TEXAS COMPETITIVE ELECTRIC HOLDINGS COMPANY LLC AND TCEH FINANCE, INC. AND EACH OF THE GUARANTORS PARTY HERETO FIRST SUPPLEMENTAL INDENTURE Dated as of December 6, 2007 To the Indenture dated as of October 31, 2007 THE BANK OF NEW YORK TRUSTEE
Exhibit
4.1
EXECUTION
VERSION
________________________________________________________________________________
TEXAS
COMPETITIVE ELECTRIC HOLDINGS COMPANY LLC
AND
TCEH
FINANCE, INC.
AND
EACH OF THE GUARANTORS PARTY HERETO
________________________________________________
Dated
as of December 6, 2007
To
the Indenture dated as of October 31, 2007
________________________________________________
First
Supplemental Indenture (this “First Supplemental Indenture”), dated as of
December 6, 2007, among Texas Competitive Electric Holdings Company
LLC, a Delaware limited liability company, and TCEH Finance, Inc., a Delaware
corporation (collectively, the “Issuer”), the Guarantors party hereto and
The Bank of New York, as Trustee.
W
I T N E
S S E T H
WHEREAS,
the Issuer, the Guarantors (as defined in the Existing Indenture referred
to
below) and the Trustee have entered into an Indenture, dated as of October
31,
2007 (the “Existing Indenture”), providing for the issuance of an
unlimited amount of the Issuer’s 10.25% Senior Notes due 2015 (the “Existing
Cash Pay Notes”), of which $3,000,000,000 aggregate principal amount was
issued on October 31, 2007 (the “Initial Existing Cash Pay
Notes”);
WHEREAS,
Section 9.01 of the Indenture provides, among other things, that the Issuer,
the
Guarantors and the Trustee may amend the Existing Indenture to provide for
the
issuance of additional Cash Pay Notes or additional series of debt of the
Issuer
constituting Required Debt in accordance with the Existing Indenture;
and`
WHEREAS,
the Issuer has duly authorized
the creation of an issue of $2,000,000,000 aggregate principal amount of
10.25%
Senior Notes due 2015, Series B (the “Initial Series B Cash Pay Notes”) and the
Issuer has duly authorized the creation of an issue of $1,750,000,000 aggregate
principal amount of 10.50%/11.25% Senior Toggle Notes due 2016 (the “Initial
Toggle Notes”);
WHEREAS,
the Issuer and the Guarantors desire to amend the Existing Indenture to provide
for the issuance of the Initial Series B Cash Pay Notes and to provide for
the
issuance of the Initial Toggle Notes;
NOW
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties mutually
covenant and agree for the equal and ratable benefit of all Persons who are
now
or hereafter become Holders of Notes, hereby enter into this First Supplemental
Indenture and agree as follows:
Section
1. DEFINITIONS.
1.1 Capitalized
Terms. Capitalized terms used herein without definition shall have
the meanings assigned to them in the Existing Indenture.
1.2 For
all purposes of this First Supplemental Indenture, except as otherwise herein
expressly provided or unless the context otherwise requires: (i) the words
“herein,” “hereof” and “hereby” and other words of similar import used in this
First Supplemental Indenture refer to this First Supplemental Indenture as
a
whole and not to any particular section hereof and (ii) the terms and
expressions used herein shall have the same meanings as corresponding terms
and
expressions used in the Existing Indenture.
1.3 The
definition of “Definitive Note” shall be deleted and replaced with the
following:
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“Definitive
Note”
means a certificated Note
registered in
the
name of the Holder thereof and
issued
in accordance with
Section 2.06 hereof,
substantially
in the
form of Exhibit
X-0, Xxxxxxx
X-0 or Exhibit
A-3, as
applicable, hereto, except
that such Note shall not bear the Global Note Legend and shall
not have
the “Schedule
of
Exchanges of Interests in the Global Note” attached
thereto.
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Section
2. CHANGES TO CERTAIN PROVISIONS
2.1 Amendments
to Article 1. The following paragraphs shall be added to Section 1.01
and replace any existing definitions (as applicable) in the Existing Indenture
prior to the date hereof:
“144A
Global Note” means a Global Note substantially in the form of
Exhibit A-1 (in the case of the Existing Cash Pay Notes), Exhibit
A-2 (in the case of the Series B Cash Pay Notes) or Exhibit A-3
(in the case of the Toggle Notes) hereto, as the case may be, bearing the
Global
Note Legend, the Private Placement Legend and the Tax Legend (if applicable)
and
deposited with or on behalf of, and registered in the name of, the Depositary
or
its nominee that will be issued in a denomination equal to the outstanding
principal amount of the Senior Notes sold in reliance on Rule 144A.
“Additional
Existing Cash Pay Notes” means additional Existing Cash Pay Notes (other
than Initial Existing Cash Pay Notes and Exchange Notes issued in exchange
for
such Initial Existing Cash Pay Notes) issued from time to time under this
Indenture in accordance with Sections 2.01(d), 2.02 and 4.09 hereof, as part
of
the same series as the Initial Existing Cash Pay Notes.
“Additional
Notes” means Additional Existing Cash Pay Notes, Additional Series B Cash
Pay Notes and Additional Toggle Notes.
“Additional
Series B Cash Pay Notes” means additional Series B Cash Pay Notes (other
than Initial Series B Cash Pay Notes and Exchange Notes issued in exchange
for
such Initial Series B Cash Pay Notes) issued from time to time under this
Indenture in accordance with Sections 2.01(d), 2.02 and 4.09 hereof, as part
of
the same series as the Initial Series B Cash Pay Notes.
“Additional
Toggle Notes” means additional Toggle Notes (other than the Initial Toggle
Notes, any PIK Notes issued as a result of a PIK Payment on such Initial
Toggle
Notes and Exchange Notes issued in exchange for such Initial Toggle Notes
and
such PIK Notes) issued from time to time under this Indenture in accordance
with
Sections 2.01(d), 2.02 and 4.09 hereof, as part of the same series as the
Initial Toggle Notes.
“Applicable
Premium” means, with respect to any Note on any Redemption Date, the greater
of:
(1) 1.0%
of the principal amount of such Note; and
(2) (A)
with respect to a Cash Pay Note, the excess, if any, of (a) the present
value at such Redemption Date of (i) the redemption price of such Cash Pay
Note at November 1, 2011 (such redemption price determined as set forth in
the
table appearing under Section 3.07(d) hereof), plus (ii) all required
interest payments due on such Cash Pay Note through November 1, 2011 (excluding
accrued but unpaid interest to the Redemption Date), computed using a discount
rate equal to the Treasury Rate as of such Redemption Date plus 50 basis
points;
over (b) the principal amount of such Cash Pay Note, or
(B) with
respect to a Toggle Note, the excess, if any, of (a) the present value at
such
Redemption Date of (i) the redemption price of such Toggle Note
at November 1, 2012 (such redemption price being set forth in the
table appearing under Section 3.07(h) hereof), plus (ii) all required interest
payments (calculated based on the cash interest rate payable on the Toggle
Notes) due on such Toggle Note through November 1, 2012 (excluding accrued
but
unpaid interest to the Redemption Date), computed using a discount rate equal
to
the Treasury Rate as of such Redemption Date plus 50 basis points; over
(b) the principal amount of such Toggle Note.
2
“Cash
Interest” has the meaning set forth in Exhibit A-3
hereto.
“Cash
Pay Notes” means, collectively, (1) the Initial Existing Cash Pay Notes and
any Additional Existing Cash Pay Notes and (2) the Initial Series B Cash
Pay
Notes and any Additional Series B Cash Pay Notes.
“Existing
Cash Pay Notes” means the Initial Existing Cash Pay Notes and any Additional
Existing Cash Pay Notes.
“Global
Notes” means, individually and collectively, each of the Restricted Global
Notes and the Unrestricted Global Notes deposited with or on behalf of and
registered in the name of the Depositary or its nominee, substantially in
the
form of Exhibit A-1 (in the case of the Existing Cash Pay Notes),
Exhibit A-2 (in the case of the Series B Cash Pay Notes) or Exhibit A-3
(in the case of the Toggle Notes) hereto, as the case may be, and that bears
the
Global Note Legend and that has the “Schedule of Exchanges of Interests in the
Global Note” attached thereto, issued in accordance with Section 2.01,
2.06(a), 2.06(b)(iii), 2.06(b)(iv), 2.06(d)(ii), 2.06(d)(iii) or 2.06(f)
hereof.
“Initial
Existing Cash Pay Notes” has the meaning set forth in the recitals
hereto.
“Initial
Notes” means the Initial Existing Cash Pay Notes, the Initial Series B Cash
Pay Notes and the Initial Toggle Notes.
“Initial
Series B Cash Pay Notes” has the meaning set forth in the recitals
hereto.
“Initial
Toggle Notes” has the meaning set forth in the recitals hereto.
“Issue
Date” means the first date on which any Notes are issued pursuant to this
Indenture, which was October 31, 2007.
“Notes”
means the Initial Existing Cash Pay Notes, the Initial Series B Cash Pay
Notes
and the Initial Toggle Notes (including, in each case, any Exchange Notes
issued
in exchange therefor), and more particularly means any Note authenticated
and
delivered under this Indenture. For all purposes of this Indenture,
the term “Notes” shall also include any Additional Existing Cash Pay Notes,
Additional Series B Cash Pay Notes and Additional Toggle Notes that may be
issued under this Indenture. The Existing Cash Pay Notes, the Series
B Cash Pay Notes and the Toggle Notes (including, in each case, any Exchange
Notes issued in exchange therefor) are separate series of Notes, but shall
be
treated as a single class for all purposes under this Indenture, except as
set
forth herein. For purposes of this Indenture, all references to Notes
to be issued or authenticated upon transfer, replacement or exchange shall
be
deemed to refer to Notes of the applicable series.
“Offering
Memorandum” means, as applicable, (1) the offering circular, dated October
24, 2007, relating to the sale of the Initial Existing Cash Pay Notes and
(2)
the offering circular, dated November 29, 2007, relating to the sale of the
Initial Series B Cash Pay Notes and Initial Toggle Notes.
“Partial
PIK Interest” has the meaning set forth in Exhibit A-3
hereto.
“PIK
Interest” has the meaning set forth in Exhibit A-3
hereto.
“PIK
Notes” means additional Toggle Notes issued under this Indenture on the same
terms and conditions as the Toggle Notes in connection with a PIK
Payment. For purposes of this Indenture, all references to “PIK
Notes” shall include the Related PIK Notes.
3
“PIK
Payment” means an interest payment with respect to the Toggle Notes made by
increasing the outstanding principal amount of the Toggle Notes or issuing
PIK
Notes.
“Registration
Rights Agreement” means, as applicable, (1) the Registration Rights
Agreement relating to the Initial Existing Cash Pay Notes, dated as of the
Issue
Date among the Issuer, the Guarantors and the Initial Purchasers, (2) the
Registration Rights Agreement relating to the Initial Series B Cash Pay Notes,
dated as of the date of the First Supplemental Indenture, among the Issuer,
and
the other parties thereto, (3) the Registration Rights Agreement relating
to the
Initial Toggle Notes, dated as of the date of the First Supplemental Indenture,
among the Issuer and the other parties thereto and (4) with respect to any
Additional Notes, any registration rights agreement among the Issuer and
the
other parties thereto relating to the registration by the Issuer of such
Additional Notes under the Securities Act.
“Regulation S
Permanent Global Note” means a permanent Global Note in the form of
Exhibit A-1 (in the case of the Existing Cash Pay Notes),
Exhibit A-2 hereto (in the case of the Series B Cash Pay Notes)
or
Exhibit A-3 hereto (in the case of the Toggle Notes) hereto, bearing the
Global
Note Legend, the Private Placement Legend and the Tax Legend (if applicable)
and
deposited with or on behalf of and registered in the name of the Depositary
or
its nominee, issued in a denomination equal to the outstanding principal
amount
of the Regulation S Temporary Global Note of the applicable series upon
expiration of the Restricted Period.
“Regulation S
Temporary Global Note” means a temporary Global Note in the form of
Exhibit A-1 (in the case of the Existing Cash Pay Notes), Exhibit
A-2 hereto (in the case of the Series B Cash Pay Notes) or Exhibit A-3
hereto (in the case of the Toggle Notes) hereto, bearing the Global Note
Legend,
the Private Placement Legend, the Regulation S Temporary Global Note Legend
and the Tax Legend (if applicable) and deposited with or on behalf of and
registered in the name of the Depositary or its nominee, issued in a
denomination equal to the outstanding principal amount of the Notes of the
applicable series initially sold in reliance on Rule 903.
“Related
PIK Notes” means, with respect to a Toggle Note, (i) each PIK Note issued in
connection with a PIK Payment on such Toggle Note and (ii) each additional
PIK
Note issued in connection with a PIK Payment on a Related PIK Note with respect
to such Toggle Note.
“Required
Debt” means, with respect to any action, on any date, the outstanding
principal amount of:
(1) the
Notes (including any Additional Notes),
(2) the
Senior Term Loans under the TCEH Senior Interim Facility (excluding any Senior
Term Loans held by Defaulting Lenders (as defined in the TCEH Senior Interim
Facility),
(3) the
Senior Notes (as defined in the TCEH Senior Interim Facility), and
(4) any
other senior unsecured securities issued by the Issuer to refinance or replace
any of the items described in clauses (2) and (3) of this definition
(including any additional securities of the same series)
at
such
date, other than, in each case, any such debt beneficially owned by the Issuer
or its Affiliates, voting as a single class, except to the extent prohibited
by
law; provided that (a) Required Debt shall only include debt
described in clauses (2) through (4) of this definition, to the extent such
debt would require the consent of the holders of the debt described in this
definition voting as a single class to take such action, except to the extent
described below in clause (b) and (c); (b) if any amendment, waiver or
other
4
action
would disproportionately affect the holders of the Existing Cash Pay Notes,
the
Series B Cash Pay Notes or the Toggle Notes, Required Debt shall mean the
Existing Cash Pay Notes, the Series B Cash Pay Notes or the Toggle Notes,
as the
case may be, voting as a single class and the debt described in clauses (1)
through (4) voting as a single class, and (c) if any amendment, waiver or
other action would affect (i) only the Notes, with equal effect on each series
of the Cash Pay Notes and the Toggle Notes, (ii) only the Existing Cash Pay
Notes, (iii) only the Series B Cash Pay Notes or (iv) only the Toggle Notes,
Required Debt shall mean the Notes, the Existing Cash Pay Notes, the Series
B
Cash Pay Notes or the Toggle Notes, as the case may be, voting as a single
class
without the debt described in clauses (2) through (4).
“Series
B Cash Pay Notes” means the Initial Series B Cash Pay Notes and any
Additional Series B Cash Pay Notes.
“Tax
Legend” means the legend set forth in Section 2.06(g)(iv) hereof to be
placed on all Series B Cash Pay Notes (if applicable) and all Toggle Notes
(if
applicable) issued under this Indenture except where otherwise permitted
by the
provisions of this Indenture.
“Toggle
Notes” means the Initial Toggle Notes, any Additional Toggle Notes and any
Related PIK Notes issued in respect of any Toggle Notes (and any increase
in the
principal amount of any of the foregoing) as a result of a PIK
Payment. For purposes of this Indenture, all references to “principal
amount” of the Toggle Notes shall include any PIK Notes issued in respect
thereof (and any increase in the principal amount thereof) as a result of
a PIK
Payment.
“Treasury
Rate” means, as of any Redemption Date, the yield to maturity as of such
Redemption Date of United States Treasury securities with a constant maturity
(as compiled and published in the most recent Federal Reserve Statistical
Release H.15 (519) that has become publicly available at least two Business
Days
prior to the Redemption Date (or, if such Statistical Release is no longer
published, any publicly available source of similar market data)) most nearly
equal to the period from the Redemption Date to (x) November 1, 2011, in
the
case of Cash Pay Notes, and (y) November 1, 2012, in the case of Toggle Notes;
provided, however, that if the period from the Redemption Date to
November 1, 2011 or November 1, 2012, as the case may be, is less than one
year, the weekly average yield on actually traded United States Treasury
securities adjusted to a constant maturity of one year will be
used.
