FIRST AMENDMENT TO LEASE AGREEMENT
Exhibit
10.1
FIRST
AMENDMENT TO LEASE AGREEMENT
This
First Amendment to Lease Agreement (this “Amendment”) is dated as of June 1,
2007, by and between U.S. Bank, N.A. (as successor-in-interest to State Street
Bank and Trust Company of Connecticut, National Association), as owner trustee
of ZSF/Dallas Tower Trust, a Delaware grantor trust (as trustee only, and
not
individually) (“Lessor”), and TXU Properties Company, a Texas corporation
(“Lessee”).
W
I T N E S S E T H :
WHEREAS,
by that certain Lease Agreement, dated as of February 14, 2002 (the “Lease”)
between Lessor and Lessee, Lessor demised and leased to Lessee and Lessee
rented
and leased from Lessor the Property (as defined in the Lease); and
WHEREAS,
Lessor and Lessee desire to make certain modifications to the Lease subject
to
the terms hereof.
NOW,
THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and other
good
and valuable consideration, the receipt and sufficiency of which are hereby
mutually acknowledged, Lessor and Lessee hereby agree as follows:
1. Defined
Terms. Capitalized terms used but not defined in this Amendment
shall have the same meanings as are ascribed to them in the Lease, unless
otherwise noted.
2. Modifications
to Lease. The Lease is hereby amended, modified and supplemented
as follows:
(a) Section
7.1 is hereby modified by deleting the words “Guarantor (or Lessee if there
is no Guarantor)” appearing in line 10 thereof and substituting in lieu thereof
the word “Lessee”.
(b) Section
8.5(a) is hereby modified by: (i) deleting the words “(or Guarantor)”
appearing in lines 16-17 thereof; and (ii) deleting the words “Guarantor (or
Lessee if there is no Guarantor)” appearing in line 31 thereof and substituting
in lieu thereof the word “Lessee”.
(c) Section
8.6 is hereby modified by deleting the words “(or Guarantor)” appearing in
line 26 thereof.
(d) Section
9.1(b) is hereby modified by deleting the words “Guarantor (or Lessee if
there is no Guarantor)” appearing in line 2 thereof and substituting in lieu
thereof the word “Lessee”.
(e) Section
11.1 is hereby modified by deleting the terms of the section in their
entirety and substituting in lieu thereof the following:
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“Assignment
by Lessee. So long as no Lease Event of Default has occurred and
is continuing, Lessee may, at Lessee’s sole expense, without the consent of
Lessor, assign this Lease for a period that does not extend beyond the Lease
Term, to any Affiliate of Lessee that is not, and will at no time be, an
Obligor, provided, however, that any such Affiliate is not (I) a
tax-exempt entity (within the meaning of Section 168(h) of the Code) or (II)
a
debtor or debtor-in-possession in a voluntary or involuntary bankruptcy
proceeding at the commencement of the assignment. For purposes
hereof, an assignment shall be deemed any merger or consolidation of Lessee
which would violate the provisions of (I) or (II) above. Any assignee
shall assume in writing any obligations of Lessee arising from and after
the
effective date of the assignment, provided, however, that no such
assignment shall become effective until (i) a fully executed copy of an
assignment and assumption agreement, reasonably acceptable to Lessor, Servicer,
Indenture Trustee and Lessee, shall have been delivered to Lessor, the Servicer
and the Indenture Trustee, and (ii) such assignee shall have executed such
instruments and other documents and provided such further assurances as the
Indenture Trustee shall reasonably request to ensure that such assignment
is
subject to the Assignment of Lease, the other Debt Documents and this Lease
and
is enforceable. Notwithstanding any such assignment, Lessee shall not
be released from its primary liability hereunder and shall continue to be
obligated for all of its obligations in this Lease, which obligations shall
continue in full effect as obligations of a principal and not of a guarantor
or
surety, as though no assignment had been made. Lessee will have the
right, subsequent to any assignment (a) to receive a duplicate copy of each
notice of default sent by Lessor to Lessee or any assignee (but such notice
shall be effective as against the Lessee, as well as any subsequent assignees,
even if a copy has not been delivered to such requesting assignee), and (b)
to
cure any default by Lessee or other assignee under the Lease within the cure
period provided for hereunder. Lessee’s liability hereunder shall
continue notwithstanding the rejection of this Lease by an assignee or any
sublease of this Lease pursuant to Section 365 of Title 11 of the United
States
Code, any other provision of the Bankruptcy Code, or any similar law relating
to
bankruptcy, insolvency, reorganization or the rights of creditors, which
arises
subsequent to such assignment. In the event Lessee assigns this Lease
and it shall thereafter be rejected in a bankruptcy or similar proceeding,
a new
lease identical to this Lease shall be reinstituted as between Lessor and
Lessee
without further act of either party, provided Lessor shall not be obligated
to
deliver to Lessee possession of the Property free of any tenancy created
or
caused by Lessee or any entity holding by or through Lessee. Nothing
herein shall be construed to permit Lessee to mortgage, pledge, hypothecate
or
otherwise collaterally assign in any manner or nature whatsoever Lessee’s
interest under this Lease in whole or in part. Lessee shall provide written
notice to Lessor, the Servicer and the Indenture Trustee of any proposed
assignment of this Lease at least thirty (30) Business Days prior to the
effective date thereof and an executed copy of the approved agreement of
assignment and assumption within thirty (30) days after the execution
thereof. To the extent an assignee of this Lease fails to perform on
behalf of Lessee the obligations of Lessee hereunder, and Lessee performs
such
obligations, then Lessee shall be subrogated to the rights of Lessor as against
such assignee in respect of such performance.”
