agreement and the Fifth TGC 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 I 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(g) hereof, the
stated maturity date of the First Secured
Debentures.
"First Section 4.05 Closing Date" shall mean
the date on which the first Section 4.05 Closing
hereunder with respect to the first series of
Second Secured Debentures shall occur.
"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 Modification and Extension
Agreement" shall mean the Fourth TGC Modification
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
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and Extension Agreement among the Agent, the Collateral Agent,
TNP and TGC, substantially in the form of Exhibit C 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 thereto and
Chase in its several capacities as the Agent, the
Collateral Agent and the Agent under the Unit 2
Credit Agreement, substantially in the form of
Exhibit B to the First Amendment.
"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(g)
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.
"Register" shall have the meaning ascribed to
such term in Section 4.05(f) 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, the Second Replacement Loan and
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 14>
any Subsequent 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
(ii) with respect to the Second
Replacement Note, 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 Second Replacement Note, such
Subsequent Replacement Note or such other
Replacement Note by TNP to a Second Debenture
Trustee pursuant to a Second Secured
Debenture Indenture or 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
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 15>
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
(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 1 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
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 16>
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, on January 1, 2050.
"Replacement Notes" shall mean the First
Replacement Note, the Second Replacement Note and
any Subsequent Replacement Notes, and "Replacement
Note" shall mean any of them.
"Scheduled Reduction Dates" shall mean, the
First Scheduled Reduction Date, the Second
Scheduled Reduction Date, the Third Scheduled
Reduction Date (if applicable), the Final Maturity
Date and each Replacement Note Maturity Date.
"Second Debenture Trustee" shall mean the
trustee under, or any successor trustee under, the
Second Secured Debenture Indenture.
"Second Replacement Loan" shall have the
meaning ascribed to such term in Section 4.05(e)
hereof.
"Second Replacement Note" shall have the
meaning ascribed to such term in Section 4.05(e)
hereof.
"Second Secured Debenture Indenture" shall
mean the Indenture and Security Agreement between
TNP and the Second Debenture Trustee, as trustee,
as the same may from time to time be amended,
modified or supplemented or its provisions waived.
"Second Secured Debentures" shall mean the
debentures issued by TNP under the Second Secured
Debenture Indenture.
"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.
"Section 4.05 Closing" shall have the meaning
ascribed to such term in Section 4.05(d) hereof.
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 17>
"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, the Second
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, the Second Secured Debentures
and any Subsequent Secured Debentures (which may
include subsequent series of debentures issued
under any indenture supplemental to the Second
Secured Debenture Indenture or 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 Mortgage, the TNP
Second Lien Mortgage, the Amendment Security
Documents and the First Amendment Security
Documents.
"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.
"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.
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 18>
"Subsequent Secured Debenture Indentures"
shall mean any indenture or agreement, other than
the First Secured Debenture Indenture and the
Second Secured Debenture Indenture but including
any indenture supplemental to the Second 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 and the Second 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 Modification and Extension
Agreement" shall mean a TGC Modification and
Extension Agreement among the Agent, the
Collateral Agent, TNP and TGC, substantially in
the form of Exhibit E to the First Amendment, and
otherwise duly completed.
"Ten Acre Releases" shall have the meaning
ascribed to such term in Section 17.20(c) hereof.
"TGC Mortgage Modifications" shall mean
(a) the First TGC Modification and Extension
Agreement among the Agent, the Collateral Agent,
Donald H. Snell as mortgage trustee, TNP and TGC,
(b) the Second TGC Modification and Extension
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 19>
Agreement among the Agent, the Collateral Agent, TNP and TGC,
(c) the Third TGC Modification and Extension Agreement among the
Agent, the Collateral Agent, TNP and TGC, (d) the Fourth TGC
Modification and Extension Agreement among the Agent, the
Collateral Agent, TNP and TGC, substantially in the form of
Exhibit C to the First Amendment, (e) the Fifth TGC Modification
and Extension Agreement among the Agent, the Collateral Agent,
TNP and TGC, substantially in the form of Exhibit D to the First
Amendment, (f) each Subsequent TGC Modification and Extension
Agreement among the Agent, the Collateral Agent, TNP and TGC,
substantially in the form of Exhibit E to the First Amendment and
(g) any other modification and extension agreement among the
Agent, the Collateral Agent, TNP and TGC, 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 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 F to the First Amendment.";
(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) the Second Replacement Loan and
any Subsequent Replacement Loan, each date on
which TNP is obligated to make a deposit of cash
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 20>
collateral in respect of interest on the Second Secured
Debentures or any Subsequent Secured Debentures, as applicable,
pursuant to provisions of the applicable Second Secured Debenture
Indenture or 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";
(x) Delete clause (b) in the definition of "Post-
Default Rate" and substitute in its place the
following:
"(b) subject to Section 4.05(g) 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
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 21>
of any outstanding Secured Debentures, a rate per annum 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.
