Exhibit 10a
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TXU ENERGY COMPANY LLC
TXU ELECTRIC DELIVERY COMPANY,
as Borrowers
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$2,500,000,000
REVOLVING CREDIT AGREEMENT
Dated as of June 24, 2004
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JPMORGAN CHASE BANK,
as Administrative Agent
JPMORGAN CHASE BANK ,
CITIBANK, N.A.,
as Fronting Banks
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▇. ▇. ▇▇▇▇▇▇ SECURITIES, INC.
CITIGROUP GLOBAL MARKETS INC.
Joint Lead Arrangers and Bookrunners
CITIBANK, N.A.
Syndication Agent
TABLE OF CONTENTS
Page
Article I DEFINITIONS; CONSTRUCTION ..............................................................................1
Section 1.01. Defined Terms. ............................................................................1
Section 1.02. Terms Generally. .........................................................................21
Article II THE CREDITS ..........................................................................................22
Section 2.01. Commitments. .............................................................................22
Section 2.02. Loans. ...................................................................................23
Section 2.03. Borrowing Procedure. .....................................................................24
Section 2.04. Fees. ....................................................................................24
Section 2.05. Repayment of Loans; Evidence of Indebtedness. ............................................25
Section 2.06. Term Loan. ...............................................................................26
Section 2.07. Interest on Loans. .......................................................................26
Section 2.08. Alternate Rate of Interest. ..............................................................27
Section 2.09. Termination and Reduction of Commitments. ................................................27
Section 2.10. Prepayment. ..............................................................................28
Section 2.11. Reserve Requirements; Change in Circumstances. ...........................................28
Section 2.12. Change in Legality. ......................................................................30
Section 2.13. Pro Rata Treatment. ......................................................................31
Section 2.14. Sharing of Setoffs. ......................................................................31
Section 2.15. Payments. ................................................................................32
Section 2.16. Taxes. ...................................................................................32
Section 2.17. Assignment of Commitments Under Certain Circumstances. ...................................35
Section 2.18. Letters of Credit. .......................................................................35
Article III REPRESENTATIONS AND WARRANTIES ......................................................................39
Section 3.01. Organization; Powers. ....................................................................39
Section 3.02. Authorization. .......................................................................... 40
Section 3.03. Enforceability. ..........................................................................40
Section 3.04. Governmental Approvals. ..................................................................40
Section 3.05. Financial Statements. ................................................................... 40
Section 3.06. Litigation. ..............................................................................41
Section 3.07. Federal Reserve Regulations. .............................................................41
Section 3.08. Investment Company Act; Public Utility Holding Company Act. ............................. 41
Section 3.09. No Material Misstatements. ...............................................................41
Section 3.10. Taxes. ...................................................................................41
Section 3.11. Employee Benefit Plans. ..................................................................42
Section 3.12. Significant Subsidiaries. ................................................................42
Section 3.13. Environmental Matters. ...................................................................42
Section 3.14. Solvency. ................................................................................43
Article IV CONDITIONS ...........................................................................................43
Section 4.01. Initial Extensions of Credit. ............................................................43
Section 4.02. Conditions for All Extensions of Credit. .................................................44
Article V COVENANTS .............................................................................................45
Section 5.01. Existence. ...............................................................................45
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Section 5.02. Compliance With Laws; Business and Properties. ...........................................45
Section 5.03. Financial Statements, Reports, Etc. ......................................................46
Section 5.04. Insurance. ...............................................................................47
Section 5.05. Taxes, Etc. ..............................................................................47
Section 5.06. Maintaining Records; Access to Properties and Inspections. ...............................47
Section 5.07. ERISA. ...................................................................................48
Section 5.08. Use of Proceeds. .........................................................................48
Section 5.09. Consolidations, Mergers, Sales and Acquisitions of Assets and
Investments in Subsidiaries........................................................................48
Section 5.10. Limitations on Liens. ....................................................................49
Section 5.11. Fixed Charge Coverage Ratio. .............................................................51
Section 5.12. Debt to Total Capitalization Ratio. ......................................................51
Section 5.13. Restrictive Agreements. ..................................................................51
Article VI EVENTS OF DEFAULT ....................................................................................52
Article VII THE AGENT ...........................................................................................55
Article VIII MISCELLANEOUS ......................................................................................57
Section 8.01. Notices. .................................................................................57
Section 8.02. Survival of Agreement. ...................................................................57
Section 8.03. Binding Effect. ..........................................................................58
Section 8.04. Successors and Assigns. ..................................................................58
Section 8.05. Expenses; Indemnity. .....................................................................61
Section 8.06. Right of Setoff. ........................................................................ 63
Section 8.07. Applicable Law. ......................................................................... 63
Section 8.08. Waivers; Amendment. ......................................................................63
Section 8.09. Entire Agreement. ........................................................................64
Section 8.10. Severability. ............................................................................64
Section 8.11. Counterparts. ............................................................................64
Section 8.12. Headings. ................................................................................64
Section 8.13. Interest Rate Limitation. ................................................................65
Section 8.14. Jurisdiction; Venue. .....................................................................65
Section 8.15. Confidentiality. ........................................................................ 66
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EXHIBITS AND SCHEDULES
Exhibit A - Form of Assignment and Acceptance
Exhibit B - Form of Borrowing Request
Exhibit C - Form of Prepayment Notice
Exhibit D-1 - Form of Request for Issuance (JPMorgan Chase Bank)
Exhibit D-2 - Form of Request for Issuance (Citibank, N.A.)
Exhibit E - Form of Notice of Interest Period
Schedule 2.01 - Commitments
Schedule 2.18(i) - Fronting Bank LC Limits
Schedule 5.13 - Restrictive Agreements
REVOLVING CREDIT AGREEMENT (this "Agreement"), dated as of
June 24, 2004, among TXU Energy Company LLC, a Delaware
limited liability company ("Energy"), TXU Electric Delivery
Company (formerly known as Oncor Electric Delivery Company), a
Texas corporation ("Delivery" and, together with Energy, the
"Borrowers", and each individually, a "Borrower"), the lenders
listed in Schedule 2.01 (together with their successors and
assigns, the "Lenders"), JPMorgan Chase Bank ("JPMorgan
Chase"), as administrative agent for the Lenders (in such
capacity, the "Agent") and as a fronting bank for letters of
credit issued hereunder, and Citibank, N.A., as a fronting
bank for letters of credit issued hereunder.
The Borrowers have requested that the Lenders and the Fronting Banks
provide the credit facility hereinafter described in the amounts and on the
terms and conditions set forth herein, the Lenders and the Fronting Banks have
so agreed on the terms and conditions set forth herein, and the Agent has agreed
to act as agent for the Lenders, on such terms and conditions;
Accordingly, the parties hereto agree as follows:
Article I
DEFINITIONS; CONSTRUCTION
Section 1.01. Defined Terms.
As used in this Agreement, the following terms shall have the meanings
specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with
the provisions of Article II or any Eurodollar Loan converted (pursuant
to Section 2.03, 2.08 or 2.12(a)(ii)) to a loan bearing interest at a
rate determined by reference to the Alternate Base Rate.
"Acquisition Date" shall mean the date as of which a person or
group of related persons first acquires more than 30% of any
outstanding class of Voting Shares of TXU (within the meaning of
Section 13(d) or 14(d) of the Exchange Act, and the applicable rules
and regulations thereunder).
"Administrative Fees" shall have the meaning assigned to such
term in Section 2.04(d).
"Affiliate" shall mean, when used with respect to a specified
person, another person that directly or indirectly controls or is
controlled by or is under common control with the person specified.
"Agent" shall have the meaning given such term in the preamble
hereto.
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"Agreement" shall have the meaning given such term in the
preamble hereto.
"Alternate Base Rate" shall mean, for any day, a rate per
annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to
the greater of (i) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1% and (ii) the Prime Rate in effect on such day. For
purposes hereof, "Prime Rate" shall mean the rate of interest per annum
publicly announced from time to time by JPMorgan Chase as its prime
rate in effect at its principal office in New York City; each change in
the Prime Rate shall be effective on the date such change is publicly
announced as effective; and "Federal Funds Effective Rate" shall mean,
for any day, the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as released on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
released for any day which is a Business Day, the arithmetic average
(rounded upwards to the next 1/100th of 1%), as determined by JPMorgan
Chase, of the quotations for the day of such transactions received by
JPMorgan Chase from three Federal funds brokers of recognized standing
selected by it. If for any reason JPMorgan Chase shall have determined
(which determination shall be conclusive absent manifest error;
provided that JPMorgan Chase shall, upon request, provide to the
applicable Borrower a certificate setting forth in reasonable detail
the basis for such determination) that it is unable to ascertain the
Federal Funds Effective Rate for any reason, including the inability of
JPMorgan Chase to obtain sufficient quotations in accordance with the
terms thereof, the Alternate Base Rate shall be determined without
regard to clause (i) of the first sentence of this definition until the
circumstances giving rise to such inability no longer exist. Any change
in the Alternate Base Rate due to a change in the Prime Rate or the
Federal Funds Effective Rate shall be effective on the effective date
of such change in the Prime Rate or the Federal Funds Effective Rate,
respectively.
"Applicable Commitment Termination Date" shall mean, with
respect to any Tranche A Borrowing or Tranche A Commitment, the Tranche
A Commitment Termination Date, with respect to any Tranche B Borrowing
or Tranche B Commitment, the Tranche B Commitment Termination Date, and
with respect to any Tranche C Borrowing or Tranche C Commitment, the
Tranche C Commitment Termination Date.
"Applicable Margin" shall mean, as applicable, the Tranche A
Applicable Margin or the Multi-Year Applicable Margin.
"Applicable Rating Level" shall mean, for any Borrower at any
time, the level set forth below in the row next to the then applicable
Debt Ratings of such Borrower. If there is a difference of one level in
the Debt Ratings of such Borrower, then the higher Debt Rating shall be
used for purposes of determining the Applicable Rating Level for such
Borrower, and if there is a difference of more than one level in the
Debt Ratings for such Borrower, then the Debt Rating one level higher
than the lower Debt Rating will be used for purposes of determining the
Applicable Rating Level of such Borrower. Any change in the Applicable
Rating Level of any Borrower shall be effective on the date on which
the applicable rating agency announces any change in the applicable
Debt Rating of such Borrower.
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S&P Debt Rating
▇▇▇▇▇'▇ Debt Rating Applicable Rating Level
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A- or better 1
A3 or better
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BBB+ 2
Baa1
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BBB 3
Baa2
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BBB- 4
Baa3
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Below BBB-* 5
Below Baa3*
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* or unrated
"Assignment and Acceptance" shall mean an assignment and
acceptance entered into by a Lender and an assignee in the form of
Exhibit A.
"Available Commitment" shall mean, with respect to any Lender,
the aggregate amount of such Lender's Tranche A Available Commitment,
Tranche B Available Commitment and Tranche C Available Commitment.
"Available Commitments" shall refer to the aggregate of the Lenders'
Available Commitments.
"Board" shall mean the Board of Governors of the Federal
Reserve System of the United States.
"Borrower" and "Borrowers" each shall have the meaning given
such term in the preamble hereto.
"Borrowing" shall mean any Tranche A Borrowing, Tranche B
Borrowing or Tranche C Borrowing.
"Borrowing Request" shall mean a request made pursuant to
Section 2.03 in the form of Exhibit B.
"Business Day" shall mean any day (other than a day that is a
Saturday, Sunday or legal holiday in the State of New York) on which
banks are open for business in New York City; provided, however, that,
when used in connection with a Eurodollar Loan, the term "Business Day"
shall also exclude any day on which banks are not open for dealings in
dollar deposits in the London interbank market.
"Cash Collateral Account" shall have the meaning assigned to
such term in Article VI.
"A Change in Control" shall be deemed to have occurred if (i)
any person or "group" (within the meaning of Section 13(d) or 14(d) of
the Exchange Act, as amended) shall acquire beneficial ownership of
more than 30% of any outstanding class of Voting Shares of TXU unless
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such acquisition shall have been approved prior to the applicable
Acquisition Date by a majority of Disinterested Directors of TXU or
(ii) during any period of 12 consecutive months, a majority of the
members of the board of directors of TXU cease to be composed of
individuals (A) who were members of board of directors of TXU on the
first day of such period, (B) whose election or nomination to the board
of directors of TXU was approved by individuals referred to in clause
(i) above constituting at the time of such election or nomination at
least a majority of the board of directors of TXU or (C) whose election
or nomination to the board of directors of TXU was approved by
individuals referred to in clauses (i) and (ii) above constituting at
the time of such election or nomination at least a majority of the
board of directors of TXU.
"Code" shall mean the Internal Revenue Code of 1986, as the
same may be amended from time to time.
"Commission" shall mean the Public Utility Commission of the
State of Texas.
"Commitment" shall mean, with respect to any Lender, the
aggregate of such Lender's Tranche A Commitment, Tranche B Commitment
and Tranche C Commitment.
"Consolidated Earnings Available for Fixed Charges" shall
mean, for any Borrower for any twelve-month period, (i) consolidated
net income, calculated after deducting preferred stock dividends and
preferred securities distributions of Subsidiaries, but before any
extraordinary items and before the effect in such twelve-month period
of any change in GAAP becoming effective after December 31, 2003 less
(ii) allowances for equity funds used during construction to the extent
that such allowances, taken as a whole, increased such consolidated net
income, plus (iii) provisions for Federal income taxes, to the extent
that such provisions, taken as a whole, decreased such consolidated net
income, plus (iv) Consolidated Fixed Charges, less (v) revenues arising
from competitive transition charges, plus (vi) depreciation and
amortization, all determined for such twelve-month period with respect
to such Borrower and its Consolidated Subsidiaries on a consolidated
basis; provided, however, that in computing Consolidated Earnings
Available for Fixed Charges for any twelve-month period, the following
shall be added to the extent that the following decreased consolidated
net income: (A) any non-cash book losses or charges, (B) any cash
charges, in an amount of up to $500,000,000 (calculated on an aggregate
basis throughout the term of this Agreement), as a result of (1)
rulings by federal or state regulatory bodies having jurisdiction over
such Borrower or its Consolidated Subsidiaries, (2) the early
retirement, repurchase or termination of debt or other securities or
financing arrangements, including premiums, relating to liability
management activities and (3) initiatives implemented pursuant to TXU's
4+4 performance improvement program, including, but not limited to,
severance costs, plant or mine closings, asset dispositions,
restructuring charges and transaction costs and (C) any losses incurred
in connection with Preferred Membership Interest Repurchases.
"Consolidated Fixed Charges" shall mean, for any Borrower for
any twelve-month period, the sum (without duplication) of (i) interest
expense (excluding any such expense (A) in respect of the amortization
of debt discount relating to the Preferred Membership Interests, (B)
incurred in connection with Preferred Membership Interest Repurchases,
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(C) in respect of Qualified Transition Bonds (including interest rate
swaps entered into by any Qualified Transition Bond Issuer in
connection with Qualified Transition Bonds issued by such Qualified
Transition Bond Issuer), (D) in the case of Delivery, in respect of
generation-related regulatory assets to the extent reimbursed by Energy
and (E) incurred in connection with any charges, write-offs or premiums
resulting from the early retirement of debt relating to liability
management activities, in each case to the extent included in the
calculation of interest expense) and (ii) preferred stock dividends and
preferred securities distributions (excluding any such dividends or
distributions incurred in connection with Preferred Membership Interest
Repurchases), all determined for such twelve-month period with respect
to such Borrower and its Consolidated Subsidiaries on a consolidated
basis.
"Consolidated Senior Debt" shall mean, for any Borrower, the
Senior Debt of such Borrower and its Consolidated Subsidiaries
determined on a consolidated basis, excluding, however, in the case of
Energy, up to $400,000,000 in the aggregate at any time of
determination of such Senior Debt described in clause (iii) of the
definition of "Senior Debt".
"Consolidated Shareholders' Equity" shall mean, for any
Borrower, the sum (without duplication) of (i) total common stock or
common members' interest plus (ii) preferred and preference stock or
preferred members' interest not subject to mandatory redemption, each
(in the case of clauses (i) and (ii)) determined with respect to such
Borrower and its Consolidated Subsidiaries on a consolidated basis,
plus (iii) Equity-Credit Preferred Securities in an aggregate
liquidation preference amount not in excess of (A) $1,000,000,000 in
the case of Energy, and (B) $850,000,000 in the case of Delivery, plus
(iv) Preferred Membership Interests; provided, however, that in
computing Consolidated Shareholders' Equity at any time, the following
shall be added to the extent that the following decreased total common
stock or common members' interest: (1) any cash and non-cash charges,
in an amount of up to $750,000,000 (calculated on an aggregate basis
throughout the term of this Agreement), as a result of (x) rulings by
federal or state regulatory bodies having jurisdiction over such
Borrower or its Consolidated Subsidiaries, (y) the early retirement,
repurchase or termination of debt or other securities or financing
arrangements, including premiums, relating to liability management
activities and (z) initiatives implemented pursuant to TXU's 4+4
performance improvement program, including, but not limited to,
severance costs, plant or mine closings, asset dispositions,
restructuring charges and transaction costs and (2) any losses incurred
in connection with Preferred Membership Interest Repurchases.
"Consolidated Subsidiary" of any person shall mean at any date
any Subsidiary or other entity the accounts of which would be
consolidated with those of such person in such person's consolidated
financial statements as of such date.
"Consolidated Total Capitalization" of any Borrower shall mean
the sum of (i) Consolidated Shareholders' Equity of such Borrower, (ii)
Consolidated Senior Debt of such Borrower and (iii) in the case of
Energy, the aggregate outstanding amount of Preferred Membership
Interests.
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"Controlled Group" shall mean all members of a controlled
group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with either
Borrower, are treated as a single employer under Section 414(b) or
414(c) of the Code.
"Debt Ratings" shall mean, with respect to any Borrower, the
ratings (whether explicit or implied) assigned by S&P and ▇▇▇▇▇'▇ to
the senior unsecured non-credit enhanced long term debt of such
Borrower.
"Default" shall mean any event or condition, which upon
notice, lapse of time or both would constitute an Event of Default.
"Delivery" shall have the meaning set forth in the preamble
hereto.
"Delivery Mortgage" shall mean the Mortgage and Deed of Trust,
dated as of December 1, 1983, from TXU Electric Company to Irving Trust
Company (now The Bank of New York), Trustee, as amended and
supplemented from time to time and as assumed by Delivery.
"Disinterested Director" shall mean any member of the board of
directors of TXU who is not affiliated, directly or indirectly, with,
or appointed by, a person or group of related persons (other than TXU,
any Subsidiary of TXU, or any pension, savings or other employee
benefit plan for the benefit of employees of TXU and/or any Subsidiary
of TXU) acquiring the beneficial ownership of more than 30% of the
outstanding Voting Shares of TXU (within the meaning of Section 13(d)
or 14(d) of the Exchange Act, and the applicable rules and regulations
thereunder) and who either was a member of the board of directors of
TXU prior to the Acquisition Date or was recommended for election by a
majority of the Disinterested Directors in office prior to the
Acquisition Date.
"dollars" or "$" shall mean lawful money of the United States
of America.
"Energy" shall have the meaning set forth in the preamble
hereto.
"Equity-Credit Preferred Securities" shall mean securities,
however denominated, (i) issued by a Borrower or a Consolidated
Subsidiary of a Borrower, (ii) that are not subject to mandatory
redemption or the underlying securities, if any, of which are not
subject to mandatory redemption, (iii) that are perpetual or mature no
less than 30 years from the date of issuance, (iv) the indebtedness
issued in connection with which, including any guaranty, is subordinate
in right of payment to the unsecured and unsubordinated indebtedness of
the issuer of such indebtedness or guaranty, and (v) the terms of which
permit the deferral of the payment of interest or distributions thereon
to a date occurring after the Tranche C Commitment Termination Date.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or
not incorporated) that is a member of a group of (i) organizations
described in Section 414(b) or (c) of the Code and (ii) solely for
purposes of the Lien created under Section 412(n) of the Code,
organizations described in Section 414(m) or (o) of the Code of which
the applicable Borrower is a member.
7
"ERISA Event" shall mean (i) any Reportable Event; (ii) the
adoption of any amendment to a Plan that would require the provision of
security pursuant to Section 401(a)(29) of the Code or Section 307 of
ERISA; (iii) the incurrence of any liability under Title IV of ERISA
with respect to the termination of any Plan or the withdrawal or
partial withdrawal of any Borrower or any of its ERISA Affiliates from
any Plan or Multiemployer Plan; (iv) the receipt by any Borrower or any
ERISA Affiliate from the PBGC of any notice relating to the intention
to terminate any Plan or Plans or to appoint a trustee to administer
any Plan; (v) the receipt by any Borrower or any ERISA Affiliate of any
notice concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be,
insolvent or in reorganization, within the meaning of Title IV of
ERISA; (vi) the occurrence of a nonexempt "prohibited transaction" as
defined in Section 4975(c) of the Code or Section 406 of ERISA with
respect to which any Borrower or any of its Subsidiaries is liable; and
(vii) any other similar event or condition with respect to a Plan or
Multiemployer Plan that could result in liability of any Borrower other
than a liability to pay premiums or benefits when due.
"Eurodollar Borrowing" shall mean a Borrowing comprised of
Eurodollar Loans.
"Eurodollar Loan" shall mean any Loan bearing interest at a
rate determined by reference to the LIBO Rate in accordance with the
provisions of Article II.
"Event of Default" shall have the meaning assigned to such
term in Article VI.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Extension of Credit" shall mean (i) the making of a Loan or
(ii) the issuance of a Letter of Credit or the amendment of any Letter
of Credit having the effect of extending the stated termination date
thereof or increasing the maximum amount available to be drawn
thereunder.
"Facility Fee" shall mean any Tranche A Facility Fee or
Multi-Year Facility Fee.
"Federal Funds Effective Rate" shall have the meaning set
forth in the definition of "Alternate Base Rate".
"Fees" shall mean the Facility Fee, the Administrative Fees,
the Fronting Fee, the LC Fee and any other fees provided for in the
Letter Agreements.
"Financial Officer" of any corporation or limited liability
company shall mean the chief financial officer, principal accounting
officer, treasurer, associate or assistant treasurer, or any
responsible officer designated by one of the foregoing persons, of such
corporation or limited liability company.
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"First Mortgage" shall mean (i) the Delivery Mortgage, (ii)
any mortgage and deed of trust entered into by Delivery in order to
refund or replace, or in substitution for, the Delivery Mortgage, and
(iii) if and for so long as any first mortgage bonds are issued and
outstanding under the Delivery Mortgage, any other indenture or
instrument of Delivery pursuant to which Delivery issues debt
securities secured directly or indirectly by (A) the Lien created by
the Delivery Mortgage and/or (B) any property of Delivery.
"Fronting Banks" shall mean (i) JPMorgan Chase Bank, Citibank,
N.A. and (ii) any Affiliate of any person listed in clause (i) and any
other Lender or Affiliate of any Lender, in each case, having a
long-term credit rating acceptable to the Borrowers (and, in the case
of any such Affiliate, being otherwise reasonably acceptable to the
Borrowers) that delivers an instrument in form and substance
satisfactory to the Borrowers and the Agent whereby such other Lender
or Affiliate agrees to act as a "Fronting Bank" hereunder and states
the amount of its LC Fronting Bank Commitment.
"Fronting Fee" shall have the meaning assigned to such term in
Section 2.04(e).
"GAAP" shall mean generally accepted accounting principles,
applied on a consistent basis.
"Governmental Authority" shall mean any Federal, state, local
or foreign court or governmental agency, authority, instrumentality or
regulatory body.
"Holdings" shall mean TXU US Holdings Company, a Texas
corporation, and its successors.
"Indebtedness" of any person shall mean (without duplication)
all liabilities, obligations and indebtedness (whether contingent or
otherwise) of such person (i) for borrowed money or evidenced by bonds,
indentures, notes or other similar instruments, (ii) to pay the
deferred purchase price of property or services, (iii) as lessee under
leases that are recorded as capital leases, (iv) under reimbursement
agreements or similar agreements with respect to the issuance of
letters of credit (other than obligations in respect of letters of
credit opened to provide for the payment of goods or services purchased
in the ordinary course of business), (v) in respect of Indebtedness of
others secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) a mortgage,
lien, pledge, charge or other encumbrance on any asset of such person
(with the Indebtedness of such person described in this clause (v) to
be valued at the book value, net of accumulated depreciation, of such
asset of such person securing such Indebtedness of others), (vi) all
net payment obligations of such person in respect of interest rate swap
agreements, currency swap agreements and other similar agreements
designed to hedge against fluctuations in interest rates or foreign
exchange rates and (vii) under direct or indirect guaranties in respect
of, and to purchase or otherwise acquire, or otherwise to assure a
creditor against loss in respect of, liabilities, obligations or
indebtedness of others of the kinds referred to in clauses (i) through
(vi) above; provided, however, that for all purposes, the following
shall be excluded from the definition of "Indebtedness": (A) Qualified
Transition Bonds (including, with respect to any Borrower, interest
rate swaps entered into by any Qualified Transition Bond Issuer of such
Borrower in connection with Qualified Transition Bonds issued by such
Qualified Transition Bond Issuer) and (B) amounts payable from one
Borrower to the other in connection with nuclear decommissioning costs,
retail clawback or other regulatory transition issues.
