EXHIBIT 10
[EXECUTION VERSION]
--------------------------------------------------------------------------------
TXU ENERGY COMPANY LLC
TXU ELECTRIC DELIVERY COMPANY,
AS BORROWERS
------------------------------------------
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
Dated as of March 31, 2005
------------------------------------------
JPMORGAN CHASE BANK, N.A.
AS ADMINISTRATIVE AGENT
JPMORGAN CHASE BANK, N.A.,
CITIBANK, N.A.,
WACHOVIA BANK, NATIONAL ASSOCIATION,
BANK OF AMERICA N.A.,
CALYON NEW YORK BRANCH,
AS FRONTING BANKS
--------------------------------------------------------------------------------
J.P. MORGAN SECURITIES, INC.
CITIGROUP GLOBAL MARKETS INC.
JOINT LEAD ARRANGERS AND BOOKRUNNERS
CITIBANK, N.A.
SYNDICATION AGENT
<PAGE>
TABLE OF CONTENTS
PAGE
Article I DEFINITIONS;
CONSTRUCTION............................................1
SECTION 1.01. Defined Terms.
.........................................1
SECTION 1.02. Terms
Generally........................................20
Article II THE
CREDITS........................................................21
SECTION 2.01.
Commitments............................................21
SECTION 2.02.
Loans..................................................22
SECTION 2.03. Borrowing
Procedure....................................23
SECTION 2.04.
Fees...................................................23
SECTION 2.05. Repayment of Loans; Evidence of
Indebtedness...........24
SECTION 2.06. Interest on
Loans......................................25
SECTION 2.07. Alternate Rate of
Interest.............................25
SECTION 2.08. Termination and Reduction of
Commitments...............25
SECTION 2.09.
Prepayment.............................................26
SECTION 2.10. Reserve Requirements; Change in
Circumstances..........27
SECTION 2.11. Change in
Legality.....................................29
SECTION 2.12. Pro Rata
Treatment.....................................29
SECTION 2.13. Sharing of
Setoffs.....................................30
SECTION 2.14.
Payments...............................................30
SECTION 2.15. Taxes.
................................................31
SECTION 2.16. Assignment of Commitments Under Certain
Circumstances..........................................33
SECTION 2.17. Letters of
Credit......................................34
Article III REPRESENTATIONS AND
WARRANTIES....................................38
SECTION 3.01. Organization;
Powers...................................38
SECTION 3.02.
Authorization..........................................38
SECTION 3.03.
Enforceability.........................................38
SECTION 3.04. Governmental
Approvals.................................39
SECTION 3.05. Financial Statements.
.................................39
SECTION 3.06. Litigation.
...........................................39
SECTION 3.07. Federal Reserve Regulations.
..........................39
SECTION 3.08. Investment Company Act; Public Utility Holding
Company Act............................................40
SECTION 3.09. No Material
Misstatements..............................40
SECTION 3.10. Taxes.
................................................40
SECTION 3.11. Employee Benefit Plans.
...............................40
SECTION 3.12. Significant Subsidiaries.
.............................41
SECTION 3.13. Environmental Matters.
................................41
SECTION 3.14. Solvency.
.............................................41
Article IV CONDITIONS
........................................................42
SECTION 4.01. Initial Extensions of Credit.
.........................42
SECTION 4.02. Conditions for All Extensions of Credit.
..............43
Article V COVENANTS
..........................................................44
SECTION 5.01. Existence.
............................................44
SECTION 5.02. Compliance With Laws; Business and Properties.
........44
i
<PAGE>
SECTION 5.03. Financial Statements, Reports, Etc.
...................44
SECTION 5.04. Insurance.
............................................46
SECTION 5.05. Taxes,
Etc. ...........................................46
SECTION 5.06. Maintaining Records; Access to Properties and
Inspections............................................46
SECTION 5.07. ERISA.
................................................46
SECTION 5.08. Use of Proceeds.
......................................46
SECTION 5.09. Consolidations, Mergers, Sales and Acquisitions
of
Assets and Investments in Subsidiaries.................47
SECTION 5.10. Limitations on
Liens...................................48
SECTION 5.11. Fixed Charge Coverage Ratio.
..........................50
SECTION 5.12. Debt to Total Capitalization Ratio.
...................50
SECTION 5.13. Restrictive Agreements.
...............................50
Article VI EVENTS OF DEFAULT
.................................................50
Article VII THE AGENT
........................................................53
Article VIII MISCELLANEOUS
...................................................56
SECTION 8.01. Notices.
..............................................56
SECTION 8.02. Survival of Agreement.
................................56
SECTION 8.03. Binding Effect.
.......................................57
SECTION 8.04. Successors and Assigns.
...............................57
SECTION 8.05. Expenses; Indemnity.
..................................60
SECTION 8.06. Right of Setoff.
......................................62
SECTION 8.07. Applicable Law.
.......................................62
SECTION 8.08. Waivers; Amendment.
...................................62
SECTION 8.09. Entire Agreement.
.....................................63
SECTION 8.10. Severability.
.........................................63
SECTION 8.11. Counterparts.
.........................................63
SECTION 8.12. Headings.
.............................................63
SECTION 8.13. Interest Rate Limitation.
.............................63
SECTION 8.14. Jurisdiction; Venue.
..................................64
SECTION 8.15. Confidentiality.
......................................65
ii
<PAGE>
EXHIBITS AND SCHEDULES
Exhibit A
- Form of
Assignment and Acceptance
Exhibit B
- Form of
Borrowing Request
Exhibit C-1 -
Form of
Request for Issuance (JPMorgan Chase Bank, N.A.)
Exhibit C-2 -
Form of
Request for Issuance (Citibank, N.A.)
Exhibit D
- Form of
Prepayment Notice
Schedule 2.01 - Commitments
Schedule 2.18(i) - Fronting Bank LC
Limits
Schedule 5.13 - Restrictive
Agreements
<PAGE>
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (this
"AGREEMENT"), dated as of March 31, 2005, among TXU Energy
Company LLC, a Delaware limited liability company ("ENERGY"),
TXU Electric Delivery Company, a Texas corporation ("DELIVERY"
and, together with Energy, the "BORROWERS", and each
individually, a "BORROWER"), the lenders listed in Schedule
2.01 (together with their successors and assigns, the
"LENDERS"), JPMorgan Chase Bank, N.A. ("JPMORGAN CHASE"), as
administrative agent for the Lenders (in such capacity, the
"Agent") and as a fronting bank for letters of credit issued
hereunder, and Citibank, N.A., Wachovia Bank, National
Association, Bank of America N.A. and Calyon New York Branch,
as fronting banks for letters of credit issued hereunder.
