[Execution Copy]
Amendment No. 1
dated as of July 1, 1994
to the
Reimbursement Agreement
dated as of November 1, 1992
between
PUBLIC SERVICE COMPANY
OF NEW MEXICO
and
CANADIAN IMPERIAL BANK OF COMMERCE,
NEW YORK AGENCY
relating to
Pollution Control Revenue
Refunding Bonds, 1992 Series A
(Public Service Company of New Mexico
Palo Verde Project)
AMENDMENT NO. 1
to the
REIMBURSEMENT AGREEMENT
THIS AMENDMENT NO. 1 (this "Amendment"), dated as of July 1,
1994, to the Reimbursement Agreement, dated as of November 1,
1992 (the "Existing Reimbursement Agreement"), between PUBLIC
SERVICE COMPANY OF NEW MEXICO, a New Mexico corporation (the
"Company") and CANADIAN IMPERIAL OF COMMERCE, acting through its
New York Agency (the "Bank"),
W I T N E S S E T H:
WHEREAS, the Existing Reimbursement Agreement was executed
by the Company and the Bank in connection with the issuance by
the Bank of the Letter of Credit for the benefit of the Trustee
in support of the Bonds;
WHEREAS, the Existing Reimbursement Agreement incorporates
by reference certain provisions of the U.S. $225,000,000 Amended
and Restated Credit Agreement, dated as of March 8, 1991, among
the Company, as borrower, Chemical Bank and Citibank N.A., as co-
agents thereunder, and the banks named therein (the "Existing
Credit Agreement");
WHEREAS, the Existing Credit Agreement has been replaced by
the U.S. $100,000,000 Revolving Credit Agreement, dated as of
December 14, 1993, among the Company, as borrower, Chemical Bank
and Citibank N.A., as co-agents thereunder, and the banks named
therein (the "New Credit Agreement");
WHEREAS, the parties wish to amend the Existing
Reimbursement Agreement to incorporate by reference certain
provisions of the New Credit Agreement instead of provisions of
the Existing Credit Agreement;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein contained, the Company and the Bank
hereby agree as follows:
SECTION 1. Certain Definitions. The following terms
(whether or not underscored) when used in this Amendment shall
have the following meanings:
"Amended Reimbursement Agreement" means the Existing
Reimbursement Agreement as amended by this Amendment.
"Amendment" is defined in the preamble.
"Bank" is defined in the preamble.
"Company" is defined in the preamble.
"Effective Date" is defined in Section 4.
"Existing Credit Agreement" is defined in the second
recital.
"Existing Reimbursement Agreement" is defined in the
preamble.
"New Credit Agreement" is defined in the third recital.
SECTION 2. Other Definitions. Terms for which meanings
are provided in the Existing Reimbursement Agreement are, unless
otherwise defined herein or the context otherwise requires, used
in this Amendment with such meanings.
SECTION 3. Amendments to Existing Reimbursement Agreement.
Effective on the Effective Date, the Existing Reimbursement
Agreement is hereby amended in accordance with this Section 3.
Except as expressly so amended, the Existing Reimbursement
Agreement shall continue in full force and effect in accordance
with its terms.
SECTION 3.1. Section 1 (Definitions). Section 1 of the
Existing Reimbursement Agreement is amended by amending and
restating in its entirety the definition of "Credit Agreement" as
follows:
"'Credit Agreement' means the U.S.$100,000,000
Revolving Credit Agreement, dated as of December 14, 1993,
among the Company, as borrower, Chemical Bank and Citibank
N.A., as co-agents thereunder, and the banks named therein,
as amended and in effect on the date of execution hereof but
without regard to any subsequent amendment thereof."
SECTION 3.2. Section 16 (Covenants). Section 16 of the
Existing Reimbursement Agreement is amended as follows:
(a) The first sentence of clause (a) of Section 16 is
amended and restated in its entirety as follows:
"Except as may be otherwise provided in this Section
16, the Company will perform, comply with and be bound
by, for the benefit of the Bank, each of its
agreements, covenants and obligations contained in
Article V of the Credit Agreement (other than Sections
5.01(a), 5.01(b), 5.01(c), 5.01(i) and 5.02(b)
thereof), together with the related definitions not
otherwise defined herein and ancillary provisions, as
in effect on the date of execution hereof."