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"Interest Payment Date" shall mean, with respect to any Loan,
the last day of the Interest Period applicable thereto and, in the case
of a Eurodollar Loan with an Interest Period of more than three months'
duration, each day that would have been an Interest Payment Date for
such Loan had successive Interest Periods of three months' duration or
90 days' duration, as the case may be, been applicable to such Loan
and, in addition, the date of any prepayment of such Loan or conversion
of such Loan to a Loan of a different Type.
"Interest Period" shall mean (i) as to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing and
ending on the numerically corresponding day (or, if there is no
numerically corresponding day, on the last day) in the calendar month
that is 1, 2, 3 or 6 months thereafter; provided that, in the case of
any Eurodollar Borrowing made during the 30-day period ending on the
Applicable Commitment Termination Date, such period may end on the
seventh or fourteenth day thereafter, as the Borrower may elect;
provided further that, in the case of any Tranche A Borrowing that
consists of any Eurodollar Borrowing made during the 30-day period
ending on the Tranche A Commitment Termination Date, such period also
may end on the Tranche A Commitment Termination Date, and (ii) as to
any ABR Borrowing, the period commencing on the date of such Borrowing
and ending on the earliest of (A) the next succeeding March 31, June
30, September 30 or December 31, (B) the Applicable Commitment
Termination Date, and (C) the date such Borrowing is repaid or prepaid
in accordance with Section 2.05 or Section 2.09; provided, however,
that if any Interest Period would end on a day other than a Business
Day, such Interest Period shall be extended to the next succeeding
Business Day unless, in the case of Eurodollar Loans only, such next
succeeding Business Day would fall in the next calendar month, in which
case such Interest Period shall end on the next preceding Business Day.
Interest shall accrue from and including the first day of an Interest
Period to but excluding the last day of such Interest Period.
"JPMorgan Chase" shall have the meaning given such term in the
preamble hereto.
"LC Fee" shall have the meaning assigned to such term in
Section 2.04(e).
"LC Fronting Bank Commitment" shall mean, with respect to any
Fronting Bank, the aggregate of such Fronting Bank's Tranche A LC
Fronting Bank Commitment, Tranche B LC Fronting Bank Commitment and
Tranche C LC Fronting Bank Commitment. With respect to each person that
is a Fronting Bank on the date hereof, such Fronting Bank's LC Fronting
Bank Commitment shall equal such Fronting Bank's "LC Fronting Bank
Commitment" listed on Schedule 2.18(i) and, with respect to any person
that becomes a Fronting Bank after the date hereof, such person's LC
Fronting Bank Commitment shall equal the amount agreed upon between the
Borrower and such person at the time such person becomes a Fronting
Bank.
10
"LC Outstandings" shall mean, on any date of determination,
the Tranche A LC Outstandings, Tranche B LC Outstandings and Tranche C
LC Outstandings on such date.
"LC Payment Notice" shall have the meaning assigned to such
term in Section 2.17(d).
"Lenders" shall have the meaning given such term in the
preamble hereto.
"Letter Agreements" shall mean (i) the Commitment Letter,
dated May 27, 2004, among the Borrowers, ▇.▇. ▇▇▇▇▇▇ Securities, Inc.,
JPMorgan Chase, Citigroup Global Markets Inc. and Citibank, N.A. and
(ii) the Fee Letter, dated May 27, 2004, among Energy, ▇.▇. ▇▇▇▇▇▇
Securities, Inc., JPMorgan Chase, Citigroup Global Markets Inc. and
Citibank, N.A., each as amended, modified or supplemented from time
to time.
"Letter of Credit" shall mean any Tranche A Letter of Credit,
Tranche B Letter of Credit or Tranche C Letter of Credit.
"LIBO Rate" shall mean, with respect to any Eurodollar
Borrowing for any Interest Period, the rate appearing on Page 3750 of
the Telerate Service (or on any successor or substitute page of such
service, or any successor to or substitute for such service, providing
rate quotations comparable to those currently provided on such page of
such service, as determined by JPMorgan Chase from time to time for
purposes of providing quotations of interest rates applicable to dollar
deposits in the London interbank market) at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such
Interest Period as the rate for dollar deposits with a maturity
comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with
respect to such Eurodollar Borrowing for such Interest Period shall be
the rate at which dollar deposits of $5,000,000 and for a maturity
comparable to such Interest Period are offered by the principal London
office of JPMorgan Chase in immediately available funds in the London
interbank market at approximately 11:00 a.m. London time, two Business
Days prior to the commencement of such Interest Period.
"Lien" shall mean, with respect to any asset, any mortgage,
lien, pledge, charge, security interest or encumbrance of any kind in
respect of such asset. For the purposes of this Agreement, any person
shall be deemed to own subject to a Lien any asset which it has
acquired or holds subject to the interest of a vendor or lessor under
any conditional sale agreement, capital lease or other title retention
agreement relating to such asset.
"Loan" shall mean any Tranche A Loan, Tranche B Loan or
Tranche C Loan.
"Margin Regulations" shall mean Regulations T, U and X of the
Board as from time to time in effect, and all official rulings and
interpretations thereunder or thereof.
11
"Margin Stock" shall have the meaning given such term under
Regulation U of the Board.
"Material Adverse Change" shall mean, with respect to any
Borrower, a materially adverse change in the business, assets,
operations or financial condition of such Borrower and its Subsidiaries
taken as a whole that makes such Borrower unable to perform any of its
obligations under this Agreement or that impairs the rights of, or
benefits available to, the Lenders or any Fronting Bank under this
Agreement.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc.
"Multi-Year Applicable Margin" shall mean, for any Type of
Tranche B Loan or Tranche C Loan made to any Borrower at any time, the
percentage per annum set forth below corresponding to such Type of Loan
in the column under the Applicable Rating Level of such Borrower at the
time of determination. The Multi-Year Applicable Margins set forth
below with respect to each Applicable Rating Level shall be increased
(i) with respect to Tranche B Loans, by the percentage set forth below
in the row designated "Utilization Fee" during any period (and for only
such period) in which Tranche B Outstanding Credits are at least 33 1/3
% of the aggregate amount of the Tranche B Commitments and (ii) with
respect to Tranche C Loans, by the percentage set forth below in the
row designated "Utilization Fee" during any period (and for only such
period) in which Tranche C Outstanding Credits are at least 33 1/3 % of
the aggregate amount of the Tranche C Commitments. At any time an Event
of Default has occurred and is continuing, the Multi-Year Applicable
Margins set forth below shall be increased for each Applicable Rating
Level by 2.00%.
================================================================================================================
Applicable
Rating ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ 5
------- ------- ------- ------- -------
Level
----------------------------------------------------------------------------------------------------------------
Percentage Per Annum
----------------------------------------------------------------------------------------------------------------
Eurodollar Loan 0.500% 0.700% 0.825% 0.925% 1.100%
----------------------------------------------------------------------------------------------------------------
ABR Loan 0% 0% 0% 0% 0%
----------------------------------------------------------------------------------------------------------------
Utilization Fee 0.125% 0.125% 0.125% 0.125% 0.500%
================================================================================================================
"Multi-Year Facility Fee" shall have the meaning assigned to
such term in Section 2.04(b).
"Multi-Year Facility Fee Percentage" shall mean, at any time,
the percentage per annum set forth below in the column under the
Applicable Rating Level of the Borrower with the lower Applicable
Rating Level at such time. Any change in the Multi-Year Facility Fee
Percentage shall be effective on the date on which the applicable
rating agency announces any change in the applicable Debt Rating.
12
=================================================================================================================
Applicable
Rating Level ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ 5
------- ------- ------- ------- -------
-----------------------------------------------------------------------------------------------------------------
Percentage Per annum
=================================================================================================================
Facility Fee 0.125% 0.150% 0.175% 0.200% 0.400%
=================================================================================================================
"Multiemployer Plan" shall mean a multiemployer plan as
defined in Section 4001(a)(3) of ERISA to which any Borrower or any
ERISA Affiliate is making, or accruing an obligation to make,
contributions, or has within any of the preceding five plan years made,
or accrued an obligation to make, contributions.
"Operating Agreements" shall mean (i) the Operating Agreement,
dated April 28, 1978, as amended by the Modification of Operating
Agreement, dated April 20, 1979, among TXU Mining and Holdings
(formerly TXU Electric Company, successor to Dallas Power & Light
Company, Texas Electric Service Company and Texas Power & Light
Company) and Energy, TXU Energy Retail Company LP and TXU Generation
Company LP (pursuant to the Assumption Agreement, dated December 31,
2001, by and among Holdings, Energy, TXU Energy Retail Company LP and
TXU Generation Company LP) ("TXU Mining Operating Agreement"), and as
it may be amended from time to time, or (ii) the Operating Agreement,
dated December 15, 1976, between TXU Fuel and Dallas Power & Light
Company, Texas Electric Service Company and Texas Power & Light Company
("TXU Fuel Operating Agreement"), as it may be amended from time to
time; provided that no amendment of the TXU Mining Operating Agreement
or the TXU Fuel Operating Agreement shall increase the scope of any
Lien permitted under Section 5.10(j).
"Original Agreements" shall mean, collectively, (i) that
certain Revolving Credit Agreement, dated as of April 22, 2003, as
amended, among the Borrowers, as borrowers, the lenders party thereto,
JPMorgan Chase, as administrative agent, and JPMorgan Chase, as a
fronting bank, (ii) that certain Five-Year Third Amended and Restated
Competitive Advance and Revolving Credit Facility Agreement, dated as
of July 31, 2002, as amended, among Holdings, the lenders party thereto
and JPMorgan Chase, as competitive advance facility agent, as
administrative agent and as fronting bank, and (iii) that certain
Three-Year Amended and Restated Revolving Credit Agreement, dated as of
April 22, 2003, as amended, among Holdings, TXU, as exiting borrower,
the lenders party thereto and Citibank, N.A., as administrative agent.
"Outstanding Credits" shall mean, on any date of
determination, the aggregate amount of the Tranche A Outstanding
Credits, the Tranche B Outstanding Credits and the Tranche C
Outstanding Credits on such date.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or
any entity succeeding to any or all of its functions under ERISA.
"Percentage" shall mean, for any Lender on any date of
determination, the percentage obtained by dividing such Lender's
Commitment on such date by the Total Commitment on such date and, for
any Lender with respect to such Lender's Tranche A Commitment, Tranche
B Commitment or Tranche C Commitment on any date of determination, the
percentage obtained by dividing the relevant Commitment of such Lender
by the Tranche A Commitments, Tranche B Commitments or Tranche C
Commitments, as applicable.
13
"Permitted Encumbrances" shall mean, as to any person at any
date, any of the following:
(a) (i) Liens for taxes, assessments or governmental charges
not then delinquent and Liens for workers' compensation awards and
similar obligations not then delinquent and undetermined Liens or
charges incidental to construction, Liens for taxes, assessments or
governmental charges then delinquent but the validity of which is being
contested at the time by such person in good faith against which an
adequate reserve has been established, with respect to which levy and
execution thereon have been stayed and continue to be stayed and that
do not impair the use of the property or the operation of such person's
business, (ii) Liens incurred or created in connection with or to
secure the performance of bids, tenders, contracts (other than for the
payment of money), leases, statutory obligations, surety bonds or
appeal bonds, and mechanics' or materialmen's Liens, assessments or
similar encumbrances, the existence of which does not impair the use
of the property subject thereto for the purposes for which it was
acquired, and other Liens of like nature incurred or created in the
ordinary course of business;
(b) Liens securing indebtedness, neither assumed nor
guaranteed by such person nor on which it customarily pays interest,
existing upon real estate or rights in or relating to real estate
acquired by such person for any substation, transmission line,
transportation line, distribution line, right of way or similar
purpose;
(c) rights reserved to or vested in any municipality or
public authority by the terms of any right, power, franchise, grant,
license or permit, or by any provision of law, to terminate such right,
power, franchise, grant, license or permit or to purchase or recapture
or to designate a purchaser of any of the property of such person;
(d) rights reserved to or vested in others to take or receive
any part of the power, gas, oil, coal, lignite or other minerals or
timber generated, developed, manufactured or produced by, or grown on,
or acquired with, any property of such person and Liens upon the
production from property of power, gas, oil, coal, lignite or other
minerals or timber, and the by-products and proceeds thereof, to secure
the obligations to pay all or a part of the expenses of exploration,
drilling, mining or development of such property only out of such
production or proceeds;
(e) easements, restrictions, exceptions or reservations in
any property and/or rights of way of such person for the purpose of
roads, pipe lines, substations, transmission lines, transportation
lines, distribution lines, removal of oil, gas, lignite, coal or other
minerals or timber, and other like purposes, or for the joint or common
use of real property, rights of way, facilities and/or equipment, and
defects, irregularities and deficiencies in titles of any property
and/or rights of way, which do not materially impair the use of such
property and/or rights of way for the purposes for which such property
and/or rights of way are held by such person;
14
(f) rights reserved to or vested in any municipality or
public authority to use, control or regulate any property of such
person;
(g) any obligations or duties, affecting the property of
such person, to any municipality or public authority with respect to
any franchise, grant, license or permit;
(h) as of any particular time any controls, Liens,
restrictions, regulations, easements, exceptions or reservations of any
municipality or public authority applying particularly to space
satellites or nuclear fuel;
(i) any judgment Lien against such person securing a judgment
for an amount not exceeding 25% of Consolidated Shareholders' Equity
of such person, so long as the finality of such judgment is being
contested by appropriate proceedings conducted in good faith and
execution thereon is stayed;
(j) any Lien arising by reason of deposits with or giving of
any form of security to any federal, state, municipal or other
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, for any purpose at any time as
required by law or governmental regulation as a condition to the
transaction of any business or the exercise of any privilege or
license, or to enable such person to maintain self-insurance or to
participate in any fund for liability on any insurance risks or in
connection with workers' compensation, unemployment insurance, old age
pensions or other social security or to share in the privileges or
benefits required for companies participating in such arrangements; or
(k) any landlords' Lien on fixtures or movable property
located on premises leased by such person in the ordinary course of
business so long as the rent secured thereby is not in default.
"person" shall mean any natural person, corporation, business
trust, joint venture, association, company, limited liability company,
partnership or government, or any agency or political subdivision
thereof.
"Plan" shall mean any employee pension benefit plan described
under Section 3(2) of ERISA (other than a Multiemployer Plan) subject
to the provisions of Title IV of ERISA that is maintained by any
Borrower or any ERISA Affiliate.
"Preferred Membership Interest Repurchases" shall mean the
repurchase by TXU of Preferred Membership Interests and any subsequent
purchase or purchases of Preferred Membership Interests by any
affiliate of TXU.
"Preferred Membership Interests" shall mean the $750,000,000
aggregate liquidation preference amount of exchangeable preferred
membership interests in Energy.
15
"Prepayment Notice" shall mean a notice of prepayment made
pursuant to Section 2.10(a), substantially in the form of Exhibit C.
"Qualified Transition Bond Issuer" shall mean, with respect to
any Borrower, (i) TXU Electric Delivery Transition Bond Company LLC
(formerly known as Oncor Electric Delivery Transition Bond Company
LLC), (ii) such Borrower or (iii) a subsidiary of such Borrower formed
and operating solely for the purpose of (A) purchasing and owning
transition property created under a "financing order" (as such term is
defined in the Texas Utilities Code) issued by the Commission, (B)
issuing such securities pursuant to such order, (C) pledging its
interests in such transition property to secure such securities and (D)
engaging in activities ancillary to those described in (A), (B) and
(C).
"Qualified Transition Bonds" of any Borrower shall mean
securities, however denominated, that are (i) issued by a Qualified
Transition Bond Issuer of such Borrower, (ii) secured by or otherwise
payable from transition charges authorized pursuant to the financing
order referred to in clause (iii)(A) of the definition of "Qualified
Transition Bond Issuer", and (iii) non-recourse to such Borrower or any
of its Consolidated Subsidiaries (other than the issuer of such
securities).
"Register" shall have the meaning given such term in Section
8.04(d).
"Reportable Event" shall mean any reportable event as defined
in Sections 4043(c)(1)-(8) of ERISA or the regulations issued
thereunder (other than a reportable event for which the 30 day notice
requirement has been waived) with respect to a Plan (other than a Plan
maintained by an ERISA Affiliate that is considered an ERISA Affiliate
only pursuant to subsection (m) or (o) of Code Section 414).
"Request for Issuance" shall mean a request for issuance of a
Letter of Credit pursuant to Section 2.18(a), in a form substantially
similar to Exhibit D-1, if JPMorgan Chase is the applicable Fronting
Bank, D-2, if Citibank, N.A. is the applicable Fronting Bank, and, in
the case of any other Fronting Bank, the form that is customary for
such Fronting Bank.
"Required Lenders" shall mean, at any time, Lenders having
Commitments representing in excess of 50% of the Total Commitment or,
(i) for purposes of acceleration pursuant to clause (ii) of the first
paragraph of Article VI, or (ii) if the Total Commitment has been
terminated, Lenders with Outstanding Credits in excess of 50% of the
aggregate amount of Outstanding Credits.
"Responsible Officer" of any corporation shall mean any
executive officer or Financial Officer of such corporation and any
other officer or similar official thereof responsible for the
administration of the obligations of such corporation in respect of
this Agreement.
"S&P" shall mean Standard & Poor's Ratings Services (a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.).
"SEC" shall mean the Securities and Exchange Commission.
16
"Senior Debt" of any person shall mean (without duplication)
(i) all Indebtedness of such person described in clauses (i) through
(iii) of the definition of "Indebtedness", (ii) all Indebtedness of
such person described in clause (iv) of the definition of
"Indebtedness" in respect of unreimbursed drawings under letters of
credit described in such clause (iv), and (iii) all direct or indirect
guaranties of such person in respect of, and to purchase or otherwise
acquire, or otherwise to assure a creditor against loss in respect of,
liabilities, obligations or indebtedness of others of the kinds
referred to in clauses (i) and (ii) above; provided, however, that in
calculating "Senior Debt" of any Borrower, (A) the aggregate amount of
Preferred Membership Interests outstanding shall be excluded and (B)
any amount of Equity Credit-Preferred Securities not included in the
definition of "Consolidated Shareholders Equity" shall be included.
"Significant Disposition" shall mean a sale, lease,
disposition or other transfer by a Borrower, or any Subsidiary of a
Borrower, during any 12-month period, of assets constituting, either
individually or in the aggregate with all other assets sold, leased,
disposed or otherwise transferred by such Borrower or any Subsidiary
thereof during such period, 10% or more of the assets of such Borrower
and its Subsidiaries taken as a whole, excluding any such sale, lease,
disposition or other transfer to a Wholly Owned Subsidiary of such
Borrower.
"Significant Subsidiary" shall mean, with respect to any
Borrower at any time, any Subsidiary of such Borrower that as of such
time has total assets in excess of 10% of the total assets of such
Borrower and its Consolidated Subsidiaries.
"Solvent" shall mean, with respect to any person as of a
particular date, that on such date such person is able to pay its debts
and other liabilities, contingent obligations and other commitments as
they mature in the normal course of business. In computing the amount
of contingent liabilities at any time, it is intended that such
liabilities will be computed as the amount which, in light of all the
facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured
liability.
"Stated Amount" shall mean the maximum amount available to be
drawn by a beneficiary under a Letter of Credit.
"Subsidiary" shall mean, with respect to any person (the
"parent"), any corporation or other entity of which securities or other
ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions
are at the time directly or indirectly owned by such parent; provided,
however, that any Qualified Transition Bond Issuer of any Borrower
shall not be deemed a Subsidiary of such Borrower.
"Substantial" shall mean, for any Borrower, an amount in
excess of 10% of the consolidated assets of such Borrower and its
Consolidated Subsidiaries taken as a whole.
"Term Loan Conversion" shall have the meaning given such term
in Section 2.06(a).
17
"Term Loan Maturity Date" shall mean the date that is one year
after the Tranche A Commitment Termination Date.
"Total Commitment" shall mean, at any time, the aggregate
amount of Commitments of all the Lenders, as in effect at such time.
The initial amount of the Total Commitment is $2,500,000,000.
"Tranche" shall mean, with respect to the Commitments, the
Tranche A Commitments, Tranche B Commitments or Tranche C Commitments,
as applicable, and with respect to any Outstanding Credit, any Tranche
A Loan, Tranche B Loan, Tranche C Loan, Tranche A Letter of Credit,
Tranche B Letter of Credit or Tranche C Letter of Credit, as
applicable.
"Tranche A Applicable Margin" shall mean, for any Type of
Tranche A Loan made to any Borrower at any time, the percentage per
annum set forth below corresponding to such Type of Tranche A Loan in
the column under the Applicable Rating Level of such Borrower at the
time of determination. The Tranche A Applicable Margins set forth below
with respect to each Applicable Rating Level shall be increased by the
percentage set forth below in the row designated "Utilization Fee"
during any period (and for only such period) in which Tranche A
Outstanding Credits are at least 33 1/3 % of the aggregate amount of
the Tranche A Commitments. At any time an Event of Default has occurred
and is continuing, the Tranche A Applicable Margins set forth below
shall be increased for each Applicable Rating Level by 2.00%. Upon the
occurrence of the Term Loan Conversion (if applicable), the Tranche A
Applicable Margins for Eurodollar Loans with respect to each Applicable
Rating Level set forth below shall be increased by 0.250%.
==============================================================================================================
Applicable
Rating ▇▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇
------- ------- ------- ------- -------
---------------------------------------------------------------------------------------------------------------
Percentage Per Annum
---------------------------------------------------------------------------------------------------------------
Eurodollar Loan 0.525% 0.725% 0.850% 0.950% 1.200%
---------------------------------------------------------------------------------------------------------------
ABR Loan 0% 0% 0% 0% 0%
---------------------------------------------------------------------------------------------------------------
Utilization Fee 0.125% 0.125% 0.125% 0.125% 0.500%
===============================================================================================================
"Tranche A Available Commitment" shall mean, for each Lender,
the excess of such Lender's Tranche A Commitment over such Lender's
Tranche A Outstanding Credits. "Tranche A Available Commitments" shall
refer to the aggregate of the Lenders' Tranche A Available Commitments
hereunder.
"Tranche A Borrowing" shall mean a group of Tranche A Loans of
a single Type made by the Lenders on a single date and as to which a
single Interest Period is in effect.
"Tranche A Commitment" shall mean, with respect to any Lender,
the commitment of such Lender set forth in Schedule 2.01 hereto to make
Tranche A Loans and to purchase participations in Tranche A Letters of
18
Credit, as such Tranche A Commitment may be permanently terminated or
reduced from time to time pursuant to Section 2.09 or modified from
time to time pursuant to Section 8.04. Subject to Section 2.06(b), the
Tranche A Commitment of each Lender shall automatically and permanently
terminate on the Tranche A Commitment Termination Date if not
terminated earlier pursuant to the terms hereof. "Tranche A
Commitments" shall mean the aggregate of the Lenders' Tranche A
Commitments.
"Tranche A Commitment Termination Date" shall mean the date
that is 364 days after the date hereof.
"Tranche A Facility Fee" shall have the meaning assigned to
such term in Section 2.04(a).
"Tranche A Facility Fee Percentage" shall mean, at any time,
the percentage per annum set forth below in the column under the
Applicable Rating Level of the Borrower with the lower Applicable
Rating Level at such time. Any change in the Tranche A Facility Fee
Percentage shall be effective on the date on which the applicable
rating agency announces any change in the applicable Debt Rating.
===================================================================================================================
Applicable
Rating ▇▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇
------- ------- ------- ------- -------
--------------------------------------------------------------------------------------------------------------------
Percentage Per annum
====================================================================================================================
Facility Fee 0.100% 0.125% 0.150% 0.175% 0.300%
====================================================================================================================
"Tranche A LC Fronting Bank Commitment" shall mean, with
respect to any Fronting Bank, the aggregate stated amount of all
Tranche A Letters of Credit that such Fronting Bank agrees to issue
hereunder, as modified from time to time pursuant to agreement among
such Fronting Bank, the Borrowers and the Agent.