The Lenders and the
Fronting Banks have previously provided the Original
Agreement (as defined below) for the making
of loans to the Borrowers and the
issuance of letters of credit to
beneficiaries designated by the Borrowers in an
aggregate amount not in excess of
$2,500,000,000. The Lenders and the Fronting
Banks have agreed to amend and restate such
credit facility on the terms and
conditions set forth herein, and JPMorgan
Chase has agreed to continue to act as
Agent under such amended and restated
credit facility on behalf of the Lenders
and the Fronting Banks.
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 2.03, 2.07
or 2.11(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).
"ADMINISTRATIVE FEES" shall have the meaning assigned to such
term in Section
2.04(c).
<PAGE>
2
"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 1/2 of 1% 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 JPMorgan Chase 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 JPMorgan
Chase, of the
quotations for the day of such transactions received by
JPMorgan Chase from
three Federal funds brokers of recognized standing
selected by it. If for
any reason JPMorgan Chase shall have determined
(which determination
shall be conclusive absent manifest error;
provided that JPMorgan
Chase 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
JPMorgan Chase 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 COMMITMENT TERMINATION DATE" shall mean, with
respect to any Tranche
A Borrowing or Tranche A Commitment, the Tranche
A Commitment
Termination Date, with respect to any Tranche B Borrowing
or Tranche B
Commitment, the Tranche B Commitment Termination Date, and
with respect to any
Tranche C Borrowing or Tranche C Commitment, the
Tranche C Commitment
Termination Date.
"APPLICABLE MARGIN" shall mean, for any Type of Loan made to
any Borrower 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. The Applicable Margins set
forth below with
respect to each Applicable Rating Level shall be
increased with respect
to Loans of each Tranche, by the percentage set
forth below in the row
designated "Utilization Fee" during any period
(and for only such
period) in which Outstanding Credits with respect to
such Tranche are at
least 50% of the aggregate amount of the
<PAGE>
3
Commitments available
with respect to such Tranche. At any time an
Event of Default has
occurred and is continuing with respect to any
Borrower, the
Applicable Margins set forth below for such Borrower
shall be increased for
each Applicable Rating Level by 2.00%.
<TABLE>
<CAPTION>
================================================================================
Applicable Rating
Level
1
2
3
4
5
--------------------------------------------------------------------------------
<S>
<C>
<C>
<C>
<C>
<C>
Percentage Per Annum
--------------------------------------------------------------------------------
Eurodollar Loan
0.275% 0.350%
0.425%
0.575%
0.800%
--------------------------------------------------------------------------------
ABR Loan
0%
0%
0%
0%
0%
--------------------------------------------------------------------------------
Utilization Fee
0.125% 0.125%
0.125%
0.125%
0.125%
================================================================================
</TABLE>
"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, 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 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 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.
<TABLE>
<CAPTION>
======================================================
S&P Debt Rating
Applicable
Moody's Debt Rating
Rating Level
------------------------------------------------------
<S>
<C>
A- or better
1
A3 or better
------------------------------------------------------
BBB+
2
Baa1
------------------------------------------------------
BBB
3
Baa2
------------------------------------------------------
BBB-
4
Baa3
------------------------------------------------------
Below BBB-*
5
Below Baa3*
======================================================
* or unrated
</TABLE>
"ASSIGNMENT AND ACCEPTANCE" shall mean an assignment and
acceptance entered
into by a Lender and an assignee in the form of
Exhibit A.
"AVAILABLE COMMITMENT" shall mean, with respect to any Lender,
the aggregate amount
of such Lender's Tranche A Available Commitment,
<PAGE>
4
Tranche B Available
Commitment and Tranche C Available Commitment.
"AVAILABLE
COMMITMENTS" shall refer to the aggregate of the Lenders'
Available
Commitments.
"BOARD" shall mean the Board of Governors of the Federal
Reserve System of the
United States.
"BORROWER" and "BORROWERS" each shall have the meaning given
such term in the
preamble hereto.
"BORROWER INFORMATION" shall have the meaning given to such
term in Section
3.05(b).
"BORROWING" shall mean any Tranche A Borrowing, Tranche B
Borrowing or Tranche C
Borrowing.
"BORROWING REQUEST" shall mean a request made pursuant to
Section 2.03 in the
form of Exhibit B.
"BUSINESS DAY" shall mean any day (other than a day that 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.
"CASH COLLATERAL ACCOUNT" shall have the meaning assigned to
such term in Article
VI.
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 the applicable
Acquisition Date by a
majority of Disinterested Directors of TXU or
(ii) during any period
of 12 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.
"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 any Lender, the
aggregate of such
Lender's Tranche A Commitment, Tranche B Commitment
and Tranche C
Commitment.
<PAGE>
5
"CONSOLIDATED EARNINGS AVAILABLE FOR FIXED CHARGES" shall
mean, for any Borrower
for any twelve-month period, (i) consolidated
net income, calculated
after deducting preferred stock dividends and
preferred securities
distributions of Subsidiaries of such Borrower,
but before any
extraordinary items and before the effect in such
twelve-month period of
any change in GAAP becoming effective after
December 31, 2003 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, less
(v) revenues arising from competitive transition
charges, plus (vi)
depreciation and amortization, all determined for
such twelve-month
period with respect to such Borrower 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 shall be added to the extent
that the following
decreased consolidated net income: (A) any non-cash
book losses or
charges, (B) any cash charges, in an amount of up to
$500,000,000
(calculated on an aggregate basis throughout the term of
this Agreement), as a
result of (1) rulings by federal or state
regulatory bodies
having jurisdiction over such Borrower or its
Consolidated
Subsidiaries, (2) the early retirement, repurchase or
termination of debt or
other securities or financing arrangements,
including premiums,
relating to liability management activities and (3)
initiatives
implemented pursuant to the performance improvement
programs of TXU and
its Subsidiaries as described by TXU in the Spring
of 2004, including,
but not limited to, severance costs, plant or mine
closings, asset
dispositions, restructuring charges and transaction
costs and (C) any
losses incurred in connection with Preferred
Membership Interest
Repurchases.
"CONSOLIDATED FIXED CHARGES" shall mean, for any Borrower for
any twelve-month
period, the sum (without duplication) of (i) interest
expense (excluding any
such expense (A) in respect of the amortization
of debt discount
relating to the Preferred Membership Interests, (B)
incurred in connection
with Preferred Membership Interest Repurchases,
(C) in respect of
Qualified Transition Bonds (including interest rate
swaps entered into by
any Qualified Transition Bond Issuer in
connection with
Qualified Transition Bonds issued by such Qualified
Transition Bond
Issuer), (D) in the case of Delivery, in respect of
generation-related
regulatory assets to the extent reimbursed by Energy
and (E) incurred in
connection with any charges, write-offs or premiums
resulting from the
early retirement of debt relating to liability
management activities,
in each case to the extent included in the
calculation of
interest expense) and (ii) preferred stock dividends and
preferred securities
distributions (excluding any such dividends or
distributions incurred
in connection with Preferred Membership Interest
Repurchases), all
determined for such twelve-month period with respect
to such Borrower and
its Consolidated Subsidiaries on a consolidated
basis.
"CONSOLIDATED SENIOR DEBT" shall mean, for any Borrower, the
Senior Debt of such
Borrower and its Consolidated Subsidiaries
determined on a
consolidated basis, excluding, however, in the case of
Energy, up to
$400,000,000 in the aggregate at any time of
determination of such
Senior Debt described in clause (iii) of the
definition of "Senior
Debt".
<PAGE>
6
"CONSOLIDATED SHAREHOLDERS' EQUITY" shall mean, for each
Borrower, the sum
(without duplication) of (i) total common stock or
common members'
interest plus (ii) preferred and preference stock or
preferred members'
interest 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, in
the case of Energy,
and (B) $850,000,000, in the case of Delivery, plus
(iv) Preferred
Membership Interests; provided, however, that in
computing Consolidated
Shareholders' Equity at any time, the following
shall be added to the
extent that the following decreased total common
stock or common
members' interest: (1) any cash and non-cash charges,
in an amount of up to
$750,000,000 (calculated on an aggregate basis
throughout the term of
this Agreement), as a result of (x) rulings by
federal or state
regulatory bodies having jurisdiction over such
Borrower or its
Consolidated Subsidiaries, (y) the early retirement,
repurchase or
termination of debt or other securities or financing
arrangements,
including premiums, relating to liability management
activities and (z)
initiatives implemented pursuant to the performance
improvement programs
of TXU and its Subsidiaries as described by TXU in
Spring 2004,
including, but not limited to, severance costs, plant or
mine closings, asset
dispositions, restructuring charges and
transaction costs and
(2) any losses incurred in connection with
Preferred Membership Interest
Repurchases.
"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)
Consolidated Shareholders' Equity of such Borrower and
(ii) Consolidated
Senior Debt of such Borrower.
"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 either
Borrower, 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 Moody's 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.
"DELIVERY" shall have the meaning set forth in the preamble
hereto.
"DELIVERY 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 Delivery.
<PAGE>
7
"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) acquiring the
beneficial ownership of more than 30% of the
outstanding 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 any Borrower or a Consolidated
Subsidiary of any
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 Tranche C Commitment Termination 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 nonexempt "prohibited transaction" as
defined in Section
4975(c) of the Code or Section 406 of ERISA with
respect to which any
Borrower or any of its Subsidiaries is liable; and
<PAGE>
8
(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.
"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.
"EXTENSION OF CREDIT" shall mean (i) the making of a Loan or
(ii) the issuance of a
Letter of Credit or the amendment of any Letter
of Credit having the
effect of extending the stated termination date
thereof or increasing
the maximum amount available to be drawn
thereunder.
"FACILITY FEE" shall have the meaning assigned to such term in
Section 2.04(a).
"FACILITY FEE PERCENTAGE" shall mean, at any time, the
percentage per annum
set forth below in the column under the Applicable
Rating Level of the
Borrower with the lower Applicable Rating Level at
such time.
<TABLE>
<CAPTION>
===============================================================================
Applicable
Rating Level
1
2
3
4 5
-------------------------------------------------------------------------------
Percentage Per annum
===============================================================================
<S>
<C>
<C>
<C>
<C>
<C>
Facility Fee
0.100%
0.125% 0.150%
0.175%
0.200%
===============================================================================
</TABLE>
"FEDERAL FUNDS EFFECTIVE RATE" shall have the meaning set
forth in the
definition of "Alternate Base Rate".
"FEES" shall mean the Facility Fee, the Administrative Fees,
the Fronting Fee, the
LC Fee and any other fees provided for in the
Letter Agreements.
"FINANCIAL OFFICER" of any corporation or limited liability
company 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 or limited
liability company.
"FIRST MORTGAGE" shall mean (i) the Delivery Mortgage, (ii)
any mortgage and deed
of trust entered into by Delivery in order to
refund or replace, or
in substitution for, the Delivery Mortgage, and
(iii) if and for so
long as any first mortgage bonds are issued and
outstanding under the
Delivery Mortgage, any other indenture or
instrument of Delivery
pursuant to which Delivery issues debt
securities secured
directly or indirectly by (A) the Lien created by
the Delivery Mortgage
and/or (B) any property of Delivery.
<PAGE>
9
"FRONTING BANKS" shall mean (i) JPMorgan Chase, Citibank,
N.A., Wachovia Bank,
National Association, Bank of America N.A. and
Calyon New York Branch
and (ii) any Affiliate of any person listed in
clause (i) and any
other Lender or Affiliate of any Lender, in each
case, having a
long-term credit rating acceptable to the Borrowers
(and, in the case of
any such Affiliate, being otherwise reasonably
acceptable to the
Borrowers) that delivers an instrument in form and
substance satisfactory
to the Borrowers and the Agent whereby such
other Lender or
Affiliate agrees to act as a "Fronting Bank" hereunder
and states the amount
of its LC Fronting Bank Commitment.
"FRONTING FEE" shall have the meaning assigned to such term in
Section 2.04(d).
"GAAP" shall mean generally accepted accounting principles,
applied on a consistent
basis.
"GOVERNMENTAL AUTHORITY" shall mean any Federal, state, local
or foreign court or
governmental agency, authority, instrumentality or
regulatory body.
"HOLDINGS" shall mean TXU US Holdings Company, a Texas
corporation, and its
successors.
"INDEBTEDNESS" of any person shall mean (without duplication)
all liabilities,
obligations and indebtedness (whether contingent or
otherwise) of such
person (i) for borrowed money or evidenced by bonds,
indentures, notes or
other similar instruments, (ii) to pay the
deferred purchase
price of property or services, (iii) as lessee under
leases that are
recorded as capital leases, (iv) under reimbursement
agreements or similar
agreements with respect to the issuance of
letters of credit
(other than obligations in respect of letters of
credit opened to
provide for the payment of goods or services purchased
in the ordinary course
of business), (v) in respect of Indebtedness of
others secured by (or
for which the holder of such Indebtedness has an
existing right,
contingent or otherwise, to be secured by) a mortgage,
lien, pledge, charge
or other encumbrance on any asset of such person
(with the Indebtedness
of such person described in this clause (v) to
be valued at the book
value, net of accumulated depreciation, of such
asset of such person
securing such Indebtedness of others), (vi) all
net payment
obligations of such person in respect of interest rate swap
agreements, currency
swap agreements and other similar agreements
designed to hedge
against fluctuations in interest rates or foreign
exchange rates and
(vii) under direct or indirect guaranties in respect
of, and to purchase or
otherwise acquire, or otherwise to assure a
creditor against loss
in respect of, liabilities, obligations or
indebtedness of others
of the kinds referred to in clauses (i) through
(vi) above; provided,
however, that for all purposes, the following
shall be excluded from
the definition of "Indebtedness": (A) Qualified
Transition Bonds
(including, with respect to any Borrower, interest
rate swaps entered
into by any Qualified Transition Bond Issuer of such
Borrower in connection
with Qualified Transition Bonds issued by such
Qualified Transition
Bond Issuer), (B) amounts payable from one
Borrower to the other
in connection with nuclear decommissioning costs,
retail clawback or
other regulatory transition issues and (C) any
Indebtedness defeased
by such person or by any Subsidiary of such
person.