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(f) Section
12.1 is hereby modified by deleting the word “Guarantor” appearing in line
67 thereof and substituting in lieu thereof the word “Lessee”.
(g) Article
13 is hereby restated in its entirety as follows:
“ARTICLE
13
LETTER
OF CREDIT
Section
13.1. Letter of Credit. Throughout the Base Term
and all applicable Renewal Terms, the Lessee shall cause the Applicant to
provide a Qualified Letter of Credit satisfying the requirements set forth
in
this Article 13; provided that in the event of a draw pursuant to Section
13.3(b), (c), (d), (e), (f) or (g) below, the Lessee shall no longer have
an
obligation to cause the Applicant to provide a Qualified Letter of
Credit. In addition, the Lessee shall cause each Obligor to waive all
direct or indirect rights of reimbursement, subrogation or other claims against
the Lessee with respect to such Qualified Letter of Credit.
Section
13.2. Replacements. The Applicant shall have the
right at any time to replace any outstanding Qualified Letter of Credit with
another Qualified Letter of Credit that meets all of the requirements set
forth
in this Article 13. Each replacement Qualified Letter of Credit shall
be accompanied by a certificate executed by Lessee confirming (a) each
Obligor has waived all direct or indirect rights of reimbursement, subrogation
or other claims against the Lessee with respect to such replacement Qualified
Letter of Credit, (b) Lessee is not an Obligor with respect to such
replacement Qualified Letter of Credit, and (c) such replacement Qualified
Letter of Credit is not collateralized with any asset in which the Lessee
has an
ownership or other interest.
Section
13.3. Draw
Events. With
respect to any Qualified Letter of Credit, the
Beneficiary shall be permitted thereunder:
(a) from
time to
time, if the Lessee fails to make any payment of Base Rent on an applicable
Rent
Payment Date, to draw upon such Qualified Letter of Credit an amount equal
to or
less than the amount of Base Rent that on such Rent Payment Date was due
and
payable but not paid and that remains unpaid on the date of such
drawing;
(b) if
Lessee
fails to make a Stipulated Loss Value Payment due and payable on a Stipulated
Loss Value Date pursuant to Section 12.1, to draw upon such Qualified Letter
of
Credit an amount equal to or less than the Stipulated Loss Value Payment
that on
such Stipulated Loss Value Date was due and payable but not paid and that
remains unpaid on the date of such drawing;
(c) if
any Lease
Event of Default has occurred and is continuing, to draw upon such Qualified
Letter of Credit an amount equal to the maximum remaining amount available
to be
drawn thereunder;
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(d) if
(i)
an Obligor
makes any general arrangement or assignment for the benefit of creditors;
(ii)
an Obligor becomes a “debtor” as defined in 11 U.S.C. § 101 of the
Bankruptcy Code or any successor statute thereto (unless, in the case of
a
petition filed against such Obligor, the same is dismissed within ninety
(90)
days or such Obligor ceases to be an “Obligor” within ninety (90) days); (iii)
the appointment of a trustee or receiver to take possession of substantially
all
of the assets of an Obligor where possession is not restored to such Obligor
within ninety (90) days and such Obligor does not cease to be an “Obligor”
within ninety (90) days; (iv) the attachment, execution or other judicial
seizure of substantially all of the assets of an Obligor where such attachment,
execution or other judicial seizure is not discharged within ninety (90)
days
and such Obligor does not cease to be an “Obligor” within ninety (90) days; (v)
an Obligor admits in writing its inability to pay its debts generally as
they
become due; (vi) an Obligor files a petition in bankruptcy or a petition to
take advantage of any insolvency act; (vii) an Obligor files a petition or
answer seeking reorganization or arrangement or other protection under the
Federal bankruptcy laws or any other applicable law or statute of the United
States of America or any State thereof; (viii) an Obligor is liquidated or
dissolved, or placed under conservatorship or other protection under any
applicable federal or state law or begins proceedings toward such liquidation
or
dissolution; (ix) any petition is filed by or against an Obligor under Federal
bankruptcy laws, or any other proceeding is instituted by or against an Obligor
seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation,
reorganization, arrangement, adjustment or composition of it or its debts
under
any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment of
a
receiver, trustee, custodian or other similar official for an Obligor, or
for
any substantial part of the property of an Obligor, and such proceeding is
not
dismissed within ninety (90) days after institution thereof and such Obligor
does not cease to be an “Obligor” within ninety (90) days after institution
thereof; or (x) an Obligor shall take any action to authorize or effect any
of
the actions set forth above in this subsection (d), to draw to draw upon
such
Qualified Letter of Credit an amount equal to the maximum remaining amount
available to be drawn thereunder;
(e) if
(i) an
Obligor has any rights of reimbursement, subrogation or other claims against
the
Lessee with respect to such Qualified Letter of Credit, (ii) Lessee is an
Obligor with respect to such Qualified Letter of Credit, or (iii) such
Qualified Letter of Credit is collateralized with any asset in which the
Lessee
has an ownership or other interest, to draw upon
such
Qualified Letter of Credit an amount equal to the maximum remaining amount
available to be drawn thereunder;
(f) if
thirty
(30) or fewer days remain prior to the current expiry date of such Qualified
Letter of Credit, the Issuing Bank has given a notice of non-extension referred
to in the definition of “Qualified Letter of Credit”, and the Beneficiary has
not received a replacement Qualified Letter of Credit under
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Section
13.2, to draw upon such Qualified Letter of Credit an amount equal to the
maximum remaining amount available to be drawn thereunder; and
(g) if
the
Lessee fails
to cause the Applicant to provide a required Qualifying Letter of Credit
(as
defined in the Master Letter Agreement) by May
15,
2022 in accordance with Section 5(a) of the Master Letter Agreement, and the
Beneficiaryhas not
received a
Qualifying Letter of Credit, to draw upon
such Qualified Letter
of Credit an amount equal to or less than the amount of the Qualifying
Letter of Credit that was required to be provided pursuant to Section 5(a)
of
the Master Letter Agreement;
provided
that an authorized representative or officer of the Beneficiary delivers
to the
Issuing Bank a certificate as to the occurrence of the condition allowing
such
draw.