"Tranche A LC Outstandings" shall mean, on any date of
determination, the sum of (i) the undrawn stated amounts of all Tranche
A Letters of Credit that are outstanding on such date and (ii) the
aggregate principal amount of all unpaid reimbursement obligations of
the Borrowers on such date with respect to payments made by the
Fronting Banks under Tranche A Letters of Credit (excluding
reimbursement obligations that have been repaid with the proceeds of
any Loan). A Lender's "Tranche A LC Outstandings" shall mean such
Lender's participation interest in undrawn Tranche A Letters of Credit
and its Percentage of all unpaid reimbursement obligations in respect
of the Tranche A Letters of Credit.
"Tranche A Letter of Credit" shall mean a letter of credit
that is issued by a Fronting Bank pursuant to a Request for Issuance
specifying that such letter of credit is to use the Tranche A
Commitments, as such letter of credit may from time to time be amended,
modified or extended in accordance with the terms of this Agreement.
"Tranche A Loan" shall mean a revolving loan made pursuant to
Section 2.02(a)(i), whether made as a Eurodollar Loan or as an ABR
Loan.
19
"Tranche A Outstanding Credits" of any Lender shall mean, on
any date of determination, an amount equal to (i) the aggregate
principal amount of all outstanding Tranche A Loans made by such Lender
plus (ii) such Lender's Tranche A LC Outstandings on such date.
"Tranche B Available Commitment" shall mean, for each Lender,
the excess of such Lender's Tranche B Commitment over such Lender's
Tranche B Outstanding Credits. "Tranche B Available Commitments" shall
refer to the aggregate of the Lenders' Tranche B Available Commitments
hereunder.
"Tranche B Borrowing" shall mean a group of Tranche B Loans of
a single Type made by the Lenders on a single date and as to which a
single Interest Period is in effect.
"Tranche B Commitment" shall mean, with respect to any Lender,
the commitment of such Lender set forth in Schedule 2.01 hereto to make
Tranche B Loans and to purchase participations in Tranche B Letters of
Credit, as such Tranche B Commitment may be permanently terminated or
reduced from time to time pursuant to Section 2.09 or modified from
time to time pursuant to Section 8.04. The Tranche B Commitment of each
Lender shall automatically and permanently terminate on the Tranche B
Commitment Termination Date if not terminated earlier pursuant to the
terms hereof. "Tranche B Commitments" shall mean the aggregate of the
Lenders' Tranche B Commitments.
"Tranche B Commitment Termination Date" shall mean the date
that is three years after the date hereof.
"Tranche B LC Fronting Bank Commitment" shall mean, with
respect to any Fronting Bank, the aggregate stated amount of all
Tranche B Letters of Credit that such Fronting Bank agrees to issue
hereunder, as modified from time to time pursuant to agreement among
such Fronting Bank, the Borrowers and the Agent.
"Tranche B LC Outstandings" shall mean, on any date of
determination, the sum of (i) the undrawn stated amounts of all Tranche
B Letters of Credit that are outstanding on such date and (ii) the
aggregate principal amount of all unpaid reimbursement obligations of
the Borrowers on such date with respect to payments made by the
Fronting Banks under Tranche B Letters of Credit (excluding
reimbursement obligations that have been repaid with the proceeds of
any Loan). A Lender's "Tranche B LC Outstandings" shall mean such
Lender's participation interest in undrawn Tranche B Letters of Credit
and its Percentage of all unpaid reimbursement obligations in respect
of the Tranche B Letters of Credit.
"Tranche B Letter of Credit" shall mean a letter of credit
that is issued by a Fronting Bank pursuant to a Request for Issuance
specifying that such letter of credit is to use the Tranche B
Commitments, as such letter of credit may from time to time be amended,
modified or extended in accordance with the terms of this Agreement.
"Tranche B Loan" shall mean a revolving loan made pursuant to
Section 2.02(a)(ii), whether made as a Eurodollar Loan or as an ABR
Loan.
20
"Tranche B Outstanding Credits" of any Lender shall mean, on
any date of determination, an amount equal to (i) the aggregate
principal amount of all outstanding Tranche B Loans made by such Lender
plus (ii) such Lender's Tranche B LC Outstandings on such date.
"Tranche C Available Commitment" shall mean, for each Lender,
the excess of such Lender's Tranche C Commitment over such Lender's
Tranche C Outstanding Credits. "Tranche C Available Commitments" shall
refer to the aggregate of the Lenders' Tranche C Available Commitments
hereunder.
"Tranche C Borrowing" shall mean a group of Tranche C Loans of
a single Type made by the Lenders on a single date and as to which a
single Interest Period is in effect.
"Tranche C Commitment" shall mean, with respect to any
Lender, the commitment of such Lender set forth in Schedule 2.01 hereto
to make Tranche C Loans and to purchase participations in Tranche C
Letters of Credit, as such Tranche C Commitment may be permanently
terminated or reduced from time to time pursuant to Section 2.09 or
modified from time to time pursuant to Section 8.04. The Tranche C
Commitment of each Lender shall automatically and permanently terminate
on the Tranche C Commitment Termination Date if not terminated earlier
pursuant to the terms hereof. "Tranche C Commitments" shall mean the
aggregate of the Lenders' Tranche C Commitments.
"Tranche C Commitment Termination Date" shall mean the date
that is five years after the date hereof.
"Tranche C LC Fronting Bank Commitment" shall mean, with
respect to any Fronting Bank, the aggregate stated amount of all
Tranche C Letters of Credit that such Fronting Bank agrees to issue
hereunder, as modified from time to time pursuant to agreement among
such Fronting Bank, the Borrowers and the Agent.
"Tranche C LC Outstandings" shall mean, on any date of
determination, the sum of (i) the undrawn stated amounts of all Tranche
C Letters of Credit that are outstanding on such date and (ii) the
aggregate principal amount of all unpaid reimbursement obligations of
the Borrowers on such date with respect to payments made by the
Fronting Banks under Tranche C Letters of Credit (excluding
reimbursement obligations that have been repaid with the proceeds of
any Loan). A Lender's "Tranche C LC Outstandings" shall mean such
Lender's participation interest in undrawn Tranche C Letters of Credit
and its Percentage of all unpaid reimbursement obligations in respect
of the Tranche C Letters of Credit.
"Tranche C Letter of Credit" shall mean a letter of credit
that is issued by a Fronting Bank pursuant to a Request for Issuance
specifying that such letter of credit is to use the Tranche C
Commitments, as such letter of credit may from time to time be amended,
modified or extended in accordance with the terms of this Agreement.
"Tranche C Loan" shall mean a revolving loan made pursuant to
Section 2.02(a)(iii), whether made as a Eurodollar Loan or as an ABR
Loan.
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"Tranche C Outstanding Credits" of any Lender shall mean, on
any date of determination, an amount equal to (i) the aggregate
principal amount of all outstanding Tranche C Loans made by such Lender
plus (ii) such Lender's Tranche C LC Outstandings on such date.
"TXU" shall mean TXU Corp., a Texas corporation, and its
successors.
"TXU Fuel" shall mean TXU Fuel Company, a Texas corporation,
and its successors.
"TXU Mining" shall mean TXU Mining Company LP, a Texas limited
partnership, and its successors.
"Type", when used in respect of any Loan or Borrowing, shall
refer to the Rate by reference to which interest on such Loan or on the
Loans comprising such Borrowing is determined. For purposes hereof,
"Rate" shall include the LIBO Rate and the Alternate Base Rate.
"Voting Shares" shall mean, as to shares or other equity
interests of a particular corporation or other type of person,
outstanding shares of stock or other equity interests of any class of
such corporation or other person entitled to vote in the election of
directors or other comparable managers of such person, excluding shares
or other interests entitled so to vote only upon the happening of some
contingency.
"Wholly Owned Subsidiary" of any person shall mean any
Consolidated Subsidiary of such person all the shares of common stock
and other voting capital stock or other voting ownership interests
having ordinary voting power to vote in the election of the board of
directors or other governing body performing similar functions (except
directors' qualifying shares) of which are at the time directly or
indirectly owned by such person.
"Withdrawal Liability" shall mean liability of a Borrower
established under Section 4201 of ERISA as a result of a complete or
partial withdrawal from a Multiemployer Plan, as such terms are defined
in Part I of Subtitle E of Title IV of ERISA.
Section 1.02. Terms Generally.
The definitions in Section 1.01 shall apply equally to both the
singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "include," "includes" and "including" shall be deemed to
be followed by the phrase "without limitation." All references herein to
Articles, Sections, Exhibits and Schedules shall be deemed references to
Articles and Sections of, and Exhibits and Schedules to, this Agreement unless
the context shall otherwise require. Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time; provided, however, that
for purposes of determining compliance with any covenant set forth in Article V,
such terms shall be construed in accordance with GAAP as in effect on the date
hereof applied on a basis consistent with the application used in preparing any
Borrower's audited financial statements referred to in Section 3.05.
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Article II
THE CREDITS
Section 2.01. Commitments.
(a) Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Lender and each
Fronting Bank (as applicable) agrees, severally and not jointly, as
follows: (i) each Lender agrees to make Tranche A Loans to any Borrower at
any time and from time to time until the Tranche A Commitment Termination
Date up to the amount of such Lender's Tranche A Available Commitment, each
Fronting Bank agrees to issue Tranche A Letters of Credit for the account
of any Borrower at any time and from time to time until the fifth Business
Day preceding the Tranche A Commitment Termination Date in an aggregate
stated amount at any time outstanding not to exceed such Fronting Bank's
Tranche A LC Fronting Bank Commitment, and each Lender agrees to purchase
participations in such Letters of Credit as more fully set forth in Section
2.18; (ii) each Lender agrees to make Tranche B Loans to any Borrower at
any time and from time to time until the Tranche B Commitment Termination
Date up to the amount of such Lender's Tranche B Available Commitment, each
Fronting Bank agrees to issue Tranche B Letters of Credit for the account
of any Borrower at any time and from time to time until the fifth Business
Day preceding the Tranche B Commitment Termination Date in an aggregate
stated amount at any time outstanding not to exceed such Fronting Bank's
Tranche B LC Fronting Bank Commitment, and each Lender agrees to purchase
participations in such Letters of Credit as more fully set forth in Section
2.18; and (iii) each Lender agrees to make Tranche C Loans to any Borrower
at any time and from time to time until the Tranche C Commitment
Termination Date up to the amount of such Lender's Tranche C Available
Commitment, each Fronting Bank agrees to issue Tranche C Letters of Credit
for the account of any Borrower at any time and from time to time until the
fifth Business Day preceding the Tranche C Available Commitment Date in an
aggregate stated amount at any time outstanding not to exceed such Fronting
Bank's Tranche C LC Fronting Bank Commitment, and each Lender agrees to
purchase participations in such Letters of Credit as more fully set forth
in Section 2.18. Notwithstanding the foregoing, at no time shall (A) the
Outstanding Credits for any Tranche exceed the aggregate amount of the
Lenders' Commitments for such Tranche, (B) any Lender's Outstanding Credits
for any Tranche exceed the amount of such Lender's Commitment for such
Tranche, (C) any Fronting Bank make any Extension of Credit relating to a
Letter of Credit if such Extension of Credit would cause (x) the aggregate
amount of Outstanding Credits for any Tranche to exceed the aggregate
amount of the Lenders' Commitments for such Tranche, or (y) the aggregate
LC Outstandings for such Tranche relating to such Fronting Bank to exceed
such Fronting Bank's LC Fronting Bank Commitment for such Tranche and (D)
any Extension of Credit be made to Delivery if such Extension of Credit
would cause the amount of Outstanding Credits to Delivery to exceed
$2,000,000,000.
(b) Within the foregoing limits, the Borrowers may borrow, pay or
prepay Loans of any Tranche and request new Extensions of Credit of any Tranche
on and after the date hereof and prior to the Applicable Commitment Termination
Date subject to the terms, conditions and limitations set forth herein.
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Section 2.02. Loans.
(a) Each (i) Tranche A Loan shall be made as part of a Borrowing
consisting of Tranche A Loans made by the Lenders ratably in accordance with
their respective Tranche A Commitments, (ii) Tranche B Loan shall be made as
part of a Borrowing consisting of Tranche B Loans made by the Lenders ratably
in accordance with their respective Tranche B Commitments and (iii) Tranche C
Loan shall be made as part of a Borrowing consisting of Tranche C Loans made by
the Lenders ratably in accordance with their respective Tranche C Commitments;
provided, however, that the failure of any Lender to make any Loan shall not in
itself relieve any other Lender of its obligation to lend hereunder (it being
understood, however, that no Lender shall be responsible for the failure of any
other Lender to make any Loan required to be made by such other Lender). The
Loans comprising any Borrowing shall be in an aggregate principal amount that
is an integral multiple of $5,000,000 and not less than $25,000,000 (or an
aggregate principal amount equal to the remaining balance of the Available
Commitments).
(b) Each Borrowing shall be comprised entirely of Eurodollar Loans or
ABR Loans, as the applicable Borrower may request pursuant to Section 2.03.
Each Lender may at its option make any Eurodollar Loan by causing any domestic
or foreign branch or Affiliate of such Lender to make such Loan; provided that
any exercise of such option shall not affect the obligation of any Borrower to
repay such Loan in accordance with the terms of this Agreement. Borrowings of
more than one Type may be outstanding at the same time.
(c) Subject to subsection (d) below, each Lender shall make each Loan
to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds to the Agent in New York, New York, not later
than noon, New York City time, and the Agent shall by 2:00 p.m., New York
City time, credit the amounts so received to the account or accounts
specified from time to time in one or more notices delivered by the
applicable Borrower to the Agent or, if a Borrowing shall not occur on such
date because any condition precedent herein specified shall not have been
met, return the amounts so received to the respective Lenders. Loans shall
be made by the Lenders pro rata in accordance with Section 2.13. Unless the
Agent shall have received notice from a Lender prior to the date of any
Borrowing that such Lender will not make available to the Agent such
Lender's portion of such Borrowing, the Agent may assume that such Lender
has made such portion available to the Agent on the date of such Borrowing
in accordance with this subsection (c) and the Agent may, in reliance upon
such assumption, make available to the applicable Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have
made such portion available to the Agent, such Lender and the applicable
Borrower (without waiving any claim against such Lender for such Lender's
failure to make such portion available) severally agree to repay to the
Agent forthwith on demand such corresponding amount together with interest
thereon, for each day from the date such amount is made available to such
Borrower until the date such amount is repaid to the Agent, at (i) in the
case of such Borrower, the interest rate applicable at the time to the
Loans comprising such Borrowing and (ii) in the case of such Lender, the
Federal Funds Effective Rate. If such Lender shall repay to the Agent such
corresponding amount, such amount shall constitute such Lender's Loan as
part of such Borrowing for purposes of this Agreement.
(d) A Borrower may refinance all or any part of any Borrowing with a
Borrowing of the same or a different Type, subject to the conditions and
limitations set forth in this Agreement. Any Borrowing or part thereof so
24
refinanced shall be deemed to be repaid or prepaid in accordance with Section
2.05 or 2.09, as applicable, with the proceeds of a new Borrowing, and the
proceeds of the new Borrowing, to the extent they do not exceed the principal
amount of the Borrowing being refinanced, shall not be paid by the Lenders to
the Agent or by the Agent to such Borrower pursuant to subsection (c) above.
Section 2.03. Borrowing Procedure.
In order to request a Borrowing, a Borrower shall hand deliver or
telecopy to the Agent a duly completed Borrowing Request (i) in the case of a
Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three
Business Days before such Borrowing, and (ii) in the case of an ABR Borrowing,
not later than 11:00 a.m., New York City time, one Business Day before such
Borrowing. Such notice shall be irrevocable and shall in each case specify (A)
whether the Borrowing then being requested is to be a Eurodollar Borrowing or an
ABR Borrowing, (B) the Tranche of such Borrowing, (C) the date of such Borrowing
(which shall be a Business Day) and the amount thereof, and (D) if such
Borrowing is to be a Eurodollar Borrowing, the Interest Period with respect
thereto, which shall not end after the Applicable Commitment Termination Date,
in the case of Tranche B Borrowings and Tranche C Borrowings, or the Term Loan
Maturity Date, in the case of Tranche A Borrowings. If no election as to the
Type of Borrowing is specified in any such notice, then the requested Borrowing
shall be an ABR Borrowing. If no Interest Period with respect to any Eurodollar
Borrowing is specified in any such notice, then the Borrower shall be deemed to
have selected an Interest Period of one month's duration (subject to the
limitations set forth in the definition of "Interest Period"). If a Borrower
shall not have given notice in accordance with this Section of its election to
refinance a Borrowing prior to the end of the Interest Period in effect for such
Borrowing, then such Borrower shall (unless such Borrowing is repaid at the end
of such Interest Period) be deemed to have given notice of an election to
refinance such Borrowing with an ABR Borrowing. Notwithstanding any other
provision of this Agreement to the contrary, no Borrowing shall be requested if
the Interest Period with respect thereto would end after the Applicable
Commitment Termination Date, in the case of Tranche B Borrowings and Tranche C
Borrowings, or the Term Loan Maturity Date, in the case of Tranche A Borrowings.
The Agent shall promptly advise the Lenders of any notice given pursuant to this
Section and of each Lender's portion of the requested Borrowing.
Section 2.04. Fees.
(a) Energy agrees to pay to each Lender, through the Agent, on each
March 31, June 30, September 30 and December 31 (with the first payment being
due on September 30, 2004) and on each date on which the Tranche A Commitment of
such Lender shall be terminated or reduced as provided herein, a facility fee (a
"Tranche A Facility Fee"), at a rate per annum equal to the Tranche A Facility
Fee Percentage from time to time in effect on the Tranche A Commitment of such
Lender (without regard to usage) during the preceding quarter (or other period
commencing on the date of this Agreement or ending on the Tranche A Commitment
Termination Date, Term Loan Maturity Date (if applicable) or any date on which
the Tranche A Commitment of such Lender shall be terminated).
(b) Energy agrees to pay to each Lender, through the Agent, on each
March 31, June 30, September 30 and December 31 (with the first payment being
due on September 30, 2004) and on each date on which the Tranche B Commitment or
25
Tranche C Commitment (as applicable) of such Lender shall be terminated or
reduced as provided herein, a facility fee (a "Multi-Year Facility Fee"), at a
rate per annum equal to the Multi-Year Facility Fee Percentage from time to time
in effect on the Tranche B Commitment and Tranche C Commitment of such Lender
(without regard to usage) during the preceding quarter (or other period
commencing on the date of this Agreement or ending on the Applicable Commitment
Termination Date or any date on which the Tranche B Commitment or Tranche C
Commitment (as applicable) of such Lender shall be terminated).
(c) All Facility Fees shall be computed on the basis of the actual
number of days elapsed in a year of 360 days. The Facility Fees due to each
Lender shall commence to accrue on the date of this Agreement, and shall cease
to accrue on the date of termination of such Lender's Tranche A Commitment,
Tranche B Commitment, or Tranche C Commitment (as applicable) as provided
herein.
(d) Energy agrees to pay the Agent the fees from time to time payable
to it in its capacity as Agent pursuant to the Letter Agreements (the
"Administrative Fees").
(e) Each Borrower for the account of which a Letter of Credit is issued
agrees to pay the Agent, for the account of the Fronting Bank that issued such
Letter of Credit, a fronting fee equal to 0.125% of the stated amount of such
Letter of Credit (a "Fronting Fee") and such other charges with respect to such
Letter of Credit as are agreed upon with such Fronting Bank and as are
customary. Each Borrower for the account of which a Letter of Credit is issued
agrees to pay to the Agent for the account of the Lenders a fee (the "LC Fee")
on (i) the face amount of each Tranche A Letter of Credit issued by any Fronting
Bank for the account of such Borrower, calculated at a rate per annum equal to
the Applicable Margin for Tranche A Eurodollar Loans (regardless of whether any
such Tranche A Loans are then outstanding), and (ii) the face amount of each
Tranche B Letter of Credit and each Tranche C Letter of Credit issued by any
Fronting Bank for the account of such Borrower, calculated at a rate per annum
equal to the Multi-Year Applicable Margin for Eurodollar Loans (regardless of
whether any such Tranche B Loans or Tranche C Loans (as applicable) are then
outstanding). All Fronting Fees and LC Fees shall be computed on the basis of
the actual number of days that each such Letter of Credit is outstanding,
assuming a year of 360 days, payable in arrears on each March 31, June 30,
September 30 and December 31, and on the date that such Letter of Credit
expires or is drawn in full.
(f) All Fees shall be paid on the dates due, in immediately available
funds, to the Agent for distribution, if and as appropriate, among the Lenders.
Once paid, none of the Fees shall be refundable under any circumstances.
Section 2.05. Repayment of Loans; Evidence of Indebtedness.
(a) The outstanding principal balance of each Loan shall be due and
payable on the last day of the Interest Period applicable thereto and on the
Applicable Commitment Termination Date; provided, however, that if the Term Loan
Conversion has occurred with respect to any Borrower, the outstanding principal
balance of the Tranche A Loans outstanding to such Borrower on the Tranche A
Commitment Termination Date shall be due and payable on the Term Loan Maturity
Date.
26
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness to such Lender resulting
from each Extension of Credit made by such Lender from time to time, including
the amounts of principal and interest payable and paid to such Lender from time
to time under this Agreement.
(c) The Agent shall maintain accounts in which it will record (i) the
amount of each Extension of Credit made hereunder, the Type of each Loan made
and the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from each Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Agent hereunder
from each Borrower and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to subsections
(b) and (c) of this Section shall, to the extent permitted by applicable law,
be prima facie evidence of the existence and amounts of the obligations therein
recorded; provided, however, that the failure of any Lender or the Agent to
maintain such accounts or any error therein shall not in any manner affect the
obligations of the Borrowers to repay the Outstanding Credits in accordance with
their terms.
Section 2.06. Term Loan.
(a) If (and only if) on the Tranche A Commitment Termination Date no
Default or Event of Default has occurred and is continuing with respect to a
Borrower, the date for repayment of any Tranche A Loans outstanding to such
Borrower on such date automatically shall be extended to the Term Loan Maturity
Date (the "Term Loan Conversion"). The applicable Borrower shall submit to the
Agent, not later than 11:00 a.m., New York City time, three Business Days before
the Tranche A Commitment Termination Date, a notice in the form of Exhibit E
specifying the interest period relating to any Eurodollar Borrowings outstanding
to such Borrower subject to the Term Loan Conversion.
(b) If the Term Loan Conversion has occurred with respect to any
Borrower, the Tranche A Commitments with respect to such Borrower shall
automatically be reduced on the Tranche A Commitment Termination Date to an
amount equal to the aggregate principal amount of Tranche A Loans outstanding to
such Borrower on such date, after giving effect to the Term Loan Conversion. If,
on any day after the Tranche A Commitment Termination Date, the aggregate
principal amount of the Tranche A Loans outstanding to any Borrower on such
date shall be less than the Tranche A Commitments with respect to such Borrower
on such date, then the Tranche A Commitments with respect to such Borrower shall
be reduced to an amount equal to the principal amount of the Tranche A Loans
outstanding to such Borrower on such date.
Section 2.07. Interest on Loans.
(a) The Loans comprising each Eurodollar Borrowing shall bear interest
(computed on the basis of the actual number of days elapsed over a year of 360
days) at a rate per annum equal to the LIBO Rate for the Interest Period in
effect for such Borrowing plus the Tranche A Applicable Margin or the Multi-Year
Applicable Margin (as applicable) from time to time in effect.
27
(b) The Loans comprising each ABR Borrowing shall bear interest
(computed on the basis of the actual number of days elapsed over a year of
(i) 365 or 366 days, as the case may be, for periods during which the Alternate
Base Rate is determined by reference to the Prime Rate and (ii) 360 days for
other periods) at a rate per annum equal to the Alternate Base Rate plus the
Tranche A Applicable Margin or the Multi-Year Applicable Margin (as applicable)
from time to time in effect.
(c) Interest on each Loan shall be payable on each Interest Payment Date
applicable to such Loan except as otherwise provided in this Agreement. The
applicable LIBO Rate or Alternate Base Rate for each Interest Period or day
within an Interest Period, as the case may be, shall be determined by JPMorgan
Chase, and such determination shall be conclusive absent manifest error;
provided that JPMorgan Chase shall, upon request, provide to the applicable
Borrower a certificate setting forth in reasonable detail the basis for such
determination.
Section 2.08. Alternate Rate of Interest.