<PAGE>
10
"INTEREST PAYMENT DATE" shall mean, with respect to any Loan,
the last day of the Interest
Period applicable thereto and, in the case
of a Eurodollar Loan
with an Interest Period of more than three months'
duration, each day
that would have been an Interest Payment Date for
such Loan had
successive Interest Periods of three months' duration or
90 days' duration, as
the case may be, been applicable to such Loan
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, 3 or 6
months thereafter; provided that, in the case of
any Eurodollar
Borrowing made during the 30-day period ending on the
Applicable Commitment
Termination 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 Applicable Commitment
Termination Date, and
(C) the date such Borrowing is repaid or prepaid
in accordance with
Section 2.05, Section 2.08(d) or Section 2.09;
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.
"JPMORGAN CHASE" shall have the meaning given such term in the
preamble hereto.
"LC FEE" shall have the meaning assigned to such term in
Section 2.04(d).
"LC FRONTING BANK COMMITMENT" shall mean, with respect to any
Fronting Bank, the
aggregate of such Fronting Bank's Tranche A LC
Fronting Bank
Commitment, Tranche B LC Fronting Bank Commitment and
Tranche C LC Fronting
Bank Commitment. With respect to each person that
is a Fronting Bank on
the date hereof, such Fronting Bank's LC Fronting
Bank Commitment shall
equal such Fronting Bank's "LC Fronting Bank
Commitment" listed on
Schedule 2.17(i) and, with respect to any person
that becomes a
Fronting Bank after the date hereof, such person's LC
Fronting Bank
Commitment shall equal the amount agreed upon between the
Borrower and such
person at the time such person becomes a Fronting
Bank.
"LC OUTSTANDINGS" shall mean, on any date of determination,
the Tranche A LC
Outstandings, Tranche B LC Outstandings and Tranche C
LC Outstandings on
such date.
"LC
PAYMENT NOTICE" shall have the meaning assigned to such
term in Section
2.17(d).
<PAGE>
11
"LENDERS" shall have the meaning given such term in the
preamble hereto.
"LETTER AGREEMENTS" shall mean (i) the Commitment Letter, dated
February 25, 2005,
among the Borrowers, J.P. Morgan Securities, Inc.,
JPMorgan Chase,
Citigroup Global Markets Inc. and Citibank, N.A. and
(ii) the Fee Letter,
dated February 25, 2005, among Energy, J.P.
Morgan Securities,
Inc., JPMorgan Chase, Citigroup Global Markets Inc.
and Citibank, N.A.,
each as amended, modified or supplemented from
time to time.
"LETTER OF CREDIT" shall mean any Tranche A Letter of Credit,
Tranche B Letter of
Credit or Tranche C Letter of Credit.
"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 JPMorgan Chase 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 JPMorgan
Chase 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.
"LOAN" shall mean any Tranche A Loan, Tranche B Loan or
Tranche C 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.
"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 or any Fronting Bank under this
Agreement.
<PAGE>
12
"MOODY'S" shall mean Moody's 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.
"OPERATING AGREEMENTS" shall mean (i) the Operating Agreement,
dated April 28, 1978,
as amended by the Modification of Operating
Agreement, 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).
"ORIGINAL AGREEMENT" shall mean that certain Revolving Credit
Agreement, dated as of
June 24, 2004, among the Borrowers, as
borrowers, the lenders
party thereto, JPMorgan Chase Bank, as agent and
as a fronting bank,
and Citibank, N.A., as a fronting bank.
"OUTSTANDING CREDITS" shall mean, on any date of
determination, the
aggregate amount of the Tranche A Outstanding
Credits, the Tranche B
Outstanding Credits and the Tranche C
Outstanding Credits on
such date.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or
any entity succeeding
to any or all of its functions under ERISA.
"PERCENTAGE" shall mean, 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 and, for
any Lender with
respect to such Lender's Tranche A Commitment, Tranche
B Commitment or
Tranche C Commitment on any date of determination, the
percentage obtained by
dividing the relevant Commitment of such Lender
by the Tranche A
Commitments, Tranche B Commitments or Tranche C
Commitments, as
applicable.
"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
<PAGE>
13
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
that 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;
(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;
<PAGE>
14
(i) any judgment Lien against such person securing a judgment
for
an amount not
exceeding 25% of Consolidated Shareholders' Equity of
such person, 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.
"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.
"PREFERRED MEMBERSHIP INTEREST REPURCHASES" shall mean the
repurchase by TXU of
Preferred Membership Interests and any subsequent
purchase or purchases
of Preferred Membership Interests by any
affiliate of TXU.
"PREFERRED MEMBERSHIP INTERESTS" shall mean the $750,000,000
aggregate liquidation
preference amount of exchangeable preferred
membership interests
in Energy.
"PREPAYMENT NOTICE" shall have the meaning given such term in
Section 2.09(a).
"QUALIFIED TRANSITION BOND ISSUER" shall mean, with respect to
any
Borrower, (i) TXU
Electric Delivery Transition Bond Company LLC (formerly
known as Oncor
Electric Delivery Transition Bond Company LLC), (ii) such
Borrower, (iii) a
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 (A), (B)
and (C) or (iv) any directly or indirectly held
Subsidiary of such
Borrower formed and operating for purposes that include
owning TXU Electric
Delivery Transition Bond Company LLC.
<PAGE>
15
"QUALIFIED TRANSITION BONDS" of any Borrower shall mean
securities,
however denominated,
that are (i) issued by a Qualified Transition Bond
Issuer of such
Borrower, (ii) secured by or otherwise payable from
transition charges
authorized pursuant to the financing order referred to
in clause (iii)(A) of
the definition of "Qualified Transition Bond Issuer",
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).
"REQUEST FOR ISSUANCE" shall mean a request for issuance of a
Letter
of Credit pursuant to
Section 2.17(a), in a form substantially similar to
Exhibit C-1, if
JPMorgan Chase is the applicable Fronting Bank, C-2, if
Citibank, N.A. is the
applicable Fronting Bank, and, in the case of any
other Fronting Bank,
the form that is customary for such Fronting Bank.
"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 the first paragraph of Article
VI, or (ii) if the
Total Commitment has been terminated, Lenders with
Outstanding Credits in
excess of 50% of the aggregate amount of Outstanding
Credits.
"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
McGraw-Hill Companies,
Inc.).
