Exhibit 10.04


 


WAIVER


 


WAIVER, dated as of April 13, 2009 (this “Waiver”),
to the Credit Agreement, dated as of December 14, 2006 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”),
among Southwestern Public Service Company, a New Mexico corporation (the “Borrower”),
the several banks and other financial institutions from time to time parties
thereto (the “Lenders”), JPMorgan Chase Bank, N.A., as administrative
agent for the Lenders (in such capacity, the “Administrative Agent”),
and the other Agents party thereto.


 


W I T N E S S E T H:


 


WHEREAS, the Borrower, the Lenders and the
Administrative Agent are parties to the Credit Agreement;


 


WHEREAS, the Borrower has requested that certain
provisions of the Credit Agreement be waived as set forth herein to effect the
termination of the Revolving Commitment of Lehman Brothers Bank, FSB (“Lehman”)
without the pro rata reduction of the Revolving Commitment of any other Lender;
and


 


WHEREAS, the Lenders are willing to agree to such
waivers on the terms set forth herein;


 


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


 


28.   Defined Terms.  Unless otherwise defined herein, capitalized
terms used herein which are defined in the Credit Agreement are used herein as
therein defined.


 


29.   Waiver and Consent. (a) The
parties hereto hereby agree that effective as of the Effective Date (as defined
below), the Revolving Commitment of Lehman shall be permanently terminated in
full (the “Lehman Termination”) and waive compliance with Section 2.11
of the Credit Agreement with respect to the Lehman Termination. From and after
the Effective Date, Lehman shall have no further rights or obligations under
the Credit Agreement, other than those rights and obligations which, by their
terms, survive the termination of any of the Revolving Commitments and/or the
repayment in full of the Obligations.


 


(b) Other
than with respect to the Lehman Termination, this Waiver shall in no way be
deemed to waive, alter or otherwise modify the pro rata sharing of payments
provisions of Section 2.11 of the Credit Agreement, all of which remain in
full force and effect as written. For avoidance of doubt, the Borrower shall
not be required to make any payment under Section 2.3(a) or otherwise
in respect of the Revolving Commitment of Lehman for any period after January 1,
2009.


 


30.   Amendment.  (a)  As of the effective date, Schedule
1.1A shall be amended to remove Lehman as a Lender under the Credit Agreement
and change the amount of the Total Revolving Commitments to $247,861,111.10.


 


(b)  For the purpose of determining the
Revolving Percentages of the L/C Participants (or other ratable treatment
calculations) with respect to matters relating to any Letter of Credit
outstanding as of the Effective Date (each, an “Existing Letter of Credit”)
and funding obligations in connection therewith, (i) the amount of Lehman’s
outstanding Revolving Commitment shall be deemed to be zero and (ii) effective
as of the Effective Date, each L/C Participant’s Revolving Percentage of the
Total Revolving Commitments shall be calculated after giving effect to the
termination of Lehman’s Revolving Commitment contemplated by this Waiver.  For avoidance of doubt, as of and after the
Effective Date (x) Lehman shall have no obligation to purchase an interest
in any Existing Letter of Credit and (y) Lehman shall not receive any
share of any payment made pursuant to Section 3.4(c) of the Credit
Agreement in respect of any Existing Letter of Credit.


 


(c)  In the event of any inconsistency between
the terms of the Credit Agreement (including, without limitation, Section 2.11
thereof) and the terms of this Waiver, the terms of this Waiver shall
govern.  The Administrative Agent is
authorized to make administrative changes to the manner in which amounts are
funded or paid under the Credit Agreement and the other Loan Documents to the
extent necessary to effectuate the intent of this paragraph.


 


31.   Effectiveness; Fees.  This Waiver shall become effective as of the
date hereof (the “Effective Date”) when the Administrative Agent shall
have received (a) counterparts hereof duly executed by the Borrower and
the Administrative Agent and (b) 


 

















 


consent letters authorizing
the Administrative Agent to enter into this Waiver from the Required
Lenders.  The parties hereto hereby agree
that the Borrower is not required to pay any fee in connection with this Waiver.


 


32.   Representations and Warranties.  The Borrower hereby represents and warrants
that, after giving effect to this Waiver, (a) each of the representations
and warranties of the Borrower in or pursuant to the Loan Documents (other than
the representations and warranties contained in Sections 4.2 and 4.6 of the
Credit Agreement, which representations and warranties are true and correct on
and as of the Closing Date) is true and correct in all material respects, as if
made on and as of the date hereof, except to the extent any such representation
or warranty is stated to relate solely to an earlier date, in which case such
representation or warranty is true and correct in all material respects as of
such earlier date, and (b) no Default or Event of Default has occurred and
is continuing.


 


33.   Continuing Effect of Credit Agreement.  This Waiver shall not be construed as a
waiver or consent to any further or future action on the part of the Borrower
that would require a waiver or consent of the Administrative Agent and/or the
Lenders.  Except as amended hereby, the
provisions of the Credit Agreement are and shall remain in full force and
effect.


 


34.   Counterparts.  This Waiver may be executed in counterparts
and all of the said counterparts taken together shall be deemed to constitute
one and the same instrument.  Delivery of
an executed signature page of this Waiver by facsimile or other electronic
transmission shall be effective as delivery of a manually executed counterpart
hereof.


 


35.  GOVERNING LAW.  THIS WAIVER SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.


 


36.   Expenses.  The Borrower agrees to pay or reimburse the
Administrative Agent for all of its reasonable out-of-pocket attorney fees and
disbursements of Simpson Thacher & Bartlett LLP incurred in connection
with the preparation, negotiation and execution of this Waiver.


 

















 


IN WITNESS WHEREOF, the parties hereto have caused
this Waiver to be executed and delivered by their duly authorized officers as
of the date first written above.


 


 


	
   

  	
   

  	
  SOUTHWESTERN
  PUBLIC SERVICE COMPANY

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  GEORGE E. TYSON, II

  
	
   

  	
   

  	
  Name:
  George E. Tyson, II

  
	
   

  	
   

  	
  Title:
  Vice President and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  JPMORGAN
  CHASE BANK, N.A., as

  
	
   

  	
   

  	
  Administrative
  Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  MICHAEL DEFORGE

  
	
   

  	
   

  	
  Name:
  Michael DeForge

  
	
   

  	
   

  	
  Title:
  Executive Director