(b) Clause (b)(i)(B) of Section 16 is amended and
restated in its entirety as follows:
"(B) a schedule in form satisfactory to the Bank of the
computations used by the Company in determining
compliance with the covenants contained in Sections
5.01(h), 5.02(a), 5.02(c), 5.02(d) and 5.02(i) of the
Credit Agreement"
(c) Clause (b)(ii)(A) of Section 16 is amended and
restated in its entirety as follows:
"(A) a certificate of such accounting firm in
substantially the form of Exhibit H to the Credit
Agreement (with the schedules referred to therein
attached thereto) addressed to the Bank, and"
SECTION 3.3. Section 17 (Events of Default). Section 17 of
the Existing Reimbursement Agreement is amended as follows:
(a) Clause (c)(i) of Section 17 is amended and
restated in its entirety to read as follows:
"(i) the Company shall default in the observance
or performance of any covenant incorporated in clause
(a) of Section 16 by reference to Section 5.01(h) or
5.02(i) of the Credit Agreement, or contained in clause
(b)(iii) of Section 16;"
(b) Clause (c)(iii) of Section 17 is amended and
restated in its entirety to read as follows:
"(iii) the Company or any Designated Subsidiary
shall default in the observance or performance of any
covenant or agreement incorporated in clause (a) of
Section 16 by reference to Section 5.01(g), 5.01(j),
5.01(k) or 5.01(l) of the Credit Agreement or contained
in this Agreement, and such default shall remain
unremedied for ten (10) days following delivery of
notice from the Bank; or"
SECTION 4. Effective Date. When all of the conditions set
forth in Section 4.1 through Section 4.3 have been satisfied,
this Amendment shall become effective as of July 1, 1994 (the
"Effective Date") and thereafter shall be known, and may be
referred to, as "Amendment No. 1 to the Reimbursement Agreement".
SECTION 4.1. Execution of Counterparts of this Amendment.
The Bank shall have received executed counterparts of this
Amendment duly executed on behalf of the Company.
SECTION 4.2. Effectiveness of Credit Agreement. The Credit
Agreement shall have been executed and delivered by the parties
thereto, and shall have become effective in accordance with its
terms.
SECTION 4.3. Opinion of Special Counsel. The Bank shall
have received the opinion of Keleher & McLeod, P.A., special
counsel to the Company, substantially in the form of Exhibit A
attached hereto.
SECTION 4.4. Representations and Warranties; No Default or
Event of Default. On the Effective Date,
(a) the representations and warranties contained in
Section 15 of the Reimbursement Agreement and each of the
other Related Documents shall be true and correct on and as
of the Effective Date as though made on such date, and the
Bank shall have received a certificate signed by an
Authorized Officer of the Company, dated the Effective Date,
to that effect; and
(b) no Default or Event of Default shall have occurred
and be continuing, or would result from the execution and
delivery of this Amendment, and the Bank shall have received
a certificate signed by an Authorized Officer of the
Company, dated as of the Effective Date, to that effect.
SECTION 5. References. References in the Existing
Reimbursement Agreement shall hereinafter be deemed to be
references to the Amended Reimbursement Agreement.
SECTION 6. Successors and Assigns. This Amendment shall be
binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns, subject to Section 30 of
the Amended Reimbursement Agreement.
SECTION 7. Full Force and Effect. Except as expressly
amended hereby, all of the representations, warranties, terms,
covenants, and conditions of the Existing Reimbursement Agreement
and each other Related Document shall remain unchanged and shall
remain in full force and effect in accordance with their
respective terms. The amendments set forth herein shall be
limited precisely as provided for herein to the provisions
expressly amended herein and shall not be deemed to be an
amendment of consent to or modification of any other term or
provision of the Existing Reimbursement Agreement or of any term
or provision of any other Related Document or of any transaction
or further or future action on the part of the Company which
would require the consent of the Bank under the Existing
Reimbursement Agreement.
SECTION 8. Governing Law. THIS AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF NEW YORK.
SECTION 9. Counterparts. This Amendment may be signed in
counterparts, each of which shall be an original, with the same
effect as if the signatures thereto were upon the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 1 to the Reimbursement Agreement to be executed by
their respective officers thereunto duly authorized as of the day
and year first above written.
PUBLIC SERVICE COMPANY OF NEW
MEXICO
By __________________________
Title:
CANADIAN IMPERIAL BANK OF
COMMERCE, NEW YORK AGENCY
By __________________________
Title:
By __________________________
Title:
EXHIBIT A
[FORM OF OPINION OF KELEHER & MCLEOD, P.A.,
SPECIAL NEW MEXICO COUNSEL TO THE COMPANY]
July 1, 1994
Canadian Imperial Bank
of Commerce
New York Agency
425 Lexington Avenue
New York, New York 10017
Pollution Control Revenue
Refunding Bonds, 1992 Series A
(Public Service Company of New Mexico
Palo Verde Project) (the "Bonds")
Ladies and Gentlemen:
As New Mexico counsel to Public Service Company of New
Mexico, a New Mexico corporation (the "Company"), and in
connection with the issuance of the Bonds in 1992, we are
familiar with the corporate records of the Company, including
(i) its Restated Articles of Incorporation and by-laws, as
amended to date, and (ii) the corporate proceedings of the Board
of Directors of the Company. We have examined the following:
(a) the Reimbursement Agreement, dated as of November
1, 1992 (as amended and modified from time to time, the
"Reimbursement Agreement"), and the Amendment No. 1 thereto,
dated as of July 1, 1994 (the "Amendment"), between the
Company and Canadian Imperial Bank of Commerce, acting
through its New York Agency (the "Bank"); and
(b) the Pledge Agreement, dated as of November 1,
1992, among the Company, First National Bank in Albuquerque,
as Collateral Agent, and the Bank.