“Unrestricted
Global Note” means a permanent Global Note, substantially in the form of
Exhibit A-1 (in the case of the Existing Cash Pay Notes), Exhibit
A-2 (in the case of the Series B Cash Pay Notes) or Exhibit A-3 (in
the case of the Toggle Notes) attached hereto, that bears the Global Note
Legend
and that has the “Schedule of Exchanges of Interests in the Global Note”
attached thereto, and that is deposited with or on behalf of and registered
in
the name of the Depositary, representing Global Notes that do not bear and
are
not required to bear the Private Placement Legend.
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2.2
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Amendments
to Article 2.
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2.2.1
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Paragraph
(a) of Section 2.01 shall be deleted and replaced with the
following:
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“(a) General. The
Notes and the Trustee’s certificate of authentication shall be substantially in
the form of Exhibit A-1 (in the case of the Existing Cash Pay
Notes), Exhibit A-2 (in the case of the Series B Cash Pay Notes) or
Exhibit A-3 (in the case of the Toggle Notes) hereto. The
Notes may have notations, legends or endorsements required by law, stock
exchange rules or usage. Each Note shall be dated the date of its
authentication. The Notes shall be in minimum denominations of $2,000
and integral multiples of $1,000 in excess thereof, subject to the issuance
of
certificated PIK Notes as set forth in Exhibit A-3.”
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2.2.2
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Paragraph
(b) of Section 2.01 shall be deleted and replaced with the
following:
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“(b) Global
Notes. Notes issued in global form shall be substantially in the
form of Exhibit A-1 (in the case of the Existing Cash Pay Notes),
Exhibit A-2 (in the case of the Series B Cash Pay Notes) or Exhibit A-3
(in the case of the Toggle Notes) hereto (including, in each case, the Global
Note Legend thereon and the “Schedule of Exchanges of Interests in the Global
Note” attached thereto). Notes issued in definitive form shall be
substantially in the form of Exhibit A-1 (in the case of the
Existing Cash Pay Notes), Exhibit A-2 (in the case of the Series B Cash Pay
Notes) or Exhibit A-3 (in the case of the Toggle Notes) attached hereto
(but without, in each case, the Global Note Legend thereon and without the
“Schedule of Exchanges of Interests in the Global Note” attached
thereto). Each Global Note shall represent such of the outstanding
Notes as shall be specified in the “Schedule of Exchanges of Interests in the
Global Note” attached thereto and each shall provide that it shall represent up
to the aggregate principal amount of Notes from time to time endorsed thereon
and that the aggregate principal amount of outstanding Notes represented
thereby
may from time to time be reduced or increased, as applicable, to reflect
exchanges and redemptions. Any endorsement of a Global Note to
reflect the amount of any increase or decrease in the aggregate principal
amount
of outstanding Notes represented thereby shall be made by the Trustee or
the
Custodian, at the direction of the Trustee, in accordance with instructions
given by the Holder thereof as required by Section 2.06
hereof.”
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2.2.3
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The
fourth paragraph of paragraph (d) of Section 2.01 shall be deleted
and
replaced with the following:
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“Additional
Notes of any series ranking paripassu with the Initial Notes
of such series may be created and issued from time to time by the Issuer
without
notice to or consent of the Holders and shall be consolidated with and form
a
single class with the Initial Notes of such series and shall have the same
terms
as to status, redemption or otherwise as the Initial Notes of such series;
provided that the Issuer’s ability to issue Additional Notes shall be
subject, among other things, to the Issuer’s compliance with Section 4.09
hereof; providedfurther that in connection with the payment of PIK
Interest, the Issuer may, without the consent of the Holders (and without
regard
to any restrictions or limitations set forth in Section 4.09 hereof),
increase the outstanding principal amount of the Toggle Notes or issue PIK
Notes. The Existing Cash Pay Notes, the Series B Cash Pay Notes and
the Toggle Notes are each a separate series of Notes but will be treated
as a
single class of securities under this Indenture, except as otherwise stated
herein. As a result, Holders of each series of Notes will not have
separate rights to, among other things, give notice of Defaults or to direct
the
Trustee to exercise remedies during an Event of Default or
otherwise. Except as otherwise stated herein, the Notes offered
by the Issuer, any PIK Notes and any Additional Notes subsequently issued
under
this Indenture will be treated as a single class for all purposes under this
Indenture, including waivers, amendments, redemptions and offers to
purchase. Unless the context requires otherwise, references to
“Notes” for all purposes under this Indenture include PIK Notes and any
Additional Notes that are actually issued, and references to “principal amount”
of the notes includes and increases in the principal amount of the outstanding
Notes as a result of a PIK Payment. Any Additional Notes shall be
issued with the benefit of an indenture supplemental to this
Indenture. The Notes are a separate series of debt, but will be
treated as a single class with other series of Required Debt for certain
actions
and voting as set forth in this Indenture. As a result, Holders of
the Notes will not have separate rights to, among other things, give notice
of
Defaults, direct the Trustee to exercise remedies during an Event of Default
or
otherwise or vote for amendments and waivers.”
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2.2.4
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Section
2.02 shall be deleted and replaced with the
following:
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“At
least
one Officer shall execute the Notes on behalf of the Issuer by manual or
facsimile signature.
6
If
an
Officer whose signature is on a Note no longer holds that office at the time
a
Note is authenticated, the Note shall nevertheless be valid.
A
Note
shall not be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose until authenticated substantially in the form
of
Exhibit A-1 (in the case of the Existing Cash Pay Notes), Exhibit
A-2 (in the case of the Series B Cash Pay Notes) or Exhibit A-3 (in the
case of the Toggle Notes) attached hereto, as the case may be, by the manual
signature of the Trustee. The signature shall be conclusive evidence
that the Note has been duly authenticated and delivered under this
Indenture.
On
the
Issue Date, the Trustee shall, upon receipt of a written order of the Issuer
signed by an Officer (an “Issuer Authentication Order”) authenticate and
deliver the Initial Existing Cash Pay Notes specified in such Issuer
Authentication Order. On the date of this First Supplemental
Indenture, the Trustee shall, upon receipt of an Issuer Authentication Order,
authenticate and deliver the Initial Series B Cash Pay Notes and the Initial
Toggle Notes. In addition, at any time, and from time to time, the
Trustee shall, upon receipt of an Issuer Authentication Order, authenticate
and
deliver any Additional Notes, Exchange Notes or PIK Notes (or increases in
the
principal amount of any Toggle Notes) as a result of a PIK Payment, for an
aggregate principal amount specified in such Issuer Authentication Order
for
such Additional Notes, Exchange Notes or PIK Notes (or increases in the
principal amount of such Toggle Notes).
On
any
Interest Payment Date on which the Issuer pays PIK Interest with respect
to a
Global Note, the Trustee shall increase the principal amount of such Global
Note
by an amount equal to the interest payable, rounded up to the nearest $1,000,
for the relevant interest period on the principal amount of such Global Note
as
of the relevant Record Date, for such Interest Payment Date, to the credit
of
the Holders on such Record Date, prorata in
accordance with their interests, and an adjustment shall be made on the books
and records of the Trustee (if it is then the Custodian for such Global Note)
with respect to such Global Note, by the Trustee or the Custodian, to reflect
such increase. On any Interest Payment Date on which the Issuer pays PIK
Interest by issuing definitive PIK Notes, the principal amount of any such
PIK
Notes issued to any Holder, for the relevant interest period as of the relevant
Record Date for such Interest Payment Date, shall be rounded up to the nearest
$1.00.
The
Trustee may appoint an authenticating agent acceptable to the Issuer to
authenticate Notes. An authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to
deal with Holders or an Affiliate of the Issuer.”
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2.2.5
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The
following paragraph will be added to Section
2.06(g):
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“(iv) Tax
Legend. The Global Note with respect to the Series B Cash Pay
Notes and the Toggle Notes and each Definitive Note with respect to the Series
B
Cash Pay Notes and the Toggle Notes shall bear the legend in substantially
the
following form:
“THIS
NOTE IS ISSUED WITH ORIGINAL ISSUE
DISCOUNT FOR PURPOSES OF
SECTION 1271 ET SEQ. OF THE INTERNAL REVENUE CODE. A HOLDER MAY
OBTAIN THE ISSUE PRICE, AMOUNT OF ORIGINAL ISSUE DISCOUNT, CLOSING DATE AND
YIELD TO MATURITY FOR SUCH NOTE BY SUBMITTING A REQUEST FOR SUCH INFORMATION
TO
THE ISSUER AT THE FOLLOWING ADDRESS:
TEXAS COMPETITIVE ELECTRIC
HOLDINGS COMPANY LLC, ENERGY PLAZA, 0000 XXXXX XXXXXX, XXXXXX, XXXXX 00000-0000,
ATTENTION: GENERAL COUNSEL.”
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2.3
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Amendments
to Article 3.
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7
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2.3.1
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Section
3.01 shall be deleted and replaced with the
following:
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“If
the
Issuer elects to redeem the Existing Cash Pay Notes, the Series B Cash Pay
Notes
or the Toggle Notes, as the case may be, pursuant to Section 3.07 hereof,
it shall furnish to the Trustee, at least 2 Business Days before notice of
redemption is required to be mailed or caused to be mailed to Holders pursuant
to Section 3.03 hereof but not more than 60 days before a Redemption Date,
an Officer’s Certificate setting forth (i) the paragraph or subparagraph of
such Notes and/or Section of this Indenture pursuant to which the
redemption shall occur, (ii) the Redemption Date, (iii) the principal
amount of such Cash Pay Notes or Toggle Notes, as the case may be, to be
redeemed and (iv) the redemption price.”
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2.3.2
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The
first paragraph of paragraph (a) of Section 3.02 shall be deleted
and
replaced with the following:
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“If
less
than all of the Existing Cash Pay Notes, the Series B Cash Pay Notes or the
Toggle Notes, as the case may be, are to be redeemed or purchased in an offer
to
purchase at any time, the Trustee shall select the Notes of such series to
be
redeemed or purchased (a) if the Notes are listed on any national
securities exchange, in compliance with the requirements of the principal
national securities exchange on which the Notes are listed, (b) on a
prorata basis to the extent practicable or (c) by lot or such
similar method in accordance with the procedures of DTC.”
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2.3.3
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Paragraph
(i) of Section 3.03 shall be deleted and replaced with the
following:
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“(i) if
in connection with a redemption of either series of Cash Pay Notes pursuant
to
Section 3.07(b) hereof or a redemption of Toggle Notes pursuant to Section
3.07(f), any condition to such redemption.”
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2.3.4
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Section
3.04 shall be deleted and replaced with the
following:
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“Once
notice of redemption is mailed in accordance with Section 3.03 hereof,
Notes called for redemption become irrevocably due and payable on the Redemption
Date at the redemption price (except as provided for in Section 3.07(b), in
the case of either series of Cash Pay Notes, and Section 3.07(f), in the
case of
Toggle Notes). The notice, if mailed in a manner herein provided,
shall be conclusively presumed to have been given, whether or not the Holder
receives such notice. In any case, failure to give such notice by
mail or any defect in the notice to the Holder of any Note designated for
redemption in whole or in part shall not affect the validity of the proceedings
for the redemption of any other Note. Subject to Section 3.05
hereof, on and after the Redemption Date, interest ceases to accrue on Notes
or
portions of Notes called for redemption.”
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2.3.5
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Section
3.06 shall be deleted and replaced with the
following:
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“Upon
surrender of a Note that is redeemed or purchased in part, the Issuer shall
issue and, upon receipt of an Issuer Authentication Order, the Trustee shall
authenticate for the Holder at the expense of the Issuer a new Note of the
same
series equal in principal amount to the unredeemed or unpurchased portion
of the
Note surrendered representing the same indebtedness to the extent not redeemed
or purchased; provided that each new Existing Cash Pay Note, Series B
Cash Pay Note and Toggle Note (other than PIK Notes) will be in a principal
amount of $2,000 or an integral multiple of $1,000 in excess
thereof. It is understood that, notwithstanding anything in this
Indenture to the contrary, only an Issuer Authentication Order and not an
Opinion of Counsel or Officer’s Certificate is required for the Trustee to
authenticate such new Note.”
|
|
2.3.6
|
Section
3.07 shall be deleted and replaced with the
following:
|
8
(a) At
any time prior to November 1, 2011, the Issuer may redeem all or a part of
each series of Cash Pay Notes at a redemption price equal to 100% of the
principal amount of the Cash Pay Notes redeemed plus the Applicable
Premium as of, and accrued and unpaid interest and Additional Interest, if
any,
to, the date of redemption (the “Redemption Date”), subject to the right
of Holders of such Cash Pay Notes of record on the relevant Record Date to
receive interest due on the relevant Interest Payment Date.
(b) Prior
to November 1, 2010, the Issuer may, at its option, on one or more occasions,
redeem up to 35% of the aggregate principal amount of each series of Cash
Pay
Notes at a redemption price equal to 110.250% of the aggregate principal
amount
thereof, plus accrued and unpaid interest and Additional Interest, if any,
to
the Redemption Date, subject to the right of Holders of such Cash Pay Notes
of
record on the relevant Record Date to receive interest due on the relevant
Interest Payment Date, with the net cash proceeds of one or more Equity
Offerings; provided that at least 50% of the sum of the original
aggregate principal amount of such series of Cash Pay Notes and any Additional
Cash Pay Notes of such series issued under this Indenture after the Issue
Date
remains outstanding immediately after the occurrence of each such redemption;
providedfurther that each such redemption occurs within 90 days of
the date of closing of each such Equity Offering. Notice of any
redemption upon any Equity Offerings may be given prior to the redemption
thereof, and any such redemption or notice may, at the Issuer’s option and
discretion, be subject to one or more conditions precedent, including, but
not
limited to, completion of the related Equity Offering.
(c) Except
pursuant to clause (a) and (b) of this Section 3.07, the Cash Pay
Notes will not be redeemable at the Issuer’s option prior to November 1,
2011.
(d) From
and after November 11, 2011, the Issuer may redeem each series of Cash Pay
Notes, in whole or in part at the redemption prices (expressed as percentages
of
principal amount of the Cash Pay Notes to be redeemed) set forth below,
plus accrued and unpaid interest and Additional Interest, if any, to
the
Redemption Date, subject to the right of Holders of such Cash Pay Notes of
record on the relevant Record Date to receive interest due on the relevant
Interest Payment Date if redeemed during the twelve-month period beginning
on
November 1 of each of the years indicated below:
|
Year
|
Percentage
|
|||
|
2011
|
105.125 | % | ||
|
2012
|
102.563 | % | ||
|
2013
and
thereafter
|
100.000 | % | ||
(e) At
any time prior to November 1, 2012, the Issuer may redeem all or a part of
the
Toggle Notes at a redemption price equal to 100% of the principal amount
of the
Toggle Notes redeemed plus the Applicable Premium as of, and accrued and
unpaid
interest and Additional Interest, if any, to the Redemption Date, subject
to the
rights of Holders of Toggle Notes on the relevant Record Date to receive
interest due on the relevant Interest Payment Date.
(f) Prior
to November 1, 2010, the Issuer may, at its option, on one or more occasions
redeem up to 35% of the aggregate principal amount of Toggle Notes at a
redemption price equal to 110.500% of the aggregate principal amount thereof,
plus accrued and unpaid interest thereon and Additional Interest, if any,
to the
applicable Redemption
9
Date,
subject to the right of Holders of Toggle Notes of record on the relevant
Record
Date to receive interest due on the relevant Interest Payment Date, with
the net
cash proceeds of one or more Equity Offerings; provided that at least
50% of the sum of the original aggregate principal amount of Initial Toggle
Notes issued under the Indenture and the original principal amount of any
Additional Toggle Notes issued under the Indenture remains outstanding
immediately after the occurrence of each such redemption; provided
further that each such redemption occurs within 90 days of the date of
closing of each such Equity Offering.