(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 (in each case, assuming the due execution
and delivery of documents required to be delivered in
connection therewith and the performance of the other
conditions precedent thereto by the parties (other than
TNP or TGC) thereto), the applicable Section 4.05
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 22>
Closing 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 amended
by deleting the phrase "none of the Banks and the
Replacement Note Holder" in the fourth sentence thereof
and inserting in lieu thereof the phrase "neither any
of the Banks nor any of the Replacement Note Holders".
(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) and
(g) 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
consisting of (1) Project Loans and/or (2)
Replacement Loans (the indebtedness referred to in
the foregoing clauses (A) and (B) hereinafter
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 23>
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 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 to the
Banks under this Agreement 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, (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 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
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 24>
related Section 4.05(b)(ii) Collateralized Indebtedness of TGC
constituting Replacement Loans) is not subject to prepayment
(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
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
desires to issue additional or replacement
Permitted Collateralized Indebtedness (other than
Permitted Collateralized Indebtedness constituting
Project Loans):
(i) TNP and TGC shall deliver, not less
than 30 days prior to the anticipated date of the
applicable Section 4.05 Closing, 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 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 to the effect that
such terms comply with the terms and conditions of
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 25>
Section 4.05(b) hereof and (D) an opinion of counsel for each of
TNP and TGC substantially in the form of Exhibit G to the First
Amendment. TNP and TGC 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 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 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
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 26>
by TNP, TGC and the Agent. Prior to or at each Section 4.05
Closing:
(i) TNP, TGC, 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 shall
provide (A) copies of Uniform Commercial Code
search reports with respect to each of TGC 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 shall deliver to the Agent a
Subsequent TGC Modification and Extension
Agreement and, at the sole cost of TNP and TGC,
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 Mortgage securing the Loans
outstanding hereunder and evidenced by Project
Notes or Replacement Notes on such date, each with
respect to such TGC Mortgage Modification and
Extension Agreement;
(iii) At the sole cost of TNP and TGC,
the Title Company shall deliver to the Agent a
title information report, showing that good and
indefeasible title to the TGC Mortgage Trust
Estate is vested in TGC and that the TGC Mortgage
constitutes a valid first mortgage lien on the TGC
Mortgage Trust Estate and showing that there are
no intervening liens which would adversely affect
the priority of the liens securing Loans, subject
only to the Permitted Liens;
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 27>
(iv) TNP and TGC each shall deliver to
the Agent legal opinions of counsel to TNP and TGC
dated the applicable Section 4.05 Closing Date and
substantially in the forms of Exhibit H hereto;
(v) TNP and TGC 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 each shall deliver to
the Agent a certificate signed by an Authorized
Officer of TNP or TGC, 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 each shall deliver to
the Agent a certificate signed by an Authorized
Officer of TNP or TGC, 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
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 28>
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 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 each shall deliver to
the Agent a certificate signed by an Authorized
Officer of TNP or TGC, as applicable, and dated
the applicable Section 4.05 Closing Date
certifying that (A) the representations and
warranties of each of TNP and TGC, 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 under any of the
other Project Documents to which either TNP or TGC
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 each shall deliver to
the Agent a certificate signed by an Authorized
Officer of TNP or TGC, 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, as
applicable, and are final, in full force and
effect and not subject to appeal; and
(x) TNP and TGC shall (A) if the
transactions then consummated involve a refunding
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 29>
of existing Secured Debentures already secured by 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 and (B) if the
transactions then consummated involve the purchase by TNP or TGC
of Project Loans, pay to the Agent in Dollars, in immediately
available funds, the purchase price for the Project Loans then
being purchased pro rata from the 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 to the Banks under this
Agreement 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 Project Loans, 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 (pro rata according to the aggregate
outstanding principal amount of each Bank's
Project Loans) a portion of such Bank's Project
Loans 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 such that the aggregate
principal amount of Project Loans so purchased is
equal to the amount of the proceeds (at the
election of TNP, net of any offering or similar
transaction costs) from the Second Secured
Debentures or Subsequent Secured Debentures, as
applicable, issued on such Section 4.05 Closing
Date. The purchase price for the Project Loans so
purchased by TNP shall be equal to the principal
amount thereof. Simultaneously with the sale of
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 30>
each Bank's Project Loans to TNP, TGC shall pay to the Agent,
for the account of each Bank, all accrued and unpaid interest on
such portion of such Bank's Project Loans to be sold to TNP plus
(except with respect to the Project Loans purchased with the
proceeds of Second Secured Debentures on the First Section 4.05
Closing Date) the aggregate amount (if any) which would have been
payable to each Bank under Section 7.05 hereof had such portion
of the Project Loans 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, 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 so purchased by TNP shall be converted into a loan or loans
(with respect to such purchase of Project Loans from proceeds of
the Second Secured Debentures, whether one or more, the "Second
Replacement Loan" and with respect to each such purchase of
Project Loans 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 shall execute
and deliver to TNP at such Section 4.05 Closing a promissory note
or notes (with respect to the purchase of the Second Replacement
Loan, whether one or more, the "Second Replacement Note" and 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
Second Replacement Loan or such Subsequent Replacement Loan, as
applicable, and, in each case, substantially in the form of
Exhibit A to the First Amendment and otherwise duly completed.
The Second Replacement Note and any such Subsequent Replacement
Notes shall be dated, and shall bear interest from, the Section
4.05 Closing Date on which such Second Replacement Note or any
such Subsequent Replacement Notes, as applicable,
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 31>
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 the Second
Replacement Note and 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 to such Bank under this Agreement and the
other Project Documents, such Bank shall endorse and deliver its
Project Note to the Agent so that such 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
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 32>
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
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,
be replaced by a Replacement Note in the form of Exhibit A to the
First Amendment).
(f) 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.
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 33>
(g) If, on or before any date on which TGC
is obligated to make any payment of any 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 the
Second Replacement Note or 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 (g), 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 under such Replacement
Note, then TGC 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
under such Replacement Note, and
(B) TGC 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).
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 34>
In the event that any Secured Debenture is paid in
full by TNP and, by operation of this clause (i)
TGC is not obligated to make further payments of
principal and interest under or with respect to
the related Replacement Loan and Replacement Note,
(x) the indebtedness of TGC 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 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, be
replaced by a Replacement Note in the form of
Exhibit A 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 to
the Banks under this Agreement and the other
Project Documents, no Section 4.05 Closing shall
occur unless TNP and TGC shall each have delivered
to the Agent such other certificates, documents or
other information in connection with the
applicable Section 4.05 Closing as the Agent may
reasonably determine are necessary to effect the
transactions contemplated by Section 4.05 hereof
at such Section 4.05 Closing.".
(k) Section 5.02 of the Credit Agreement shall be amended
as follows:
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 35>
(A) in subsection (a) delete the last sentence in its
entirety and substitute in its place the
following: "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 to the
Banks under this Agreement and the other Project
Documents, and subject to the terms and conditions
of Section 4.05(b) hereof, TNP and TGC may prepay
or otherwise reduce or cancel the Replacement
Loans in accordance with the terms and conditions
of the applicable Secured Debenture Indenture.";
(B) in subsection (b)(i) insert, after the words "TGC
shall repay", the words "or TNP shall purchase in
accordance with the terms and conditions of
Section 4.05 hereof,";
(C) delete the word "and" at the end of subsection
(b)(i)(D) thereof;
(D) in subsection (b)(i)(E), 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:
"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 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 shall prepay or purchase the 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 or purchased since the date of the
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 36>
previous prepayment or purchase 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;
(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".