The above-referenced documents are collectively referred to
as the "Subject Documents". Capitalized terms not otherwise
defined herein have the meanings specified in the Reimbursement
Agreement as amended by the Amendment.
In this connection, we have also examined originals or
photocopies or certified copies of such documents, corporate
records, agreements and other instruments, and certificates of
public officials and officers of the Company, as we have deemed
necessary as a basis for the opinions hereinafter expressed. In
such examination, except with respect to instruments executed by
the Company or any officer thereof, we have assumed the
genuineness of all signatures (other than those of officers of
the Company), the authenticity of all instruments submitted to us
as originals and the conformity to authentic original instruments
of all copies submitted to us as certified copies or photocopies.
As to questions of fact material to our opinion, we have, when
relevant facts were not independently established, relied upon
certifications by officers of the Company.
Based upon the foregoing and having regard to legal
considerations we deem relevant, we are of the opinion that:
(1) The execution, delivery and performance by
the Company of the Amendment are within the Company's
corporate powers, have been duly authorized by all
necessary corporate action, do not contravene (a) the
Company's Organic Documents or (b) any law, rule or
regulation, or, to the best of our knowledge, any
Contractual Obligation, court order or consent decree
binding on or affecting the Company or any of its
Designated Subsidiaries, and do not result in or
require the creation of any lien, security interest or
other charge or encumbrance upon or with respect to any
of their respective properties, except as contemplated
by the Pledge Agreement.
(2) No authorization or approval or other action by,
and no notice to or filing with, any Governmental Authority
is required for the due execution and delivery by the
Company of the Amendment, and for the performance by the
Company of the Reimbursement Agreement as amended by the
Amendment or the Pledge Agreement, other than New Mexico
Public Utility Commission ("NMPUC") approvals relating to
collateralization and refunding, each of which has been duly
obtained and is in full force and effect, and an
informational compliance filing relating to the Amendment
which will be made with the NMPUC.
(3) (a) The governing law clauses of the Amendment,
the Reimbursement Agreement as amended by the Amendment
and the Pledge Agreement, subjecting them to the law of
the State of New York, are valid under the law of the
State of New Mexico to the extent that they relate to
substantive law and not to procedural or remedial
matters.
(b) Under the law of the State of New Mexico, the
substantive law of the State of New York will be
applied to agreements such as the Amendment, the
Reimbursement Agreement as amended by the Amendment and
the Pledge Agreement, except to the extent that any
term of either such agreement or any provision of the
law of the State of New York applicable to either such
agreement violates an important public policy of the
State of New Mexico.
(c) None of the terms of the Amendment, the
Reimbursement Agreement as amended by the Amendment or
the Pledge Agreement violates an important public
policy of the State of New Mexico.
(d) Assuming that the Amendment, the
Reimbursement Agreement as amended by the Amendment and
the Pledge Agreement are legal, valid and binding under
the law of the State of New York, each of them
constitutes the legal, valid and binding obligation of
the Company, and is enforceable against the Company in
accordance with its respective terms, the civil
procedure of the State of New Mexico, and, subject to
the opinions set forth in clauses (a), (b) and (c) of
this paragraph (3), the applicable provisions of the
chosen law of the State of New York.
(4) After giving effect to the execution and delivery
of the Amendment, the Bank continues to have a first
priority perfected security interest in any Pledged Bond
delivered to the Collateral Agent pursuant to and in
accordance with the Pledge Agreement, and, so long as such
Pledged Bond is in the possession of the Collateral Agent,
no further action will be necessary to preserve, perfect or
protect such security interest or the priority thereof.
(For purposes of this paragraph (4), "Pledged Bond" shall
have the meaning specified in the Pledge Agreement.)
No opinion is expressed herein regarding the registration
requirements under the Securities Act of 1933, as amended, with
respect to the letter of credit issued by the Bank pursuant to
the Reimbursement Agreement, as to which Mayer, Brown & Platt,
counsel for the Bank, has previously delivered an opinion.
We are members of the bar of the State of New Mexico and do
not purport to be an expert on, or to render any opinion
covering, the law of any jurisdiction other than the law of the
State of New Mexico and the federal law of the United States.
The opinion in paragraph (3) above is qualified to the
extent that the binding effect and enforceability of the
agreements and instruments referred to above are subject to
applicable bankruptcy, insolvency, reorganization, moratorium, or
other laws in effect from time to time affecting the rights of
creditors generally and to the extent that the enforceability
thereof may be limited by the application of general principles
of equity.
Respectfully submitted,