"SEC" shall mean the Securities and Exchange Commission.
"SENIOR DEBT" of any person shall mean (without duplication) (i)
all
Indebtedness of such
person described in clauses (i) through (iii) of the
definition of
"Indebtedness", (ii) all Indebtedness of such person
described in clause
(iv) of the definition of "Indebtedness" in respect of
unreimbursed drawings
under letters of credit described in such clause
(iv), and (iii) all
direct or indirect guaranties of such person in respect
of, and to purchase or
otherwise acquire, or otherwise to assure a creditor
against loss in
respect of, liabilities, obligations or indebtedness of
others of the kinds
referred to in clauses (i) and (ii) above; provided,
however, that in
calculating "Senior Debt" of any Borrower, (A) the
aggregate amount of
Preferred Membership Interests outstanding shall be
excluded and (B) any
amount of Equity Credit-Preferred Securities not
included in the
definition of "Consolidated Shareholders Equity" shall be
included.
<PAGE>
16
"SIGNIFICANT DISPOSITION" shall mean a sale, lease, disposition
or
other transfer by a
person, or any Subsidiary of such person, during any
12-month period
commencing on or after the date hereof, of assets
constituting, either
individually or in the aggregate with all other assets
sold, leased, disposed
or otherwise transferred by such person or any
Subsidiary thereof
during such period, 10% or more of the assets of such
person and its
Subsidiaries taken as a whole, excluding any such sale,
lease, disposition or
other transfer to a Wholly Owned Subsidiary of such
person.
"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.
"SOLVENT" shall mean, 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.
"STATED AMOUNT" shall mean the maximum amount available to be drawn
by
a beneficiary under a
Letter of Credit.
"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; provided, however, that
Qualified Transition
Bond Issuers and Subsidiaries of Qualified Transition
Bond Issuers shall not
be deemed to be Subsidiaries of any Borrower.
"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.
"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 $3,500,000,000.
"TRANCHE" shall mean, with respect to the Commitments, the Tranche
A
Commitments, Tranche B
Commitments or Tranche C Commitments, as applicable,
and with respect to
any Outstanding Credit, any Tranche A Loan, Tranche B
Loan, Tranche C Loan,
Tranche A Letter of Credit, Tranche B Letter of
Credit or Tranche C
Letter of Credit, as applicable.
"TRANCHE A AVAILABLE COMMITMENT" shall mean, for each Lender,
the
excess of such
Lender's Tranche A Commitment over such Lender's Tranche A
Outstanding Credits.
"TRANCHE A AVAILABLE Commitments" shall refer to the
aggregate of the
Lenders' Tranche A Available Commitments hereunder.
<PAGE>
17
"TRANCHE A BORROWING" shall mean a group of Tranche A Loans of
a
single Type made by
the Lenders on a single date and as to which a single
Interest Period is in
effect.
"TRANCHE A COMMITMENT" shall mean, with respect to any Lender,
the
commitment of such
Lender set forth in Schedule 2.01 hereto to make Tranche
A Loans and to
purchase participations in Tranche A Letters of Credit, as
such Tranche A
Commitment may be permanently terminated or reduced from
time to time pursuant
to Section 2.08 or modified from time to time
pursuant to Section
8.04. The Tranche A Commitment of each Lender shall
automatically and
permanently terminate on the Tranche A Commitment
Termination Date if
not terminated earlier pursuant to the terms hereof.
"TRANCHE A
COMMITMENTS" shall mean the aggregate of the Lenders' Tranche A
Commitments.
"TRANCHE A COMMITMENT TERMINATION DATE" shall mean March 31,
2010.
"TRANCHE A LC FRONTING BANK COMMITMENT" shall mean, with respect
to
any Fronting Bank, the
aggregate stated amount of all Tranche A Letters of
Credit that such
Fronting Bank agrees to issue hereunder, as modified from
time to time pursuant
to agreement among such Fronting Bank, the Borrowers
and the Agent.
"TRANCHE A LC OUTSTANDINGS" shall mean, on any date of
determination,
the sum of (i) the
undrawn stated amounts of all Tranche A Letters of
Credit that are
outstanding on such date and (ii) the aggregate principal
amount of all unpaid
reimbursement obligations of the Borrowers on such
date with respect to
payments made by the Fronting Banks under Tranche A
Letters of Credit
(excluding reimbursement obligations that have been
repaid with the
proceeds of any Loan). A Lender's "Tranche A LC
Outstandings" shall
mean such Lender's participation interest in undrawn
Tranche A Letters of
Credit and its Percentage of all unpaid reimbursement
obligations in respect
of the Tranche A Letters of Credit.
"TRANCHE A LETTER OF CREDIT" shall mean a letter of credit that
is
issued by a Fronting
Bank pursuant to a Request for Issuance specifying
that such letter of
credit is to use the Tranche A Commitments, as such
letter of credit may
from time to time be amended, modified or extended in
accordance with the
terms of this Agreement.
"TRANCHE A LOAN" shall mean a revolving loan made pursuant to
Section
2.02(a)(i), whether
made as a Eurodollar Loan or as an ABR Loan.
"TRANCHE A OUTSTANDING CREDITS" of any Lender shall mean, on any
date
of determination, an
amount equal to (i) the aggregate principal amount of
all outstanding
Tranche A Loans made by such Lender plus (ii) such Lender's
Tranche A LC
Outstandings on such date.
"TRANCHE B AVAILABLE COMMITMENT" shall mean, for each Lender,
the
excess of such
Lender's Tranche B Commitment over such Lender's Tranche B
Outstanding Credits.
"TRANCHE B AVAILABLE Commitments" shall refer to the
aggregate of the
Lenders' Tranche B Available Commitments hereunder.
<PAGE>
18
"TRANCHE B BORROWING" shall mean a group of Tranche B Loans of
a
single Type made by
the Lenders on a single date and as to which a single
Interest Period is in
effect.
"TRANCHE B COMMITMENT" shall mean, with respect to any Lender,
the
commitment of such
Lender set forth in Schedule 2.01 hereto to make Tranche
B Loans and to
purchase participations in Tranche B Letters of Credit, as
such Tranche B
Commitment may be permanently terminated or reduced from
time to time pursuant
to Section 2.08 or modified from time to time
pursuant to Section
8.04. The Tranche B Commitment of each Lender shall
automatically and
permanently terminate on the Tranche B Commitment
Termination Date if
not terminated earlier pursuant to the terms hereof.
"TRANCHE B
COMMITMENTS" shall mean the aggregate of the Lenders' Tranche B
Commitments.
"TRANCHE B COMMITMENT TERMINATION DATE" shall mean June 24,
2008.
"TRANCHE B LC FRONTING BANK COMMITMENT" shall mean, with respect
to
any Fronting Bank, the
aggregate stated amount of all Tranche B Letters of
Credit that such
Fronting Bank agrees to issue hereunder, as modified from
time to time pursuant
to agreement among such Fronting Bank, the Borrowers
and the Agent.
"TRANCHE B LC OUTSTANDINGS" shall mean, on any date of
determination,
the sum of (i) the
undrawn stated amounts of all Tranche B Letters of
Credit that are
outstanding on such date and (ii) the aggregate principal
amount of all unpaid
reimbursement obligations of the Borrowers on such
date with respect to
payments made by the Fronting Banks under Tranche B
Letters of Credit
(excluding reimbursement obligations that have been
repaid with the
proceeds of any Loan). A Lender's "Tranche B LC
Outstandings" shall
mean such Lender's participation interest in undrawn
Tranche B Letters of
Credit and its Percentage of all unpaid reimbursement
obligations in respect
of the Tranche B Letters of Credit.
"TRANCHE B LETTER OF CREDIT" shall mean a letter of credit that
is
issued by a Fronting
Bank pursuant to a Request for Issuance specifying
that such letter of
credit is to use the Tranche B Commitments, as such
letter of credit may
from time to time be amended, modified or extended in
accordance with the
terms of this Agreement.
"TRANCHE B LOAN" shall mean a revolving loan made pursuant to
Section
2.02(a)(ii), whether
made as a Eurodollar Loan or as an ABR Loan.
"TRANCHE B OUTSTANDING CREDITS" of any Lender shall mean, on any
date
of determination, an
amount equal to (i) the aggregate principal amount of
all outstanding
Tranche B Loans made by such Lender plus (ii) such Lender's
Tranche B LC
Outstandings on such date.
"TRANCHE C AVAILABLE COMMITMENT" shall mean, for each Lender,
the
excess of such
Lender's Tranche C Commitment over such Lender's Tranche C
Outstanding Credits.
"TRANCHE C AVAILABLE Commitments" shall refer to the
aggregate of the
Lenders' Tranche C Available Commitments hereunder.
<PAGE>
19
"TRANCHE C BORROWING" shall mean a group of Tranche C Loans of
a
single Type made by
the Lenders on a single date and as to which a single
Interest Period is in
effect.
"TRANCHE C COMMITMENT" shall mean, with respect to any Lender,
the
commitment of such
Lender set forth in Schedule 2.01 hereto to make Tranche
C Loans and to
purchase participations in Tranche C Letters of Credit, as
such Tranche C
Commitment may be permanently terminated or reduced from
time to time pursuant
to Section 2.08 or modified from time to time
pursuant to Section
8.04. The Tranche C Commitment of each Lender shall
automatically and
permanently terminate on the Tranche C Commitment
Termination Date if
not terminated earlier pursuant to the terms hereof.
"TRANCHE C
COMMITMENTS" shall mean the aggregate of the Lenders' Tranche C
Commitments.
"TRANCHE C COMMITMENT TERMINATION DATE" shall mean June 24,
2010.
"TRANCHE C LC FRONTING BANK COMMITMENT" shall mean, with respect
to
any Fronting Bank, the
aggregate stated amount of all Tranche C Letters of
Credit that such
Fronting Bank agrees to issue hereunder, as modified from
time to time pursuant
to agreement among such Fronting Bank, the Borrowers
and the Agent.
"TRANCHE C LC OUTSTANDINGS" shall mean, on any date of
determination,
the sum of (i) the
undrawn stated amounts of all Tranche C Letters of
Credit that are
outstanding on such date and (ii) the aggregate principal
amount of all unpaid
reimbursement obligations of the Borrowers on such
date with respect to
payments made by the Fronting Banks under Tranche C
Letters of Credit
(excluding reimbursement obligations that have been
repaid with the
proceeds of any Loan). A Lender's "Tranche C LC
Outstandings" shall
mean such Lender's participation interest in undrawn
Tranche C Letters of
Credit and its Percentage of all unpaid reimbursement
obligations in respect
of the Tranche C Letters of Credit.
"TRANCHE C LETTER OF CREDIT" shall mean a letter of credit that
is
issued by a Fronting
Bank pursuant to a Request for Issuance specifying
that such letter of
credit is to use the Tranche C Commitments, as such
letter of credit may
from time to time be amended, modified or extended in
accordance with the
terms of this Agreement.
"TRANCHE C LOAN" shall mean a revolving loan made pursuant to
Section
2.02(a)(iii), whether
made as a Eurodollar Loan or as an ABR Loan.
"TRANCHE C OUTSTANDING CREDITS" of any Lender shall mean, on any
date
of determination, an
amount equal to (i) the aggregate principal amount of
all outstanding
Tranche C Loans made by such Lender plus (ii) such Lender's
Tranche C LC
Outstandings on such date.
"TXU" shall mean TXU Corp., a Texas corporation, and its
successors.
"TXU FUEL" shall mean TXU Fuel Company, a Texas corporation, and
its
successors.
<PAGE>
20
"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 any Borrower's audited
financial statements referred to in Section
3.05.
<PAGE>
21
ARTICLE II
THE CREDITS
SECTION 2.01.
COMMITMENTS.
(a) Subject to the terms and
conditions and relying upon the representa-
tions and warranties herein set forth, each
Lender and each Fronting Bank (as
applicable) agrees, severally and not
jointly, as follows: (i) each Lender
agrees to make Tranche A Loans to any
Borrower at any time and from time to time
until the Tranche A Commitment Termination
Date up to the amount of such
Lender's Tranche A Available Commitment,
each Fronting Bank agrees to issue
Tranche A Letters of Credit for the account
of any Borrower at any time and from
time to time until the fifth Business Day
preceding the Tranche A Commitment
Termination Date in an aggregate stated
amount at any time outstanding not to
exceed such Fronting Bank's Tranche A LC
Fronting Bank Commitment, and each
Lender agrees to purchase participations in
such Letters of Credit as more fully
set forth in Section 2.17; (ii) each Lender
agrees to make Tranche B Loans to
any Borrower at any time and from time to
time until the Tranche B Commitment
Termination Date up to the amount of such
Lender's Tranche B Available
Commitment, each Fronting Bank agrees to
issue Tranche B Letters of Credit for
the account of any Borrower at any time and
from time to time until the fifth
Business Day preceding the Tranche B
Commitment Termination Date in an aggregate
stated amount at any time outstanding not
to exceed such Fronting Bank's Tranche
B LC Fronting Bank Commitment, and each
Lender agrees to purchase participations
in such Letters of Credit as more fully set
forth in Section 2.17; and (iii)
each Lender agrees to make Tranche C Loans
to any Borrower at any time and from
time to time until the Tranche C Commitment
Termination Date up to the amount of
such Lender's Tranche C Available
Commitment, each Fronting Bank agrees to issue
Tranche C Letters of Credit for the account
of any Borrower at any time and from
time to time until the fifth Business Day
preceding the Tranche C Available
Commitment Date in an aggregate stated
amount at any time outstanding not to
exceed such Fronting Bank's Tranche C LC
Fronting Bank Commitment, and each
Lender agrees to purchase participations in
such Letters of Credit as more fully
set forth in Section 2.17. Notwithstanding
the foregoing, at no time shall (A)
the Outstanding Credits for any Tranche
exceed the aggregate amount of the
Lenders' Commitments for such Tranche, (B)
any Lender's Outstanding Credits for
any Tranche exceed the amount of such
Lender's Commitment for such Tranche, (C)
any Fronting Bank make any Extension of
Credit relating to a Letter of Credit if
such Extension of Credit would cause (x)
the aggregate amount of Outstanding
Credits for any Tranche to exceed the
aggregate amount of the Lenders'
Commitments for such Tranche, or (y) the
aggregate LC Outstandings for such
Tranche relating to such Fronting Bank to
exceed such Fronting Bank's LC
Fronting Bank Commitment for such Tranche
and (D) any Extension of Credit be
made to Delivery if such Extension of
Credit would cause the amount of
Outstanding Credits to Delivery to exceed
$2,800,000,000.
(b) Within the foregoing limits, the
Borrowers may borrow, pay or prepay
Loans of any Tranche and request new
Extensions of Credit of any Tranche on and
after the date hereof and prior to the
Applicable Commitment Termination Date
subject to the terms, conditions and
limitations set forth herein.
<PAGE>
22
SECTION 2.02.
LOANS.
(a) Each (i) Tranche A Loan shall be
made as part of a Borrowing consisting
of Tranche A Loans made by the Lenders
ratably in accordance with their
respective Tranche A Commitments, (ii)
Tranche B Loan shall be made as part of a
Borrowing consisting of Tranche B Loans
made by the Lenders ratably in
accordance with their respective Tranche B
Commitments and (iii) Tranche C Loan
shall be made as part of a Borrowing
consisting of Tranche C Loans made by the
Lenders ratably in accordance with their
respective Tranche C 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 Available
Commitments).
(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
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
subsection (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 2.12. 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
subsection (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.
<PAGE>
23
Any Borrowing or part thereof so refinanced
shall be deemed to be repaid or
prepaid in accordance with Section 2.05 or
2.09, 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 subsection (c)
above.
SECTION 2.03.
BORROWING PROCEDURE.
In order to request a
Borrowing, a Borrower shall hand deliver or send via
facsimile to the Agent a duly completed
Borrowing Request (i) 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
(ii) 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 (A)
whether the Borrowing then being requested
is to be a Eurodollar Borrowing or an
ABR Borrowing, (B) the Tranche of such
Borrowing, (C) the date of such Borrowing
(which shall be a Business Day) and the
amount thereof, and (D) if such
Borrowing is to be a Eurodollar Borrowing,
the Interest Period with respect
thereto, which shall not end after the
Applicable Commitment Termination Date.
If no election as to the Type of Borrowing
is specified in any such notice, then
the requested Borrowing shall be deemed an
ABR 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 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 Applicable Commitment
Termination Date. The Agent shall promptly
advise the Lenders of any notice given
pursuant to this Section and of each
Lender's portion of the requested
Borrowing.
SECTION 2.04.
FEES.
(a) Energy 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
June 30, 2005) 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 Commitment of such Lender
(without regard to usage) during the
preceding quarter (or other period
commencing on the date of this Agreement or
ending on the Applicable Commitment
Termination Date or any date on which the
Commitment of such Lender shall be
terminated).
(b) All Facility Fees shall be
computed on the basis of the actual number
of days elapsed in a year of 360 days. The
Facility Fees 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 such
Lender's Commitment, as provided
herein.
<PAGE>
24
(c) Energy agrees to pay the Agent the
fees from time to time payable to it
in its capacity as Agent pursuant to the
Letter Agreements (the "ADMINISTRATIVE
FEES").
(d) Each Borrower for the account of
which a Letter of Credit is issued
agrees to pay the Agent, for the account of
the Fronting Bank that issued such
Letter of Credit, a fronting fee equal to
0.125% of the stated amount of such
Letter of Credit (a "FRONTING FEE") and
such other charges with respect to such
Letter of Credit as are agreed upon with
such Fronting Bank and as are
customary. Each Borrower for the account of
which a Letter of Credit is issued
agrees to pay to the Agent for the account
of the Lenders a fee (the "LC FEE")
on the face amount of each Letter of Credit
issued by any Fronting Bank for the
account of such Borrower, calculated at a
rate per annum equal to the Applicable
Margin for Eurodollar Loans (regardless of
whether any such Loans are then
outstanding). All Fronting Fees and LC Fees
shall be computed on the basis of
the actual number of days that each such
Letter of Credit is outstanding,
assuming a year of 360 days, payable in
arrears on each March 31, June 30,
September 30 and December 31, and on the
date that such Letter of Credit expires
or is drawn in full.
(e) All Fees shall be paid on the
dates due, in immediately available
funds, to the Agent for distribution, if
and as appropriate, among the Lenders.
Once paid, none of the Fees shall be
refundable under any circumstances.
SECTION 2.05.
REPAYMENT OF LOANS; EVIDENCE OF INDEBTEDNESS.
(a) The outstanding principal balance
of each (i) Eurodollar Loan shall be
due and payable on the last day of the
Interest Period applicable thereto and on
the Applicable Commitment Termination Date
and (ii) ABR Loan shall be due and
payable on the Applicable Commitment
Termination 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 Extension of Credit 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 of each Extension of Credit made
hereunder, the Type of each Loan made
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 subsections (b)
and (c) above 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 Outstanding
Credits in accordance with their terms.
<PAGE>
25
SECTION 2.06. INTEREST
ON LOANS.
(a) 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
for Eurodollar Borrowings.
(b) 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 for ABR
Borrowings.
(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 JPMorgan
Chase, and such determination shall be
conclusive absent manifest error;
provided that JPMorgan Chase shall, upon
request, provide to the applicable
Borrower a certificate setting forth in
reasonable detail the basis for such
determination.
SECTION 2.07.
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 facsimile 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
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 2.08.
TERMINATION AND REDUCTION OF COMMITMENTS.
(a) The Tranche A Commitments shall be
terminated automatically on the
Tranche A Commitment Termination Date, the
Tranche B Commitments shall be
<PAGE>
26
terminated automatically on the Tranche B
Commitment Termination Date, and the
Tranche C Commitments shall be terminated
automatically on the Tranche C
Commitment Termination Date.