Section
13.4. Letter of Credit Proceeds. Upon a draw on a
Qualified Letter of Credit by the Beneficiary, the proceeds shall be deposited
and handled as set forth in that certain Master Letter Agreement dated as
of
even date herewith (the “Master Letter
Agreement”).
Section
13.5. Lessor Payment Obligation. Notwithstanding
any provision in the Master Letter Agreement to the contrary, the Lessor
shall
be obligated to pay to the Applicant within ninety (90) days after the
termination of this Lease an amount equal to the portion of the LOC Account
Excess Amount (as defined in the Master Letter Agreement) received by the
Lessor, if any, that is not required to be used to satisfy the Lessee’s unpaid
obligations under this Lease. In no event shall the amount of such
payment exceed an amount equal to the LOC Account Excess Amount actually
received by the Lessor. The Lessor hereby covenants and agrees that
it will continue to comply with its covenants and agreements set forth in
Section 5.01 and Section 5.02 of the Indenture, as in effect on the date
hereof,
until such time as any amount due and payable to the Applicant under this
Section 13.5 or under Section 4(b)(vi)(B) of the Master Letter Agreement
is paid
to the Applicant.
Section
13.6. Quarterly Compliance Certificate. Within
thirty (30) days after the end of each calendar quarter in each calendar
year
during the Base Term and all applicable Renewal Terms, the Lessee shall deliver
to the Lessor, the Indenture Trustee and the Beneficiary a certificate executed
by Lessee confirming (a) each Obligor has waived all direct or indirect
rights of reimbursement, subrogation or other claims against the Lessee with
respect to any outstanding Qualified Letter of Credit, (b) Lessee is not an
Obligor with respect to any such Qualified Letter of Credit, and (c) such
Qualified Letter of Credit is not collateralized with any asset in which
the
Lessee has an ownership or other interest.”
(h) Section
15.1 is hereby modified by deleting the words “or Guarantor” appearing in
line 29 thereof.
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(i) Section
16.1(a) is hereby modified by deleting the terms of the section in
their entirety and substituting in lieu thereof the following:
Lessee
shall fail to make any Termination Value Payment or Stipulated Loss Value
Payment within three (3) Business Days after the same shall become
due;
(j) Section
16.1(b) is hereby modified by deleting the terms of the section in
their entirety and substituting in lieu thereof the following:
Lessee
shall fail to make any payment of Base Rent, Supplemental Rent or any other
payment required to be made under this Lease and such failure shall continue
for
a period of ten (10) days after written notice thereof from Lessor or the
Servicer;
(k) Section
16.1(c) is hereby modified by: (i) deleting the words “any of Guarantor or”
appearing in line 1 thereof; and (ii) deleting the words “Guarantor or Lessee
(as applicable)” appearing in line 7 thereof and substituting in lieu thereof
the word “Lessee”.
(l) Section
16.1(e) is hereby modified by: (i) deleting the
words “the Guarantor or” appearing in line 1 thereof; and (ii) deleting the
words “Guarantor or” appearing in line 2 thereof.
(m) Section
16.1(f) is hereby modified by deleting the words “or Guarantor” appearing in
lines 1, 2, 4, 5, 6, 7-8 (both occurrences), 9-10, 11, 13, 16, 17, 21, 22
and 24
thereof.
(n) Section
16.1(g) is hereby modified by deleting the terms of the section in their
entirety.
(o) Section
19.1(a) is hereby modified by: (i) deleting the words “or Guarantor”
appearing in line 32 thereof; and (ii) deleting the words “or the Guaranty, as
applicable,” appearing in line 33 thereof.
(p) Appendix
A is hereby modified by:
i. adding
the following definition of “Acceptable Bank”:
““Acceptable
Bank” shall mean any bank or trust company (i) which is organized under
the laws of the United States of America or any State thereof, (ii) which
has
capital, surplus and undivided profits aggregating at least $1,000,000,000,
and
(iii) which has a Debt Rating issued by Standard & Poor’s of at least of at
least AA- and a Debt Rating issued by Xxxxx’x of at least Aa3 (or such bank or
trust company must have either of such Debt Ratings in the event that either
Xxxxx’x or Standard & Poor’s (including their respective successors) shall
have ceased to exist).”
ii. restating
the definition of “Address” as follows:
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““Address”
shall mean, subject to the rights of the party in question to change
its Address in accordance with the terms of the Operative
Documents:
(i) with
respect to Lessee: TXU Properties Company, 0000 Xxxxx Xxxxxx, Xxxxxx,
Xxxxx 00000, Attention: Treasurer.
