Exhibit 10(r)
AMENDMENT
TO CREDIT AGREEMENT
This AMENDMENT, dated as of February 22, 2002, (this "Amendment") is made
to that certain FIVE-YEAR SECOND AMENDED AND RESTATED COMPETITIVE ADVANCE AND
REVOLVING CREDIT FACILITY AGREEMENT, dated as of February 25, 2000 and amended
as of February 23, 2001 (the "Credit Agreement"), among TXU CORP., a Texas
Corporation ("TXU"); TXU US HOLDINGS COMPANY (formerly "TXU Electric Company"),
a Texas corporation and a wholly owned subsidiary of TXU ("Holdings"), and TXU
GAS COMPANY, a Texas corporation and a wholly owned subsidiary of TXU ("TXU Gas"
and, together with TXU and Holdings, the "Borrowers", and each individually, a
"Borrower"); the Lenders party thereto (the "Lenders"); and JPMORGAN CHASE BANK
(formerly "The Chase Manhattan Bank"), as Competitive Advance Facility Agent (in
such capacity, the "CAF Agent"), as administrative agent for the Lenders (in
such capacity, the "Administrative Agent"; and, together with the CAF Agent, the
"Agents") and as fronting bank for the Letters of Credit issued thereunder (in
such capacity, the "Fronting Bank").
PRELIMINARY STATEMENT:
The Borrowers, the Lenders, the Agents and the Fronting Bank previously
entered into the Credit Agreement. TXU Gas seeks, effective January 1, 2002, no
longer to be a party to or a Borrower under the Credit Agreement. The Borrowers
have requested that the Lenders, the Agents and the Fronting Bank agree to the
amendment of the Credit Agreement as set forth herein and the Lenders, the
Agents and the Fronting Bank have agreed to such request, subject to the terms
and conditions of this Amendment. Therefore, for good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties agree as follows:
SECTION 1. Definitions. Capitalized terms used but not defined herein have
the meanings assigned to such terms in the Credit Agreement.
SECTION 2. Amendment. Subject to the satisfaction of the conditions
precedent set forth in Section 3 hereof as of January 1, 2002, TXU Gas shall not
be a "Borrower", and shall have no rights or obligations, under the Credit
Agreement.
SECTION 3. Conditions of Effectiveness. Section 2 of this Amendment shall
become effective as of the date first set forth above (the "Amendment Date")
when each of the following conditions shall have been fulfilled:
(i) the Required Lenders, TXU, Holdings (together with TXU, the
"Remaining Borrowers" and each individually a "Remaining Borrower") and TXU
Gas shall each have executed and delivered to the Administrative Agent a
counterpart of this Amendment;
(ii) the following statements shall be true and correct and the
Administrative Agent shall have received a certificate of a duly authorized
officer of TXU, dated the Amendment Date and in sufficient copies for each
Lender, stating that:
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(A) the representations and warranties of each Remaining Borrower
set forth in Section 4 hereof are true and correct on and as of the
Amendment Date as though made on and as of such date; and
(B) no event has occurred and is continuing that constitutes a
Default or an Event of Default;
(iii) At all times during the period from January 1, 2002 to (and
including) the Amendment Date, no Loans or LC Outstandings shall have been
outstanding to TXU Gas.
SECTION 4. Representations and Warranties. Each Remaining Borrower
represents and warrants that (a) the representations and warranties contained in
Article III of the Credit Agreement (with each reference therein to "this
Agreement", "hereunder" and words of like import referring to the Credit
Agreement being deemed to be a reference to this Amendment and the Credit
Agreement as amended hereby) are true and correct on and as of the Amendment
Date as though made on and as of such date, and (b) no event has occurred and is
continuing, or would result from the execution and delivery of this Amendment,
that constitutes a Default or an Event of Default.
SECTION 5. Effect on the Credit Agreement. Except as specifically provided
above, the Credit Agreement shall continue to be in full force and effect and is
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 the Lenders, the Agents or
the Fronting Bank under the Credit Agreement, nor constitute a waiver of any
provision of the Credit Agreement.