In the event, and on each occasion, that on the day two Business Days
prior to the commencement of any Interest Period for a Eurodollar Borrowing the
Agent shall have determined (i) that dollar deposits in the principal amounts of
the Eurodollar Loans comprising such Borrowing are not generally available in
the London interbank market or (ii) that reasonable means do not exist for
ascertaining the LIBO Rate, the Agent shall, as soon as practicable thereafter,
give telecopy notice of such determination to the Borrowers and the Lenders. In
the event of any such determination under clause (i) or (ii) above, until the
Agent shall have advised the Borrowers and the Lenders that the circumstances
giving rise to such notice no longer exist, any request by a Borrower for a
Eurodollar Borrowing pursuant to Section 2.03 shall be deemed to be a request
for an ABR Borrowing. In the event the Required Lenders notify the Agent that
the rates at which dollar deposits are being offered will not adequately and
fairly reflect the cost to such Lenders of making or maintaining Eurodollar
Loans during such Interest Period, the Agent shall notify the applicable
Borrower of such notice and until the Required Lenders shall have advised the
Agent that the circumstances giving rise to such notice no longer exist, any
request by such Borrower for a Eurodollar Borrowing shall be deemed a request
for an ABR Borrowing. Each determination by the Agent hereunder shall be made in
good faith and shall be conclusive absent manifest error; provided that the
Agent, shall, upon request, provide to the applicable Borrower a certificate
setting forth in reasonable detail the basis for such determination.
Section 2.09. Termination and Reduction of Commitments.
(a) The Tranche A Commitments, subject to Section 2.06(b), shall be
terminated automatically on the Tranche A Commitment Termination Date, the
Tranche B Commitments shall be terminated automatically on the Tranche B
Commitment Termination Date, and the Tranche C Commitments shall be terminated
automatically on the Tranche C Commitment Termination Date.
28
(b) Upon at least two Business Days' prior irrevocable written notice
to the Agent, the Borrowers, acting jointly, may at any time in whole
permanently terminate, or from time to time in part permanently reduce, the
Tranche A Commitments, Tranche B Commitments or Tranche C Commitments; provided,
however, that (i) each partial reduction of the Commitments for any Tranche
shall be in an integral multiple of $10,000,000 and in a minimum principal
amount of $10,000,000 and (ii) no such termination or reduction shall be made
that would reduce the Commitments for any Tranche to an amount less than (1) the
aggregate amount of Outstanding Credits for such Tranche on the date of such
termination or reduction (after giving effect to any prepayment made pursuant to
Section 2.09) or (2) $50,000,000, unless the result of such termination or
reduction referred to in this clause (2) is to reduce the Commitments for such
Tranche to $0. The Agent shall advise the Lenders of any notice given pursuant
to this subsection (b) and of each Lender's portion of any such termination or
reduction of the Tranche A Commitments, Tranche B Commitments or Tranche C
Commitments.
(c) Each reduction in the Commitments for any Tranche shall be made
ratably among the Lenders in accordance with their respective Commitments for
such Tranche. Energy shall pay to the Agent for the account of the Lenders, on
the date of each termination or reduction of (i) the Tranche A Commitments, the
Tranche A Facility Fees on the amount of the Tranche A Commitments so terminated
or reduced and (ii) the Tranche B Commitments or the Tranche C Commitments, the
Multi-Year Facility Fee on the amount of the Tranche B Commitments and Tranche C
Commitments so terminated or reduced, in each case accrued through the date of
such termination or reduction.
Section 2.10. Prepayment.
(a) Each Borrower shall have the right at any time and from time to
time to prepay any Borrowing, in whole or in part, upon giving a Prepayment
Notice via telecopy (or telephone notice promptly confirmed by telecopy) to the
Agent: (i) before 11:00 a.m., New York City time, three Business Days prior to
prepayment, in the case of Eurodollar Loans, and (ii) before 11:00 a.m., New
York City time, one Business Day prior to prepayment, in the case of ABR Loans;
provided, however, that each partial prepayment shall be in an amount which is
an integral multiple of $10,000,000 and not less than $10,000,000.
(b) Each Prepayment Notice shall specify the prepayment date and the
principal amount of each Borrowing (or portion thereof) to be prepaid, shall be
irrevocable and shall commit the Borrower to prepay such Borrowing (or portion
thereof) by the amount stated therein on the date stated therein. All
prepayments under this Section shall be subject to Section 8.05 but otherwise
without premium or penalty. All prepayments under this Section shall be
accompanied by accrued interest on the principal amount being prepaid to the
date of payment.
Section 2.11. Reserve Requirements; Change in Circumstances.
(a) Notwithstanding any other provision herein, if after the date of
this Agreement any change in applicable law or regulation or in the
interpretation or administration thereof by any Governmental Authority charged
with the interpretation or administration thereof (whether or not having the
force of law) shall change the basis of taxation of payments to any Lender or
any Fronting Bank hereunder (except for changes in respect of taxes on the
overall net income of such Lender or such Fronting Bank (as the case may be) or
29
its lending office imposed by the jurisdiction in which such Lender's or such
Fronting Bank's (as the case may be) principal executive office or lending
office is located), or shall result in the imposition, modification or
applicability of any reserve, special deposit or similar requirement against
assets of, deposits with or for the account of or credit extended by any Lender
or such Fronting Bank (as the case may be) or shall result in the imposition on
any Lender, any Fronting Bank or the London interbank market of any other
condition affecting this Agreement, such Lender's Commitment or any Extension of
Credit (other than an ABR Loan) made by such Lender or such Fronting Bank, and
the result of any of the foregoing shall be to increase the cost to such Lender
or such Fronting Bank (as the case may be) of making or maintaining any
Outstanding Credit (other than an ABR Loan) or to reduce the amount of any sum
received or receivable by such Lender or such Fronting Bank (as the case may be)
hereunder (whether of principal, interest or otherwise) by an amount deemed by
such Lender or such Fronting Bank (as the case may be) to be material, then the
applicable Borrower or, if the foregoing circumstances do not relate to a
particular Borrowing, Energy shall, upon receipt of the notice and certificate
provided for in Section 2.10(c), promptly pay to such Lender or such Fronting
Bank (as the case may be) such additional amount or amounts as will compensate
such Lender or such Fronting Bank (as the case may be) for such additional costs
incurred or reduction suffered.
(b) If any Lender or Fronting Bank shall have determined that the
adoption of any law, rule, regulation or guideline arising out of the July 1988
report of the Basle Committee on Banking Regulations and Supervisory Practices
entitled "International Convergence of Capital Measurement and Capital
Standards," or the adoption after the date hereof of any other law, rule,
regulation or guideline regarding capital adequacy, or any change in any of the
foregoing or in the interpretation or administration of any of the foregoing by
any Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender or
Fronting Bank (or any lending office of such Lender or such Fronting Bank) or
any Lender's or any Fronting Bank's holding company with any request or
directive regarding capital adequacy (whether or not having the force of law) of
any such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on such Lender's or such Fronting Bank's
(as the case may be) capital or on the capital of such Lender's or such Fronting
Bank's (as the case may be) holding company, if any, as a consequence of this
Agreement, such Lender's Commitment or the Extensions of Credit made by such
Lender or such Fronting Bank (as the case may be) pursuant hereto to a level
below that which such Lender or such Fronting Bank (as the case may be) or such
Lender's or such Fronting Bank's (as the case may be) holding company could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's or such Fronting Bank's (as the case may be) policies and the
policies of such Lender's or such Fronting Bank's (as the case may be) holding
company with respect to capital adequacy) by an amount deemed by such Lender or
such Fronting Bank (as the case may be) to be material, then from time to time
such additional amount or amounts as will compensate such Lender or such
Fronting Bank (as the case may be) for any such reduction suffered will be paid
to such Lender or such Fronting Bank (as the case may be) by the applicable
Borrower or, if the foregoing circumstances do not relate to a particular
Borrower, by Energy. It is acknowledged that this Agreement is being entered
into by the Lenders and the Fronting Banks on the understanding that neither the
Lenders nor the Fronting Banks will be required to maintain capital against
their Commitments or agreements to issue Letters of Credit, as the case may be,
30
under currently applicable laws, regulations and regulatory guidelines. In the
event the Lenders or any Fronting Bank shall otherwise determine that such
understanding is incorrect, it is agreed that the Lenders or the Fronting Banks,
as the case may be, will be entitled to make claims under this subsection (b)
based upon market requirements prevailing on the date hereof for commitments
under comparable credit facilities against which capital is required to be
maintained.
(c) A certificate of each Lender or the applicable Fronting Bank
setting forth such amount or amounts as shall be necessary to compensate such
Lender or such Fronting Bank (as the case may be) or its holding company as
specified in subsection (a) or (b) above, as the case may be, and containing an
explanation in reasonable detail of the manner in which such amount or amounts
shall have been determined, shall be delivered to the applicable Borrower or the
Borrowers, as the case may be, and shall be conclusive absent manifest error.
The applicable Borrower shall pay each Lender or Fronting Bank (as the case may
be) the amount shown as due on any such certificate delivered by it within 10
days after its receipt of the same. Each Lender and each Fronting Bank shall
give prompt notice to the applicable Borrower of any event of which it has
knowledge, occurring after the date hereof, that it has determined will require
compensation by such Borrower pursuant to this Section; provided, however, that
failure by such Lender or such Fronting Bank to give such notice shall not
constitute a waiver of such Lender's or such Fronting Bank's (as the case may
be) right to demand compensation hereunder.
(d) Failure on the part of any Lender or Fronting Bank to demand
compensation for any increased costs or reduction in amounts received or
receivable or reduction in return on capital with respect to any period shall
not constitute a waiver of such Lender's or such Fronting Bank's (as the case
may be) right to demand compensation with respect to such period or any other
period; provided, however, that no Lender or Fronting Bank shall be entitled to
compensation under this Section for any costs incurred or reductions suffered
with respect to any date unless it shall have notified the applicable Borrower
that it will demand compensation for such costs or reductions under subsection
(c) above not more than 90 days after the later of (i) such date and (ii) the
date on which it shall have become aware of such costs or reductions. The
protection of this Section shall be available to each Lender and each Fronting
Bank regardless of any possible contention of the invalidity or inapplicability
of the law, rule, regulation, guideline or other change or condition which shall
have occurred or been imposed.
(e) Each Lender and each Fronting Bank agrees that it will designate a
different lending office if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the reasonable judgment of
such Lender or such Fronting Bank (as the case may be), be disadvantageous to
such Lender or such Fronting Bank (as the case may be).
Section 2.12. Change in Legality.
(a) Notwithstanding any other provision herein, if any change in any
law or regulation or in the interpretation thereof by any Governmental
Authority charged with the administration or interpretation thereof shall make
it unlawful for any Lender to make or maintain any Eurodollar Loan or to give
effect to its obligations as contemplated hereby with respect to any Eurodollar
Loan, then, by written notice to the Borrowers and to the Agent, such Lender
may:
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(i) declare that Eurodollar Loans will not thereafter be made by
such Lender hereunder, whereupon any request for a Eurodollar Borrowing
shall, as to such Lender only, be deemed a request for an ABR Loan
unless such declaration shall be subsequently withdrawn (any Lender
delivering such a declaration hereby agreeing to withdraw such
declaration promptly upon determining that such event of illegality no
longer exists); and
(ii) require that all outstanding Eurodollar Loans made by it be
converted to ABR Loans, in which event all such Eurodollar Loans shall
be automatically converted to ABR Loans as of the effective date of
such notice as provided in subsection (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal which would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Lender or the
converted Eurodollar Loans of such Lender shall instead be applied to repay the
ABR Loans made by such Lender in lieu of, or resulting from the conversion of,
such Eurodollar Loans.
(b) For purposes of this Section, a notice by any Lender shall be
effective as to each Eurodollar Loan, if lawful, on the last day of the Interest
Period currently applicable to such Eurodollar Loan; in all other cases such
notice shall be effective on the date of receipt.
Section 2.13. Pro Rata Treatment.
Except as required under Sections 2.11 and 2.16, each Extension of
Credit, each payment or prepayment of principal of any Borrowing, each payment
of interest on the Loans, each payment of a reimbursement obligation in respect
of a drawn Letter of Credit, each payment of the Facility Fees, each reduction
of the Total Commitment and each refinancing or conversion of any Borrowing with
a Borrowing of any Type, shall be allocated pro rata among the Lenders in
accordance with their respective Commitments (or, if such Commitments shall have
expired or been terminated, in accordance with the respective principal amounts
of their Outstanding Credits). For purposes of determining the Available
Commitments of the Lenders with respect to any Tranche at any time, the LC
Outstandings for such Tranche shall be deemed to have utilized the Commitments
of the Lenders for such Tranche pro rata in accordance with their respective
Commitments for such Tranche at such time. Each Lender agrees that in computing
such Lender's portion of any Extension of Credit to be made hereunder, the Agent
may, in its discretion, round each Lender's percentage of such Extension of
Credit to the next higher or lower whole dollar amount.
Section 2.14. Sharing of Setoffs.
Each Lender agrees that if it shall, through the exercise of a right of
banker's lien, setoff or counterclaim, or pursuant to a secured claim under
Section 506 of Title 11 of the United States Bankruptcy Code or other security
or interest arising from, or in lieu of, such secured claim, received by such
Lender under any applicable bankruptcy, insolvency or other similar law or
otherwise, or by any other means, obtain payment (voluntary or involuntary) in
respect of any Loans or LC Outstandings as a result of which the unpaid
principal portion of its Loans and LC Outstandings shall be proportionately less
than the unpaid principal portion of the Loans and LC Outstandings of any other
Lender, it shall be deemed simultaneously to have purchased from such other
32
Lender at face value, and shall promptly pay to such other Lender the purchase
price for, a participation in the Loans or LC Outstandings of such other Lender,
so that the aggregate unpaid principal amount of the Loans and LC Outstandings
and participations in the Loans and LC Outstandings held by each Lender shall be
in the same proportion to the aggregate unpaid principal amount of all Loans and
LC Outstandings then outstanding as the principal amount of its Loans and LC
Outstandings prior to such exercise of banker's lien, setoff or counterclaim or
other event was to the principal amount of all Loans and LC Outstandings
outstanding prior to such exercise of banker's lien, setoff or counterclaim or
other event; provided, however, that, if any such purchase or purchases or
adjustments shall be made pursuant to this Section and the payment giving rise
thereto shall thereafter be recovered, such purchase or purchases or adjustments
shall be rescinded to the extent of such recovery and the purchase price or
prices or adjustment restored without interest. Each Borrower expressly consents
to the foregoing arrangements and agrees that any Lender holding a participation
in a Loan or any LC Outstandings deemed to have been so purchased may exercise
any and all rights of banker's lien, setoff or counterclaim with respect to any
and all moneys owing by such Borrower to such Lender by reason thereof as fully
as if such Lender had made an Extension of Credit in the amount of such
participation.
Section 2.15. Payments.
(a) Each Borrower shall make each payment (including principal of or
interest on any Outstanding Credit or any Fees or other amounts) hereunder from
an account in the United States not later than 12:00 noon, New York City time,
on the date when due in dollars to the Agent at its offices at ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ (Telecopy No.
713-427-6307), in immediately available funds. Each such payment shall be made
without off-set, deduction or counterclaim, provided, that the foregoing shall
not constitute a relinquishment or waiver of such Borrower's rights to any
independent claim that such Borrower may have against the Agent, any Fronting
Bank or any Lender.
(b) Whenever any payment (including principal of or interest on any
Outstanding Credit or any Fees or other amounts) hereunder shall become due, or
otherwise would occur, on a day that is not a Business Day, such payment may be
made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of interest or Fees, if applicable.
Section 2.16. Taxes.
(a) Any and all payments of principal and interest on any of the
Outstanding Credits or of any Fees or indemnity or expense reimbursements
by a Borrower hereunder ("Borrower Payments") shall be made, in accordance
with Section 2.15, free and clear of and without deduction for any and all
current or future United States Federal, state and local taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with
respect to such Borrower Payments, but only to the extent reasonably
attributable to such Borrower Payments, excluding (i) income taxes imposed
on the net income of the Agent, any Fronting Bank or any Lender (or any
transferee or assignee thereof, including a participation holder (any such
entity a "Transferee")) and (ii) franchise taxes imposed on the net income
of the Agent, any Fronting Bank or any Lender (or Transferee), in each case
by the jurisdiction under the laws of which the Agent, such Fronting Bank
33
or such Lender (or Transferee) is organized or doing business through
offices or branches located therein, or any political subdivision thereof
(all such nonexcluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities, collectively or individually, "Taxes"). If
any Borrower shall be required to deduct any Taxes from or in respect of
any sum payable hereunder to any Lender (or any Transferee) or the Agent or
any Fronting Bank, (i) the sum payable shall be increased by the amount (an
"additional amount") necessary so that after making all required deductions
(including deductions applicable to additional amounts payable under this
Section) such Lender (or Transferee) or the Agent or such Fronting Bank (as
the case may be) shall receive an amount equal to the sum it would have
received had no such deductions been made, (ii) such Borrower shall make
such deductions and (iii) such Borrower shall pay the full amount deducted
to the relevant Governmental Authority in accordance with applicable law.
(b) In addition, each Borrower shall pay to the relevant United States
Governmental Authority in accordance with applicable law any current or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement or the
Letter Agreements ("Other Taxes").
(c) Each Borrower shall indemnify each Lender (or Transferee thereof),
the Agent and each Fronting Bank for the full amount of Taxes and Other
Taxes with respect to Borrower Payments paid by such person, and any
liability (including penalties, interest and expenses (including reasonable
attorney's fees and expenses)) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted
by the relevant United States Governmental Authority. A certificate setting
forth and containing an explanation in reasonable detail of the manner in
which such amount shall have been determined and the amount of such payment
or liability prepared by a Lender, a Fronting Bank or the Agent on their
behalf, absent manifest error, shall be final, conclusive and binding for
all purposes. Such indemnification shall be made within 30 days after the
date the Lender (or Transferee) or the Agent or the Fronting Bank, as the
case may be, makes written demand therefor.
(d) If a Lender (or Transferee) or the Agent or a Fronting Bank shall
become aware that it is entitled to claim a refund from a United States
Governmental Authority in respect of Taxes or Other Taxes as to which it
has been indemnified by a Borrower, or with respect to which a Borrower has
paid additional amounts, pursuant to this Section, it shall promptly notify
such Borrower of the availability of such refund claim and shall, within 30
days after receipt of a request by such Borrower, make a claim to such
United States Governmental Authority for such refund at such Borrower's
expense. If a Lender (or Transferee) or the Agent or a Fronting Bank
receives a refund (including pursuant to a claim for refund made pursuant
to the preceding sentence) in respect of any Taxes or Other Taxes as to
which it has been indemnified by a Borrower or with respect to which a
Borrower had paid additional amounts pursuant to this Section, it shall
within 30 days from the date of such receipt, pay over such refund to such
Borrower (but only to the extent of indemnity payments made, or additional
amounts paid, by such Borrower under this Section with respect to the Taxes
or Other Taxes giving rise to such refund), net of all out-of-pocket
expenses of such Lender (or Transferee) or the Agent or such Fronting Bank
and without interest (other than interest paid by the relevant United
States Governmental Authority with respect to such refund); provided,
34
however, that such Borrower, upon the request of such Lender (or
Transferee) or the Agent or such Fronting Bank, agrees to repay the amount
paid over to such Borrower (plus penalties, interest or other charges) to
such Lender (or Transferee) or the Agent or such Fronting Bank in the event
such Lender (or Transferee) or the Agent or such Fronting Bank is required
to repay such refund to such United States Governmental Authority.
(e) As soon as practicable, but in any event within 30 days, after the
date of any payment of Taxes or Other Taxes by a Borrower to the relevant United
States Governmental Authority, such Borrower will deliver to the Agent, at its
address referred to in Section 8.01, the original or a certified copy of a
receipt issued by such United States Governmental Authority evidencing payment
thereof.
(f) Without prejudice to the survival of any other agreement contained
herein, the agreements and obligations contained in this Section shall survive
the payment in full of the principal of and interest on all Outstanding Credits
hereunder.
(g) Each of the Agent, each Fronting Bank and each Lender (or
Transferee) that is organized under the laws of a jurisdiction other than the
United States, any State thereof or the District of Columbia (a "Non-U.S.
Lender" or "Non U.S. Agent", as applicable) shall deliver to the Borrowers and
the Agent two copies of either United States Internal Revenue Service
Form W-8BEN or Form W-8ECI, properly completed and duly executed by such
Non-U.S. Lender claiming complete exemption from, or reduced rate of, United
States Federal withholding tax on payments by any Borrower under this Agreement.
Such forms shall be delivered by each Non-U.S. Lender on or before the date it
becomes a party to this Agreement (or, in the case of a Transferee that is a
participation holder, on or before the date such participation holder becomes a
Transferee hereunder) and on or before the date, if any, such Non-U.S. Lender
changes its applicable lending office by designating a different lending office
(a "New Lending Office"). In addition, each Non-U.S. Lender shall deliver such
forms promptly upon the obsolescence or invalidity of any form previously
delivered by such Non-U.S. Lender. Notwithstanding any other provision of this
subsection (g), a Non-U.S. Lender shall not be required to deliver any form
pursuant to this subsection (g) that such Non-U.S. Lender is not legally able
to deliver.
(h) A Borrower shall not be required to indemnify any Non-U.S. Lender
or Non-U.S. Agent (including any Transferee), or to pay any additional amounts
to any Non-U.S. Lender or Non-U.S. Agent (including any Transferee), in respect
of United States Federal, state or local withholding tax pursuant to subsection
(a) or (c) above to the extent that (i) the obligation to withhold amounts with
respect to United States Federal, state or local withholding tax existed on the
date such Non-U.S. Lender became a party to this Agreement (or, in the case of a
Transferee that is a participation holder, on the date such participation holder
became a Transferee hereunder) or, with respect to payments to a New Lending
Office, the date such Non-U.S. Lender designated such New Lending Office with
respect to an Extension of Credit; provided, however, that this clause (i) shall
not apply to any Transferee or New Lending Office that becomes a Transferee or
New Lending Office as a result of an assignment, participation, transfer or
designation made at the request of such Borrower; and provided further, however,
that this clause (i) shall not apply to the extent the indemnity payment or
additional amounts any Transferee, or any Fronting Bank or any Lender (or
Transferee) through a New Lending Office, would be entitled to receive (without
regard to this clause (i)) do not exceed the indemnity payment or additional
35
amounts that the person making the assignment, participation or transfer to such
Transferee, or such Fronting Bank or Lender (or Transferee) making the
designation of such New Lending Office, would have been entitled to receive in
the absence of such assignment, participation, transfer or designation or (ii)
the obligation to pay such additional amounts or such indemnity payments would
not have arisen but for a failure by such Non-U.S. Lender (including any
Transferee) to comply with the provisions of subsection (g) above and (i) below.
(i) Any Fronting Bank or any Lender (or Transferee) claiming any
indemnity payment or additional amounts payable pursuant to this Section shall
use reasonable efforts (consistent with legal and regulatory restrictions) to
file any certificate or document reasonably requested in writing by a Borrower
or to change the jurisdiction of its applicable lending office if the making of
such a filing or change would avoid the need for or reduce the amount of any
such indemnity payment or additional amounts that may thereafter accrue and
would not, in the good faith determination of such Fronting Bank or such Lender
(or Transferee) (as the case may be), be otherwise disadvantageous to such
Fronting Bank or such Lender (or Transferee) (as the case may be).
(j) Nothing contained in this Section shall require any Lender (or
Transferee) or the Agent or any Fronting Bank to make available to such Borrower
any of its tax returns (or any other information) that it deems to be
confidential or proprietary.
(k) Notwithstanding anything herein to the contrary, the
indemnification obligations under this Section shall, to the extent practicable,
be allocated between the Borrowers based upon their relative liability for the
interest, fee or other payments in respect of which such indemnification
obligations arise.
Section 2.17. Assignment of Commitments Under Certain Circumstances.
In the event that any Lender shall have delivered a notice or
certificate pursuant to Section 2.11 or 2.12, or any Borrower shall be required
to make additional payments to any Lender under Section 2.16, the Borrowers
shall have the right, at their own expense, upon notice to such Lender and the
Agent, to require such Lender to transfer and assign without recourse (in
accordance with and subject to the restrictions contained in Section 8.04) all
such Lender's interests, rights and obligations contained hereunder to another
financial institution approved by the Agent and the Borrowers (which approval
shall not be unreasonably withheld) which shall assume such obligations;
provided that (i) no such assignment shall conflict with any law, rule or
regulation or order of any Governmental Authority and (ii) the assignee shall
pay to the affected Lender in immediately available funds on the date of such
assignment the principal of and interest accrued to the date of payment on the
Loans made by it hereunder and all other amounts accrued for its account or owed
to it hereunder and the Borrowers shall pay the processing and recordation fee
due pursuant to Section 8.04.