(g) Except
pursuant to clause (e) and (f) of this Section 3.07, the Issuer will
not be entitled to redeem Toggle Notes at its option prior to November 1,
2012.
(h) On
and after November 1, 2012, the Issuer may redeem the Toggle Notes, in whole
or
in part at the redemption prices (expressed as percentages of principal amount
of the Toggle Notes to be redeemed) set forth below, plus accrued and unpaid
interest thereon and Additional Interest, if any, to the applicable Redemption
Date, subject to the right of Holders of Toggle Notes of record on the relevant
Record Date to receive interest due on the relevant Interest Payment Date,
if
redeemed during the twelve-month period beginning on November 1 of each of
the
years indicated below:
|
Year
|
Percentage
|
|||
|
2012
|
105.250 | % | ||
|
2013
|
103.500 | % | ||
|
2014
|
101.750 | % | ||
|
2015
and
thereafter
|
100.000 | % | ||
(i) Any
redemption pursuant to this Section 3.07 shall be made pursuant to the
provisions of Sections 3.01 through 3.06 hereof.”
|
|
2.3.7
|
Section
3.08 shall be deleted and replaced with the
following:
|
“Except
as set forth in Section 4.01 hereof with respect to the Toggle Notes, the
Issuer
will not be required to make any mandatory redemption or sinking fund payments
with respect to the Notes.”
|
|
2.4
|
Amendments
to Article 4.
|
|
|
2.4.1
|
Section
4.01 shall be deleted and replaced with the
following:
|
“The
Issuer shall pay or cause to be paid the principal of, premium, if any,
Additional Interest, if any, and interest on the Notes on the dates and in
the
manner provided in the Notes. Principal, premium, if any, Additional
Interest, if any, and interest, including Cash Interest, shall be considered
paid on the date due if the Paying Agent, if other than the Issuer or a
Subsidiary, holds as of noon Eastern Time on the due date money deposited
by the
Issuer in immediately available funds and designated for and sufficient to
pay
all principal, premium, if any, and interest then due. PIK Interest shall
be
considered paid on the date due if the Trustee is directed on or prior to
such
date to issue PIK Notes or increase the principal amount of the applicable
Toggle Notes, in each case in an amount equal to the amount of the applicable
PIK Interest.
The
Issuer shall pay all Additional Interest, if any, in the same manner on the
dates and in the amounts set forth in the applicable Registration Rights
Agreement.
10
The
Issuer shall pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue principal at the rate equal to the then
applicable interest rate on the Notes to the extent lawful; it shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Additional Interest,
if
any (without regard to any applicable grace period) at the same rate to the
extent lawful.
At
the
end of any “accrual period” (as defined in Section 1272(a)(5) of the Code)
ending after the fifth anniversary of the date of the First Supplemental
Indenture (each, an “Optional Interest Repayment Date”), the Issuer may pay in
cash, without duplication, all accrued and unpaid interest, if any, and all
accrued but unpaid “original issue discount” (as defined in Section 1273(a)(1)
of the Code) on the Toggle Notes then outstanding up to, in the aggregate,
the
Optional Interest Repayment Amount (each such redemption, an “Optional Interest
Repayment”). The “Optional Interest Repayment Amount” shall mean, as of each
Optional Interest Repayment Date, the excess, if any, of (a) the aggregate
amount of accrued and unpaid interest and all accrued and unpaid “original issue
discount” (as defined in Section 1273(a)(1) of the Code) with respect to the
Toggle Notes, over (b) an amount equal to the product of (i) the “issue price”
(as defined in Sections 1273(b) and 1274(a) of the Code) of the Toggle Notes
multiplied by (ii) the “yield to maturity” (as defined in the Treasury
Regulation Section 1.1272-1(b)(1)(i)) of the Toggle Notes, minus (c)
$50,000,000.
On
May 1,
2016, the Issuer will repay in full in U.S. Dollars an amount of Toggle Notes
equal to $50,000,000, which shall be made on a pro rata basis based on the
aggregate principal amount of Toggle Notes outstanding. Prepayments
of Toggle Notes made pursuant to the preceding sentence shall be made on
a
pro rata basis based on the aggregate principal amount of Toggle Notes
outstanding.”
|
|
2.5
|
Amendments
to Article 9.
|
|
|
2.5.1
|
Clause
(11) of Section 9.01 shall be deleted and replaced with the
following:
|
“(11) to
conform the text of this Indenture, the Guarantees or the Notes to anyprovision
of the “Description of Notes” section of the applicable Offering Memorandum to
theextent that such provision in the “Description of Notes” is intended to be a
verbatim recitation of a provision of this Indenture, the Guarantee or the
Notes;”
|
|
2.5.2
|
The
following clause (14) shall be added to the first paragraph of
Section
9.01:
|
“(14) in
the event that PIK Notes are issued in certificated form, to make appropriate
amendments to this Indenture to reflect an appropriate minimum denomination
of
certificated PIK Notes and establish minimum redemption amounts for certificated
PIK Notes.”
|
|
2.6
|
Amendments
to Exhibits.
|
|
|
2.6.1
|
Exhibit
A-1 of the Existing Indenture shall be deleted and replaced with
Exhibit
A-1 to this First Supplemental
Indenture.
|
|
|
2.6.2
|
Exhibits
A-2 and A-3 to this First Supplemental Indenture shall be added
to the
Existing Indenture.
|
|
|
2.6.3
|
Exhibits
B, C and D of the Existing Indenture shall be deleted and replaced
with
Exhibits B, C and D to this First Supplemental
Indenture.
|
|
2.7
|
Other
Amendments
|
11
All
references in the Existing Indenture and the Initial Existing Cash Pay Notes
to
“Texas Competitive Electric Holdings Company LLC, a Texas limited liability
company” and “TCEH Finance, Inc., a Texas corporation” are hereby deleted and
replaced with “Texas Competitive Electric Holdings Company LLC, a Delaware
limited liability company” and “TCEH Finance, Inc., a Delaware corporation,”
respectively.
|
Section
3.
|
RATIFICATION
OF EXISTING INDENTURE; FIRST SUPPLEMENTAL INDENTURE PART OF EXISTING
INDENTURE.
|
Except
as expressly amended hereby, the Existing Indenture is in all respects ratified
and confirmed and all the terms, conditions and provisions thereof shall
remain
in full force and effect. Upon the execution and delivery of this
First Supplemental Indenture by the Issuer, the Guarantors and the Trustee,
this
First Supplemental Indenture shall form a part of the Existing Indenture
for all
purposes, and the Issuer, the Guarantors, the Trustee and every Holder of
Notes
heretofore or hereafter authenticated and delivered shall be bound
hereby. Any and all references to the Existing Indenture, whether
within the Existing Indenture or in any notice, certificate or other instrument
or document, shall be deemed to include a reference to this First Supplemental
Indenture (whether or not made), unless the context shall otherwise
require.
|
Section
4.
|
NO
EXCHANGE OF EXISTING NOTES
REQUIRED.
|
The
execution of this First Supplemental Indenture shall not require the exchange
of
or modification to the certificates representing Notes existing prior to
the
date hereof.
|
Section
5.
|
GOVERNING
LAW.
|
THIS
FIRST SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
|
Section
6.
|
COUNTERPARTS.
|
The
parties may sign any number of copies of this First Supplemental
Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
|
Section
7.
|
EFFECT
OF HEADINGS.
|
The
Section headings herein are for convenience only and shall not affect the
construction hereof.
|
Section
8.
|
THE
TRUSTEE.
|
The
Trustee shall not be responsible in any manner whatsoever for or in respect
of
the validity or sufficiency of this First Supplemental Indenture or for or
in
respect of the recitals contained herein, all of which recitals are made
solely
by the Issuer.
|
Section
9.
|
BENEFITS
OF FIRST SUPPLEMENTAL INDENTURE.
|
Nothing
in this First Supplemental Indenture, the Existing Indenture or the Notes
express or implied, shall give to any Person, other than the parties hereto
and
thereto and their successors hereunder and thereunder, any Paying Agent,
any
Registrar and the Holders any benefit of any legal or equitable right, remedy
or
claim under the Existing Indenture, this First Supplemental Indenture or
the
Notes.
12
|
Section
10.
|
SUCCESSORS.
|
All
agreements of the Issuer in this First Supplemental Indenture shall bind
its
Successors. All agreements of the Trustee in this First Supplemental
Indenture shall bind its successors.
13
IN
WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed, all as of the date first above
written.
|
TEXAS
COMPETITIVE ELECTRIC HOLDINGS COMPANY LLC
|
|
|
By:
|
|
|
Name: Xxxxxxx
X. Xxxxxx
|
|
|
Title: Treasurer
and Assistant Secretary
|
|
SIGNATURE
PAGE TO SUPPLEMENTAL INDENTURE
|
TCEH
FINANCE, INC.
|
|
|
By:
|
|
|
Name: Xxxxxxxx
X. Xxxxx
|
|
|
Title: President
and Treasurer
|
SIGNATURE
PAGE TO SUPPLEMENTAL INDENTURE
|
ENERGY
FUTURE COMPETITIVE HOLDINGS COMPANY
|
|
|
By:
|
|
|
Name: Xxxxxxx
X. Xxxxxx
|
|
|
Title: Treasurer
|
|
SIGNATURE
PAGE TO SUPPLEMENTAL INDENTURE
|
BIG
XXXXX 3 POWER COMPANY LLC
|
|
|
BIG
XXXXX LIGNITE COMPANY LLC
|
|
|
BIG
XXXXX POWER COMPANY LLC
|
|
|
COLLIN
POWER COMPANY LLC
|
|
|
XXXXXXXXX
POWER COMPANY LLC
|
|
|
GENERATION
MT COMPANY LLC
|
|
|
GENERATION
SVC COMPANY
|
|
|
LAKE
CREEK 3 POWER COMPANY LLC
|
|
|
LUMINANT
BIG XXXXX MINING COMPANY LLC
|
|
|
LUMINANT
ENERGY COMPANY LLC
|
|
|
LUMINANT
ENERGY SERVICES COMPANY
|
|
|
LUMINANT
GENERATION COMPANY LLC
|
|
|
LUMINANT
HOLDING COMPANY LLC
|
|
|
LUMINANT
MINERAL DEVELOPMENT COMPANY LLC
|
|
|
LUMINANT
MINING COMPANY LLC
|
|
|
LUMINANT
MINING SERVICES COMPANY
|
|
|
LUMINANT
POWER SERVICES COMPANY
|
|
|
LUMINANT
RENEWABLES COMPANY LLC
|
|
|
XXXXXX
LAKE 4 POWER COMPANY LLC
|
|
|
MONTICELLO
4 POWER COMPANY LLC
|
|
|
XXXXXX
CREEK 7 POWER COMPANY LLC
|
|
|
NCA
RESOURCES DEVELOPMENT COMPANY LLC
|
|
|
OAK
GROVE MANAGEMENT COMPANY LLC
|
|
|
OAK
GROVE MINING COMPANY LLC
|
|
|
OAK
GROVE POWER COMPANY LLC
|
|
|
SANDOW
POWER COMPANY LLC
|
|
|
TRADINGHOUSE
3 & 4 POWER COMPANY LLC
|
|
|
TRADINGHOUSE
POWER COMPANY LLC
|
|
|
TXU
CHILLED WATER SOLUTIONS COMPANY
|
|
|
TXU
ENERGY RETAIL COMPANY LLC
|
|
|
TXU
ENERGY RETAIL MANAGEMENT COMPANY LLC
|
|
|
TXU
ENERGY SOLUTIONS COMPANY LLC
|
|
|
TXU
ENERGY TRADING (CALIFORNIA) COMPANY
|
|
|
TXU
ET SERVICES COMPANY
|
|
|
TXU
RETAIL SERVICES COMPANY
|
|
|
TXU
SEM COMPANY
|
|
|
TXU
XXXXX COMPANY LLC
|
|
|
TXU
XXXXX ENERGY SERVICES COMPANY
|
|
|
VALLEY
NG POWER COMPANY LLC
|
|
|
VALLEY
POWER COMPANY LLC
|
|
|
WICHITA/VICTORY
AVE., LLC
|
|
|
By:
|
|
|
Name: Xxxxxxx
X. Xxxxxx
|
|
|
Title: Authorized
Representative
|
|
SIGNATURE
PAGE TO SUPPLEMENTAL INDENTURE
|
THE
BANK OF NEW YORK, as Trustee
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
SIGNATURE
PAGE TO SUPPLEMENTAL INDENTURE
EXHIBIT A-1
[Face
of
Existing Cash Pay Note]
[Insert
the Global Note Legend, if applicable pursuant to the provisions of the
Indenture]
[Insert
the Private Placement Legend, if applicable pursuant to the provisions of
the
Indenture]
[Insert
the Regulation S Temporary Global Note Legend, if applicable pursuant to
the provisions of the Indenture]
CUSIP
[ ]
ISIN
[ ]1
[RULE 144A]
[REGULATION S] GLOBAL NOTE
10.25%
Senior Notes due 2015
No.___
[$______________]
TEXAS
COMPETITIVE ELECTRIC HOLDINGS COMPANY LLC
TCEH
FINANCE, INC.
promise
to pay to CEDE & CO. or registered assigns, the principal sum [set forth on
the Schedule of Exchanges of Interests in the Global Note attached hereto]
[of
________________________ United States Dollars] on November 1,
2015.
Interest
Payment Dates: May 1 and November 1
Record
Dates: April 15 and October 15
[SIGNATURE
PAGE FOLLOWS]
|
1
|
Rule
144A Note CUSIP:
|
882330
AA1
|
|
Rule
144A Note ISIN:
|
US882330
AA18
|
|
|
Regulation
S Note CUSIP:
|
U88235
AC7
|
|
|
Regulation
S Note ISIN:
|
USU88235
AC76
|
A-1-1
IN
WITNESS HEREOF, the Issuer has caused this instrument to be duly
executed.
Dated: _____________,
20__
|
TEXAS
COMPETITIVE ELECTRIC HOLDINGS COMPANY LLC
|
|
By:
|
|
Name:
|
|
Title:
|
SIGNATURE
PAGE TO GLOBAL [144A] [REGULATION S] CASH-PAY NOTE
|
TCEH
FINANCE, INC.
|
|
By:
|
|
Name:
|
|
Title:
|
SIGNATURE
PAGE TO GLOBAL [144A] [REGULATION S] CASH-PAY NOTE
This
is
one of the Existing Cash Pay Notes referred to in the within-mentioned
Indenture:
|
THE
BANK OF NEW YORK, as Trustee
|
|
By:
|
|
Authorized
Signatory
|
SIGNATURE
PAGE TO GLOBAL [144A] [REGULATION S] CASH-PAY NOTE
[Back
of
Existing Cash Pay Note]
Capitalized
terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.
(1) Interest. Texas
Competitive Electric Holding Company LLC, a Delaware limited liability company
and TCEH Finance, Inc., a Delaware corporation (collectively, the
“Issuers”), promise to pay interest on the principal amount of this
Existing Cash Pay Note at 10.25% perannum from October 31, 2007
until maturity and shall pay Additional Interest, if any, payable pursuant
to
the Registration Rights Agreement referred to below. The Issuer will
pay interest and Additional Interest, if any, semi-annually in arrears on
May 1 and November 1 of each year, or if any such day is not a Business
Day, on the next succeeding Business Day (each, an “Interest Payment
Date”) without interest accruing on the amount then so payable from such day
that is not a Business Day until such Business Day. Interest on the
Existing Cash Pay Notes will accrue from the most recent date to which interest
has been paid or, if no interest has been paid, from the date of
issuance. The Issuer will pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal
and
premium, if any, from time to time on demand at the interest rate on the
Existing Cash Pay Notes; it shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue installments of interest
and Additional Interest, if any, (without regard to any applicable grace
periods) from time to time on demand at the interest rate on the Existing
Cash
Pay Notes. Interest will be computed on the basis of a 360-day year
comprised of twelve 30-day months.