SECTION 6. Costs, Expenses and Taxes. The Remaining Borrowers agree jointly
and severally to pay on demand all costs and expenses of the Administrative
Agent in connection with the preparation, execution and delivery of this
Amendment and the other instruments and documents to be delivered hereunder,
including, without limitation, the reasonable fees and out-of-pocket expenses of
counsel for the Administrative Agent with respect thereto, and all costs and
expenses (including, without limitation, counsel fees and expenses), if any, in
connection with the enforcement (whether through negotiations, legal proceedings
or otherwise) of this Amendment or such other instruments and documents. In
addition, the Remaining Borrowers agree jointly and severally to pay any and all
stamp and other taxes payable or determined to be payable in connection with the
execution and delivery of this Amendment and the other instruments and documents
to be delivered hereunder, and agree jointly and severally to save the Agents,
the Fronting Bank and the Lenders harmless from and against any and all
liabilities with respect to or resulting from any delay in paying or omission to
pay such taxes.
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
instrument.
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SECTION 8. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the internal laws of the State of the New York.
[Signature pages to follow]
TXU CORP.
By
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Name: Xxxx X. Xxxxxx
Title: Treasurer and Assistant Secretary
TXU ELECTRIC COMPANY
By
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Name: Xxxxx Xxxx
Title: Treasurer and Assistant Secretary
TXU GAS COMPANY
By
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Name: Xxxxx Xxxx
Title: Treasurer and Assistant Secretary
Signature Page to Amendment to Five-Year Second Amended and Restated
Competitive Advance and Revolving Credit Facility
JPMORGAN CHASE BANK
By
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Name:
Title:
Signature Page to Amendment to Five-Year Second Amended and Restated
Competitive Advance and Revolving Credit Facility
ABN AMRO BANK N.V.
By
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Name:
Title:
By
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Name:
Title:
Signature Page to Amendment to Five-Year Second Amended and Restated
Competitive Advance and Revolving Credit Facility
THE BANK OF TOKYO-MITSUBISHI, LTD.
By
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Name:
Title:
Signature Page to Amendment to Five-Year Second Amended and Restated
Competitive Advance and Revolving Credit Facility
BNP PARIBAS
By
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Name:
Title:
By
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Name:
Title:
Signature Page to Amendment to Five-Year Second Amended and Restated
Competitive Advance and Revolving Credit Facility
BARCLAYS BANK PLC
By
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Name:
Title:
Signature Page to Amendment to Five-Year Second Amended and Restated
Competitive Advance and Revolving Credit Facility
BAYERISCHE LANDESBANK
GIROZENTRALE,
CAYMAN ISLANDS BRANCH
By
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Name:
Title:
By
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Name:
Title:
Signature Page to Amendment to Five-Year Second Amended and Restated
Competitive Advance and Revolving Credit Facility
CANADIAN IMPERIAL BANK OF COMMERCE
By
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Name:
Title:
Signature Page to Amendment to Five-Year Second Amended and Restated
Competitive Advance and Revolving Credit Facility
CITIBANK, NA
By
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Name:
Title:
Signature Page to Amendment to Five-Year Second Amended and Restated
Competitive Advance and Revolving Credit Facility
COMMERZBANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By
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Name:
Title:
By
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Name:
Title:
Signature Page to Amendment to Five-Year Second Amended and Restated
Competitive Advance and Revolving Credit Facility
CREDIT LYONNAIS NEW YORK BRANCH
By
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Name:
Title:
Signature Page to Amendment to Five-Year Second Amended and Restated
Competitive Advance and Revolving Credit Facility
CREDIT SUISSE FIRST BOSTON
By
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Name:
Title:
By
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Name:
Title:
Signature Page to Amendment to Five-Year Second Amended and Restated
Competitive Advance and Revolving Credit Facility
THE DAI-ICHI KANGYO BANK, LTD.
By
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Name:
Title:
Signature Page to Amendment to Five-Year Second Amended and Restated
Competitive Advance and Revolving Credit Facility
DANSKE BANK A/S
By
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Name:
Title:
By
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Name:
Title:
Signature Page to Amendment to Five-Year Second Amended and Restated
Competitive Advance and Revolving Credit Facility
DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES
By
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Name:
Title:
By
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Name:
Title:
Signature Page to Amendment to Five-Year Second Amended and Restated
Competitive Advance and Revolving Credit Facility
DG BANK
DEUTSCHE GENOSSENSCHAFTSBANK AG
By
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Name:
Title:
By
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Name:
Title:
Signature Page to Amendment to Five-Year Second Amended and Restated
Competitive Advance and Revolving Credit Facility
FIRST UNION NATIONAL BANK
By
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Name:
Title:
Signature Page to Amendment to Five-Year Second Amended and Restated
Competitive Advance and Revolving Credit Facility
GUARANTY FEDERAL BANK, FSB
By
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Name:
Title:
Signature Page to Amendment to Five-Year Second Amended and Restated
Competitive Advance and Revolving Credit Facility
THE INDUSTRIAL BANK OF JAPAN, LIMITED
NEW YORK BRANCH
By
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Name:
Title:
Signature Page to Amendment to Five-Year Second Amended and Restated
Competitive Advance and Revolving Credit Facility
KBC BANK N.V.
By
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Name:
Title:
Signature Page to Amendment to Five-Year Second Amended and Restated
Competitive Advance and Revolving Credit Facility
XXXXXX COMMERCIAL PAPER INC.
By
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Name:
Title:
Signature Page to Amendment to Five-Year Second Amended and Restated
Competitive Advance and Revolving Credit Facility
LLOYDS TSB BANK PLC
By
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Name:
Title:
By
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Name:
Title:
Signature Page to Amendment to Five-Year Second Amended and Restated
Competitive Advance and Revolving Credit Facility
MELLON BANK, N.A.
By
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Name:
Title:
Signature Page to Amendment to Five-Year Second Amended and Restated
Competitive Advance and Revolving Credit Facility
XXXXXXX XXXXX CAPITAL CORP
By
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Name:
Title:
Signature Page to Amendment to Five-Year Second Amended and Restated
Competitive Advance and Revolving Credit Facility
NATIONAL AUSTRALIA BANK LIMITED
A.C.N. 004044937
By
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Name:
Title:
Signature Page to Amendment to Five-Year Second Amended and Restated
Competitive Advance and Revolving Credit Facility
THE ROYAL BANK OF SCOTLAND PLC
By
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Name:
Title:
Signature Page to Amendment to Five-Year Second Amended and Restated
Competitive Advance and Revolving Credit Facility
THE SANWA BANK, LIMITED
NEW YORK BRANCH
By
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Name:
Title:
Signature Page to Amendment to Five-Year Second Amended and Restated
Competitive Advance and Revolving Credit Facility
SOCIETE GENERALE
By
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Name:
Title:
Signature Page to Amendment to Five-Year Second Amended and Restated
Competitive Advance and Revolving Credit Facility
SGZ BANK
By
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Name:
Title:
By
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Name:
Title:
Signature Page to Amendment to Five-Year Second Amended and Restated
Competitive Advance and Revolving Credit Facility
THE SUMITOMO BANK LIMITED
By
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Name:
Title:
Signature Page to Amendment to Five-Year Second Amended and Restated
Competitive Advance and Revolving Credit Facility
TORONTO DOMINION (TEXAS), INC.
By
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Name:
Title:
Signature Page to Amendment to Five-Year Second Amended and Restated
Competitive Advance and Revolving Credit Facility
WESTDEUTSCHE LANDESBANK
GIROZENTRALE,
NEW YORK BRANCH
By
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Name:
Title:
By
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Name:
Title:
Signature Page to Amendment to Five-Year Second Amended and Restated
Competitive Advance and Revolving Credit Facility
THE BANK OF NEW YORK
By
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Name:
Title:
Signature Page to Amendment to Five-Year Second Amended and Restated
Competitive Advance and Revolving Credit Facility
FLEET NATIONAL BANK
By
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Name:
Title:
Signature Page to Amendment to Five-Year Second Amended and Restated
Competitive Advance and Revolving Credit Facility
BANCA NAZIONALE DEL LAVORO S.p.A.
NEW YORK BRANCH
By
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Name:
Title:
By
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Name:
Title:
Signature Page to Amendment to Five-Year Second Amended and Restated
Competitive Advance and Revolving Credit Facility
UBS AG, STAMFORD BRANCH
By
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Name:
Title:
By
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Name:
Title:
Signature Page to Amendment to Five-Year Second Amended and Restated
Competitive Advance and Revolving Credit Facility
BANK OF AMERICA, N.A.
By
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Name:
Title:
Signature Page to Amendment to Five-Year Second Amended and Restated
Competitive Advance and Revolving Credit Facility
THE FUJI BANK, LIMITED
By
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Name:
Title:
Signature Page to Amendment to Five-Year Second Amended and Restated
Competitive Advance and Revolving Credit Facility
BANK ONE, NA
By
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Name:
Title:
Signature Page to Amendment to Five-Year Second Amended and Restated
Competitive Advance and Revolving Credit Facility