(ii) with
respect to Lessor: c/o U.S. Bank, N.A. (as successor-in-interest to
State Street Bank and Trust Company of Connecticut, National Association),
as
Owner Trustee, 0 Xxxxxxx Xxxxxx, 0xx Xxxxx,
Xxxxxx,
Xxxxxxxxxxxxx 00000, Attention: Corporate Trust Administration;
with
a copy to the Owner Participant: ZSF/Dallas Tower LLC, c/o Zurich
Structured Finance, Inc., 000 Xxxx 00xx Xxxxxx,
Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xx. Xxxxxxxxx Xxxxxx;
with
an additional copy to the Owner Participant: ZSF/Dallas Tower LLC,
c/o Zurich Structured Finance, Inc., 000 Xxxx 00xx Xxxxxx,
Xxx Xxxx,
Xxx Xxxx 00000, Attention: General Counsel;
with
an additional copy to Xxxx Xxxxxx: Xxxxxx Xxxxx Xxxxxxxx &
Xxxxxxx LLP, 1177 Avenue of the Xxxxxxxx, 00xx Xxxxx,
Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xx. Xxxx Xxxxxx.
(iii) with
respect to the Indenture Trustee: LaSalle Bank National Association,
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000,
Attention: GSTS - TXU Pass-Through Trust, Series 2002-1;
with
a copy to the Servicer: Wachovia Bank, National Association, 000
Xxxxx Xxxxxxx Xxxxxx, XX 0000, Xxxxxxxxx, XX 00000;
with
an additional copy to each of the following holders of Pass-Through Trust
Certificates (so long as such holders continue to own Pass-Through Trust
Certificates): (a) The Prudential Insurance Company of America,
c/o Prudential Capital Group, 0000 Xxxx Xxxxxx, Xxxxx 0000X, Xxxxxx,
XX 00000; (b) Allstate Life Insurance Company, Private
Placements Department, 0000 Xxxxxxx Xxxx, XXX X0X, Xxxxxxxxxx, Xxxxxxxx
00000-0000; (c) Allstate Life Insurance Company of New York, Private
Placements Department, 0000 Xxxxxxx Xxxx, XXX X0X, Xxxxxxxxxx, Xxxxxxxx
00000-0000; (d) Nationwide Life Insurance Company, Xxx Xxxxxxxxxx Xxxxx
(0-00-00), Xxxxxxxx, Xxxx 00000-0000; (e) Nationwide Life and
Annuity Insurance Company, Xxx Xxxxxxxxxx Xxxxx (0-00-00), Xxxxxxxx,
Xxxx 00000-0000; (f) Thrivent Financial for Lutherans, Attn: Xx
Xxxxxx, 000 Xxxxxx Xxxxxx Xxxxx, Xxxxxxxxxxx,
Xxxxxxxxx 00000.
(iv) with
respect to the Servicer: Wachovia Bank, National Association, 000
Xxxxx Xxxxxxx Xxxxxx, XX 0000, Xxxxxxxxx, XX 00000;
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with
a copy to the Indenture Trustee: LaSalle Bank National Association,
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000,
Attention: GSTS - TXU Pass-Through Trust, Series 2002-1;
iii. adding
the following definition of “Applicant”:
““Applicant”
shall mean TXU Corp. or any Affiliate of TXU Corp. other than the
Lessee.”
iv. adding
the following definition of “Beneficiary”:
““Beneficiary”
shall mean the Servicer, acting on behalf of the Indenture Trustee,
as
assignee of the Lessor’s rights under the Lease, and its successors and assigns,
including any permitted assignees of its rights and obligations with respect
to
any Qualified Letter of Credit.”
v. adding
the following definition of “Debt Rating”:
““Debt
Rating” shall mean, with respect to any Person, the rating applicable
to such Person’s senior, unsecured non-credit enhanced long-term indebtedness
for borrowed money issued by Standard & Poor’s or Xxxxx’x, as
applicable. A Debt Rating, whether public or private, issued by
Standard & Poor’s or Xxxxx’x shall be deemed to be in effect on the date of
announcement or publication by Standard & Poor’s or Xxxxx’x, as the case may
be, of such Debt Rating or, in the absence of such announcement or publication,
on the effective date of such Debt Rating and will remain in effect until
the
date when any change in such Debt Rating is deemed to be in
effect.”
vi. deleting
the definition of “Guarantor.”
vii. deleting
the definition of “Guaranty.”
viii. adding
the following definition of “Issuing Bank”:
““Issuing
Bank” shall mean an Acceptable Bank that issues a Qualified Letter of
Credit.”
ix. restating
the following definition of “Lease”:
““Lease”
shall mean the Lease Agreement dated as of the Closing Date between Lessor,
as
lessor, and Lessee, as lessee, as amended by that certain First Amendment
to
Lease Agreement dated as of June 1, 2007.”
x. within
the definition of “Lease Operative Documents”, deleting reference therein to
“the Guaranty”;
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xi. adding
the following definition of “Majority in Interest of the
Certificateholders”:
““Majority
in Interest of the Certificateholders” shall mean
the “Majority in Interest of the Holders” as such term is defined in the
Pass-Through Trust Agreement.”
