FIRST AMENDMENT TO CREDIT AGREEMENT

 

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FIRST AMENDMENT TO CREDIT AGREEMENT

THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is entered into as of November 3, 2006 among PNM RESOURCES, INC., a New Mexico corporation (the “Company”), FIRST CHOICE POWER, L.P., a Texas limited partnership (“FCP”), TEXAS-NEW MEXICO POWER COMPANY, a Texas corporation (“TNMP”, collectively with the Company and FCP, the “Borrowers”), the Lenders party hereto, and BANK OF AMERICA, N.A., as Administrative Agent for the Lenders (in such capacity, the “Administrative Agent”). Capitalized terms used herein and not otherwise defined shall have the meanings ascribed thereto in the Credit Agreement (as defined below).

WHEREAS, the Borrowers, the Lenders party thereto and the Administrative Agent are parties to that certain Amended and Restated Credit Agreement, dated as of August  15, 2005 (as amended or modified from time to time, the “Credit Agreement”);

WHEREAS, the Borrowers have requested that the Lenders agree to certain changes to the Credit Agreement; and

WHEREAS, the Lenders are willing to agree to certain changes to the Credit Agreement as more fully set forth below.

NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

1. Amendments. Section 7.1. Sections 7.1(a) and 7.1(b) of the Credit Agreement are hereby amended and restated in their entireties to read as follows:

(a) Annual Financial Statements. As soon as available, and in any event within 120 days after the close of each Fiscal Year of such Borrower, a consolidated balance sheet and income statement of such Borrower and its Subsidiaries, as of the end of such Fiscal Year, together with the related consolidated statements of income and of cash flows for such Fiscal Year, setting forth in comparative form figures for the preceding Fiscal Year, all such financial information described above to be in reasonable form and detail and (i) in the case of each of FCP and First Choice (to the extent such Person is a Borrower), accompanied by a certificate of a Financial Officer of such Borrower to the effect that such annual financial statements fairly present in all material respects the financial condition of such Borrower and have been prepared in accordance with GAAP and (ii) in all other cases, audited by independent certified public accountants of recognized national standing reasonably acceptable to the Required Lenders and whose opinion shall be furnished to the Lenders, and shall be to the effect that such financial statements have been prepared in accordance with GAAP (except for changes with which such accountants concur) and shall not be limited as to the scope of the audit or qualified in any respect. Notwithstanding the forgoing, such financial statements of each Borrower (other than the Company) shall not be required to contain comparative form figures for any portion of the preceding Fiscal Year, if any, that the applicable Borrower has not been owned by the Company.

 

(b) Quarterly Financial Statements. As soon as available, and in any event within 60 days after the close of each Fiscal Quarter of such Borrower (other than the fourth Fiscal Quarter), a consolidated balance sheet and income statement of such Borrower and its Subsidiaries as of the end of such Fiscal Quarter, together with the related consolidated statement of income for such Fiscal Quarter and a year to date statement of cash flows, in each case setting forth in comparative form figures for the corresponding period of the preceding Fiscal Year, all such financial information described above to be in reasonable form and detail and reasonably acceptable to the Required Lenders, and, in each case, accompanied by a certificate of a Financial Officer of such Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition of such Person and have been prepared in accordance with GAAP, subject to changes resulting from audit and normal year-end audit adjustments and except that the quarterly financial statements have fewer footnotes than annual statements. Notwithstanding the forgoing, such financial statements of each Borrower (other than the Company) shall not be required to contain comparative form figures for any portion of the preceding Fiscal Year, if any, that the applicable Borrower has not been owned by the Company.

2. Conditions Precedent. This Amendment shall be effective upon receipt by the Administrative Agent of copies of this Amendment duly executed by each Borrower and the Required Lenders.

3. Ratification of Credit Agreement. The term “Credit Agreement” as used in each of the Credit Documents shall hereafter mean the Credit Agreement as amended by this Amendment. Except as herein specifically agreed, the Credit Agreement is hereby ratified and confirmed and shall remain in full force and effect according to its terms.

4. Authority/Enforceability. Each Borrower represents and warrants as follows:

(a) It has taken all necessary action to authorize the execution, delivery and performance of this Amendment.

(b) This Amendment has been duly executed and delivered by such Person and constitutes such Person’s legal, valid and binding obligations, enforceable in accordance with its terms, except as such enforceability may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).

(c) No consent, approval, authorization or order of, or filing, registration or qualification with, any court or governmental authority or third party is required in connection with the execution, delivery or performance by such Person of this Amendment.

