FIRST AMENDMENT (this "Amendment") dated as of
October 28, 1998 to the Revolving Credit Facility
Agreement dated as of November 3, 1995 (as amended,
the "Credit Agreement"; capitalized terms used and not
otherwise defined herein shall have the meanings
assigned to them in the Credit Agreement), among
Texas-New Mexico Power Company (the "Borrower"); the
financial institutions party thereto (the "Lenders");
the Chase Manhattan Bank, successor by merger with
Chemical Bank, as administrative agent and as
collateral agent for the Lenders (in such capacities,
the "Administrative Agent" and the "Collateral Agent",
respectively)); the Bank of New York, CIBC, Inc.,
NationsBank of Texas, N.A. and Union Bank, as
co-agents.
The Borrower has requested that Section 9.17 of Credit Agreement be
amended in order to reduce the time periods applicable to the release of the
Pledged Bonds, the Pledged Notes and all other collateral held under the Pledge
Agreements. The Lenders, the Administrative Agent and the Collateral Agent have
agreed to such amendments upon the terms and subject to the conditions set forth
herein. Accordingly, the parties hereto agree as follows:
SECTION 1. Amendment of Section 9.17(a). Section 9.17(a) of the Credit
Agreement is hereby amended by (a) deleting the number "10" in clause (a)(i) and
replacing it with the word "two" and (b) deleting the number "30" in clause
(a)(ii) and replacing it with the word "five".
SECTION 2. Representations and Warranties. (a) The Borrower hereby
represents and warrants to each Lender and the Administrative Agent that this
Amendment (i) has been duly authorized, executed and delivered by the Borrower
and constitutes the legal, valid and binding obligation of the Borrower
enforceable against it in accordance with its terms, except as enforcement
thereof may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other similar laws affecting the enforceability of creditors'
rights generally and by general principles of equity, and (ii) will not conflict
in any respect material to the rights or interests of the Lenders with or result
in any breach of any of the terms, covenants, conditions or provisions of, or
constitute (with notice or lapse of time or both) a default under, or result in
a required prepayment of, or (other than as permitted by the Credit Agreement as
amended hereby or as contemplated by any Pledge Agreement, any Existing Facility
Security Document or the TNP Bond Indenture) result in the creation or
imposition of (or the obligation to create or impose) any Lien upon any of the
properties or assets of the Borrower or any of its Subsidiaries pursuant to the
terms of, any indenture, mortgage, deed of trust, agreement or other instrument
to which the Borrower or any of its Subsidiaries is a party or by which it may
be subject.
(b) Before and after giving effect to this Amendment, No Default or
Event of Default shall have occurred and be continuing under the Credit
Agreement or the existing Facility Agreement.
SECTION 3. Effectiveness. This Amendment shall become effective when
the following conditions precedent shall have been satisfied:
(a) the Administrative Agent shall have received, on behalf of
the Lenders, a certificate of Financial Officer, dated the date of this
Amendment, confirming compliance with the conditions precedent set forth in
paragraphs (b) and (c) of Section 4.01 of the Credit Agreement;
(b) all legal matters incidental to this Amendment shall be
satisfactory to the Administrative Agent and to Cravath, Swaine & Moore, counsel
for the Administrative Agent; and
(c) the Administrative Agent shall have received counterparts
of this Amendment that, when taken together bear the signatures of the Borrower,
the Required Lenders and the Administrative Agent.
SECTION 4. Credit Agreement. Except as expressly set forth herein, this
Amendment shall not by implication or otherwise limit, impair, constitute a
waiver of, or otherwise affect the rights and remedies of the Lenders and the
Administrative Agent under the Credit Agreement, or alter, modify, amend or in
any way affect any of the terms, conditions, obligations, covenants or
agreements contained in the Credit Agreement, all of which are ratified and
affirmed in all respects and shall continue in full force and effect. This
Amendment shall apply and be effective only with respect to the provisions of
the Credit Agreement specifically referred to herein.
SECTION 5. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall constitute an original but all of which when
taken together shall constitute but one contract. Delivery of an executed
counterpart of a signature page of this Amendment by telecopy shall be effective
as delivery of a manually executed counterpart of this Amendment.
SECTION 7. Expenses. The Borrower agrees to reimburse the
Administrative Agent for its out-of-pocket expenses in connection with this
Amendment, including the reasonable fees, charges and disbursements of Cravath,
Swaine & Moore, counsel for the Administrative Agent.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first written above.
TEXAS-NEW MEXICO POWER COMPANY,
By /s/ M. S. Cheema
Name: M. S. Cheema
Title: Senior Vice-President
and Chief Financial Officer
THE CHASE MANHATTAN BANK,individually and as
Administrative Agent and as Collateral Agent
By /s/ Kevin P. O'Neill
Name: Kevin P. O'Neill
Title: Vice President
THE FIRST NATIONAL BANK OF BOSTON,
By /s/ Virginia Ryan
Name: Virginia Ryan
Title: Vice President
THE BANK OF MONTREAL,
By /s/ Mary Lee Latta
Name: Mary Lee Latta
Title: Director
THE BANK OF NEW YORK,
individually and as Co-Agent,
By /s/ Nathan S. Howard
Name: Nathan S. Howard
Title: Vice President
CIBC, INC., individually and as Co-Agent,
By /s/ Denis O'Meara
Name: Denis O'Meara
Title: Executive Director
CREDIT LYONNAIS, NEW YORK BRANCH,
By /s/ Robert Ivosevich
Name: Robert Ivosevich
Title: Senior Vice President
NATIONSBANK, N.A. (as successor by merger to
NATIONSBANK OF TEXAS, N.A.),
individually and as Co-Agent,
By /s/ Curtis L. Anderson
Name: Curtis L. Anderson
Title: Senior Vice President
COMMERCIAL LOAN FUNDING TRUST I:
BY LEHMAN COMMERCIAL PAPER, INC.,
NOT IN ITS INDIVIDUAL CAPACITY,
BUT SOLELY AS ADMINISTRATIVE AGENT
By /s/ Michele Swanson
Name: Michele Swanson
Title: Authorized Signator
UNION BANK, individually and as Co-Agent,
By /s/ David Musicant
Name: David Musicant
Title: Vice President