xii. adding
the following definition of “Master Latter Agreement”:
““Master
Letter Agreement” shall have the meaning
specified in Section 13.4 of the Lease.”
xiii. within
the definition of “Net Casualty Proceeds”, deleting the words “, the Guarantor”
appearing in line 4 thereof;
xiv. within
the definition of “Net Condemnation Proceeds”, deleting the words “, the
Guarantor” appearing in line 3 thereof;
xv. adding
the following definition of “Obligor”:
““Obligor”
shall mean, with respect to any Qualified Letter of Credit that is outstanding,
each entity that is directly or indirectly obligated to reimburse the Issuing
Bank for any amounts drawn under such Qualified Letter of Credit; provided,
however, that the term “Obligor” shall not include any entity which, on the
day on which Beneficiary would otherwise be entitled to draw on such Qualified
Letter of Credit, is not directly or indirectly obligated to reimburse the
Issuing Bank for any amounts drawn under such Qualified Letter of
Credit.”
xvi. within
sub-item (c) of the definition of “Permitted Liens”, deleting the word
“Guarantor” appearing in line 7 thereof and substituting in lieu thereof the
word “Lessee”;
xvii. within
sub-item (d) of the definition of “Permitted Liens”, (1) deleting the words
“Guarantor (or Lessee if there is no Guarantor)” appearing in lines 4-5 thereof
and substituting in lieu thereof the word “Lessee”, and (2) deleting the word
“Guarantor” appearing in line 7 thereof and substituting in lieu thereof the
word “Lessee”;
xviii. within
the final paragraph of the definition of “Permitted Liens”, deleting the words
“Guarantor’s and” appearing in line 4 thereof;
xix. adding
the following definition of “Qualified Letter of Credit”:
““Qualified
Letter of Credit” shall mean an irrevocable, standby letter of
credit issued, at the request of Applicant, by an Acceptable Bank in favor
of
the
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Beneficiary,
substantially in form of Exhibit D attached to the Master Letter Agreement,
or
otherwise in form and substance reasonably satisfactory to the Lessor and
the
Majority in Interest of the Certificateholders and satisfying all of the
following criteria:
(A) at no time
shall the Lessee be an Obligor with respect to such letter of
credit;
(B) such
letter of credit shall at no time be collateralized with any asset in which
the
Lessee has an ownership or other interest;
(C) such
letter of credit shall at all times be at least equal to (1) $5,000,000,
plus (2) the greater of (I) the aggregate Base Rent then remaining to be
paid over the remainder of the scheduled Base Term and (II) the largest
Stipulated Loss Value listed on Schedule 12.1 to the Lease that may become
payable by the Lessee during the remainder of the scheduled Base Term,
provided that in the event of a partial draw pursuant to clause (E)(I)
below that reduces the amount of such letter of credit below the required
minimum amount described above, Applicant shall have thirty (30) days to
increase or replace such letter of credit so that the amount of such letter
of
credit or the replacement letter of credit is equal to or greater than the
required minimum amount described above;
(D) (I) with
respect to the Base Term, such letter of credit shall have a stated expiry
date
which is the sooner to occur of (a) May 31, 2022 or (b) a date that is at
least one year from date of the issuance thereof, and, if such expiry date
is
prior to May 31, 2022, which shall be automatically extended pursuant to
the
terms of such letter of credit for a period of at least one year from the
date
of such expiration (but in no event beyond May 31, 2022) unless the
Issuing Bank shall, not later than 60 days prior to the stated expiry date,
provide written notice to the Applicant, the Servicer, acting on behalf of
the
Indenture Trustee (as assignee of the Lessor’s rights under the Lease), and the
Lessor, stating that the Issuing Bank elects not to automatically extend
such
letter of credit for any additional period; or (II) with respect to any
Renewal Term, such letter of credit shall have a stated expiry date which
is the
sooner to occur of (a) ninety (90) days after the expiration of such Renewal
Term or (b) a date that is at least one year from date of the issuance
thereof, and, if such expiry date is prior to the date that is ninety (90)
days
after the expiration of such Renewal Term, which shall be automatically extended
pursuant to the terms of such letter of credit for a period of at least one
year
from the date of such expiration (but in no event beyond the date that is
ninety
(90) days after the expiration of such Renewal Term) unless the Issuing
Bank shall, not later than 60 days prior to the stated expiry date, provide
written notice to the Applicant and the Lessor, stating that the Issuing
Bank
elects not to automatically extend such letter of credit for any additional
period;
(E) such
letter of credit shall provide that it may be drawn in whole or in part,
with
funds under such letter of credit being available to the
Beneficiary
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against
presentation at the Issuing Bank’s office, in person, via courier or other
delivery service, on or before the expiry date of such letter of credit,
of the
Beneficiary’s sight draft(s) drawn on the Issuing Bank and accompanied by a
written statement signed by an authorized representative or officer of the
Beneficiary reading as one of the following (with the blanks filled
in):
(I) “WE
HEREBY CERTIFY THAT THE LESSEE FAILED TO MAKE PAYMENT OF BASE RENT DUE AND
PAYABLE ON _________ PURSUANT TO THAT CERTAIN LEASE AGREEMENT DATED AS OF
FEBRUARY 14, 2002, AS AMENDED, FOR THE PROPERTY CURRENTLY OR PREVIOUSLY KNOWN
AS
ENERGY PLAZA IN DALLAS, TEXAS, AND THE AMOUNT OF THIS DRAWING, $______________,
AN AMOUNT EQUAL TO OR LESS THAN THE AMOUNT OF BASE RENT THAT ON SUCH DATE
WAS
DUE AND PAYABLE PURSUANT TO THE LEASE BUT NOT PAID, REMAINS UNPAID AS OF
THE
DATE HEREOF.”
