Exhibit 10(q)
AMENDMENT
TO CREDIT AGREEMENT
This AMENDMENT, dated as of February 22, 2002 (this "Amendment"), is made to
that certain $1,400,000,000 364-DAY COMPETITIVE ADVANCE AND REVOLVING CREDIT
FACILITY AGREEMENT (the "364 Day Facility"), dated as of February 23, 2001,
among TXU CORP., a Texas corporation ("TXU"), TXU US HOLDINGS COMPANY (formerly
"TXU ELECTRIC COMPANY"), a Texas corporation and a wholly owned subsidiary of
TXU ("Holdings"), and TXU GAS COMPANY, a Texas corporation and a wholly owned
subsidiary of TXU ("TXU Gas", and, together with TXU and Holdings, the
"Borrowers", and each individually, a "Borrower"); the Lenders party thereto
(the "Lenders"); and JPMORGAN CHASE BANK (formerly "The Chase Manhattan Bank"),
as Competitive Advance Facility Agent (in such capacity, the "CAF Agent"), as
administrative agent for the Lenders (in such capacity, the "Administrative
Agent"; and, together with the CAF Agent, the "Agents").
PRELIMINARY STATEMENT:
The Borrowers, the Lenders and the Agents previously entered into the 364
Day Facility. TXU Gas seeks, effective January 1, 2002, no longer to be a party
to or a Borrower under the 364 Day Facility. Holdings and TXU seek to extend the
Revolving Period under the 364 Day Facility as set forth herein. The Lenders
have agreed to amend the 364 Day Facility accordingly, subject to the terms and
conditions of this Amendment. Therefore, for good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties agree as
follows:
SECTION 1. Definitions. Capitalized terms used but not defined herein have
the meanings assigned to such terms in the 364 Day Facility.
SECTION 2. Amendments. Subject to the satisfaction of the conditions
precedent set forth in Section 3 hereof, the 364 Day Facility is hereby amended
as follows:
(a) As of the date hereof, the definition of "Revolving Period" set forth
in Section 1.01 of the 364 Day Facility is hereby amended and restated in its
entirety to read as follows:
"Revolving Period" shall mean the period beginning on the date hereof
and ending on April 30, 2002.
(b) As of January 1, 2002, TXU Gas shall not be a "Borrower", and shall
have no rights or obligations, under the 364 Day Facility.
SECTION 3. Conditions of Effectiveness. Section 2 of this Amendment shall
become effective on the date (the "Amendment Date") on which each of the
following conditions shall have been fulfilled:
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(i) each Lender, TXU, Holdings (together with TXU, the "Remaining
Borrowers" and each individually a "Remaining Borrower") and TXU Gas shall
have executed and delivered to the Administrative Agent a counterpart of
this Amendment;
(ii) the Administrative Agent shall have received the following, each
dated the Amendment Date, in form and substance satisfactory to the
Administrative Agent and in sufficient copies for each Lender:
(A) a certificate of the Secretary or an Assistant Secretary of
each Remaining Borrower certifying:
(1) a true and complete copy of the Bylaws of such Remaining
Borrower as in effect on the Amendment Date and at all times
since the adoption of the resolutions referred to in (2);
(2) true and complete copies of the resolutions of the Board
of Directors of each Remaining Borrower authorizing the execution
and delivery by such Remaining Borrower of this Amendment, the
Borrowings to be made by such Remaining Borrower under the 364
Day Facility as amended hereby and the performance by such
Remaining Borrower of its obligations under the 364 Day Facility
as amended hereby, and that such resolutions have not been
modified, rescinded or amended and are in full force and effect;
(3) that the certificate of incorporation has not been
amended since the date of the last amendment thereto shown on the
certificate of good standing furnished pursuant to (D) below; and
(4) the names, true signatures and incumbency of the
officers of such Remaining Borrower authorized to sign this
Amendment and all other documents delivered in connection
herewith on behalf of such Remaining Borrower.
(B) a certificate of an officer of each Remaining Borrower (other
than the Secretary or Assistant Secretary who furnished the
certificate pursuant to (A) above), certifying as to the incumbency
and specimen signature of such Secretary or Assistant Secretary;
(C) a certificate of a Responsible Officer of each Remaining
Borrower certifying that (i) no action, consent or approval of,
registrations or filings with, or other action by, any Governmental
Authority is or will be required in connection with the execution,
delivery and performance by such Remaining Borrower of this Amendment
or the 364 Day Facility as amended hereby, except those as have been
duly obtained and as are (A) in full force and effect, (B) sufficient
for their purpose and (C) not subject to any pending or, to the
knowledge of such person, threatened appeal or other proceeding
seeking reconsideration or review thereof, (ii) the representations
and warranties of each Remaining Borrower set forth in Article III of
the 364 Day Facility, as amended hereby, are true and correct on and
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as of the Amendment Date as though made on and as of such date, except
to the extent that such representations and warranties expressly
relate to an earlier date; and (iii) no event has occurred and is
continuing that constitutes a Default or an Event of Default;
(D) copies of (i) the certificate of incorporation, including all
amendments thereto, of each Remaining Borrower, certified as of a
recent date by the Secretary of State of the State of Texas, and (ii)
a certificate as to the good standing of each Remaining Borrower as of
a recent date from such Secretary of State;
(E) favorable opinions of (i) (A) ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP,
special New York counsel to the Remaining Borrowers, and (B) Hunton &
▇▇▇▇▇▇▇▇, general counsel to the Remaining Borrowers, and (ii) King &
Spalding, special New York counsel to the Administrative Agent, in
each case addressed to the Administrative Agent, the CAF Agent and the
Lenders; and
(F) such other approvals, opinions and documents as the Agents or
any Lender may reasonably request; and
(iii) At all times during the period from January 1, 2002 to (and
including) the Amendment Date, no Loans shall have been outstanding to TXU
Gas.
