EXHIBIT 4(g)(4)
THIRD AMENDMENT AGREEMENT AND CONSENT
This Third Amendment Agreement and Consent, dated as of July
13, 2001 (this "Consent"), is among Reliant Energy Resources Corp., a Delaware
corporation (formerly known as NorAm Energy Corp.) ("Borrower"), the lenders
parties hereto ("Banks"), The Bank of Nova Scotia, as Issuing Bank, and
Citibank, N.A., as agent ("Agent") under the Revolving Credit Agreement dated as
of March 31, 1998 (as amended through the date hereof, the "Credit Agreement").
Terms defined in the Credit Agreement shall be used in this Consent with their
defined meanings unless otherwise defined herein.
W I T N E S S E T H:
WHEREAS, in connection with the Restructuring (as defined
below), the Borrower has requested that the Agent and the Banks enter into this
Consent with respect to the Credit Agreement as set forth herein, and to make
certain other conforming changes to the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. DEFINED TERMS. The following terms used in this Consent have the meanings set
forth below:
(a) "MergerCo" means a to-be formed wholly owned subsidiary of Regco
which will merge with and into REI in the Merger.
(b) "Regco" means Reliant Energy Regco, Inc. or another wholly owned
subsidiary of REI which after the consummation of the Merger will be the parent
company of REI's regulated businesses.
(c) "REI" means Reliant Energy, Incorporated, a Texas corporation.
(d) "Restructuring" means collectively, the following related
transactions whereby REI separates its unregulated businesses from its regulated
businesses:
(i) the performance by REI (and certain of its subsidiaries) and Unregco (and
certain of its subsidiaries) of various agreements previously entered into by
REI and Unregco relating to, among other things, the separation of REI and
Unregco, the provision of transition services, indemnification, employee benefit
matters, tax matters, the operation and maintenance of the Texas Genco (as
defined below) plants, and dispatch of the Texas Genco plants;
(ii) REI forms Regco as a wholly-owned subsidiary;
(iii) Regco forms a new wholly owned limited liability company ("Utility
Holding, LLC") ;
(iv) Utility Holding, LLC forms a new wholly owned subsidiary, MergerCo;
(v) MergerCo merges into REI (the "Merger"), whereby Regco becomes the holding
company for the former REI consolidated group, with REI's common stock being
converted into common stock of Regco on a one-for-one basis and with REI's
preferred stock either being redeemed by REI or being converted into common or
preferred stock of Regco;
(vi) REI converts into a limited liability company;
(vii) REI forms a new wholly owned subsidiary ("Texas Genco Holding Company");
(viii) all of the generating assets of Reliant Energy HL&P are contributed to a
second tier wholly owned limited partnership subsidiary of Texas Genco Holding
Company ("Texas Genco");
(ix) all of the capital stock of REI's subsidiaries (other than its financing
subsidiaries), including, without limitation, the stock of Borrower and Unregco,
is distributed to Regco, Utility Holding, LLC or another wholly owned subsidiary
of Regco;
(x) Texas Genco Holding Company merges into Regco, Utility Holding, LLC or
another wholly owned subsidiary of Regco, with Regco, Utility Holding, LLC or
the other wholly owned subsidiary of Regco, as the case may be, as the surviving
corporation of the merger;
(xi) all of the common stock of Unregco owned by Regco (or, if prior to the
Merger, REI) is distributed pro rata to the shareholders of Regco (or, if prior
to the Merger, REI) (the "Spin-off");
(xii) all of Regco's or its wholly owned subsidiary's interest in the partners
of Texas Genco is contributed to Texas Genco, Inc.; and
(xiii) up to 20% of the common stock of Texas Genco, Inc. is (x) issued and sold
in an initial public offering of such stock or (y) distributed by Regco to its
shareholders, or as a result of some combination thereof or pursuant to some
other issuance up to 20% of the common stock of Texas Genco, Inc. is listed for
trading on a national stock exchange or automated quotation system,
and any changes to such steps of the Restructuring so long as (i) such changes
do not change the general separation of the unregulated and regulated businesses
of REI contemplated by the Restructuring or (ii) such other changes do not have,
in the opinion of the Agent, a material adverse impact on the Lenders.
(e) "Texas Genco, Inc." means a to-be formed wholly owned subsidiary of
Regco which will become the indirect parent company of Texas Genco.
(f) "Unregco" means Reliant Resources, Inc., a Delaware corporation and
majority owned subsidiary of REI which after the consummation of the Spin-off
will be the parent company of a significant portion of REI's current unregulated
businesses.
2. CONSENT. The parties hereto hereby agree that, subject to compliance at all
times with the Borrower's covenant to maintain the financial ratio set forth in
Section 8.02(a) of the Credit Agreement both before and after giving effect to
the Restructuring, but notwithstanding any provisions of the Loan Documents
(including Sections 8.02(g) and 9.01(b) of the Credit Agreement) that might
otherwise prohibit the Restructuring, each of the Banks whose signature appears
below hereby consents to the Restructuring consistent with the definition
thereof, and agrees that no Default or Event of Default will be deemed to have
occurred under the Loan Documents solely as a result thereof.
3. AMENDMENT OF CREDIT AGREEMENT. The Credit Agreement is hereby amended as
follows:
(a) The definition of "HII" in the Credit Agreement is hereby amended
to read as follows:
"HII" means (i) prior to the Merger, REI and (ii) after the Merger,
Regco.
2. (b) Section 8.01 of the Credit Agreement is hereby amended as follows:
(i) in subsection (a), by deleting "100" and "55" in the first lines of (a)(i)
and (ii) thereof, respectively, and by inserting in lieu thereof "120" and
"60."
