Exhibit 10.10B
SECOND AMENDMENT TO
LOAN AGREEMENT
This Amendment made this 17th day of April, 1996 by and between SUNWEST
BANK OF ALBUQUERQUE, NATIONAL ASSOCIATION, a national banking association
("BANK") and New Mexico Utilities, Inc. a New Mexico corporation ("BORROWER").
WHEREAS, on January 25, 1995 Bank and borrower entered into a certain Loan
Agreement ("Loan Agreement") pursuant to the terms and conditions of which
credit has been extended by Bank to Borrower;
WHEREAS, Bank and Borrower entered into a First Amendment to Loan Agreement
dated October 10, 1995 (the "First Amendment"). (The "Loan Agreement" and
"First Amendment" jointly referred to as "Agreement").
WHEREAS, Borrower and Bank are desirous of amending the Agreement upon the
following terms and conditions.
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which is hereby
acknowledged by the undersigned, Bank and Borrower agree as follows:
1. Paragraph 1. Note A: shall be amended by deleting the phrase "Two
Million and No/100 Dollars ($2,000,000.00)" and substituting therefor the phrase
"Three Million Five Hundred Thousand and No/100 Dollars ($3,500,000.00)".
2. Paragraph 2. (a) (i) shall be amended by adding the following
sentence: If Chase Manhattan Bank shall be acquired or merged into another bank,
the Interest Rate shall equal the prime of such acquiring bank or the survivor
of any merger.
3. Paragraph 2. (a) (iii) shall be amended by deleting the phrase "March
31, 1996" and substituting therefor the phrase "April 30, 1997".
Except as expressly amended hereby, the terms and conditions of the
Agreement and the documents executed and delivered in conjunction with the
credit extended thereunder shall remain in full force and effect and are hereby
ratified.
BORROWER: New Mexico Utilities, Inc.,
a New Mexico corporation
BY: /s/ WILLIAM C. JASURA
---------------------
William C. Jasura, Vice President
Finance & Chief Financial Officer
GUARANTOR: Southwest Water Company,
a Delaware Corporation
BY: /s/ PETER J. MOERBEEK
---------------------
Peter Moerbeek, Vice President
Finance & Chief Financial Officer
BANK: SUNWEST BANK OF ALBUQUERQUE,
NATIONAL ASSOCIATION, a national
association
BY: /s/ DON K. PADGETT
------------------
Don K. Padgett, Vice President
Exhibit 10.10B
SUNWEST BANK PROMISSORY NOTE
of Albuquerque, N.A.
P.O. Box 25500
Albuquerque, NM 87125-5500
(505) 765-2211
"BANK" "BORROWER"
New Mexico Utilities, Inc.
A New Mexico Corporation
FOR VALUE RECEIVED, Borrower promises to pay to the order of Bank, its
successors and assigns at Albuquerque, New Mexico (or such other place as the
Bank may designate) (i) the principal amount of Five Hundred Thousand and no/100
Dollars ($500,000.00), or so much thereof as is advanced; (ii) the fees and
other charges as provided herein; and (iii) per annum interest on the
outstanding principal balance from April 17, 1996, until paid at the rate of [_]
______% [_] equal to the index rate for this loan which is Chase Manhattan Bank,
N.A. New York, New York, prime rate in effect from time to time and which is
published by Chase Manhattan Bank, N.A., with a minimum rate of N/A% per annum
and a maximum rate of N/A% per annum. The initial index rate is 8.250%.
Adjustments in the interest rate will be effective as announced and may increase
or decrease: [_] the amount of the regular payments; [_] the amount of interest
payments; [_] the amount of the single or final payment. If the index rate is
discontinued then the interest rate shall be the rate being charged by Bank on
similar loans.
Borrower agrees to pay as follows:
[_] Interest on the 30th day of every single month beginning May 30, 1996, and
continuing until this Note is paid in full.
This Loan is payable in full on April 30, 1997. Borrower must repay the
outstanding principal balance of the loan and unpaid interest then due. The
Bank is under no obligation to refinance the loan at that time.