OR
(II) "WE
HEREBY CERTIFY THAT THE LESSEE FAILED TO MAKE A STIPULATED LOSS VALUE PAYMENT
DUE AND PAYABLE ON _________ PURSUANT TO THAT CERTAIN LEASE AGREEMENT DATED
AS
OF FEBRUARY 14, 2002, AS AMENDED, FOR THE PROPERTY CURRENTLY OR PREVIOUSLY
KNOWN
AS ENERGY PLAZA IN DALLAS, TEXAS, AND THE AMOUNT OF THIS DRAWING, $__________,
AN AMOUNT EQUAL TO OR LESS THAN THE STIPULATED LOSS VALUE PAYMENT THAT ON
SUCH
DATE WAS DUE AND PAYABLE PURSUANT TO THE LEASE BUT NOT PAID, REMAINS UNPAID
AS
OF THE DATE HEREOF."
OR
(III) "WE
HEREBY CERTIFY THAT A LEASE EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING
PURSUANT TO THAT CERTAIN LEASE AGREEMENT DATED AS OF FEBRUARY 14, 2002, AS
AMENDED, FOR THE PROPERTY CURRENTLY OR PREVIOUSLY KNOWN AS ENERGY PLAZA IN
DALLAS, TEXAS, AND THE BENEFICIARY HEREBY DRAWS $___________, THE MAXIMUM
REMAINING AMOUNT AVAILABLE TO BE DRAWN UNDER THE LETTER OF CREDIT."
OR
(IV) "WE
HEREBY CERTIFY THAT (A) AN “OBLIGOR” (AS DEFINED IN THAT CERTAIN LEASE AGREEMENT
DATED AS OF FEBRUARY 14, 2002, AS AMENDED, FOR THE PROPERTY CURRENTLY OR
PREVIOUSLY KNOWN AS ENERGY PLAZA IN DALLAS, TEXAS) HAS MADE A GENERAL
ARRANGEMENT OR ASSIGNMENT FOR THE BENEFIT OF CREDITORS; (B) AN OBLIGOR HAS
BECOME A “DEBTOR” AS DEFINED IN 11 U.S.C. § 101 OF THE BANKRUPTCY CODE OR
ANY SUCCESSOR STATUTE THERETO (AND, IN THE CASE OF A PETITION FILED AGAINST
SUCH
OBLIGOR, THE PETITION WAS FILED AT LEAST NINETY (90) DAYS PRIOR TO THE DATE
OF
THIS DRAWING AND HAS NOT BEEN DISMISSED); (C) AT LEAST NINETY (90) DAYS PRIOR
TO
THE DATE OF THIS DRAWING THERE WAS AN APPOINTMENT OF A TRUSTEE OR RECEIVER
TO
TAKE POSSESSION OF SUBSTANTIALLY ALL OF THE ASSETS OF AN OBLIGOR AND POSSESSION
HAS NOT BEEN RESTORED; (D) THERE OCCURRED AN ATTACHMENT, EXECUTION OR OTHER
JUDICIAL SEIZURE OF SUBSTANTIALLY ALL OF THE ASSETS OF AN OBLIGOR
AT
11
LEAST
NINETY (90) DAYS PRIOR TO THE DATE OF THIS DRAWING AND SUCH ATTACHMENT,
EXECUTION OR OTHER JUDICIAL SEIZURE HAS NOT BEEN DISCHARGED; (E) AN OBLIGOR
HAS
ADMITTED IN WRITING ITS INABILITY TO PAY ITS DEBTS GENERALLY AS THEY BECOME
DUE;
(F) AN OBLIGOR HAS FILED A PETITION IN BANKRUPTCY OR A PETITION TO TAKE
ADVANTAGE OF ANY INSOLVENCY ACT; (G) AN OBLIGOR HAS FILED A PETITION
OR ANSWER SEEKING REORGANIZATION OR ARRANGEMENT OR OTHER PROTECTION UNDER
THE
FEDERAL BANKRUPTCY LAWS OR ANY OTHER APPLICABLE LAW OR STATUTE OF THE UNITED
STATES OF AMERICA OR ANY STATE THEREOF; (H) AN OBLIGOR HAS LIQUIDATED OR
DISSOLVED, OR BEEN PLACED UNDER CONSERVATORSHIP OR OTHER PROTECTION UNDER
ANY
APPLICABLE FEDERAL OR STATE LAW OR BEGAN PROCEEDINGS TOWARD SUCH LIQUIDATION
OR
DISSOLUTION; (I) A PETITION HAS BEEN FILED AT LEAST NINETY (90) DAYS PRIOR
TO
THE DATE OF THIS DRAWING BY OR AGAINST AN OBLIGOR UNDER FEDERAL BANKRUPTCY
LAWS,
OR ANOTHER PROCEEDING HAS BEEN INSTITUTED AT LEAST NINETY (90) DAYS PRIOR
TO THE
DATE OF THIS DRAWING BY OR AGAINST AN OBLIGOR SEEKING TO ADJUDICATE IT BANKRUPT
OR INSOLVENT, OR SEEKING LIQUIDATION, REORGANIZATION, ARRANGEMENT, ADJUSTMENT
OR
COMPOSITION OF IT OR ITS DEBTS UNDER ANY LAW RELATING TO BANKRUPTCY, INSOLVENCY
OR REORGANIZATION OR RELIEF OF DEBTORS, OR SEEKING THE ENTRY OF AN ORDER
FOR
RELIEF OR THE APPOINTMENT OF A RECEIVER, TRUSTEE, CUSTODIAN OR OTHER SIMILAR
OFFICIAL FOR SUCH OBLIGOR, OR FOR ANY SUBSTANTIAL PART OF THE PROPERTY OF
SUCH
OBLIGOR, AND SUCH PROCEEDING HAS NOT BEEN DISMISSED; OR (J) AN OBLIGOR HAS
TAKEN
AN ACTION TO AUTHORIZE OR EFFECT ANY OF THE ACTIONS SET FORTH ABOVE, AND
THE
BENEFICIARY HEREBY DRAWS $___________, THE MAXIMUM REMAINING AMOUNT AVAILABLE
TO
BE DRAWN UNDER THE LETTER OF CREDIT."