Section 2.18. Letters of Credit.
(a) Subject to the terms and conditions hereof, each Letter of Credit
shall be issued (or the stated maturity thereof extended or terms thereof
modified or amended) on not less than three Business Days' prior notice thereof
36
by the delivery by a Borrower of a Request for Issuance to the Agent (which
shall promptly distribute copies thereof to the Lenders) and the Fronting Bank
designated by such Borrower. Each Request for Issuance shall identify the
Borrower for the account of which the Letter of Credit is proposed to be issued
and the relevant Fronting Bank and shall specify (i) the applicable Tranche for
such Letter of Credit, (ii) the date (which shall be a Business Day) of issuance
of such Letter of Credit (or the date of effectiveness of such extension,
modification or amendment) and the stated expiry date thereof (which shall be no
later than the fifth Business Day preceding the Applicable Commitment
Termination Date), (ii) the proposed stated amount (denominated in dollars) of
such Letter of Credit (which shall not be less than $1,000,000, unless otherwise
agreed to by the applicable Fronting Bank), (iii) the name and address of the
beneficiary of such Letter of Credit and (iv) a statement of drawing conditions
applicable to such Letter of Credit, and if such Request for Issuance relates to
an amendment or modification of a Letter of Credit, it shall be accompanied by
the consent of the beneficiary of the Letter of Credit thereto. Each Request for
Issuance shall be irrevocable unless modified or rescinded by the Borrower that
delivered such request not less than two days prior to the proposed date of
issuance (or effectiveness) specified therein. Not later than 12:00 noon (New
York City time) on the proposed date of issuance (or effectiveness) specified in
such Request for Issuance, and upon fulfillment of the applicable conditions
precedent and the other requirements set forth herein, the applicable Fronting
Bank shall issue (or extend, amend or modify) such Letter of Credit and provide
notice and a copy thereof to the Agent, which shall promptly furnish copies
thereof to the Lenders. Each Lender shall, upon the issuance of any Letter of
Credit, acquire a participation interest in such Letter of Credit, automatically
and without any action on its part or the part of the applicable Fronting Bank,
whereby such Lender shall become obligated to perform such obligations in
respect of such Letter of Credit as are expressly set forth herein. No Fronting
Bank shall at any time be obligated to issue any Letter of Credit if such
issuance would conflict with any applicable requirement of law.
(b) No Letter of Credit shall be requested or issued hereunder if,
after the issuance thereof, (i) the Tranche A Outstanding Credits would exceed
the Tranche A Commitments, (ii) the Tranche B Outstanding Credits would exceed
the Tranche B Commitments or (iii) the Tranche C Outstanding Credits would
exceed the Tranche C Commitments.
(c) Each of the Borrowers hereby agrees to pay to the Agent for the
account of each Fronting Bank and, if they shall have funded participations in
the reimbursement obligations of such Borrower pursuant to subsection (d) below,
the Lenders, on demand made by such Fronting Bank to such Borrower, on and after
each date on which such Fronting Bank shall pay any amount under any Letter of
Credit issued by such Fronting Bank for the account of such Borrower, a sum
equal to the amount so paid plus interest on such amount from the date so paid
by such Fronting Bank until repayment to such Fronting Bank in full at a
fluctuating interest rate per annum equal to the Alternate Base Rate plus either
the Tranche A Applicable Margin for ABR Loans or the Multi-Year Applicable
Margin for ABR Loans (as applicable) plus, if any amount paid by such Fronting
Bank under a Letter of Credit is not reimbursed by such Borrower within
three Business Days, 2%.
(d) If any Fronting Bank shall not have been reimbursed in full by a
Borrower for any payment made by such Fronting Bank under a Letter of Credit
issued by such Fronting Bank for the account of such Borrower on the date of
such payment, such Fronting Bank shall give the Agent and each Lender prompt
37
notice thereof (an "LC Payment Notice") no later than 12:00 noon (New York City
time) on the Business Day immediately succeeding the date of such payment by
such Fronting Bank. Notwithstanding any provision of this Agreement to the
contrary, each Lender with a Commitment under the relevant Tranche severally
agrees to fund its participation in the reimbursement obligation of the Borrower
to each Fronting Bank by paying to the Agent for the account of such Fronting
Bank an amount equal to such Lender's Percentage of such unreimbursed amount
paid by such Fronting Bank, plus interest on such amount at a rate per annum
equal to the Federal Funds Effective Rate from the date of the payment by such
Fronting Bank to the date of payment to such Fronting Bank by such Lender. Each
such payment by a Lender shall be made not later than 3:00 p.m. (New York City
time) on the later to occur of (i) the Business Day immediately following the
date of such payment by such Fronting Bank and (ii) the Business Day on which
the Lender shall have received an LC Payment Notice from such Fronting Bank.
Each Lender's obligation to make each such payment to the Agent for the account
of each Fronting Bank shall be several and shall not be affected by the
occurrence or continuance of a Default or Event of Default or the failure of any
other Lender to make any payment under this subsection. Each Lender further
agrees that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever.
(e) The failure of any Lender to make any payment to the Agent for the
account of any Fronting Bank in accordance with subsection (d) above shall not
relieve any other Lender of its own obligation to make any similar payment to
the Agent, but no Lender shall be responsible for the failure of any other
Lender to make any such payment. If any Lender(a "non-performing Lender") shall
fail to make any payment to the Agent for the account of any Fronting Bank in
accordance with subsection (d)above within five Business Days after the LC
Payment Notice relating thereto, then, for so long as such failure shall
continue, (i) such Fronting Bank shall be deemed to be a Lender hereunder owed
a Loan, and for purposes of voting rights hereunder, having a Commitment for the
relevant Tranche of the applicable Letter of Credit, in an amount equal to the
outstanding principal amount due and payable by such non-performing Lender to
the Agent for the account of such Fronting Bank pursuant to subsection (d) above
and (ii) for purposes of voting rights hereunder, the Tranche A Commitment,
Tranche B Commitment or Tranche C Commitment (as applicable) of such non-
performing Lender shall be reduced in an amount equal to such outstanding
principal amount due and payable by such non-performing Lender. Any
non-performing Lender and the Borrower for the account of which the relevant
Letter of Credit was issued (without waiving any claim against such Lender for
such Lender's failure to fund a participation in the reimbursement obligations
of such Borrower under subsection (d) above) severally agree to pay to the Agent
for the account of the applicable Fronting Bank forthwith on demand such amount,
together with interest thereon for each day from the date such Lender would have
funded its participation had it complied with the requirements of subsection (d)
above until the date such amount is paid to the Agent at (A) in the case of such
Borrower, the interest rate applicable at the time to ABR Loans of the
applicable Tranche (or the interest rate that would be applicable if ABR Loans
of the applicable Tranche were outstanding) and (B) in the case of such Lender,
the Federal Funds Effective Rate.
(f) The payment obligations of each Lender under subsection (d) and of
each Borrower under this Agreement in respect of any payment under any Letter of
Credit shall be unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement under all circumstances, including,
without limitation, the following circumstances:
38
(i) any lack of validity or enforceability of this Agreement or
any other agreement or instrument relating hereto or to such Letter of
Credit;
(ii) any amendment or waiver of, or any consent to departure from,
the terms of this Agreement or such Letter of Credit;
(iii) the existence of any claim, set-off, defense or other right
that the Borrower for the account of which such Letter of Credit was
issued may have at any time against any beneficiary, or any transferee,
of such Letter of Credit (or any persons for whom any such beneficiary
or any such transferee may be acting), any Fronting Bank, or any other
person, whether in connection with this Agreement, the transactions
contemplated hereby or by such Letter of Credit, or any unrelated
transaction;
(iv) any statement or any other document presented under such Letter
of Credit proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein being untrue or inaccurate in any
respect;
(v) payment in good faith by any Fronting Bank under the Letter of
Credit issued by such Fronting Bank against presentation of a draft or
certificate which does not comply with the terms of such Letter of
Credit; or
(vi) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing.
(g) Each Borrower assumes all risks of the acts and omissions of any
beneficiary or transferee of any Letter of Credit issued for the account of such
Borrower. Neither any Fronting Bank, any Lender nor any of their respective
officers, directors, employees, agents or Affiliates shall be liable or
responsible for (i) the use that may be made of such Letter of Credit or any
acts or omissions of any beneficiary or transferee thereof in connection
therewith; (ii) the validity, sufficiency or genuineness of documents, or of any
endorsement thereon, even if such documents should prove to be in any or all
respects invalid, insufficient, fraudulent or forged; (iii) payment by any
Fronting Bank against presentation of documents that do not comply with the
terms of such Letter of Credit, including failure of any documents to bear any
reference or adequate reference to such Letter of Credit; or (iv) any other
circumstances whatsoever in making or failing to make payment under such Letter
of Credit, except that the Borrower for the account of which such Letter of
Credit was issued and each Lender shall have the right to bring suit against the
applicable Fronting Bank, and such Fronting Bank shall be liable to such
Borrower and any Lender, to the extent of any direct, as opposed to
consequential, damages suffered by such Borrower or such Lender which such
Borrower or such Lender proves were caused by such Fronting Bank's willful
misconduct or gross negligence, including, in the case of such Borrower, such
Fronting Bank's willful failure to make timely payment under such Letter of
Credit following the presentation to it by the beneficiary thereof of a draft
and accompanying certificate(s) which strictly comply with the terms and
conditions of such Letter of Credit. In furtherance and not in limitation of the
foregoing, each Fronting Bank may accept sight drafts and accompanying
certificates presented under any Letter of Credit issued by such Fronting Bank
that appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary, and
payment against such documents shall not constitute willful misconduct or gross
negligence by such Fronting Bank. Without limiting the foregoing, no Lender
shall be obligated to indemnify any Borrower for damages caused by any Fronting
Bank's willful misconduct or gross negligence.
39
(h) If there shall be more than one Fronting Bank that has issued a
Letter of Credit at any time hereunder, each such Fronting Bank shall, with
respect to the Letters of Credit issued by it and the reimbursement obligations
owing to it, be regarded hereunder as the "Fronting Bank" and shall have all of
the rights, interests, protections and obligations of the "Fronting Bank"
hereunder with respect to such Letters of Credit and reimbursement obligations
and all matters relating thereto. Whenever any action may be, or is required to
be, taken by the Fronting Bank hereunder, each Fronting Bank may, or shall,
take such action only in respect of the Letters of Credit issued by it and the
reimbursement obligations owing to it. Whenever the consent of the Fronting Bank
is required hereunder with respect to any proposed action, the consent of each
Fronting Bank of a Letter of Credit that is then outstanding, or in respect of
which reimbursement obligations remain outstanding, shall be required for such
proposed action to be taken. Any notice to be provided to the Fronting Bank
shall be provided to each Fronting Bank of a Letter of Credit that is then
outstanding, or in respect of which reimbursement obligations remain
outstanding, and each such Fronting Bank shall have the right to request any
information, and take any other action, as the Fronting Bank is permitted to do
hereunder. The protections accorded the Fronting Bank hereunder shall inure to
the benefit of each Fronting Bank, regardless of whether any Letter of Credit
issued by any such Fronting Bank or any reimbursement obligations in respect
thereof are outstanding at the time the benefits of such protections are
asserted.
(i) No Fronting Bank shall at any time be obligated to issue any Letter
of Credit if such issuance would result in the aggregate of the Stated Amounts
of all Letters of Credit issued by such Fronting Bank exceeding such Fronting
Bank's LC Fronting Bank Commitment.
Article III
REPRESENTATIONS AND WARRANTIES
Each Borrower (or, if a representation and warranty relates to only a
specific Borrower, such Borrower) represents and warrants to each Lender and
each Fronting Bank as follows:
Section 3.01. Organization; Powers.
Such Borrower (i) is (in the case of Delivery) a corporation or (in the
case of Energy) a limited liability company, duly organized (in the case of
Delivery) or formed (in the case of Energy), validly existing and in good
standing under the laws of the jurisdiction of its organization or formation (as
the case may be), (ii) has all requisite power and authority to own its property
and assets and to carry on its business as now conducted and as proposed to be
conducted, (iii) is qualified to do business in every jurisdiction where such
qualification is required, except where the failure so to qualify would not
result in a Material Adverse Change, and (iv) has the (in the case of Delivery)
corporate or (in the case of Energy) limited liability company power and
authority to execute, deliver and perform its obligations under this Agreement
and to request and receive Extensions of Credit hereunder.
40
Section 3.02. Authorization.
The execution, delivery and performance by such Borrower of this
Agreement and the Extensions of Credit hereunder (i) have been duly authorized
by all requisite corporate (in the case of Delivery) or limited liability
company (in the case of Energy) action and (ii) will not (A) violate (x) any
provision of any law, statute, rule or regulation (including, without
limitation, the Margin Regulations) or of the certificate of incorporation or
other constitutive documents (including the limited liability company agreement)
or by-laws of such Borrower or any of its Subsidiaries to which such Borrower is
subject, (y) any order of any Governmental Authority or (z) any provision of any
indenture, agreement or other instrument to which such Borrower or any of its
Subsidiaries is a party or by which it or any of its property is or may be
bound, (B) be in conflict with, result in a breach of or constitute (alone or
with notice or lapse of time or both) a default under any such indenture,
agreement or other instrument or (C) result in the creation or imposition of any
Lien upon any property or assets of such Borrower.
Section 3.03. Enforceability.
This Agreement constitutes a legal, valid and binding obligation of
such Borrower enforceable in accordance with its terms except to the extent that
enforcement may be limited by bankruptcy, insolvency or similar laws affecting
the enforcement of creditors' rights generally.
Section 3.04. Governmental Approvals.
No action, consent or approval of, registration or filing with or other
action by any Governmental Authority is or will be required in connection with
the execution, delivery and performance by such Borrower of this Agreement,
except those as have been duly obtained and as are (i) in full force and effect,
(ii) sufficient for their purpose and (iii) not subject to any pending or, to
the knowledge of such Borrower, threatened appeal or other proceeding seeking
reconsideration or review thereof.
Section 3.05. Financial Statements.
(a) The consolidated balance sheet of such Borrower and its
Consolidated Subsidiaries as of December 31, 2003 and the related consolidated
statements of income, retained earnings and cash flows for the fiscal year then
ended, reported on by Deloitte & Touche LLP and set forth in such Borrower's
Annual Report on Form 10-K, a copy of which has been delivered to each of the
Lenders and the Fronting Banks, present fairly, in all material respects, the
consolidated financial position of such Borrower and its Consolidated
Subsidiaries as of such date and their consolidated results of operations and
cash flows for the period ending on such date in conformity with GAAP.
(b) Except as set forth in the financial statements or other reports
of the type referred to in Section 5.03 hereof and that have been delivered to
the Lenders and the Fronting Banks on or prior to the date hereof, since
December 31, 2003, there has been no Material Adverse Change with respect to
such Borrower, other than as a result of the matters excluded from the
computation of Consolidated Earnings Available for Fixed Charges as set forth
in the definition thereof.
41
Section 3.06. Litigation.
Except as set forth in the financial statements or other reports of the
type referred to in Section 5.03 hereof and that have been delivered to the
Lenders and the Fronting Banks on or prior to the date hereof, there is no
action, suit or arbitral or governmental proceeding pending against, or to the
knowledge of such Borrower threatened against or affecting, such Borrower or any
of its Subsidiaries before any court or arbitrator or any governmental body,
agency or official in which there is a reasonable possibility of an adverse
decision that could result in a Material Adverse Change.
Section 3.07. Federal Reserve Regulations.
(a) Neither such Borrower nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying Margin Stock.
(b) No part of the proceeds of any Extension of Credit will be used by
such Borrower, whether directly or indirectly, and whether immediately,
incidentally or ultimately, to purchase or carry Margin Stock or to refund
indebtedness originally incurred for such purpose, or for any other purpose
which entails a violation of, or which is inconsistent with, the provisions of
the Margin Regulations.
(c) Not more than 25% of the value of the assets of any Borrower
subject to the restrictions of Sections 5.09 and 5.10 is represented by Margin
Stock.
Section 3.08. Investment Company Act; Public Utility Holding Company
Act.
(a) Neither such Borrower nor any of its Subsidiaries is an
"investment company" as defined in, or subject to regulation under, the
Investment Company Act of 1940.
(b) Such Borrower and each of its Subsidiaries is exempt from all
provisions of the Public Utility Holding Company Act of 1935 and rules and
regulations thereunder, except for Sections 9(a)(2) and 33 of such Act and the
rules and regulations thereunder, and the execution, delivery and performance by
such Borrower of this Agreement and its obligations hereunder do not violate any
provision of such Act or any rule or regulation thereunder.
Section 3.09. No Material Misstatements.
No report, financial statement or other written information furnished
by or on behalf of such Borrower to the Agent, any Fronting Bank or any Lender
pursuant to or in connection with this Agreement contains or will contain any
material misstatement of fact or omits or will omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were or will be made, not misleading.
Section 3.10. Taxes.
Such Borrower and its Subsidiaries have filed or caused to be filed
within 3 days of the date on which due, all material Federal, state and local
tax returns which to their knowledge are required to be filed by them, and have
42
paid or caused to be paid all material taxes shown to be due and payable on such
returns or on any assessments received by them, other than any taxes or
assessments the validity of which is being contested in good faith by
appropriate proceedings and with respect to which appropriate accounting
reserves have to the extent required by GAAP been set aside.
Section 3.11. Employee Benefit Plans.
With respect to each Plan, such Borrower and its ERISA Affiliates are
in compliance in all material respects with the applicable provisions of ERISA
and the Code and the final regulations and published interpretations thereunder.
No ERISA Event has occurred that alone or together with any other ERISA Event
has resulted or could reasonably be expected to result in a Material Adverse
Change. Neither such Borrower nor any ERISA Affiliate has incurred any
Withdrawal Liability that could result in a Material Adverse Change. Neither
such Borrower nor any ERISA Affiliate has received any notification that any
Multiemployer Plan is in reorganization or has been terminated within the
meaning of Title IV of ERISA, which such reorganization or termination could
result in a Material Adverse Change, and no Multiemployer Plan is reasonably
expected to be in reorganization or to be terminated where such reorganization
or termination has resulted or can reasonably be expected to result, through an
increase in the contributions required to be made to such Plan or otherwise, in
a Material Adverse Change.
Section 3.12. Significant Subsidiaries.
Each of such Borrower's Significant Subsidiaries is a corporation,
limited liability company or other type of person duly incorporated or formed
(as the case may be), validly existing and in good standing under the laws of
its jurisdiction of incorporation or formation (as the case may be) and has all
corporate, limited liability company, partnership or other (as the case may be)
powers necessary to carry on its business substantially as now conducted. Each
of such Borrower's Significant Subsidiaries has all material governmental
licenses, authorizations, consents and approvals required to carry on its
business substantially as now conducted.
Section 3.13. Environmental Matters.
Except as set forth in or contemplated by the financial statements or
other reports of the type referred to in Section 5.03 hereof and that have been
delivered to the Lenders and the Fronting Banks on or prior to the date hereof,
such Borrower and each of its Subsidiaries has complied in all material respects
with all Federal, state, local and other statutes, ordinances, orders,
judgments, rulings and regulations relating to environmental pollution or to
environmental or nuclear regulation or control, except to the extent that
failure to so comply could not reasonably be expected to result in a Material
Adverse Change. Except as set forth in or contemplated by such financial
statements or other reports, neither such Borrower nor any of its Subsidiaries
has received notice of any material failure so to comply, except where such
failure could not reasonably be expected to result in a Material Adverse Change.
Except as set forth in or contemplated by such financial statements or other
reports, the facilities of such Borrower or any of its Subsidiaries, as the case
may be, are not used to manage any hazardous wastes, hazardous substances,
hazardous materials, toxic substances, toxic pollutants or substances similarly
denominated, as those terms or similar terms are used in the Resource
43
Conservation and Recovery Act, the Comprehensive Environmental Response
Compensation and Liability Act, the Hazardous Materials Transportation Act, the
Toxic Substance Control Act, the Clean Air Act, the Clean Water Act or any other
applicable law relating to environmental pollution, or any nuclear fuel or other
radioactive materials, in violation in any material respect of any law or any
regulations promulgated pursuant thereto, except to the extent that such
violations could not reasonably be expected to result in a Material Adverse
Change. Except as set forth in or contemplated by such financial statements or
other reports, such Borrower is aware of no events, conditions or circumstances
involving environmental pollution or contamination that could reasonably be
expected to result in a Material Adverse Change.
Section 3.14. Solvency.
Such Borrower is Solvent.
Article IV
CONDITIONS
The obligations of the Lenders and the Fronting Banks to make
Extensions of Credit hereunder are subject to the satisfaction of the following
conditions:
Section 4.01. Initial Extensions of Credit.
The Commitment of each Lender to make its initial Loan and of each
Fronting Bank to issue its initial Letter of Credit on or after the date hereof
is subject to the conditions that on or prior to the date of such Extension of
Credit:
(a) The Agent shall have received favorable written legal opinions of
(i) (A) ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, special New York counsel to the Borrowers, and
(B) Hunton & ▇▇▇▇▇▇▇▇ LLP, general counsel to the Borrowers, and (ii) King &
Spalding LLP, special New York counsel to the Agent, in each case dated the date
hereof, addressed to the Agent, the Fronting Bank and the Lenders and in form
and substance satisfactory to the Agent.
(b) The Agent shall have received (i) a copy of the certificate of
incorporation or formation (as the case may be), including all amendments
thereto, of each Borrower, certified as of a recent date by the Secretary of
State of the state of incorporation or formation (as the case may be) of such
Borrower, and a certificate as to the good standing of each Borrower as of a
recent date from such Secretary of State; (ii) a certificate of the Secretary
or an Assistant Secretary or analogous officer of each Borrower, dated the date
of this Agreement and certifying (A) that attached thereto is a true and
complete copy of the bylaws (in the case of Delivery) or limited liability
company agreement (in the case of Energy) of such Borrower as in effect on such
date and at all times since a date prior to the date of the resolutions
described in clause (B) below, (B) that attached thereto are true and complete
copies of resolutions duly adopted by the board of directors or managers (or any
duly authorized committee thereof) of such Borrower authorizing the execution
and delivery by such Borrower of this Agreement, the Extensions of Credit to be
made hereunder and the performance by such Borrower of all of its obligations
hereunder, and that such resolutions have not been modified, rescinded or
amended and are in full force and effect, (C) that the certificate of
44
incorporation or formation (as the case may be) referred to in clause (i) above
has not been amended since the date of the last amendment thereto shown on the
certificate of good standing furnished pursuant to such clause (i) and (D) as to
the incumbency and specimen signature of each officer executing this Agreement
and any other document delivered in connection herewith on behalf of such
Borrower; (iii) a certificate of another officer of such Borrower as to the
incumbency and specimen signature of the Secretary or Assistant Secretary or
analogous officer executing the certificate pursuant to (ii) above; and (iv) a
certificate of a Responsible Officer of each Borrower, dated the date of this
Agreement, stating that (A) no action, consent or approval of, registration or
filing with or other action by any Governmental Authority is or will be required
in connection with the execution, delivery and performance by such Borrower of
this Agreement, except those as have been duly obtained and as are (1) in full
force and effect, (2) sufficient for their purpose and (3) not subject to any
pending or, to the knowledge of such person, threatened appeal or other
proceeding seeking reconsideration or review thereof, and (B) the
representations and warranties set forth in Article III hereof are true and
correct in all material respects on and as of the date hereof, and (C) no Event
of Default or Default has occurred and is continuing on the date hereof.
(c) The Agent shall have received evidence satisfactory to the Agent
that the commitments of the lenders under the Original Agreements have been
terminated and that all fees, accrued interest and other amounts outstanding
under the Original Agreements have been paid, repaid or prepaid (as
appropriate), or will be paid, repaid or prepaid (as appropriate), on the date
of the first Borrowing hereunder with the proceeds of Loans.
(d) The Agent shall have received such other approvals, opinions,
certificates, instruments and documents as the Agent, any Fronting Bank or any
of the Lenders may have reasonably requested, in form satisfactory to the Agent
and the requesting Fronting Bank or Lender (if applicable).
(e) The Lenders, the Fronting Bank, the Agent and the Joint Lead
Arrangers named in the Letter Agreements shall have received payment of all fees
and reimbursements of all expenses for which invoices have been presented as and
when due on or prior to the date of the initial Extension of Credit pursuant to
the terms of this Agreement or the Letter Agreements.
(f) The Agent shall have received all documentation and information
required by regulatory authorities under applicable "know your customer" and
anti-money laundering rules and regulations, including without limitation the
USA Patriot Act (Title III of Pub. L. 107-56 (signed into law
October 26, 2001)).
Section 4.02. Conditions for All Extensions of Credit.
The Commitment of each Lender to make each Loan and of each Fronting
Bank to make each Extension of Credit relating to a Letter of Credit hereunder
shall be subject to the satisfaction of the following conditions precedent on
the date of such Extension of Credit:
(a) The Agent and the relevant Fronting Bank, if applicable, shall have
received from the relevant Borrower a notice requesting such Extension of Credit
as required by Section 2.03 or Section 2.17, as applicable.
45
(b) The representations and warranties of the applicable Borrower set
forth in Article III hereof (except, in the case of any Extension of Credit that
does not increase the aggregate principal amount of the Outstanding Credits to
such Borrower, the representations set forth in Sections 3.05(b), 3.06, 3.11 and
3.13 and except, in the case of any Extension of Credit that is to be used to
repay commercial paper, the representation set forth in Section 3.05(b)) shall
be true and correct in all material respects on and as of the date of such
Extension of Credit with the same effect as though made on and as of such date,
except to the extent such representations and warranties expressly relate to an
earlier date.
(c) At the time of and immediately after such Extension of Credit, no
Default or Event of Default affecting the relevant Borrower shall have occurred
and be continuing at the time of such Extension of Credit or would result from
the making of such Extension of Credit.
(d) The Agent shall have received a certificate of a Responsible
Officer of the relevant Borrower certifying that the matters set forth in
subsections (b) and (c) of this Section are true and correct as of such date.
Each Extension of Credit shall be deemed to constitute a representation and
warranty by the Borrower for which such Extension of Credit was made on the date
of such Extension of Credit as to the matters specified in subsections (b) and
(c) of this Section.
Article V
COVENANTS
Each Borrower agrees that, so long as any Lender has any Commitment
hereunder, any Fronting Bank has any obligation to issue Letters of Credit
hereunder, any Letter of Credit remains available to be drawn or any amount
payable hereunder remains unpaid:
Section 5.01. Existence.
It will, and will cause each of its Significant Subsidiaries to, do or
cause to be done all things necessary to preserve and keep in full force and
effect its existence and all rights, licenses, permits, franchises and
authorizations necessary or desirable in the normal conduct of its business
except as otherwise permitted pursuant to Section 5.09.
Section 5.02. Compliance With Laws; Business and Properties.
It will, and will cause each of its Subsidiaries to, comply with all
applicable material laws, rules, regulations and orders of any Governmental
Authority, whether now in effect or hereafter enacted, except where the validity
or applicability of such laws, rules, regulations or orders is being contested
by appropriate proceedings in good faith; and at all times maintain and preserve
all property material to the conduct of its business and keep such property in
good repair, working order and condition and from time to time make, or cause to
be made, all needful and proper repairs, renewals, additions, improvements and
replacements thereto necessary in order that the business carried on in
connection therewith may be properly conducted at all times.
46
Section 5.03. Financial Statements, Reports, Etc.
It will furnish to the Agent, each Lender and each Fronting Bank:
(a) as soon as available and in any event within 120 days after the end
of each fiscal year of such Borrower, a consolidated balance sheet of such
Borrower and its Consolidated Subsidiaries as of the end of such fiscal year and
the related consolidated statements of income, retained earnings and cash flows
for such fiscal year, setting forth in each case in comparative form the figures
for the previous fiscal year, all reported on in a manner reasonably acceptable
to the SEC by Deloitte & Touche LLP or other independent public accountants of
nationally recognized standing;
(b) as soon as available and in any event within 75 days after the end
of each of the first three quarters of each fiscal year of such Borrower, a
consolidated balance sheet of such Borrower and its Consolidated Subsidiaries as
of the end of such quarter and the related consolidated statements of income for
such quarter, for the portion of such Borrower's fiscal year ended at the end of
such quarter, and for the twelve months ended at the end of such quarter, and
the related consolidated statement of cash flows for the portion of such
Borrower's fiscal year ended at the end of such quarter, setting forth
comparative figures for previous dates and periods to the extent required in
Form 10-Q, all certified (subject to normal year-end adjustments) as to fairness
of presentation, GAAP and consistency by a Financial Officer of such Borrower;
(c) simultaneously with any delivery of each set of financial
statements referred to in subsections (a) and (b) above a certificate of a
Financial Officer of such Borrower (i) setting forth in reasonable detail the
calculations required to establish whether such Borrower was in compliance with
the requirements of Sections 5.11 and 5.12 on the date of such financial
statements, and (ii) stating whether any Default or Event of Default exists on
the date of such certificate and, if any Default or Event of Default then
exists, setting forth the details thereof and the action that such Borrower is
taking or proposes to take with respect thereto;
(d) simultaneously with the delivery of each set of financial
statements referred to in subsection (a) above, a statement of the firm of
independent public accountants that reported on such statements (i) stating
whether anything has come to their attention to cause them to believe that any
Default or Event of Default existed on the date of such statements and
(ii) confirming the calculations set forth in the Financial Officer's
certificate delivered simultaneously therewith pursuant to subsection (c) above;
(e) forthwith upon becoming aware of the occurrence of any Default or
Event of Default, a certificate of a Financial Officer of the affected Borrower
setting forth the details thereof and the action that such Borrower is taking or
proposes to take with respect thereto;
(f) promptly upon the filing thereof, copies of each final prospectus
(other than a prospectus included in any registration statement on Form S-8 or
its equivalent or with respect to a dividend reinvestment plan) and all reports
on Forms 10-K, 10-Q and 8-K and similar reports which such Borrower shall have
filed with the SEC, or any Governmental Authority succeeding to any of or all
the functions of the SEC;
47
(g) if and when any member of the Controlled Group (i) gives or is
required to give notice to the PBGC of any Reportable Event with respect to any
Plan which might constitute grounds for a termination of such Plan under Title
IV of ERISA, or knows that the plan administrator of any Plan has given or is
required to give notice of any such Reportable Event, a copy of the notice of
such Reportable Event given or required to be given to the PBGC; (ii) receives
notice from a proper representative of a Multiemployer Plan of complete or
partial Withdrawal Liability being imposed upon such member of the Controlled
Group under Title IV of ERISA, a copy of such notice; or (iii) receives notice
from the PBGC under Title IV of ERISA of an intent to terminate, or appoint a
trustee to administer, any Plan, a copy of such notice; and
(h) promptly, from time to time, such additional information regarding
the financial position or business of such Borrower and its Subsidiaries as the
Agent, at the request of any Lender or any Fronting Bank, may reasonably
request.
As promptly as practicable after delivering each set of financial statements as
required in subsection (a) of this Section, each Borrower shall make available a
copy of the consolidating workpapers used by such Borrower in preparing such
consolidated statements to each Fronting Bank and each Lender that shall have
requested such consolidating workpapers. Each Lender and Fronting Bank that
receives such consolidating workpapers shall hold them in confidence as required
by Section 8.15; provided that neither any Lender nor any Fronting Bank may
disclose such consolidating workpapers to any other person pursuant to clause
(iv) of Section 8.15.
Section 5.04. Insurance.
It will, and will cause each of its Subsidiaries to, maintain such
insurance or self insurance, to such extent and against such risks, including
fire and other risks insured against by extended coverage, as is customary with
companies similarly situated and in the same or similar businesses.
Section 5.05. Taxes, Etc.
It will, and will cause each of its Subsidiaries to, pay and discharge
promptly when due all material taxes, assessments and governmental charges
imposed upon it or upon its income or profits or in respect of its property, as
well as all other material liabilities, in each case before the same shall
become delinquent or in default and before penalties accrue thereon, unless and
to the extent that the same are being contested in good faith by appropriate
proceedings and adequate reserves with respect thereto shall, to the extent
required by GAAP, have been set aside.
Section 5.06. Maintaining Records; Access to Properties and
Inspections.
It will, and will cause each of its Subsidiaries to, maintain financial
records in accordance with GAAP and, upon reasonable notice and at reasonable
times, permit authorized representatives designated by any Lender or any
Fronting Bank to visit and inspect its properties and to discuss its affairs,
finances and condition with its officers.
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Section 5.07. ERISA.
It will, and will cause each of its Subsidiaries that are members of
the Controlled Group to, comply in all material respects with the applicable
provisions of ERISA and the Code except where any noncompliance, individually or
in the aggregate, would not result in a Material Adverse Change.
Section 5.08. Use of Proceeds.
It will not, and will not cause or permit any of its Subsidiaries to,
use the proceeds of the Loans for purposes other than (i) to refinance the
amounts outstanding under the Original Agreements, (ii) to prepay or repay,
directly or indirectly, amounts outstanding under (A) the Credit Agreement,
dated as of April 26, 2004, among Energy, the lenders party thereto and Credit
Suisse First Boston, as administrative agent, (B) the Credit Agreement, dated as
of April 26, 2004, among TXU, the lenders party thereto and Credit Suisse First
Boston, as administrative agent, and (C) the Credit Agreement, dated as of April
26, 2004, among TXU Gas Company, the lenders party thereto and Credit Suisse
First Boston, as administrative agent, and (iii) for working capital and other
general corporate purposes, including the making of advances to Affiliates of
the Borrowers and the refinancing of short-term borrowings used for working
capital and other general corporate purposes.
Section 5.09. Consolidations, Mergers, Sales and Acquisitions of Assets
and Investments in Subsidiaries.
(a) It will not, and will not permit any of its Significant
Subsidiaries to, consolidate or merge with or into any person unless (i) in the
case of any such transaction involving such Borrower, the surviving person is
such Borrower or another person formed under the laws of a State of the United
States of America and assumes or is responsible, by operation of law, for all
the obligations of such Borrower hereunder and (ii) in the case of any such
transaction involving any such Significant Subsidiary, the survivor is such
Borrower, such Significant Subsidiary or a Wholly Owned Subsidiary of such
Borrower (or a person which as a result of such transaction becomes a Wholly
Owned Subsidiary of such Borrower).
(b) It will not, and will not permit any of its Significant
Subsidiaries to, make a Significant Disposition to any person unless (i) such
Significant Disposition is made to such Borrower, a Wholly Owned Subsidiary of
such Borrower or a person that, as a result of such transaction, becomes a
Wholly Owned Subsidiary of such Borrower, (ii) such Significant Disposition is
of equity interests in or assets or property of TXU Fuel, (iii) such Significant
Disposition is comprised of a sale by Energy, in an initial public offering, of
up to 20% of the equity interests in any Subsidiary comprising generating assets
of Energy, (iv) such Significant Disposition is made by Energy of up to 50% of
the common stock, common members' interests or partnership interests in TXU
Generation Company LP (provided that it shall be a condition precedent to any
such Significant Disposition that, immediately following such Significant
Disposition, Energy shall be in pro forma compliance with Sections 5.11 and
5.12), (v) such Significant Disposition is made by Energy of interests in the
Comanche Peak nuclear power generation plant, to the extent that the
consideration for such Significant Disposition is non-cash, (vi) such
Significant Disposition is made in connection with outsourcing arrangements in
49
connection with Capgemini Energy L.P., (vii) such Significant Disposition is
related to the formation or operation of an energy marketing and trading vehicle
in which Energy owns an interest, or will own an interest, upon the formation of
such energy marketing and trading vehicle and (viii) the proceeds of such
Significant Disposition are reinvested in the business of such Borrower and its
Subsidiaries or are used to reduce the indebtedness of such Borrower and its
Subsidiaries.
(c) Notwithstanding anything to the contrary contained in this Section,
(i) such Borrower will not in any event permit any such consolidation, merger,
sale, lease or transfer if any Default or Event of Default relating to such
Borrower shall have occurred and be continuing at the time of or after giving
effect to such transaction, (ii) neither any Borrower nor any of its
Subsidiaries will engage to a Substantial extent in businesses other than those
currently conducted by them and other businesses reasonably related thereto,
(iii) neither any Borrower nor any of its Subsidiaries will acquire any
Subsidiary or make any investment in any Subsidiary if, upon giving effect to
such acquisition or investment, as the case may be, such Borrower would not be
in compliance with the covenants set forth in Sections 5.11 and 5.12 and
(iv) nothing in this Section shall prohibit any sales of assets permitted by
Section 5.10(d).
Section 5.10. Limitations on Liens.
Neither such Borrower nor any Significant Subsidiary thereof will
create or assume or permit to exist any Lien in respect of any property or
assets of any kind (real or personal, tangible or intangible) of such Borrower
or any such Significant Subsidiary, or sell any such property or assets subject
to an understanding or agreement, contingent or otherwise, to repurchase such
property or assets, or sell, or permit any Significant Subsidiary thereof to
sell, any accounts receivable; provided that the provisions of this Section
shall not prevent or restrict the creation, assumption or existence of:
(a) any Lien in respect of any such property or assets of any
Significant Subsidiary of such Borrower to secure indebtedness owing by it to
such Borrower or any Wholly Owned Subsidiary of such Borrower; or
(b) Liens (including capital leases) in respect of property
acquired by such Borrower or any Significant Subsidiary thereof, to secure the
purchase price, or the cost of construction and development, of such property
(or to secure indebtedness incurred prior to, at the time of, or within 120
days after the later of the acquisition of such property and the commencement of
operation of such property for the purpose of financing the acquisition, or the
cost of construction and development, of such property), or Liens existing on
any such property at the time of acquisition of such property by such Borrower
or such Significant Subsidiary, whether or not assumed, or any Lien in respect
of property of any person existing at the time such person becomes a Subsidiary
of such Borrower; or agreements to acquire any property or assets under
conditional sale agreements or other title retention agreements, or capital
leases in respect of any other property; provided that
(A) the aggregate principal amount of Indebtedness
secured by all Liens in respect of any such property shall not
exceed the cost (as determined by the board of directors or
50
analogous governing body of such Borrower or such Significant
Subsidiary, as the case may be) of such property at the time
of acquisition thereof (or (x) in the case of property covered
by a capital lease, the fair market value, as so determined,
of such property at the time of such transaction, or (y) in
the case of a Lien in respect of property existing at the time
such person becomes a Subsidiary of such Borrower the fair
market value, as so determined of such property at such time),
and
(B) at the time of the acquisition of the property by
such Borrower or such Significant Subsidiary, or at the time
such person becomes a Subsidiary of such Borrower, as the case
may be, every such Lien shall apply and attach only to the
property originally subject thereto and fixed improvements
constructed thereon; or
(c) refundings or extensions of any Lien permitted in the
foregoing subsection (b) for amounts not exceeding the principal amount of the
Indebtedness so refunded or extended or the fair market value (as determined by
the board of directors (or analogous governing body) of such Borrower or such
Significant Subsidiary, as the case may be) of the property theretofore subject
to such Lien, whichever shall be lower, in each case at the time of such
refunding or extension; provided that such Lien shall apply only to the same
property theretofore subject to the same and fixed improvements constructed
thereon; or
(d) sales subject to understandings or agreements to repurchase;
provided that the aggregate sales price for all such sales (other than sales to
any governmental instrumentality in connection with such instrumentality's
issuance of indebtedness, including without limitation industrial development
bonds and pollution control bonds, on behalf of such Borrower or any Significant
Subsidiary thereof) made in any one calendar year shall not exceed $50,000,000
in the aggregate for the Borrowers and their respective Significant
Subsidiaries; or
(e) any production payment or similar interest which is
dischargeable solely out of natural gas, coal, lignite, oil or other mineral to
be produced from the property subject thereto and to be sold or delivered by
such Borrower or any Significant Subsidiary thereof; or
(f) any Lien, including in connection with sale-leaseback
transactions, created or assumed by such Borrower or any Significant Subsidiary
thereof on natural gas, coal, lignite, oil or other mineral properties or
nuclear fuel owned or leased by such Borrower or such Subsidiary, to secure
loans to such Borrower or such Subsidiary in an aggregate amount not to exceed
$400,000,000 in the aggregate for the Borrowers and their respective Significant
Subsidiaries; provided that neither such Borrower nor any Subsidiary of such
Borrower shall assume or guarantee such financings; or
(g) any Lien (whenever incurred) on assets owned by such Borrower
or any Subsidiary thereof as of the date hereof and any fuel, operating and
maintenance or similar contract related thereto securing Indebtedness of such
Borrower or Subsidiary in an aggregate amount not to exceed 10% of consolidated
assets of such Borrower; or
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(h) leases (other than capital leases) now or hereafter existing
and any renewals and extensions thereof under which such Borrower or any
Significant Subsidiary thereof may acquire or dispose of any of its property,
subject, however, to the terms of Section 5.09; or
(i) any Lien created or to be created by the First Mortgage; or
(j) any Lien on the rights of TXU Mining or TXU Fuel existing
under their respective Operating Agreements; or
(k) pledges or sales by any such Borrower or any Subsidiary of any
Borrower of its accounts receivable including customers' installment paper; or
(l) the pledge of current assets, in the ordinary course of
business, to secure current liabilities; or
(m) Permitted Encumbrances; or
(n) the Liens in favor of the Administrative Agent on funds in the
Cash Collateral Account and on the Cash Collateral Account to secure the
reimbursement obligations of the Borrowers in respect of Letters of Credit and
comparable Liens created to secure reimbursement obligations for other letters
of credit issued for the account of any Borrower or any of its Subsidiaries; or
(o) any Lien incurred in connection with the issuance of Qualified
Transition Bonds.
Section 5.11. Fixed Charge Coverage Ratio.
Such Borrower will not, as of the end of each quarter of each fiscal
year of such Borrower, permit the ratio of (x) its Consolidated Earnings
Available for Fixed Charges for the twelve months then ended to (y) its
Consolidated Fixed Charges for the twelve months then ended to be less than 2.00
to 1.00, in the case of Energy, and 1.75 to 1.00, in the case of Delivery.
Section 5.12. Debt to Total Capitalization Ratio.
Such Borrower will not, as of the end of each quarter of each fiscal
year of such Borrower, permit the ratio of its Consolidated Senior Debt to its
Consolidated Total Capitalization to be greater than 0.60 to 1.00, in the case
of Energy, and 0.65 to 1.00, in the case of Delivery.
Section 5.13. Restrictive Agreements.
Energy will not permit TXU Generation Company LP, TXU Energy Retail
Company LP or any of their respective Significant Subsidiaries (the "Subject
Subsidiaries") to enter into any agreement restricting the ability of any
Subject Subsidiary to make payments, directly or indirectly, to Energy by way of
dividends, advances, repayments of loans or advances, reimbursements of
management and other intercompany charges, expenses and accruals or other
returns on investments or any other agreement or arrangement that restricts the
52
ability of such Subject Subsidiary to make any payment, directly or indirectly,
to Energy other than pursuant to the terms of preferred stock or Equity-Credit
Preferred Securities issued by such Subject Subsidiary, if the effect of such
agreement is to subject such Subject Subsidiary to restrictions on such payments
greater than those to which such Subject Subsidiary is subject on the date of
this Agreement. All such existing restrictive agreements are listed on Schedule
5.13 hereto.
Article VI
EVENTS OF DEFAULT
In case of the happening of any of the following events (each an "Event
of Default") with respect to a Borrower:
(a) any representation or warranty made or deemed made by such
Borrower in or in connection with the execution and delivery of this Agreement
or the Extensions of Credit hereunder shall prove to have been false or
misleading in any material respect when so made, deemed made or furnished;
(b) default shall be made by such Borrower in the payment of any
principal of any Outstanding Credit when and as the same shall become due and
payable, whether at the due date thereof or at a date fixed for prepayment
thereof or by acceleration thereof or otherwise;
(c) default shall be made by such Borrower in the payment of any
interest on any Outstanding Credit or any Fee or any other amount (other than an
amount referred to in subsection (b) above) due hereunder, when and as the same
shall become due and payable, and such default shall continue unremedied for a
period of five days;
(d) default shall be made by such Borrower in the due observance or
performance of any covenant, condition or agreement contained in Section 5.01,
5.11 or 5.12;
(e) default shall be made by such Borrower (i) in the due observance
or performance of any covenant, condition or agreement contained in Section 5.09
and such default shall continue unremedied for a period of 5 days or (ii) in the
due observance or performance of any covenant, condition or agreement contained
herein (other than those specified in (b), (c), (d) or (e)(i) above) or in the
Letter Agreements and such default shall continue unremedied for a period of 30
days after notice thereof from the Agent at the request of any Lender or any
Fronting Bank to such Borrower;
(f) (i) TXU shall no longer own, directly or indirectly, all the
outstanding common stock or common members' interest in such Borrower or any
permitted successor to such Borrower (which shall constitute an Event of Default
for the Borrower in which TXU has ceased to own, directly or indirectly, 100% of
such common stock or common members' interest), or (ii) Energy shall no longer
own, directly or indirectly, (A) 100% of the common stock, common members'
interest or partnership interests in TXU Energy Retail Company LP or (B) 50% of
the common stock, common members' interest or partnership interests in TXU
Generation Company LP (which, in the case of either (A) or (B), shall constitute
an Event of Default for Energy only);
53
(g) such Borrower or any Subsidiary thereof shall (i) fail to pay any
principal or interest, regardless of amount, due in respect of any Indebtedness
in a principal amount in excess of $50,000,000, when and as the same shall
become due and payable, subject to any applicable grace periods, or (ii) fail to
observe or perform any other term, covenant, condition or agreement contained in
any agreement or instrument evidencing or governing any such Indebtedness if the
effect of any failure referred to in this clause (ii) is to cause, or to permit
the holder or holders of such Indebtedness or a trustee on its or their behalf
to cause, such Indebtedness to become accelerated or due prior to its stated
maturity;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i) relief
in respect of such Borrower or any Significant Subsidiary thereof, or of a
substantial part of the property or assets of such Borrower or any Significant
Subsidiary thereof, under Title 11 of the United States Bankruptcy Code, as now
constituted or hereafter amended, or any other Federal or state bankruptcy,
insolvency, receivership or similar law, (ii) the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for such
Borrower or any Significant Subsidiary thereof or for a substantial part of the
property or assets of such Borrower or any Significant Subsidiary thereof or
(iii) the winding up or liquidation of such Borrower or any Significant
Subsidiary thereof; and such proceeding or petition shall continue undismissed
for 60 days or an order or decree approving or ordering any of the foregoing
shall be entered;
(i) such Borrower or any Significant Subsidiary thereof shall
(i) voluntarily commence any proceeding or file any petition seeking relief
under Title 11 of the United States Bankruptcy Code, as now constituted or
hereafter amended, or any other Federal or state bankruptcy, insolvency,
receivership or similar law, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or the filing of any
petition described in (h) above, (iii) apply for or consent to the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar official
for such Borrower or any Significant Subsidiary thereof or for a substantial
part of the property or assets of it or such Significant Subsidiary, (iv) file
an answer admitting the material allegations of a petition filed against it in
any such proceeding, (v) make a general assignment for the benefit of creditors,
(vi) become unable, admit in writing its inability or fail generally to pay its
debts as they become due or (vii) take any action for the purpose of effecting
any of the foregoing;
(j) A Change in Control shall occur (which shall constitute an Event
of Default for each Borrower);
(k) one or more judgments or orders for the payment of money in an
aggregate amount in excess of $50,000,000 shall be rendered against such
Borrower or any Subsidiary thereof or any combination thereof and such judgment
or order shall remain undischarged or unstayed for a period of 30 days, or any
action shall be legally taken by a judgment creditor to levy upon assets or
properties of such Borrower or any Subsidiary thereof to enforce any such
judgment or order;
(l) an ERISA Event or ERISA Events shall have occurred that
reasonably could be expected to result in a Material Adverse Change with respect
to such Borrower;
54
then, and in every such event, and at any time thereafter during the continuance
of such event, the Agent, at the request of the Required Lenders, shall, by
notice to the affected Borrower(s), take one or all of the following actions, at
the same or different times: (i) terminate forthwith the right of such affected
Borrower(s) to request and receive Extensions of Credit; and (ii) declare the
Loans of the affected Borrower(s) then outstanding to be forthwith due and
payable in whole or in part, whereupon the principal of the Loans so declared to
be due and payable, together with accrued interest thereon and any unpaid
accrued Fees and all other liabilities of such Borrower(s) accrued hereunder,
shall become forthwith due and payable, without presentment, demand, protest or
any other notice of any kind, all of which are hereby expressly waived, anything
contained herein to the contrary notwithstanding; provided that in the case of
any event described in subsection (h) or (i) above affecting any Borrower, the
right of such Borrower to request and receive Extensions of Credit shall
automatically terminate and the principal of the Loans then outstanding of such
Borrower, together with accrued interest thereon and any unpaid accrued Fees and
all other liabilities of such Borrower accrued hereunder shall automatically
become due and payable, without presentment, demand, protest or any other notice
of any kind, all of which are hereby expressly waived by such Borrower, anything
contained herein to the contrary notwithstanding.