(2) Method
of Payment. The Issuer will pay interest on the Existing Cash
Pay Notes and Additional Interest, if any, to the Persons who are registered
Holders of Existing Cash Pay Notes at the close of business on the April 15
and October 15 (whether or not a Business Day), next preceding the Interest
Payment Date, even if such Existing Cash Pay Notes are canceled after such
Record Date and on or before such Interest Payment Date, except as provided
in
Section 2.12 of the Indenture with respect to defaulted
interest. Payment of interest and Additional Interest, if any, may be
made by check mailed to the Holders at their addresses set forth in the register
of Holders; provided that payment by wire transfer of immediately
available funds will be required with respect to principal of and interest,
premium and Additional Interest, if any, on, all Global Notes and all other
Existing Cash Pay Notes the Holders of which shall have provided wire transfer
instructions to the Issuer or the Paying Agent. Such payment shall be
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
(3) Paying
Agent and Registrar. Initially, The Bank of New York, the
Trustee under the Indenture, will act as Paying Agent and
Registrar. The Issuer may change any Paying Agent or Registrar
without notice to the Holders. The Issuer or any of its Subsidiaries
may act in any such capacity.
(4) Indenture. The
Issuer issued the Existing Cash Pay Notes under an Indenture, dated as of
October 31, 2007 (the “Existing Indenture”), among the Issuer, the
Guarantors named therein and the Trustee. The Existing Indenture was
supplemented by the First Supplemental Indenture dated as of December 6,
2007
among the Issuer, the Guarantors named therein and the Trustee (the Existing
Indenture as supplemented, the “Indenture”). This Existing Cash Pay
Note is one of a duly authorized issue of notes of the Issuer designated
as its
10.25% Senior Notes due 2015. The Issuer shall be entitled to issue
Additional Existing Cash Pay Notes pursuant to Sections 2.01 and 4.09 of
the
Indenture. The Existing Cash Pay Notes (including any Exchange Notes
issued in exchange therefor), the Series B Cash Pay Notes (including any
Exchange Notes issued in exchange therefor) and the Toggle Notes (including
any
Exchange Notes issued in exchange therefor) (collectively referred to herein
as
the “Notes”) are separate series of Senior Notes, but shall be treated as
a single class of securities under the Indenture, unless otherwise specified
in
the Indenture. The terms of the Existing Cash Pay Notes include those
A-1-5
stated
in
the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (the “Trust Indenture
Act”). The Existing Cash Pay Notes are subject to all such terms,
and Holders are referred to the Indenture and such Act for a statement of
such
terms. To the extent any provision of this Existing Cash Pay Note
conflicts with the express provisions of the Indenture, the provisions of
the
Indenture shall govern and be controlling.
(5) Optional
Redemption.
(a) Except
as set forth below, the Issuer will not be entitled to redeem Existing Cash
Pay
Notes at its option prior to November 1, 2011.
(b) At
any time prior to November 1, 2011, the Issuer may redeem all or a part of
the
Existing Cash Pay Notes, at a redemption price equal to 100% of the principal
amount of the Existing Cash Pay Notes redeemed plus the Applicable
Premium as of, and accrued and unpaid interest, and Additional Interest,
if any,
to, the date of redemption (the “Redemption Date”), subject to the right
of Holders of Existing Cash Pay Notes of record on the relevant Record Date
to
receive interest due on the relevant Interest Payment Date.
(c) From
and after November 1, 2011, the Issuer may redeem the Existing Cash Pay Notes,
in whole or in part, at the redemption prices (expressed as percentages of
the
principal amount of the Existing Cash Pay Notes to be redeemed) set forth
below,
plus accrued and unpaid interest and Additional Interest, if any, to
the
applicable Redemption Date, subject to the right of Holders of Existing Cash
Pay
Notes of record on the relevant Record Date to receive interest due on the
relevant Interest Payment Date if redeemed during the twelve-month period
beginning on November 1 of each of the years indicated below:
|
Year
|
Percentage
|
|||
|
2011
|
105.125 | % | ||
|
2012
|
102.563 | % | ||
|
2013
and
thereafter
|
100.000 | % | ||
(d) Prior
to November 1, 2010, the Issuer may, at its option, on one or more occasions,
redeem up to 35% of the aggregate principal amount of the Existing Cash Pay
Notes at a redemption price equal to 110.250% of the aggregate principal
amount
thereof, plus accrued and unpaid interest and Additional Interest, if
any, to the Redemption Date, subject to the right of Holders of Existing Cash
Pay Notes of record on the relevant Record Date to receive interest due on
the
relevant Interest Payment Date, with the net cash proceeds of one or more
Equity
Offerings; provided that at least 50% of the sum of the original
aggregate principal amount of Existing Cash Pay Notes and any Additional
Existing Cash Pay Notes issued under the Indenture after the Issue Date remains
outstanding immediately after the occurrence of each such redemption;
providedfurther that each such redemption occurs within 90 days of
the date of closing of each such Equity Offering. Notice of any
redemption upon any Equity Offerings may be given prior to the redemption
thereof, and any such redemption or notice may, at the Issuer’s discretion, be
subject to one or more conditions precedent, including, but not limited to,
completion of the related Equity Offering.
(e) If
the Issuer redeems less than all of the outstanding Existing Cash Pay Notes,
the
Trustee shall select the Existing Cash Pay Notes to be redeemed in the manner
described under Section 3.02 of the Indenture.
(f) Any
redemption pursuant to this paragraph 5 shall be made pursuant to the provisions
of Sections 3.01 through 3.06 of the Indenture.
A-1-6
(6) Mandatory
Redemption. The Issuer shall not be required to make mandatory
redemption or sinking fund payments with respect to the Existing Cash Pay
Notes.
(7) Notice
of Redemption. Subject to Section 3.03 of the Indenture,
notice of redemption will be mailed by first-class mail at least 30 days
but not
more than 60 days before the Redemption Date (except that redemption notices
may
be mailed more than 60 days prior to a Redemption Date if the notice is issued
in connection with Article 8 or Article 11 of the Indenture) to each
Holder whose Existing Cash Pay Notes are to be redeemed at its registered
address or otherwise in accordance with the procedures of
DTC. Existing Cash Pay Notes in denominations larger than $2,000 may
be redeemed in part but only in whole multiples of $1,000 in excess thereof,
unless all of the Existing Cash Pay Notes held by a Holder are to be
redeemed. On and after the Redemption Date interest ceases to accrue
on Existing Cash Pay Notes or portions thereof called for
redemption.
(8) Offers
to Repurchase.
(a) If
a Change of Control occurs, the Issuer shall make an offer (a “Change of
Control Offer”) to each Holder to purchase all or any part (equal to $2,000
or an integral multiple of $1,000 in excess thereof) of each Holder’s Existing
Cash Pay Notes at a purchase price equal to 101% of the aggregate principal
amount thereof plus accrued and unpaid interest and Additional Interest,
if any, to the date of purchase (the “Change of Control Payment”),
subject to the right of Holders of Existing Cash Pay Notes of record on the
relevant Record Date to receive interest due on the relevant Interest Payment
Date. The Change of Control Offer shall be made in accordance with
Section 4.14 of the Indenture.
(b) If
the Issuer or any of its Restricted Subsidiaries consummates an Asset Sale,
within ten Business Days of each date that the aggregate amount of Excess
Proceeds exceeds $200.0 million, the Issuer shall make an offer to all Holders
of the Notes, and if required or permitted by the terms of any Senior
Indebtedness, to the holders of such Senior Indebtedness (an “Asset Sale
Offer”), to purchase the maximum aggregate principal amount of the Notes and
such Senior Indebtedness that is a minimum of $2,000 or an integral multiple
of
$1,000 in excess thereof that may be purchased out of the Excess Proceeds
at an
offer price in cash in an amount equal to 100% of the principal amount thereof,
plus accrued and unpaid interest and Additional Interest, if any, to
the
date fixed for the closing of such offer, in accordance with the procedures
set
forth in the Indenture. To the extent that the aggregate amount of
Notes and such Senior Indebtedness tendered pursuant to an Asset Sale Offer
is
less than the Excess Proceeds, the Issuer may use any remaining Excess Proceeds
to make Restricted Payments to the extent permitted by clause (16) of
Section 4.07(b) of the Indenture. If the aggregate principal
amount of Notes or such Senior Indebtedness surrendered by such holders thereof
exceeds the amount of Excess Proceeds, the Trustee shall select the Notes
and
such Senior Indebtedness to be purchased on a pro rata basis based on
the accreted value or principal amount of the Notes or such Senior Indebtedness
tendered.
(c) The
Issuer may, at its option, make an Asset Sale Offer using proceeds from any
Asset Sale at any time after consummation of such Asset Sale; provided
that such Asset Sale Offer shall be in an aggregate amount of not less than
$25.0 million. Upon consummation of such Asset Sale Offer, any Net
Proceeds not required to be used to purchase Notes shall not be deemed Excess
Proceeds.
(9) Denominations,
Transfer, Exchange. The Existing Cash Pay Notes are in
registered form without coupons in denominations of $2,000 and integral
multiples of $1,000 in excess thereof. The transfer of Existing Cash
Pay Notes may be registered and Existing Cash Pay Notes may be exchanged
as
provided in the Indenture. The Registrar and the Trustee may require
a Holder, among other things, to furnish appropriate endorsements and transfer
documents and the Issuer may require a Holder to pay any taxes and fees required
by law or permitted by the Indenture. The Issuer need not exchange or
register the transfer of any Existing Cash Pay Notes or portion of Existing
Cash
Pay Notes selected for redemption,
A-1-7
except
for the unredeemed portion of any Existing Cash Pay Notes being redeemed
in
part. Also, the Issuer need not exchange or register the transfer of
any Existing Cash Pay Notes for a period of 15 days before a selection of
Existing Cash Pay Notes to be redeemed.
(10) Persons
Deemed Owners. The registered Holder of an Existing Cash Pay
Note may be treated as its owner for all purposes.
(11) Amendment,
Supplement and Waiver. The Indenture, the Guarantees or the
Existing Cash Pay Notes may be amended or supplemented as provided in the
Indenture.
(12) Defaults
and Remedies. The Events of Default relating to the Notes are
defined in Section 6.01 of the Indenture. If any Event of
Default occurs and is continuing, the Trustee or the Required Holders of
at
least 30% in aggregate principal amount of the Required Debt may declare
the
principal, premium, if any, interest and any other monetary obligations on
all
the then outstanding Notes to be due and payable
immediately. Notwithstanding the foregoing, in the case of an Event
of Default arising from certain events of bankruptcy or insolvency, all
outstanding Notes will become due and payable immediately without further
action
or notice. Holders may not enforce the Indenture, the Notes or the
Guarantees except as provided in the Indenture. Subject to certain
limitations, Required Holders of a majority in aggregate principal amount
of the
Required Debt may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Holders of the Notes notice of
any continuing Default (except a Default relating to the payment of principal,
premium, if any, Additional Interest, if any, or interest) if it determines
that
withholding notice is in their interest. The Required Holders of a
majority in aggregate principal amount of the Required Debt by notice to
the
Trustee may on behalf of the Holders of all of the Notes waive any existing
Default or and its consequences under the Indenture except a continuing Default
in payment of the principal of, premium, if any, Additional Interest, if
any, or
interest on, any of the Notes held by a non-consenting Holder. The
Issuer and each Guarantor (to the extent that such Guarantor is so required
under the Trust Indenture Act) is required to deliver to the Trustee annually
a
statement regarding compliance with the Indenture, and the Issuer is required
within five (5) Business Days after becoming aware of any Default, to deliver
to
the Trustee a statement specifying such Default and what action the Issuer
proposes to take with respect thereto.
(13) Authentication. This
Existing Cash Pay Note shall not be entitled to any benefit under the Indenture
or be valid or obligatory for any purpose until authenticated by the manual
signature of the Trustee.
(14) Additional
Rights of Holders of Restricted Global Notes and Restricted Definitive
Notes. In addition to the rights provided to Holders of Existing
Cash Pay Notes under the Indenture, Holders of Restricted Global Notes and
Restricted Definitive Notes shall have all the rights set forth in the
Registration Rights Agreement relating to such Existing Cash Pay Notes,
including the right to receive Additional Interest, if any (as defined in
such
Registration Rights Agreement).
(15) GOVERNING
LAW. THE INDENTURE, THE EXISTING CASH PAY NOTES AND ANY
GUARANTEE WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE
STATE OF NEW YORK.
(16) CUSIP/ISIN
Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Issuer has caused
CUSIP/ISIN numbers to be printed on the Existing Cash Pay Notes and the Trustee
may use CUSIP/ISIN numbers in notices of redemption as a convenience to
Holders. No representation is made as to the accuracy of such numbers
either as printed on the Existing Cash Pay Notes or as contained in any notice
of redemption and reliance may be placed only on the other identification
numbers placed thereon.
A-1-8
The
Issuer will furnish to any Holder upon written request and without charge
a copy
of the Indenture and/or the Registration Rights Agreement relating to the
Existing Cash Pay Notes. Requests may be made to the Issuer at the
following address:
|
c/o
Texas Competitive Electric Holdings Company LLC
|
|
Energy
Plaza
|
|
0000
Xxxxx Xxxxxx
|
|
Xxxxxx,
Xxxxx 00000-0000
|
|
Facsimile
No.: (000) 000-0000
|
|
(000)
000-0000
|
|
c/o
TCEH Finance, Inc.
|
|
Energy
Plaza
|
|
0000
Xxxxx Xxxxxx
|
|
Xxxxxx,
Xxxxx 00000-0000
|
|
Facsimile
No.: (000) 000-0000
|
|
(000)
000-0000
|
A-1-9
ASSIGNMENT
FORM
To
assign this
Existing Cash Pay Note, fill in the form below:
|
(I)
or (we) assign and transfer this Existing Cash Pay Note
to:
|
|
|
(Insert
assignee’s legal name)
|
|
|
(Insert
assignee’s Soc. Sec. or tax I.D. no.)
|
|
|
(Print
or type assignee’s name, address and zip
code)
|
|
and
irrevocably appoint
________________________________________________________________ to transfer
this Existing Cash Pay Note on the books of the Issuer. The agent may
substitute another to act for him.
|
Date:
|
|||
|
Your
Signature
|
|||
|
(Sign
exactly as your name appears on the face of this Existing Cash
Pay
Note)
|
|||
|
Signature
Guarantee*: ___________
|
|||
|
*
|
Participant
in a recognized Signature Guarantee Medallion Program (or other
signature
guarantor acceptable to the
Trustee).
|
A-1-10
OPTION
OF HOLDER TO ELECT PURCHASE
If
you
want to elect to have this Existing Cash Pay Note purchased by the Issuer
pursuant to Section 4.10 or 4.14 of the Indenture, check the appropriate
box below:
o
Section 4.10 o
Section 4.14
|
|
|
If
you
want to elect to have only part of this Existing Cash Pay Note purchased
by the
Issuer pursuant to Section 4.10 or Section 4.14 of the Indenture,
state the amount you elect to have purchased:
|
$_______________
|
|||
|
Date: _____________________
|
|||
|
Your
Signature:
|
|
||
|
(Sign
exactly as your name appears on the face of this
Existing Cash
Pay Note)
|
|||
|
Tax
Identification No.:
|
|
||
|
Signature
Guarantee*:
|
|||
* Participant
in a recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to the Trustee).