(iv) The Administrative Agent shall have received for the account of
each Lender that has become a party to this Amendment and, if such Lender
is a party to the Facility B Credit Agreement, the Amendment, dated
February 22, 2002, to the Facility B Credit Agreement, an Amendment fee
equal to .025% of the Commitment of such Lender on the Amendment Date.
SECTION 4. Representations and Warranties. Each Remaining Borrower
represents and warrants that (i) the representations and warranties contained in
Article III of the 364 Day Facility (with each reference therein to "this
Agreement", "hereunder" and words of like import referring to the 364 Day
Facility being deemed to be a reference to this Amendment and the 364 Day
Facility as amended hereby) are true and correct on and as of the Amendment Date
as though made on and as of such date, except to the extent that such
representations and warranties expressly relate to an earlier date, and (ii) no
event has occurred and is continuing, or would result from the execution and
delivery of this Amendment, that constitutes a Default or an Event of Default.
SECTION 5. Effect on the 364 Day Facility. Except as specifically provided
above, the 364 Day Facility shall continue to be in full force and effect and is
hereby in all respects ratified and confirmed. The execution, delivery and
effectiveness of this Amendment shall not, except as expressly provided herein,
operate as a waiver of any right, power or remedy of the Lenders or the Agents
under the 364 Day Facility, nor constitute a waiver of any provision of the 364
Day Facility.
SECTION 6. Costs, Expenses and Taxes. The Remaining Borrowers agree jointly
and severally to pay on demand all reasonable out-of-pocket expenses of the
Administrative Agent in
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connection with the preparation, execution and delivery of this Amendment and
the other instruments and documents to be delivered hereunder, including,
without limitation, the reasonable fees and out-of-pocket expenses of counsel
for the Administrative Agent with respect thereto, and all costs and expenses
(including, without limitation, counsel fees and expenses), if any, in
connection with the enforcement (whether through negotiations, legal proceedings
or otherwise) of this Amendment or such other instruments and documents. In
addition, the Remaining Borrowers agree jointly and severally to pay any and all
stamp and other taxes payable or determined to be payable in connection with the
execution and delivery of this Amendment and the other instruments and documents
to be delivered hereunder, and agree jointly and severally to save the Agents
and the Lenders harmless from and against any and all liabilities with respect
to or resulting from any delay in paying or omission to pay such taxes.
SECTION 7. Execution in Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute but one and the same
instrument.
SECTION 8. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the internal laws of the State of the New York.
[Signature pages to follow.]
TXU CORP.
By
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:Treasurer and Assistant Secretary
TXU US HOLDINGS COMPANY
By
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Name: ▇▇▇▇▇ ▇▇▇▇
Title:Treasurer and Assistant Secretary
TXU GAS COMPANY
By
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Name: ▇▇▇▇▇ ▇▇▇▇
Title:Treasurer and Assistant Secretary
JPMORGAN CHASE BANK,
By
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Name:
Title:
ABN AMRO BANK N.V.
By
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Name:
Title:
By
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Name:
Title:
THE BANK OF TOKYO-MITSUBISHI, LTD.,
HOUSTON AGENCY
By
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Name:
Title:
BNP PARIBAS
By
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Name:
Title:
By
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Name:
Title:
BARCLAYS BANK PLC
By
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Name:
Title:
BAYERISCHE LANDESBANK GIROZENTRALE,
CAYMAN ISLANDS BRANCH
By
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Name:
Title:
By
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Name:
Title:
CITIBANK, N.A.
By
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Name:
Title:
COMMERZBANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES
By
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Name:
Title:
By
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Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By
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Name:
Title:
CREDIT SUISSE FIRST BOSTON, CAYMAN
ISLANDS BRANCH
By
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Name:
Title:
By
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Name:
Title:
THE DAI-ICHI KANGYO BANK, LTD.
By
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Name:
Title:
DANSKE BANK A/S
By
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Name:
Title:
By
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Name:
Title:
GUARANTY FEDERAL BANK, FSB
By
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Name:
Title:
THE INDUSTRIAL BANK OF JAPAN,
LIMITED NEW YORK BRANCH
By
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Name:
Title:
KBC BANK N.V.
By
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Name:
Title:
▇▇▇▇▇▇ COMMERCIAL PAPER INC.
By
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Name:
Title:
LLOYDS TSB BANK PLC
By
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Name:
Title:
By
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Name:
Title:
MELLON BANK, N.A.
By
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Name:
Title:
NATIONAL AUSTRALIA BANK LIMITED
A.C.N. 004044937
By
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Name:
Title:
THE ROYAL BANK OF SCOTLAND PLC
By
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Name:
Title:
SOCIETE GENERALE
By
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Name:
Title:
THE SUMITOMO BANK, LIMITED
By
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Name:
Title:
TORONTO DOMINION (TEXAS), INC.
By
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Name:
Title:
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH
By
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Name:
Title:
By
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Name:
Title:
THE BANK OF NEW YORK
By
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Name:
Title:
FLEET NATIONAL BANK
By
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Name:
Title:
BANCA NAZIONALE DEL LAVORO S.p.A.--
NEW YORK BRANCH
By
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Name:
Title:
By
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Name:
Title:
UBS AG, STAMFORD BRANCH
By
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Name:
Title:
By
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Name:
Title:
BANK OF AMERICA, N.A.
By
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Name:
Title:
THE FUJI BANK, LIMITED
By
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Name:
Title:
BANK ONE, NA
By
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Name:
Title:
FIRST UNION NATIONAL BANK
By
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Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK USA
By
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Name:
Title:
By
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Name:
Title:
