EXHIBIT C to
Unit 1 First Amendment
[FORM OF FOURTH TGC MODIFICATION AND EXTENSION AGREEMENT]
FOURTH TGC MODIFICATION AND EXTENSION AGREEMENT
ATTENTION ROBERTSON COUNTY, TEXAS RECORDER:
RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO:
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION)
c/o DONALD H. SNELL
O'Neill, Snell, Banowsky & McClure
200 Crescent Court, Suite 1030
Dallas, Texas 75201
THE STATE OF TEXAS
COUNTY OF ROBERTSON
FOURTH TGC MODIFICATION AND EXTENSION AGREEMENT
THIS FOURTH TGC MODIFICATION AND EXTENSION AGREEMENT (this
"Agreement") is made as of September 29, 1993 among the banks
(the "Banks") which are parties to that certain Unit 1 First
Amended and Restated Project Loan and Credit Agreement dated as
of January 8, 1992 (as amended by the First Amendment (as defined
below), and as further amended, supplemented or modified and in
effect from time to time, the "Credit Agreement"), THE CHASE
MANHATTAN BANK (NATIONAL ASSOCIATION), as agent for the Banks and
the Replacement Note Holder (in such capacity, together with its
successors in such capacity, the "Agent") (the Banks, the
Replacement Note Holder and the Agent collectively herein
referred to as the "Secured Parties"), TEXAS-NEW MEXICO POWER
COMPANY, a Texas corporation ("TNP") and TEXAS GENERATING
COMPANY, a Texas corporation ("TGC" or the "Borrower"). Unless
otherwise defined herein, the capitalized terms used herein shall
have the meanings given to those terms in the Credit Agreement.
W I T N E S S E T H:
Recitals:
A. The Banks, the Agent, Project Funding Corporation, a
Delaware corporation ("PFC") and TNP have heretofore entered into
the Project Loan and Credit Agreement dated as of December 1,
1987 (the "Project Credit Agreement") pursuant to the terms of
which the Banks made Loans, prior to the Alternative Assumption
Date, to PFC and, thereafter, to the Borrower in an aggregate
FOURTH TGC MODIFICATION AND EXTENSION AGREEMENT
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principal amount of THREE HUNDRED FORTY-FIVE MILLION DOLLARS
($345,000,000).
B. The Alternative Assumption Date occurred as of June 8,
1990. Certain of the obligations of PFC under the terms of the
Project Credit Agreement were assumed by the Borrower pursuant to
that certain Assumption Agreement recorded in Volume 549 at Page
83 of the Public Records of Robertson County, Texas. The
Mortgage Trust Estate was conveyed by PFC to the Borrower
pursuant to that certain Conveyance and Bill of Sale dated
effective as of June 8, 1990, recorded in Volume 550 at Page 103
of the Public Records of Robertson County, Texas.
C. The Obligations under the terms of the Credit Agreement
are secured, in part, by the terms, provisions, liens and
security interests of that certain Mortgage and Deed of Trust
(with Security Agreement and UCC Financing Statement for Fixture
Filing), dated as of December 1, 1987 (the "Mortgage") which was
filed of record on December 3, 1987, in Volume 507 at Page 291 of
the Public Records of Robertson County, Texas, as supplemented by
the Supplemental Mortgage and Deed of Trust (with Security
Agreement and UCC Financing Statement for Fixture Filing) filed
of record on January 27, 1992, in Volume 573 at Page 603 of the
Public Records of Robertson County, Texas. The Mortgage covers
certain property as more particularly described therein less and
except certain lands subsequently released from the Mortgage by
the partial release of liens, dated as of October 1, 1988 and
recorded in Volume 521 at Page 528 of the Public Records of
Robertson County, Texas.
