Exhibit 10.2
AMENDMENT NO. 2
to
CREDIT AGREEMENT
THIS AMENDMENT NO. 2 TO CREDIT AGREEMENT (the
“ Amendment ”) is made as of March 10, 2009 by
and among TEXAS-NEW MEXICO POWER COMPANY (the “
Borrower ”), the institutions from time to time
parties thereto as Lenders (the “ Lenders ”),
and JPMORGAN CHASE BANK, N.A., in its capacity as Administrative
Agent for itself and the other Lenders (the “
Administrative Agent ”) under that certain Credit
Agreement dated as of May 15, 2008 by and among the Borrower, the
financial institutions party thereto, and the Administrative Agent
(as the same may be amended, restated, supplemented or otherwise
modified from time to time, the “ Credit Agreement
”). Defined terms used herein and not otherwise
defined herein shall have the meaning given to them in the Credit
Agreement.
WITNESSETH
WHEREAS, the Borrower, the Lenders, and the
Administrative Agent are parties to the Credit Agreement;
and
WHEREAS, the Borrower has requested that the
Administrative Agent and the requisite number of Lenders under
Section 11.6 of the Credit Agreement amend the Credit
Agreement on the terms and conditions set forth herein;
and
WHEREAS, the Borrower, the requisite number of
Lenders under Section 11.6 of the Credit Agreement and the
Administrative Agent have agreed to amend the Credit Agreement on
the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises
set forth above, the terms and conditions contained herein, and
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto have agreed to
the following amendments to the Credit Agreement:
1. Amendments to
the Credit Agreement . Effective as of March 10,
2009 (the “ Effective Date ”) and subject to the
satisfaction of the condition precedent set forth in Section
2 below, the Credit Agreement is hereby amended as
follows:
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1.1.
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Section
1.1 to the Credit
Agreement is amended to insert the following definitions in
alphabetical order:
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“ First Mortgage Bond Trustee
” has the meaning set forth in the definition of “Note
Facilities Documentation”.
“ 1999 Indenture ” has the
meaning set forth in the definition of “Note Facilities
Documentation”.
“ 2009 Term Loan Credit Agreement
” means a term loan credit agreement to be dated on or before
April 1, 2009, between the Borrower and one or more lenders parties
thereto, including Union Bank, N.A. or any of its affiliates,
individually and/or as agent on behalf of such lenders, as it may
be amended, supplemented, extended or otherwise modified form time
to time; provided that the Administrative Agent and the Lenders
shall have received satisfactory evidence that all of the
obligations outstanding under the 2008 Term Loan Credit Agreement
shall have been paid in full in cash, and the 2008 Term Loan Credit
Agreement shall have been terminated, prior to or substantially
concurrently with the initial incurrence of Indebtedness pursuant
to the 2009 Term Loan Credit Agreement.
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1.2.
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Section
1.1 to the Credit
Agreement is hereby amended to delete the definition of “
Note Facilities Documentation ” in its entirety, and
to substitute the following therefor:
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“ Note Facilities Documentatio
n” means (1) the First Mortgage Indenture dated on or before
April 1, 2009, between the Borrower and The Bank of New York Mellon
Trust Company, N.A., as Trustee (together with its permitted
successors and assigns in such capacity, the “ First
Mortgage Bond Trustee ”), the First Supplemental
Indenture dated on or before April 1, 2009 issued pursuant thereto
and any other supplemental indentures, notes or other securities
issued pursuant thereto or in connection therewith, as the same may
be amended, supplemented, extended or otherwise modified from time
to time, and/or (2) the Indenture dated as of January 1, 1999,
between the Borrower and The Bank of New York Trust Company, N.A.
(as successor to JPMorgan Chase Bank, N.A., formerly JPMorgan Chase
Bank, as successor to Chase Bank of Texas, N.A.), as Trustee (the
“ 1999 Indenture ”), the Third Supplemental
Indenture issued pursuant thereto and any other supplemental
indentures, notes or other securities issued pursuant thereto or in
connection therewith, as the same may be amended, supplemented,
extended or otherwise modified from time to time; provided that the
Administrative Agent and the Lenders shall have received
satisfactory evidence that all of the obligations outstanding under
the 2008 Term Loan Credit Agreement shall have been paid in full in
cash, and the 2008 Term Loan Credit Agreement shall have been
terminated, prior to or substantially concurrently with the initial
incurrence of Indebtedness pursuant to the Note Facilities
Documentation.
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1.3.
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Section
8.5 to the Credit
Agreement is hereby amended to delete subclause (q) thereof
in its entirety, and to substitute the following
therefor:
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(q) Liens upon any property in favor of the
First Mortgage Bond Trustee securing Indebtedness under the Note
Facilities Documentation and/or the 2009 Term Loan Credit
Agreement; provided that in the event that the aggregate principal
amount of Indebtedness secured by such Liens shall exceed
$318,000,000 (i) the Borrower Obligations shall concurrently be
secured equally and ratably with (or prior to) such Indebtedness so
long as such other Indebtedness shall be secured and (ii) the
Borrower, the First Mortgage Bond Trustee and the Administrative
Agent, for the benefit of the Lenders, shall have entered into such
supplemental indentures and other documentation deemed necessary by
the Administrative Agent in respect of such Lien on terms
and
conditions
acceptable to the Administrative Agent (including, without
limitation, with respect to the voting of claims and release or
modification of any such Lien on all or any portion of the
collateral thereunder), and
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1.4.
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Section
8.7 to the Credit
Agreement is hereby amended to delete the current Section
8.7 in its entirety and to substitute the following new
Section
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