A-1-11
SCHEDULE
OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE1
The
initial outstanding principal amount of this Global Note is $
___________________. The following exchanges of a part of this Global
Note for an interest in another Global Note or for a Definitive Note, or
exchanges of a part of another Global or Definitive Note for an interest
in this
Global Note, have been made:
|
Date
of Exchange
|
Amount
of decrease in Principal Amount
|
Amount
of increase
in
Principal
Amount
of this
Global
Note
|
Principal
Amount of this Global Note following each decrease or
increase
|
Signature
of authorized officer of Trustee or
Custodian
|
______________________
1 This
schedule should be included only if the Existing Cash Pay Note is issued
in
global form.
X-0-00
XXXXXXX X-0
[Face
of
Series B Cash Pay Note]
[Insert
the Global Note Legend, if applicable pursuant to the provisions of the
Indenture]
[Insert
the Private Placement Legend, if applicable pursuant to the provisions of
the
Indenture]
[Insert
the Regulation S Temporary Global Note Legend, if applicable pursuant to
the provisions of the Indenture]
[Insert
the Tax Legend, if applicable, pursuant to the provisions of the
Indenture]
CUSIP
[ ]
ISIN
[ ]1
[RULE 144A]
[REGULATION S] GLOBAL NOTE
10.25%
Senior Notes due 2015, Series B
No.___
[$______________]
TEXAS
COMPETITIVE ELECTRIC HOLDINGS COMPANY LLC
TCEH
FINANCE, INC.
promise
to pay to CEDE & CO. or registered assigns, the principal sum [set forth on
the Schedule of Exchanges of Interests in the Global Note attached hereto]
[of
________________________ United States Dollars] on November 1,
2015.
Interest
Payment Dates: May 1 and November 1
Record
Dates: April 15 and October 15
[SIGNATURE
PAGE FOLLOWS]
______________________________
A-2-1
IN
WITNESS HEREOF, the Issuer has caused this instrument to be duly
executed.
Dated: _____________,
20__
|
TEXAS
COMPETITIVE ELECTRIC HOLDINGS COMPANY LLC
|
|
By:
|
|
Name:
|
|
Title:
|
SIGNATURE
PAGE TO GLOBAL [144A] [REGULATION S] CASH-PAY NOTE
|
TCEH
FINANCE, INC.
|
|
By:
|
|
Name:
|
|
Title:
|
SIGNATURE
PAGE TO GLOBAL [144A] [REGULATION S] CASH-PAY NOTE
This
is
one of the Series B Cash Pay Notes referred to in the within-mentioned
Indenture:
|
THE
BANK OF NEW YORK, as Trustee
|
|
By:
|
|
Authorized
Signatory
|
SIGNATURE
PAGE TO GLOBAL [144A] [REGULATION S] CASH-PAY NOTE
[Back
of
Series B Cash Pay Note]
Capitalized
terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.
(1) Interest. Texas
Competitive Electric Holding Company LLC, a Delaware limited liability company
and TCEH Finance, Inc., a Delaware corporation (collectively, the
“Issuers”), promise to pay interest on the principal amount of this
Series B Cash Pay Note at 10.25% perannum from October 31, 2007
until maturity and shall pay Additional Interest, if any, payable pursuant
to
the Registration Rights Agreement referred to below. The Issuer will
pay interest and Additional Interest, if any, semi-annually in arrears on
May 1 and November 1 of each year, or if any such day is not a Business
Day, on the next succeeding Business Day (each, an “Interest Payment
Date”) without interest accruing on the amount then so payable from such day
that is not a Business Day until such Business Day. Interest on the
Series B Cash Pay Notes will accrue from the most recent date to which interest
has been paid or, if no interest has been paid, from October 31,
2007. The Issuer will pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue principal and premium,
if
any, from time to time on demand at the interest rate on the Series B Cash
Pay
Notes; it shall pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue installments of interest and Additional
Interest, if any, (without regard to any applicable grace periods) from time
to
time on demand at the interest rate on the Series B Cash Pay
Notes. Interest will be computed on the basis of a 360-day year
comprised of twelve 30-day months.
(2) Method
of Payment. The Issuer will pay interest on the Series B Cash
Pay Notes and Additional Interest, if any, to the Persons who are registered
Holders of Series B Cash Pay Notes at the close of business on the April 15
and October 15 (whether or not a Business Day), next preceding the Interest
Payment Date, even if such Series B Cash Pay Notes are canceled after such
Record Date and on or before such Interest Payment Date, except as provided
in
Section 2.12 of the Indenture with respect to defaulted
interest. Payment of interest and Additional Interest, if any, may be
made by check mailed to the Holders at their addresses set forth in the register
of Holders; provided that payment by wire transfer of immediately
available funds will be required with respect to principal of and interest,
premium and Additional Interest, if any, on, all Global Notes and all other
Series B Cash Pay Notes the Holders of which shall have provided wire transfer
instructions to the Issuer or the Paying Agent. Such payment shall be
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
(3) Paying
Agent and Registrar. Initially, The Bank of New York, the
Trustee under the Indenture, will act as Paying Agent and
Registrar. The Issuer may change any Paying Agent or Registrar
without notice to the Holders. The Issuer or any of its Subsidiaries
may act in any such capacity.
(4) Indenture. The
Issuer issued the Series B Cash Pay Notes under an Indenture, dated as of
October 31, 2007 (the “Existing Indenture”), among the Issuer, the
Guarantors named therein and the Trustee, as supplemented by the First
Supplemental Indenture dated as of December 6, 2007, among the Issuer, the
Guarantors named therein and the Trustee (the Existing Indenture as
supplemented, the “Indenture”). This Series B Cash Pay Note is
one of a duly authorized series of notes of the Issuer designated as its
10.25%
Senior Notes due 2015, Series B. The Issuer shall be entitled to
issue Additional Series B Cash Pay Notes pursuant to Sections 2.01 and 4.09
of
the Indenture. The Existing Cash Pay Notes (including any Exchange
Notes issued in exchange therefor), the Series B Cash Pay Notes (including
any
Exchange Notes issued in exchange therefor) and the Toggle Notes (including
any
Exchange Notes issued in exchange therefor) (collectively referred to herein
as
the “Notes”) are separate series of Senior Notes, but shall be treated as
a single class of securities under the Indenture, unless otherwise specified
in
the Indenture. The terms of the Series B Cash Pay Notes include those
stated in the
A-2-5
Indenture
and those made part of the Indenture by reference to the Trust Indenture
Act of
1939, as amended (the “Trust Indenture Act”). The Series B
Cash Pay Notes are subject to all such terms, and Holders are referred to
the
Indenture and such Act for a statement of such terms. To the extent
any provision of this Series B Cash Pay Note conflicts with the express
provisions of the Indenture, the provisions of the Indenture shall govern
and be
controlling.
(5) Optional
Redemption.
(a) Except
as set forth below, the Issuer will not be entitled to redeem Series B Cash
Pay
Notes at its option prior to November 1, 2011.
(b) At
any time prior to November 1, 2011, the Issuer may redeem all or a part of
the
Series B Cash Pay Notes, at a redemption price equal to 100% of the principal
amount of the Series B Cash Pay Notes redeemed plus the Applicable
Premium as of, and accrued and unpaid interest, and Additional Interest,
if any,
to, the date of redemption (the “Redemption Date”), subject to the right
of Holders of Series B Cash Pay Notes of record on the relevant Record Date
to
receive interest due on the relevant Interest Payment Date.
(c) From
and after November 1, 2011, the Issuer may redeem the Series B Cash Pay Notes,
in whole or in part, at the redemption prices (expressed as percentages of
the
principal amount of the Series B Cash Pay Notes to be redeemed) set forth
below,
plus accrued and unpaid interest and Additional Interest, if any, to
the
applicable Redemption Date, subject to the right of Holders of Series B Cash
Pay
Notes of record on the relevant Record Date to receive interest due on the
relevant Interest Payment Date if redeemed during the twelve-month period
beginning on November 1 of each of the years indicated below:
|
Year
|
Percentage
|
|||
|
2011
|
105.125 | % | ||
|
2012
|
102.563 | % | ||
|
2013
and
thereafter
|
100.000 | % | ||
(d) Prior
to November 1, 2010, the Issuer may, at its option, on one or more occasions,
redeem up to 35% of the aggregate principal amount of Series B Cash Pay Notes
at
a redemption price equal to 110.250% of the aggregate principal amount thereof,
plus accrued and unpaid interest and Additional Interest, if any, to
the
Redemption Date, subject to the right of Holders of Series B Cash Pay Notes
of
record on the relevant Record Date to receive interest due on the relevant
Interest Payment Date, with the net cash proceeds of one or more Equity
Offerings; provided that at least 50% of the sum of the original
aggregate principal amount of Series B Cash Pay Notes and any Additional
Series
B Cash Pay Notes issued under the Indenture after the Issue Date remains
outstanding immediately after the occurrence of each such redemption;
providedfurther that each such redemption occurs within 90 days of
the date of closing of each such Equity Offering. Notice of any
redemption upon any Equity Offerings may be given prior to the redemption
thereof, and any such redemption or notice may, at the Issuer’s discretion, be
subject to one or more conditions precedent, including, but not limited to,
completion of the related Equity Offering.
(e) If
the Issuer redeems less than all of the outstanding Series B Cash Pay Notes,
the
Trustee shall select the Series B Cash Pay Notes to be redeemed in the manner
described under Section 3.02 of the Indenture.
(f) Any
redemption pursuant to this paragraph 5 shall be made pursuant to the provisions
of Sections 3.01 through 3.06 of the Indenture.
A-2-6
(6) Mandatory
Redemption. The Issuer shall not be required to make mandatory
redemption or sinking fund payments with respect to the Series B Cash Pay
Notes.
(7) Notice
of Redemption. Subject to Section 3.03 of the Indenture,
notice of redemption will be mailed by first-class mail at least 30 days
but not
more than 60 days before the Redemption Date (except that redemption notices
may
be mailed more than 60 days prior to a Redemption Date if the notice is issued
in connection with Article 8 or Article 11 of the Indenture) to each
Holder whose Series B Cash Pay Notes are to be redeemed at its registered
address or otherwise in accordance with the procedures of DTC. Series
B Cash Pay Notes in denominations larger than $2,000 may be redeemed in part
but
only in whole multiples of $1,000 in excess thereof, unless all of the Series
B
Cash Pay Notes held by a Holder are to be redeemed. On and after the
Redemption Date interest ceases to accrue on Series B Cash Pay Notes or portions
thereof called for redemption.
(8) Offers
to Repurchase.
(a) If
a Change of Control occurs, the Issuer shall make an offer (a “Change of
Control Offer”) to each Holder to purchase all or any part (equal to $2,000
or an integral multiple of $1,000 in excess thereof) of each Holder’s Series B
Cash Pay Notes at a purchase price equal to 101% of the aggregate principal
amount thereof plus accrued and unpaid interest and Additional Interest,
if any, to the date of purchase (the “Change of Control Payment”),
subject to the right of Holders of Series B Cash Pay Notes of record on the
relevant Record Date to receive interest due on the relevant Interest Payment
Date. The Change of Control Offer shall be made in accordance with
Section 4.14 of the Indenture.
(b) If
the Issuer or any of its Restricted Subsidiaries consummates an Asset Sale,
within ten Business Days of each date that the aggregate amount of Excess
Proceeds exceeds $200.0 million, the Issuer shall make an offer to all Holders
of the Notes, and if required or permitted by the terms of any Senior
Indebtedness, to the holders of such Senior Indebtedness (an “Asset Sale
Offer”), to purchase the maximum aggregate principal amount of the Notes and
such Senior Indebtedness that is a minimum of $2,000 or an integral multiple
of
$1,000 in excess thereof that may be purchased out of the Excess Proceeds
at an
offer price in cash in an amount equal to 100% of the principal amount thereof,
plus accrued and unpaid interest and Additional Interest, if any, to
the
date fixed for the closing of such offer, in accordance with the procedures
set
forth in the Indenture. To the extent that the aggregate amount of
Notes and such Senior Indebtedness tendered pursuant to an Asset Sale Offer
is
less than the Excess Proceeds, the Issuer may use any remaining Excess Proceeds
to make Restricted Payments to the extent permitted by clause (16) of
Section 4.07(b) of the Indenture. If the aggregate principal
amount of Notes or such Senior Indebtedness surrendered by such holders thereof
exceeds the amount of Excess Proceeds, the Trustee shall select the Notes
and
such Senior Indebtedness to be purchased on a pro rata basis based on
the accreted value or principal amount of the Notes or such Senior Indebtedness
tendered.
(c) The
Issuer may, at its option, make an Asset Sale Offer using proceeds from any
Asset Sale at any time after consummation of such Asset Sale; provided
that such Asset Sale Offer shall be in an aggregate amount of not less than
$25.0 million. Upon consummation of such Asset Sale Offer, any Net
Proceeds not required to be used to purchase Notes shall not be deemed Excess
Proceeds.
(9) Denominations,
Transfer, Exchange. The Series B Cash Pay Notes are in
registered form without coupons in denominations of $2,000 and integral
multiples of $1,000 in excess thereof. The transfer of Series B Cash
Pay Notes may be registered and Series B Cash Pay Notes may be exchanged
as
provided in the Indenture. The Registrar and the Trustee may require
a Holder, among other things, to furnish appropriate endorsements and transfer
documents and the Issuer may require a Holder to pay any taxes and fees required
by law or permitted by the Indenture. The Issuer need not exchange or
register the transfer of any Series B Cash Pay Notes or portion of Series
B Cash
Pay Notes selected for redemption,
A-2-7
except
for the unredeemed portion of any Series B Cash Pay Notes being redeemed
in
part. Also, the Issuer need not exchange or register the transfer of
any Series B Cash Pay Notes for a period of 15 days before a selection of
Series
B Cash Pay Notes to be redeemed.
(10) Persons
Deemed Owners. The registered Holder of a Series B Cash Pay Note
may be treated as its owner for all purposes.
(11) Amendment,
Supplement and Waiver. The Indenture, the Guarantees or the
Series B Cash Pay Notes may be amended or supplemented as provided in the
Indenture.
(12) Defaults
and Remedies. The Events of Default relating to the Notes are
defined in Section 6.01 of the Indenture. If any Event of
Default occurs and is continuing, the Trustee or the Required Holders of
at
least 30% in aggregate principal amount of the Required Debt may declare
the
principal, premium, if any, interest and any other monetary obligations on
all
the then outstanding Notes to be due and payable
immediately. Notwithstanding the foregoing, in the case of an Event
of Default arising from certain events of bankruptcy or insolvency, all
outstanding Notes will become due and payable immediately without further
action
or notice. Holders may not enforce the Indenture, the Notes or the
Guarantees except as provided in the Indenture. Subject to certain
limitations, Required Holders of a majority in aggregate principal amount
of the
Required Debt may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Holders of the Notes notice of
any continuing Default (except a Default relating to the payment of principal,
premium, if any, Additional Interest, if any, or interest) if it determines
that
withholding notice is in their interest. The Required Holders of a
majority in aggregate principal amount of the Required Debt by notice to
the
Trustee may on behalf of the Holders of all of the Notes waive any existing
Default or and its consequences under the Indenture except a continuing Default
in payment of the principal of, premium, if any, Additional Interest, if
any, or
interest on, any of the Notes held by a non-consenting Holder. The
Issuer and each Guarantor (to the extent that such Guarantor is so required
under the Trust Indenture Act) is required to deliver to the Trustee annually
a
statement regarding compliance with the Indenture, and the Issuer is required
within five (5) Business Days after becoming aware of any Default, to deliver
to
the Trustee a statement specifying such Default and what action the Issuer
proposes to take with respect thereto.
(13) Authentication. This
Series B Cash Pay Note shall not be entitled to any benefit under the Indenture
or be valid or obligatory for any purpose until authenticated by the manual
signature of the Trustee.
(14) Additional
Rights of Holders of Restricted Global Notes and Restricted Definitive
Notes. In addition to the rights provided to Holders of Series B
Cash Pay Notes under the Indenture, Holders of Restricted Global Notes and
Restricted Definitive Notes shall have all the rights set forth in the
Registration Rights Agreement relating to such Series B Cash Pay Notes,
including the right to receive Additional Interest, if any (as defined in
such
Registration Rights Agreement).
