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EXECUTION COPY
AMENDMENT
This AMENDMENT, dated as of March 3, 1998, among TEXAS UTILITIES
COMPANY, a Texas corporation ("TUC"), TEXAS UTILITIES ELECTRIC COMPANY, a Texas
corporation ("TU ELECTRIC"), ENSERCH CORPORATION, a Texas corporation
("ENSERCH" and, together with TUC and TU Electric, the "BORROWERS"), the
lenders parties to the Credit Agreements referred to below (the "LENDERS"), THE
CHASE MANHATTAN BANK, as Competitive Advance Facility Agent (the "CAF AGENT"),
and CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, as administrative agent for the
lenders (the "ADMINISTRATIVE AGENT" and, together with the CAF Agent, the
"AGENTS").
PRELIMINARY STATEMENTS:
(1) The Borrowers, the Lenders and the Agents have entered into a
364-Day Competitive Advance and Revolving Credit Facility Agreement (the
"FACILITY A CREDIT AGREEMENT") and a Five-Year Competitive Advance and
Revolving Credit Facility Agreement (the "FACILITY B CREDIT AGREEMENT" and,
together with the Facility A Credit Agreement, the "CREDIT AGREEMENTS"), each
dated as of March 2, 1998. Capitalized terms used but not defined herein are
used with the meanings assigned to them in the Credit Agreements.
(2) The Borrowers and the Lenders have agreed to amend the
Facility A Credit Agreement to increase the amount of the Offer Loan
Commitments and to make certain conforming changes in the Facility B Credit
Agreement as hereinafter set forth.
SECTION 1. AMENDMENTS TO FACILITY A CREDIT AGREEMENT. The
Facility A Credit Agreement is, effective as of the date hereof and subject to
the satisfaction of the conditions precedent set forth in Section 3 hereof,
hereby amended as follows:
(a) The cover page to the Facility A Credit Agreement and
the preamble thereto are amended by deleting therefrom the figure
"$3,500,000,000" and substituting for such figure the figure
"$3,600,000,000".
(b) Section 1.01 is amended by deleting from the
definition of "Equity Event" the figure "$1.5 billion" therein and
substituting for such figure the figure "$1.505 billion".
(c) Section 1.01 is amended by inserting at the end of
the definition of "Letter Agreement" (and before the punctuation at
the end of such definition) the phrase ",each as amended, modified or
supplemented from time to time".
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(d) Section 5.08 is amended by deleting the introductory
clause of paragraph (ii) thereof and substituting for such clause
"(ii) up to $2.8 billion of the proceeds of the Loans solely to
finance or refinance (directly or indirectly, including as a
commercial paper back-up) equity or subordinated loan advances from
TUC to FinCo1 and FinCo2 to finance:".
(e) Schedule 2.01 is deleted in its entirety and replaced
by a new Schedule 2.01 in the form of Exhibit A hereto.
SECTION 2. AMENDMENT TO FACILITY B CREDIT AGREEMENT. Section
1.01 of the Facility B Credit Agreement is, effective as of the date hereof and
subject to the satisfaction of the conditions precedent set forth in Section 3
hereof, hereby amended by inserting at the end of the definition of "Letter
Agreement" (and before the punctuation at the end of such definition) the
phrase ", each as amended, modified or supplemented from time to time".
SECTION 3. CONDITIONS OF EFFECTIVENESS. This Amendment shall
become effective when, and only when, the Administrative Agent shall have
received counterparts of this Amendment executed by the Borrowers and all of
the Lenders, and Sections 1 and 2 hereof shall become effective when, and only
when, the Administrative Agent shall have additionally received all of the
following documents, each document (unless otherwise indicated) being dated the
date of receipt thereof by the Administrative Agent (which date shall be the
same for all such documents and shall be hereinafter referred to as the
"AMENDMENT DATE"), in form and substance satisfactory to the Administrative
Agent:
(a) Fully executed counterparts of an Amended and
Restated Underwriting Fee Letter, substantially in the form of Exhibit
B hereto.
(b) Favorable opinions of Xxxx & Priest LLP and Xxxxxxx,
Xxxxxxxx & Xxxxxxxxxx, L.L.P., each to the effect that this Amendment
has been duly authorized, executed and delivered by the Borrowers and
confirming the opinion of such counsel furnished on March 2, 1998
pursuant to Section 4.01(c) of each Credit Agreement, with references
therein to the Credit Agreements to mean this Amendment and the Credit
Agreements, as amended by this Amendment.