D. TGC conveyed a 30/345 undivided interest in the
Mortgage Trust Estate to TNP pursuant to that certain Conveyance
and Bill of Sale dated as of December 27, 1990, and recorded in
Volume 556 at Page 653 of the Public Records of Robertson County,
Texas. By the partial release of liens, recorded in Volume 572
at Page 372 of the Public Records of Robertson County, Texas, and
filed with the Secretary of State of the State of Texas, the
Agent released from the Mortgage the undivided interest which was
purchased by TNP.
E. TGC conveyed a 45/345 undivided interest in the
Mortgage Trust Estate to TNP pursuant to that certain Conveyance
and Bill of Sale dated as of January 27, 1992 and recorded in
Volume 573 at Page 552 of the Public Records of Robertson County,
Texas. By the partial release of liens, recorded in Volume 573
at Page 589 of the Public Records of Robertson County, Texas, and
filed with the Secretary of State of the State of Texas, the
Agent released from the Mortgage the undivided interest which was
purchased by TNP.
FOURTH TGC MODIFICATION AND EXTENSION AGREEMENT
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F. TNP, the Borrower and the Secured Parties entered into
the Credit Agreement and executed and delivered the (i) First TGC
Modification and Extension Agreement dated as of January 24, 1992
and caused it to be recorded in Volume 573 at Page 477 of the
Public Records of Robertson County, Texas, (ii) the Second TGC
Modification and Extension Agreement dated as of January 27,
1992 and caused it to be recorded in Volume 573 at Page 504 of
the Public Records of Robertson County, Texas and (iii) the Third
TGC Modification and Extension Agreement dated as of January 27,
1992 and caused it to be recorded in Volume 573 at Page 518 of
the Public Records of Robertson County, Texas, in each case as a
memorial of certain modifications of, amendments to or occurrence
of events under the Credit Agreement and to confirm the validity
and priority of the liens, security interests and assignments of
the Mortgage securing the Obligations.
G. TNP, the Borrower and the Secured Parties have modified
the terms of the Credit Agreement as set forth in the First
Amendment (as defined below) and have executed, delivered and
caused this Agreement to be filed of record as a memorial of the
occurrence of such modifications and to confirm the validity and
priority of the liens, security interests and assignments of the
Mortgage securing the Obligations.
H. The Agent is authorized by Section 15.01 of the Credit
Agreement to execute and deliver this Agreement.
Agreements
NOW, THEREFORE, for good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, TNP, the
Borrower and the Agent, on behalf of the Secured Parties, agree
as follows:
1. Modification of Terms of the Credit Agreement. The
terms and provisions of the Credit Agreement are amended and
modified pursuant to that certain Amendment No. 1 dated as of
September 21, 1993 to the Unit 1 First Amended and Restated
Project Loan and Credit Agreement of even date herewith, executed
and delivered by TNP, the Borrower and the Banks and other
parties thereto (the "First Amendment"). The First Amendment,
among other things, facilitates TNP's or TGC's issuing Permitted
Collateralized Indebtedness that, upon the fulfillment of certain
terms and conditions of the Credit Agreement, shall be
Obligations secured by the liens, security interests and
assignments of the Mortgage from time to time. As of the date
hereof, the aggregate principal amount of Loans outstanding under
the Credit Agreement is $211,000,000, of which $146,000,000 is
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Project Loans evidenced by Project Notes and $65,000,000 is a
Replacement Loan evidenced by the First Replacement Note.
2. Effect of Modification. The Obligations as described
in the Credit Agreement are secured by the liens, security
interests and assignments of the Mortgage and the other Security
Documents. The validity and priority of the liens, security
interests and assignments of the Mortgage shall not be
extinguished, impaired, reduced, released, or adversely affected
by the terms of this Agreement or the First Amendment.
3. Extension of Rights and Liens. The Borrower hereby
extends all rights, titles, liens, security interests,
assignments, powers and privileges securing the Obligations as
described in the Credit Agreement by virtue of the Mortgage until
all of such Obligations have been paid in full and agrees that
the execution of this Agreement shall in no manner impair the
rights, titles, liens, security interests, assignments, powers
and privileges existing by virtue of the Mortgage, as they are
extended and modified hereby.
4. Joinder of Guarantor. TNP, as guarantor under the TNP
Guaranty, hereby (i) consents to the execution, delivery and
performance by TGC of this Agreement and any other Amendment
Document to which TGC is or is intended to be a party and the
consummation of the transactions contemplated hereby and thereby,
(ii) agrees that the TNP Guaranty shall remain in full force and
effect after giving effect to such transactions and (iii)
acknowledges that there are no claims or offsets against, or
defenses or counterclaims to, the TNP Guaranty.
5. Successors and Assigns. This Agreement shall be
binding upon, and inure to the benefit of, the successors and
assigns of TNP, the Borrower and the Agent, for the benefit of
the Secured Parties; provided, however, nothing contained in this
Section is intended to authorize TNP or the Borrower to assign
any of the Obligations or to sell any of the Mortgage Trust
Estate except in accordance with the Credit Agreement and the
Facility Purchase Agreement.
6. Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall
constitute one and the same instrument, and any of the parties
hereto may execute this Agreement by signing any such
counterpart.
FOURTH TGC MODIFICATION AND EXTENSION AGREEMENT
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EXECUTED as of the date first hereinabove written.
SECURED PARTIES:
THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION), as Agent
By: \s\ Betty Lou Robert
Title: Vice President
BORROWER:
TEXAS GENERATING COMPANY,
a Texas corporation
By: \s\ D. R. Barnard
Title: President
The undersigned hereby
consents and agrees to
the foregoing pursuant
to Section 1(c) of the
Intercreditor Agreement
as defined in the Credit
Agreement.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Collateral Agent
By: \s\ Betty Lou Robert
Title: Vice President
FOURTH TGC MODIFICATION AND EXTENSION AGREEMENT
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The undersigned is a party to
this Agreement for the sole
purpose of agreeing to the
provisions of Section 4 to
this Agreement.
TNP:
TEXAS-NEW MEXICO POWER COMPANY,
a Texas corporation
By: \s\ D. R. Barnard
Title: Vice President and Chief Financial Officer
FOURTH TGC MODIFICATION AND EXTENSION AGREEMENT
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STATE OF NEW YORK
COUNTY OF NEW YORK
This instrument was acknowledged before me on the 27th day
of September, 1993, by Betty Lou Robert, Vice President of THE
CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), as Agent.
\s\ Elizabeth A. Sullivan
NOTARY PUBLIC in and for
the State of NEW YORK
My Commission Expires:
2/1/95
FOURTH TGC MODIFICATION AND EXTENSION AGREEMENT
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STATE OF NEW YORK
COUNTY OF NEW YORK
This instrument was acknowledged before me on the 27th day
of September, 1993, by Betty Lou J. Robert, Vice President, of
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), as Collateral
Agent.
\s\ Elizabeith A. Sullivan
NOTARY PUBLIC in and for
the State of NEW YORK
My Commission Expires:
2/1/95
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STATE OF New York
COUNTY OF New York
This instrument was acknowledged before me on the 27th day
of September, 1993, by D. R. Barnard, Vice President of TEXAS-
NEW MEXICO POWER COMPANY, a Texas corporation, on behalf of said
corporation.
\s\ Aisha Piracha
NOTARY PUBLIC in and for
the State of New York
My Commission Expires:
November 16, 1994
FOURTH TGC MODIFICATION AND EXTENSION AGREEMENT
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STATE OF New York
COUNTY OF New York
This instrument was acknowledged before me on the 27th day
of September, 1993, by D. R. Barnard, President of TEXAS
GENERATING COMPANY, a Texas corporation, on behalf of said
corporation.
\s\ Aisha Piracha
NOTARY PUBLIC in and for
the State of New York
My Commission Expires:
11/16/94
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