|
Exhibit
10(aaa)
Execution
Copy
SENIOR UNSECURED
GUARANTEE
THIS SENIOR UNSECURED
GUARANTEE dated as of October 10, 2007, by US Holdings (as
identified below), each of the other signatories listed on the
signature pages hereto and each of the other entities that becomes
a party hereto pursuant to Section 19 (the “
Subsidiary Guarantors ” together with US Holdings, the
“ Guarantors ” and individually, a “
Guarantor ”), in favor of Morgan Stanley Senior
Funding, Inc., as the Administrative Agent for the benefit of the
Guaranteed Parties.
W I T
N E S S E T H
:
WHEREAS, reference is made to
that certain Senior Unsecured Interim Loan Agreement, dated as of
October 10, 2007 (as the same may be amended, restated,
supplemented or otherwise modified, refinanced or replaced from
time to time, the “ Loan Agreement ”) among
Energy Future Competitive Holdings Company, a Texas corporation
(“ US Holdings ”), Texas Competitive Electric
Holdings Company LLC, a Delaware limited liability company (the
“ Company ”), TCEH Finance, Inc., a Delaware
corporation (“ TCEH ” together with the Company,
the “ Borrower ”), the lenders or other
financial institutions or entities from time to time party thereto
(the “ Lenders ”), Morgan Stanley Senior
Funding, Inc., as Administrative Agent, and the other Agents party
thereto, pursuant to which, among other things, the Lenders have
severally agreed to make Loans to the Borrower (the “
Extensions of Credit ”) upon the terms and subject to
the conditions set forth therein;
WHEREAS, the Company is a
wholly-owned Subsidiary of US Holdings;
WHEREAS, each Subsidiary
Guarantor is a direct or indirect wholly-owned Subsidiary of the
Company;
WHEREAS, the proceeds of the
Extensions of Credit will be used in part to enable the Borrower to
make valuable transfers to the Guarantors in connection with the
operation of their respective businesses;
WHEREAS, each Guarantor
acknowledges that it will derive substantial direct and indirect
benefit from the making of the Extensions of Credit; and
WHEREAS, it is a condition
precedent to the obligation of the Lenders to make their respective
Extensions of Credit to the Borrower under the Loan Agreement that
the Guarantors shall have executed and delivered this Guarantee to
the Administrative Agent for the benefit of the Guaranteed
Parties;
NOW, THEREFORE, in
consideration of the premises and to induce the Administrative
Agent and the Lenders to enter into the Loan Agreement and to
induce the respective Lenders to make their respective Extensions
of Credit to the Borrower under the Loan Agreement, the Guarantors
hereby agree with the Administrative Agent, for the benefit of the
Guaranteed Parties, as follows:
1. Defined Terms
.
(a) Unless otherwise defined
herein, terms defined in the Loan Agreement and used herein shall
have the meanings given to them in the Loan Agreement.
(b) The words
“hereof”, “herein” and
“hereunder” and words of similar import when used in
this Guarantee shall refer to this Guarantee as a whole and not to
any particular provision of this Guarantee, and Section references
are to Sections of this Guarantee unless otherwise specified. The
words “include”, “includes” and
“including” shall be deemed to be followed by the
phrase “without limitation”.
(c) The meanings given to
terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.
2. Guarantee
.
(a) Subject to the provisions
of Section 2(b) in the case of the Subsidiary Guarantors, each
of the Guarantors hereby, jointly and severally, unconditionally
and irrevocably, guarantees, as primary obligor and not merely as
surety, to the Administrative Agent, for the ratable benefit of the
Guaranteed Parties, the prompt and complete payment and performance
when due (whether at the stated maturity, by acceleration or
otherwise) of the Obligations of anyone other than such Guarantor
(including amounts that would become due for operation of the
automatic stay under 362(a) of the Bankruptcy Code, 11 U.S.C.
§ 362(a)).
(b) Anything herein or in any
other Loan Document to the contrary notwithstanding, the maximum
liability of each Subsidiary Guarantor hereunder and under the
other Loan Documents shall in no event exceed the amount that can
be guaranteed by such Guarantor under the Bankruptcy Code or any
applicable laws relating to fraudulent conveyances, fraudulent
transfers or the insolvency of debtors.
(c) Each Guarantor further
agrees to pay any and all expenses (including all reasonable fees
and disbursements of counsel) that may be paid or incurred by the
Administrative Agent or any other Guaranteed Party in enforcing, or
obtaining advice of counsel in respect of, any rights with respect
to, or collecting, any or all of the Obligations and/or enforcing
any rights with respect to, or collecting against, such Guarantor
under this Guarantee.