Borrower shall pay Bank a late charge of N/A% or N/A, whichever is less, of
any installment not received by Bank within N/A days after the installment is
due.
All payments shall be applied first to reduce fees and charges other than
interest, then to reduce interest, then to reduce principal.
[_] This is a multiple advance note. Borrower has received $434,953.67 and
future principal advances are contemplated. No principal advances will be made
after April 30, 1997. [_] Repaying a part of the principal will entitle Borrower
to additional advances unless an event of default has occurred, or the open-end
feature has expired. [_] Repaying a part of the principal will not entitle
Borrower to additional advances.
Each of the following are events of default under this Note: (i) Failure to
make a payment on time or in the amount due; (ii) Default under any document
made in connection with or securing this Note; (iii) Borrower's default on any
other loan or agreement with Bank; (iv) Borrower's death, incompetency,
bankruptcy or insolvency;(v) any written statement or financial information
provided by Borrower is untrue or inaccurate; or (vi) any other event which
reasonably causes Bank to be insecure about being repaid or about the adequacy
of the security for this Note.
Upon the occurrence of any event of default contained in this Note or in any
document securing this Note, Bank may (i) declare the principal amount, accrued
interest thereon and fees and other charges provided in this Note, immediately
due and payable without notice or demand and enforce its rights under any
document securing the indebtedness evidenced by this Note, (ii) set off the
amount Borrower owes Bank against any funds on deposit with Bank, (iii) if this
is a multiple advance note, refuse to make any further advances under this Note,
retain the proceeds of any checks, drafts, notes or other instruments or
acceptances which it may hold or have in the process of collection the account
of any of the makers, endorsers and guarantors hereof and may apply such
proceeds (together with any funds on deposit withheld by Bank) to the payment of
the indebtedness evidenced by this Note, and (v) use any remedy available under
state or federal law.
No delay or omission on the part of Bank in exercising any right hereunder
shall operate as a waiver of such right or of any other right under this Note.
A waiver on any occasion shall not be construed as a bar to, or waiver of, any
such right or remedy on any future occasion.
Every maker, endorser and guarantor of this Note, or the indebtedness
represented hereby waives presentment, demand, notice, protest, and all other
demands and notices in connection with the delivery, acceptance, performance,
default or enforcement of this note and assents to any extension or postponement
of the time of payment or other indulgence, to the addition or release of any
other party or person primarily or secondarily liable on this note or to the
addition or release of any security interest or collateral securing this note.
Any time this Note is placed in the hands of an attorney for collection, or
to defend or enforce any of the Bank's rights hereunder, Borrower shall pay to
the Bank its reasonable attorneys' fees, together with all court costs and other
expenses.
If no default exists hereunder, Borrower may prepay at any time, without
premium or fee, the entire indebtedness or any part thereof evidenced by this
Note and prepayments shall be applied in the manner scheduled payments are
applied unless Borrower directs Bank to apply such prepayment in reduction of
the outstanding principal indebtedness. Partial prepayments shall not postpone
the due date of any subsequent monthly installments or change the amount of such
installments (other than the amount of interest) and shall not postpone the due
date for payment of the indebtedness evidenced by this Note.
Borrower has delivered and shall deliver to Bank within 120 days after the
end of each annual accounting period of Borrower and at such other times as Bank
may request, copies of its balance sheet, income statement, cash flow analysis,
list of contingent liabilities and such other financial information as Bank may
require, all in reasonable detail, and Borrower warrants and represents to Bank
that the financial information delivered, and to be delivered, is and will be
true and correct in all material respects, prepared in accordance with generally
accepted accounting principles, consistently applied throughout the period
indicated, within a time and in a form acceptable to Bank. Borrower shall also
deliver to Bank copies of its federal income tax returns 30 days after filing,
or if such return is not filed on or before its due date, Borrower shall deliver
to Bank copies of the appropriate IRS extension form reflecting IRS approval of
Borrower's request for extension, if required.