(ii) in subsection (a)(iv)(A), by (i) replacing the word "and" at the end of
clause (x) in the second line thereof with a comma and (ii) inserting the phrase
"and (z) reports on Form 10-Q or Form 10-K or any successor forms)" immediately
following the phrase "exhibits filed therewith" in the third line thereof.
(iii) by adding a new paragraph at the end of Section 8.01 as follows:
"Information required to be delivered pursuant to the foregoing Sections
8.01(a)(i), (ii), and (iv) shall be deemed to have been delivered on the date on
which Borrower provides notice (including notice by e-mail) to the Agent that
such information has been posted on the SEC website on the Internet at
xxx.xxx/xxxxx/xxxxxxxx.xxx or at another website identified in such notice and
accessible to the Banks without charge; provided that (i) such notice may be
included in a certificate delivered pursuant to Section 8.01(a)(iii) and (ii)
the Agent shall deliver paper copies of such information to the Bank that
requests such delivery."
3. REPRESENTATIONS AND WARRANTIES; DEFAULT. After giving effect to the
amendments and consents contained herein, (a) the Borrower hereby confirms,
reaffirms and restates that each of the representations and warranties set forth
in Article VII of the Credit Agreement are true and correct in all material
respects (except for (1) those representations and warranties or parts thereof
that, by their terms expressly relate solely to a specific date, in which case
such representations and warranties are true and correct in all material
respects as of such specific date; and (2) the representation and warranty set
forth in clause (i) of Section 7.01(j)) on and as of the date hereof as though
made on and as of the date hereof, provided that each reference in such Article
VII to "this Agreement" shall be deemed to be a reference both to this Consent
and to the Credit Agreement as previously amended and as amended and affected by
this Consent, (b) the Borrower hereby confirms and reaffirms its compliance with
the covenants in Article VIII of the Credit Agreement as affected by this
Consent and (c) no Default or Event of Default has occurred or is continuing.
4. EXPENSES. The Borrower agrees to pay or reimburse the Agent for all of its
out-of-pocket costs and reasonable expenses incurred in connection with this
Consent, any other documents prepared in connection herewith and the
transactions contemplated hereby, including, without limitation, the reasonable
fees and disbursements of counsel to the Agent.
5. NO CHANGE. Except as expressly amended and affected hereby, all of the terms
and provisions of the Credit Agreement and the other Loan Documents (as may have
been previously amended) are and shall remain in full force and effect. The
amendments and consents contained herein shall not constitute an amendment or
waiver of the Credit Agreement or the other Loan Documents except as expressly
set forth herein.
6. EFFECTIVENESS. This Consent shall become effective as of July 13, 2001 once
the Agent shall have received counterparts of this Consent, duly executed and
delivered by the Borrower, the Agent, the Issuing Bank and the Majority Banks.
On and after said effective date, the term "Agreement" as used in the Credit
Agreement, the other Loan Documents executed in connection therewith, and any
other instrument, document, or writing furnished to the Banks, the Agent, or the
Co-Agents by the Borrower shall mean the Credit Agreement, as amended and
affected hereby.
7. COUNTERPARTS. This Consent may be executed in any number of counterparts by
the parties hereto, each of which counterparts when so executed shall be an
original, but all the counterparts shall together constitute one and the same
instrument.
8. GOVERNING LAW. THIS CONSENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this
Consent to be duly executed and delivered by their proper and duly authorized
officers as of the date first above written.
BORROWER:
RELIANT ENERGY RESOURCES CORP.
(formerly known as NorAm Energy Corp.)
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Assistant Treasurer
AGENT:
CITIBANK, N.A., as Agent
By: /s/ Xxxxx X. Xxxxxxxx
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Authorized Officer
ISSUING BANK:
THE BANK OF NOVA SCOTIA
By: /s/ M.D. Xxxxx
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Authorized Officer
BANKS:
CITIBANK, N.A.
By: /s/ Xxxxx X. Xxxxxxxx
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Authorized Officer
BARCLAYS BANK PLC
By:
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Authorized Officer
THE FIRST NATIONAL BANK OF CHICAGO
By:
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Authorized Officer
BANK OF AMERICA, N. A.
(SUCCESSOR BY MERGER TO
NATIONSBANK, N.A.)
By: /s/ Xxxxxxx X. Xxxxx
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Authorized Officer
THE BANK OF NEW YORK
By:
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Authorized Officer
THE BANK OF TOKYO-MITSUBISHI,
LTD., HOUSTON AGENCY
By:
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Authorized Officer
THE CHASE MANHATTAN BANK
By: /s/ (illegible)
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Authorized Officer
CREDIT SUISSE FIRST BOSTON
By: /s/ Xxx Xxxxx /s/ Xxxxxx X. Xxxxxx
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Authorized Officer
DEPOSIT GUARANTY NATIONAL BANK
By:
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Authorized Officer
FLEET NATIONAL BANK
By:
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Authorized Officer
TORONTO DOMINION (TEXAS), INC.
By: /s/ Xxxx X. Xxxxx
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Authorized Officer
USB AG, STAMFORD BRANCH
By: /s/ Xxxxxxx X. Saint /s/ Xxxxxxxx X. Xxxxxx
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Authorized Officer
THE BANK OF NOVA SCOTIA
By: /s/ M. D. Xxxxx
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Authorized Officer
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By: /s/ Xxxxxx X. Xxxxx III
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Associate Director
By: /s/ Xxxxxxx Xxxxxxxxxx
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Manager
MELLON BANK, N.A.
By: /s/ Xxxxx X. Xxxxxx
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Vice President