(d) Each Guarantor agrees
that the Obligations may at any time and from time to time exceed
the amount of the liability of such Guarantor hereunder without
impairing this Guarantee or affecting the rights and remedies of
the Administrative Agent or any other Guaranteed Party
hereunder.
(e) No payment or payments
made by the Borrower, any of the Guarantors, any other guarantor or
any other Person or received or collected by the Administrative
Agent or any other Guaranteed Party from the Borrower, any of the
Guarantors, any other guarantor or
-2-
any other Person by virtue of any action
or proceeding or any set-off or appropriation or application at any
time or from time to time in reduction of or in payment of the
Obligations shall be deemed to modify, reduce, release or otherwise
affect the liability of any Guarantor hereunder, which shall,
notwithstanding any such payment or payments, other than payments
made by such Guarantor in respect of the Obligations or payments
received or collected from such Guarantor in respect of the
Obligations, remain liable for the Obligations up to the maximum
liability of such Guarantor hereunder until the Obligations under
the Loan Documents are paid in full and the Commitments are
terminated.
(f) Each Guarantor agrees
that whenever, at any time, or from time to time, it shall make any
payment to the Administrative Agent or any other Guaranteed Party
on account of its liability hereunder, it will notify the
Administrative Agent in writing that such payment is made under
this Guarantee for such purpose.
3. Right of
Contribution . Each Guarantor hereby agrees that to the extent
that a Guarantor shall have paid more than its proportionate share
of any payment made hereunder (including by way of set-off rights
being exercised against it), such Guarantor shall be entitled to
seek and receive contribution from and against any other Guarantor
hereunder who has not paid its proportionate share of such payment.
Each Guarantor ‘s right of contribution shall be subject to
the terms and conditions of Section 5 hereof. The provisions
of this Section 3 shall in no respect limit the obligations
and liabilities of any Guarantor to the Administrative Agent and
the other Guaranteed Parties, and each Guarantor shall remain
liable to the Administrative Agent and the other Guaranteed Parties
up to the maximum liability of such Guarantor hereunder.
4. Right of Set-off .
In addition to any rights and remedies of the Guaranteed Parties
provided by law, each Guarantor hereby irrevocably authorizes each
Guaranteed Party at any time and from time to time following the
occurrence and during the continuance of an Event of Default,
without notice to such Guarantor or any other Guarantor, any such
notice being expressly waived by each Guarantor, upon any amount
becoming due and payable by such Guarantor hereunder (whether at
stated maturity, by acceleration or otherwise), to set-off and
appropriate and apply against such amount any and all deposits
(general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any
currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by such
Guaranteed Party to or for the credit or the account of such
Guarantor. Each Guaranteed Party shall notify such Guarantor
promptly of any such set-off and the appropriation and application
made by such Guaranteed Party, provided that the failure to give
such notice shall not affect the validity of such set-off and
application.
5. No Subrogation .
Notwithstanding any payment or payments made by any of the
Guarantors hereunder or any set-off or appropriation and
application of funds of any of the Guarantors by the Administrative
Agent or any other Guaranteed Party, no Guarantor shall be entitled
to be subrogated to any of the rights (or if subrogated by
operation of law, such Guarantor hereby waives such rights to the
extent permitted by Applicable Law) of the Administrative Agent or
any other Guaranteed Party against the Borrower or any Guarantor or
other guarantor or any collateral security or guarantee or right of
offset held by the Administrative Agent or any other Guaranteed
Party for the payment of any of the Obligations,
-3-
nor shall any Guarantor seek or be
entitled to seek any contribution or reimbursement from the
Borrower or any Guarantor or other guarantor in respect of payments
made by such Guarantor hereunder, in each case, until all amounts
owing to the Administrative Agent and the other Guaranteed Parties
on account of the Obligations under the Loan Documents are paid in
full and the Commitments are terminated. If any amount shall be
paid to any Guarantor on account of such subrogation rights at any
time when all the Obligations shall not have been paid in full,
such amount shall be held by such Guarantor in trust for the
Administrative Agent and the other Guaranteed Parties, segregated
from other funds of such Guarantor, and shall, forthwith upon
receipt by such Guarantor, be turned over to the Administrative
Agent in the exact form received by such Guarantor (duly indorsed
by such Guarantor to the Administrative Agent, if required), to be
applied against the Obligations, whether due or to become due, in
such order as the Administrative Agent may determine.
6. Amendments, etc. with
Respect to the Obligations; Waiver of Rights . Each Guarantor
shall remain obligated hereunder notwithstanding that, without any
reservation of rights against any Guarantor and without notice to
or further assent by any Guarantor, (a) any demand for payment
of any of the Obligations made by the Administrative Agent or any
other Guaranteed Party may be rescinded by such party and any of
the Obligations continued, (b) the Obligations, or the
liability of any other party upon or for any part thereof, or any
collateral security or guarantee therefor or right of offset with
respect thereto, may, from time to time, in whole or in part, be
renewed, extended, amended, modified, accelerated, compromised,
waived, surrendered or released by the Administrative Agent or any
other Guaranteed Party, (c) the Loan Agreement, the other Loan
Documents, and any other documents executed and delivered in
connection therewith may be amended, modified, supplemented or
terminated, in whole or in part, as the Administrative Agent (or
the Required Lenders, as the case may be) may deem advisable from
time to time, and (d) any collateral security, guarantee or
right of offset at any time held by the Administrative Agent or any
other Guaranteed Party for the payment of any of the Obligations
may be sold, exchanged, waived, surrendered or released. Neither
the Administrative Agent nor any other Guaranteed Party shall have
any obligation to protect, secure, perfect or insure any Lien at
any time held by it as security for the Obligations or for this
Guarantee or any property subject thereto. When making any demand
hereunder against any Guarantor, the Administrative Agent or any
other Guaranteed Party may, but shall be under no obligation to,
make a similar demand on the Borrower or any Guarantor or any other
person, and any failure by the Administrative Agent or any other
Guaranteed Party to make any such demand or to collect any payments
from the Borrower or any Guarantor or any other person or any
release of the Borrower or any Guarantor or any other person shall
not relieve any Guarantor in respect of which a demand or
collection is not made or any Guarantor not so released of its
several obligations or liabilities hereunder, and shall not impair
or affect the rights and remedies, express or implied, or as a
matter of law, of the Administrative Agent or any other Guaranteed
Party against any Guarantor. For the purposes hereof
“demand” shall include the commencement and continuance
of any legal proceedings.
Further, each Guarantor
expressly waives each and every right to which it may be entitled
by virtue of the suretyship law of the state of Texas, including
without limitation, any rights pursuant to Rule 31, Texas Rules of
Civil Procedure, Articles 1986 and 1987, Revised Civil Statutes of
Texas and Chapter 34 of the Texas Business and Commerce
Code.
-4-
7. Guarantee Absolute and
Unconditional .
(a) Each Guarantor waives any
and all notice of the creation, contraction, incurrence, renewal,
extension, amendment, waiver or accrual of any of the Obligations,
and notice of or proof of reliance by the Administrative Agent or
any other Guaranteed Party upon this Guarantee or acceptance of
this Guarantee. All Obligations shall conclusively be deemed to
have been created, contracted or incurred, or renewed, extended,
amended, waived or accrued, in reliance upon this Guarantee, and
all dealings between the Borrower and any of the Guarantors, on the
one hand, and the Administrative Agent and the other Guaranteed
Parties, on the other hand, likewise shall be conclusively presumed
to have been had or consummated in reliance upon this Guarantee. To
the fullest extent permitted by Applicable Law, each Guarantor
waives diligence, promptness, presentment, protest and notice of
protest, demand for payment or performance, notice of default or
nonpayment, notice of acceptance and any other notice in respect of
the Obligations or any part of them, and any defense arising by
reason of any disability or other defense of the Borrower or any of
the Guarantors with respect to the Obligations. Each Guarantor
understands and agrees that this Guarantee shall be construed as a
continuing, absolute and unconditional guarantee of payment without
regard to (a) the validity, regularity or enforceability of
the Loan Agreement, any other Loan Document, any of the Obligations
or any collateral security therefor or guarantee or right of offset
with respect thereto at any time or from time to time held by the
Administrative Agent or any other Guaranteed Party, (b) any
defense, set-off or counterclaim (other than a defense of payment
or performance) that may at any time be available to or be asserted
by the Borrower against the Administrative Agent or any other
Guaranteed Party or (c) any other circumstance whatsoever
(with or without notice to or knowledge of the Borrower or such
Guarantor) that constitutes, or might be construed to constitute,
an equitable or legal discharge of the Borrower for the
Obligations, o
|