(c) The Lenders shall have received evidence of the
execution and delivery of an amendment to the U.K. Facility Agreement,
in form and substance satisfactory to the Lenders, relating to an
increase in the "Commitments" under and as defined in the U.K.
Facility Agreement.
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SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE BORROWERS.
Each Borrower confirms and repeats, as of the date hereof and as of the
Amendment Date, the representations and warranties made by such Borrower in
Article III of each Credit Agreement, with references therein to any Credit
Agreement to be deemed to be references to this Amendment and such Credit
Agreement, as amended by this Amendment.
SECTION 5. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENTS.
Upon the effectiveness of Sections 1 and 2 hereof, on and after the date hereof
each reference in any Credit Agreement to "this Agreement", "hereunder",
"hereof" or words of like import referring to such Credit Agreement shall mean
and be a reference to such Credit Agreement, as amended hereby. Except as
specifically amended above, the Credit Agreements are and shall continue to be
in full force and effect and are hereby in all respects ratified and confirmed.
The execution, delivery and effectiveness of this Amendment shall not, except
as expressly provided herein, operate as a waiver of any right, power or remedy
of any Lender or any Agent under any Credit Agreement, nor constitute a waiver
of any provision of any Credit Agreement.
SECTION 6. COSTS AND EXPENSES. The Borrowers agree to pay all
reasonable out-of-pocket expenses incurred by the Agents in connection with
entering into this Amendment (whether or not the transactions hereby
contemplated are consummated), or incurred by the Agents or any Lender in
connection with the enforcement of their rights in connection with this
Amendment.
SECTION 7. EXECUTION IN COUNTERPARTS. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute but
one and the same agreement.
SECTION 8. GOVERNING LAW. This Amendment shall be governed by,
and construed in accordance with, the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
TEXAS UTILITIES COMPANY
By /s/ Texas Utilities Company
----------------------------
Name:
Title:
TEXAS UTILITIES ELECTRIC COMPANY
By /s/ Texas Utilties Electric Company
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Name:
Title:
ENSERCH CORPORATION
By /s/ ENSERCH Corporation
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Name:
Title:
[SIGNATURE PAGE TO AMENDMENT]
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CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, as Administrative Agent
By /s/ Chase Bank of Texas,
National Association
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Name:
Title:
[SIGNATURE PAGE TO AMENDMENT]
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THE CHASE MANHATTAN BANK,
as Lender and as Competitive Advance
Facility Agent
By /s/ The Chase Manhattan Bank
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Name:
Title:
[SIGNATURE PAGE TO AMENDMENT]
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XXXXXX COMMERCIAL PAPER INC.
By /s/ Xxxxxx Commercial Paper Inc.
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Name:
Title:
[SIGNATURE PAGE TO AMENDMENT]
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XXXXXXX XXXXX CAPITAL CORPORATION
By /s/ Xxxxxxx Xxxxx Capital Corporation
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Name:
Title:
[SIGNATURE PAGE TO AMENDMENT]
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EXHIBIT A
SCHEDULE 2.01
Offer Loan General Loan Aggregate
Name Commitment Commitment Commitment
---- ---------- ---------- ----------
The Chase Manhattan Bank $0,933,333,333.00 $266,666,667.00 $1,200,000,000.00
Xxxxxx Commercial Paper Inc. 933,333,333.00 266,666,667.00 1,200,000,000.00
Xxxxxxx Xxxxx Capital Corporation 933,333,334.00 266,666,666.00 1,200,000,000.00
--------------------------------- ----------------- --------------- =================
TOTAL $2,800,000,000.00 $800,000,000.00 $3,600,000,000.00
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EXHIBIT B
THE CHASE MANHATTAN BANK
XXXXXX COMMERCIAL PAPER INC.