Notwithstanding anything to the contrary contained herein, no notice
given or declaration made by the Agent pursuant to this Article VI shall affect
(i) the obligation of any Fronting Bank to make any payment under any Letter of
Credit issued by such Fronting Bank in accordance with the terms of such Letter
of Credit or (ii) the obligations of each Lender in respect of each such Letter
of Credit; provided, however, that upon the occurrence and during the
continuance of any Event of Default affecting any Borrower, the Agent shall at
the request, or may with the consent, of the Required Lenders, upon notice to
such Borrower, require such Borrower to deposit with the Agent an amount in the
cash collateral account (the "Cash Collateral Account") described below equal to
the aggregate maximum amount available to be drawn under all Letters of Credit
issued for the account of such Borrower and outstanding at such time. Such Cash
Collateral Account shall at all times be free and clear of all rights or claims
of third parties. The Cash Collateral Account shall be maintained with the Agent
in the name of, and under the sole dominion and control of, the Agent, and
amounts deposited in the Cash Collateral Account shall bear interest at a rate
equal to the rate generally offered by JPMorgan Chase for deposits equal to the
amount deposited by such Borrower in the Cash Collateral Account, for a term to
be determined by the Agent in its sole discretion. Each Borrower hereby grants
to the Agent for the benefit of the Fronting Banks and the Lenders a Lien on,
and hereby assigns to the Agent for the benefit of the Fronting Banks and the
Lenders all of its right, title and interest in, the Cash Collateral Account and
all funds from time to time on deposit therein to secure its reimbursement
obligations in respect of Letters of Credit issued for its account. If any
drawings then outstanding or thereafter made are not reimbursed in full
immediately upon demand or, in the case of subsequent drawings, upon being made,
then, in any such event, the Agent may apply the amounts then on deposit in the
Cash Collateral Account, in such priority as the Agent shall elect, toward the
payment in full of any or all of any Borrower's obligations hereunder as and
when such obligations shall become due and payable, regardless of whether the
amounts to be so applied were deposited by the Borrower for the account of which
the Letter(s) of Credit then being drawn were issued. Upon payment in full,
after the termination of the Letters of Credit, of all such obligations, the
Agent will repay and reassign to the relevant Borrowers any cash then on deposit
in the Cash Collateral Account and the Lien of the Agent on the Cash Collateral
Account and the funds therein shall automatically terminate.
55
Article VII
THE AGENT
(a) In order to expedite the transactions contemplated by this
Agreement, JPMorgan Chase is hereby appointed to act as Agent on behalf of the
Lenders and the Fronting Banks. Each Lender and each Fronting Bank hereby
irrevocably authorizes the Agent to take such actions on behalf of such Lender
and such Fronting Bank and to exercise such powers as are specifically delegated
to the Agent by the terms and provisions hereof, together with such actions and
powers as are reasonably incidental thereto. The Agent is hereby expressly
authorized by the Lenders and the Fronting Banks, without hereby limiting any
implied authority, (i) to receive on behalf of the Lenders and the Fronting
Banks all payments of principal of and interest on the Outstanding Credits and
all other amounts due to the Lenders and the Fronting Banks hereunder, and
promptly to distribute to each Lender and each Fronting Bank, its proper share
of each payment so received; (ii) to give notice on behalf of each Lender and
each Fronting Bank to the Borrowers of any Event of Default of which the Agent
has actual knowledge acquired in connection with its agency hereunder; and (iii)
to distribute to each Lender and each Fronting Bank copies of all notices,
financial statements and other materials delivered by the Borrowers pursuant to
this Agreement as received by the Agent.
(b) Neither the Agent nor any of its directors, officers, employees
or agents shall be liable as such for any action taken or omitted by any of them
except for its or his or her own gross negligence or willful misconduct, or be
responsible for any statement, warranty or representation herein or the contents
of any document delivered in connection herewith, or be required to ascertain or
to make any inquiry concerning the performance or observance by the Borrowers of
any of the terms, conditions, covenants or agreements contained in this
Agreement. The Agent shall not be responsible to the Lenders or the Fronting
Banks for the due execution, genuineness, validity, enforceability or
effectiveness of this Agreement or other instruments or agreements. The Agent
may deem and treat the Lender or the Fronting Bank that makes any Extension of
Credit as the holder of the indebtedness resulting therefrom for all purposes
hereof until it shall have received notice from such Lender or such Fronting
Bank, given as provided herein, of the transfer thereof. The Agent shall in all
cases be fully protected in acting, or refraining from acting, in accordance
with written instructions signed by the Required Lenders and, except as
otherwise specifically provided herein, such instructions and any action or
inaction pursuant thereto shall be binding on all the Lenders and the Fronting
Banks. The Agent shall, in the absence of knowledge to the contrary, be entitled
to rely on any instrument or document believed by it in good faith to be genuine
and correct and to have been signed or sent by the proper person or persons.
Neither the Agent nor any of its directors, officers, employees or agents shall
have any responsibility to the Borrowers on account of the failure of or delay
in performance or breach by any Lender or any Fronting Bank of any of its
obligations hereunder or to any Lender or any Fronting Bank on account of the
failure of or delay in performance or breach by any other Lender, any Fronting
Bank or any Borrower of any of their respective obligations hereunder or in
connection herewith. The Agent may execute any and all duties hereunder by or
through agents or employees and shall be entitled to rely upon the advice of
legal counsel selected by it with respect to all matters arising hereunder and
shall not be liable for any action taken or suffered in good faith by it in
accordance with the advice of such counsel.
56
(c) The Lenders and the Fronting Banks hereby acknowledge that the
Agent shall not be under any duty to take any discretionary action permitted to
be taken by it pursuant to the provisions of this Agreement unless it shall be
requested in writing to do so by the Required Lenders.
(d) Subject to the appointment and acceptance of a successor Agent as
provided below, the Agent may resign at any time by notifying the Lenders, the
Fronting Banks and the Borrowers. Upon any such resignation, the Required
Lenders shall have the right to appoint a successor Agent acceptable to the
Borrowers. If no successor shall have been so appointed by the Required Lenders
and shall have accepted such appointment within 30 days after the Agent gives
notice of its resignation, then the Agent may, on behalf of the Lenders and the
Fronting Banks, appoint a successor Agent, having a combined capital and surplus
of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance
of any appointment as Agent hereunder by a successor bank, such successor shall
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Agent and the Agent shall be discharged from its duties and
obligations hereunder. After the Agent's resignation hereunder, the provisions
of this Article and Section 8.05 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
the Agent.
(e) With respect to the Extensions of Credit made by it hereunder,
the Agent, in its individual capacity and not as Agent, shall have the same
rights and powers as any other Lender and may exercise the same as though it
were not the Agent, and the Agent and its Affiliates may accept deposits from,
lend money to and generally engage in any kind of business with the Borrowers or
any Subsidiary or other Affiliate thereof as if it were not Agent.
(f) Each Lender agrees (i) to reimburse the Agent, on demand, in the
amount of its pro rata share (based on its Commitment hereunder or, if the
Commitments shall have been terminated, the amount of its percentage of
Outstanding Credits) of any expenses incurred for the benefit of the Lenders or
the Fronting Banks, in its role as Agent, including counsel fees and
compensation of agents and employees paid for services rendered on behalf of the
Lenders or the Fronting Banks, which shall not have been reimbursed by the
Borrowers and (ii) to indemnify and hold harmless the Agent and any of its
directors, officers, employees or agents, on demand, in the amount of such pro
rata share, from and against any and all liabilities, taxes, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by or asserted against it in any way relating to or arising out of this
Agreement or any action taken or omitted by it under this Agreement to the
extent the same shall not have been reimbursed by the Borrowers; provided that
neither any Lender nor any Fronting Bank shall be liable to the Agent for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the gross
negligence or willful misconduct of the Agent or any of its directors, officers,
employees or agents. Each Lender and each Fronting Bank agrees that any
allocation made in good faith by the Agent of expenses or other amounts
referred to in this subsection shall be conclusive and binding for all purposes.
57
(g) Each Lender and each Fronting Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Lender or
Fronting Bank, and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender and each Fronting Bank also acknowledges that it will,
independently and without reliance upon the Agent or any other Lender or
Fronting Bank, and based on such documents and information as it shall from time
to time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement or any related agreement or any
document furnished hereunder or thereunder.
(h) Neither ▇.▇. ▇▇▇▇▇▇ Securities, Inc. or Citigroup Global Markets
Inc., by virtue of their designation as "Joint Lead Arrangers and Bookrunners"
on the cover page of this Agreement, nor Citibank, N.A., by virtue of its
designation as "Syndication Agent" on the cover page of this Agreement, shall
have any duties, liabilities, obligations or responsibilities under this
Agreement other than, if applicable, as a Lender or as a Fronting Bank
hereunder.
Article VIII
MISCELLANEOUS
Section 8.01. Notices.
Notices and other communications provided for herein shall be in
writing and shall be delivered by hand or overnight courier service, mailed or
sent by telecopy, as follows:
(a) if to any Borrower, to such Borrower c/o TXU Business Services
Company, Energy Plaza, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: Treasurer (Telecopy No. 214-812-2488);
(b) if to JPMorgan Chase, as Agent or as Fronting Bank, to JPMorgan
Chase Bank, Loan and Agency Services Group, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ (Telecopy No. 713-327-6307), with a copy
to ▇▇▇▇▇ ▇▇▇▇▇▇▇ (Telecopy No. 713-216-4117); and
(c) if to a Lender, to it at its address (or telecopy number) set
forth in the Register or in the Assignment and Acceptance pursuant to which such
Lender became a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy to such party as provided in this Section or in accordance with the
latest unrevoked direction from such party given in accordance with this
Section.
Section 8.02. Survival of Agreement.
All covenants, agreements, representations and warranties made by the
Borrowers herein and in the certificates or other instruments prepared or
delivered in connection with or pursuant to this Agreement shall be considered
to have been relied upon by the Lenders and the Fronting Banks and shall survive
58
the making by the Lenders and the Fronting Banks of the Extensions of Credit
regardless of any investigation made by the Lenders or the Fronting Banks or on
their behalf, and shall continue in full force and effect as long as there are
any Outstanding Credits or any Fee or any other amount payable under this
Agreement is outstanding and unpaid or the Commitments have not been terminated
or any Letter of Credit is available to be drawn.
Section 8.03. Binding Effect.
This Agreement shall become effective when it shall have been executed
by the Borrowers, the Fronting Banks and the Agent and when the Agent shall have
received copies hereof (telecopied or otherwise) which, when taken together,
bear the signature of each Lender, and thereafter shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns, except that the Borrowers shall not have the right to assign any rights
hereunder or any interest herein without the prior consent of all the Lenders
and the Fronting Banks.
Section 8.04. Successors and Assigns.
(a) Whenever in this Agreement any of the parties hereto is referred
to, such reference shall be deemed to include the successors and assigns of such
party; and all covenants, promises and agreements by or on behalf of any party
that are contained in this Agreement shall bind and inure to the benefit of its
successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion
of its interests, rights and obligations under this Agreement (including all or
a portion of its Commitment and the its Outstanding Credits); provided, however,
that (i) except in the case of an assignment to a Lender or an Affiliate of such
Lender, an assignment to a Federal Reserve Bank or an assignment made at any
time an Event of Default shall have occurred and be continuing, the Borrowers,
the Agent and the Fronting Banks must give their prior written consent to such
assignment (which consent shall not be unreasonably withheld), (ii) the amount
of the Commitment of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Acceptance with respect to such
assignment is delivered to the Agent) shall not be less than $5,000,000 or, if
the amount of the Commitment of the assigning Lender is less than $5,000,000,
the aggregate amount of such Lender's Commitment, (iii) each such assignment
shall be of a constant, and not a varying, percentage of all the assigning
Lender's rights and obligations under this Agreement and (iv) the parties to
each such assignment shall execute and deliver to the Agent an Assignment and
Acceptance, and a processing and recordation fee of $3,500. Upon acceptance and
recording pursuant to Section 8.04(e), from and after the effective date
specified in each Assignment and Acceptance, which effective date shall be at
least five Business Days after the execution thereof unless otherwise agreed by
the Agent (the Borrowers to be given reasonable notice of any shorter period),
(A) the assignee thereunder shall be a party hereto and, to the extent of the
interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement and (B) the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto (but shall continue to be entitled to the
benefits of Sections 2.10, 2.15 and 8.05 afforded to such Lender prior to its
assignment as well as to any Fees accrued for its account hereunder and not yet
paid)).
59
(c) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim; (ii)
except as set forth in (i) above, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement, or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto or the financial condition of the Borrowers or the performance or
observance by the Borrowers of any obligations under this Agreement or any other
instrument or document furnished pursuant hereto; (iii) such assignor and such
assignee represents and warrants that it is legally authorized to enter into
such Assignment and Acceptance; (iv) such assignee confirms that it has received
a copy of this Agreement, together with copies of the most recent financial
statements delivered pursuant to Section 5.03 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (v) such assignee will
independently and without reliance upon the Agent, such assigning Lender or any
other Lender or Fronting Bank and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (vi) such assignee appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement as are delegated to the Agent by the
terms hereof, together with such powers as are reasonably incidental thereto;
and (vii) such assignee agrees that it will perform in accordance with their
terms all the obligations which by the terms of this Agreement are required to
be performed by it as a Lender.
(d) The Agent shall maintain at one of its offices in the City of New
York a copy of each Assignment and Acceptance delivered to it and a register for
the recordation of the names and addresses of the Lenders, and the Commitment
of, and the principal amount of the Outstanding Credits of, each Lender pursuant
to the terms hereof from time to time (the "Register"). The entries in the
Register shall be conclusive in the absence of manifest error and the Borrowers,
the Fronting Banks, the Agent and the Lenders may treat each person whose name
is recorded in the Register pursuant to the terms hereof as a Lender hereunder
for all purposes of this Agreement. The Register shall be available for
inspection by each party hereto, at any reasonable time and from time to time
upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the processing and recordation
fee referred to in subsection (b) above and, if required, the written consent of
the Borrowers, the Fronting Banks and the Agent to such assignment, the Agent
shall (i) accept such Assignment and Acceptance and (ii) record the information
contained therein in the Register.
(f) Each Lender may without the consent of the Borrowers or the Agent
sell participations to one or more banks or other entities in all or a portion
of its rights and/or obligations under this Agreement (including all or a
portion of its Commitment, its Loans and its LC Outstandings); provided,
60
however, that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) each participating bank or
other entity shall be entitled to the benefit of the cost protection provisions
contained in Sections 2.11, 2.16 and 8.05 to the same extent as if it were the
selling Lender (and limited to the amount that could have been claimed by the
selling Lender had it continued to hold the interest of such participating bank
or other entity), except that all claims made pursuant to such Sections shall be
made through such selling Lender, and (iv) the Borrowers, the Agent, the
Fronting Banks and the other Lenders shall continue to deal solely and directly
with such selling Lender in connection with such Lender's rights and obligations
under this Agreement, and such Lender shall retain the sole right to enforce the
obligations of the Borrowers under this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement (other than
amendments, modifications or waivers (x) decreasing any fees payable hereunder
or the amount of principal of, or the rate at which interest is payable on, the
Outstanding Credits, (y) extending any principal payment date or date fixed for
the payment of interest on the Outstanding Credits or (z) extending the
Commitments).
(g) Any Lender or participant may, in connection with any assignment
or participation or proposed assignment or participation pursuant to this
Section, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrowers furnished to such Lender
by or on behalf of the Borrowers; provided that, prior to any such disclosure,
each such assignee or participant or proposed assignee or participant shall
execute an agreement whereby such assignee or participant shall agree (subject
to customary exceptions) to preserve the confidentiality of any such
information.
(h) The Borrowers shall not assign or delegate any rights and duties
hereunder without the prior written consent of all Lenders, and any attempted
assignment or delegation (except as a consequence of a transaction expressly
permitted under Section 5.09) by a Borrower without such consent shall be void.
(i) Any Lender may at any time pledge all or any portion of its
rights under this Agreement to a Federal Reserve Bank; provided that no such
pledge shall release any Lender from its obligations hereunder or substitute any
such Bank for such Lender as a party hereto. In order to facilitate such an
assignment to a Federal Reserve Bank, each Borrower shall, at the request of the
assigning Lender, duly execute and deliver to the assigning Lender a promissory
note or notes evidencing the Loans made to such Borrower by the assigning Lender
hereunder.
(j) Subject to the appointment and acceptance of a successor Fronting
Bank as provided below, any Fronting Bank may resign at any time by notifying
the Lenders and the Borrowers. Upon any such resignation, the Required Lenders
shall have the right to appoint a successor Fronting Bank acceptable to the
Borrowers. If no successor shall have been so appointed by the Required Lenders
and shall have accepted such appointment within 30 days after the retiring
Fronting Bank gives notice of its resignation, then the retiring Fronting Bank
may appoint a successor Fronting Bank, having a combined capital and surplus of
at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of
any appointment as Fronting Bank hereunder by a successor bank, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties
61
of the retiring Fronting Bank and the retiring Fronting Bank shall be discharged
from its duties and obligations hereunder. After a Fronting Bank's resignation
hereunder, the provisions of Sections 2.11, 2.16 and 8.05 shall continue in
effect for its benefit in respect of any actions taken or omitted to be taken by
it while it was acting as Fronting Bank.
Section 8.05. Expenses; Indemnity.
(a) Energy agrees to pay all reasonable out-of-pocket expenses
(including reasonable fees, charges and disbursements of one counsel, unless in
the good faith opinion of the Agent or such counsel, it would be inappropriate
under applicable standards of legal professional conduct, due to an actual or
potential conflict of interest, to have only one counsel) incurred by the Agent
in connection with the preparation, execution and delivery of this Agreement or
in connection with any amendments, modifications or waivers of the provisions
hereof (but only if such amendments, modifications or waivers are requested by a
Borrower) (whether or not the transactions hereby contemplated are consummated),
or incurred by the Agent, any Fronting Bank or any Lender in connection with the
enforcement of their rights in connection with this Agreement (including in
respect of workouts and restructurings) or in connection with the Extensions of
Credit made hereunder, including the reasonable fees and disbursements of one
counsel (unless in the good faith opinion of the Agent or such counsel, it would
be inappropriate under applicable standards of legal professional conduct, due
to an actual or potential conflict of interest, to have only one counsel) for
the Agent or, in the case of enforcement following an Event of Default, the
Lenders and the Fronting Banks. In addition to the foregoing, each Borrower for
the account of which a Letter of Credit is issued shall pay or reimburse the
Fronting Bank that issued such Letter of Credit for such reasonable, normal and
customary costs and expenses as are incurred or charged by such Fronting Bank in
issuing, negotiating, effecting payment under, amending or otherwise
administering such Letter of Credit.
(b) Each Borrower agrees to indemnify each Lender and each Fronting
Bank against any loss, calculated in accordance with the next sentence, or
reasonable expense that such Lender or such Fronting Bank may sustain or incur
as a consequence of (i) any failure by such Borrower to borrow or to refinance,
convert or continue any Loan hereunder (including as a result of such Borrower's
failure to fulfill any of the applicable conditions set forth in Article IV)
after irrevocable notice of such borrowing, refinancing, conversion or
continuation has been given pursuant to Section 2.03, (ii) any payment,
prepayment or conversion of a Eurodollar Loan of such Borrower, or assignment of
a Eurodollar Loan of such Borrower required by any other provision of this
Agreement or otherwise made or deemed made, on a date other than the last day of
the Interest Period, if any, applicable thereto, (iii) any default in payment or
prepayment of the principal amount of any Outstanding Credit or any part thereof
or interest accrued thereon, as and when due and payable (at the due date
thereof, whether by scheduled maturity, acceleration, irrevocable notice of
prepayment or otherwise) or (iv) the occurrence of any Event of Default relating
to such Borrower, including, in each such case, any loss or reasonable expense
sustained or incurred or to be sustained or incurred by such Lender in
liquidating or employing deposits from third parties, or with respect to
commitments made or obligations undertaken with third parties, to effect or
maintain any Loan hereunder or any part thereof as a Eurodollar Loan. Such loss
shall include an amount equal to the excess, if any, as reasonably determined by
such Lender, of (x) its cost of obtaining the funds for the Loan being paid,
prepaid, refinanced, converted or not borrowed (assumed to be the LIBO Rate for
62
the period from the date of such payment, prepayment, refinancing or failure to
borrow or refinance to the last day of the Interest Period for such Loan (or, in
the case of a failure to borrow or refinance, the Interest Period for such Loan
that would have commenced on the date of such failure) over (y) the amount of
interest (as reasonably determined by such Lender) that would be realized by
such Lender in reemploying the funds so paid, prepaid or not borrowed or
refinanced for such period or Interest Period, as the case may be.
(c) Delivery agrees to indemnify the Agent, the Fronting Banks, each
Lender, each of their Affiliates and the directors, officers, employees and
agents of the foregoing (each such person being called an "Indemnitee") against,
and to hold each Indemnitee harmless from, any and all costs, losses, claims,
damages, liabilities and related expenses, including reasonable fees and
expenses of one counsel for all Indemnitees (unless in the good faith opinion of
the Agent or such counsel, it would be inappropriate under applicable standards
of legal professional conduct, due to an actual or potential conflict of
interest, to have only one counsel), incurred by or asserted against any
Indemnitee arising out of Delivery's acts or omissions in connection with (i)
the preparation, execution, delivery, enforcement, performance and
administration of this Agreement, (ii) the use of the proceeds of the Extensions
of Credit or (iii) any claim, litigation, investigation or proceeding relating
to any of the foregoing, whether or not any Indemnitee is a party thereto,
including any of the foregoing arising from the negligence, whether sole or
concurrent, on the part of any Indemnitee. If and to the extent that the
Indemnitees are not indemnified by Delivery pursuant to the preceding sentence,
Energy agrees to indemnify the Indemnitees against, and to hold each Indemnitee
harmless from, any and all costs, losses, claims, damages, liabilities and
related expenses, including reasonable counsel fees and expenses, incurred by or
asserted against any Indemnitee arising out of (i) the preparation, execution,
delivery, enforcement, performance and administration of this Agreement, (ii)
the use of the proceeds of the Extensions of Credit or (iii) any claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether or not any Indemnitee is a party thereto, including any of the foregoing
arising from the negligence, whether sole or concurrent, on the part of any
Indemnitee. Notwithstanding the foregoing, such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses (i) are determined by a final judgment of a
court of competent jurisdiction to have resulted from the gross negligence or
willful misconduct of such Indemnitee or (ii) result from any litigation brought
by such Indemnitee against the Borrowers or by any Borrower against such
Indemnitee, in which a final, nonappealable judgment has been rendered against
such Indemnitee; provided, further, that each Borrower agrees that it will not,
nor will it permit any Subsidiary to, without the prior written consent of each
Indemnitee, settle, compromise or consent to the entry of any judgment in any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification could be sought under the indemnification provisions of this
subsection (c) of this Section (whether or not any Indemnitee is an actual or
potential party to such claim, action, suit or proceeding), unless such
settlement, compromise or consent does not include any statement as to an
admission of fault, culpability or failure to act by or on behalf of any
Indemnitee and does not involve any payment of money or other value by any
Indemnitee or any injunctive relief or factual findings or stipulations binding
on any Indemnitee.
(d) The provisions of this Section shall remain operative and in full
force and effect regardless of the expiration of the term of this Agreement, the
63
consummation of the transactions contemplated hereby, the repayment of any of
the Outstanding Credits, the invalidity or unenforceability of any term or
provision of this Agreement or any investigation made by or on behalf of the
Agent, any Lender or any Fronting Bank. All amounts due under this Section shall
be payable on written demand therefor.
(e) A certificate of any Lender, any Fronting Bank or the Agent
setting forth any amount or amounts that such Lender, such Fronting Bank or such
Agent is entitled to receive pursuant to subsection (b) of this Section and
containing an explanation in reasonable detail of the manner in which such
amount or amounts shall have been determined shall be delivered to the
appropriate Borrower and shall be conclusive absent manifest error.
Section 8.06. Right of Setoff.
If an Event of Default shall have occurred and be continuing, each
Lender and each Fronting Bank is hereby authorized at any time and from time to
time, to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Lender or such Fronting
Bank to or for the credit or the account of the applicable Borrower against any
of and all the obligations of such Borrower now or hereafter existing under this
Agreement held by such Lender or such Fronting Bank (as the case may be),
irrespective of whether or not such Lender or such Fronting Bank (as the case
may be), shall have made any demand under this Agreement and although such
obligations may be unmatured. The rights of each Lender and each Fronting Bank
under this Section are in addition to other rights and remedies (including other
rights of setoff) which such Lender or such Fronting Bank may have.
Section 8.07. Applicable Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK.
Section 8.08. Waivers; Amendment.
(a) No failure or delay of the Agent, any Fronting Bank or any
Lender in exercising any power or right hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Agent, the Fronting Banks and the
Lenders hereunder are cumulative and are not exclusive of any rights or remedies
that they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure therefrom shall in any event be effective unless the
same shall be permitted by subsection (b) below, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. No notice or demand on any Borrower or any Subsidiary in any case shall
entitle such party to any other or further notice or demand in similar or other
circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrowers and the Required Lenders; provided, however, that
no such agreement shall (i) decrease the principal amount of, or extend the
64
maturity of or any scheduled principal payment date or date for the payment of
any interest on, any Loan or reimbursement obligation in respect of a Letter of
Credit or date for the payment of any Facility Fee or LC Fee, or waive or excuse
any such payment or any part thereof, or decrease the rate of interest on any
Loan or any reimbursement obligation in respect of a Letter of Credit, without
the prior written consent of each Lender affected thereby, (ii) increase the
Commitment of any Lender, decrease the Facility Fee or decrease the LC Fee
payable to any Lender without the prior written consent of such Lender, or
(iii) amend or modify the provisions of Section 2.13, 2.14 or Section 8.04(h),
the provisions of this Section or the definition of the "Required Lenders",
without the prior written consent of each Lender; provided further, however,
that no such agreement shall amend, modify or otherwise affect the rights or
duties of the Agent or any Fronting Bank hereunder without the prior written
consent of the Agent or the applicable Fronting Bank, as the case may be. Each
Lender and each Fronting Bank shall be bound by any waiver, amendment or
modification authorized by this Section, and any consent by any Lender, the
Agent or any Fronting Bank pursuant to this Section shall bind any assignee of
its rights and interests hereunder.
Section 8.09. Entire Agreement.
This Agreement (including the schedules and exhibits hereto) and the
Letter Agreements represent the entire contract among the parties relative to
the subject matter hereof and thereof. Any previous agreement, whether written
or oral, among the parties with respect to the subject matter hereof, is
superseded by this Agreement and the Letter Agreements. There are no unwritten
oral agreements between the parties. Nothing in this Agreement, expressed or
implied, is intended to confer upon any party other than the parties hereto any
rights, remedies, obligations or liabilities under or by reason of this
Agreement.
Section 8.10. Severability.
In the event any one or more of the provisions contained in this
Agreement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby. The parties shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
Section 8.11. Counterparts.
This Agreement may be executed in two or more counterparts, each of
which shall constitute an original but all of which when taken together shall
constitute but one contract, and shall become effective as provided in Section
8.03.
Section 8.12. Headings.
Article and Section headings and the Table of Contents used herein are
for convenience of reference only, are not part of this Agreement and are not to
affect the construction of, or to be taken into consideration in interpreting,
this Agreement.
65
Section 8.13. Interest Rate Limitation.
(a) Notwithstanding anything herein to the contrary, if at any time
the applicable interest rate, together with all fees and charges which are
treated as interest under applicable law (collectively the "Charges"), as
provided for herein or in any other document executed in connection herewith, or
otherwise contracted for, charged, received, taken or reserved by any Lender or
any Fronting Bank, shall exceed the maximum lawful rate (the "Maximum Rate")
which may be contracted for, charged, taken, received or reserved by such Lender
or such Fronting Bank (as the case may be) in accordance with applicable law,
the rate of interest payable on the Outstanding Credits of such Lender or such
Fronting Bank (as the case may be), together with all Charges payable to such
Lender or such Fronting Bank (as the case may be), shall be limited to the
Maximum Rate.
(b) If the amount of interest, together with all Charges, payable for
the account of any Lender or any Fronting Bank in respect of any interest
computation period is reduced pursuant to subsection (a) of this Section and the
amount of interest, together with all Charges, payable for such Lender's or such
Fronting Bank's (as the case may be) account in respect of any subsequent
interest computation period, would be less than the Maximum Rate, then the
amount of interest, together with all Charges, payable for such Lender's or such
Fronting Bank's (as the case may be) account in respect of such subsequent
interest computation period shall, to the extent permitted by applicable law, be
automatically increased to such Maximum Rate; provided that at no time shall the
aggregate amount by which interest paid for the account of any Lender or any
Fronting Bank has been increased pursuant to this subsection (b) exceed the
aggregate amount by which interest, together with all Charges, paid for its
account has theretofore been reduced pursuant to subsection (a) of this Section.
Section 8.14. Jurisdiction; Venue.
(a) Each Borrower hereby irrevocably and unconditionally submits, for itself and
its property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement of any judgment,
and each of the parties hereto hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law, in such
Federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Subject to the foregoing and to subsection (b) below, nothing in this Agreement
shall affect any right that any party hereto may otherwise have to bring any
action or proceeding relating to this Agreement against any other party hereto
in the courts of any jurisdiction.
(b) Each Borrower hereby irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection which it may now or
thereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Agreement in any New York State court or Federal
court of the United States of America sitting in New York City. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
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Section 8.15. Confidentiality.
Each Lender and each Fronting Bank shall use its best efforts to hold
in confidence all information, memoranda, or extracts furnished to such Lender
or such Fronting Bank (as the case may be) (directly or through the Agent) by
the Borrowers hereunder or in connection with the negotiation hereof; provided
that such Lender and such Fronting Bank may disclose any such information,
memoranda or extracts (i) to its Affiliates, accountants or counsel, (ii) to any
regulatory agency having authority to examine such Lender or such Fronting Bank
(as the case may be), (iii) as required by any legal or governmental process or
otherwise by law, (iv) except as provided in the last sentence of Section 5.03,
to any person to which such Lender or such Fronting Bank (as the case may be)
sells or proposes to sell an assignment or a participation in its Outstanding
Credits hereunder, if such other person agrees for the benefit of the Borrowers
to comply with the provisions of this Section and (v) to the extent that such
information, memoranda or extracts shall be publicly available or shall have
become known to such Lender or such Fronting Bank (as the case may be)
independently of any disclosure by any Borrower hereunder or in connection with
the negotiation hereof. Notwithstanding the foregoing, any Lender and any
Fronting Bank may disclose the provisions of this Agreement, the amounts,
maturities and interest rates of its Outstanding Credits, and any Fees to which
it is entitled, to any purchaser or potential purchaser of such Lender's
interest in any Outstanding Credits.
[Signature pages follow]
S-1
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
TXU ENERGY COMPANY LLC
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Treasurer
TXU ELECTRIC DELIVERY COMPANY
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Treasurer
S-2
JPMORGAN CHASE BANK, as Agent,
as a Fronting Bank and as a Lender
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
S-3
BANK OF AMERICA, NATIONAL
ASSOCIATION, as a Lender
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Principal
S-4
CITIBANK, N.A., as a Fronting Bank and as a
Lender
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
S-5
CREDIT SUISSE FIRST BOSTON, ACTING
THROUGH ITS CAYMAN ISLANDS BRANCH,
as a Lender
By /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Director
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Associate
S-6
▇▇▇▇▇▇ BROTHERS BANK, FSB, as a Lender
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Authorized Signatory
S-7
UBS LOAN FINANCE LLC, as a Fronting Bank
and as a Lender
By /s/ ▇▇▇▇▇▇▇ Saint
---------------------------------------
Name: ▇▇▇▇▇▇▇ Saint
Title: Director
By /s/ ▇▇▇▇▇▇▇▇ ▇'▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇'▇▇▇▇▇
Title: Director
S-8
WACHOVIA BANK, NATIONAL
ASSOCIATION, as a Lender
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
S-9
ABN AMRO BANK N.V., as a Lender
By /s/ R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
By /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
▇-▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, as a Lender
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
▇-▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, as a Lender
By /s/ ▇▇▇▇▇ ▇'▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇'▇▇▇▇▇
Title: Managing Director
S-12
THE BANK OF TOKYO-MITSUBISHI, LTD., as
a Lender
By /s/ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇. ▇▇▇▇▇▇
Title: VP & Manager
S-13
CALYON NEW YORK BRANCH, as a Lender
By /s/ Attila Coach
---------------------------------------
Name: Attila Coach
Title: Managing Director
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
▇-▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ AND
GRAND CAYMAN BRANCHES, as a Lender
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
S-15
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ FINANCING, INC., as a Lender
By /s/ ▇. ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
S-16
KBC BANK N.V., as a Lender
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: First Vice President
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
S-17
MELLON BANK, N.A., as a Lender
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
S-18
▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK USA, as a Lender
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
S-19
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BANK, as a Lender
By /s/ ▇▇▇▇▇▇ Twengo
---------------------------------------
Name: ▇▇▇▇▇▇ Twengo
Title: Vice President
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank
S-20
NATIONAL AUSTRALIA BANK LIMITED, as a Lender
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: SVP
S-21
SUMITOMO MITSUI BANKING
CORPORATION, as a Lender
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: General Manager
S-22
UFJ LIMITED, NEW YORK BRANCH, as a Lender
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇-▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ COMMITMENT
CORPORATION (Recourse only
to assets of ▇▇▇▇▇▇▇ Street
Commitment Corporation), as
a Lender
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chief Financial Officer
EXHIBIT A
Form of Assignment and Acceptance
ASSIGNMENT AND ACCEPTANCE
[Date]
Reference is made to the Revolving Credit Agreement, dated as of June
24, 2004 (as amended, modified, extended or restated from time to time, the
"Agreement"), among TXU Energy Company LLC, TXU Electric Delivery Company
(collectively, the "Borrowers"), the lenders party thereto (the "Lenders"),
JPMorgan Chase Bank, as Agent for the lenders, and JPMorgan Chase Bank, as
Fronting Bank for the letters of credit issued thereunder. Terms defined in the
Agreement are used herein with the same meanings.
1. The Assignor hereby sells and assigns, without recourse, to the
Assignee, and the Assignee hereby purchases and assumes, without recourse, from
the Assignor, effective as of [Effective Date of Assignment set forth below],
the interests set forth on the reverse hereof (the "Assigned Interest") in the
Assignor's rights and obligations under the Agreement, including, without
limitation, the interests set forth on the reverse hereof in the Commitment of
the Assignor on the [Effective Date of Assignment] and the Loans owing to the
Assignor that are outstanding on the [Effective Date of Assignment], together
with unpaid interest accrued on the assigned Loans to the [Effective Date of
Assignment] and the amount, if any, set forth on the reverse hereof of the Fees
accrued to the [Effective Date of Assignment] for the account of the Assignor.
Each of the Assignor and the Assignee hereby makes and agrees to be bound by all
the representations, warranties and agreements set forth in Section 8.04 of the
Agreement, a copy of which has been received by each such party. From and after
the [Effective Date of Assignment], (i) the Assignee shall be a party to and be
bound by the provisions of the Agreement and, to the extent of the interests
assigned by this Assignment and Acceptance, have the rights and obligations of a
Lender thereunder and (ii) the Assignor shall, to the extent of the interests
assigned by this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Agreement.
2. This Assignment and Acceptance is being delivered to the Agent
together with (i) if the Assignee is organized under the laws of a jurisdiction
outside the United States, the forms specified in Section 2.15(g) of the
Agreement, duly completed and executed by such Assignee and (ii) a processing
and recordation fee of $3,500.
3. This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
(may not be fewer than 5 Business
Days after the Date of Assignment
unless otherwise agreed by the Agent):
--------------------------- ----------------------------------- --------------------------------------------------
Percentage Assigned of
Facility/Commitment (set forth, to at
Facility least 8 decimals, as a percentage of the
Principal Amount Assigned Facility and the aggregate Commitments of
all Lenders thereunder
Commitment Assigned: $____________ ______________%
Loans: $____________ ______________%
Fees Assigned (if any): $____________ ______________%
A-2
The terms set forth and on the reverse side Accepted:
hereof are hereby agreed to:
[ASSIGNOR], as TXU ENERGY COMPANY LLC
Assignor
By , as By
--------------------------------- --------------------------
Name: Name:
Title: Title:
[ASSIGNEE], as TXU ELECTRIC DELIVERY COMPANY
Assignee,
By , as By
--------------------------------- ---------------------------
Name: Name:
Title: Title:
JPMORGAN CHASE BANK, as
Agent
By
---------------------------
Name:
Title:
A-3
EXHIBIT B
Form of Borrowing Request
BORROWING REQUEST
[Date]
JPMorgan Chase Bank,
as Agent for the lenders referred to below,
Loan and Agency Services Group
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Ladies and Gentlemen:
The undersigned, [TXU Energy Company LLC] [TXU Electric Delivery
Company] (the "Borrower"), refers to the Revolving Credit Agreement, dated as
of June 24, 2004 (as it may hereafter be amended, modified, extended or
restated from time to time, the "Agreement"), among the Borrower, [TXU Energy
Company LLC], [TXU Electric Delivery Company], the lenders party thereto (the
"Lenders"), JPMorgan Chase Bank, as Agent, and JPMorgan Chase Bank, as Fronting
Bank for the letters of credit issued thereunder. Capitalized terms used herein
and not otherwise defined herein shall have the meanings assigned to such terms
in the Agreement. The Borrower hereby gives you notice pursuant to Section 2.03
of the Agreement that it requests a Borrowing under the Agreement, and in that
connection sets forth below the terms on which such Borrowing is requested to
be made:
(A) Tranche of Borrowing ____________
(B) Date of Borrowing (which is a Business Day) ____________
(C) Principal amount of Borrowing1 ____________
(D) Interest rate basis2 ____________
(E) Interest Period and the last day thereof3 ____________
1 Not less than $25,000,000 (and in integral multiples of $5,000,000) or
greater than the Total Commitment then available.
2 Eurodollar Loan or ABR Loan.
3 Which shall be subject to the definition of "Interest Period" and end
not later than the Applicable Commitment Termination Date, in the case
of Tranche B Borrowings and Tranche C Borrowings and not later than the
Term Loan Maturity Date, in the case of Tranche A Borrowings.
Upon acceptance of any or all of the Loans made by the Lenders in
response to this request, the Borrower shall be deemed to have represented and
warranted that the applicable conditions to lending specified in Article IV of
the Agreement have been satisfied.
Very truly yours,
[TXU ENERGY COMPANY LLC]
[TXU ELECTRIC DELIVERY COMPANY]
By _________________________________
Name:
Title:
B-2
EXHIBIT C
Form of Prepayment Notice
PREPAYMENT NOTICE
[Date]
JPMorgan Chase Bank,
as Agent for the Lenders referred to below,
Loan and Agency Services Group
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
Ladies and Gentlemen:
The undersigned, [TXU Energy Company LLC] [TXU Electric Delivery
Company] (the "Borrower"), refers to the Revolving Credit Agreement dated as of
June 24, 2004 (as it may hereafter be amended, modified, extended or restated
from time to time, the "Agreement"), among the Borrower, [TXU Energy Company
LLC] [TXU Electric Delivery Company], the lenders party thereto (the "Lenders")
JPMorgan Chase Bank, as Agent, and JPMorgan Chase Bank, as Fronting Bank for
the letters of credit issued thereunder. Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Agreement. The Borrower hereby gives you irrevocable notice of prepayment
pursuant to Section 2.10 of the Agreement and, in that connection, acknowledges
that it is committed hereby to prepay the Borrowing (or portion thereof)
identified below by the amount and on the date stated below, and that such
prepayment will be accompanied by accrued interest on the principal amount
being prepaid to the date of prepayment.
(A) Tranche 1 and interest rate basis2 of Borrowing to be prepaid (in
whole or in part)
(B) Principal amount to be prepaid3
(C) Date of prepayment (which is a Business Day)
1 Tranche A Borrowing (364 Day), Tranche B Borrowing (3 year); Tranche C
Borrowing (5 year)
2 Eurodollar Loan or ABR Loan.
3 If a partial prepayment, not less than $10,000,000 and in integral multiples
of $10,000,000.
Very truly yours,
[TXU Energy Company LLC]
[TXU Electric Delivery Company]
By _________________________________
Name:
Treasurer
▇-▇
▇▇▇▇▇▇▇ ▇-▇
Form of Request for Issuance by
JPMorgan Chase Bank
REQUEST FOR ISSUANCE
[Date]
JPMorgan Chase Bank,
as Agent for the lenders referred to below,
Loan and Agency Services Group
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
JPMorgan Chase Bank
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Ladies and Gentlemen:
The undersigned, [TXU Energy Company LLC] [TXU Electric Delivery
Company] (the "Borrower"), refers to the Revolving Credit Agreement, dated as
of June 24, 2004 (as it may hereafter be amended, modified, extended or
restated from time to time, the "Agreement"), among the Borrower, [TXU Energy
Company LLC] [TXU Electric Delivery Company], the lenders party thereto (the
"Lenders"), JPMorgan Chase Bank, as Agent, and JPMorgan Chase Bank, as Fronting
Bank for the letters of credit issued thereunder, and hereby gives you notice,
irrevocably, pursuant to Section 2.18(a) of the Agreement, that the undersigned
hereby requests the issuance of a Letter of Credit, and in connection therewith
sets forth below the terms on which such Letter of Credit is to be issued:
(i) the Tranche of the requested Letter of Credit is _________;
and
(ii) the requested date of issuance (which is a Business Day) is
_______________;1 and
(iii) the expiration date (which shall be no later than the fifth
Business Day preceding the Tranche [A][B][C] Commitment
Termination Date) of the Letter of Credit requested hereby is
______________;2 and
(iv) the proposed stated amount of the Letter of Credit requested
hereby is $_________________;3 and
(v) the beneficiary of the Letter of Credit requested hereby is
___________________, with an address at _______________; and
(vi) the conditions under which a drawing may be made under such
Letter of Credit are as follows: _______________________;
(vii) attached hereto is a consent of the beneficiary of the Letter
of Credit to the modification of the Letter of Credit hereby
requested.4
Upon the issuance of the Letter of Credit by the Fronting Bank in
response to this request, the Borrower shall be deemed to have represented
and warranted that the applicable conditions to an issuance of a Letter of
Credit that are specified in Article IV of the Agreement have been satisfied.
Very truly yours,
[TXU ENERGY COMPANY LLC]
[TXU ELECTRIC DELIVERY COMPANY]
By _________________________________
Name:
Title: [Financial Officer]
1 If the Request for Issuance is a request for extension of the stated
maturity of a Letter of Credit or a modification or amendment of the
terms thereof, set forth the date of effectiveness of such extension,
modification or amendment.
2 Modify request as appropriate if used in connection with the extension,
modification or amendment of a Letter of Credit.
3 The proposed stated amount shall be not less than $1,000,000, unless
otherwise agreed to by the Fronting Bank.
4 Include only if the Request for Issuance relates to an amendment or
modification of a Letter of Credit.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
Form of Request for Issuance by
Citibank, N.A.
[to come]
EXHIBIT E
Form of Notice of Interest Period
[Date]
JPMorgan Chase Bank,
as Agent for the lenders referred to below,
Loan and Agency Services Group
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Ladies and Gentlemen:
The undersigned, [TXU Energy Company LLC] [TXU Electric Delivery
Company] (the "Borrower"), refers to the Revolving Credit Agreement, dated as
of June 24, 2004 (as it may hereafter be amended, modified, extended or
restated from time to time, the "Agreement"), among the Borrower, [TXU Energy
Company LLC], [TXU Electric Delivery Company], the lenders party thereto (the
"Lenders"), JPMorgan Chase Bank, as Agent, and JPMorgan Chase Bank, as Fronting
Bank for the letters of credit issued thereunder. Capitalized terms used herein
and not otherwise defined herein shall have the meanings assigned to such terms
in the Agreement. The Borrower hereby gives you notice pursuant to Section
2.06(a) of the Agreement that it requests that the Interest Period applicable
to all Tranche A Borrowings consisting of Eurodollar Borrowings outstanding on
the Tranche A Commitment Termination Date be converted as follows:
(A) Principal amount of Eurodollar Borrowings4 __________
(B) Interest Period and the last day thereof5 __________
Very truly yours,
[TXU ENERGY COMPANY LLC]
[TXU ELECTRIC DELIVERY COMPANY]
By _________________________________
Name:
Title:
4 Shall equal the aggregate principal amount of all Tranche A Borrowings
consisting of Eurodollar Borrowings on the Tranche A Commitment Termination
Date.
5 Which shall be subject to the definition of "Interest Period".
SCHEDULE 2.01
COMMITMENTS
----------------------------------------------------------------------------------------------------------------------
NAME OF LENDER TRANCHE A TRANCHE B COMMITMENT TRANCHE C
COMMITMENT COMMITMENT
----------------------------------------------------------------------------------------------------------------------
JPMorgan Chase Bank $38,421,428.60 $89,650,000.00 $71,428,571.40
----------------------------------------------------------------------------------------------------------------------
ABN Amro Bank N.V. $30,000,000.00 $70,000,000.00 $0.00
----------------------------------------------------------------------------------------------------------------------
Bank of America, National Association $36,771,428.60 $85,800,000.00 $71,428,571.40
" " " " " " ""
----------------------------------------------------------------------------------------------------------------------
The Bank of New York $15,000,000.00 $35,000,000.00 $0.00
----------------------------------------------------------------------------------------------------------------------
The Bank of Nova Scotia $30,000,000.00 $70,000,000.00 $0.00
----------------------------------------------------------------------------------------------------------------------
The Bank of Tokyo-Mitsubishi, Ltd. $15,000,000.00 $35,000,000.00 $0.00
----------------------------------------------------------------------------------------------------------------------
Calyon New York Branch $52,500,000.00 $122,500,000.00 $0.00
----------------------------------------------------------------------------------------------------------------------
Citibank, N.A. $38,421,428.60 $89,650,000.00 $71,428,571.40
----------------------------------------------------------------------------------------------------------------------
Commerzbank AG, New York and Grand Cayman Branches $30,000,000.00 $70,000,000.00 $0.00
----------------------------------------------------------------------------------------------------------------------
Credit Suisse First Boston, Acting Through Its Cayman $36,771,428.60 $85,800,000.00 $71,428,571.40
Islands Branch
----------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Financing, Inc. $15,000,000.00 $35,000,000.00 $0.00
----------------------------------------------------------------------------------------------------------------------
KBC Bank N.V. $7,500,000.00 $17,500,000.00 $0.00
----------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ Brothers Bank, FSB $36,771,428.60 $85,800,000.00 $71,428,571.40
----------------------------------------------------------------------------------------------------------------------
Mellon Bank, N.A. $15,000,000.00 $35,000,000.00 $0.00
----------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA $37,500,000.00 $87,500,000.00 $0.00
----------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank $30,000,000.00 $70,000,000.00 $0.00
----------------------------------------------------------------------------------------------------------------------
National Australia Bank Limited, A.B.N. 12 004 044 937 $15,000,000.00 $35,000,000.00 $0.00
----------------------------------------------------------------------------------------------------------------------
Sumitomo Mitsui Banking Corporation, New York Branch $7,500,000.00 $17,500,000.00 $0.00
----------------------------------------------------------------------------------------------------------------------
UBS Loan Finance LLC $31,071,428.60 $72,500,000.00 $71,428,571.40
----------------------------------------------------------------------------------------------------------------------
UFJ Limited, New York Branch $15,000,000.00 $35,000,000.00 $0.00
----------------------------------------------------------------------------------------------------------------------
Wachovia Bank National Association $36,771,428.60 $85,800,000.00 $71,428,571.40
----------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Street Commitment Corporation $30,000,000.00 $70,000,000.00 $0.00
----------------------------------------------------------------------------------------------------------------------
Total $600,000,000 $1,400,000,000 $500,000,000
----------------------------------------------------------------------------------------------------------------------
SCHEDULE 2.18(i)
LC FRONTING BANK COMMITMENTS
-----------------------------------------------------------------------------
Fronting Bank LC Fronting Bank Commitments
-----------------------------------------------------------------------------
JPMorgan Chase Bank $750,000,000
-----------------------------------------------------------------------------
Citibank, N.A. $750,000,000
-----------------------------------------------------------------------------
SCHEDULE 5.13
RESTRICTIVE AGREEMENTS
Delivery Mortgage