OR
(V) "WE
HEREBY CERTIFY THAT (A) AN “OBLIGOR” (AS DEFINED IN THAT CERTAIN LEASE AGREEMENT
DATED AS OF FEBRUARY 14, 2002, AS AMENDED, FOR THE PROPERTY CURRENTLY OR
PREVIOUSLY KNOWN AS ENERGY PLAZA IN DALLAS, TEXAS) HAS RIGHTS OF REIMBURSEMENT,
SUBROGATION OR OTHER CLAIMS WITH RESPECT TO SUCH LETTER OF CREDIT AGAINST
THE
LESSEE UNDER SUCH LEASE AGREEMENT, (II) THE LESSEE IS DIRECTLY OR
INDIRECTLY OBLIGATED TO REIMBURSE BANK FOR ANY AMOUNTS DRAWN UNDER BANK
IRREVOCABLE STANDYBY LETTER OF CREDIT NO. _________________, OR (III) SUCH
LETTER OF CREDIT IS COLLATERALIZED WITH ANY ASSET IN WHICH THE LESSEE HAS
AN
OWNERSHIP OR OTHER INTEREST, AND THE BENEFICIARY HEREBY DRAWS $___________,
THE
MAXIMUM REMAINING AMOUNT AVAILABLE TO BE DRAWN UNDER THE LETTER OF
CREDIT."
OR
(VI) "WE
HEREBY CERTIFY THAT THIRTY (30) OR FEWER DAYS REMAIN PRIOR TO THE CURRENT
EXPIRY
DATE OF THIS LETTER OF CREDIT, BANK HAS GIVEN NOTICE OF NON-EXTENSION AND
THE
SERVICER ON BEHALF OF THE INDENTURE TRUSTEE HAS NOT RECEIVED A QUALIFIED
LETTER
OF CREDIT AND BENEFICIARY IS ENTITLED TO DRAW $___________, THE MAXIMUM
REMAINING AMOUNT AVAILABLE TO BE DRAWN UNDER THE LETTER OF
CREDIT."
12
OR
(VI) "WE
HEREBY CERTIFY THAT THE LESSEE WAS REQUIRED TO DELIVER A QUALIFYING LETTER
OF
CREDIT ON OR BEFORE MAY 15, 2022, PURSUANT TO THAT CERTAIN MASTER LETTER
AGREEMENT DATED AS
OF JUNE _, 2007, THE LESSEE FAILED TO DELIVER SUCH LETTER OF CREDIT BY SUCH
DATE
AND HAS NOT DELIVERED SUCH LETTER OF CREDIT AS OF THE DATE OF THIS DRAWING,
AND
THE BENEFICIARY IS ENTITLED TO DRAW $___________, AN AMOUNT EQUAL TO THE
AMOUNT
OF SUCH LETTER OF CREDIT REQUIRED TO BE DELIVERED."
(F) such
letter of credit shall provide that any draw will be honored in same day
funds,
wired in accordance with the Issuing Bank’s normal practices, but in no event no
later than the next business day after the date of demand; and
(G) such
letter of credit shall be transferable in its entirety, but not in part,
on one
or more occasions at no cost to Lessor or Beneficiary, and such transfer
must be
acknowledged by the Issuing Bank if requested by either Lessor or
Beneficiary.”
xx. restating
the definition of “Servicer” as follows:
““Servicer”
shall mean Wachovia Bank, National Association, as successor to First Union
National Bank, as servicer under the Indenture and its successors and
assigns.”
xxi. deleting
the definition of “TXU Guaranty Agreement.”
(q) Schedule
9.1, part (b) is hereby modified by deleting the words “Guarantor (or Lessee
if there is no Guarantor)” appearing in line 1 thereof and substituting in lieu
thereof the word “Lessee”.
(r) Exhibit
B, part (f) is hereby modified by deleting the words “[and the Guarantor]”
appearing in line 1 thereof.
(s) Any
references in the Lease to “Guarantor” or “Guaranty” not hereinabove referenced
are hereby deleted and the terms of the Lease are hereby accordingly modified
to
reflect the termination of the Guaranty and Guarantor.