Borrower acknowledges that a contract, promise or commitment to loan money
or to grant, extend or renew credit or any modification thereof, in an amount
greater that Twenty-Five Thousand Dollars ($25,000), not primarily for personal,
family or household purposes, made by a financial institution shall not be
enforceable unless in writing and signed by the party to be charged or that
party's authorized representative.
[_] This Note is being executed pursuant to a Loan Agreement ("Agreement")
dated 01/25/95, amended 10/10/95 and 04/17/96, and to the extent the terms of
this Note are inconsistent with the Agreement, the terms of the Agreement shall
control.
This Note is secured by the following:
DATED this 17th day of April, 1996.
New Mexico Utilities, Inc. By: Southwest Water Company
a New Mexico Corporation a Delaware Corporation
By: /s/ WILLIAM C. JASURA By: /s/ PETER J. MOERBEEK
--------------------- ---------------------
William C. Jasura, Vice President Peter J. Moerbeek, Vice President
Finance and Chief Financial Officer Finance and Chief Financial Officer
Borrower's Primary Business Address: Borrower's Notice Address:
4700 Irving Blvd., N.W., Suite 201 4700 Irving Blvd., N.W., Suite 201
Albuquerque, NM 87114 Albuquerque, NM 87114
Borrower's Telephone Number: TIN/SS#: 85-0205240
Business (505) 898-2661
SUNWEST BANK PROMISSORY NOTE
of Albuquerque, N.A.
P.O. Box 25500
Albuquerque, NM 87125-5500
(505) 765-2211
"BANK" "BORROWER"
New Mexico Utilities, Inc.
A New Mexico Corporation
FOR VALUE RECEIVED, Borrower promises to pay to the order of Bank, its
successors and assigns at Albuquerque, New Mexico (or such other place as the
Bank may designate) (i) the principal amount of Three Million Five Hundred
Thousand and No/100 Dollars ($3,500,000.00), or so much thereof as is advanced;
(ii) the fees and other charges as provided herein; and (iii) per annum interest
on the outstanding principal balance from April 17, 1996, until paid at the rate
of [_] ______% [_] equal to the index rate for this loan which is Chase
Manhattan Bank, N.A. New York, New York, prime rate in effect from time to time
and which is published by Chase Manhattan Bank, N.A., with a minimum rate of
N/A% per annum and a maximum rate of N/A% per annum. The initial index rate is
8.250%. Adjustments in the interest rate will be effective as announced and may
increase or decrease: [_] the amount of the regular payments; [_] the amount of
interest payments; [_] the amount of the single or final payment. If the index
rate is discontinued then the interest rate shall be the rate being charged by
Bank on similar loans.
Borrower agrees to pay as follows:
[_] Interest on the 30th day of every single month beginning May 30, 1996, and
continuing until this Note is paid in full.
This Loan is payable in full on April 30, 1997. Borrower must repay the
outstanding principal balance of the loan and unpaid interest then due. The
Bank is under no obligation to refinance the loan at that time.
Borrower shall pay Bank a late charge of N/A% or N/A, whichever is less, of
any installment not received by Bank within N/A days after the installment is
due.
All payments shall be applied first to reduce fees and charges other than
interest, then to reduce interest, then to reduce principal.
[_] This is a multiple advance note. Borrower has received $550,000.00 and
future principal advances are contemplated. No principal advances will be made
after April 30, 1997. [_] Repaying a part of the principal will entitle Borrower
to additional advances unless an event of default has occurred, or the open-end
feature has expired. [_] Repaying a part of the principal will not entitle
Borrower to additional advances.
Each of the following are events of default under this Note: (i) Failure to
make a payment on time or in the amount due; (ii) Default under any document
made in connection with or securing this Note; (iii) Borrower's default on any
other loan or agreement with Bank; (iv) Borrower's death, incompetency,
bankruptcy or insolvency;(v) any written statement or financial information
provided by Borrower is untrue or inaccurate; or (vi) any other event which
reasonably causes Bank to be insecure about being repaid or about the adequacy
of the security for this Note.
