Exhibit 10(b)
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TXU ENERGY COMPANY LLC
ONCOR ELECTRIC DELIVERY COMPANY
TXU US HOLDINGS COMPANY,
AS BORROWERS
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$400,000,000
CREDIT AGREEMENT
Dated as of August 30, 2002
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BARCLAYS BANK PLC,
AS ADMINISTRATIVE AGENT
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BARCLAYS CAPITAL
AS LEAD ARRANGER AND SOLE BOOKRUNNER
TABLE OF CONTENTS
Section Page
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Article I
DEFINITIONS; CONSTRUCTION
Section 1.01. Defined Terms............................................1
Section 1.02. Terms Generally.........................................15
Article II
THE CREDITS
Section 2.01. Commitments.............................................16
Section 2.02. Loans...................................................16
Section 2.03. Borrowing Procedure.....................................17
Section 2.04. Fees....................................................18
Section 2.05. Repayment of Loans; Evidence of Indebtedness............18
Section 2.06. Interest on Loans.......................................19
Section 2.07. Default Interest........................................19
Section 2.08. Alternate Rate of Interest..............................19
Section 2.09. Termination and Reduction of Commitments................20
Section 2.10. Prepayment..............................................20
Section 2.11. Reserve Requirements; Change in Circumstances...........21
Section 2.12. Change in Legality......................................23
Section 2.13. Pro Rata Treatment......................................23
Section 2.14. Sharing of Setoffs......................................23
Section 2.15. Payments................................................24
Section 2.16. Taxes...................................................24
Section 2.17. Assignment of Commitments Under Certain Circumstances...27
Article III
REPRESENTATIONS AND WARRANTIES
Section 3.01. Organization; Powers....................................28
Section 3.02. Authorization...........................................28
Section 3.03. Enforceability..........................................28
Section 3.04. Governmental Approvals..................................28
Section 3.05. Financial Statements....................................28
Section 3.06. Litigation..............................................29
Section 3.07. Federal Reserve Regulations.............................29
Section 3.08. Investment Company Act; Public Utility Holding
Company Act.............................................30
Section 3.09. No Material Misstatements...............................30
Section 3.10. Taxes...................................................30
Section 3.11. Employee Benefit Plans..................................30
Section 3.12. Significant Subsidiaries................................31
Section 3.13. Environmental Matters...................................31
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Section 3.14. Solvency................................................31
Section 3.15. Liquidity Facilities....................................32
Section 3.16. Holdings Facility.......................................32
Article IV
CONDITIONS
Section 4.01. Initial Loan............................................32
Section 4.02. Conditions for All Loans................................33
Article V
Covenants
Section 5.01. Existence...............................................34
Section 5.02. Compliance With Laws; Business And Properties...........34
Section 5.03. Financial Statements, Reports, etc......................34
Section 5.04. Insurance...............................................36
Section 5.05. Taxes, etc..............................................36
Section 5.06. Maintaining Records; Access to Properties And
Inspections.............................................36
Section 5.07. Erisa...................................................37
Section 5.08. Use of Proceeds.........................................37
Section 5.09. Consolidations, Mergers, Sales and Acquisitions of
Assets and Investments in Subsidiaries..................37
Section 5.10. Limitations on Liens....................................37
Section 5.11. Fixed Charge Coverage...................................39
Section 5.12. Equity Capitalization Ratio.............................40
Section 5.13. Restrictive Agreements..................................40
Section 5.14. Prepayments And Reductions of Commitments...............40
Article VI
EVENTS OF DEFAULT
Article VII
THE AGENT
Article VIII
MISCELLANEOUS
Section 8.01. Notices.................................................45
Section 8.02. Survival Of Agreement...................................45
Section 8.03. Binding Effect..........................................45
Section 8.04. Successors and Assigns..................................46
Section 8.05. Expenses; Indemnity.....................................48
Section 8.06. Right of Setoff.........................................50
Section 8.07. Applicable Law..........................................50
Section 8.08. Waivers; Amendment......................................50
Section 8.09. Entire Agreement........................................51
Section 8.10. Severability............................................51
Section 8.11. Counterparts............................................51
Section 8.12. Headings................................................51
Section 8.13. Interest Rate Limitation................................51
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Section 8.14. Jurisdiction; Venue.....................................52
Section 8.15. Confidentiality.........................................52
EXHIBITS AND SCHEDULES
Exhibit A - Form of Borrowing Request
Exhibit B - Form of Assignment and Acceptance
Schedule 2.01 - Commitments
Schedule 3.15 - Liquidity Facilities
Schedule 5.13 - Restrictive Agreements
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CREDIT AGREEMENT (the "AGREEMENT"), dated as of August 30,
2002, among TXU Energy Company LLC, a Delaware limited
liability company ("ENERGY"), Oncor Electric Delivery
Company, a Texas corporation ("Oncor"), TXU US Holdings
Company, a Texas corporation ("HOLDINGS" and, together with
Energy and Oncor, the "BORROWERS", and each individually, a
"BORROWER"), the lenders listed in Schedule 2.01 (together
with their successors and assigns, the "LENDERS") and
Barclays Bank PLC ("BARCLAYS BANK"), as administrative agent
for the Lenders (in such capacity, the "AGENT").
The Borrowers have requested the Lenders to provide the credit facility
hereinafter described in the amounts and on the terms and conditions set forth
herein, the Lenders have so agreed on the terms and conditions set forth herein,
and the Agent has agreed to act as agent for the Lenders, on such terms and
conditions;
Accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
SECTION 1.01. DEFINED TERMS.
As used in this Agreement, the following terms shall have the meanings
specified below:
"ABR BORROWING" shall mean a Borrowing comprised of ABR Loans.
"ABR LOAN" shall mean any Loan bearing interest at a rate determined
by reference to the Alternate Base Rate in accordance with the provisions
of Article II or any Eurodollar Loan converted (pursuant to Section 2.08 or
2.12(a)(ii)) to a loan bearing interest at a rate determined by reference
to the Alternate Base Rate.
"ACQUISITION DATE" shall mean the date as of which a person or group
of related persons first acquires more than 30% of any outstanding class of
Voting Shares of TXU (within the meaning of Section 13(d) or 14(d) of the
Exchange Act, and the applicable rules and regulations thereunder).
"AFFILIATE" shall mean, when used with respect to a specified person,
another person that directly or indirectly controls or is controlled by or
is under common control with the person specified.
"AGENT" shall have the meaning given such term in the preamble hereto.
"AGREEMENT" shall have the meaning given such term in the preamble
hereto.
"ALTERNATE BASE RATE" shall mean, for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the
greater of (i) the Federal Funds Effective Rate in effect on such day plus
0.50% and (ii) the Prime Rate in effect on such day. For purposes hereof,
"PRIME RATE" shall mean the rate of interest per annum publicly announced
from time to time by Barclays Bank as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective on the date such change is publicly announced as effective; and
"FEDERAL FUNDS EFFECTIVE RATE" shall mean, for any day, the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
released on the next succeeding Business Day by the Federal Reserve Bank of
New York, or, if such rate is not so released for any day which is a
Business Day, the arithmetic average (rounded upwards to the next 1/100th
of 1%), as determined by Barclays Bank, of the quotations for the day of
such transactions received by Barclays Bank from three Federal funds
brokers of recognized standing selected by it. If for any reason Barclays
Bank shall have determined (which determination shall be conclusive absent
manifest error; provided that Barclays Bank shall, upon request, provide to
the applicable Borrower a certificate setting forth in reasonable detail
the basis for such determination) that it is unable to ascertain the
Federal Funds Effective Rate for any reason, including the inability of
Barclays Bank to obtain sufficient quotations in accordance with the terms
thereof, the Alternate Base Rate shall be determined without regard to
clause (i) of the first sentence of this definition until the circumstances
giving rise to such inability no longer exist. Any change in the Alternate
Base Rate due to a change in the Prime Rate or the Federal Funds Effective
Rate shall be effective on the effective date of such change in the Prime
Rate or the Federal Funds Effective Rate, respectively.
"APPLICABLE MARGIN" shall mean, with respect to any Borrower for any
Type of Loan at any time, the percentage per annum set forth below
corresponding to such Type of Loan in the column under the Applicable
Rating Level of such Borrower at such time; provided that, any change in
the Applicable Margin for a Borrower shall be effective on the date on
which the applicable rating agency announces any change in the Debt Rating
of such Borrower.
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Applicable
Rating
Xxxxx Xxxxx 0 Xxxxx 0 Xxxxx 0 Xxxxx 0
---------- ------- ------- ------- -------
Percentage Per Annum
Eurodollar .625% .850% 1.050% 1.250%
Margin
ABR 0 0 0 .250%
Margin
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"APPLICABLE RATING LEVEL" shall mean, for any Borrower at any time,
the level set forth below in the row next to the then applicable Debt
Ratings of such Borrower. If there is a difference of one level in the
Debt Ratings of such Borrower assigned by S&P and Xxxxx'x, then the higher
Debt Rating shall be used for purposes of determining the Applicable
Rating Level for such Borrower and if there is a difference of more than
one level in the Debt Ratings assigned by S&P and Xxxxx'x for such
Borrower, then the Debt Rating one level higher than the lower Debt Rating
will be used for purposes of determining the Applicable Rating Level of
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such Borrower. Any change in the Applicable Rating Level of any Borrower
shall be effective on the date on which the applicable rating agency
announces any change in the applicable Debt Rating of such Borrower.
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S&P Debt Rating Applicable Rating Level
Xxxxx'x Debt Rating
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BBB+ or better 1
Baa1 or better
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BBB 2
Baa2
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BBB- 3
Baa3
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BB+ or below* 4
Ba1 or below*
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* or unrated
"ASSIGNMENT AND ACCEPTANCE" shall mean an assignment and acceptance
entered into by a Lender and an assignee in the form of Exhibit B.
"BARCLAYS BANK" shall have the meaning given such term in the
preamble.
"BOARD" shall mean the Board of Governors of the Federal Reserve
System of the United States.
"BOARD OF DIRECTORS" shall mean the Board of Directors or analogous
managing body of a Borrower or any duly authorized committee thereof.
"BORROWER" shall have the meaning given such term in the preamble
hereto.
"BORROWING" shall mean a group of Loans of a single Type made by the
Lenders on a single date and as to which a single Interest Period is in
effect.
"BORROWING REQUEST" shall mean a request made pursuant to Section
2.03 in the form of Exhibit A.
"BUSINESS DAY" shall mean any day (other than a day which is a
Saturday, Sunday or legal holiday in the State of New York) on which banks
are open for business in New York City; provided, however, that, when used
in connection with a Eurodollar Loan, the term "Business Day" shall also
exclude any day on which banks are not open for dealings in dollar
deposits in the London interbank market.
"A CHANGE IN CONTROL" shall be deemed to have occurred if (i) any
person or "group" (within the meaning of Section 13(d) or 14(d) of the
Exchange Act, as amended) shall acquire beneficial ownership of more than
30% of any outstanding class of Voting Shares of TXU unless such
acquisition shall have been approved prior to such acquisition date by a
majority of Disinterested Directors of TXU or (ii) during any period of 12
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consecutive months, a majority of the members of the board of directors of
TXU cease to be composed of individuals (A) who were members of board of
directors of TXU on the first day of such period, (B) whose election or
nomination to the board of directors of TXU was approved by individuals
referred to in clause (i) above constituting at the time of such election
or nomination at least a majority of the board of directors of TXU or (C)
whose election or nomination to the board of directors of TXU was approved
by individuals referred to in clauses (i) and (ii) above constituting at
the time of such election or nomination at least a majority of the board
of directors of TXU.
"CHARGES" shall have the meaning ascribed to such term in Section
8.13(a).
"CODE" shall mean the Internal Revenue Code of 1986, as the same may
be amended from time to time.
"COMMISSION" shall mean the Public Utility Commission of the State
of Texas.
"COMMITMENT" shall mean, with respect to each Lender, the commitment
of such Lender set forth in Schedule 2.01 hereto to make Loans, as such
Commitment may be permanently terminated or reduced from time to time
pursuant to Section 2.09 or modified from time to time pursuant to Section
8.04. The Commitment of each Lender shall automatically and permanently
terminate on the Maturity Date if not terminated earlier pursuant to the
terms hereof.
"CONSOLIDATED EARNINGS AVAILABLE FOR FIXED CHARGES" for any
twelve-month period shall mean (i) consolidated net income, calculated
after deducting preferred stock dividends and preferred securities
distributions of Subsidiaries, but before any extraordinary items and
before the effect in such twelve-month period of any change in accounting
principles promulgated by the Financial Accounting Standards Board
becoming effective after December 31, 2001, less (ii) allowances for
equity funds used during construction to the extent that such allowances,
taken as a whole, increased such consolidated net income, plus (iii)
provisions for Federal income taxes, to the extent that such provisions,
taken as a whole, decreased such consolidated net income, plus (iv)
Consolidated Fixed Charges, all determined for such twelve-month period
with respect to Holdings and its Consolidated Subsidiaries on a
consolidated basis; provided, however, that in computing Consolidated
Earnings Available for Fixed Charges for any twelve-month period the
following amounts shall be excluded to the extent otherwise included
pursuant to the foregoing: (A) the effect of any regulatory disallowances
resolving fuel or other issues in any proceeding before the Commission or
the Railroad Commission of Texas in an aggregate amount not to exceed
$100,000,000, (B) any non-cash book losses relating to the sale or
write-down of assets, (C) one-time costs of up to $100,000,000 incurred in
connection with the restructuring of certain subsidiaries of TXU in
connection with the 1999 Texas electric industry restructuring legislation
(as described in TXU's filings with the SEC) and (D) up to $100,000,000 of
costs incurred in connection with write-offs relating to the regulatory
settlement plan, initially filed with the Commission on December 31, 2001,
of Holdings and certain of its Subsidiaries (as described in TXU's filings
with the SEC).
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"CONSOLIDATED FIXED CHARGES" for any twelve-month period shall mean
the sum (without duplication) of (i) interest on mortgage bonds, (ii)
interest on other long-term debt, (iii) other interest expense, including
interest on short-term debt and the current portion of long-term debt, and
(iv) preferred stock dividends and preferred securities distributions of
Subsidiaries, all determined for such twelve-month period with respect to
Holdings and its Consolidated Subsidiaries on a consolidated basis. For
purposes of such calculation, long-term debt shall not include the
principal amount of, or interest on, Qualified Transition Bonds.
"CONSOLIDATED SHAREHOLDERS' EQUITY" of any Borrower shall mean the
sum (without duplication) of (i) total common stock equity plus (ii)
preferred stock not subject to mandatory redemption, each (in the case of
clauses (i) and (ii)) determined with respect to such Borrower and its
Consolidated Subsidiaries on a consolidated basis, plus (iii)
Equity-Credit Preferred Securities in an aggregate liquidation preference
amount not in excess of (A) $1,000,000,000, if Energy is the Borrower, (B)
$750,000,000, if Oncor is the Borrower, and (C) $1,750,000,000, if
Holdings is the Borrower.
"CONSOLIDATED SUBSIDIARY" of any person shall mean at any date any
Subsidiary or other entity the accounts of which would be consolidated
with those of such person in such person's consolidated financial
statements as of such date.
"CONSOLIDATED TOTAL CAPITALIZATION" of any Borrower shall mean the
sum of (i) total common stock equity, (ii) preferred stock and preferred
securities, (iii) long-term debt (less amounts due currently) and (iv)
short-term debt consisting of commercial paper, notes payable to
unaffiliated entities and long-term debt due currently to the extent such
short-term debt exceeds $2,000,000,000, in the case of Holdings and
$1,000,000,000, in the case of each of Energy and Oncor, determined with
respect to each such Borrower and its Consolidated Subsidiaries on a
consolidated basis. For purposes of such calculation, long-term debt shall
not include the principal amount of, or interest on, Qualified Transition
Bonds.
"CONTROLLED GROUP" shall mean all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated)
under common control which, together with Holdings, are treated as a
single employer under Section 414(b) or 414(c) of the Code.
"DEBT RATINGS" shall mean, with respect to any Borrower, the ratings
(whether explicit or implied) assigned by S&P and Xxxxx'x to the senior
unsecured non-credit enhanced long term debt of such Borrower.
"DEFAULT" shall mean any event or condition, which upon notice,
lapse of time or both would constitute an Event of Default.
"DISINTERESTED DIRECTOR" shall mean any member of the board of
directors of TXU who is not affiliated, directly or indirectly, with, or
appointed by, a person or group of related persons (other than TXU, any
Subsidiary of TXU, or any pension, savings or other employee benefit plan
for the benefit of employees of TXU and/or any Subsidiary of TXU)
5
acquiring the beneficial ownership of more than 30% of any outstanding
class of Voting Shares of TXU (within the meaning of Section 13(d) or
14(d) of the Exchange Act, and the applicable rules and regulations
thereunder) and who either was a member of the Board of Directors of TXU
prior to the Acquisition Date or was recommended for election by a
majority of the Disinterested Directors in office prior to the Acquisition
Date.
"DOLLARS" or "$" shall mean lawful money of the United States of
America.
"ENERGY" shall have the meaning set forth in the preamble hereto.
"EQUITY-CREDIT PREFERRED SECURITIES" shall mean securities, however
denominated, (i) issued by a Borrower or a Consolidated Subsidiary of a
Borrower, (ii) that are not subject to mandatory redemption or the
underlying securities, if any, of which are not subject to mandatory
redemption, (iii) that are perpetual or mature no less than 30 years from
the date of issuance, (iv) the indebtedness issued in connection with
which, including any guaranty, is subordinate in right of payment to the
unsecured and unsubordinated indebtedness of the issuer of such
indebtedness or guaranty and (v) the terms of which permit the deferral of
the payment of interest or distributions thereon to a date occurring after
the Maturity Date.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as the same may be amended from time to time.
"ERISA AFFILIATE" shall mean any trade or business (whether or not
incorporated) that is a member of a group of (i) organizations described
in Section 414(b) or (c) of the Code and (ii) solely for purposes of the
Lien created under Section 412(n) of the Code, organizations described in
Section 414(m) or (o) of the Code of which the applicable Borrower is a
member.
"ERISA EVENT" shall mean (i) any "Reportable Event", (ii) the
adoption of any amendment to a Plan that would require the provision of
security pursuant to Section 401(a)(29) of the Code or Section 307 of
ERISA, (iii) the incurrence of any liability under Title IV of ERISA with
respect to the termination of any Plan or the withdrawal or partial
withdrawal of any Borrower or any of its ERISA Affiliates from any Plan or
Multiemployer Plan, (iv) the receipt by any Borrower or any ERISA
Affiliate from the PBGC of any notice relating to the intention to
terminate any Plan or Plans or to appoint a trustee to administer any
Plan, (v) the receipt by any Borrower or any ERISA Affiliate of any notice
concerning the imposition of Withdrawal Liability or a determination that
a Multiemployer Plan is, or is expected to be, insolvent or in
reorganization, within the meaning of Title IV of ERISA, (vi) the
occurrence of a "prohibited transaction" with respect to which any
Borrower or any of its subsidiaries is liable and (vii) any other similar
event or condition with respect to a Plan or Multiemployer Plan that could
result in liability of any Borrower other than a liability to pay premiums
or benefits when due.
"EURODOLLAR BORROWING" shall mean a Borrowing comprised of
Eurodollar Loans.
6
"EURODOLLAR LOAN" shall mean any Loan bearing interest at a rate
determined by reference to the LIBO Rate in accordance with the provisions
of Article II.
"EVENT OF DEFAULT" shall have the meaning assigned to such term in
Article VI.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended.
"FACILITY FEE" shall have the meaning assigned to such term in
Section 2.04.
"FACILITY FEE PERCENTAGE" shall mean, at any time, the percentage
per annum set forth below in the column under the Applicable Rating Level
corresponding to the Debt Ratings of the Borrower that would produce the
lowest Applicable Rating Level (i.e., the highest Facility Fee
Percentage). Any change in the Facility Fee Percentage shall be effective
on the date on which any applicable rating agency announces any change in
a Debt Rating of any Borrower that would result in a different Facility
Fee Percentage pursuant to the terms of this definition.
=================================================================
Applicable Xxxxx 0 Xxxxx 0 Xxxxx 0 Xxxxx 0
------- ------- ------- -------
Rating
Level
-----------------------------------------------------------------
Percentage Per Annum
-----------------------------------------------------------------
Facility 0.125% 0.15% 0.20% 0.25%
Fee
=================================================================
"FEDERAL FUNDS EFFECTIVE RATE" shall have the meaning set forth in
the definition of "Alternate Base Rate".
"FINANCIAL OFFICER" of any corporation shall mean the chief
financial officer, principal accounting officer, treasurer, associate or
assistant treasurer, or any responsible officer designated by one of the
foregoing persons, of such corporation.
"FIRST MORTGAGE" shall mean (i) the Oncor Mortgage, (ii) any
mortgage and deed of trust entered into by Oncor in order to refund or
replace, or in substitution for, the Oncor Mortgage, and (iii) if and for
so long as any first mortgage bonds are issued and outstanding under the
Oncor Mortgage, any other indenture or instrument of Oncor pursuant to
which Oncor issues debt securities secured directly or indirectly by (A)
the Lien created by the Oncor Mortgage and/or (B) any property of Oncor.
"FIVE-YEAR CREDIT AGREEMENT" shall mean the Five-Year Third Amended
and Restated Competitive Advance and Revolving Credit Facility Agreement,
dated as of July 31, 2002, among Holdings, the lenders listed in Schedule
2.01 thereto and JPMorgan Chase Bank, as competitive advance facility
agent and administrative agent and fronting bank for the letters of credit
issued thereunder, as amended, restated, modified or supplemented from
time to time.
"GAAP" shall mean generally accepted accounting principles, applied
on a consistent basis.
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"GOVERNMENTAL AUTHORITY" shall mean any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or
regulatory body.
"HOLDINGS" shall have the meaning set forth in the preamble hereto.
"HOLDINGS APPROVAL DATE" shall mean any date on which the following
shall have occurred: Holdings shall have delivered to the Agent (in
sufficient copies for each of the Lenders) (i) a certificate of the
Secretary or Assistant Secretary of Holdings certifying that (A) attached
thereto are true and correct copies of all corporate resolutions and all
orders, consents and approvals required by any Governmental Authority in
order to permit or authorize Holdings to borrow from banks, financial
institutions and other lenders from time to time, by the issuance of
promissory notes, debentures or other evidences of indebtedness
(including, but not limited to, bank loans, notes, senior notes and
commercial paper), in each case on a secured or unsecured basis, in an
aggregate principal amount to be outstanding exceeding the aggregate
principal amount authorized to be outstanding pursuant to resolutions of
the Board of Directors adopted on November 3, 2000 or any other Holdings
Approval Date and (B) that all such resolutions, orders, consents and
approvals are in full force and effect, sufficient for their purpose and,
in the case of such orders, consents and approvals, not subject to any
pending or, to the knowledge of such Secretary or Assistant Secretary (as
the case may be), threatened appeal or other proceeding seeking
reconsideration or review thereof and (ii) an opinion of counsel to
Holdings in form and substance satisfactory to the Agent, as to such
orders, consents and approvals and as to the enforceability of the
obligations of Holdings hereunder on and after such date.
"HOLDINGS FACILITY" shall mean the Credit Agreement, dated as of
July 15, 2002, among Holdings, the lenders listed in Schedule 2.01 thereto
and JPMorgan Chase Bank, as amended, modified or supplemented from time to
time.
"INDEBTEDNESS" of any person shall mean all indebtedness
representing money borrowed which is created, assumed, incurred or
guaranteed in any manner by such person or for which such person is
responsible or liable (whether by agreement to purchase indebtedness of,
or to supply funds to or invest in, others or otherwise).
"INTEREST PAYMENT DATE" shall mean, with respect to any Loan, the
last day of the Interest Period applicable thereto and, in addition, the
date of any prepayment of such Loan or conversion of such Loan to a Loan
of a different Type.
"INTEREST PERIOD" shall mean (i) as to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the
numerically corresponding day (or, if there is no numerically
corresponding day, on the last day) in the calendar month that is 1, 2 or
3 months thereafter; provided that, in the case of any Eurodollar
Borrowing made during the 30-day period ending on the Maturity Date, such
period may end on the seventh or fourteenth day thereafter, as the
Borrower may elect, and (ii) as to any ABR Borrowing, the period
commencing on the date of such Borrowing and ending on the earliest of (A)
the next succeeding March 31, June 30, September 30 or December 31, (B)
the Maturity Date, and (C) the date such Borrowing is repaid or prepaid in
8
accordance with Section 2.05 or Section 2.10; provided, however, that if
any Interest Period would end on a day other than a Business Day, such
Interest Period shall be extended to the next succeeding Business Day
unless, in the case of Eurodollar Loans only, such next succeeding
Business Day would fall in the next calendar month, in which case such
Interest Period shall end on the next preceding Business Day. Interest
shall accrue from and including the first day of an Interest Period to but
excluding the last day of such Interest Period.
"LENDERS" shall have the meaning given such term in the preamble
hereto.
"LETTER AGREEMENT" shall mean the Commitment Letter, dated August
19, 2002, among the Borrowers, the Agent and the Lead Arranger named
therein, as amended, modified or supplemented from time to time.
"LIBO RATE" shall mean, with respect to any Eurodollar Borrowing for
any Interest Period, the rate appearing on Page 3750 of the Telerate
Service (or on any successor or substitute page of such service, or any
successor to or substitute for such service, providing rate quotations
comparable to those currently provided on such page of such service, as
determined by Barclays Bank from time to time for purposes of providing
quotations of interest rates applicable to dollar deposits in the London
interbank market) at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period as the rate for
dollar deposits with a maturity comparable to such Interest Period. In the
event that such rate is not available at such time for any reason, then
the "LIBO RATE" with respect to such Eurodollar Borrowing for such
Interest Period shall be the rate at which dollar deposits of $5,000,000
and for a maturity comparable to such Interest Period are offered by the
principal London office of Barclays Bank in immediately available funds in
the London interbank market at approximately 11:00 a.m. London time, two
Business Days prior to the commencement of such Interest Period.
"LIEN" shall mean, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of
such asset. For the purposes of this Agreement, any person shall be deemed
to own subject to a Lien any asset which it has acquired or holds subject
to the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement relating to
such asset.
"LIQUIDITY FACILITIES" shall mean each of the liquidity facilities
listed on Schedule 3.15 hereto and any other similar credit or liquidity
facility entered into by any Borrower after the date hereof.
"LOAN" shall mean a revolving loan made pursuant to Section 2.03,
whether made as a Eurodollar Loan or as an ABR Loan.
"MARGIN REGULATIONS" shall mean Regulations T, U and X of the Board
as from time to time in effect, and all official rulings and
interpretations thereunder or thereof.
"MARGIN STOCK" shall have the meaning given such term under
Regulation U of the Board.
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"MATERIAL ADVERSE CHANGE" shall mean, with respect to any Borrower,
a materially adverse change in the business, assets, operations or
financial condition of such Borrower and its Subsidiaries taken as a whole
that makes such Borrower unable to perform any of its obligations under
this Agreement or that impairs the rights of, or benefits available to,
the Lenders under this Agreement.
"MATURITY DATE" shall mean the earlier to occur of (i) November 30,
2002 and (ii) the date of termination or reduction in whole of the
Commitments pursuant to Section 2.09 or Article VI.
"MAXIMUM RATE" shall have the meaning ascribed thereto in Section
8.13(a).
"MOODY'S" shall mean Xxxxx'x Investors Service, Inc.
"MULTIEMPLOYER PLAN" shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA to which any Borrower or any ERISA Affiliate
is making, or accruing an obligation to make, contributions, or has within
any of the preceding five plan years made, or accrued an obligation to
make, contributions.
"ONCOR" shall have the meaning set forth in the preamble hereto.
"ONCOR APPROVAL DATE" shall mean any date on which the following
shall have occurred: Oncor shall have delivered to the Agent (in
sufficient copies for each of the Lenders) (i) a certificate of the
Secretary or Assistant Secretary of Oncor certifying that (A) attached
thereto are true and correct copies of all corporate resolutions and all
orders, consents and approvals required by any Governmental Authority in
order to permit or authorize Oncor to borrow from banks, financial
institutions and other lenders from time to time, by the issuance of
promissory notes, debentures or other evidences of indebtedness
(including, but not limited to, bank loans, notes, senior notes and
commercial paper), in each case on a secured or unsecured basis, in an
aggregate principal amount to be outstanding exceeding the aggregate
principal amount authorized to be outstanding pursuant to resolutions of
the Board of Directors adopted on March 4, 2002 or any other Oncor
Approval Date and (B) that all such resolutions, orders, consents and
approvals are in full force and effect, sufficient for their purpose and,
in the case of such orders, consents and approvals, not subject to any
pending or, to the knowledge of such Secretary or Assistant Secretary (as
the case may be), threatened appeal or other proceeding seeking
reconsideration or review thereof and (ii) an opinion of counsel to Oncor
in form and substance satisfactory to the Agent, as to such orders,
consents and approvals and as to the enforceability of the obligations of
Oncor hereunder on and after such date.
"ONCOR MORTGAGE" shall mean the Mortgage and Deed of Trust, dated as
of December 1, 1983, from TXU Electric Company to Irving Trust Company
(now The Bank of New York), Trustee, as amended and supplemented from time
to time and as assumed by Oncor.
"OPERATING AGREEMENTS" shall mean (i) the Operating Agreement, dated
April 28, 1978, as amended by the Modification of Operating Agreement,
10
dated April 20, 1979, among TXU Mining and Holdings (formerly TXU Electric
Company, successor to Dallas Power & Light Company, Texas Electric Service
Company and Texas Power & Light Company) and Energy, TXU Energy Retail
Company LP and TXU Generation Company LP (pursuant to the Assumption
Agreement, dated December 31, 2001, by and among Holdings, Energy, TXU
Energy Retail Company LP and TXU Generation Company LP) (TXU Mining
Operating Agreement), and as it may be amended from time to time, or (ii)
the Operating Agreement, dated December 15, 1976, between TXU Fuel and
Dallas Power & Light Company, Texas Electric Service Company and Texas
Power & Light Company (TXU Fuel Operating Agreement), as it may be amended
from time to time; provided that no amendment of the TXU Mining Operating
Agreement or the TXU Fuel Operating Agreement shall increase the scope of
any Lien permitted under Section 5.10(j).
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"PERCENTAGE" means, for any Lender on any date of determination, the
percentage obtained by dividing such Lender's Commitment on such date by
the Total Commitment on such date.
"PERMITTED ENCUMBRANCES" shall mean, as to any person at any date,
any of the following:
(a) (i) Liens for taxes, assessments or governmental charges not
then delinquent and Liens for workers' compensation awards and similar
obligations not then delinquent and undetermined Liens or charges
incidental to construction, Liens for taxes, assessments or governmental
charges then delinquent but the validity of which is being contested at
the time by such person in good faith against which an adequate reserve
has been established, with respect to which levy and execution thereon
have been stayed and continue to be stayed and which do not impair the use
of the property or the operation of such person's business, (ii) Liens
incurred or created in connection with or to secure the performance of
bids, tenders, contracts (other than for the payment of money), leases,
statutory obligations, surety bonds or appeal bonds, and mechanics' or
materialmen's Liens, assessments or similar encumbrances, the existence of
which does not impair the use of the property subject thereto for the
purposes for which it was acquired, and other Liens of like nature
incurred or created in the ordinary course of business;
(b) Liens securing indebtedness, neither assumed nor guaranteed by
such person nor on which it customarily pays interest, existing upon real
estate or rights in or relating to real estate acquired by such person for
any substation, transmission line, transportation line, distribution line,
right of way or similar purpose;
(c) rights reserved to or vested in any municipality or public
authority by the terms of any right, power, franchise, grant, license or
permit, or by any provision of law, to terminate such right, power,
franchise, grant, license or permit or to purchase or recapture or to
designate a purchaser of any of the property of such person;
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(d) rights reserved to or vested in others to take or receive any
part of the power, gas, oil, coal, lignite or other minerals or timber
generated, developed, manufactured or produced by, or grown on, or
acquired with, any property of such person and Liens upon the production
from property of power, gas, oil, coal, lignite or other minerals or
timber, and the by-products and proceeds thereof, to secure the
obligations to pay all or a part of the expenses of exploration, drilling,
mining or development of such property only out of such production or
proceeds;
(e) easements, restrictions, exceptions or reservations in any
property and/or rights of way of such person for the purpose of roads,
pipe lines, substations, transmission lines, transportation lines,
distribution lines, removal of oil, gas, lignite, coal or other minerals
or timber, and other like purposes, or for the joint or common use of real
property, rights of way, facilities and/or equipment, and defects,
irregularities and deficiencies in titles of any property and/or rights of
way, which do not materially impair the use of such property and/or rights
of way for the purposes for which such property and/or rights of way are
held by such person;
(f) rights reserved to or vested in any municipality or public
authority to use, control or regulate any property of such person;
(g) any obligations or duties, affecting the property of such
person, to any municipality or public authority with respect to any
franchise, grant, license or permit;
(h) as of any particular time any controls, Liens, restrictions,
regulations, easements, exceptions or reservations of any municipality or
public authority applying particularly to space satellites or nuclear
fuel;
(i) any judgment Lien against such person securing a judgment for an
amount not exceeding 25% of Consolidated Shareholders' Equity of (x) such
person, if such person is a Borrower, or (y) if such person is a
Significant Subsidiary of a Borrower, such Borrower, in each case, so long
as the finality of such judgment is being contested by appropriate
proceedings conducted in good faith and execution thereon is stayed;
(j) any Lien arising by reason of deposits with or giving of any
form of security to any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, domestic
or foreign, for any purpose at any time as required by law or governmental
regulation as a condition to the transaction of any business or the
exercise of any privilege or license, or to enable such person to maintain
self-insurance or to participate in any fund for liability on any
insurance risks or in connection with workers' compensation, unemployment
insurance, old age pensions or other social security or to share in the
privileges or benefits required for companies participating in such
arrangements; or
(k) any landlords' Lien on fixtures or movable property located on
premises leased by such person in the ordinary course of business so long
as the rent secured thereby is not in default.
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"PERSON" shall mean any natural person, corporation, business trust,
joint venture, association, company, limited liability company,
partnership or government, or any agency or political subdivision thereof.
"PLAN" shall mean any employee pension benefit plan described under
Section 3(2) of ERISA (other than a Multiemployer Plan) subject to the
provisions of Title IV of ERISA that is maintained by any Borrower or any
ERISA Affiliate.
"QUALIFIED TRANSITION BONDS" of any Borrower shall mean securities,
however denominated, that are (i) issued by such Borrower or a
Consolidated Subsidiary of such Borrower formed and operating solely for
the purpose of (A) purchasing and owning transition property created under
a "financing order" (as such term is defined in the Texas Utilities Code)
issued by the Commission, (B) issuing such securities pursuant to such
order, (C) pledging its interests in such transition property to secure
such securities and (D) engaging in activities ancillary to those
described in clauses (A), (B) and (C) above, (ii) secured by or otherwise
payable from transition charges authorized pursuant to such order, and
(iii) non-recourse to such Borrower or any of its Consolidated
Subsidiaries (other than the issuer of such securities).
"REGISTER" shall have the meaning given such term in Section
8.04(d).
"REPORTABLE EVENT" shall mean any reportable event as defined in
Sections 4043(c)(1)-(8) of ERISA or the regulations issued thereunder
(other than a reportable event for which the 30 day notice requirement has
been waived) with respect to a Plan (other than a Plan maintained by an
ERISA Affiliate that is considered an ERISA Affiliate only pursuant to
subsection (m) or (o) of Code Section 414).
"REQUIRED LENDERS" shall mean, at any time, Lenders having
Commitments representing in excess of 50% of the Total Commitment or, (i)
for purposes of acceleration pursuant to clause (ii) of Article VI, or
(ii) if the Total Commitment has been terminated, Lenders holding Loans in
excess of 50% of the aggregate principal amount of Loans outstanding.
"RESPONSIBLE OFFICER" of any corporation shall mean any executive
officer or Financial Officer of such corporation and any other officer or
similar official thereof responsible for the administration of the
obligations of such corporation in respect of this Agreement.
"S&P" shall mean Standard & Poor's Ratings Services (a division of
The XxXxxx-Xxxx Companies, Inc.).
"SEC" shall mean the Securities and Exchange Commission.
"SIGNIFICANT DISPOSITION" shall mean a sale, lease, disposition or
other transfer by a Borrower, or any Subsidiary of a Borrower, during any
12-month period, of assets constituting, either individually or in the
aggregate with all other assets sold, leased, disposed or otherwise
transferred by such Borrower or any Subsidiary thereof during such period,
25% (in the case of each Subsidiary Borrower) or 10% (in the case of
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Holdings) or more of the assets of such Borrower and its Subsidiaries
taken as a whole, excluding any such sale, lease, disposition or other
transfer to a Wholly Owned Subsidiary of such Subsidiary Borrower.
"SIGNIFICANT SUBSIDIARY" shall mean, with respect to any Borrower at
any time, any Subsidiary of such Borrower that as of such time has total
assets in excess of 10% of the total assets of such Borrower and its
Consolidated Subsidiaries; provided, that each of Energy and Oncor shall
at all times be considered a Significant Subsidiary of Holdings.
"SOLVENT" means, with respect to any person as of a particular date,
that on such date such person is able to pay its debts and other
liabilities, contingent obligations and other commitments as they mature
in the normal course of business. In computing the amount of contingent
liabilities at any time, it is intended that such liabilities will be
computed as the amount which, in light of all the facts and circumstances
existing at such time, represents the amount that can reasonably be
expected to become an actual or matured liability.
"SUBSIDIARY" shall mean, with respect to any person (the "parent"),
any corporation or other entity of which securities or other ownership
interests having ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions are at the time
directly or indirectly owned by such parent.
"SUBSIDIARY BORROWER" shall mean each of Energy and Oncor.
"SUBSTANTIAL" shall mean, for any Borrower, an amount in excess
of 10% of the consolidated assets of such Borrower and its Consolidated
Subsidiaries taken as a whole.
"364-DAY CREDIT AGREEMENT" shall mean the 364-Day Revolving Credit
Facility Agreement, dated as of April 24, 2002, among the Borrowers, the
lenders listed in Schedule 2.01 thereto, JPMorgan Chase Bank, as
administrative agent for the lenders thereunder, and Bank of America, N.A.
and JPMorgan Chase Bank, as fronting banks for the letters of credit
issued thereunder, as amended, modified or supplemented from time to time.
"TOTAL COMMITMENT" shall mean, at any time, the aggregate amount of
Commitments of all the Lenders, as in effect at such time. The initial
amount of the Total Commitment is $400,000,000.
"2001 AGREEMENT" shall mean the Credit Agreement, dated as of
December 21, 2001, as amended, among TXU, as borrower, the lenders party
thereto and Barclays Bank, as administrative agent thereunder.
"TXU" shall mean TXU Corp., a Texas corporation.
"TXU FUEL" shall mean TXU Fuel Company, a Texas corporation.
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"TXU MINING" shall mean TXU Mining Company LP, a Texas limited
partnership, and its successors.
"TYPE", when used in respect of any Loan or Borrowing, shall refer
to the Rate by reference to which interest on such Loan or on the Loans
comprising such Borrowing is determined. For purposes hereof, "Rate" shall
include the LIBO Rate and the Alternate Base Rate.
"VOTING SHARES" shall mean, as to shares or other equity interests
of a particular corporation or other type of person, outstanding shares of
stock or other equity interests of any class of such corporation or other
person entitled to vote in the election of directors or other comparable
managers of such person, excluding shares or other interests entitled so
to vote only upon the happening of some contingency.
"WHOLLY OWNED SUBSIDIARY" of any person shall mean any Consolidated
Subsidiary of such person all the shares of common stock and other voting
capital stock or other voting ownership interests having ordinary voting
power to vote in the election of the board of directors or other governing
body performing similar functions (except directors' qualifying shares) of
which are at the time directly or indirectly owned by such person.
"WITHDRAWAL LIABILITY" shall mean liability of a Borrower
established under Section 4201 of ERISA as a result of a complete or
partial withdrawal from a Multiemployer Plan, as such terms are defined in
Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. TERMS GENERALLY.
The definitions in Section 1.01 shall apply equally to both the singular
and plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter forms.
The words "include," "includes" and "including" shall be deemed to be followed
by the phrase "without limitation." All references herein to Articles, Sections,
Exhibits and Schedules shall be deemed references to Articles and Sections of,
and Exhibits and Schedules to, this Agreement unless the context shall otherwise
require. Except as otherwise expressly provided herein, all terms of an
accounting or financial nature shall be construed in accordance with GAAP, as in
effect from time to time; provided, however, that for purposes of determining
compliance with any covenant set forth in Article V, such terms shall be
construed in accordance with GAAP as in effect on the date hereof applied on a
basis consistent with the application used in preparing the Borrowers' audited
financial statements referred to in Section 3.05.
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ARTICLE II
THE CREDITS
SECTION 2.01. COMMITMENTS.
Subject to the terms and conditions and relying upon the representations
and warranties herein set forth, each Lender agrees, severally and not jointly,
to make Loans to any Borrower at any time and from time to time until the
Maturity Date up to the amount of such Lender's Commitment, subject, however, to
the conditions that (i) at no time shall the outstanding aggregate principal
amount of all Loans exceed the Total Commitment, (ii) at no time shall the
outstanding aggregate principal amount of all Loans made by any Lender exceed
the amount of such Lender's Commitment, (iii) at all times, the outstanding
aggregate principal amount of all Loans made by each Lender hereunder shall
equal the product of (A) the percentage of the Total Commitments that such
Lender's Commitment represents and (B) the outstanding aggregate principal
amount of all Loans made hereunder, (iv) with respect to Holdings, at no time
shall the sum of (A) the outstanding aggregate principal amount of all Loans
plus (B) the outstanding aggregate amount of the "Extensions of Credit" under
and as defined in each of the 364-Day Credit Agreement and the Five-Year Credit
Agreement plus (C) the outstanding borrowings and other extensions of credit
under other credit agreements or loan agreements to which Holdings is a party,
in each case, for the account of, or owing by, Holdings exceed $2,000,000,000 or
such different amount reflected in the orders, resolutions and approvals
referenced in (i)(A) of the definition of "Holdings Approval Date" and (v) with
respect to Oncor, at no time shall the sum of (A) the outstanding aggregate
principal amount of all Loans plus (B) the outstanding aggregate amount of the
"Extensions of Credit" under and as defined in each of the 364-Day Credit
Agreement plus (C) the outstanding borrowings and other extensions of credit
under other credit agreements or loan agreements to which Oncor is a party, in
each case, for the account of, or owing by, Oncor exceed $1,000,000,000 or such
different amount reflected in the orders, resolutions and approvals referenced
in (i)(A) of the definition of "Oncor Approval Date".
Within the foregoing limits, the Borrowers may borrow, pay or prepay Loans
hereunder, on and after the date hereof and prior to the Maturity Date subject
to the terms, conditions and limitations set forth herein.
SECTION 2.02. LOANS.
(a) Each Loan shall be made as part of a Borrowing consisting of Loans
made by the Lenders ratably in accordance with their respective Commitments;
provided, however, that the failure of any Lender to make any Loan shall not in
itself relieve any other Lender of its obligation to lend hereunder (it being
understood, however, that no Lender shall be responsible for the failure of any
other Lender to make any Loan required to be made by such other Lender). The
Loans comprising any Borrowing shall be in an aggregate principal amount that is
an integral multiple of $5,000,000 and not less than $25,000,000 (or an
aggregate principal amount equal to the remaining balance of the Total
Commitment).
(b) Each Borrowing shall be comprised entirely of Eurodollar Loans or ABR
Loans, as the applicable Borrower may request pursuant to Section 2.03. Each
Lender may at its option make any Eurodollar Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan; provided that any
16
exercise of such option shall not affect the obligation of any Borrower to repay
such Loan in accordance with the terms of this Agreement. Borrowings of more
than one Type may be outstanding at the same time.
(c) Subject to paragraph (d) below, each Lender shall make each Loan to be
made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds to the Agent in New York, New York, not later than
noon, New York City time, and the Agent shall by 2:00 p.m., New York City time,
credit the amounts so received to the account or accounts specified from time to
time in one or more notices delivered by the applicable Borrower to the Agent
or, if a Borrowing shall not occur on such date because any condition precedent
herein specified shall not have been met, return the amounts so received to the
respective Lenders. Loans shall be made by the Lenders pro rata in accordance
with Section 2.13. Unless the Agent shall have received notice from a Lender
prior to the date of any Borrowing that such Lender will not make available to
the Agent such Lender's portion of such Borrowing, the Agent may assume that
such Lender has made such portion available to the Agent on the date of such
Borrowing in accordance with this paragraph (c) and the Agent may, in reliance
upon such assumption, make available to the applicable Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have made
such portion available to the Agent, such Lender and the applicable Borrower
(without waiving any claim against such Lender for such Lender's failure to make
such portion available) severally agree to repay to the Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to such Borrower until the date such
amount is repaid to the Agent, at (i) in the case of such Borrower, the interest
rate applicable at the time to the Loans comprising such Borrowing and (ii) in
the case of such Lender, the Federal Funds Effective Rate. If such Lender shall
repay to the Agent such corresponding amount, such amount shall constitute such
Lender's Loan as part of such Borrowing for purposes of this Agreement.
(d) A Borrower may refinance all or any part of any Borrowing with a
Borrowing of the same or a different Type, subject to the conditions and
limitations set forth in this Agreement. Any Borrowing or part thereof so
refinanced shall be deemed to be repaid or prepaid in accordance with Section
2.05 or 2.10, as applicable, with the proceeds of a new Borrowing, and the
proceeds of the new Borrowing, to the extent they do not exceed the principal
amount of the Borrowing being refinanced, shall not be paid by the Lenders to
the Agent or by the Agent to such Borrower pursuant to paragraph (c) above.
SECTION 2.03. BORROWING PROCEDURE.
In order to request a Borrowing, a Borrower shall hand deliver or telecopy
to the Agent a duly completed Borrowing Request in the form of Exhibit A (a) in
the case of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, three Business Days before such Borrowing, and (b) in the case of an ABR
Borrowing, not later than 11:00 a.m., New York City time, one Business Day
before such Borrowing. Such notice shall be irrevocable and shall in each case
specify (i) whether the Borrowing then being requested is to be a Eurodollar
Borrowing or an ABR Borrowing; (ii) the date of such Borrowing (which shall be a
Business Day) and the amount thereof; and (iii) if such Borrowing is to be a
Eurodollar Borrowing, the Interest Period with respect thereto, which shall not
end after the Maturity Date. If no election as to the Type of Borrowing is
specified in any such notice, then the requested Borrowing shall be an ABR
17
Borrowing. If no Interest Period with respect to any Eurodollar Borrowing is
specified in any such notice, then the Borrower shall be deemed to have selected
an Interest Period of one month's duration (subject to the limitations set forth
in the definition of "Interest Period"). If a Borrower shall not have given
notice in accordance with this Section 2.03 of its election to refinance a
Borrowing prior to the end of the Interest Period in effect for such Borrowing,
then such Borrower shall (unless such Borrowing is repaid at the end of such
Interest Period) be deemed to have given notice of an election to refinance such
Borrowing with an ABR Borrowing. Notwithstanding any other provision of this
Agreement to the contrary, no Borrowing shall be requested if the Interest
Period with respect thereto would end after the Maturity Date. The Agent shall
promptly advise the Lenders of any notice given pursuant to this Section 2.03
and of each Lender's portion of the requested Borrowing.
SECTION 2.04. FEES.
Holdings agrees to pay to each Lender, through the Agent, on each March
31, June 30, September 30 and December 31 (with the first payment being due on
September 30, 2002) and on each date on which the Commitment of such Lender
shall be terminated or reduced as provided herein, a facility fee (a "FACILITY
FEE"), at a rate per annum equal to the Facility Fee Percentage from time to
time in effect on the amount of the Commitment of such Lender (whether used or
unused), during the preceding quarter (or other period commencing on the date of
this Agreement or ending on the Maturity Date or any date on which the
Commitment of such Lender shall be terminated). All Facility Fees shall be
computed on the basis of the actual number of days elapsed in a year of 360
days. The Facility Fee due to each Lender shall commence to accrue on the date
of this Agreement, and shall cease to accrue on the date of termination of the
Commitment of such Lender as provided herein.
SECTION 2.05. REPAYMENT OF LOANS; EVIDENCE OF INDEBTEDNESS.
(a) The outstanding principal balance of each Loan shall be due and
payable on the last day of the Interest Period applicable thereto and on the
Maturity Date.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness to such Lender resulting from
each Loan made by such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time under
this Agreement.
(c) The Agent shall maintain accounts in which it will record (i) the
amount and Type of each Loan made hereunder and the Interest Period applicable
thereto, (ii) the amount of any principal or interest due and payable or to
become due and payable from each Borrower to each Lender hereunder and (iii) the
amount of any sum received by the Agent hereunder from each Borrower and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraphs (b)
and (c) of this Section 2.05 shall, to the extent permitted by applicable law,
be prima facie evidence of the existence and amounts of the obligations therein
recorded; provided, however, that the failure of any Lender or the Agent to
maintain such accounts or any error therein shall not in any manner affect the
obligations of the Borrowers to repay the Loans in accordance with their terms.
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SECTION 2.06. INTEREST ON LOANS.
(a) Subject to the provisions of Section 2.07, the Loans comprising each
Eurodollar Borrowing shall bear interest (computed on the basis of the actual
number of days elapsed over a year of 360 days) at a rate per annum equal to the
LIBO Rate for the Interest Period in effect for such Borrowing plus the
Applicable Margin from time to time in effect.
(b) Subject to the provisions of Section 2.07, the Loans comprising each
ABR Borrowing shall bear interest (computed on the basis of the actual number of
days elapsed over a year of (i) 365 or 366 days, as the case may be, for periods
during which the Alternate Base Rate is determined by reference to the Prime
Rate and (ii) 360 days for other periods) at a rate per annum equal to the
Alternate Base Rate plus the Applicable Margin from time to time in effect.
(c) Interest on each Loan shall be payable on each Interest Payment Date
applicable to such Loan except as otherwise provided in this Agreement. The
applicable LIBO Rate or Alternate Base Rate for each Interest Period or day
within an Interest Period, as the case may be, shall be determined by Barclays
Bank, and such determination shall be conclusive absent manifest error; provided
that Barclays Bank shall, upon request, provide to the applicable Borrower a
certificate setting forth in reasonable detail the basis for such determination.
SECTION 2.07. DEFAULT INTEREST.
If a Borrower shall default in the payment of the principal of or interest
on any Loan or any other amount becoming due hereunder, whether by scheduled
maturity, notice of prepayment, acceleration or otherwise, such Borrower shall
on demand from time to time from the Agent pay interest, to the extent permitted
by law, on such defaulted amount up to (but not including) the date of actual
payment (after as well as before judgment) at a rate per annum (computed as
provided in Section 2.06(b)) equal to the Alternate Base Rate plus the
Applicable Margin for ABR Loans plus 1%.
SECTION 2.08. ALTERNATE RATE OF INTEREST.
In the event, and on each occasion, that on the day two Business Days
prior to the commencement of any Interest Period for a Eurodollar Borrowing the
Agent shall have determined (i) that dollar deposits in the principal amounts of
the Eurodollar Loans comprising such Borrowing are not generally available in
the London interbank market or (ii) that reasonable means do not exist for
ascertaining the LIBO Rate, the Agent shall, as soon as practicable thereafter,
give telecopy notice of such determination to the Borrowers and the Lenders. In
the event of any such determination under clause (i) or (ii) above, until the
Agent shall have advised the Borrowers and the Lenders that the circumstances
giving rise to such notice no longer exist, any request by a Borrower for a
Eurodollar Borrowing pursuant to Section 2.03 shall be deemed to be a request
for an ABR Borrowing. In the event the Required Lenders notify the Agent that
the rates at which dollar deposits are being offered will not adequately and
fairly reflect the cost to such Lenders of making or maintaining Eurodollar
Loans during such Interest Period, the Agent shall notify the applicable
Borrower of such notice and until the Required Lenders shall have advised the
Agent that the circumstances giving rise to such notice no longer exist, any
request by such Borrower for a Eurodollar Borrowing shall be deemed a request
19
for an ABR Borrowing. Each determination by the Agent hereunder shall be made in
good faith and shall be conclusive absent manifest error; provided that the
Agent, shall, upon request, provide to the applicable Borrower a certificate
setting forth in reasonable detail the basis for such determination.
SECTION 2.09. TERMINATION AND REDUCTION OF COMMITMENTS.
(a) The Commitments shall be automatically terminated on the Maturity
Date.
(b) On the date of any prepayment of Loans required under Section
2.10(b)(ii), the Commitments shall be automatically and permanently reduced in
an amount equal to the amount of the required prepayment, regardless of whether
such amount of Loans is outstanding or prepaid.
(c) Upon at least two Business Days' prior irrevocable written notice to
the Agent, the Borrowers, acting jointly, may at any time in whole permanently
terminate, or from time to time in part permanently reduce, the Total
Commitment; provided, however, that (i) each partial reduction of the Total
Commitment shall be in an integral multiple of $10,000,000 and in a minimum
principal amount of $10,000,000 and (ii) no such termination or reduction shall
be made that would reduce the Total Commitment to an amount less than (A) the
aggregate principal amount of Loans outstanding on the date of such termination
or reduction (after giving effect to any prepayment made pursuant to Section
2.10) or (B) $50,000,000, unless the result of such termination or reduction
referred to in this clause (B) is to reduce the Total Commitment to $0. The
Agent shall advise the Lenders of any notice given pursuant to this Section
2.09(c) and of each Lender's portion of any such termination or reduction of the
Total Commitment.
(d) Each reduction in the Total Commitment hereunder shall be made ratably
among the Lenders in accordance with their respective Commitments. The Borrowers
shall pay to the Agent for the account of the Lenders, on the date of each
termination or reduction of the Total Commitment, the Facility Fees on the
amount of the Commitments so terminated or reduced accrued through the date of
such termination or reduction.
SECTION 2.10. PREPAYMENT.
(a) Voluntary Prepayment. Each Borrower shall have the right at any time
and from time to time to prepay any Borrowing, in whole or in part, upon giving
telecopy notice (or telephone notice promptly confirmed by telecopy) to the
Agent: (i) before 11:00 a.m., New York City time, three Business Days prior to
prepayment, in the case of Eurodollar Loans, and (ii) before 11:00 a.m., New
York City time, one Business Day prior to prepayment, in the case of ABR Loans;
provided, however, that each partial prepayment shall be in an amount which is
an integral multiple of $10,000,000 and not less than $10,000,000.
(b) Mandatory Prepayments.
(i) On the date of any termination or reduction of the Commitments
pursuant to Section 2.09, each Borrower shall pay or prepay so much of its
outstanding Loans as shall be necessary in order that the Loans outstanding
will not exceed the Total Commitment, after giving effect to such
termination or reduction.
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(ii) On the date of the issuance by Energy or any of its Subsidiaries
of any long-term debt securities, other than long-term advances from
Affiliates and pollution control revenue bonds issued by municipal
authorities and supported by payment obligations of TXU or any of its
Subsidiaries, Energy shall pay or prepay Borrowings in an amount equal to
at least 50% of the proceeds of such issuance, net of customary and
reasonable underwriting fees and discounts, legal fees and similar costs
and expenses incurred in connection with such issuance.
(c) Each notice of prepayment shall specify the prepayment date and the
principal amount of each Borrowing (or portion thereof) to be prepaid, shall be
irrevocable and shall commit the Borrower to prepay such Borrowing (or portion
thereof) by the amount stated therein on the date stated therein. All
prepayments under this Section 2.10 shall be subject to Section 8.05 but
otherwise without premium or penalty. All prepayments under this Section 2.10
shall be accompanied by accrued interest on the principal amount being prepaid
to the date of payment.
SECTION 2.11. RESERVE REQUIREMENTS; CHANGE IN CIRCUMSTANCES.
(a) Notwithstanding any other provision herein, if after the date of this
Agreement any change in applicable law or regulation or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof (whether or not having the force of
law) shall change the basis of taxation of payments to any Lender hereunder
(except for changes in respect of taxes on the overall net income of such Lender
or its lending office imposed by the jurisdiction in which such Lender's
principal executive office or lending office is located), or shall result in the
imposition, modification or applicability of any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of or
credit extended by any Lender or shall result in the imposition on any Lender or
the London interbank market of any other condition affecting this Agreement,
such Lender's Commitment or any Eurodollar Loan made by such Lender and the
result of any of the foregoing shall be to increase the cost to such Lender of
making or maintaining any Eurodollar Loan or to reduce the amount of any sum
received or receivable by such Lender hereunder (whether of principal, interest
or otherwise) by an amount deemed by such Lender to be material, then the
applicable Borrower or, if the foregoing circumstances do not relate to a
particular Borrowing, Holdings shall, upon receipt of the notice and certificate
provided for in Section 2.11(c), promptly pay to such Lender such additional
amount or amounts as will compensate such Lender for such additional costs
incurred or reduction suffered.
(b) If any Lender shall have determined that the adoption of any law,
rule, regulation or guideline arising out of the July 1988 report of the Basle
Committee on Banking Regulations and Supervisory Practices entitled
"International Convergence of Capital Measurement and Capital Standards," or the
adoption after the date hereof of any other law, rule, regulation or guideline
regarding capital adequacy, or any change in any of the foregoing or in the
interpretation or administration of any of the foregoing by any Governmental
Authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or any lending office of
such Lender) or any Lender's holding company with any request or directive
regarding capital adequacy (whether or not having the force of law) of any such
21
authority, central bank or comparable agency, has or would have the effect of
reducing the rate of return on such Lender's capital or on the capital of such
Lender's holding company, if any, as a consequence of this Agreement, such
Lender's Commitment or the Loans made by such Lender pursuant hereto to a level
below that which such Lender or such Lender's holding company could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's policies and the policies of such Lender's holding company with
respect to capital adequacy) by an amount deemed by such Lender to be material,
then from time to time such additional amount or amounts as will compensate such
Lender for any such reduction suffered will be paid to such Lender by the
applicable Borrower or, if the foregoing circumstances do not relate to a
particular Borrower, by Holdings. It is acknowledged that this Agreement is
being entered into by the Lenders on the understanding that the Lenders will not
be required to maintain capital against their Commitments under currently
applicable laws, regulations and regulatory guidelines. In the event the Lenders
shall otherwise determine that such understanding is incorrect, it is agreed
that the Lenders will be entitled to make claims under this paragraph (b) based
upon market requirements prevailing on the date hereof for commitments under
comparable credit facilities against which capital is required to be maintained.
(c) A certificate of each Lender setting forth such amount or amounts as
shall be necessary to compensate such Lender or its holding company as specified
in paragraph (a) or (b) above, as the case may be, and containing an explanation
in reasonable detail of the manner in which such amount or amounts shall have
been determined, shall be delivered to the applicable Borrower or the Borrowers,
as the case may be, and shall be conclusive absent manifest error. The
applicable Borrower shall pay each Lender the amount shown as due on any such
certificate delivered by it within 10 days after its receipt of the same. Each
Lender shall give prompt notice to the applicable Borrower of any event of which
it has knowledge, occurring after the date hereof, that it has determined will
require compensation by such Borrower pursuant to this Section; provided,
however, that failure by such Lender to give such notice shall not constitute a
waiver of such Lender's right to demand compensation hereunder.
(d) Failure on the part of any Lender to demand compensation for any
increased costs or reduction in amounts received or receivable or reduction in
return on capital with respect to any period shall not constitute a waiver of
such Lender's right to demand compensation with respect to such period or any
other period; provided, however, that no Lender shall be entitled to
compensation under this Section 2.11 for any costs incurred or reductions
suffered with respect to any date unless it shall have notified the applicable
Borrower that it will demand compensation for such costs or reductions under
paragraph (c) above not more than 90 days after the later of (i) such date and
(ii) the date on which it shall have become aware of such costs or reductions.
The protection of this Section shall be available to each Lender regardless of
any possible contention of the invalidity or inapplicability of the law, rule,
regulation, guideline or other change or condition which shall have occurred or
been imposed.
(e) Each Lender agrees that it will designate a different lending office
if such designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the reasonable judgment of such Lender, be
disadvantageous to such Lender.
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SECTION 2.12. CHANGE IN LEGALITY.
(a) Notwithstanding any other provision herein, if any change in any law
or regulation or in the interpretation thereof by any Governmental Authority
charged with the administration or interpretation thereof shall make it unlawful
for any Lender to make or maintain any Eurodollar Loan or to give effect to its
obligations as contemplated hereby with respect to any Eurodollar Loan, then, by
written notice to the Borrowers and to the Agent, such Lender may:
(i) declare that Eurodollar Loans will not thereafter be made by such
Lender hereunder, whereupon any request for a Eurodollar Borrowing shall,
as to such Lender only, be deemed a request for an ABR Loan unless such
declaration shall be subsequently withdrawn (any Lender delivering such a
declaration hereby agreeing to withdraw such declaration promptly upon
determining that such event of illegality no longer exists); and
(ii) require that all outstanding Eurodollar Loans made by it be
converted to ABR Loans, in which event all such Eurodollar Loans shall be
automatically converted to ABR Loans as of the effective date of such
notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal which would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Lender or the
converted Eurodollar Loans of such Lender shall instead be applied to repay the
ABR Loans made by such Lender in lieu of, or resulting from the conversion of,
such Eurodollar Loans.
(b) For purposes of this Section 2.12, a notice by any Lender shall be
effective as to each Eurodollar Loan, if lawful, on the last day of the Interest
Period currently applicable to such Eurodollar Loan; in all other cases such
notice shall be effective on the date of receipt.
SECTION 2.13. PRO RATA TREATMENT.
Except as required under Sections 2.12 and 2.17, each Loan, each payment
or prepayment of principal of any Borrowing, each payment of interest on the
Loans, each payment of the Facility Fees, each reduction of the Commitments and
each refinancing or conversion of any Borrowing with a Borrowing of any Type,
shall be allocated pro rata among the Lenders in accordance with their
respective Commitments (or, if such Commitments shall have expired or been
terminated, in accordance with the respective principal amounts of their Loans
outstanding). Each Lender agrees that in computing such Lender's portion of any
Borrowing to be made hereunder, the Agent may, in its discretion, round each
Lender's percentage of such Borrowing to the next higher or lower whole dollar
amount.
SECTION 2.14. SHARING OF SETOFFS.
Each Lender agrees that if it shall, through the exercise of a right of
banker's lien, setoff or counterclaim, or pursuant to a secured claim under
Section 506 of Title 11 of the United States Bankruptcy Code or other security
or interest arising from, or in lieu of, such secured claim, received by such
Lender under any applicable bankruptcy, insolvency or other similar law or
otherwise, or by any other means, obtain payment (voluntary or involuntary) in
respect of any Loans as a result of which the unpaid principal portion of its
Loans shall be proportionately less than the unpaid principal portion of the
23
Loans of any other Lender, it shall be deemed simultaneously to have purchased
from such other Lender at face value, and shall promptly pay to such other
Lender the purchase price for, a participation in the Loans of such other
Lender, so that the aggregate unpaid principal amount of the Loans and
participations in the Loans held by each Lender shall be in the same proportion
to the aggregate unpaid principal amount of all Loans then outstanding as the
principal amount of its Loans prior to such exercise of banker's lien, setoff or
counterclaim or other event was to the principal amount of all Loans outstanding
prior to such exercise of banker's lien, setoff or counterclaim or other event;
provided, however, that, if any such purchase or purchases or adjustments shall
be made pursuant to this Section 2.14 and the payment giving rise thereto shall
thereafter be recovered, such purchase or purchases or adjustments shall be
rescinded to the extent of such recovery and the purchase price or prices or
adjustment restored without interest. Each Borrower expressly consents to the
foregoing arrangements and agrees that any Lender holding a participation in a
Loan deemed to have been so purchased may exercise any and all rights of
banker's lien, setoff or counterclaim with respect to any and all moneys owing
by such Borrower to such Lender by reason thereof as fully as if such Lender had
made a Loan in the amount of such participation.
SECTION 2.15. PAYMENTS.
(a) Each Borrower shall make each payment (including principal of or
interest on any Loans or the Facility Fee or other amounts) hereunder from an
account in the United States not later than 12:00 noon, New York City time, on
the date when due in dollars to the Agent at its offices at 000 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Utility Group, 11th floor, telecopy:
000-000-0000 (with a copy to Client Services Unit, 12th floor, telecopy:
000-000-0000 or -1099, at the same address). The applicable Borrower shall
deliver notice of each such payment to the Agent at 000 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 Attention: Xxxxxxx Xxxxxxx, telephone: 000-000-0000, telecopy:
000-000-0000 (with a copy to the Utility Group, 12th floor, telecopy:
000-000-0000, at the same address), in immediately available funds. Each such
payment shall be made without off-set, deduction or counterclaim, provided, that
the foregoing shall not constitute a relinquishment or waiver of such Borrower's
rights to any independent claim that such Borrower may have against the Agent or
any Lender.
(b) Whenever any payment (including principal of or interest on any Loan
or the Facility Fee or other amounts) hereunder shall become due, or otherwise
would occur, on a day that is not a Business Day, such payment may be made on
the next succeeding Business Day, and such extension of time shall in such case
be included in the computation of interest or the Facility Fee, if applicable.
SECTION 2.16. TAXES.
(a) Any and all payments of principal and interest on any of the Loans, or
of the Facility Fee or indemnity or expense reimbursements by a Borrower
hereunder ("BORROWER PAYMENTS") shall be made, in accordance with Section 2.15,
free and clear of and without deduction for any and all current or future United
States Federal, state and local taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect to such Borrower Payments, but
only to the extent reasonably attributable to such Borrower Payments, excluding
(i) income taxes imposed on the net income of the Agent or any Lender (or any
24
transferee or assignee thereof, including a participation holder (any such
entity a "TRANSFEREE")) and (ii) franchise taxes imposed on the net income of
the Agent or any Lender (or Transferee), in each case by the jurisdiction under
the laws of which the Agent or such Lender (or Transferee) is organized or doing
business through offices or branches located therein, or any political
subdivision thereof (all such nonexcluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities, collectively or individually, "TAXES").
If any Borrower shall be required to deduct any Taxes from or in respect of any
sum payable hereunder to any Lender (or any Transferee) or the Agent, (i) the
sum payable shall be increased by the amount (an "ADDITIONAL AMOUNT") necessary
so that after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.16) such Lender (or Transferee) or
the Agent shall receive an amount equal to the sum it would have received had no
such deductions been made, (ii) such Borrower shall make such deductions and
(iii) such Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, each Borrower shall pay to the relevant United States
Governmental Authority in accordance with applicable law any current or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement or the
Letter Agreement ("OTHER TAXES").
(c) Each Borrower shall indemnify each Lender (or Transferee thereof) and
the Agent for the full amount of Taxes and Other Taxes with respect to Borrower
Payments paid by such person, and any liability (including penalties, interest
and expenses (including reasonable attorney's fees and expenses)) arising
therefrom or with respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted by the relevant United States Governmental
Authority. A certificate setting forth and containing an explanation in
reasonable detail of the manner in which such amount shall have been determined
and the amount of such payment or liability prepared by a Lender or the Agent on
its behalf, absent manifest error, shall be final, conclusive and binding for
all purposes. Such indemnification shall be made within 30 days after the date
the Lender (or Transferee) or the Agent, as the case may be, makes written
demand therefor.
(d) If a Lender (or Transferee) or the Agent shall become aware that it is
entitled to claim a refund from a United States Governmental Authority in
respect of Taxes or Other Taxes as to which it has been indemnified by a
Borrower, or with respect to which a Borrower has paid additional amounts,
pursuant to this Section 2.16, it shall promptly notify such Borrower of the
availability of such refund claim and shall, within 30 days after receipt of a
request by such Borrower, make a claim to such United States Governmental
Authority for such refund at such Borrower's expense. If a Lender (or
Transferee) or the Agent receives a refund (including pursuant to a claim for
refund made pursuant to the preceding sentence) in respect of any Taxes or Other
Taxes as to which it has been indemnified by a Borrower or with respect to which
a Borrower had paid additional amounts pursuant to this Section 2.16, it shall
within 30 days from the date of such receipt pay over such refund to such
Borrower (but only to the extent of indemnity payments made, or additional
amounts paid, by such Borrower under this Section 2.16 with respect to the Taxes
or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of
such Lender (or Transferee) or the Agent and without interest (other than
interest paid by the relevant United States Governmental Authority with respect
to such refund); provided, however, that such Borrower, upon the request of such
25
Lender (or Transferee) or the Agent, agrees to repay the amount paid over to
such Borrower (plus penalties, interest or other charges) to such Lender (or
Transferee) or the Agent in the event such Lender (or Transferee) or the Agent
is required to repay such refund to such United States Governmental Authority.
(e) As soon as practicable, but in any event within 30 days, after the
date of any payment of Taxes or Other Taxes by a Borrower to the relevant United
States Governmental Authority, such Borrower will deliver to the Agent, at its
address referred to in Section 8.01, the original or a certified copy of a
receipt issued by such United States Governmental Authority evidencing payment
thereof.
(f) Without prejudice to the survival of any other agreement contained
herein, the agreements and obligations contained in this Section 2.16 shall
survive the payment in full of the principal of and interest on all Loans
hereunder.
(g) Each of the Agent and each Lender (or Transferee) that is organized
under the laws of a jurisdiction other than the United States, any State thereof
or the District of Columbia (a "NON-U.S. LENDER" or "NON U.S. AGENT", as
applicable) shall deliver to the Borrowers and the Agent two copies of either
United States Internal Revenue Service Form W-8BEN or Form W-8ECI, properly
completed and duly executed by such Non-U.S. Lender claiming complete exemption
from, or reduced rate of, United States Federal withholding tax on payments by
any Borrower under this Agreement. Such forms shall be delivered by each
Non-U.S. Lender on or before the date it becomes a party to this Agreement (or,
in the case of a Transferee that is a participation holder, on or before the
date such participation holder becomes a Transferee hereunder) and on or before
the date, if any, such Non-U.S. Lender changes its applicable lending office by
designating a different lending office (a "NEW LENDING OFFICE"). In addition,
each Non-U.S. Lender shall deliver such forms promptly upon the obsolescence or
invalidity of any form previously delivered by such Non-U.S. Lender.
Notwithstanding any other provision of this Section 2.16(g), a Non-U.S. Lender
shall not be required to deliver any form pursuant to this Section 2.16(g) that
such Non-U.S. Lender is not legally able to deliver.
(h) A Borrower shall not be required to indemnify any Non-U.S. Lender or
Non-U.S. Agent (including any Transferee), or to pay any additional amounts to
any Non-U.S. Lender or Non-U.S. Agent (including any Transferee), in respect of
United States Federal, state or local withholding tax pursuant to paragraph (a)
or (c) above to the extent that (i) the obligation to withhold amounts with
respect to United States Federal, state or local withholding tax existed on the
date such Non-U.S. Lender became a party to this Agreement (or, in the case of a
Transferee that is a participation holder, on the date such participation holder
became a Transferee hereunder) or, with respect to payments to a New Lending
Office, the date such Non-U.S. Lender designated such New Lending Office with
respect to a Loan; provided, however, that this clause (i) shall not apply to
any Transferee or New Lending Office that becomes a Transferee or New Lending
Office as a result of an assignment, participation, transfer or designation made
at the request of such Borrower; and provided further, however, that this clause
(i) shall not apply to the extent the indemnity payment or additional amounts
any Transferee or any Lender (or Transferee) through a New Lending Office, would
be entitled to receive (without regard to this clause (i)) do not exceed the
indemnity payment or additional amounts that the person making the assignment,
participation or transfer to such Transferee or Lender (or Transferee) making
26
the designation of such New Lending Office, would have been entitled to receive
in the absence of such assignment, participation, transfer or designation or
(ii) the obligation to pay such additional amounts or such indemnity payments
would not have arisen but for a failure by such Non-U.S. Lender (including any
Transferee) to comply with the provisions of paragraphs (g) above and (i) below.
(i) Any Lender (or Transferee) claiming any indemnity payment or
additional amounts payable pursuant to this Section 2.16 shall use reasonable
efforts (consistent with legal and regulatory restrictions) to file any
certificate or document reasonably requested in writing by a Borrower or to
change the jurisdiction of its applicable lending office if the making of such a
filing or change would avoid the need for or reduce the amount of any such
indemnity payment or additional amounts that may thereafter accrue and would
not, in the good faith determination of such Lender (or Transferee), be
otherwise disadvantageous to such Lender (or Transferee).
(j) Nothing contained in this Section 2.16 shall require any Lender (or
Transferee) or the Agent to make available to such Borrower any of its tax
returns (or any other information) that it deems to be confidential or
proprietary.
(k) Notwithstanding anything herein to the contrary, the indemnification
obligations under this Section shall, to the extent practicable, be allocated
among the Borrowers based upon their relative liability for the interest, fee or
other payments in respect of which such indemnification obligations arise.
SECTION 2.17. ASSIGNMENT OF COMMITMENTS UNDER CERTAIN CIRCUMSTANCES.
In the event that any Lender shall have delivered a notice or certificate
pursuant to Section 2.11 or 2.12, or any Borrower shall be required to make
additional payments to any Lender under Section 2.16, the Borrowers shall have
the right, at their own expense, upon notice to such Lender and the Agent, to
require such Lender to transfer and assign without recourse (in accordance with
and subject to the restrictions contained in Section 8.04) all such Lender's
interests, rights and obligations contained hereunder to another financial
institution approved by the Agent and the Borrowers (which approval shall not be
unreasonably withheld), which shall assume such obligations; provided that (i)
no such assignment shall conflict with any law, rule or regulation or order of
any Governmental Authority and (ii) the assignee shall pay to the affected
Lender in immediately available funds on the date of such assignment the
principal of and interest accrued to the date of payment on the Loans made by it
hereunder and all other amounts accrued for its account or owed to it hereunder
and the Borrowers shall pay the processing and recordation fee due pursuant to
Section 8.04.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each Borrower (or, if a representation and warranty relates to only a
specific Borrower, such Borrower) represents and warrants to each Lender as
follows:
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SECTION 3.01. ORGANIZATION; POWERS.
Such Borrower (i) is a corporation or, in the case of Energy, a limited
liability company, duly organized or (in the case of Energy) formed, validly
existing and in good standing under the laws of the jurisdiction of its
organization or formation (as the case may be), (ii) has all requisite power and
authority to own its property and assets and to carry on its business as now
conducted and as proposed to be conducted, (iii) is qualified to do business in
every jurisdiction where such qualification is required, except where the
failure so to qualify would not result in a Material Adverse Change, and (iv)
has the corporate or (in the case of Energy) limited liability company power and
authority to execute, deliver and perform its obligations under this Agreement
and to request Borrowings and receive Loans to the extent permitted under
Section 2.01.
SECTION 3.02. AUTHORIZATION.
The execution, delivery and performance by such Borrower of this Agreement
and the making of Loans to the extent permitted under Section 2.01 (i) have been
duly authorized by all requisite corporate or (in the case of Energy) limited
liability company action and (ii) will not (A) violate (x) any provision of any
law, statute, rule or regulation (including, without limitation, the Margin
Regulations) or of the certificate of incorporation or other constitutive
documents (including, in the case of Energy, its limited liability company or
operating agreement) or by-laws of such Borrower or any of its Subsidiaries to
which such Borrower is subject, (y) any order of any Governmental Authority or
(z) any provision of any indenture, agreement or other instrument to which such
Borrower or any of its Subsidiaries is a party or by which it or any of its
property is or may be bound, (B) be in conflict with, result in a breach of or
constitute (alone or with notice or lapse of time or both) a default under any
such indenture, agreement or other instrument or (C) result in the creation or
imposition of any Lien upon any property or assets of such Borrower.
SECTION 3.03. ENFORCEABILITY.
This Agreement constitutes a legal, valid and binding obligation of such
Borrower enforceable in accordance with its terms except to the extent that
enforcement may be limited by bankruptcy, insolvency or similar laws affecting
the enforcement of creditors' rights generally.
SECTION 3.04. GOVERNMENTAL APPROVALS.
No action, consent or approval of, registration or filing with or other
action by any Governmental Authority is or will be required in connection with
the execution, delivery and performance by such Borrower of this Agreement,
except those as have been duly obtained and as are (i) in full force and effect,
(ii) sufficient for their purpose and (iii) not subject to any pending or, to
the knowledge of such Borrower, threatened appeal or other proceeding seeking
reconsideration or review thereof.
SECTION 3.05. FINANCIAL STATEMENTS.
(a) The consolidated balance sheet of Holdings and its Consolidated
Subsidiaries as of December 31, 2001 and the related consolidated statements of
income, retained earnings and cash flows for the fiscal year then ended,
reported on by Deloitte & Touche LLP and set forth in Holdings' 2001 Annual
28
Report on Form 10-K, copies of which have been delivered to each of the Lenders,
present fairly, in all material respects, the consolidated financial position of
Holdings and its Consolidated Subsidiaries as of such date and their
consolidated results of operations and cash flows for the period ending on such
date in conformity with GAAP.
(b) The combined balance sheet of Energy and the businesses that Energy
comprises as of December 31, 2001 and the related statements of combined income
and cash flow for the fiscal year then ended, reported on by Deloitte & Touche
LLP and set forth in Holdings' Form 8-K filed with the SEC on April 17, 2002,
copies of which have been delivered to each of the Lenders, present fairly, in
all material respects, the combined financial position of Energy and the
businesses that Energy comprises as of such date and their combined results of
operations and cash flows for the period ending on such date, in conformity with
GAAP.
(c) The combined balance sheet of Oncor and the businesses that Oncor
comprises as of December 31, 2001 and the related statements of combined income
and cash flow for the fiscal year then ended, reported on by Deloitte & Touche
LLP and set forth in Holdings' Form 8-K filed with the SEC on April 17, 2002,
copies of which have been delivered to each of the Lenders, present fairly, in
all material respects, the combined financial position of Oncor and the
businesses that Oncor comprises as of such date and their combined results of
operations and cash flows for the period ending on such date, in conformity with
GAAP.
(d) Except as set forth in the financial statements or other reports of
the type referred to in Section 5.03 hereof and which have been delivered to the
Lenders on or prior to the date hereof, since December 31, 2001, there has been
no Material Adverse Change with respect to such Borrower, other than as a result
of the matters excluded from the computation of Consolidated Earnings Available
for Fixed Charges as set forth in the definition thereof.
SECTION 3.06. LITIGATION.
Except as set forth in the financial statements or other reports of the
type referred to in Section 5.03 hereof, which have been delivered to the
Lenders on or prior to the date hereof, there is no action, suit or proceeding
pending against, or to the knowledge of such Borrower threatened against or
affecting, such Borrower or any of its Subsidiaries before any court or
arbitrator or any governmental body, agency or official in which there is a
reasonable possibility of an adverse decision that could materially adversely
affect the ability of such Borrower to pay its obligations hereunder or which in
any manner draws into question the validity of this Agreement.
SECTION 3.07. FEDERAL RESERVE REGULATIONS.
(a) Neither such Borrower nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying Margin Stock.
(b) No part of the proceeds of any Loan will be used by such Borrower,
whether directly or indirectly, and whether immediately, incidentally or
ultimately, to purchase or carry Margin Stock or to refund indebtedness
originally incurred for such purpose, or for any other purpose which entails a
29
violation of, or which is inconsistent with, the provisions of the Margin
Regulations.
(c) Not more than 25% of the value of the assets of any Borrower subject
to the restrictions of Sections 5.09 and 5.10 is represented by Margin Stock.
SECTION 3.08. INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING COMPANY ACT.
(a) Neither such Borrower nor any of its Subsidiaries is an "investment
company" as defined in, or subject to regulation under, the Investment Company
Act of 1940.
(b) Such Borrower and each of its Subsidiaries is exempt from all
provisions of the Public Utility Holding Company Act of 1935 and rules and
regulations thereunder, except for Sections 9(a)(2) and 33 of such Act and the
rules and regulations thereunder, and the execution, delivery and performance by
the Borrowers of this Agreement and their respective obligations hereunder do
not violate any provision of such Act or any rule or regulation thereunder.
SECTION 3.09. NO MATERIAL MISSTATEMENTS.
No report, financial statement or other written information furnished by
or on behalf of such Borrower to the Agent or any Lender pursuant to or in
connection with this Agreement contains or will contain any material
misstatement of fact or omits or will omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under which
they were or will be made, not misleading.
SECTION 3.10. TAXES.
Such Borrower and its Subsidiaries have filed or caused to be filed within
3 days of the date on which due, all material Federal, state and local tax
returns which to their knowledge are required to be filed by them, and have paid
or caused to be paid all material taxes shown to be due and payable on such
returns or on any assessments received by them, other than any taxes or
assessments the validity of which is being contested in good faith by
appropriate proceedings and with respect to which appropriate accounting
reserves have to the extent required by GAAP been set aside.
SECTION 3.11. EMPLOYEE BENEFIT PLANS.
With respect to each Plan, such Borrower and its ERISA Affiliates are in
compliance in all material respects with the applicable provisions of ERISA and
the Code and the final regulations and published interpretations thereunder. No
ERISA Event has occurred that alone or together with any other ERISA Event has
resulted or could reasonably be expected to result in a Material Adverse Change.
Neither such Borrower nor any ERISA Affiliate has incurred any Withdrawal
Liability that could result in a Material Adverse Change. Neither such Borrower
nor any ERISA Affiliate has received any notification that any Multiemployer
Plan is in reorganization or has been terminated within the meaning of Title IV
of ERISA, which such reorganization or termination could result in a Material
Adverse Change, and no Multiemployer Plan is reasonably expected to be in
reorganization or to be terminated where such reorganization or termination has
30
resulted or can reasonably be expected to result, through an increase in the
contributions required to be made to such Plan or otherwise, in a Material
Adverse Change.
SECTION 3.12. SIGNIFICANT SUBSIDIARIES.
Each of such Borrower's Significant Subsidiaries is a corporation, limited
liability company or other type of person duly incorporated or formed (as the
case may be), validly existing and in good standing under the laws of its
jurisdiction of incorporation or formation (as the case may be) and has all
corporate, limited liability company, partnership or other (as the case may be)
powers necessary to carry on its business substantially as now conducted. Such
Borrower's Significant Subsidiaries have all material governmental licenses,
authorizations, consents and approvals required to carry on the business of the
Significant Subsidiaries substantially as now conducted.
SECTION 3.13. ENVIRONMENTAL MATTERS.
Except as set forth in or contemplated by the financial statements or
other reports of the type referred to in Section 5.03 hereof and which have been
delivered to the Lenders on or prior to the date hereof, such Borrower and each
of its Subsidiaries has complied in all material respects with all Federal,
state, local and other statutes, ordinances, orders, judgments, rulings and
regulations relating to environmental pollution or to environmental or nuclear
regulation or control, except to the extent that failure to so comply could not
reasonably be expected to result in a Material Adverse Change. Except as set
forth in or contemplated by such financial statements or other reports, neither
such Borrower nor any of its Subsidiaries has received notice of any failure so
to comply, except where such failure could not reasonably be expected to result
in a Material Adverse Change. Except as set forth in or contemplated by such
financial statements or other reports, the facilities of such Borrower or any of
its Subsidiaries, as the case may be, are not used to manage any hazardous
wastes, hazardous substances, hazardous materials, toxic substances, toxic
pollutants or substances similarly denominated, as those terms or similar terms
are used in the Resource Conservation and Recovery Act, the Comprehensive
Environmental Response Compensation and Liability Act, the Hazardous Materials
Transportation Act, the Toxic Substance Control Act, the Clean Air Act, the
Clean Water Act or any other applicable law relating to environmental pollution,
or any nuclear fuel or other radioactive materials, in violation in any material
respect of any law or any regulations promulgated pursuant thereto, except to
the extent that such violations could not reasonably be expected to result in a
Material Adverse Change. Except as set forth in or contemplated by such
financial statements or other reports, such Borrower is aware of no events,
conditions or circumstances involving environmental pollution or contamination
that could reasonably be expected to result in a Material Adverse Change.
SECTION 3.14. SOLVENCY.
Such Borrower is Solvent.
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SECTION 3.15. LIQUIDITY FACILITIES.
The Liquidity Facilities listed on Schedule 3.15 constitute a complete and
accurate list of each Liquidity Facility (other than this Agreement) to which
any of the Borrowers is a party as of the date hereof.
SECTION 3.16. HOLDINGS FACILITY.
As of the date hereof, the "Total Commitment" under the Holdings Facility
is $400,000,000, and there are no "Loans" outstanding under the Holdings
Facility.
ARTICLE IV
CONDITIONS
The obligations of the Lenders to make Loans hereunder are subject to the
satisfaction of the following conditions:
SECTION 4.01. INITIAL LOAN.
The Commitment of each Lender to make its initial Loan on or after the
date hereof is subject to the conditions that on or prior to the date of such
Loan:
(a) The Agent shall have received favorable written legal opinions of (i)
(A) Xxxxxx Xxxx & Priest LLP, special New York counsel to the Borrowers, and (B)
Hunton & Xxxxxxxx, counsel to the Borrowers, and (ii) King & Spalding, special
New York counsel to the Agent, in each case dated the date hereof, addressed to
the Agent and the Lenders and in form and substance satisfactory to the Agent.
(b) The Agent shall have received (i) a copy of the certificate of
incorporation or formation (as the case may be), including all amendments
thereto, of each Borrower, certified as of a recent date by the Secretary of
State of the state of incorporation or formation (as the case may be) of such
Borrower, and a certificate as to the good standing of each Borrower as of a
recent date from such Secretary of State, (ii) a certificate of the Secretary or
an Assistant Secretary or analogous officer of each Borrower, dated the date of
this Agreement and certifying (A) that attached thereto is a true and complete
copy of the bylaws or limited liability company agreement (in the case of
Energy) of such Borrower as in effect on such date and at all times since a date
prior to the date of the resolutions described in clause (B) below, (B) that
attached thereto are true and complete copies of resolutions duly adopted by the
Board of Directors of such Borrower authorizing the execution and delivery by
such Borrower of this Agreement, the Loans to be made hereunder and the
performance by such Borrower of all of its obligations hereunder, and that such
resolutions have not been modified, rescinded or amended and are in full force
and effect, (C) that the certificate of incorporation or formation (as the case
may be) referred to in clause (i) above has not been amended since the date of
the last amendment thereto shown on the certificate of good standing furnished
pursuant to such clause (i) and (D) as to the incumbency and specimen signature
of each officer executing this Agreement and any other document delivered in
connection herewith on behalf of such Borrower, (iii) a certificate of another
officer of such Borrower as to the incumbency and specimen signature of the
Secretary or Assistant Secretary or analogous officer executing the certificate
32
pursuant to (ii) above and (iv) a certificate of a Responsible Officer of each
Borrower, dated the date of this Agreement, stating that (A) no action, consent
or approval of, registration or filing with or other action by any Governmental
Authority is or will be required in connection with the execution, delivery and
performance by such Borrower of this Agreement, except those as have been duly
obtained and as are (1) in full force and effect, (2) sufficient for their
purpose and (3) not subject to any pending or, to the knowledge of such person,
threatened appeal or other proceeding seeking reconsideration or review thereof,
and (B) the representations and warranties set forth in Article III hereof are
true and correct in all material respects on and as of the date hereof, and (C)
no Event of Default or Default has occurred and is continuing on the date
hereof.
(c) The Agent shall have received evidence satisfactory to the Agent that
the commitments of the lenders under the 2001 Agreement have been terminated and
that all fees, accrued interest and other amounts outstanding under the 2001
Agreement have been paid, repaid or prepaid (as appropriate), or will be paid,
repaid or prepaid (as appropriate) on or prior to the date of the first
Borrowing hereunder.
(d) The Agent shall have received such other approvals, opinions,
certificates, instruments and documents as the Agent or any of the Lenders may
have reasonably requested, in form satisfactory to the Agent and the requesting
Lender (if applicable).
(e) The Lenders, the Agent and the Lead Arranger named in the Letter
Agreement shall have received payment of all fees and reimbursements of all
expenses for which invoices have been presented as and when due on or prior to
the date of the initial Loan pursuant to the terms of this Agreement or the
Letter Agreement.
SECTION 4.02. CONDITIONS FOR ALL LOANS.
The Commitment of each Lender to make each Loan hereunder shall be subject
to the satisfaction of the following conditions precedent on the date of such
Loan:
(a) The Agent shall have received from the relevant Borrower a Borrowing
Request requesting such Loan as required by Section 2.03.
(b) The representations and warranties of the applicable Borrower set
forth in Article III hereof (except in the case of a refinancing of a Borrowing
with a new Borrowing that does not increase the aggregate principal amount of
the Loans of any Lender, the representations set forth in Sections 3.05(d),
3.06, 3.11 and 3.13) shall be true and correct in all material respects on and
as of the date of such Borrowing with the same effect as though made on and as
of such date, except to the extent such representations and warranties expressly
relate to an earlier date.
(c) At the time of and immediately after such Borrowing, no Default or
Event of Default affecting the relevant Borrower (and, with respect to any Loan
to Holdings, no Default or Event of Default affecting Energy or Oncor of the
types described in clauses (b), (c), (g), (h), (i), (j), (k) and (l) of Article
VI "Events of Default") shall have occurred and be continuing at the time of
such Borrowing or would result from the making of such Loan.
33
(d) In the case of any Loan to Energy, no Default or Event of Default
shall have occurred and be continuing with respect to the failure of Holdings to
comply with Section 5.11.
(e) The Borrowers shall have first drawn in full all amounts available
(excluding, however, amounts available solely pursuant to the issuance of
letters of credit under the Liquidity Facilities and the drawing of amounts
thereunder) to be drawn under the Liquidity Facilities other than the Holdings
Facility.
(f) On or prior to the date of such Loan, Holdings shall have drawn
amounts under the Holdings Facility in a principal amount equal to or greater
than the principal amount of the Loans to be made hereunder on such date.
(g) The Agent shall have received a certificate of a Responsible Officer
of the relevant Borrower certifying that the matters set forth in paragraphs (b)
through (f) of this Section 4.02 are true and correct as of such date.
Each Loan shall be deemed to constitute a representation and warranty by the
Borrower for which such Loan was made on the date of such Borrowing as to the
matters specified in subsections (b), (c) and (d) of this Section 4.02.
ARTICLE V
COVENANTS
Each Borrower agrees that, so long as any Lender has any Commitment
hereunder or any amount payable hereunder remains unpaid:
SECTION 5.01. EXISTENCE.
It will, and will cause each of its Significant Subsidiaries to, do or
cause to be done all things necessary to preserve and keep in full force and
effect its existence and all rights, licenses, permits, franchises and
authorizations necessary or desirable in the normal conduct of its business
except as otherwise permitted pursuant to Section 5.09.
SECTION 5.02. COMPLIANCE WITH LAWS; BUSINESS AND PROPERTIES.
It will, and will cause each of its Subsidiaries to comply with all
applicable material laws, rules, regulations and orders of any Governmental
Authority, whether now in effect or hereafter enacted, except where the validity
or applicability of such laws, rules, regulations or orders is being contested
by appropriate proceedings in good faith and at all times maintain and preserve
all property material to the conduct of its business and keep such property in
good repair, working order and condition and from time to time make, or cause to
be made, all needful and proper repairs, renewals, additions, improvements and
replacements thereto necessary in order that the business carried on in
connection therewith may be properly conducted at all times.
SECTION 5.03. FINANCIAL STATEMENTS, REPORTS, ETC.
Each Borrower will furnish to the Agent and each Lender:
34
(a) as soon as available and in any event within 120 days after the end of
each fiscal year of such Borrower, a consolidated balance sheet of such Borrower
and its Consolidated Subsidiaries as of the end of such fiscal year and the
related consolidated statements of income, retained earnings and cash flows for
such fiscal year, setting forth in each case in comparative form the figures for
the previous fiscal year, all reported on in a manner reasonably acceptable to
the SEC by Deloitte & Touche LLP or other independent public accountants of
nationally recognized standing;
(b) as soon as available and in any event within 60 days (in the case of
Holdings) or 75 days (in the case of each Subsidiary Borrower) after the end of
each of the first three quarters of each fiscal year of such Borrower, a
consolidated balance sheet of such Borrower and its Consolidated Subsidiaries as
of the end of such quarter and the related consolidated statements of income for
such quarter, for the portion of such Borrower's fiscal year ended at the end of
such quarter, and for the twelve months ended at the end of such quarter, and
the related consolidated statement of cash flows for the portion of such
Borrower's fiscal year ended at the end of such quarter, setting forth
comparative figures for previous dates and periods to the extent required in
Form 10-Q, all certified (subject to normal year-end adjustments) as to fairness
of presentation, GAAP and consistency by a Financial Officer of such Borrower;
provided, that neither Subsidiary Borrower is required to provide such
statements of income for the twelve months ended March 31, 2002, June 30, 2002
or September 30, 2002 or any such comparative figures for any fiscal period
ending prior to March 31, 2002;
(c) simultaneously with any delivery of each set of financial statements
referred to in paragraphs (a) and (b) above, a certificate of a Financial
Officer of such Borrower (i) setting forth in reasonable detail the calculations
required to establish whether such Borrower was in compliance with the
requirements of Sections 5.11 (in the case of Holdings only) and 5.12 on the
date of such financial statements and (ii) stating whether any Default or Event
of Default exists on the date of such certificate and, if any Default or Event
of Default then exists, setting forth the details thereof and the action that
such Borrower is taking or proposes to take with respect thereto;
(d) simultaneously with the delivery of each set of financial statements
referred to in paragraph (a) above, a statement of the firm of independent
public accountants that reported on such statements (i) stating whether anything
has come to their attention to cause them to believe that any Default or Event
of Default existed on the date of such statements and (ii) confirming the
calculations set forth in the Financial Officer's certificate delivered
simultaneously therewith pursuant to paragraph (c) above;
(e) forthwith upon becoming aware of the occurrence of any Default or
Event of Default, a certificate of a Financial Officer of the affected Borrower
setting forth the details thereof and the action that such Borrower is taking or
proposes to take with respect thereto;
(f) promptly upon the filing thereof, copies of each final prospectus
(other than a prospectus included in any registration statement on Form S-8 or
its equivalent or with respect to a dividend reinvestment plan) and all reports
on Forms 10-K, 10-Q and 8-K and similar reports which such Borrower shall have
filed with the SEC, or any Governmental Authority succeeding to any of or all
the functions of the SEC;
35
(g) if and when any member of the Controlled Group (i) gives or is
required to give notice to the PBGC of any Reportable Event with respect to any
Plan that might constitute grounds for a termination of such Plan under Title IV
of ERISA, or knows that the plan administrator of any Plan has given or is
required to give notice of any such Reportable Event, a copy of the notice of
such Reportable Event given or required to be given to the PBGC, (ii) receives
notice from a proper representative of a Multiemployer Plan of complete or
partial Withdrawal Liability being imposed upon such member of the Controlled
Group under Title IV of ERISA, a copy of such notice or (iii) receives notice
from the PBGC under Title IV of ERISA of an intent to terminate, or appoint a
trustee to administer, any Plan, a copy of such notice; and
(h) promptly, from time to time, such additional information regarding the
financial position or business of such Borrower and its Subsidiaries as the
Agent, at the request of any Lender, may reasonably request.
As promptly as practicable after delivering each set of financial statements as
required in paragraph (a) of this Section, each Borrower shall make available a
copy of the consolidating workpapers used by such Borrower in preparing such
consolidated statements to each Lender that shall have requested such
consolidating workpapers. Each Lender that receives such consolidating
workpapers shall hold them in confidence as required by Section 8.15; provided
that no Lender may disclose such consolidating workpapers to any other person
pursuant to clause (iv) of Section 8.15.
SECTION 5.04. INSURANCE.
It will, and will cause each of its Subsidiaries to, maintain such
insurance or self insurance, to such extent and against such risks, including
fire and other risks insured against by extended coverage, as is customary with
companies similarly situated and in the same or similar businesses.
SECTION 5.05. TAXES, ETC.
It will, and will cause each of its Subsidiaries to, pay and discharge
promptly when due all material taxes, assessments and governmental charges
imposed upon it or upon its income or profits or in respect of its property, as
well as all other material liabilities, in each case before the same shall
become delinquent or in default and before penalties accrue thereon, unless and
to the extent that the same are being contested in good faith by appropriate
proceedings and adequate reserves with respect thereto shall, to the extent
required by GAAP, have been set aside.
SECTION 5.06. MAINTAINING RECORDS; ACCESS TO PROPERTIES AND INSPECTIONS.
It will, and will cause each of its Subsidiaries to, maintain financial
records in accordance with GAAP and, upon reasonable notice and at reasonable
times, permit authorized representatives designated by any Lender to visit and
inspect its properties and to discuss its affairs, finances and condition with
its officers.
36
SECTION 5.07. ERISA.
It will, and will cause each of its Subsidiaries that is a member of the
Controlled Group to, comply in all material respects with the applicable
provisions of ERISA and the Code except where any noncompliance, individually or
in the aggregate, would not result in a Material Adverse Change.
SECTION 5.08. USE OF PROCEEDS.
It will not, and will not cause or permit any of its Subsidiaries to, use
the proceeds of the Loans other than for general corporate purposes, including
the refinancing of short-term borrowings used for working capital and other
general corporate purposes.
SECTION 5.09. CONSOLIDATIONS, MERGERS, SALES AND ACQUISITIONS OF ASSETS
AND INVESTMENTS IN SUBSIDIARIES.
It (i) will not, and will not permit any of its Significant Subsidiaries
to, consolidate or merge with or into any person unless (A) in the case of any
such transaction involving such Borrower, the surviving person is such Borrower
or another person formed under the laws of a State of the United States of
America and assumes or is responsible, by operation of law, for all the
obligations of such Borrower hereunder and (B) in the case of any such
transaction involving any such Significant Subsidiary, the survivor is such
Borrower, such Significant Subsidiary or a Wholly Owned Subsidiary of such
Borrower (or a person which as a result of such transaction becomes a Wholly
Owned Subsidiary of such Borrower), and (ii) will not, and will not permit any
of its Significant Subsidiaries (other than, in the case of Holdings, Energy or
Oncor) to, make a Significant Disposition to any person other than such Borrower
or a Wholly Owned Subsidiary of such Borrower (or a person which as a result of
such transaction becomes a Wholly Owned Subsidiary of such Borrower); provided
that such Borrower will not in any event permit any such consolidation, merger,
sale, lease or transfer if any Default or Event of Default relating to such
Borrower shall have occurred and be continuing at the time of or after giving
effect to such transaction. Notwithstanding the foregoing, (x) neither any
Borrower nor any of its Subsidiaries will engage to a Substantial extent in
businesses other than those currently conducted by them and other businesses
reasonably related thereto, (y) neither any Borrower nor any of its Subsidiaries
will acquire any Subsidiary or make any investment in any Subsidiary if, upon
giving effect to such acquisition or investment, as the case may be, such
Borrower would not be in compliance with the covenants set forth in Sections
5.11 (in the case of Holdings only) and 5.12 and (z) nothing in this Section
shall prohibit any sales of assets permitted by Section 5.10(d).
SECTION 5.10. LIMITATIONS ON LIENS.
Neither such Borrower nor any Significant Subsidiary thereof will create
or assume or permit to exist any Lien in respect of any property or assets of
any kind (real or personal, tangible or intangible) of such Borrower or any such
Significant Subsidiary, or sell any such property or assets subject to an
understanding or agreement, contingent or otherwise, to repurchase such property
or assets, or sell, or permit any Significant Subsidiary thereof to sell, any
37
accounts receivable; provided that the provisions of this Section shall not
prevent or restrict the creation, assumption or existence of:
(a) any Lien in respect of any such property or assets of any Significant
Subsidiary of such Borrower to secure indebtedness owing by it to such Borrower
or any Wholly Owned Subsidiary of such Borrower; or
(b) Liens (including capital leases) in respect of property acquired by
such Borrower or any Significant Subsidiary thereof, to secure the purchase
price, or the cost of construction and development, of such property (or to
secure indebtedness incurred prior to, at the time of, or within 120 days after
the later of the acquisition of such property and the commencement of operation
of such property for the purpose of financing the acquisition, or the cost of
construction and development, of such property), or Liens existing on any such
property at the time of acquisition of such property by such Borrower or such
Significant Subsidiary, whether or not assumed, or any Lien in respect of
property of any person existing at the time such person becomes a Subsidiary of
such Borrower, or agreements to acquire any property or assets under conditional
sale agreements or other title retention agreements, or capital leases in
respect of any other property; provided that
(A) the aggregate principal amount of Indebtedness secured by all
Liens in respect of any such property shall not exceed the cost (as
determined by the board of directors or analogous governing body of
such Borrower or such Significant Subsidiary, as the case may be) of
such property at the time of acquisition thereof (or (x) in the case
of property covered by a capital lease, the fair market value, as so
determined, of such property at the time of such transaction, or (y)
in the case of a Lien in respect of property existing at the time such
person becomes a Subsidiary of such Borrower the fair market value, as
so determined of such property at such time), and
(B) at the time of the acquisition of the property by such
Borrower or such Significant Subsidiary, or at the time such person
becomes a Subsidiary of such Borrower, as the case may be, every such
Lien shall apply and attach only to the property originally subject
thereto and fixed improvements constructed thereon; or
(c) refundings or extensions of any Lien permitted in the foregoing
paragraph (b) for amounts not exceeding the principal amount of the Indebtedness
so refunded or extended or the fair market value (as determined by the board of
directors (or analogous governing body) of Holdings or such Significant
Subsidiary, as the case may be) of the property theretofore subject to such
Lien, whichever shall be lower, in each case at the time of such refunding or
extension; provided that such Lien shall apply only to the same property
theretofore subject to the same and fixed improvements constructed thereon; or
(d) sales subject to understandings or agreements to repurchase; provided
that the aggregate sales price for all such sales (other than sales to any
governmental instrumentality in connection with such instrumentality's issuance
of indebtedness, including without limitation industrial development bonds and
pollution control bonds, on behalf of such Borrower or any Significant
38
Subsidiary thereof) made in any one calendar year shall not exceed $50,000,000
in the aggregate for the Borrowers and their respective Significant
Subsidiaries; or
(e) any production payment or similar interest that is dischargeable
solely out of natural gas, coal, lignite, oil or other mineral to be produced
from the property subject thereto and to be sold or delivered by such Borrower
or any Significant Subsidiary thereof; or
(f) any Lien, including in connection with sale-leaseback transactions,
created or assumed by such Borrower or any Significant Subsidiary thereof on
natural gas, coal, lignite, oil or other mineral properties or nuclear fuel
owned or leased by such Borrower or such Subsidiary, to secure loans to such
Borrower or such Subsidiary in an aggregate amount not to exceed $400,000,000 in
the aggregate for the Borrowers and their respective Significant Subsidiaries;
provided that neither such Borrower nor any Subsidiary of such Borrower shall
assume or guarantee such financings; or
(g) any Lien (whenever incurred) on assets owned by such Borrower or any
Subsidiary thereof as of the date hereof and any fuel, operating and maintenance
or similar contract related thereto securing Indebtedness of such Borrower or
Subsidiary in an aggregate amount not to exceed 10% of consolidated assets of
such Borrower; or
(h) leases (other than capital leases) now or hereafter existing and any
renewals and extensions thereof under which such Borrower or any Significant
Subsidiary thereof may acquire or dispose of any of its property, subject,
however, to the terms of Section 5.09; or
(i) any Lien created or to be created by the First Mortgage; or
(j) any Lien on the rights of the TXU Mining or TXU Fuel existing under
their respective Operating Agreements; or
(k) pledges or sales by any such Borrower (other than Holdings) or any
Subsidiary of any Borrower of its accounts receivable including customers'
installment paper; or
(l) the pledge of current assets, in the ordinary course of business, to
secure current liabilities; or
(m) Permitted Encumbrances;
(n) Liens on cash collateral to secure reimbursement obligations for
letters of credit issued for the account of the Borrower or any of its
Subsidiaries; or
(o) any Lien incurred in connection with the issuance of Qualified
Transition Bonds.
SECTION 5.11. FIXED CHARGE COVERAGE.
Holdings will not, as of the end of each quarter of each fiscal year of
Holdings, permit Consolidated Earnings Available for Fixed Charges for the
twelve months then ended to be less than or equal to 200% of Consolidated Fixed
Charges for the twelve months then ended.
39
SECTION 5.12. EQUITY CAPITALIZATION RATIO.
Such Borrower will not, as of the end of each quarter of each fiscal year
of such Borrower, permit the ratio of its Consolidated Shareholders' Equity to
its Consolidated Total Capitalization to be less than 35%, in the case of each
of Holdings and Oncor, and 40%, in the case of Energy.
SECTION 5.13. RESTRICTIVE AGREEMENTS.
Neither Energy nor Oncor will enter into any agreement restricting the
ability of Energy or Oncor to make payments, directly or indirectly, to Holdings
by way of dividends, advances, repayments of loans or advances, reimbursements
of management and other intercompany charges, expenses and accruals or other
returns on investments or any other agreement or arrangement that restricts the
ability of such Subsidiary Borrower to make any payment, directly or indirectly,
to Holdings other than pursuant to the terms of preferred stock or Equity-Credit
Preferred Securities issued by Energy or Oncor or their respective Subsidiaries,
if the effect of such agreement is to subject Energy or Oncor or any of their
respective Subsidiaries to restrictions on such payments greater than those to
which such Subsidiary is subject on the date of this Agreement. All such
existing restrictive agreements are listed on Schedule 5.13 hereto.
SECTION 5.14. PREPAYMENTS AND REDUCTIONS OF COMMITMENTS.
Holdings will not (i) make any voluntary or mandatory repayment or
prepayment of the principal amount outstanding under the Holdings Facility or
(ii) reduce the "Commitments" thereunder unless the Borrowers shall
simultaneously (A) prepay Loans hereunder in a principal amount equal to the
principal amount repaid or prepaid under the Holdings Facility or (B) reduce the
Commitments hereunder in an amount equal to the amount of the reduction in the
"Commitments" under the Holdings Facility, as the case may be.
ARTICLE VI
EVENTS OF DEFAULT
In case of the happening of any of the following events (each an "EVENT OF
DEFAULT") with respect to a Borrower:
(a) any representation or warranty made or deemed made by such Borrower in
or in connection with the execution and delivery of this Agreement or the Loans
hereunder shall prove to have been false or misleading in any material respect
when so made, deemed made or furnished;
(b) default shall be made by such Borrower in the payment of any principal
of any Loan when and as the same shall become due and payable, whether at the
due date thereof or at a date fixed for prepayment thereof or by acceleration
thereof or otherwise;
(c) default shall be made by such Borrower in the payment of any interest
on any Loan or the Facility Fee or any other amount (other than an amount
40
referred to in paragraph (b) above) due hereunder, when and as the same shall
become due and payable, and such default shall continue unremedied for a period
of five days;
(d) default shall be made by such Borrower in the due observance or
performance of any covenant, condition or agreement contained in Section 5.01,
5.11 or 5.12;
(e) default shall be made by such Borrower (i) in the due observance or
performance of any covenant, condition or agreement contained in Section 5.09
and such default shall continue unremedied for a period of 5 days or (ii) in the
due observance or performance of any covenant, condition or agreement contained
herein (other than those specified in (b), (c), (d) or (e)(i) above) or in the
Letter Agreement and such default shall continue unremedied for a period of 30
days after notice thereof from the Agent at the request of any Lender to such
Borrower;
(f) TXU shall no longer own, directly or indirectly, all the outstanding
equity interests in such Borrower or any permitted successor to such Borrower
(which shall constitute an Event of Default for Holdings and any other Borrower
in which TXU has ceased to own 100% of such equity interests), or Holdings shall
no longer own, directly or indirectly, 100% of the equity interests in Energy or
Oncor (which shall constitute an Event of Default for Holdings), or Energy shall
no longer own, directly or indirectly, 100% of the equity interests in TXU
Generation Holdings Company LLC, TXU Energy Trading Company LP, or TXU Energy
Retail Company LP (which shall constitute an Event of Default for Energy);
provided, however, that Holdings and Energy may sell in an initial public
offering up to 20% of the equity interests in any Subsidiary comprising
generating assets of Energy;
(g) such Borrower or any Subsidiary thereof shall (i) fail to pay any
principal or interest, regardless of amount, due in respect of any Indebtedness
in a principal amount in excess of $50,000,000, when and as the same shall
become due and payable, subject to any applicable grace periods, or (ii) fail to
observe or perform any other term, covenant, condition or agreement contained in
any agreement or instrument evidencing or governing any such Indebtedness if the
effect of any failure referred to in this clause (ii) is to cause, or to permit
the holder or holders of such Indebtedness or a trustee on its or their behalf
to cause, such Indebtedness to become accelerated or due prior to its stated
maturity;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i) relief
in respect of such Borrower or any Significant Subsidiary thereof, or of a
substantial part of the property or assets of such Borrower or any Significant
Subsidiary thereof, under Title 11 of the United States Bankruptcy Code, as now
constituted or hereafter amended, or any other Federal or state bankruptcy,
insolvency, receivership or similar law, (ii) the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for such
Borrower or any Significant Subsidiary thereof or for a substantial part of the
property or assets of such Borrower or any Significant Subsidiary thereof or
(iii) the winding up or liquidation of such Borrower or any Significant
Subsidiary thereof; and such proceeding or petition shall continue undismissed
for 60 days or an order or decree approving or ordering any of the foregoing
shall be entered;
(i) such Borrower or any Significant Subsidiary thereof shall (i)
voluntarily commence any proceeding or file any petition seeking relief under
41
Title 11 of the United States Bankruptcy Code, as now constituted or hereafter
amended, or any other Federal or state bankruptcy, insolvency, receivership or
similar law, (ii) consent to the institution of, or fail to contest in a timely
and appropriate manner, any proceeding or the filing of any petition described
in (h) above, (iii) apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for such
Borrower or any Significant Subsidiary thereof or for a substantial part of the
property or assets of it or such Significant Subsidiary, (iv) file an answer
admitting the material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors, (vi)
become unable, admit in writing its inability or fail generally to pay its debts
as they become due or (vii) take any action for the purpose of effecting any of
the foregoing;
(j) A Change in Control shall occur (which shall constitute an Event of
Default for each Borrower);
(k) one or more judgments or orders for the payment of money in an
aggregate amount in excess of $50,000,000 shall be rendered against such
Borrower or any Subsidiary thereof or any combination thereof and such judgment
or order shall remain undischarged or unstayed for a period of 30 days, or any
action shall be legally taken by a judgment creditor to levy upon assets or
properties of such Borrower or any Subsidiary thereof to enforce any such
judgment or order;
(l) an ERISA Event or ERISA Events shall have occurred that reasonably
could be expected to result in a Material Adverse Change with respect to such
Borrower;
then, and in every such event, and at any time thereafter during the continuance
of such event, the Agent, at the request of the Required Lenders, shall, by
notice to the affected Borrower(s), take one or all of the following actions, at
the same or different times: (i) terminate forthwith the right of such affected
Borrower(s) to request and receive Borrowings, (ii) to the extent such event
would permit the Lenders to withhold Loans to any other Borrower pursuant to
Section 4.02(c) or (d), terminate forthwith the right of such other Borrower to
request and receive Borrowings and (iii) declare the Loans of the affected
Borrower(s) then outstanding to be forthwith due and payable in whole or in
part, whereupon the principal of the Loans so declared to be due and payable,
together with accrued interest thereon and any unpaid accrued Facility Fee and
all other liabilities of such Borrower(s) accrued hereunder, shall become
forthwith due and payable, without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived, anything contained
herein to the contrary notwithstanding; provided that in the case of any event
described in paragraph (h) or (i) above affecting any Borrower, the right of
such Borrower to request and receive Borrowings shall automatically terminate
and the principal of the Loans then outstanding of such Borrower, together with
accrued interest thereon and any unpaid accrued Facility Fee and all other
liabilities of such Borrower accrued hereunder shall automatically become due
and payable, without presentment, demand, protest or any other notice of any
kind, all of which are hereby expressly waived by such Borrower, anything
contained herein to the contrary notwithstanding.
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ARTICLE VII
THE AGENT
In order to expedite the transactions contemplated by this Agreement,
Barclays Bank is hereby appointed to act as Agent on behalf of the Lenders. Each
Lender hereby irrevocably authorizes the Agent to take such actions on behalf of
such Lender and to exercise such powers as are specifically delegated to the
Agent by the terms and provisions hereof, together with such actions and powers
as are reasonably incidental thereto. The Agent is hereby expressly authorized
by the Lenders, without hereby limiting any implied authority, (a) to receive on
behalf of the Lenders all payments of principal of and interest on the Loans and
all other amounts due to the Lenders hereunder, and promptly to distribute to
each Lender, its proper share of each payment so received, (b) to give notice on
behalf of each Lender to the Borrowers of any Event of Default of which the
Agent has actual knowledge acquired in connection with its agency hereunder and
(c) to distribute to each Lender copies of all notices, financial statements and
other materials delivered by the Borrowers pursuant to this Agreement as
received by the Agent.
Neither the Agent nor any of its directors, officers, employees or agents
shall be liable as such for any action taken or omitted by any of them except
for its or his or her own gross negligence or willful misconduct, or be
responsible for any statement, warranty or representation herein or the contents
of any document delivered in connection herewith, or be required to ascertain or
to make any inquiry concerning the performance or observance by the Borrowers of
any of the terms, conditions, covenants or agreements contained in this
Agreement. The Agent shall not be responsible to the Lenders for the due
execution, genuineness, validity, enforceability or effectiveness of this
Agreement or other instruments or agreements. The Agent may deem and treat the
Lender that makes any Loan as the holder of the indebtedness resulting therefrom
for all purposes hereof until it shall have received notice from such Lender,
given as provided herein, of the transfer thereof. The Agent shall in all cases
be fully protected in acting, or refraining from acting, in accordance with
written instructions signed by the Required Lenders and, except as otherwise
specifically provided herein, such instructions and any action or inaction
pursuant thereto shall be binding on all the Lenders. The Agent shall, in the
absence of knowledge to the contrary, be entitled to rely on any instrument or
document believed by it in good faith to be genuine and correct and to have been
signed or sent by the proper person or persons. Neither the Agent nor any of its
directors, officers, employees or agents shall have any responsibility to the
Borrowers on account of the failure of or delay in performance or breach by any
Lender of any of its obligations hereunder or to any Lender on account of the
failure of or delay in performance or breach by any other Lender or any Borrower
of any of their respective obligations hereunder or in connection herewith. The
Agent may execute any and all duties hereunder by or through agents or employees
and shall be entitled to rely upon the advice of legal counsel selected by it
with respect to all matters arising hereunder and shall not be liable for any
action taken or suffered in good faith by it in accordance with the advice of
such counsel.
The Lenders hereby acknowledge that the Agent shall not be under any duty
to take any discretionary action permitted to be taken by it pursuant to the
provisions of this Agreement unless it shall be requested in writing to do so by
the Required Lenders.
Subject to the appointment and acceptance of a successor Agent as provided
below, the Agent may resign at any time by notifying the Lenders and the
Borrowers. Upon any such resignation, the Required Lenders shall have the right
43
to appoint a successor Agent acceptable to the Borrowers. If no successor shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the Agent gives notice of its resignation, then
the Agent may, on behalf of the Lenders, appoint a successor Agent having a
combined capital and surplus of at least $500,000,000 or an Affiliate of any
such bank. Upon the acceptance of any appointment as Agent hereunder by a
successor bank, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent and the Agent shall
be discharged from its duties and obligations hereunder. After the Agent's
resignation hereunder, the provisions of this Article and Section 8.05 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as the Agent.
With respect to the Loans made by it hereunder, the Agent, in its
individual capacity and not as Agent, shall have the same rights and powers as
any other Lender and may exercise the same as though it were not the Agent, and
the Agent and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrowers or any Subsidiary or
other Affiliate thereof as if it were not Agent.
Each Lender agrees (i) to reimburse the Agent, on demand, in the amount of
its pro rata share (based on its Commitment hereunder or, if the Commitments
shall have been terminated, the amount of its percentage of Loans) of any
expenses incurred for the benefit of the Lenders, in its role as Agent,
including counsel fees and compensation of agents and employees paid for
services rendered on behalf of the Lenders, which shall not have been reimbursed
by the Borrowers and (ii) to indemnify and hold harmless the Agent and any of
its directors, officers, employees or agents, on demand, in the amount of such
pro rata share, from and against any and all liabilities, taxes, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on, incurred
by or asserted against it in any way relating to or arising out of this
Agreement or any action taken or omitted by it under this Agreement to the
extent the same shall not have been reimbursed by the Borrowers; provided that
no Lender shall be liable to the Agent for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the gross negligence or willful
misconduct of the Agent or any of its directors, officers, employees or agents.
Each Lender agrees that any allocation made in good faith by the Agent of
expenses or other amounts referred to in this paragraph shall be conclusive and
binding for all purposes.
Each Lender acknowledges that it has, independently and without reliance
upon the Agent or any other Lender and based on such documents and information
as it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. Each Lender also acknowledges that it will, independently
and without reliance upon the Agent or any other Lender and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or based
upon this Agreement or any related agreement or any document furnished hereunder
or thereunder.
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Barclays Capital shall not, by virtue of its designation as "Lead
Arranger" and "Sole Bookrunner" have any duties, liabilities, obligations or
responsibilities under this Agreement other than, if applicable, as a Lender
hereunder.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. NOTICES.
Notices and other communications provided for herein shall be in writing
and shall be delivered by hand or overnight courier service, mailed or sent by
telecopy, as follows:
(a) if to any Borrower, to such Borrower c/o TXU Business Services
Company, Energy Plaza, 0000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, XX 00000,
Attention: Treasurer (Telecopy No. 214-812-2488);
(b) if to the Agent, to Barclays Bank PLC, 000 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx, 00000, Attention: Utility Group, 11th Floor (Telecopy No. 212-412-6709),
with a copy to Client Services Unit, 12th Floor (Telecopy No.: 000-000-0000 or
1099), at the same address; and
(c) if to a Lender, to it at its address (or telecopy number) set forth in
the Register or in the Assignment and Acceptance pursuant to which such Lender
became a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy to such party as provided in this Section or in accordance with the
latest unrevoked direction from such party given in accordance with this
Section.
SECTION 8.02. SURVIVAL OF AGREEMENT.
All covenants, agreements, representations and warranties made by the
Borrowers herein and in the certificates or other instruments prepared or
delivered in connection with or pursuant to this Agreement shall be considered
to have been relied upon by the Lenders and shall survive the making by the
Lenders of the Loans regardless of any investigation made by the Lenders or on
their behalf, and shall continue in full force and effect as long as (i) there
remains outstanding and unpaid principal or accrued interest on any Loan or the
Facility Fee or any other amount payable under this Agreement or (ii) the
Commitments have not been terminated.
SECTION 8.03. BINDING EFFECT.
This Agreement shall become effective when it shall have been executed by
the Borrowers and the Agent and when the Agent shall have received copies hereof
(telecopied or otherwise) which, when taken together, bear the signature of each
Lender, and thereafter shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns, except that the
Borrowers shall not have the right to assign any rights hereunder or any
interest herein without the prior consent of all the Lenders.
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SECTION 8.04. SUCCESSORS AND ASSIGNS.
(a) Whenever in this Agreement any of the parties hereto is referred to,
such reference shall be deemed to include the successors and assigns of such
party and all covenants, promises and agreements by or on behalf of any party
that are contained in this Agreement shall bind and inure to the benefit of its
successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion of
its interests, rights and obligations under this Agreement (including all or a
portion of its Commitment and its Loans); provided, however, that (i) except in
the case of an assignment to a Lender or an Affiliate of such Lender, an
assignment to a Federal Reserve Bank or an assignment made at any time an Event
of Default shall have occurred and be continuing, the Borrowers and the Agent
must give their prior written consent to such assignment (which consent shall
not be unreasonably withheld), (ii) the amount of the Commitment of the
assigning Lender subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to the
Agent) shall not be less than $5,000,000 or, if the amount of the Commitment of
the assigning Lender is less than $5,000,000, the aggregate amount of such
Lender's Commitment, (iii) each such assignment shall be of a constant, and not
a varying, percentage of all the assigning Lender's rights and obligations under
this Agreement and (iv) the parties to each such assignment shall execute and
deliver to the Agent an Assignment and Acceptance, and a processing and
recordation fee of $3,500. Upon acceptance and recording pursuant to Section
8.04(e), from and after the effective date specified in each Assignment and
Acceptance, which effective date shall be at least five Business Days after the
execution thereof unless otherwise agreed by the Agent (the Borrowers to be
given reasonable notice of any shorter period), (A) the assignee thereunder
shall be a party hereto and, to the extent of the interest assigned by such
Assignment and Acceptance, have the rights and obligations of a Lender under
this Agreement and (B) the assigning Lender thereunder shall, to the extent of
the interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto (but shall continue to be entitled to the benefits of Sections 2.11, 2.16
and 8.05 afforded to such Lender prior to its assignment as well as to the
Facility Fee accrued for its account hereunder and not yet paid)).
(c) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim, (ii)
except as set forth in (i) above, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement, or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto or the financial condition of the Borrowers or the performance or
observance by the Borrowers of any obligations under this Agreement or any other
instrument or document furnished pursuant hereto; (iii) such assignor and such
assignee represents and warrants that it is legally authorized to enter into
such Assignment and Acceptance; (iv) such assignee confirms that it has received
a copy of this Agreement, together with copies of the most recent financial
46
statements delivered pursuant to Section 5.03 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (v) such assignee will
independently and without reliance upon the Agent, such assigning Lender or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (vi) such assignee appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to the Agent by the terms
hereof, together with such powers as are reasonably incidental thereto and (vii)
such assignee agrees that it will perform in accordance with their terms all the
obligations which by the terms of this Agreement are required to be performed by
it as a Lender.
(d) The Agent shall maintain at one of its offices in the City of New York
a copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of
each Lender pursuant to the terms hereof from time to time (the "Register"). The
entries in the Register shall be conclusive in the absence of manifest error and
the Borrowers, the Agent and the Lenders may treat each person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement. The Register shall be available for inspection
by each party hereto, at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the processing and recordation
fee referred to in paragraph (b) above and, if required, the written consent of
the Borrowers and the Agent to such assignment, the Agent shall (i) accept such
Assignment and Acceptance and (ii) record the information contained therein in
the Register.
(f) Each Lender may without the consent of the Borrowers or the Agent sell
participations to one or more banks or other entities in all or a portion of its
rights and/or obligations under this Agreement (including all or a portion of
its Commitment and its Loans); provided, however, that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (iii) each participating bank or other entity shall be
entitled to the benefit of the cost protection provisions contained in Sections
2.11, 2.16 and 8.05 to the same extent as if it were the selling Lender (and
limited to the amount that could have been claimed by the selling Lender had it
continued to hold the interest of such participating bank or other entity),
except that all claims made pursuant to such Sections shall be made through such
selling Lender, and (iv) the Borrowers, the Agent and the other Lenders shall
continue to deal solely and directly with such selling Lender in connection with
such Lender's rights and obligations under this Agreement, and such Lender shall
retain the sole right to enforce the obligations of the Borrowers under this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement (other than amendments, modifications or waivers (x)
decreasing any fees payable hereunder or the amount of principal of, or the rate
at which interest is payable on, the Loans, (y) extending any scheduled
principal payment date or date fixed for the payment of interest on the Loans or
(z) extending the Commitments).
47
(g) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section,
disclose to the assignee or participant or proposed assignee or participant any
information relating to the Borrowers furnished to such Lender by or on behalf
of the Borrowers; provided that, prior to any such disclosure, each such
assignee or participant or proposed assignee or participant shall execute an
agreement whereby such assignee or participant shall agree (subject to customary
exceptions) to preserve the confidentiality of any such information.
(h) The Borrowers shall not assign or delegate any rights and duties
hereunder without the prior written consent of all Lenders, and any attempted
assignment or delegation (except as a consequence of a transaction expressly
permitted under Section 5.09) by a Borrower without such consent shall be void.
(i) Any Lender may at any time pledge all or any portion of its rights
under this Agreement to a Federal Reserve Bank; provided that no such pledge
shall release any Lender from its obligations hereunder or substitute any such
Bank for such Lender as a party hereto. In order to facilitate such an
assignment to a Federal Reserve Bank, each Borrower shall, at the request of the
assigning Lender, duly execute and deliver to the assigning Lender a promissory
note or notes evidencing the Loans made to such Borrower by the assigning Lender
hereunder.
SECTION 8.05. EXPENSES; INDEMNITY.
(a) Holdings agrees to pay all reasonable out-of-pocket expenses
(including reasonable fees, charges and disbursements of counsel) incurred by
the Agent in connection with the preparation, execution and delivery of this
Agreement or in connection with any amendments, modifications or waivers of the
provisions hereof (but only if such amendments, modifications or waivers are
requested by a Borrower) (whether or not the transactions hereby contemplated
are consummated), or incurred by the Agent or any Lender in connection with the
enforcement of their rights in connection with this Agreement (including in
respect of workouts and restructurings) or in connection with the Loans made
hereunder, including the reasonable fees and disbursements of counsel for the
Agent or, in the case of enforcement following an Event of Default and the
Lenders.
(b) Each Borrower agrees to indemnify each Lender against any loss,
calculated in accordance with the next sentence, or reasonable expense that such
Lender may sustain or incur as a consequence of (i) any failure by such Borrower
to borrow or to refinance, convert or continue any Loan hereunder (including as
a result of such Borrower's failure to fulfill any of the applicable conditions
set forth in Article IV) after irrevocable notice of such borrowing,
refinancing, conversion or continuation has been given pursuant to Section 2.03,
(ii) any payment, prepayment or conversion of a Eurodollar Loan of such
Borrower, or assignment of a Eurodollar Loan of such Borrower required by any
other provision of this Agreement or otherwise made or deemed made, on a date
other than the last day of the Interest Period, if any, applicable thereto,
(iii) any default by such Borrower in payment or prepayment of the principal
amount of any Loan or any part thereof or interest accrued thereon, as and when
due and payable (at the due date thereof, whether by scheduled maturity,
acceleration, irrevocable notice of prepayment or otherwise) or (iv) the
occurrence of any Event of Default relating to such Borrower, including, in each
such case, any loss or reasonable expense sustained or incurred or to be
48
sustained or incurred by such Lender in liquidating or employing deposits from
third parties, or with respect to commitments made or obligations undertaken
with third parties, to effect or maintain any Loan hereunder or any part thereof
as a Eurodollar Loan. Such loss shall include an amount equal to the excess, if
any, as reasonably determined by such Lender, of (x) its cost of obtaining the
funds for the Loan being paid, prepaid, refinanced, converted or not borrowed
(assumed to be the LIBO Rate for the period from the date of such payment,
prepayment, refinancing or failure to borrow or refinance to the last day of the
Interest Period for such Loan (or, in the case of a failure to borrow or
refinance, the Interest Period for such Loan that would have commenced on the
date of such failure) over (y) the amount of interest (as reasonably determined
by such Lender) that would be realized by such Lender in reemploying the funds
so paid, prepaid or not borrowed or refinanced for such period or Interest
Period, as the case may be.
(c) Holdings agrees to indemnify the Agent, each Lender, each of their
Affiliates and the directors, officers, employees and agents of the foregoing
(each such person being called an "INDEMNITEE") against, and to hold each
Indemnitee harmless from, any and all costs, losses, claims, damages,
liabilities and related expenses, including reasonable counsel fees and
expenses, incurred by or asserted against any Indemnitee arising out of (i) the
preparation, execution, delivery, enforcement, performance and administration of
this Agreement, (ii) the use of the proceeds of the Loans or (iii) any claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether or not any Indemnitee is a party thereto, including any of the foregoing
arising from the negligence, whether sole or concurrent, on the part of any
Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses (A) are determined by a final judgment of a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of
such Indemnitee or (B) result from any litigation brought by such Indemnitee
against the Borrowers or by any Borrower against such Indemnitee, in which a
final, nonappealable judgment has been rendered against such Indemnitee;
provided, further, that each Borrower agrees that it will not, nor will it
permit any Subsidiary to, without the prior written consent of each Indemnitee,
settle, compromise or consent to the entry of any judgment in any pending or
threatened claim, action, suit or proceeding in respect of which indemnification
could be sought under the indemnification provisions of this Section 8.05(c)
(whether or not any Indemnitee is an actual or potential party to such claim,
action, suit or proceeding), unless such settlement, compromise or consent does
not include any statement as to an admission of fault, culpability or failure to
act by or on behalf of any Indemnitee and does not involve any payment of money
or other value by any Indemnitee or any injunctive relief or factual findings or
stipulations binding on any Indemnitee.
(d) The provisions of this Section shall remain operative and in full
force and effect regardless of the expiration of the term of this Agreement, the
consummation of the transactions contemplated hereby, the repayment of any of
the Loans, the invalidity or unenforceability of any term or provision of this
Agreement or any investigation made by or on behalf of the Agent or any Lender.
All amounts due under this Section shall be payable on written demand therefor.
(e) A certificate of any Lender or the Agent setting forth any amount or
amounts that such Lender or such Agent is entitled to receive pursuant to
paragraph (b) of this Section and containing an explanation in reasonable detail
of the manner in which such amount or amounts shall have been determined shall
49
be delivered to the appropriate Borrower and shall be conclusive absent manifest
error.
SECTION 8.06. RIGHT OF SETOFF.
If an Event of Default shall have occurred and be continuing, each Lender
is hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at
any time owing by such Lender to or for the credit or the account of the
applicable Borrower against any of and all the obligations of such Borrower now
or hereafter existing under this Agreement held by such Lender irrespective of
whether such Lender shall have made any demand under this Agreement and although
such obligations may be unmatured. The rights of each Lender under this Section
are in addition to other rights and remedies (including other rights of setoff)
that such Lender may have.
SECTION 8.07. APPLICABLE LAW.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK.
SECTION 8.08. WAIVERS; AMENDMENT.
(a) No failure or delay of the Agent or any Lender in exercising any power
or right hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Agent and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or consent to any departure therefrom shall in
any event be effective unless the same shall be permitted by paragraph (b)
below, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice or demand on any
Borrower or any Subsidiary in any case shall entitle such party to any other or
further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived, amended
or modified except pursuant to an agreement or agreements in writing entered
into by the Borrowers and the Required Lenders; provided, however, that no such
agreement shall (i) decrease the principal amount of, or extend the maturity of
or any scheduled principal payment date or date for the payment of any interest
on, any Loan or date for the payment of any Facility Fee, or waive or excuse any
such payment or any part thereof, or decrease the rate of interest on any Loan,
without the prior written consent of each Lender affected thereby, (ii) increase
the Commitment of any Lender or decrease the Facility Fee payable to any Lender
without the prior written consent of such Lender, (iii) amend, modify or waive
the provisions of Section 2.13, 2.14 or 8.04(h), the provisions of this Section
or the definition of the "Required Lenders", without the prior written consent
of each Lender or (iv) amend, modify or waive the provisions of Section
2.10(b)(ii), 4.02(e), 4.02(f), 4.02(g) or 5.14 without the prior written consent
of the Required Lenders and Barclays Bank, if Barclays Bank or any Affiliate
50
thereof is a Lender; provided further, however, that no such agreement shall
amend, modify or otherwise affect the rights or duties of the Agent hereunder
without the prior written consent of the Agent. Each Lender shall be bound by
any waiver, amendment or modification authorized by this Section and any consent
by any Lender or the Agent pursuant to this Section shall bind any assignee of
its rights and interests hereunder.
SECTION 8.09. ENTIRE AGREEMENT.
This Agreement (including the schedules and exhibits hereto) and the
Letter Agreement represent the entire contract among the parties relative to the
subject matter hereof and thereof. Any previous agreement, whether written or
oral, among the parties with respect to the subject matter hereof, is superseded
by this Agreement and the Letter Agreement. There are no unwritten oral
agreements between the parties. Nothing in this Agreement, expressed or implied,
is intended to confer upon any party other than the parties hereto any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
SECTION 8.10. SEVERABILITY.
In the event any one or more of the provisions contained in this Agreement
should be held invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby. The parties shall endeavor in
good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
SECTION 8.11. COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of which
shall constitute an original but all of which when taken together shall
constitute but one contract, and shall become effective as provided in Section
8.03.
SECTION 8.12. HEADINGS.
Article and Section headings and the Table of Contents used herein are for
convenience of reference only, are not part of this Agreement and are not to
affect the construction of, or to be taken into consideration in interpreting,
this Agreement.
SECTION 8.13. INTEREST RATE LIMITATION.
(a) Notwithstanding anything herein to the contrary, if at any time the
applicable interest rate, together with all fees and charges which are treated
as interest under applicable law (collectively the "CHARGES"), as provided for
herein or in any other document executed in connection herewith, or otherwise
contracted for, charged, received, taken or reserved by any Lender, shall exceed
the maximum lawful rate (the "MAXIMUM RATE") which may be contracted for,
charged, taken, received or reserved by such Lender in accordance with
applicable law, the rate of interest payable on the Loans of such Lender,
together with all Charges payable to such Lender, shall be limited to the
Maximum Rate.
51
(b) If the amount of interest, together with all Charges, payable for the
account of any Lender in respect of any interest computation period is reduced
pursuant to paragraph (a) of this Section and the amount of interest, together
with all Charges, payable for such Lender's account in respect of any subsequent
interest computation period, computed pursuant to Section 2.07, would be less
than the Maximum Rate, then the amount of interest, together with all Charges,
payable for such Lender's account in respect of such subsequent interest
computation period shall, to the extent permitted by applicable law, be
automatically increased to such Maximum Rate; provided that at no time shall the
aggregate amount by which interest paid for the account of any Lender has been
increased pursuant to this paragraph (b) exceed the aggregate amount by which
interest, together with all Charges, paid for its account has theretofore been
reduced pursuant to paragraph (a) of this Section.
SECTION 8.14. JURISDICTION; VENUE.
(a) Each Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York State
court or Federal court of the United States of America sitting in New York City,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in such New York State or, to the extent permitted by law, in
such Federal court. Each of the parties hereto agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Subject to the foregoing and to paragraph (b) below, nothing in this Agreement
shall affect any right that any party hereto may otherwise have to bring any
action or proceeding relating to this Agreement against any other party hereto
in the courts of any jurisdiction.
(b) Each Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or thereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any New York State court or
Federal court of the United States of America sitting in New York City. Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
SECTION 8.15. CONFIDENTIALITY.
Each Lender shall use its best efforts to hold in confidence all
information, memoranda, or extracts furnished to such Lender (directly or
through the Agent) by the Borrowers hereunder or in connection with the
negotiation hereof; provided that such Lender may disclose any such information,
memoranda or extracts (i) to its Affiliates, accountants or counsel, (ii) to any
regulatory agency having authority to examine such Lender, (iii) as required by
any legal or governmental process or otherwise by law, (iv) except as provided
in the last sentence of Section 5.03, to any person to which such Lender sells
or proposes to sell an assignment or a participation in its Loans hereunder, if
such other person agrees for the benefit of the Borrowers to comply with the
provisions of this Section and (v) to the extent that such information,
52
memoranda or extracts shall be publicly available or shall have become known to
such Lender independently of any disclosure by any Borrower hereunder or in
connection with the negotiation hereof. Notwithstanding the foregoing, any
Lender may disclose the provisions of this Agreement, the amounts, maturities
and interest rates of its Loans, and the Facility Fee to which it is entitled,
to any purchaser or potential purchaser of such Lender's interest in any Loans.
[Signature pages follow]
53
TXU US HOLDINGS COMPANY
By /s/Xxxx X. Xxxxxx
---------------------------
Xxxx X. Xxxxxx
Treasurer and Assistant Secretary
TXU ENERGY COMPANY LLC
By /s/Xxxx X. Xxxxxx
---------------------------
Xxxx X. Xxxxxx
Treasurer and Assistant Secretary
ONCOR ELECTRIC DELIVERY COMPANY
By /s/Xxxx X. Xxxxxx
---------------------------
Xxxx X. Xxxxxx
Treasurer and Assistant Secretary
BARCLAYS BANK PLC
By /s/Sydney X. Xxxxxx
---------------------------
Sydney X. Xxxxxx
Director
EXHIBIT A
FORM OF BORROWING REQUEST
BORROWING REQUEST
[Date]
Barclays Bank PLC
as Agent for the lenders referred to below,
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Utility Group, 11th Floor
Telecopy: (000) 000-0000
Ladies and Gentlemen:
The undersigned, [TXU Energy Company LLC] [Oncor Electric Delivery
Company] [TXU US Holdings Company] (the "BORROWER"), refers to the Credit
Agreement dated as of August 30, 2002 (as it may hereafter be amended, modified,
extended or restated from time to time, the "AGREEMENT"), among the Borrower,
[TXU Energy Company LLC], [Oncor Electric Delivery Company], [TXU US Holdings
Company], the lenders listed in Schedule 2.01 thereto (the "LENDERS") and
Barclays Bank PLC, as Agent for the Lenders. Capitalized terms used herein and
not otherwise defined herein shall have the meanings assigned to such terms in
the Agreement. The Borrower hereby gives you notice pursuant to Section 2.03 of
the Agreement that it requests a Borrowing under the Agreement, and in that
connection sets forth below the terms on which such Borrowing is requested to be
made:
(A) Date of Borrowing (which is a Business Day) ------
(B) Principal amount of Borrowing(1) ------
(C) Interest rate basis(2) ------
(D) Interest Period and the last day thereof(3) ------
--------
1 Not less than $25,000,000 (and in integral multiples of $5,000,000) or
greater than the Total Commitment then available.
2 Eurodollar Loan or ABR Loan.
3 Which shall be subject to the definition of "INTEREST PERIOD" and end not
later than the Maturity Date.
A-1
Upon acceptance of any or all of the Loans made by the Lenders in response
to this request, the Borrower shall be deemed to have represented and warranted
that the applicable conditions to lending specified in Article IV of the
Agreement have been satisfied.
Very truly yours,
[TXU ENERGY COMPANY LLC]
[ONCOR ELECTRIC DELIVERY COMPANY]
[TXU US HOLDINGS COMPANY]
By _________________________________
Name:
Title:
A-2
EXHIBIT B
FORM OF ASSIGNMENT AND ACCEPTANCE
ASSIGNMENT AND ACCEPTANCE
[Date]
Reference is made to the Credit Agreement, dated as of August 30, 2002 (as
amended, modified, extended or restated from time to time, the "Agreement"),
among TXU Energy Company LLC, Oncor Electric Delivery Company, TXU US Holdings
Company (collectively, the "BORROWERS"), the lenders listed in Schedule 2.01
thereto (the "LENDERS") Barclays Bank PLC, as Agent for the Lenders. Terms
defined in the Agreement are used herein with the same meanings.
1. The Assignor hereby sells and assigns, without recourse, to the
Assignee, and the Assignee hereby purchases and assumes, without recourse, from
the Assignor, effective as of the [Effective Date of Assignment set forth
below], the interests set forth on the reverse hereof (the "ASSIGNED INTEREST")
in the Assignor's rights and obligations under the Agreement, including, without
limitation, the interests set forth on the reverse hereof in the Commitment of
the Assignor on the [Effective Date of Assignment] and the Loans owing to the
Assignor that are outstanding on the [Effective Date of Assignment], together
with unpaid interest accrued on the assigned Loans to the [Effective Date of
Assignment] and the amount, if any, set forth on the reverse hereof of the
Facility Fee accrued to the [Effective Date of Assignment] for the account of
the Assignor. Each of the Assignor and the Assignee hereby makes and agrees to
be bound by all the representations, warranties and agreements set forth in
Section 8.04 of the Agreement, a copy of which has been received by each such
party. From and after the [Effective Date of Assignment], (i) the Assignee shall
be a party to and be bound by the provisions of the Agreement and, to the extent
of the interests assigned by this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent of
the interests assigned by this Assignment and Acceptance, relinquish its rights
and be released from its obligations under the Agreement.
2. This Assignment and Acceptance is being delivered to the Agent together
with (i) if the Assignee is organized under the laws of a jurisdiction outside
the United States, the forms specified in Section 2.16(g) of the Agreement, duly
completed and executed by such Assignee and (ii) a processing and recordation
fee of $3,500.
B-1
3. This Assignment and Acceptance shall be governed by and construed
in accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
(may not be fewer than 5 Business
Days after the Date of Assignment
unless otherwise agreed by the Agent):
---------------------- ------------------------ -----------------------------
Percentage Assigned of
Facility/Commitment (set
Principal Amount forth, to at least 8
Facility Assigned decimals, as a percentage
of the Facility and the
aggregate Commitments of
all Lenders thereunder
Commitment Assigned: $____________ __________%
Loans: $____________ __________%
Facility Fee Assigned $____________ __________%
(if any):
B-2
The terms set forth and on the Accepted:
reverse side hereof are hereby
agreed to:
TXU ENERGY COMPANY LLC
[ASSIGNOR], as
Assignor
By
--------------------------------
By Name:
Title:
-----------------------, as
Name:
Title:
ONCOR ELECTRIC DELIVERY COMPANY
[ASSIGNEE], as
Assignee, By
--------------------------------
Name:
Title:
By
-----------------------, as
Name:
Title:
TXU US HOLDINGS COMPANY
By
--------------------------------
Name:
Title:
BARCLAYS BANK PLC, as
Agent
By
--------------------------------
Name:
Title:
B-3
SCHEDULE 2.01
COMMITMENTS
----------------------------------------------------------------------
NAME OF LENDER COMMITMENT
----------------------------------------------------------------------
Barclays Bank PLC $400,000,000
----------------------------------------------------------------------
TOTAL $400,000,000
============
----------------------------------------------------------------------
SCHEDULE 3.15
LIQUIDITY FACILITIES
364-Day Revolving Credit Agreement, dated as of April 24, 2002, among the
Borrowers, the lenders listed in Schedule 2.01 thereto, JPMorgan Chase Bank and
Bank of America, N.A.
Five-Year Third Amended and Restated Competitive Advance and Revolving Credit
Facility Agreement, dated as of July 31, 2002, among Holdings, the lenders
listed in Schedule 2.01 thereto and JPMorgan Chase Bank
Credit Agreement, dated as of July 15, 2002, among Holdings, the lenders listed
in Schedule 2.01 thereto and JPMorgan Chase Bank
SCHEDULE 5.13
RESTRICTIVE AGREEMENTS
Oncor Mortgage