(l) Section 5.04 of the Credit Agreement shall be amended
by (A) substituting the word "any" for "the" before the
term "Replacement Loan" in the second sentence thereof;
(B) adding an "s" to the end of the term "Replacement
Note Holder" in the third sentence thereof and (C)
substituting the word "any" for "the" before both
occurrences of the term "Replacement Note Holder" in
the fourth sentence thereof.
(m) Section 5.05 of the Credit Agreement shall be amended
as follows:
(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(g) hereof, if such
Loan is a Replacement Loan, a rate per annum
at all times equal to (A) the rate of
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 37>
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 the Second
Secured Debenture Indenture or 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 Second Secured Debenture Indenture or 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.".
(n) Delete Section 5.10 of the Credit Agreement in its
entirety and substitute in its place the following:
"SECTION 5.10. [INTENTIONALLY OMITTED].".
(o) Section 6.02 of the Credit Agreement shall be amended
as follows:
(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
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 38>
(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".
(p) 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 obtained by
all the Banks and all the Replacement Note Holders,
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 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 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 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
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 39>
if such Bank or such Replacement Note Holder were the direct
creditor of TGC in the amount of such participation.".
(q) Section 9.32(a) of the Credit Agreement shall be
amended by deleting the last sentence thereof.
(r) Section 10.03 of the Credit Agreement shall be amended
by deleting the reference to "Section 9.32(a) and
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 40>
substituting in its place a reference to "Section 4.05(b)".
(s) Section 10.06 of the Credit Agreement shall be amended
by deleting the "." and substituting in its place the
following:
"provided, that TGC may advance to TNP funds obtained
as proceeds of Project Loans.".
(t) Section 10.08(e) of the Credit Agreement shall be
amended by deleting the phrase "the last sentence of
Section 9.32(a)" and substituting in its place "Section
4.05".
(u) Delete Section 10.09 of the Credit Agreement in its
entirety and substitute in its place the following:
"SECTION 10.09. TGC shall not permit the
aggregate principal amount of Loans outstanding
hereunder to exceed at any time the Collateral Coverage
Maximum Amount at such time.".
(v) 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.".
(w) 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 9.32(a)" and
substituting in its place a reference to "Section
4.05(b)".
(x) 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
9.32 hereof have terminated, Available Amount
(including the components thereof); in each case,
determined as of such Quarterly Date.".
(y) Delete Section 10.22 of the Credit Agreement in its
entirety and substitute in its place the following:
"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%.".
(z) 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 to the Banks under this
Agreement 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
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 41>
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, (ii) the pledge of the Second
Replacement Note under the Second Secured Debenture Indenture as
in effect on the applicable Section 4.05 Closing Date and (iii)
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.".
(aa) Section 11 of the Credit Agreement shall be amended by
(A) substituting the word "any" for "the" before the
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.
(bb) 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 to the Banks under this Agreement 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
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 42>
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 9.33 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), similar
provisions of the Second Secured Debenture Indenture (as in
effect on the applicable Section 4.05 Closing 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, Second 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 the Second
Secured Debenture Indenture or any Subsequent Secured Debenture
Indenture pursuant to which such Subsequent Secured Debentures
were issued.".
(cc) Section 12.01 of the Credit Agreement shall be amended
by adding at the beginning of the text thereof, prior
to the term "TGC", the following:
"Prior to the payment in full of the Project Loans
outstanding on the First Amendment Effect Date, all
interest payable thereon and all other amounts due and
payable by TNP and TGC to the Banks under this
Agreement and the other Project Documents,".
(dd) Section 12.03 of the Credit Agreement shall be deleted
in its entirety and replaced with the following:
"SECTION 12.03. Payment of New Participants. Upon
payment, prepayment or purchase in full of the Project
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 43>
Loans held by each Bank (excluding the New Participants), such
Bank shall remit to each of the New Participants, in Dollars in
immediately available funds, such New Participant's pro rata
share of the participations purchased by such New Participant
under the New Participation Agreement.".
(ee) 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 the Second
Debenture Trustee or any Subsequent Debenture
Trustee, provisions in the Second Secured
Debenture Indenture or any applicable 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
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 44>
Trustee, Second 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.
(ff) 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".
(gg) 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
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.".
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 45>
(hh) Section 15.04 of the Credit Agreement shall be amended
by substituting the word "any" for "the" before the
term "Replacement Note Holder".
(ii) 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 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
(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
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 46>
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".
(jj) 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.
(kk) 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 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 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. Except
for notices, reports and other documents and
information expressly required to be 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, or any Affiliate of either of
them, which may come into the possession of the Agent
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 47>
or such Bank or such Replacement Note Holder or any of its or
their affiliates.".
(ll) 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, 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 (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.
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 to the Banks under this
Agreement and the other Project Documents, Chase shall
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 48>
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 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 to the Banks under this Agreement 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 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 but without warranty by, or recourse to, such
Debenture Trustee either in its capacity as trustee or
individually.".
(mm) 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
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 49>
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.".
(nn) 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. 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. 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,
(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 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
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 50>
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.".
(oo) Section 16.02 of the Credit Agreement shall be amended
by substituting the word "a" for "the" before the term
"Replacement Note Holder".
(pp) 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"".
(qq) 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, 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
nor TNP (except as contemplated in the Project
Documents) may assign or otherwise transfer all or any
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 51>
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.".
(rr) Section 17.08 of the Credit Agreement shall be amended
by (A) adding an "s" to the end of the terms
"Replacement Note Maturity Date" and "Replacement Note
Holder" in subsection (a) thereof, (B) adding an "s" to
the end of the term "Replacement Note Holder" both
times it occurs in the last paragraph thereof, (C) in
subclause (iii) in the last paragraph thereof, deleting
the phrase "provided that such change does not result"
and inserting in lieu thereof the phrase "provided,
that, if such change would result" and (D) at the end
of subclause (iii) in the last paragraph thereof,
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.".
(ss) Section 17.12(b) of the Credit Agreement shall be
amended by deleting the phrase "OR THE PROPERTY OF TNP
OR TNP" and inserting in substitution in its place the
phrase "OR THE PROPERTY OF TGC OR TNP.".
(tt) Section 17.16 of the Credit Agreement shall be amended
by substituting the word "each" for "the" before the
term "Replacement Note Holder".
(uu) 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
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 52>
(E) adding an "s" to the end of the sixth occurrence of the term
"Replacement Note Holder".
(vv) Section 17.20 of the Credit Agreement shall be
redesignated as "SECTION 17.22", and new Sections 17.20
and 17.21 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
Project Notes outstanding, all interest due and payable
thereon and all other amounts due and payable by TNP
and TGC to the Banks under this Agreement and the other
Project Documents and (ii) no First Secured Debentures
and no Second Secured Debentures remain outstanding.
(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
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 53>
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. New Title Insurance Policy. On
the First Section 4.05 Closing Date, TNP shall pledge
to the Second Debenture Trustee a Replacement Note in
the form of Exhibit A hereto as contemplated by Section
4.05(e) hereof. On the First Section 4.05 Closing
Date, and at the sole cost of TNP and TGC, TNP and TGC
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 Agent may
require, on forms of and issued by the Title Company,
in form and substance satisfactory to the Agent, (x)
insuring the Agent for the benefit of the Second
Replacement Note Holder in the amount of $140,000,000
that good and indefeasible title to the Site is vested
in TGC and the TGC Mortgage constitutes a valid first
mortgage lien on the TGC Mortgage Trust Estate subject
only to Permitted Liens and (y) providing full coverage
against all mechanics' and materialmen's liens 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 Mortgage Trust Estate
is vested in TGC and that the TGC Mortgage constitutes
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 54>
a valid first mortgage lien on the TGC Mortgage Trust Estate
subject only to Permitted Liens.".
SECTION 5. Counterparts.
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 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 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 55>
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
By: \s\ D. R. Barnard
Title:
D. R. BARNARD
PRESIDENT
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 56>
BANKS
ABN AMRO BANK N.V.,
HOUSTON AGENCY
By:\s\ Michael Tribolet
Title:
V. P.
By:\s\ C. Lipshutz
Title:
V. P.
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 57>
BANK OF AMERICA NT & SA
By: \s\ Mark F. Milner
Title:
Vice President
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 58>
THE BANK OF NEW YORK
By: \s\ Michael F. Donohue, Jr.
Title:
Michael F. Donohue, Jr.
SENIOR VICE PRESIDENT
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 59>
THE BANK OF NOVA SCOTIA
By: \s\ A. S. Norsworthy
Title:
A. S. Norsworthy
Assistant Agent
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 60>
BANKERS TRUST COMPANY
By:
Title:
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 61>
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By: \s\ James T. Beale Jr.
Title:
Managing Director
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 62>
CREDIT SUISSE
By: \s\ Guy R. Cirincione
Title:
Guy R. Cirincione
Member of Senior Management
By: \s\ P. P. Leon
Title:
Associate
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 63>
FLEET BANK OF MASSACHUSETTS, N.A.
By: \s\ Fred McManning
Title:
Senior Vice President
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 64>
NATIONSBANK OF TEXAS, N.A.
By: \s\ Vincent Liberio
Title:
Senior Vice President
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 65>
LEHMAN COMMERCIAL PAPER INC.
By: \s\ Lisa Raggi
Title:
Authorized Signatory
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 66>
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION
By: \s\ Mary C. Arnold
Title:
Vice President
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 67>
UNION BANK
By: \s\ Peter R. Saggau
Title:
Peter R. Saggau
Vice President
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 68>
WESTPAC BANKING CORPORATION
By: \s\ WESTPAC BANKING CORPORATION
Title:
Vice President
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 69>
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Agent
By \s\ James T. Beale, Jr.
Title:
Managing Director
THE CHASE MANHATTAN BANK,
(NATIONAL ASSOCIATION), as
Collateral Agent
By \s\ James T. Beale, Jr.
Title:
Managing Director
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 70>
VOTING PARTICIPANT
The following Voting Participant
consents and agrees to the foregoing
Amendment No. 1 to the Unit 1
First Amended and Restated Project
Loan and Credit Agreement:
THE HONG KONG AND SHANGHAI
BANKING CORPORATION LIMITED
By \s\ John A. Van Slyke
Title:
Assistant Vice President
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 71>
VOTING PARTICIPANT
The following Voting Participant
Consents and agrees to the foregoing
Amendment No. 1 to the Unit 1
First Amended and Restated Project
Loan and Credit Agreement:
Z-LANDERBANK BANK AUSTRIA A.G.
By \s\ Kevin McGinn
Title:
SVP
By \s\ Peter Scharf
Title:
AVP
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE 72>
EXHIBIT A
TO AMENDMENT NO. 1 TO
UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
[FORM OF REPLACEMENT NOTE]
EXHIBIT A TO
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE >
EXHIBIT B
TO AMENDMENT NO. 1 TO
UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
[FORM OF INTERCREDITOR AMENDMENT NO. 2]
EXHIBIT B TO
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE >
EXHIBIT C
TO AMENDMENT NO. 1 TO
UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
[FORM OF FOURTH TGC MODIFICATION AND EXTENSION AGREEMENT]
EXHIBIT C TO
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE >
EXHIBIT D
TO AMENDMENT NO. 1 TO
UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
[FORM OF FIFTH TGC MODIFICATION AND EXTENSION AGREEMENT]
EXHIBIT D
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE >
EXHIBIT E
TO AMENDMENT NO. 1 TO
UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
[FORM OF SUBSEQUENT TGC MODIFICATION AND EXTENSION
AGREEMENT]
EXHIBIT E TO
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE >
EXHIBIT F
TO AMENDMENT NO. 1 TO
UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
[FORM OF TNP SECOND LIEN MORTGAGE MODIFICATION NO. 2]
EXHIBIT F
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE >
EXHIBIT G
TO AMENDMENT NO. 1 TO
UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
[FORM OF SECTION 4.05 LEGAL OPINION]
EXHIBIT G TO
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE >
EXHIBIT H
TO AMENDMENT NO. 1 TO
UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
[FORM OF SECTION 4.05 CLOSING LEGAL OPINIONS]
EXHIBIT H TO
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE >
EXHIBIT I
TO AMENDMENT NO. 1 TO
UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
[FORM OF FIRST DEBENTURE TRUSTEE CONSENT]
EXHIBIT I TO
AMENDMENT NO. 1 TO UNIT 1 FIRST AMENDED AND RESTATED
PROJECT LOAN AND CREDIT AGREEMENT
<PAGE >