3. Lessee’s
Required Rating. Lessee acknowledges that certain rights and
obligations of Lessee under the Lease, as modified by this Amendment, are
contingent upon whether Lessee has a Required Rating equal to or greater
than
the Trigger Rating. Such rights and obligations include, without
limitation, those included in Sections 7.1, 8.5, 8.6, 9.1 and 12.1 of the
Lease,
among others, and in certain definitions contained in Appendix A to the Lease
including, among others, the definition of “Permitted Liens”. Lessee
further acknowledges that it has no rating from any NSRO, and that unless
and
until it has a Required Rating equal to or greater than the Trigger Rating
from
at least two (2) NSROs, all of such rights referenced
13
hereinabove
shall not be available to Lessee and all of such obligations referenced
hereinabove shall be imposed upon Lessee.
4. Representations
and Warranties. Lessee represents and warrants to Lessor that the
following are true and correct as of the date of this Amendment:
(a) Due
Organization. Lessee is a corporation duly organized, validly
existing and in good standing in the State of Texas and is qualified to do
business in the State of Texas. Lessee has the corporate power and
authority to conduct its business as now conducted, to own or hold under
lease
its property, to lease the Property and to enter into and perform its
obligations under the Lease, as amended by this Amendment, and the Master
Letter
Agreement. Lessee is duly qualified to do business and is in good standing
as a
foreign corporation in any jurisdiction where the failure to so qualify would
have a material adverse effect on its ability to perform its obligations
under
the Lease, as amended by this Amendment, and the Master Letter
Agreement.
(b) Due
Authorization; No Conflict. Each of the Lease, as amended by
this Amendment, and the Master Letter Agreement has been duly authorized
by all
necessary corporate action on the part of Lessee and has been duly executed
and
delivered by Lessee, and the execution, delivery and performance thereof
by
Lessee will not, (i) require any approval of the stockholder of Lessee (except
as heretofore obtained) or any approval or consent of any trustee or holder
of
any indebtedness or obligation of Lessee or of any Affiliate of Lessee, other
than such consents and approvals as have been obtained, (ii) contravene any
Applicable Law binding on Lessee or (iii) contravene or result in any breach
of
or constitute any default under Lessee’s charter or by-laws or other
organizational documents, or any indenture, judgment, order, mortgage, loan
agreement, contract, partnership or joint venture agreement, lease or other
agreement or instrument to which Lessee is a party or by which Lessee is
bound,
or result in the creation of any Lien (other than pursuant to the Operative
Documents) upon any of the property of Lessee.
(c) Enforceability. Each
of the Lease, as amended by this Amendment, and the Master Letter Agreement
constitutes the legal, valid and binding obligation of Lessee, enforceable
against Lessee in accordance with the terms thereof, except as enforceability
may be limited by bankruptcy, moratorium, fraudulent conveyance, insolvency,
general principles of equity or other similar laws affecting the enforcement
of
creditors’ rights in general.
5. Full
Force and Effect. Except as herein expressly amended, modified
and supplemented, all of the terms, conditions and provisions of the Lease
remain in full force and effect and are hereby ratified and confirmed in
every
respect. Lessee takes the occasion of the execution of this Amendment
to confirm that, to the best of Lessee’s knowledge: (i) Lessor
is not in default under the Lease and Lessor has fully and properly fulfilled
all of its obligations under the Lease; (ii) Lessee has no dispute with
respect to any payments of Base Rent and/or Supplemental Rent heretofore
made by
Lessee nor any other claims against Lessor under or in connection with the
Lease
or otherwise; and (iii) Lessee is in possession of the Property and is satisfied
with the condition of the Property and that Lessor shall have no obligation
to
perform any work and/or installations, supply any materials or equipment
and/or
otherwise incur any cost or expense in order to prepare same for Lessee’s
continued occupancy or otherwise. Lessor
14
takes
the occasion of the execution of this Amendment to confirm that, to the best
of
Lessor’s knowledge: (i) Lessee is not in default under the Lease and Lessee
has fully and properly fulfilled all of its obligations under the Lease;
and
(ii) Lessor has no dispute with respect to any payments of Base Rent and/or
Supplemental Rent heretofore made by Lessee nor any other claims against
Lessee
under or in connection with the Lease or otherwise.
6. Counterparts. This
Amendment may be executed in any number of counterparts, each of which shall
be
deemed an original and all of which counterparts together shall constitute
one
agreement with the same effect as if the parties had signed the same signature
page. Delivery of an executed counterpart of a signature page of this
Amendment by facsimile shall be effective as delivery of a manually executed
counterpart.
7. Effectiveness. This
Amendment shall be effective as of the date first above written.
8. Governing
Law. This Amendment shall be governed by, and construed in
accordance with, the laws of the State of Texas and shall be binding upon
the
parties hereto and their respective permitted successors in interest and
assigns.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
15
IN
WITNESS WHEREOF, Lessor and Lessee have executed this Amendment as of date
first
above written.
|
Lessor:
|
U.S.
BANK, N.A. (as successor-in-interest to State Street Bank and Trust
Company of Connecticut, National Association), not in its individual
capacity but solely as owner trustee of ZSF/Dallas Tower
Trust
|
By: /s/
XXXX X. XXXXXXXX
XX.
Name:
XXXX X. XXXXXXXX
XX.
Title: Vice
President
Lessee: TXU
PROPERTIES COMPANY
By: /s/
XXXXXXX
XXXXXX
Name: Xxxxxxx
Xxxxxx
Title: Treasurer
and
Assistant Secretary
16