XXXXXXX XXXXX CAPITAL CORPORATION
as of March 2, 1998
AMENDED AND RESTATED UNDERWRITING FEE LETTER
Texas Utilities Company
Energy Plaza
0000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Ladies and Gentlemen:
Reference is made to the 364-Day Competitive Advance and Revolving
Facility Agreement and the Competitive Advance and Revolving Facility
Agreement, each dated as of the date hereof (collectively, as amended, modified
or supplemented from time to time, the "CREDIT AGREEMENTS"), among Texas
Utilities Company ("TUC"), Texas Utilities Electric Company, Enserch
Corporation, certain Lenders named therein, Chase Bank of Texas, National
Association, as Administrative Agent, and The Chase Manhattan Bank ("CHASE"),
as Competitive Advance Facility Agent. Capitalized terms used but not defined
herein are used with the meanings assigned to them in the Credit Agreements.
This letter agreement is the Underwriting Fee Letter referred to in the
definition of "Letter Agreement" set forth in the Credit Agreements.
As consideration for the agreement of Chase, Xxxxxx Commercial Paper
Inc. and Xxxxxxx Xxxxx Capital Corporation (collectively, the "INITIAL
UNDERWRITERS") to underwrite the Total Commitment under each Credit Agreement,
TUC agrees to pay to the Initial Underwriters an underwriting fee (the
"UNDERWRITING FEE") in an amount equal to 1.0% of the Total Maximum Commitment
(as defined below) under each Credit Agreement, payable by TUC to the Initial
Underwriters, ratably in accordance with their respective Commitments, as
follows:
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(a) 25% of the Underwriting Fee shall be payable no later
than the third Business Day following the date of the execution and
delivery by the Borrowers of the Credit Agreements;
(b) 25% of the Underwriting Fee shall be payable upon the
earlier to occur of (i) the thirtieth day following the date of the
execution and delivery by the Borrowers of the Credit Agreements,
provided, that the Offer Loan Commitments under the Facility A Credit
Agreement shall not have been terminated in whole and (ii) the date
the Initial Underwriters distribute to prospective Lenders any written
offering materials (including, without limitation, any transaction
summary, financial information, term sheet, etc.) in connection with
the syndication of the Commitments; and
(c) the remaining 50% of the Underwriting Fee shall be
payable upon the date the Offer shall have been declared
unconditional.
As used herein, "TOTAL MAXIMUM COMMITMENT" shall mean, with respect to
each Credit Agreement, the highest Total Commitment in effect under such Credit
Agreement during the period from the date hereof until (and including) the date
payment is due under paragraph (a) above. You agree that, once paid, the
Underwriting Fee or any part thereof payable hereunder shall not be refundable
under any circumstances, regardless of whether the transactions or borrowings
contemplated by the Credit Agreements are consummated. The Underwriting Fee
shall be paid in immediately available funds and shall be in addition to
reimbursement of out-of-pocket expenses of the Joint Lead Arrangers and the
Initial Underwriters pursuant to the Syndication Letter, dated the date hereof
(the "SYNDICATION LETTER"), among TUC, the Initial Underwriters and the Joint
Lead Arrangers. You agree that the Initial Underwriters may, in their sole
discretion, share all or a portion of any of the Underwriting Fee with any of
the other Lenders.
It is understood and agreed that this Fee Letter shall not constitute
or give rise to any obligation to provide any financing; such an obligation
will arise only to the extent provided in the Credit Agreements. This Fee
Letter may not be amended or waived except by an instrument in writing signed
by the Initial Underwriters and you. This Fee Letter shall be governed by, and
construed in accordance with, the laws of the State of New York. This Fee
Letter may be executed in any number of counterparts, each of which shall be an
original, and all of which, when taken together, shall constitute one
agreement. Delivery of an executed signature page of this Fee Letter by
facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof.
You agree that this Fee Letter and its contents are subject to the
confidentiality provisions of the Syndication Letter. This Fee Letter replaces
and supersedes all prior agreements and understandings among the parties with
respect to the matters discussed herein.
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Please confirm that the foregoing is our mutual understanding by
signing and returning to us an executed counterpart of this Fee Letter.
Very truly yours,
THE CHASE MANHATTAN BANK
By
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Name:
Title:
XXXXXX COMMERCIAL PAPER INC.
By
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Name:
Title:
XXXXXXX XXXXX CAPITAL CORPORATION
By
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Name:
Title:
Accepted and agreed to as of
the date first above written:
TEXAS UTILITIES COMPANY
By
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Name:
Title:
