Exhibit 10(c)(1)
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INSTALLMENT PAYMENT
AND
BOND AMORTIZATION AGREEMENT
BETWEEN
BRAZOS RIVER AUTHORITY
AND
TXU ENERGY COMPANY LLC
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BRAZOS RIVER AUTHORITY
POLLUTION CONTROL REVENUE REFUNDING BONDS
(TXU ENERGY COMPANY LLC PROJECT)
SERIES 2003D
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TABLE OF CONTENTS
ARTICLE I: DEFINITIONS...........................................................................................5
Section 1.01. Definitions..........................................................................5
ARTICLE II: REPRESENTATIONS......................................................................................5
Section 2.01. Representations By Authority.........................................................5
Section 2.02. Representations By Company...........................................................6
ARTICLE III: THE FACILITIES......................................................................................7
Section 3.01. Operation and Assignment, Sale or Lease of Facilities................................7
Section 3.02. Governmental Regulation..............................................................7
ARTICLE IV: REFUNDING THE REFUNDED BONDS; DISBURSEMENTS..........................................................7
Section 4.01. Disbursement of Bond Proceeds and Other Funds........................................7
Section 4.02. Lien on Deposited Funds..............................................................8
Section 4.03. Company Required to Pay in Event Funds are Insufficient for Refunding................8
ARTICLE V: THE BONDS..............................................................................................8
Section 5.01. Issuance of the Bonds................................................................8
Section 5.02. Refunding of Bonds...................................................................9
Section 5.03. Redemption of Bonds..................................................................9
Section 5.04. Installment Payments.................................................................9
Section 5.05. Payments to Authority; Indemnification..............................................11
Section 5.06. Tax-Exempt Status of the Bonds......................................................11
Section 5.07. Purchase Price Payments.............................................................14
Section 5.08. Further Assurances..................................................................14
ARTICLE VI: COVENANTS AND REMEDIES..............................................................................14
Section 6.01. Covenant............................................................................14
Section 6.02. Trustee.............................................................................14
Section 6.03. General Provisions..................................................................15
Section 6.04. Amendment of Agreement..............................................................16
ARTICLE VII: SPECIAL COVENANTS..................................................................................17
Section 7.01. Company to Maintain its Legal Existence; Conditions Under Which Exceptions
Permitted..........................................................................17
Section 7.02. Assignment..........................................................................17
Section 7.03. Assumption..........................................................................17
Section 7.04. No Arbitrage........................................................................18
Section 7.05. Financial Reports...................................................................19
Section 7.06. Term of Agreement...................................................................19
Section 7.07. Termination of Agreement............................................................19
Section 7.08. Notices.............................................................................19
Section 7.09. Severability........................................................................20
Section 7.10. Usury Not Intended..................................................................20
Section 7.11. Successors and Permitted Assigns....................................................20
INSTALLMENT PAYMENT AND BOND AMORTIZATION AGREEMENT
between
BRAZOS RIVER AUTHORITY
and
TXU ENERGY COMPANY LLC
This Installment Payment and Bond Amortization Agreement, dated as of
October 1, 2003 (the "Agreement"), by and between BRAZOS RIVER AUTHORITY (the
"Authority") and TXU ENERGY COMPANY LLC (the "Company"):
WITNESS:
GENERAL RECITALS AND FINDINGS
(a) The Authority is a governmental agency and body politic and
corporate, created as a conservation and reclamation district, and political
subdivision of the State of Texas, pursuant to and functioning under the
Constitution and laws of the State of Texas, including particularly Article XVI,
Section 59 of the Texas Constitution and Chapter 221, Texas Water Code (formerly
compiled as Article 8280-101, V.A.T.C.S., as amended) (the "Authority Act"); and
the Company is a limited liability company formed and existing under and by
virtue of the laws of the State of Delaware and is fully qualified to transact
business in the State of Texas.
(b) This Agreement is authorized and executed pursuant to applicable
laws, including the Authority Act, Chapter 30 of the Texas Water Code ("Chapter
30"), and Chapter 383 of the Texas Health and Safety Code ("Chapter 383"),
Chapter 1371, Texas Government Code ("Chapter 1371"), and Chapter 1207, Texas
Government Code ("Chapter 1207") (collectively, the "Acts").
(c) The Company or one or more of its wholly-owned subsidiaries own and
operate an electric generating station called Sandow Unit No. 4, in Xxxxx
County, Texas (the "Plant"), and the Authority and the Company have previously
entered into an Installment Payment and Bond Amortization Agreement dated as of
December 1, 2001 (the "Original Agreement") in accordance with which the
Authority has issued its Pollution Control Revenue Refunding Bonds (TXU Electric
Company Project) Taxable Series 2001H (the "Refunded Bonds") in the aggregate
principal amount of $30,820,000, for the purpose of providing funds for the
acquisition, construction and improvement of an undivided interest in certain
air pollution control facilities and solid waste disposal facilities (the
"Facilities") located at the Plant.
(d) All of the outstanding Refunded Bonds are being refunded with
proceeds of the Bonds (as defined below) and moneys provided by the Company.
(e) The Authority has previously determined, in the public interest,
that it would acquire, construct and improve or cause to be acquired,
constructed and improved the Facilities, and would sell the Facilities to the
predecessor to the Company in the manner provided in the Acts.
(f) Pursuant to the terms of the Original Agreement and the trust
indenture and bond resolution pursuant to which the Refunded Bonds were issued
(such trust indenture and bond resolution are collectively referred to as the
"Refunded Bonds Indenture"), the Company is obligated to pay or cause to be paid
amounts due with respect to the Refunded Bonds (the "Prior Installment
Payments"), which Prior Installment Payments are to be timely made to the
trustee under the Refunded Bonds Indenture (the "Refunded Bonds Trustee"), in
amounts that, together with other moneys available therefor, will be sufficient
to pay the principal of, and redemption premium, if any, and interest on, the
Refunded Bonds when due.
(g) At the request of the Company, the Authority has determined, in the
public interest, that it will issue a series of its bonds designated as follows:
Pollution Control Revenue Refunding Bonds (TXU Energy Company LLC Project)
Series 2003D (the "Bonds") for the purpose of refunding the Refunded Bonds in
the manner provided in the Acts and this Agreement.
(h) The Authority has entered into a Trust Indenture dated as of
October 1, 2003 with The Bank of New York, as trustee (with such successors in
that capacity, the "Trustee") thereunder (the "Indenture"), for the purpose of
issuing the Bonds for the purposes stated above.
(i) The Company has agreed to make payments hereunder in consideration
of the Authority's issuance of the Bonds and the application of the proceeds
from the sale of the Bonds to refund the Refunded Bonds, thereby satisfying its
debt service obligations under the Original Agreement.
(j) The Legislature of the State of Texas, through the Acts, has
provided and determined that it is the policy of the State of Texas and the
purpose of the Acts that the resources of the State of Texas be safeguarded from
pollution. In the Original Agreement and in this Agreement, the Company has
represented and is representing that the Facilities have been designed for the
purpose of protecting the public from pollution. The Authority, by carrying out
the purposes of the Acts, as provided in this Agreement and in the Original
Agreement, finds that such purposes constitute an essential public function
under the Texas Constitution. The Authority further officially finds and
determines (and reconfirms its findings in the Original Agreement) that the
control of pollution is and will be for the specific purpose of conservation and
development of the natural resources of the State of Texas, within the meaning
of Article XVI, Section 59(a) of the Texas Constitution, through the prevention
of damage to or destruction of the environment, resulting in the conservation
and development of such natural resources.
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NOW, THEREFORE, in consideration of the covenants and agreements herein
made, and subject to the conditions herein set forth, the Authority and the
Company contract and agree as follows:
ARTICLE I: DEFINITIONS
Section 1.01. Definitions. In addition to all other words and terms
defined in the recitals hereto and elsewhere herein, and unless a different
meaning or intent clearly appears from the context, capitalized terms used
herein, and not otherwise defined herein, shall have the meanings set forth in
the Indenture, whenever they are used in this Agreement. References in the
singular number in this Agreement shall be considered to include the plural, if
and when appropriate.
ARTICLE II: REPRESENTATIONS
Section 2.01. Representations By Authority. The Authority makes the
following representations and findings as the basis for the undertakings on
its part herein contained:
(a) The Authority is a governmental agency and body politic and
corporate of the State of Texas, a "river authority" within the definition set
forth in Chapter 30, an "issuer" within the definition set forth in Chapter 1371
and an "issuer" within the meaning of Chapter 1207.
(b) The Authority has the legal power under the Acts to enter into the
transactions contemplated by this Agreement and to carry out its obligations
hereunder, including the issuance and delivery of the Bonds, and to adopt and
perform the Bond Resolution. The Authority has been duly authorized to execute
and deliver this Agreement and the Indenture, and to adopt and perform the Bond
Resolution by proper action of the Board.
(c) The Authority hereby confirms, and in all respects reaffirms, its
findings and determinations with respect to the financing of the Facilities
under the Authority Act, Chapter 30 and Chapter 383, all as set forth in the
Original Agreement.
(d) The Authority is not in default under any of the provisions of the
laws of the State of Texas that would impair, interfere with or otherwise
adversely affect the ability of the Authority to make and perform the provisions
of this Agreement or the Indenture.
(e) There is no litigation pending, or to the knowledge of the
Authority threatened, in any court, either state or federal, calling into
question the creation, organization or existence of the Authority, the validity
or enforceability of this Agreement or the authority of the Authority to make or
perform this Agreement or the Indenture or to issue the Bonds or to adopt or
perform the Bond Resolution.
(f) The execution and delivery of this Agreement, the Indenture and the
Bonds, the adoption of the Bond Resolution and the performance of the
transactions contemplated thereby do not and will not violate any provision of
law or regulation, or of any decree, writ, order or injunction or the organic
documents of the Authority, and do not and will not contravene the provisions of
or constitute a default under any agreement, indenture, bond resolution or other
instrument to which the Authority is a party or by which the Authority is bound.
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(g) All consents, authorizations and approvals of governmental bodies
or agencies, including the Attorney General of the State of Texas, required in
connection with the execution and delivery of this Agreement, the Indenture and
the Bonds, the adoption of the Bond Resolution and with the carrying out by the
Authority of its obligations under this Agreement, the Indenture, the Bonds and
the Bond Resolution will be duly obtained or waived prior to the initial
delivery of the Bonds to the purchasers thereof.
(h) All requirements and conditions specified in the Acts and all other
laws and regulations applicable to the adoption of the Bond Resolution, the
execution and delivery of this Agreement and the Indenture and the issuance and
delivery of the Bonds will be fulfilled prior to the initial delivery of the
Bonds to the purchasers thereof.
Section 2.02. Representations By Company. The Company makes the
following representations and findings as the basis for the undertakings on its
part herein contained:
(a) The Company is a limited liability company duly formed under the
laws of the State of Delaware and fully qualified to transact business in the
State of Texas; it is not in violation of any provisions of the laws of the
State of Texas in a manner that materially and adversely impairs the Company's
ability to perform its obligations hereunder or under its Certificate of
Formation; it is fully empowered to enter into and perform all agreements on its
part herein contained; and the execution and delivery by it of this Agreement
does not contravene any provision of its Certificate of Formation, or its
limited liability company agreement, or other requirements of law or constitute
a default under any existing agreement, indenture, mortgage, loan agreement,
commitment or any other existing agreement for borrowed money to which it is a
party or by which it is or may be bound.
(b) The Company will perform its obligations and agreements contained
in that certain tax letter of representation addressed to Bond Counsel and
delivered in connection with the delivery of the Bonds (the "Tax Letter of
Representation") as if they were set forth herein. All representations of the
Company in the Tax Letter of Representation shall be treated as if they were set
forth herein. Any covenants, agreements or representations made by the Company
or any transferee of the Facilities in connection with such a transfer shall be
performed and treated as if set forth herein.
(c) The Company will not default under, misperform or fail to perform
with respect to any representation, covenant or undertaking of the Company
contained in this Agreement which would result in interest on any Bond becoming
includible in the gross income of the holder thereof for federal income tax
purposes except during any period for which such Bond is held by any person who
is a "substantial user" of the Facilities or a "related person" as defined in
the Code.
(d) The Company has requested the Authority to refund the Refunded
Bonds.
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(e) The Company hereby reconfirms (except to the extent, if any,
modified hereby), the findings, representations and covenants of its predecessor
contained in the Original Agreement relating to the acquisition, ownership and
use of the Facilities.
ARTICLE III: THE FACILITIES
Section 3.01. Operation and Assignment, Sale or Lease of Facilities.
The Company represents and covenants that the Facilities constitute air
pollution control facilities within the meaning of the laws of the State of
Texas and (excepting any portion of the Facilities paid for from a portion of
the proceeds of the Refunded Bonds other than "substantially all" of such
proceeds within the meaning of the applicable Regulations) pollution control or
solid waste disposal facilities within the meaning of the Code and the
applicable Regulations. Subject to Section 5.06(a)(viii) of this Agreement, the
Company shall have the right, at its discretion, to assign, sell or lease the
Facilities or any discrete facility thereof. Subject to the preceding sentence
of this Section 3.01, the Company covenants that it will continue to operate and
maintain the Facilities, or cause the Facilities to be operated and maintained,
and that it will pay, or cause to be paid, all costs and expenses of operation
and maintenance of the Facilities, including all applicable taxes, and that it
will keep, or cause to be kept, in force adequate insurance, including self
insurance, on the Facilities as is customarily carried by the Company with
respect to facilities like the Facilities. Notwithstanding the foregoing,
neither the Company nor any vendee, assignee or lessee of the Facilities shall
be required under this Agreement to continue the operation and/or maintenance of
the Facilities, or any part thereof, if the Company or any such vendee, assignee
or lessee determines that the operation and/or maintenance of the Facilities or
any part thereof is unnecessary or undesirable. Other than as provided in the
Original Agreement, it is understood and agreed that the Authority shall have no
duties or responsibilities whatsoever with respect to the operation or
maintenance of the Facilities, or the performance of the Facilities for their
designed purposes.
Section 3.02. Governmental Regulation. The Company recognizes and
agrees that this Agreement and the issuance of the Bonds pursuant hereto will
not diminish or limit the authority of the United States Environmental
Protection Agency, the Texas Commission on Environmental Quality or any other
state agency or local government in performing any of the powers, functions and
duties vested in such entities by federal and state laws, and that all
applicable laws shall be enforced without regard to ownership of the Facilities;
and that the Company will not be relieved of any responsibility under any
applicable federal or state laws or regulations pertaining to pollution control.
ARTICLE IV: REFUNDING THE REFUNDED BONDS; DISBURSEMENTS
Section 4.01. Disbursement of Bond Proceeds and Other Funds. The
proceeds of the Bonds (except for any accrued interest on the Bonds, which shall
be deposited to the Company Debt Service Account of the Bond Fund in accordance
with Section 6.2 of the Indenture), which shall be received by the Trustee and
disbursed by the Trustee to the Refunded Bonds Trustee, together with such
moneys as may be deposited with the Refunded Bonds Trustee by or on behalf of
the Company, shall be disbursed by the Refunded Bonds Trustee as specified in a
certificate of the Issuer Representative (the "Certificate of Issuer
Representative"). Such disbursement shall be made on the date of delivery of the
Bonds and shall be for the purpose of redeeming and retiring the Refunded Bonds.
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Section 4.02. Lien on Deposited Funds. Proceeds of the Bonds disbursed
by the Trustee in accordance with the Certificate of Issuer Representative shall
be applied to redeem and retire the Refunded Bonds in accordance with the
directions set forth in the Certificate of Issuer Representative and the terms
of the Refunded Bonds Indenture. The Bond proceeds so disbursed as aforesaid
shall, until used to redeem and retire the Refunded Bonds, be subject to the
lien of the Refunded Bonds Indenture, and the Company shall have no right, title
or interest therein.
Section 4.03. Company Required to Pay in Event Funds are Insufficient
for Refunding. In the event that moneys administered in accordance with Section
4.01 of this Agreement are not sufficient to accomplish the refunding of the
Refunded Bonds, the Company shall at its own expense immediately pay such
additional amounts as may be required to effect such refunding.
ARTICLE V: THE BONDS
Section 5.01. Issuance of the Bonds.
(a) In consideration of the covenants and agreements set forth in this
Agreement, and to enable the Authority to issue the Bonds and to carry out the
intents and purposes hereof, this Agreement is executed to ensure the issuance
of the Bonds, and to provide for and guarantee the due and punctual payment by
the Company to the Authority, or to the Trustee under the Indenture, of the
Installment Payments relating thereto, and to the Paying Agent, of the Purchase
Price relating thereto. Such Installment Payments shall be made for the benefit
of the holders of the Bonds and shall be deposited into the Company Debt Service
Account of the Bond Fund, and the Purchase Price payments shall be made to the
Paying Agent for the benefit of the Bondholders of the applicable tendered
bonds, all as provided in the Indenture.
(b) Simultaneously with the authorization of this Agreement by the
Board, the Board has adopted the Bond Resolution. The Company has reviewed and
hereby approves the Bond Resolution, including the Indenture authorized therein.
It is hereby agreed that the approval set forth above constitutes the
acknowledgment and agreement of the Company that the Bonds, when issued, sold
and delivered as provided in the Bond Resolution, will be issued in accordance
with and in compliance with this Agreement, notwithstanding any other provisions
of this Agreement or any other contract or agreement to the contrary. Any holder
of the Bonds is entitled to rely fully and unconditionally on such approval.
Notwithstanding any provisions of this Agreement or any other contract or
agreement to the contrary, this approval of the Bond Resolution (including the
Indenture authorized therein) is the Company's agreement that all covenants and
provisions in such Bond Resolution and Indenture affecting the Company shall,
upon the delivery of the Bonds and the Indenture, become absolute,
unconditional, valid and binding covenants and obligations of the Company so
long as any portion of the principal amount of the Bonds or interest thereon are
8
outstanding and unpaid. Particularly, the obligation of the Company to make,
promptly when due, all Installment Payments specified in the Bond Resolution and
the Indenture shall be absolute and unconditional, and said obligation may,
subject to the provisions of Section 7.10 of this Agreement, be enforced as
provided in the Bond Resolution and Indenture, regardless of any other
provisions of this Agreement (other than said Section 7.10) or any other
contract or agreement to the contrary (other than any provision similar to said
Section 7.10 and of like import). It is further the intention of this Agreement
that this approval of the Bond Resolution and Indenture shall constitute and be
the equivalent of the approval of the Bond Resolution and Indenture by the
Company and its board of directors. The provisions of the Bond Resolution and
Indenture affecting the Company shall constitute the absolute and unconditional
obligations of, and be binding upon, the Company with the effect described
above.
Section 5.02. Refunding of Bonds.
After the issuance of the Bonds, the Authority shall not refund the
Bonds or change or modify the Bonds in any way, except as provided for in the
Bond Resolution or the Indenture, without the prior written approval of the
Company; nor shall the Authority redeem the Bonds prior to their scheduled
maturities, or change or modify the Bond Resolution, without the prior written
approval of the Company, unless such redemption is required by the Bond
Resolution or the Indenture.
Section 5.03. Redemption of Bonds. The Authority, upon the written
request of the Company (and provided that the Bonds are subject to redemption or
prepayment prior to maturity at the option of the Authority and that such
request is received in sufficient time prior to the date upon which such
redemption or prepayment is proposed), forthwith shall take or cause to be taken
all action that may be necessary under the applicable redemption or prepayment
provisions to effect such redemption or prepayment prior to maturity, to the
full extent of funds made available for such purpose by the Company. The
redemption or prepayment of the Bonds prior to maturity at any time shall not
relieve the Company of its absolute and unconditional obligation to pay each
remaining Installment Payment, with respect to the Bonds, as specified in the
Bond Resolution or the Indenture.
Section 5.04. Installment Payments.
(a) The Authority has previously sold and conveyed the Facilities to
the Company, and the Company is obligated to pay the Prior Installment Payments
specified in the Original Agreement. The Company hereby acknowledges said
purchase and conveyance, and its obligations in the Original Agreement to make
the Prior Installment Payments and agrees to make the Installment Payments,
hereinafter provided, in consideration of the Authority's issuing the Bonds and
utilizing the proceeds from the sale of the Bonds in connection with the
refunding of the Refunded Bonds, thereby terminating the obligation of the
Company to pay the Prior Installment Payments and other debt service obligations
under the Original Agreement as relates to the Refunded Bonds.
9
(b) Payment of all Installment Payments shall be made and deposited as
required by the Indenture, including all such payments that may come due because
of the acceleration of the maturity or maturities of the Bonds upon default, or
otherwise, under the provisions of the Indenture. If any funds in excess of
current requirements are held on deposit in the Company Debt Service Account of
the Bond Fund at the time payment of any Installment Payment is due, such
payment shall be reduced by the amount of the funds so held on deposit, to the
benefit of the Company. Notwithstanding the foregoing, recognizing that the
Installment Payments will be pledged by the Authority to the Trustee as security
for the Bank for amounts drawn on any Credit Facility and that amounts properly
drawn on any Credit Facility will equal amounts due as principal and interest on
the Bonds and, in some circumstances, premium, if any, thereon and therefore
will equal amounts due as Installment Payments, no Installment Payment shall be
reduced by the payment of principal of, or premium or interest on, the Bonds
through a drawing on a Credit Facility unless and until the Company has
reimbursed the Bank for such drawing. Such Installment Payments, together with
funds held on deposit in such account of the Company Debt Service Account of the
Bond Fund, except funds held therein for payment of matured installments of
principal on the Bonds or interest payable thereon, shall be sufficient to pay
when due all principal of, and redemption premium, if any, and interest on, the
Bonds, and all fees and expenses of the Trustee and Paying Agent for such Bonds.
The Company shall have the right to prepay all or a portion of each such
Installment Payment at any time, and shall be obligated to do so timely, if and
to the extent the Company requests redemption or prepayment of the Bonds. Any
such partial prepayment by the Company shall not relieve it of liability for
each remaining Installment Payment except as provided in this Agreement, the
Bond Resolution and the Indenture.
(c) Recognizing that the Installment Payments will be used to pay when
due the principal of, and redemption premium, if any, and interest, on the
Bonds, if and when the Bonds are delivered and to pay the fees and expenses of
the Trustee and the Paying Agent for the Bonds, the Company shall be absolutely
and unconditionally obligated (subject to the provisions of Section 7.10 of this
Agreement) to make and pay, or cause to be made and paid, each such Installment
Payment prescribed by the Indenture, and such payments shall not be subject to
any abatement, set-off or counterclaim; and the owners of the Bonds and the
Trustee shall be entitled to rely on this agreement and representation,
notwithstanding any provisions of this Agreement or any other contract or
agreement to the contrary, and regardless of the validity of, or the performance
of, this Agreement or any other contract or agreement. Upon the issuance and
delivery of the Bonds to the initial purchaser thereof, and the application of
the proceeds of the Bonds in accordance with the provisions of Section 4.01
hereof to provide for the refunding of the Refunded Bonds, the Company shall
have received, and the Authority shall have given, full and complete
consideration for the Company's obligation hereunder to make Installment
Payments.
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Section 5.05. Payments to Authority; Indemnification.
(a) From monies provided by the Company, there shall be paid all of the
Authority's reasonable actual out-of-pocket expenses and Costs of Issuance in
connection with the Bonds. The Authority shall receive as payment directly from
the Company, as a Cost of Issuance, a lump sum equal to the amount due the
Authority pursuant to the letter agreement previously entered into by the
Company and the Authority for its administrative and overhead expenses directly
attributable and chargeable to the issuance of the Bonds.
(b) THE COMPANY AGREES, AND SHALL BE LIABLE, TO PROTECT, INDEMNIFY AND
HOLD HARMLESS THE AUTHORITY, ITS BOARD, OFFICERS, EMPLOYEES, AGENTS AND
ATTORNEYS (THE "INDEMNIFIED PARTIES") FROM ANY AND ALL TAXES, CLAIMS, DAMAGES,
LOSSES, PENALTIES, COSTS, FINES AND EXPENSES, INCLUDING REASONABLE ATTORNEYS'
FEES, (I) ARISING AT ANY TIME FROM THE NEGLIGENCE OF THE INDEMNIFIED PARTIES,
THIS AGREEMENT OR THE ACQUISITION, CONSTRUCTION, EXISTENCE, OWNERSHIP, OPERATION
AND MAINTENANCE OF THE FACILITIES AND ANY ACT OR OMISSION TO ACT UNDER THE TERMS
OF THE INDENTURE, EXCEPT AS MAY ARISE THROUGH THE WILLFUL MISCONDUCT OR GROSS
NEGLIGENCE OF THE INDEMNIFIED PARTIES OR (II) ARISING AT ANY TIME BECAUSE OF OR
IN CONNECTION WITH ANY WRITTEN STATEMENTS OR REPRESENTATIONS MADE OR GIVEN BY
THE COMPANY OR ANY OF ITS OFFICERS OR EMPLOYEES, TO THE INDEMNIFIED PARTIES, THE
TRUSTEE OR THE PURCHASERS OF THE BONDS, WITH RESPECT TO THE COMPANY, THE
FACILITIES OR THE BONDS, INCLUDING, BUT NOT LIMITED TO STATEMENTS OR
REPRESENTATIONS OF FACTS, FINANCIAL INFORMATION OR CORPORATE AFFAIRS. THIS
INDEMNIFICATION REMAINS IN FULL FORCE AND EFFECT EVEN IF ANY CLAIM DIRECTLY OR
INDIRECTLY RESULTS FROM, ARISES OUT OF, OR RELATES TO OR IS ASSERTED TO HAVE
RESULTED FROM, ARISEN OUT OF, OR RELATED TO THE SOLE NEGLIGENCE OR CONCURRENT
NEGLIGENCE OF AN INDEMNIFIED PARTY.
(c) It is recognized that the Authority's only source of funds with
which to carry out its commitments under this Agreement and the Indenture will
be from the proceeds of the sale of the Bonds or from any available income or
earnings derived therefrom, or from any funds which otherwise might be made
available by the Company; and it is expressly agreed that the Authority shall
have no liability, obligation or responsibility with respect to this Agreement
or the Facilities except to the extent of funds available from such sources.
Section 5.06. Tax-Exempt Status of the Bonds.
(a) It is the intention of the Company and the Authority that the
interest on the Bonds be excludable from the gross income of the holders thereof
for federal income tax purposes by reason of section 103(a) of the Code, except
for any Bond for any period that such Bond is held by a person referred to in
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the Code (a "substantial user" of the Facilities or a "related person"). To that
end, each of the Company and the Authority (to the extent reasonably within the
control of the Authority) severally covenants with the other, and with the
Trustee and with each of the registered owners of any of the Bonds, that it (I)
will not permit the use of any proceeds of such Bonds or fail to use or cause to
be used such proceeds or take any other action or omit to take any action, which
use, failure, act or omission will cause the loss of such exclusion within the
meaning of such section 103(a) of the Code, as it now exists, and (II) will file
with the Internal Revenue Service of the United States Treasury Department (the
"Internal Revenue Service"), or any other authorized governmental agency, any
and all statements or other instruments, if any, required under section 103 of
the Code or other applicable Sections of the Code relating to tax-exempt
obligations. Furthermore, the Company hereby represents and covenants as
follows:
(i) The Company will make such use of the proceeds of the
Bonds and all other funds held by the Trustee under the Indenture or
otherwise allocable to the Bonds, restrict the investment of such
proceeds and other funds and take such other and further actions as may
be required so that the Bonds will not constitute "arbitrage bonds"
under section 148 of the Code and the Regulations. In particular, but
without limitation, the Company agrees to invest amounts deposited in
the Company Debt Service Account of the Bond Fund with respect to the
Bonds, or to instruct the Trustee to invest such amounts, in
investments the gross earnings on which are less than $100,000 during
each bond year.
(ii) The Company will comply with, and make all filings
required by, all applicable rules, rulings or regulations promulgated
by the Department of the Treasury or the Internal Revenue Service with
respect to obligations issued under the applicable provisions of the
Code.
(iii) Other than amounts deposited to the Company Debt Service
Account of the Bond Fund with respect to the Bonds, the Company will
not invest any amounts constituting Gross Proceeds (as defined in
section 148 of the Code), whether or not deposited to any fund created
by the Indenture, in investment property the yield on which is
materially higher than the yield on the Bonds for longer than any
applicable temporary period.
(iv) The Company will pay to the United States of America at
least once during each five-year period (beginning on the date of
delivery of the Bonds) an amount that is at least equal to 90% of the
"Excess Earnings," within the meaning of section 148(f) of the Code,
and will pay to the United States of America, not later than 60 days
after all the Bonds have been retired, 100% of the amount then required
to be paid as a result of Excess Earnings under section 148(f) of the
Code. The Company agrees to make the calculations of Excess Earnings as
required under Section 4.02 of the Indenture.
12
(v) For purposes of the foregoing, the Company shall not pay
or agree to pay, directly or indirectly, to a party other than the
United States of America, any amount that is required to be paid to the
United States of America.
(vi) The Company will take such action or refrain from such
action (as is reasonably within its control) to assure that all of the
proceeds of the Bonds and the facilities directly or indirectly
financed therewith are used in such manner that the Bonds are
obligations described either (i) in section 142(a)(5) or (6) of the
Code or (ii) in section 1313 of the Tax Reform Act of 1986 and section
103(b)(4)(E) and (F) of the Internal Revenue Code of 1954.
(vii) The Company will refrain from taking any action that
would result in the Bonds being "federally guaranteed" within the
meaning of section 149(b) of the Code.
(viii) The Company will not sell or otherwise dispose of the
Facilities in a transaction resulting in the receipt by the Company of
cash or other compensation, unless the Company complies with the
provisions of the Code and regulations promulgated pursuant thereto.
For purposes of the foregoing sentence, the Company may, but need not,
rely on an opinion of counsel expert in the federal income tax
treatment of municipal bonds that such sale or other disposition will
not adversely affect the excludability for federal income tax purposes
of interest on the Bonds from the gross income of the holders of the
Bonds.
The covenants and agreements contained herein and the representations
contained in the Tax Letter of Representation and the Authority's No-Arbitrage
Certificate are intended to ensure compliance with the provisions of the Code
and with the Regulations and to establish that the expectations and facts
pertaining to such provisions of the Code and the Regulations are consistent
with such provisions. In the event that the Code is amended or the Regulations
are hereafter proposed or promulgated and the effect of such change is to modify
or delete any element of the covenants contained herein, the Company shall be
relieved of its obligation to comply with such covenants to the extent of such
modification or deletion provided that the Company receives an opinion of Bond
Counsel that such action will not adversely affect the exclusion of the interest
on the Bonds from the gross income of the holders thereof for federal income tax
purposes. In the event such change in the Code or the Regulations imposes
additional requirements that are applicable to the Bonds, the Company hereby
agrees to comply with the provisions of the Code and/or Regulations as changed.
(b) The Company acknowledges that in the event of an examination of the
Bonds by the Internal Revenue Service to determine compliance of the Bonds with
the provisions of the Code as they relate to tax-exempt obligations, the
Authority is likely to be treated as the "taxpayer" in such examination. The
Company agrees, upon notification by the Authority, that it will respond and
will direct the Authority to respond, in a commercially reasonable manner to any
inquiries from the Internal Revenue Service in connection with such examination.
The Authority covenants that it will promptly notify the Company of any inquiry
or examination of the Internal Revenue Service relating to the Bonds and will
cooperate with the Company, at the Company's expense, in connection with such
examination. The Company understands and agrees that the interests of the
Authority and the Company in such examination may differ and that the existence
of the examination may be subject to public disclosure by the Authority under
the open records laws of the State of Texas.
13
Section 5.07. Purchase Price Payments. The Company covenants to timely
provide, or make provision for the timely payment of, the Purchase Price of
tendered bonds to the Paying Agent when, in the manner and to the extent
required by the terms of the Indenture.
Section 5.08. Further Assurances. The Company shall from time to time
execute, deliver and record and file such instruments as are necessary to
confirm, perfect or maintain the security created hereby and the assignment and
pledge of rights hereunder and under the Indenture.
ARTICLE VI: COVENANTS AND REMEDIES
Section 6.01. Covenant. The Company absolutely and unconditionally
agrees and covenants with the Authority, the Trustee and the Paying Agent,
regardless of and notwithstanding any provision of this Agreement, other than
Sections 7.01, 7.02 and 7.03 hereof relating to merger, consolidation and
transfer of assets, and regardless of the provisions of any other agreement or
contract to the contrary, that it will pay, or cause to be paid, when due, (i)
each Installment Payment or Purchase Price payment required and prescribed to be
paid by it pursuant to the Bond Resolution and the Indenture and (ii) all
reasonable expenses and charges (including court costs and attorneys' fees),
paid or incurred by the Authority, the Paying Agent or the Trustee in realizing
upon any of the said payments to be made by the Company or in enforcing the
provisions of this Agreement, the Bond Resolution or the Indenture.
Section 6.02. Trustee. The Company is advised and recognizes that the
Authority will assign all or any part of the Installment Payments required to be
made pursuant to this Agreement, and the right to receive and collect same, to
the Trustee under the Indenture. All rights against the Company arising under
this Agreement, the Bond Resolution or the Indenture may be enforced by the
Authority; or, with respect to the Installment Payments required to be made
hereby, such rights may be enforced by the Trustee, or the owners of the Bonds,
to the extent provided in the Bond Resolution or the Indenture, and the Trustee,
or the owners of the Bonds, shall be entitled to bring any suit, action or
proceeding against the Company, to the extent provided in the Bond Resolution or
the Indenture, for the enforcement of this Agreement, the Bond Resolution or the
Indenture, and it shall not be necessary in any such suit, action or proceeding
to make the Authority a party thereto.
The Company agrees to pay to the Trustee from time to time reasonable
compensation for its services under the Indenture (which compensation shall not
be limited by any provision of law in regard to the compensation of a trustee of
an express trust) and to reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by or on behalf
of it in accordance with any of the provisions of the Indenture, or in complying
14
with any request by the Company, the Authority or any Rating Service with
respect to the Bonds (including the reasonable compensation and the expenses and
disbursements of its counsel and of all agents and other persons not regularly
in its employ), except any such expense, disbursement or advance as may arise
from its negligence or willful misconduct. The Company also agrees to indemnify
the Trustee, and its officers, directors, employees and agents, for, and to hold
it and each of them harmless, from and against, any loss, liability or expense
(including the reasonable compensation and the expenses and disbursements of its
and their agents and counsel) incurred without negligence or willful misconduct
on the part of the Trustee, arising out of or in connection with the Trustee's
acceptance or administration of the trusts created by, or the performance of its
powers or duties under, the Indenture, including the costs and expenses of
defending itself and themselves against or investigating any claim or liability
in connection with the exercise or performance of any of such powers or duties.
"Trustee" for purposes of this paragraph shall include (i)(a) the Paying Agent,
and its officers, directors, employees and agents, and (b) the Trustee, and its
officers, directors, employees and agents, in each of its other capacities under
the Indenture and (ii) any predecessor Trustee; provided, however, that the
negligence, willful misconduct or bad faith of any Trustee under the Indenture
shall not affect the rights of any other Trustee thereunder. Without prejudice
to its rights hereunder or under the Indenture, in the event the Trustee incurs
expenses or renders services after the occurrence of an Event of Default
specified in Section 11.1(a)(iii) of the Indenture, such expenses (including the
reasonable charges and expenses of its counsel) and the compensation for such
services are intended to constitute expenses of administration under any
applicable bankruptcy, insolvency or other similar law. The provisions of this
paragraph shall survive the payment in full of the Bonds, the satisfaction,
discharge and termination of the Indenture, the resignation or removal of the
Trustee or Paying Agent, as the case may be, and the termination for any reason
of this Agreement, anything contained in this Agreement to the contrary
notwithstanding.
Section 6.03. General Provisions.
(a) The terms of this Agreement may be enforced as to one or more
breaches either separately or cumulatively.
(b) No remedy conferred upon or reserved to the Authority, the Company,
the Trustee or the holders of the Bonds in this Agreement is intended to be
exclusive of any other available remedy or remedies, but each and every such
remedy shall be cumulative and shall be in addition to every other remedy now or
hereafter existing at law, in equity or by statute. No delay or omission to
exercise any right or power accruing upon any default, omission or failure of
performance hereunder shall impair any such right or power or shall be construed
to be a waiver thereof, but any such right and power may be exercised from time
to time and as often as may be deemed expedient. In the event any provision
contained in this Agreement should be breached by the Authority or the Company
and thereafter duly waived, such waiver shall be limited to the particular
breach so waived and shall not be deemed to waive any other breach of this
Agreement. No waiver by either party of any breach by the other party of any of
the provisions of this Agreement shall be construed as a waiver of any
subsequent breach, whether of the same or of a different provision of this
Agreement.
15
(c) Headings of the Sections of this Agreement have been inserted for
convenience of reference only, and in no way shall they affect the
interpretation of any of the provisions of this Agreement.
(d) This Agreement is made for the exclusive benefit of the Authority,
the Trustee, the Paying Agent, any other indemnified party described in Section
6.02 hereof, the holders of the Bonds, the Bank and the Company, and their
respective successors and assigns herein permitted, and not for any third party
or parties; and nothing in this Agreement, express or implied, is intended to
confer upon any party or parties other than the Authority, the Trustee, the
Paying Agent, any other indemnified party described in Section 6.02 hereof, the
holders of the Bonds, the Bank and the Company, and their respective successors
and assigns herein permitted, any rights or remedies under or by reason of this
Agreement.
(e) The validity, interpretations and performance of this Agreement
shall be governed by the laws of the State of Texas.
Section 6.04. Amendment of Agreement. No amendment, change, addition to
or waiver of any of the provisions of this Agreement shall be binding upon the
parties hereto unless in writing signed by an Authorized Company Representative
and the Chairman of the Board or the General Manager/CEO of the Authority.
Notwithstanding any of the foregoing and except as provided in Section 7.03
hereof, it is covenanted and agreed, for the benefit of the holders of the Bonds
and the Trustee, that the provisions of this Agreement shall not be amended,
changed, added to or waived in any way which would relieve or abrogate the
obligations of the Company to make or pay, or cause to be made or paid, when
due, all Installment Payments with respect to any then Outstanding Bonds which
have been issued and delivered pursuant to this Agreement, in the manner and
under the terms and conditions provided herein and in the Bond Resolution or the
Indenture, or which would change or affect Sections 5.06, 7.01, 7.02 or 7.03
hereof; and provided further, however, that no such amendment that adversely
affects a right of the Trustee or the Paying Agent shall be made without the
prior written consent of the Trustee or the Paying Agent, as the case may be.
Subject to the foregoing, this Agreement may be amended, without
consent of the registered owners of the Bonds, to the same extent that the
Indenture may be amended without the consent of the registered owners of the
Bonds, as permitted by the Indenture.
Notwithstanding anything herein or in the Indenture, this Agreement may
not be amended without the written consent of the Bank while any of the Bonds
are supported by a Credit Facility and the Bank is not in default thereunder.
16
ARTICLE VII: SPECIAL COVENANTS
Section 7.01. Company to Maintain its Legal Existence; Conditions
Under Which Exceptions Permitted.
(a) The Company shall, during the term of this Agreement, maintain its
legal existence, will not dissolve or otherwise dispose of all or substantially
all of its assets and will not consolidate with or merge into one or more other
entities or permit one or more other entities to consolidate with or merge into
it; provided that the Company may, without violating the agreement contained in
this Section, (1) consolidate with or merge into one or more domestic entities
(i.e., entities organized and existing under the laws of one of the states of
the United States of America, the District of Columbia or under the laws of the
United States of America) or permit one or more other such entities to
consolidate with or merge into it or (2) sell or otherwise transfer to one or
more domestic entities all or substantially all of its assets and, if it so
elects, thereafter dissolve; provided, that, upon the occurrence of any of the
events described in clauses (1) or (2) above, one or more of the surviving,
resulting or transferee entity shall have irrevocably and unconditionally
assumed the due and prompt performance of all of the obligations of the Company
under this Agreement in accordance with the terms of Section 7.03 of this
Agreement.
(b) The Company covenants that it is and, throughout the term of this
Agreement, unless relieved of liability pursuant to the terms of Section 7.03 of
this Agreement, will continue to be, a limited liability company or other legal
entity formed or organized under the laws of the State of Delaware, some other
state of the United States of America, the District of Columbia or the United
States of America, and will at all times be and remain duly qualified to
transact business in the State of Texas.
Section 7.02. Assignment. The Company shall not assign its interest in
this Agreement or any of its rights or obligations hereunder except as
specifically provided in this Agreement. The Company may assign its interest in
this Agreement or any of its rights and obligations hereunder (a) to another
entity provided that the Company, under the terms of any such assignment, shall
remain and be primarily responsible and liable for all of its obligations
hereunder, including, particularly, the making of all payments required
hereunder, when due, if the entity to which an interest in this Agreement is
assigned fails to perform such obligations or (b) to one or more other entities
in connection with a transaction permitted under the terms of the provisions of
Section 7.01 of this Agreement; provided that, in connection with the
assignments described in clauses (a) or (b) above, a surviving, resulting or
transferee entity, with or without the Company, as the case may be, shall have
irrevocably and unconditionally assumed the due and prompt performance of all of
the obligations of the Company under this Agreement in accordance with the terms
of Section 7.03 of this Agreement.
Section 7.03. Assumption. Any irrevocable, unconditional assumption of
the due and prompt performance of all of the obligations of the Company under
this Agreement by an entity or entities (collectively, the "Assignee") permitted
under the terms of Sections 7.01 or 7.02 of this Agreement (an "Assumption")
17
shall be evidenced by an instrument (the "Assumption Instrument") delivered
concurrently with such transaction (the "Assumption Date") to the Authority and
the Trustee. The delivery of the Assumption Instrument shall be accompanied by
(x) an opinion of counsel to the Company to the effect that such Assumption
Instrument has been duly authorized by the Assignee and constitutes the legal,
valid and binding obligation of the Assignee, enforceable against the Assignee
in accordance with its terms, subject to laws relating to or affecting generally
the enforcement of creditors' rights, including, without limitation, bankruptcy
and insolvency laws and to general principles of equity (regardless of whether
considered in a proceeding in equity or at law) and (y) a certificate of an
officer of the Company and an opinion of counsel to the Company, each stating
that such transaction complies with Sections 7.01 and/or 7.02 hereof and such
Assumption Instrument complies with this Section 7.03 and that all conditions
precedent herein and in the Indenture relating to such transaction have been
complied with. Notwithstanding any other provision of this Agreement, if an
Assumption occurs as provided in this Section pursuant to Section 7.02(b) hereof
in which there is more than one surviving, resulting or transferee entity and
such assignment is not on a joint and several basis among all surviving,
resulting or transferee entities, the Company shall, as a condition precedent to
such assignment, obtain written evidence from S&P, if such Bonds are then rated
by S&P, Xxxxx'x, if such Bonds are then rated by Xxxxx'x, and Fitch, if such
Bonds are then rated by Fitch, that such assignment will not result in a
reduction or withdrawal of the then current rating on the Bonds and that the
rating on the Bonds immediately after such assignment will be an Investment
Grade Rating. If a transaction occurs pursuant to and as permitted by Sections
7.01 and/or 7.02(b) and this Section 7.03 in which the Company, either alone or
collectively with other entities, is not an Assignee, the Company shall be
relieved of liability under this Agreement, and the Trustee shall execute and
deliver to the Company such releases and other documents in evidence thereof as
the Company shall reasonably request. If a transaction occurs as provided in
Sections 7.01 and/or 7.02 and this Section 7.03, the provisions of such Sections
shall continue in full force and effect and no further such transaction shall be
made without compliance with the provisions of such Sections. If an Assumption
occurs as provided in this Section, the Assignee (and each entity of which the
Assignee is composed) must be qualified to transact business in the State of
Texas. Following any Assumption made in accordance with the terms hereof, (i)
the Assignee shall be and act as the Company for all purposes of this Agreement,
(ii) any representation herein with respect to the legal status of the Company
or its Certificate of Formation or other organizational instruments shall mean
the lawful organization of such entity and the respective organizational
documents thereof and (iii) if any Assignee is composed of more than one entity,
any change in the composition of the Assignee after any Assumption shall be made
in accordance with the requirements of this Section.
Section 7.04. No Arbitrage. The Authority (to the extent reasonably
within the control of the Authority) and the Company hereby covenant with each
other and with the holders of the Bonds issued pursuant to this Agreement that
they will make no use of the proceeds thereof at any time throughout the term
thereof which, if such use had been reasonably expected on the date of delivery
of the Bonds to and payment therefor by the purchasers, would have caused the
Bonds to be arbitrage bonds within the meaning of section 148 of the Code, or
the Regulations or rulings pertaining thereto; and by this covenant the
Authority and the Company are obligated to comply with the requirements of
section 148 of the Code and all applicable and pertinent Regulations relating to
arbitrage bonds. The Authority (to the extent reasonably within the control of
the Authority) and the Company hereby further covenant that the proceeds of the
Bonds will not otherwise be used directly or indirectly so as to cause all or
any part thereof to be or become arbitrage bonds within the meaning of section
148 of the Code, or the Regulations or rulings pertaining thereto.
18
Section 7.05. Financial Reports. The Company agrees to have an annual
audit made by its regular independent auditors and, within thirty days after an
Annual Report on Form 10-K is required to have been filed with the Securities
and Exchange Commission, to furnish the Authority and the Trustee either a copy
of the audit report or a copy of the Company's Annual Report on Form 10-K. The
Company agrees to furnish the Authority and the Trustee a copy of any interim
financial reports furnished to holders of its publicly held securities.
Section 7.06. Term of Agreement. The term of this Agreement shall be
from the date hereof until it is terminated in accordance with and subject to
the provisions of Section 7.07 hereof, or until all payments and indemnities
required to be made by the Company pursuant hereto shall have been made,
whichever period is the longer.
Section 7.07. Termination of Agreement.
(a) This Agreement may be terminated by mutual agreement at any time
prior to the delivery of and payment for the Bonds. However, if the Bonds have
been issued and delivered, the term of this Agreement shall be as set forth in
Section 7.06, and this Agreement may not and shall not be sooner terminated by
either or both parties involved.
(b) Notwithstanding the foregoing or any other provisions of this
Agreement to the contrary, and so long as any of the Bonds remain outstanding
and unpaid, (i) the obligation of the Company to make or pay, or cause to be
made or paid, the Installment Payments and other payments and indemnities as
required by this Agreement, and (ii) the covenants and agreements contained in
Sections 5.06, 7.01, 7.02 and 7.03 hereof shall be and remain unconditional and
irrevocable, and may not and shall not be terminated and shall not be affected
by the termination of the remainder of this Agreement or otherwise; provided,
however, that the indemnity provisions of this Agreement shall survive the
termination of this Agreement for any reason.
Section 7.08. Notices. Any notice, request or other communication under
this Agreement shall be given in writing and shall be deemed to have been given
by either party to the other party upon either of the following dates:
(a) The date of the mailing thereof, as shown by the post office
receipt if mailed to the other party hereto by registered or certified mail at
the applicable address as follows:
Brazos River Authority TXU Energy Company LLC
0000 Xxxxx Xxxxx Xxxxxx Xxxxx
Xxxx, Xxxxx 00000 0000 Xxxxx Xxxxxx
Xxxxxxxxx: CFO Xxxxxx, Xxxxx 00000
Attn: Treasurer
19
or the latest address specified by such other party in writing; or
(b) The date of the receipt thereof by such other party if not so
mailed by registered or certified mail.
Section 7.09. Severability. If any clause, provision or Section of this
Agreement should be held illegal or invalid by any court, the invalidity of such
clause, provision or Section shall not affect any of the remaining clauses,
provisions or Sections hereof and this Agreement shall be construed and enforced
as if such illegal or invalid clause, provision or Section had not been
contained herein. In case any agreement or obligation contained in this
Agreement should be held to be in violation of law, then such agreement or
obligation shall be deemed to be the agreement or obligation of the Company or
the Authority, as the case may be, to the fullest extent permitted by law.
Section 7.10. Usury Not Intended. Notwithstanding any provision to the
contrary contained in this Agreement, the Bond Resolution, the Indenture or the
Bonds or any other instrument executed in connection with this Agreement, the
amount of interest payable or paid on any Bond, and the amount of any
Installment Payment under this Agreement that may be deemed interest, shall be
limited to an amount which shall not exceed the maximum nonusurious rate of
interest allowed by the applicable laws of the State of Texas, including with
respect to the Authority, Chapter 1204, Texas Government Code, or any applicable
law of the United States permitting a higher maximum nonusurious rate that
preempts such applicable Texas laws, which could lawfully be contracted for,
charged or received (the "Highest Lawful Rate"). In the event any payment of
interest by the Authority or any portion of an Installment Payment under this
Agreement by the Company that is deemed to be interest exceeds the Highest
Lawful Rate, the Authority and the Company stipulate that such excess amount
will be deemed to have been paid as a result of an error on the part of the
Authority and the Company, and the person receiving such excess payment shall
promptly, upon discovery of such error or upon notice thereof from the
Authority, the Company or the Trustee, refund the amount of such excess or, at
the option of the Trustee, apply the excess to the payment of principal of the
obligations with respect to which such payment is made. In addition, for
purposes of determining whether any payment in respect of the Bonds or any
payment under this Agreement that is deemed to be interest is usurious, all such
sums that are paid or agreed to be paid for the use, forbearance or detention of
money shall, to the extent permitted by applicable law, be amortized, prorated,
allocated and spread throughout the full term of such Bonds or this Agreement,
as the case may be.
Section 7.11. Successors and Permitted Assigns. All covenants and
agreements in this Agreement on the part of the Authority and the Company to be
observed or performed shall bind their respective successors and permitted
assigns, whether so expressed or not.
20
[Signature page follows.]
21
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be signed in multiple counterparts, each of which shall be considered an
original for all purposes, as of the day and year first set out above.
BRAZOS RIVER AUTHORITY
By: /s/ Xxx X. Xxxxxx
----------------------------
Chairman, Board of Directors
ATTEST:
/s/ Xxxxx Xxx Xxxxxx
-----------------------
Secretary
(SEAL)
TXU ENERGY COMPANY LLC
-------------------------------
By: /s/ Xxxx X. Xxxxxx
Treasurer
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