(b) Upon at least two Business Days'
prior irrevocable written notice to
the Agent, the Borrowers, acting jointly,
may, without premium or penalty, at
any time in whole permanently terminate, or
from time to time in part
permanently reduce, the Tranche A
Commitments, Tranche B Commitments or Tranche
C Commitments; provided, however, that (i)
each partial reduction of the
Commitments for any Tranche 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 Commitments for any Tranche to an
amount less than (1) the aggregate amount
of Outstanding Credits for such
Tranche on the date of such termination or
reduction (after giving effect to any
prepayment made pursuant to Section 2.09)
or (2) $50,000,000, unless the result
of such termination or reduction referred
to in this clause (2) is to reduce the
Commitments for such Tranche to $0. The
Agent shall advise the Lenders of any
notice given pursuant to this subsection
(b) and of each Lender's portion of any
such termination or reduction of the
Tranche A Commitments, Tranche B
Commitments or Tranche C Commitments.
(c) Each reduction in the Commitments
for any Tranche shall be made ratably
among the Lenders in accordance with their
respective Commitments for such
Tranche. Energy shall pay to the Agent for
the account of the Lenders, on the
date of each termination or reduction of
the Commitments, the Facility Fee on
the amount of the Commitments so terminated
or reduced, in each case accrued
through the date of such termination or
reduction.
(d) Upon at least one Business Day's
prior written notice to the Agent, any
Borrower may at any time terminate the
Commitment available to it, without
premium or penalty (other than as described
in Section 8.05(b)(ii)), on the date
of such termination, provided that (i) all
Advances made to such Borrower shall
have been repaid or prepaid in full, all
Letters of Credit issued for the
account of such Borrower shall have been
cancelled and terminated and all
amounts due and owing by such Borrower
hereunder shall have been paid in full
and (ii) any and all obligations of such
Borrower that survive such termination
shall be assumed by the remaining Borrower.
On and as of the date of termination
of the Commitment available to any Borrower
pursuant to this subsection (d),
such Borrower shall be deemed no longer to
be a party to this Agreement and
shall have no continuing rights or
obligations hereunder and all references
herein to the Borrowers shall be deemed to
be a reference to the remaining
Borrower.
SECTION 2.09.
PREPAYMENT.
(a) 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 a written notice
substantially in the form of Exhibit D (a
"PREPAYMENT NOTICE") via facsimile (or
telephone notice promptly confirmed by
facsimile) 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.
<PAGE>
27
(b) Each Prepayment Notice 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 shall be
subject to Section 8.05 but otherwise
without premium or penalty. All prepayments
under this Section shall be
accompanied by accrued interest on the
principal amount being prepaid to the
date of payment.
SECTION 2.10. 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 or any
Fronting Bank hereunder (except for changes
in respect of taxes on the overall
net income of such Lender or such Fronting
Bank (as the case may be) or its
lending office imposed by the jurisdiction
in which such Lender's or such
Fronting Bank's (as the case may be)
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 such Fronting Bank (as the case may be)
or shall result in the imposition on
any Lender, any Fronting Bank or the London
interbank market of any other
condition affecting this Agreement, such
Lender's Commitment or any Extension of
Credit (other than an ABR Loan) made by
such Lender or such Fronting Bank, and
the result of any of the foregoing shall be
to increase the cost to such Lender
or such Fronting Bank (as the case may be)
of making or maintaining any
Outstanding Credit (other than an ABR Loan)
or to reduce the amount of any sum
received or receivable by such Lender or
such Fronting Bank (as the case may be)
hereunder (whether of principal, interest
or otherwise) by an amount deemed by
such Lender or such Fronting Bank (as the
case may be) to be material, then the
applicable Borrower or, if the foregoing
circumstances do not relate to a
particular Borrowing, Energy shall, upon
receipt of the notice and certificate
provided for in subsection (c) below
promptly pay to such Lender or such
Fronting Bank (as the case may be) such
additional amount or amounts as will
compensate such Lender or such Fronting
Bank (as the case may be) for such
additional costs incurred or reduction
suffered.
(b) If any Lender or Fronting Bank
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 Fronting Bank (or any
lending office of such Lender or such
Fronting Bank) or any Lender's or any
Fronting Bank's holding company with any
request or directive regarding capital
adequacy (whether or not having the force
of law) of any such authority, central
bank or comparable agency, has or would
have the effect of reducing the rate of
return on such Lender's or such Fronting
Bank's (as the case may be) capital or
on the capital of such Lender's or such
Fronting Bank's (as the case may be)
holding company, if any, as a consequence
of this Agreement, such Lender's
Commitment or the Extensions of Credit made
by such Lender or such Fronting Bank
<PAGE>
28
(as the case may be) pursuant hereto to a
level below that which such Lender or
such Fronting Bank (as the case may be) or
such Lender's or such Fronting Bank's
(as the case may be) holding company could
have achieved but for such adoption,
change or compliance (taking into
consideration such Lender's or such Fronting
Bank's (as the case may be) policies and
the policies of such Lender's or such
Fronting Bank's (as the case may be)
holding company with respect to capital
adequacy) by an amount deemed by such
Lender or such Fronting Bank (as the case
may be) to be material, then from time to
time such additional amount or amounts
as will compensate such Lender or such
Fronting Bank (as the case may be) for
any such reduction suffered will be paid to
such Lender or such Fronting Bank
(as the case may be) by the applicable
Borrower or, if the foregoing
circumstances do not relate to a particular
Borrower, by Energy. It is
acknowledged that this Agreement is being
entered into by the Lenders and the
Fronting Banks on the understanding that
neither the Lenders nor the Fronting
Banks will be required to maintain capital
against their Commitments or
agreements to issue Letters of Credit, as
the case may be, under currently
applicable laws, regulations and regulatory
guidelines. In the event the Lenders
or any Fronting Bank shall otherwise
determine that such understanding is
incorrect, it is agreed that the Lenders or
the Fronting Banks, as the case may
be, will be entitled to make claims under
this subsection (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 or
the applicable Fronting Bank setting
forth such amount or amounts as shall be
necessary to compensate such Lender or
such Fronting Bank (as the case may be) or
its holding company as specified in
subsection (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
or Fronting Bank (as the case may be)
the amount shown as due on any such
certificate delivered by it within 10 days
after its receipt of the same. Each Lender
and each Fronting Bank 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 or such Fronting
Bank to give such notice shall not
constitute a waiver of such Lender's or
such Fronting Bank's (as the case may
be) right to demand compensation
hereunder.
(d) Failure on the part of any Lender
or Fronting Bank 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 or
such Fronting Bank's (as the case
may be) right to demand compensation with
respect to such period or any other
period; provided, however, that no Lender
or Fronting Bank shall be entitled to
compensation under this Section 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 subsection
(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 and each Fronting
Bank 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.
<PAGE>
29
(e) Each Lender and each Fronting Bank
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 or such Fronting Bank (as the
case may be), be disadvantageous to
such Lender or such Fronting Bank (as the
case may be).
SECTION 2.11. 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
subsection (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, 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 2.12. PRO RATA
TREATMENT.
Except as required
under Sections 2.10 and 2.15, each Extension of Credit,
each payment or prepayment of principal
of