Upon the occurrence of any event of default contained in this Note or in any
document securing this Note, Bank may (i) declare the principal amount, accrued
interest thereon and fees and other charges provided in this Note, immediately
due and payable without notice or demand and enforce its rights under any
document securing the indebtedness evidenced by this Note, (ii) set off the
amount Borrower owes Bank against any funds on deposit with Bank, (iii) if this
is a multiple advance note, refuse to make any further advances under this Note,
retain the proceeds of any checks, drafts, notes or other instruments or
acceptances which it may hold or have in the process of collection the account
of any of the makers, endorsers and guarantors hereof and may apply such
proceeds (together with any funds on deposit withheld by Bank) to the payment of
the indebtedness evidenced by this Note, and (v) use any remedy available under
state or federal law.
No delay or omission on the part of Bank in exercising any right hereunder
shall operate as a waiver of such right or of any other right under this Note.
A waiver on any occasion shall not be construed as a bar to, or waiver of, any
such right or remedy on any future occasion.
Every maker, endorser and guarantor of this Note, or the indebtedness
represented hereby waives presentment, demand, notice, protest, and all other
demands and notices in connection with the delivery, acceptance, performance,
default or enforcement of this note and assents to any extension or postponement
of the time of payment or other indulgence, to the addition or release of any
other party or person primarily or secondarily liable on this note or to the
addition or release of any security interest or collateral securing this note.
Any time this Note is placed in the hands of an attorney for collection, or
to defend or enforce any of the Bank's rights hereunder, Borrower shall pay to
the Bank its reasonable attorneys' fees, together with all court costs and other
expenses.
If no default exists hereunder, Borrower may prepay at any time, without
premium or fee, the entire indebtedness or any part thereof evidenced by this
Note and prepayments shall be applied in the manner scheduled payments are
applied unless Borrower directs Bank to apply such prepayment in reduction of
the outstanding principal indebtedness. Partial prepayments shall not postpone
the due date of any subsequent monthly installments or change the amount of such
installments (other than the amount of interest) and shall not postpone the due
date for payment of the indebtedness evidenced by this Note.
Borrower has delivered and shall deliver to Bank within 120 days after the
end of each annual accounting period of Borrower and at such other times as Bank
may request, copies of its balance sheet, income statement, cash flow analysis,
list of contingent liabilities and such other financial information as Bank may
require, all in reasonable detail, and Borrower warrants and represents to Bank
that the financial information delivered, and to be delivered, is and will be
true and correct in all material respects, prepared in accordance with generally
accepted accounting principles, consistently applied throughout the period
indicated, within a time and in a form acceptable to Bank. Borrower shall also
deliver to Bank copies of its federal income tax returns 30 days after filing,
or if such return is not filed on or before its due date, Borrower shall deliver
to Bank copies of the appropriate IRS extension form reflecting IRS approval of
Borrower's request for extension, if required.
Borrower acknowledges that a contract, promise or commitment to loan money
or to grant, extend or renew credit or any modification thereof, in an amount
greater that Twenty-Five Thousand Dollars ($25,000), not primarily for personal,
family or household purposes, made by a financial institution shall not be
enforceable unless in writing and signed by the party to be charged or that
party's authorized representative.
[_] This Note is being executed pursuant to a Loan Agreement ("Agreement") dated
01/25/95, amended 10/10/95 and 04/17/96, and to the extent the terms of this
Note are inconsistent with the Agreement, the terms of the Agreement shall
control.
This Note is secured by the following:
DATED this 17th day of April, 1996.
New Mexico Utilities, Inc. By: Southwest Water Company
a New Mexico Corporation a Delaware Corporation
By:/s/ WILLIAM C. JASURA By:/s/ PETER J. MOERBEEK
--------------------- ---------------------
William C. Jasura, Vice President Peter J. Moerbeek, Vice President
Finance and Chief Financial Officer Finance and Chief Financial Officer
Borrower's Primary Business Address: Borrower's Notice Address:
4700 Irving Blvd., N.W., Suite 201 4700 Irving Blvd., N.W., Suite 201
Albuquerque, NM 87114 Albuquerque, NM 87114
Borrower's Telephone Number: TIN/SS#: 85-0205240
Business (505) 898-2661