5. Representations and Warranties. Each Borrower represents and warrants to the Lenders that (a) the representations and warranties of such Borrower set forth in Section 6 of the Credit Agreement are true and correct as of the date hereof, unless they specifically refer to an earlier date, (b) no event has occurred and is continuing which constitutes a Default or an Event of Default, and (c) it has no claims, counterclaims, offsets, credits or defenses to its obligations under the Credit Documents or to the extent it has any they are hereby released in consideration of the Lenders entering into this Amendment.

 

6. No Conflicts. Neither the execution and delivery of this Amendment, nor the consummation of the transactions contemplated herein, nor performance of and compliance with the terms and provisions hereof by any Borrower will (a) violate, contravene or conflict with any provision of its respective articles or certificate of incorporation, bylaws or other organizational or governing document, (b) violate, contravene or conflict with any law, rule, regulation, order, writ, judgment, injunction, decree or permit applicable to a Borrower, (c) violate, contravene or conflict with contractual provisions of, or cause an event of default under, any indenture, loan agreement, mortgage, deed of trust, contract or other agreement or instrument to which a Borrower is a party or by which it or its properties may be bound or (d) result in or require the creation of any Lien upon or with respect to a Borrower’s properties.

7. Counterparts/Telecopy. This Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall constitute one and the same instrument. Delivery of executed counterparts by telecopy shall be effective as an original and shall constitute a representation that an original will be delivered if requested.

8. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

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Each of the parties hereto has caused a counterpart of this Amendment to be duly executed and delivered as of the date first above written.

a New Mexico corporation

By: /s/ Wendy A. Carlson   

Name: Wendy A. Carlson   

Title: Vice President and Treasurer  

FIRST CHOICE POWER, L.P.,

a Texas limited partnership

By: /s/ Wendy A. Carlson   

Name: Wendy A. Carlson   

Title:  Vice President and Treasurer  

a Texas corporation

By: /s/ Tom Sategna    

Name: Thomas G. Sategna   

Title: Vice President, Controller and Treasurer 

By: /s/ Kevin Bertelsen   

Name: Kevin Bertelsen    

Title: Senior Vice President   

WACHOVIA BANK, NATIONAL ASSOCIATION,

as a Lender and L/C Issuer

By: /s/ Frederick W. Price   

Name: Frederick W. Price   

Title: Managing Director   

By: /s/ Efrain Soto    

Name: Efrain Soto    

Title: Vice President    

By: /s/ Michael DeForge   

Name: Michael DeForge   

Title: Vice President    

By: /s/ J. Nicholas McKee   

Name: Nicholas McKee   

Title: Managing Director   

By: /s/ Daniel A. Conklin   

Name: Daniel Conklin    

Title: Vice President    

 

By: /s/ Louis Alder    

Name: Louis Alder    

Title: Director    

By:      

Name:     

Title:      

By: /s/ Irja R. Otsa -- /s/Richard L. Tavros 

Name: Irja R. Otsa -- Richard L. Tavros 

Title: Associate Director Director  

  Banking Products Services, US  

By: /s/ Janine M Shugan   

Name: Janine M. Shugan   

Title: Authorized Signatory   

(Recourse only to assets of William Street Commitment

Corporation)

By: /s/ Mark Walton    

Name: Mark Walton    

Title: Assistant Vice President   

By: /s/ Sarah Wu    

Name: Sarah Wu    

Title: Director    

 

By: /s/Laurence Lapeyre   

Name: Laurence Lapeyre   

Title: Associate    

By: /s/ James W. Henken   

Name: James W. Henken   

Title: Vice President    

By: /s/ Jennifer Diedzic #75329  

Name: Jennifer Diedzic    

Title: Assistant Vice President   

By: /s/ Mark W. Rogers   

Name: Mark W. Rogers   

Title: Vice President    

By: /s/ David A. McCluskey   

Name: David A. McCluskey   

Title: Authorized Signatory   

By:      

Name:      

Title:      

By: /s/ Lonnie Warren   

Name: Lonnie Warren    

Title: President, North Arlington Banking Center

By: /s/ Myka C. Gentry   

Name: Myka C. Gentry    

Title: Vice President    

By: /s/ Helen H. Gateson /s/ Charles McLaughlin

Name: Helen H. Gateson Charles McLaughlin 

Title: Vice President Senior Vice President 

ADMINSTRATIVE AGENT: BANK OF AMERICA, N.A.

By: /s/ Maria A. McClain   

Title: Vice President 

 

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