(15) GOVERNING
LAW. THE INDENTURE, THE SERIES B CASH PAY NOTES AND ANY
GUARANTEE WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE
STATE OF NEW YORK.
(16) CUSIP/ISIN
Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Issuer has caused
CUSIP/ISIN numbers to be printed on the Series B Cash Pay Notes and the Trustee
may use CUSIP/ISIN numbers in notices of redemption as a convenience to
Holders. No representation is made as to the accuracy of such numbers
either as printed on the Series B Cash Pay Notes or as contained in any notice
of redemption and reliance may be placed only on the other identification
numbers placed thereon.
A-2-8
The
Issuer will furnish to any Holder upon written request and without charge
a copy
of the Indenture and/or the Registration Rights Agreement relating to the
Series
B Cash Pay Notes. Requests may be made to the Issuer at the following
address:
|
c/o
Texas Competitive Electric Holdings Company LLC
|
|
Energy
Plaza
|
|
0000
Xxxxx Xxxxxx
|
|
Xxxxxx,
Xxxxx 00000-0000
|
|
Facsimile
No.: (000) 000-0000
|
|
(000)
000-0000
|
|
c/o
TCEH Finance, Inc.
|
|
Energy
Plaza
|
|
0000
Xxxxx Xxxxxx
|
|
Xxxxxx,
Xxxxx 00000-0000
|
|
Facsimile
No.: (000) 000-0000
|
|
(000)
000-0000
|
A-2-9
ASSIGNMENT
FORM
To
assign
this Series B Cash Pay Note, fill in the form below:
|
(I)
or (we) assign and transfer this Series B Cash Pay Note
to:
|
|
|
(Insert
assignee’s legal name)
|
|
|
(Insert
assignee’s Soc. Sec. or tax I.D. no.)
|
|
|
(Print
or type assignee’s name, address and zip
code)
|
|
and
irrevocably appoint
________________________________________________________________ to transfer
this Series B Cash Pay Note on the books of the Issuer. The agent may
substitute another to act for him.
|
Date:
|
|||
|
Your
Signature
|
|||
|
(Sign
exactly as your name appears on the face of this Series B Cash
Pay
Note)
|
|||
|
Signature
Guarantee*: ___________
|
|||
|
*
|
Participant
in a recognized Signature Guarantee Medallion Program (or other
signature
guarantor acceptable to the
Trustee).
|
A-2-10
OPTION
OF HOLDER TO ELECT PURCHASE
If
you
want to elect to have this Series B Cash Pay Note purchased by the Issuer
pursuant to Section 4.10 or 4.14 of the Indenture, check the appropriate
box below:
o
Section 4.10 o
Section 4.14
|
|
|
If
you want
to elect to have only part of this Series B Cash Pay Note purchased by the
Issuer pursuant to Section 4.10 or Section 4.14 of the Indenture,
state the amount you elect to have purchased:
|
$_______________
|
|||
|
Date: _____________________
|
|||
|
Your
Signature:
|
|
||
|
(Sign
exactly as your name appears on the face of
|
|||
|
this
Series B Cash Pay Note)
|
|||
|
Tax
Identification No.:
|
|
||
|
Signature
Guarantee*:
|
|||
* Participant
in a recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to the Trustee).
A-2-11
SCHEDULE
OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE1
The
initial outstanding principal amount of this Global Note is $
___________________. The following exchanges of a part of this Global
Note for an interest in another Global Note or for a Definitive Note, or
exchanges of a part of another Global or Definitive Note for an interest
in this
Global Note, have been made:
|
Date
of Exchange
|
Amount
of decrease in Principal Amount
|
Amount
of increase
in
Principal
Amount
of this
Global
Note
|
Principal
Amount of this Global Note following each decrease or
increase
|
Signature
of authorized officer of Trustee or
Custodian
|
X-0-00
XXXXXXX X-0
[Face
of
Toggle Note]
[Insert
the Global Note Legend, if applicable pursuant to the provisions of the
Indenture]
[Insert
the Private Placement Legend, if applicable pursuant to the provisions of
the
Indenture]
[Insert
the Regulation S Temporary Global Note Legend, if applicable pursuant to
the provisions of the Indenture]
[Insert
the Tax Legend, if applicable, pursuant to the provisions of the
Indenture]
CUSIP
[ ]
ISIN
[ ]1
[RULE 144A]
[REGULATION S] GLOBAL NOTE
10.50%/11.25%
Senior Toggle Notes due 2016
No.___
[$______________]
TEXAS
COMPETITIVE ELECTRIC HOLDINGS COMPANY LLC
TCEH
FINANCE, INC.
promise
to pay to CEDE & CO. or registered assigns, the principal sum [set forth on
the Schedule of Exchanges of Interests in the Global Note attached hereto]
[of
________________________ United States Dollars] on November 1,
2016.
Interest
Payment Dates: May 1 and November 1
Record
Dates: April 15 and October 15
[SIGNATURE
PAGE FOLLOWS]
___________________________
A-3-1
I N
WITNESS HEREOF, the
Issuer has caused this instrument to be duly executed.
Dated: _____________,
20__
|
TEXAS
COMPETITIVE ELECTRIC HOLDINGS COMPANY LLC
|
|
By:
|
|
Name:
|
|
Title:
|
SIGNATURE
PAGE TO GLOBAL [144A] [REGULATION S] TOGGLE NOTE
|
TCEH
FINANCE, INC.
|
|
By:
|
|
Name:
|
|
Title:
|
SIGNATURE
PAGE TO GLOBAL [144A] [REGULATION S] TOGGLE NOTE
This
is
one of the Toggle Notes referred to in the within-mentioned
Indenture:
|
THE
BANK OF NEW YORK, as Trustee
|
|
By:
|
|
Authorized
Signatory
|
SIGNATURE
PAGE TO GLOBAL [144A] [REGULATION S] TOGGLE NOTE
[Back
of
Toggle Note]
Capitalized
terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.
(1) Interest. Texas
Competitive Electric Holding Company LLC, a Delaware limited liability company
and TCEH Finance, Inc., a Delaware corporation (collectively, the
“Issuers”), promise to pay interest on the principal amount of this
Toggle Note at a rate perannum set forth below from December 6,
2007 until maturity and shall pay Additional Interest, if any, payable pursuant
to the Registration Rights Agreement referred to below. The Issuer
will pay interest and Additional Interest, if any, semi-annually in arrears
on
May 1 and November 1 of each year, or if any such day is not a Business
Day, on the next succeeding Business Day (each, an “Interest Payment
Date”) without interest accruing on the amount then so payable from such day
that is not a Business Day until such Business Day. Interest on the
Toggle Notes will accrue from the most recent date to which interest has
been
paid or, if no interest has been paid, from December 6, 2007. The
Issuer will pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue principal and premium, if any, from
time to
time on demand at the interest rate on the Toggle Notes; it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy
Law) on
overdue installments of interest and Additional Interest, if any, (without
regard to any applicable grace periods) from time to time on demand at the
interest rate on the Toggle Notes. Interest will be computed on the
basis of a 360-day year comprised of twelve 30-day months.
Cash
Interest on the Toggle Notes will accrue at a rate of 10.50%
perannum and be payable in cash. PIK Interest on the
Toggle Notes will accrue at a rate of 11.25% perannum and be
payable (x) with respect to Toggle Notes represented by one or more global
notes registered in the name of, or held by, The Depository Trust Company
(“DTC”) or its nominee on the relevant Record Date, by increasing the
principal amount of the outstanding global Toggle Note by an amount equal
to the
amount of PIK Interest for the applicable interest period (rounded up to
the
nearest $1,000) (or, if necessary, pursuant to the requirements of DTC or
otherwise, to authenticate new global Toggle Notes executed by the Issuer
with
such increased principal amounts) and (y) with respect to Toggle Notes
represented by certificated notes, by issuing PIK Notes in certificated form
in
an aggregate principal amount equal to the amount of PIK Interest for the
applicable period (rounded up to the nearest whole dollar), and the Trustee
will, at the request of the Issuer, authenticate and deliver such PIK Notes
in
certificated form for original issuance to the Holders on the relevant Record
Date, as shown by the records of the register of Holders. In the
event that the Issuer elects to pay Partial PIK Interest for any interest
period, each Holder will be entitled to receive Cash Interest in respect
of 50%
of the principal amount of the Toggle Notes held by such Holder on the relevant
Record Date and PIK Interest in respect of 50% of the principal amount of
the
Toggle Notes held by such Holder on the relevant Record
Date. Following an increase in the principal amount of the
outstanding global Toggle Notes as a result of a PIK Payment, the global
Toggle
Notes will bear interest on such increased principal amount from and after
the
date of such PIK Payment. Any PIK Notes issued in certificated form
will be dated as of the applicable Interest Payment Date and will bear interest
from and after such date. All Toggle Notes issued pursuant to a PIK
Payment will mature on November 1, 2016 and will be governed by, and subject
to
the terms, provisions and conditions of, the Indenture and shall have the
same
rights and benefits as the Toggle Notes issued on the Issue Date. Any
certificated PIK Notes will be issued with the description PIK on the face
of
such PIK Note.
At
the
end of any “accrual period” (as defined in Section 1272(a)(5) of the Code)
ending after the fifth anniversary of the First Supplemental Indenture (each,
an
“Optional Interest Repayment Date”), the Issuer may pay in cash, without
duplication, all accrued and unpaid interest, if any, and all accrued but
unpaid
“original issue discount” (as defined in Section 1273(a)(1) of the Code) on the
Toggle Notes then outstanding up to the Optional Interest Repayment Amount
(each
such redemption, an “Optional Interest
A-3-5
Repayment”). The
“Optional Interest Repayment Amount” shall mean, as of each Optional
Interest Repayment Date, the excess, if any, of (a) the aggregate amount
of
accrued and unpaid interest and all accrued and unpaid “original issue discount”
(as defined in Section 1273(a)(1) of the Code) with respect to the Toggle
Notes,
over (b) an amount equal to the product of (i) the “issue price” (as defined in
Sections 1273(b) and 1274(a) of the Code) of the Toggle Notes multiplied
by (ii)
the “yield to maturity” (as defined in the Treasury Regulation Section
1.1272-1(b)(1)(i)) the Toggle Notes, minus (c) $50,000,000.
On
May 1,
2016, the Issuer shall repay in
full in U.S.
Dollars an amount of Toggle Notes equal to $50,000,000. Prepayments
of Toggle Notes made pursuant to the preceding
sentence shall be
made on a pro rata
basis based on the aggregate principal
amount of Toggle Notes outstanding.
(2) Method
of Payment. For any interest payment period after the initial
interest payment period and prior to November 1, 2012, the Issuer may, at
its option elect to pay interest on the Toggle Notes:
(i) entirely
in cash (“Cash Interest”);
(ii) entirely
by increasing the principal amount of the outstanding Toggle Notes or by
issuing
PIK Notes (“PIK Interest”); or
(iii) on
50% of the outstanding principal amount of the Toggle Notes in cash and on
50%
of the outstanding principal amount by increasing the principal amount of
the
outstanding Toggle Notes or by issuing PIK Notes (“Partial PIK
Interest”).
The
Issuer must elect the form of interest payment with respect to each interest
period by delivering a notice to the Trustee prior to the beginning of such
interest period. The Trustee shall promptly deliver a corresponding
notice to the Holder of this Toggle Note. In the absence of such an
election for any interest period, interest on this Toggle Note shall be payable
according to the election for the previous interest period. Interest
for the first interest payment period commencing on the Issue Date shall
be
payable entirely in cash. After November 1, 2012, the Issuer will
make all interest payments on this Toggle Note entirely in
cash. Notwithstanding anything to the contrary, the payment of
accrued interest in connection with any redemption of Toggle Notes as described
under Sections 3.07, 4.10 and 4.14 of the Indenture shall be made solely
in
cash.
The
Issuer will pay Cash Interest on the Toggle Notes and Additional Interest,
if
any, to the Persons who are registered Holders of Toggle Notes at the close
of
business on the April 15 and October 15 (whether or not a Business
Day), next preceding the Interest Payment Date, even if such Toggle Notes
are
canceled after such Record Date and on or before such Interest Payment Date,
except as provided in Section 2.12 of the Indenture with respect to
defaulted interest. Payments of Cash Interest and Additional
Interest, if any, may be made by check mailed to the Holders at their addresses
set forth in the register of Holders; provided that payment by wire
transfer of immediately available funds will be required with respect to
principal of and interest, premium and Additional Interest, if any, on, all
Global Notes and all other Toggle Notes the Holders of which shall have provided
wire transfer instructions to the Issuer or the Paying Agent. Such
payment shall be in such coin or currency of the United States of America
as at
the time of payment is legal tender for payment of public and private
debts.
(3) Paying
Agent and Registrar. Initially, The Bank of New York, the
Trustee under the Indenture, will act as Paying Agent and
Registrar. The Issuer may change any Paying Agent or Registrar
without notice to the Holders. The Issuer or any of its Subsidiaries
may act in any such capacity.
A-3-6
(4) Indenture. The
Issuer issued the Toggle Notes under an Indenture, dated as of October 31,
2007 (the “Existing Indenture”), among the Issuer, the Guarantors named
therein and the Trustee, as supplemented by the First Supplemental Indenture
dated as of December 6, 2007, among the Issuer, the Guarantors named therein
and
the Trustee (the Existing Indenture as supplemented, the
“Indenture”). This Toggle Note is one of a duly authorized
issue of notes of the Issuer designated as its 10.50%/11.25% Senior Toggle
Notes
due 2016. The Issuer shall be entitled to issue Additional
Toggle Notes pursuant to Sections 2.01 and 4.09 of the
Indenture. The Existing Cash Pay Notes (including any Exchange Notes
issued in exchange therefor), the Series B Cash Pay Notes (including any
Exchange Notes issued in exchange therefor) and the Toggle Notes (including
any
Exchange Notes issued in exchange therefor) (collectively referred to herein
as
the “Notes”) are separate series of Senior Notes, but shall be treated as
a single class of securities under the Indenture, unless otherwise specified
in
the Indenture. The terms of the Toggle Notes include those stated in
the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (the “Trust Indenture
Act”). The Toggle Notes are subject to all such terms, and
Holders are referred to the Indenture and such Act for a statement of such
terms. To the extent any provision of this Toggle Note conflicts with
the express provisions of the Indenture, the provisions of the Indenture
shall
govern and be controlling.
(5) Optional
Redemption.
(a) Except
as set forth below, the Issuer will not be entitled to redeem Toggle Notes
at
its option prior to November 1, 2011.
(b) At
any time prior to November 1, 2011, the Issuer may redeem all or a part of
the
Toggle Notes, at a redemption price equal to 100% of the principal amount
of the
Toggle Notes redeemed plus the Applicable Premium as of, and accrued and
unpaid interest, and Additional Interest, if any, to, the date of redemption
(the “Redemption Date”), subject to the right of Holders of Toggle Notes
of record on the relevant Record Date to receive interest due on the relevant
Interest Payment Date.
(c) From
and after November 1, 2011, the Issuer may redeem the Toggle Notes,
in whole or in part, at the redemption prices (expressed as percentages of
the
principal amount of the Toggle Notes to be redeemed) set forth below,
plus accrued and unpaid interest and Additional Interest, if any, to
the
applicable Redemption Date, subject to the right of Holders of Toggle Notes
of
record on the relevant Record Date to receive interest due on the relevant
Interest Payment Date if redeemed during the twelve-month period beginning
on
November 1 of each of the years indicated below:
|
Year
|
Percentage
|
|
2012
|
105.250%
|
|
2013
|
103.500%
|
|
2014
|
101.750%
|
|
2015
and
thereafter
|
100.000%
|
(d) Prior
to November 1, 2010, the Issuer may, at its option, on one or more occasions,
redeem up to 35% of the aggregate principal amount of all Toggle Notes at
a
redemption price equal to 110.500% of the aggregate principal amount thereof,
plus accrued and unpaid interest and Additional Interest, if any, to
the
Redemption Date, subject to the right of Holders of Toggle Notes of record
on
the relevant Record Date to receive interest due on the relevant Interest
Payment Date, with the net cash proceeds of one or more Equity Offerings;
provided that at least 50% of the sum of the original aggregate principal
amount of the Initial Toggle Notes and any Additional Toggle Notes issued
under
the Indenture after the Issue Date remains outstanding immediately after
the
occurrence of each such redemption; providedfurther that each such
redemption occurs within 90 days of the date of closing of each such Equity
Offering. Notice of any redemption upon any Equity Offerings may be
given prior to
A-3-7
the
redemption thereof, and any such redemption or notice may, at the Issuer’s
discretion, be subject to one or more conditions precedent, including, but
not
limited to, completion of the related Equity Offering.
(e) If
the Issuer redeems less than all of the outstanding Toggle Notes, the Trustee
shall select the Toggle Notes to be redeemed in the manner described under
Section 3.02 of the Indenture.
(f) Any
redemption pursuant to this paragraph 5 shall be made pursuant to the provisions
of Sections 3.01 through 3.06 of the Indenture.
(6) Mandatory
Redemption. Except as set forth under “Interest,” the Issuer
shall not be required to make mandatory redemption or sinking fund payments
with
respect to the Toggle Notes.
(7) Notice
of Redemption. Subject to Section 3.03 of the Indenture,
notice of redemption will be mailed by first-class mail at least 30 days
but not
more than 60 days before the Redemption Date (except that redemption notices
may
be mailed more than 60 days prior to a Redemption Date if the notice is issued
in connection with Article 8 or Article 11 of the Indenture) to each
Holder whose Toggle Notes are to be redeemed at its registered address or
otherwise in accordance with the procedures of DTC. Toggle Notes in
denominations larger than $2,000 may be redeemed in part but only in whole
multiples of $1,000 in excess thereof, unless all of the Toggle Notes held
by a
Holder are to be redeemed. On and after the Redemption Date interest
ceases to accrue on Toggle Notes or portions thereof called for
redemption.
(8) Offers
to Repurchase.
(a) If
a Change of Control occurs, the Issuer shall make an offer (a “Change of
Control Offer”) to each Holder to purchase all or any part (equal to $2,000
or an integral multiple of $1,000 in excess thereof) of each Holder’s Toggle
Notes at a purchase price equal to 101% of the aggregate principal amount
thereof plus accrued and unpaid interest and Additional Interest, if any,
to the date of purchase (the “Change of Control Payment”), subject to the
right of Holders of Toggle Notes of record on the relevant Record Date to
receive interest due on the relevant Interest Payment Date. The Change of
Control Offer shall be made in accordance with Section 4.14 of the
Indenture.
(b) If
the Issuer or any of its Restricted Subsidiaries consummates an Asset Sale,
within ten Business Days of each date that the aggregate amount of Excess
Proceeds exceeds $200.0 million, the Issuer shall make an offer to all Holders
of the Notes, and if required or permitted by the terms of any Senior
Indebtedness, to the holders of such Senior Indebtedness (an “Asset Sale
Offer”), to purchase the maximum aggregate principal amount of the Notes and
such Senior Indebtedness that is a minimum of $2,000 or an integral multiple
of
$1,000 in excess thereof that may be purchased out of the Excess Proceeds
at an
offer price in cash in an amount equal to 100% of the principal amount thereof,
plus accrued and unpaid interest and Additional Interest, if any, to
the
date fixed for the closing of such offer, in accordance with the procedures
set
forth in the Indenture. To the extent that the aggregate amount of
Notes and such Senior Indebtedness tendered pursuant to an Asset Sale Offer
is
less than the Excess Proceeds, the Issuer may use any remaining Excess Proceeds
to make Restricted Payments to the extent permitted by clause (16) of
Section 4.07(b) of the Indenture. If the aggregate principal
amount of Notes or such Senior Indebtedness surrendered by such holders thereof
exceeds the amount of Excess Proceeds, the Trustee shall select the Notes
and
such Senior Indebtedness to be purchased on a pro rata basis based on
the accreted value or principal amount of the Notes or such Senior Indebtedness
tendered.
(c) The
Issuer may, at its option, make an Asset Sale Offer using proceeds from any
Asset Sale at any time after consummation of such Asset Sale; provided
that such Asset Sale Offer shall
A-3-8
be
in an
aggregate amount of not less than $25.0 million. Upon consummation of
such Asset Sale Offer, any Net Proceeds not required to be used to purchase
Notes shall not be deemed Excess Proceeds.
(9) Denominations,
Transfer, Exchange. The Toggle Notes are in registered form
without coupons in denominations of $2,000 and integral multiples of $1,000
in
excess thereof. The transfer of Toggle Notes may be registered and
Toggle Notes may be exchanged as provided in the Indenture. The
Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Issuer may require
a
Holder to pay any taxes and fees required by law or permitted by the
Indenture. The Issuer need not exchange or register the transfer of
any Toggle Notes or portion of Toggle Notes selected for redemption, except
for
the unredeemed portion of any Toggle Notes being redeemed in
part. Also, the Issuer need not exchange or register the transfer of
any Toggle Notes for a period of 15 days before a selection of Toggle Notes
to
be redeemed.
(10) Persons
Deemed Owners. The registered Holder of a Toggle Note may be
treated as its owner for all purposes.
(11) Amendment,
Supplement and Waiver. The Indenture, the Guarantees or the
Toggle Notes may be amended or supplemented as provided in the
Indenture.
(12) Defaults
and Remedies. The Events of Default relating to the Notes are
defined in Section 6.01 of the Indenture. If any Event of
Default occurs and is continuing, the Trustee or the Required Holders of
at
least 30% in aggregate principal amount of the Required Debt may declare
the
principal, premium, if any, interest and any other monetary obligations on
all
the then outstanding Notes to be due and payable
immediately. Notwithstanding the foregoing, in the case of an Event
of Default arising from certain events of bankruptcy or insolvency, all
outstanding Notes will become due and payable immediately without further
action
or notice. Holders may not enforce the Indenture, the Notes or the
Guarantees except as provided in the Indenture. Subject to certain
limitations, Required Holders of a majority in aggregate principal amount
of the
Required Debt may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Holders of the Notes notice of
any continuing Default (except a Default relating to the payment of principal,
premium, if any, Additional Interest, if any, or interest) if it determines
that
withholding notice is in their interest. The Required Holders of a
majority in aggregate principal amount of the Required Debt by notice to
the
Trustee may on behalf of the Holders of all of the Notes waive any existing
Default or and its consequences under the Indenture except a continuing Default
in payment of the principal of, premium, if any, Additional Interest, if
any, or
interest on, any of the Notes held by a non-consenting Holder. The
Issuer and each Guarantor (to the extent that such Guarantor is so required
under the Trust Indenture Act) is required to deliver to the Trustee annually
a
statement regarding compliance with the Indenture, and the Issuer is required
within five (5) Business Days after becoming aware of any Default, to deliver
to
the Trustee a statement specifying such Default and what action the Issuer
proposes to take with respect thereto.
(13) Authentication. This
Toggle Note shall not be entitled to any benefit under the Indenture or be
valid
or obligatory for any purpose until authenticated by the manual signature
of the
Trustee.
(14) Additional
Rights of Holders of Restricted Global Notes and Restricted Definitive
Notes. In addition to the rights provided to Holders of Toggle
Notes under the Indenture, Holders of Restricted Global Notes and Restricted
Definitive Notes shall have all the rights set forth in the Registration
Rights
Agreement relating to such Toggle Notes, including the right to receive
Additional Interest, if any (as defined in such Registration Rights
Agreement).
A-3-9
(15) GOVERNING
LAW. THE INDENTURE, THE TOGGLE NOTES AND ANY GUARANTEE WILL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
(16) CUSIP/ISIN
Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Issuer has caused
CUSIP/ISIN numbers to be printed on the Toggle Notes and the Trustee may
use
CUSIP/ISIN numbers in notices of redemption as a convenience to
Holders. No representation is made as to the accuracy of such numbers
either as printed on the Toggle Notes or as contained in any notice of
redemption and reliance may be placed only on the other identification numbers
placed thereon.
The
Issuer will furnish to any Holder upon written request and without charge
a copy
of the Indenture and/or the Registration Rights Agreement relating to the
Toggle
Notes. Requests may be made to the Issuer at the following
address:
|
c/o
Texas Competitive Electric Holdings Company LLC
|
|
Energy
Plaza
|
|
0000
Xxxxx Xxxxxx
|
|
Xxxxxx,
Xxxxx 00000-0000
|
|
Facsimile
No.: (000) 000-0000
|
|
(000)
000-0000
|
|
c/o
TCEH Finance, Inc.
|
|
Energy
Plaza
|
|
0000
Xxxxx Xxxxxx
|
|
Xxxxxx,
Xxxxx 00000-0000
|
|
Facsimile
No.: (000) 000-0000
|
|
(000)
000-0000
|
A-3-10
ASSIGNMENT
FORM
To
assign
this Toggle Note, fill in the form below:
|
(I)
or (we) assign and transfer this Toggle Note to:
|
|
|
(Insert
assignee’s legal name)
|
|
|
(Insert
assignee’s Soc. Sec. or tax I.D. no.)
|
|
|
(Print
or type assignee’s name, address and zip
code)
|
|
and
irrevocably appoint
________________________________________________________________ to transfer
this Toggle Note on the books of the Issuer. The agent may substitute
another to act for him.
|
Date:
|
|||
|
Your
Signature
|
|||
|
(Sign
exactly as your name appears on the face of this Toggle
Note)
|
|||
|
Signature
Guarantee*: ___________
|
|||
|
*
|
Participant
in a recognized Signature Guarantee Medallion Program (or other
signature
guarantor acceptable to the
Trustee).
|
A-3-11
OPTION
OF HOLDER TO ELECT PURCHASE
If
you
want to elect to have this Toggle Note purchased by the Issuer pursuant to
Section 4.10 or 4.14 of the Indenture, check the appropriate box
below:
o
Section 4.10 o
Section 4.14
If
you
want to elect to have only part of this Toggle Note purchased by the Issuer
pursuant to Section 4.10 or Section 4.14 of the Indenture, state the
amount you elect to have purchased:
|
$_______________
|
|||
|
Date: _____________________
|
|||
|
Your
Signature:
|
|
||
|
(Sign
exactly as your name appears on the face of
|
|||
|
this
Toggle Note)
|
|||
|
Tax
Identification No.:
|
|
||
|
Signature
Guarantee*:
|
|||
* Participant
in a recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to the Trustee).
A-3-12
SCHEDULE
OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE1
The
initial outstanding principal amount of this Global Note is $
___________________. The following exchanges of a part of this Global
Note for an interest in another Global Note or for a Definitive Note, or
exchanges of a part of another Global or Definitive Note for an interest
in this
Global Note, have been made:
|
Date
of Exchange
|
Amount
of decrease in Principal Amount
|
Amount
of increase
in
Principal
Amount
of this
Global
Note
|
Principal
Amount of this Global Note following each decrease or
increase
|
Signature
of authorized officer of Trustee or
Custodian
|
___________________________
EXHIBIT B
FORM
OF CERTIFICATE OF TRANSFER
|
c/o
Texas Competitive Electric Holdings Company LLC
|
|
Energy
Plaza
|
|
0000
Xxxxx Xxxxxx
|
|
Xxxxxx,
Xxxxx 00000-0000
|
|
Facsimile
No.: (000) 000-0000
|
|
(000)
000-0000
|
|
c/o
TCEH Finance, Inc.
|
|
Energy
Plaza
|
|
0000
Xxxxx Xxxxxx
|
|
Xxxxxx,
Xxxxx 00000-0000
|
|
Facsimile
No.: (000) 000-0000
|
|
(000)
000-0000
|
The
Bank
of New York
Corporate
Trust Division
000
Xxxxxxx Xxxxxx-0X
Xxx
Xxxx,
Xxx Xxxx 00000
Facsimile
No.: (000) 000-0000
Attention: EFHC
Trustee
|
Re:
|
[10.25%
Senior Notes due 2015]
|
|
[10.25%
Senior Notes due 2015, Series B]
|
|
|
[10.50%/11.25%
Senior Toggle Note due 2016]
|
Reference
is hereby made to the Indenture, dated as of October 31, 2007 (the
“ExistingIndenture”), among Texas Competitive Electric Holdings
Company LLC and TCEH Finance, Inc., the Guarantors named therein and the
Trustee
as supplemented by the First Supplemental Indenture dated as of December
6, 2007
among Texas Competitive Electric Holdings Company LLC and TCEH Finance, Inc.,
the Guarantors named therein and the Trustee (the Existing Indenture as
supplemented, the “Indenture”). Capitalized terms used but not
defined herein shall have the meanings given to them in the
Indenture.
_______________
(the “Transferor”) owns and proposes to transfer the Note[s] or interest
in such Note[s] specified in Annex A hereto, in the principal amount of
$___________ in such Note[s] or interests (the “Transfer”), to
_______________ (the “Transferee”), as further specified in Annex A
hereto. In connection with the Transfer, the Transferor hereby
certifies that:
[CHECK
ALL THAT APPLY]
1. o Check
if Transferee will take delivery of a beneficial
interest in the 144A Global Note or a Definitive Note pursuant to
Rule 144A. The Transfer is being effected pursuant
to and in accordance with Rule 144A under the United States Securities Act
of 1933, as amended (the “Securities Act”), and, accordingly, the
Transferor hereby further certifies that the beneficial interest or Definitive
Note is being transferred to a Person that the Transferor reasonably believes
is
purchasing the beneficial interest or Definitive Note for its own account,
or
for one or more accounts with respect to which such Person exercises sole
investment discretion, and such Person and each such account is a
B-1
“qualified
institutional buyer” within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A and such Transfer is in compliance
with any applicable blue sky securities laws of any state of the United
States.
(a) [ ]
such Transfer is being effected pursuant to and in accordance with Rule 144
under the Securities Act;
OR
(b) [ ]
such Transfer is being effected to the Issuer or a subsidiary
thereof;
OR
(c) [ ]
such Transfer is being effected pursuant to an effective registration statement
under the Securities Act and in compliance with the prospectus delivery
requirements of the Securities Act.
B-2
subject
to the restrictions on transfer enumerated in the Private Placement Legend
printed on the Restricted Global Notes, on Restricted Definitive Notes and
in
the Indenture.
This
certificate and the statements contained herein are made for your benefit
and
the benefit of the Issuer.
|
[Insert
Name of Transferor]
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
Dated: _______________________
|
B-3
ANNEX
A TO CERTIFICATE OF TRANSFER
1. The
Transferor owns and proposes to transfer the following:
[CHECK
ONE OF (a) OR (b)]
2. After
the Transfer the Transferee will hold:
[CHECK
ONE]
(i) o 144A
Global Note
(CUSIP
[ ]
[ ]),
or
(ii) o Regulation S
Global Note (CUSIP
[ ]
[ ]),
or
or
B-4
EXHIBIT C
FORM
OF CERTIFICATE OF
EXCHANGE
|
c/o
Texas Competitive Electric Holdings Company LLC
|
|
Energy
Plaza
|
|
0000
Xxxxx Xxxxxx
|
|
Xxxxxx,
Xxxxx 00000-0000
|
|
Facsimile
No.: (000) 000-0000
|
|
(000)
000-0000
|
|
c/o
TCEH Finance, Inc.
|
|
Energy
Plaza
|
|
0000
Xxxxx Xxxxxx
|
|
Xxxxxx,
Xxxxx 00000-0000
|
|
Facsimile
No.: (000) 000-0000
|
|
(000)
000-0000
|
The
Bank
of New York
Corporate
Trust Division
000
Xxxxxxx Xxxxxx-0X
Xxx
Xxxx,
Xxx Xxxx 00000
Facsimile
No.: (000) 000-0000
Attention: EFHC
Trustee
|
Re:
|
[10.25%
Senior Notes due 2015]
|
|
[10.25%
Senior Notes due 2015, Series B]
|
|
|
[10.50%/11.25%
Senior Toggle Note due 2016]
|
Reference
is hereby made to the Indenture, dated as of October 31, 2007 (the
“Indenture”), among Texas Competitive Electric Holdings Company LLC and
TCEH Finance, Inc., the Guarantors named therein and the Trustee as supplemented
by the First Supplemental Indenture dated as of December 6, 2007 among Texas
Competitive Electric Holdings Company LLC and TCEH Finance, Inc., the Guarantors
named therein and the Trustee (the Existing Indenture as supplemented, the
“Indenture”). Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
___________
(the “Owner”) owns and proposes to exchange the Note[s] or interest in
such Note[s] specified herein, in the principal amount of $__________ in
such
Note[s] or interests (the “Exchange”). In connection with the
Exchange, the Owner hereby certifies that:
1. Exchange
of Restricted Definitive Notes or Beneficial Interests in a Restricted Global
Note for Unrestricted Definitive Notes or Beneficial Interests in an
Unrestricted Global Note
C-1
United
States Securities Act of 1933, as amended (the “Securities Act”),
(iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance
with
the Securities Act and (iv) the beneficial interest in an Unrestricted
Global Note is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.
2. Exchange
of Restricted Definitive Notes or Beneficial Interests in Restricted Global
Notes for Restricted Definitive Notes or Beneficial Interests in Restricted
Global Notes
(b) o Check
if Exchange is from Restricted Definitive Note to
beneficial interest in a Restricted Global Note. In
connection with the Exchange of the Owner’s Restricted Definitive Note for a
beneficial interest in the [CHECK ONE] 144A Global Note Regulation S
Global Note, with an equal principal
amount, the Owner hereby certifies (i) the beneficial interest is being
C-2
acquired
for the Owner’s own account without transfer and (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to
the
Restricted Global Notes and pursuant to and in accordance with the Securities
Act, and in compliance with any applicable blue sky securities laws of any
state
of the United States. Upon consummation of the proposed Exchange in accordance
with the terms of the Indenture, the beneficial interest issued will be subject
to the restrictions on transfer enumerated in the Private Placement Legend
printed on the relevant Restricted Global Note and in the Indenture and the
Securities Act.
C-3
This
certificate and the statements contained herein are made for your benefit
and
the benefit of the Issuer and are dated ______________________.
|
[Insert
Name of Transferor]
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
Dated: _______________________
|
C-4
EXHIBIT D
[FORM
OF SUPPLEMENTAL INDENTURE
TO
BE DELIVERED BY SUBSEQUENT GUARANTORS]
Supplemental
Indenture (this “Supplemental Indenture”), dated as of _______________,
among __________________ (the “Guaranteeing Subsidiary”), a subsidiary of
Texas Competitive Electric Holdings Company LLC, a Delaware limited liability
company (“TCEH” ), TCEH Finance, Inc., a Delaware Corporation (together with
TCEH, the “Issuer”), and The Bank of New York, as trustee (the
“Trustee”).
W
I T N E
S S E T H
WHEREAS,
each of the Issuer and the Guarantors (as defined in the Indenture referred
to
below) has heretofore executed and delivered to the Trustee an Indenture
(the
“Existing Indenture”), dated as of October 31, 2007, as supplemented by
the First Supplemental Indenture (the Existing Indenture as supplemented,
the
“Indenture”), dated as of December 6, 2007 providing for the issuance of an
unlimited aggregate principal amount of 10.25% Senior Notes due 2015, 10.25%
Senior Notes due 2015, Series B and 10.50%/11.25% Senior Toggle Notes due
2016
(together, the “Notes”);
WHEREAS,
the Indenture provides that under certain circumstances the Guaranteeing
Subsidiary shall execute and deliver to the Trustee a supplemental indenture
pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee
all of the Issuer’s Obligations under the Notes and the Indenture on the terms
and conditions set forth herein and under the Indenture (the
“Guarantee”); and
WHEREAS,
pursuant to Section 9.01 of the Indenture, the Trustee is authorized to
execute and deliver this Supplemental Indenture.
NOW
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties mutually
covenant and agree for the equal and ratable benefit of the Holders of the
Notes
as follows:
1. Capitalized
Terms. Capitalized terms used herein without definition shall have
the meanings assigned to them in the Indenture.
2. Agreement
to Guarantee. The Guaranteeing Subsidiary hereby agrees as
follows:
(a) Along
with all Guarantors named in the Indenture, to jointly and severally
unconditionally guarantee to each Holder of a Note authenticated and delivered
by the Trustee and to the Trustee and its successors and assigns, irrespective
of the validity and enforceability of the Indenture, the Notes or the
obligations of the Issuer hereunder or thereunder, that:
(i) the
principal of and interest, premium and Additional Interest, if any, on the
Notes
will be promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of and interest
on the Notes, if any, if lawful, and all other obligations of the Issuer
to the
Holders or the Trustee hereunder or thereunder will be promptly paid in full
or
performed, all in accordance with the terms hereof and thereof; and
D-1
(ii) in
case of any extension of time of payment or renewal of any Notes or any of
such
other obligations, that same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. Failing payment when due of
any amount so guaranteed or any performance so guaranteed for whatever reason,
the Guarantors and the Guaranteeing Subsidiary shall be jointly and severally
obligated to pay the same immediately. This is a guarantee of payment
and not a guarantee of collection.
(b) The
obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Notes or the Indenture, the absence of
any
action to enforce the same, any waiver or consent by any Holder of the Notes
with respect to any provisions hereof or thereof, the recovery of any judgment
against the Issuer, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense
of a
guarantor.
(c) The
following is hereby waived: diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of the Issuer, any right to require a proceeding first against the Issuer,
protest, notice and all demands whatsoever.
(d) Except
as set forth in Section 5 hereto, this Guarantee shall not be discharged
except by complete performance of the obligations contained in the Notes,
the
Indenture and this Supplemental Indenture, and the Guaranteeing Subsidiary
accepts all obligations of a Guarantor under the Indenture.
(e) If
any Holder or the Trustee is required by any court or otherwise to return
to the
Issuer, the Guarantors (including the Guaranteeing Subsidiary), or any
custodian, trustee, liquidator or other similar official acting in relation
to
either the Issuer or the Guarantors, any amount paid either to the Trustee
or
such Holder, this Guarantee, to the extent theretofore discharged, shall
be
reinstated in full force and effect.
(f) The
Guaranteeing Subsidiary shall not be entitled to any right of subrogation
in
relation to the Holders in respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby.
(g) As
between the Guaranteeing Subsidiary, on the one hand, and the Holders and
the
Trustee, on the other hand, (x) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article 6 of the Indenture for the
purposes of this Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any declaration of acceleration
of such obligations as provided in Article 6 of the Indenture, such
obligations (whether or not due and payable) shall forthwith become due and
payable by the Guaranteeing Subsidiary for the purpose of this
Guarantee.
(h) The
Guaranteeing Subsidiary shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair
the
rights of the Holders under this Guarantee.
(i) Pursuant
to Section 10.02 of the Indenture, after giving effect to all other
contingent and fixed liabilities that are relevant under any applicable
Bankruptcy or fraudulent conveyance laws, and after giving effect to any
collections from, rights to receive contribution from or payments made by
or on
behalf of any other Guarantor in respect of the obligations
D-2
of
such
other Guarantor under Article 10 of the Indenture, this new Guarantee shall
be limited to the maximum amount permissible such that the obligations of
such
Guaranteeing Subsidiary under this Guarantee will not constitute a fraudulent
transfer or conveyance.
(j) This
Guarantee shall remain in full force and effect and continue to be effective
should any petition be filed by or against the Issuer for liquidation,
reorganization, should the Issuer become insolvent or make an assignment
for the
benefit of creditors or should a receiver or trustee be appointed for all
or any
significant part of the Issuer’s assets, and shall, to the fullest extent
permitted by law, continue to be effective or be reinstated, as the case
may be,
if at any time payment and performance of the Notes are, pursuant to applicable
law, rescinded or reduced in amount, or must otherwise be restored or returned
by any obligee on the Notes and Guarantee, whether as a “voidable preference”,
“fraudulent transfer” or otherwise, all as though such payment or performance
had not been made. In the event that any payment or any part thereof,
is rescinded, reduced, restored or returned, the Note shall, to the fullest
extent permitted by law, be reinstated and deemed reduced only by such amount
paid and not so rescinded, reduced, restored or returned.
(k) In
case any provision of this Guarantee shall be invalid, illegal or unenforceable,
the validity, legality, and enforceability of the remaining provisions shall
not
in any way be affected or impaired thereby.
(l) This
Guarantee shall be a general senior obligation of such Guaranteeing Subsidiary,
ranking equally in right of payment with all existing and future Senior
Indebtedness of the Guaranteeing Subsidiary, will be effectively subordinated
to
all Secured Indebtedness of such Guaranteeing Subsidiary to the extent of
the
value of the collateral securing such indebtedness. The Guarantees
will be senior in right of payment to all existing and future Subordinated
Indebtedness of each Guarantor. The Notes will be structurally
subordinated to Indebtedness and other liabilities of Subsidiaries of the
Issuer
that do not Guarantee the Notes, if any.
(m) Each
payment to be made by the Guaranteeing Subsidiary in respect of this Guarantee
shall be made without set-off, counterclaim, reduction or diminution of any
kind
or nature.
3. Execution
And
Delivery. The
Guaranteeing Subsidiary agrees that the Guarantee shall remain in full force
and
effect notwithstanding the absence of the endorsement of any notation of
such
Guarantee on the Notes.
4. Merger,
Consolidation or Sale of All or Substantially All Assets.
(a) Except
as otherwise provided in Section 5.01(c) of the Indenture, the Guaranteeing
Subsidiary may not consolidate or merge with or into or wind up into (whether
or
not the Issuer or Guaranteeing Subsidiary is the surviving corporation),
or
sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its properties or assets, in one or more related
transactions, to any Person unless:
(i)(A) the
Guaranteeing Subsidiary is the surviving corporation or the Person formed
by or
surviving any such consolidation or merger (if other than the Guaranteeing
Subsidiary) or to which such sale, assignment, transfer, lease, conveyance
or
other disposition will have been made is a corporation, partnership, limited
partnership, limited liability partnership, limited liability corporation
or
trust organized or existing under the
laws
of
the jurisdiction of organization of the Guaranteeing Subsidiary, as the case
may
be, or the laws of the United States, any state thereof, the District of
Columbia, or any territory thereof (the Guaranteeing Subsidiary or such Person,
as the case may be, being herein called the “Successor
Person”);
D-3
(B) the
Successor Person, if other than the Guaranteeing Subsidiary, expressly assumes
all the obligations of the Guaranteeing Subsidiary under the Indenture and
the
Registration Rights Agreement and the Guaranteeing Subsidiary’s related
Guarantee pursuant to supplemental indentures or other documents or instruments
in form reasonably satisfactory to the Trustee;
(C) immediately
after such transaction, no Default exists; and
(D) the
Issuer shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or transfer
and
such supplemental indentures, if any, comply with the Indenture; or
(ii) the
transaction is made in compliance with Section 4.10 of the
Indenture;
(b) Subject
to certain limitations described in the Indenture, the Successor Person will
succeed to, and be substituted for, the Guaranteeing Subsidiary under the
Indenture and the Guaranteeing Subsidiary’s
Guarantee. Notwithstanding the foregoing, the Guaranteeing Subsidiary
may (i) merge into or transfer all or part of its properties and assets to
another Guarantor or the Issuer, (ii) merge with an Affiliate of the Issuer
solely for the purpose of reincorporating the Guaranteeing Subsidiary in
the
United States, any state thereof, the District of Columbia or any territory
thereof or (iii) convert into a corporation, partnership, limited
partnership, limited liability corporation or trust organized or existing
under
the laws of the jurisdiction of organization of such Guarantor.
5. Releases. The
Guarantee of the Guaranteeing Subsidiary shall be automatically and
unconditionally released and discharged, and no further action by the
Guaranteeing Subsidiary, the Issuer or the Trustee is required for the release
of the Guaranteeing Subsidiary’s Guarantee, upon:
(1)(A) any
sale, exchange or transfer (by merger or otherwise) of the Capital Stock
of the
Guaranteeing Subsidiary (including any sale, exchange or transfer), after
which
the Guaranteeing Subsidiary is no longer a Restricted Subsidiary or all or
substantially all the assets of the Guaranteeing Subsidiary which sale, exchange
or transfer is made in compliance with the applicable provisions of the
Indenture;
(B) the
release or discharge of the guarantee by the Guaranteeing Subsidiary of the
TCEH
Senior Secured Facilities or the guarantee which resulted in the creation
of the
Guarantee, except a discharge or release by or as a result of payment under
such
guarantee;
(C) the
proper designation of the Guaranteeing Subsidiary as an Unrestricted Subsidiary
in compliance with Section 4.08 hereof; or
(D) the
Issuer exercising its Legal Defeasance option or Covenant Defeasance option
in
accordance with Article 8 of the Indenture or the Issuer’s
D-4
obligations
under the Indenture being discharged in accordance with the terms of the
Indenture; and
(2) the
Guaranteeing Subsidiary delivering to the Trustee an Officer’s Certificate and
an Opinion of Counsel, each stating that all conditions precedent provided
for
in the Indenture relating to such transaction have been complied
with.
6. No
Recourse Against Others. No director, officer, employee, incorporator
or stockholder of the Guaranteeing Subsidiary shall have any liability for
any
obligations of the Issuer or the Guarantors (including the Guaranteeing
Subsidiary) under the Notes, any Guarantees, the Indenture or this Supplemental
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting Notes waives
and releases all such liability. The waiver and release are part of
the consideration for issuance of the Notes.
7. Governing
Law. THIS SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
8. Counterparts. The
parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
9. Effect
of Headings. The Section headings herein are for convenience
only and shall not affect the construction hereof.
10. The
Trustee. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made solely by the Guaranteeing Subsidiary.
11. Subrogation. The
Guaranteeing Subsidiary shall be subrogated to all rights of Holders of Notes
against the Issuer in respect of any amounts paid by the Guaranteeing Subsidiary
pursuant to the provisions of Section 2 hereof and Section 10.01 of
the Indenture; provided that if an Event of Default has occurred and is
continuing, the Guaranteeing Subsidiary shall not be entitled to enforce
or
receive any payments arising out of, or based upon, such right of subrogation
until all amounts then due and payable by the Issuer under the Indenture
or the
Notes shall have been paid in full.
12. Benefits
Acknowledged. The Guaranteeing Subsidiary’s Guarantee is subject to
the terms and conditions set forth in the Indenture. The Guaranteeing
Subsidiary acknowledges that it will receive direct and indirect benefits
from
the financing arrangements contemplated by the Indenture and this Supplemental
Indenture and that the guarantee and waivers made by it pursuant to this
Guarantee are knowingly made in contemplation of such benefits.
13. Successors. All
agreements of the Guaranteeing Subsidiary in this Supplemental Indenture
shall
bind its Successors, except as otherwise provided in Section 2(k) hereof or
elsewhere in this Supplemental Indenture. All agreements of the
Trustee in this Supplemental Indenture shall bind its successors.
D-5
IN
WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture
to
be duly executed, all as of the date first above written.
|
TEXAS
COMPETITIVE ELECTRIC HOLDINGS COMPANY LLC
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
TCEH
FINANCE, INC.
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
[NAMES
OF GUARANTORS]
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
THE
BANK OF NEW YORK, as Trustee
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
[GUARANTEEING
SUBSIDIARY]
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
D-6
