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<PAGE>
Exhibit 10a
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TXU ENERGY COMPANY LLC
TXU ELECTRIC DELIVERY COMPANY,
as Borrowers
------------------------------------------
$2,500,000,000
REVOLVING CREDIT AGREEMENT
Dated as of June 24, 2004
------------------------------------------
JPMORGAN CHASE BANK,
as Administrative Agent
JPMORGAN CHASE BANK ,
CITIBANK, N.A.,
as Fronting Banks
--------------------------------------------------------------------------------
J. P. MORGAN SECURITIES, INC.
CITIGROUP GLOBAL MARKETS INC.
Joint Lead Arrangers and Bookrunners
CITIBANK, N.A.
Syndication Agent
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TABLE OF CONTENTS
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Article I DEFINITIONS; CONSTRUCTION
..............................................................................1
Section 1.01. Defined Terms.
............................................................................1
Section 1.02. Terms Generally.
.........................................................................21
Article II THE CREDITS
..........................................................................................22
Section 2.01. Commitments.
.............................................................................22
Section 2.02. Loans.
...................................................................................23
Section 2.03. Borrowing Procedure.
.....................................................................24
Section 2.04. Fees.
....................................................................................24
Section 2.05. Repayment of Loans; Evidence of Indebtedness.
............................................25
Section 2.06. Term Loan.
...............................................................................26
Section 2.07. Interest on Loans.
.......................................................................26
Section 2.08. Alternate Rate of Interest.
..............................................................27
Section 2.09. Termination and Reduction of Commitments.
................................................27
Section 2.10. Prepayment.
..............................................................................28
Section 2.11. Reserve Requirements; Change in Circumstances.
...........................................28
Section 2.12. Change in Legality.
......................................................................30
Section 2.13. Pro Rata Treatment.
......................................................................31
Section 2.14. Sharing of Setoffs.
......................................................................31
Section 2.15. Payments.
................................................................................32
Section 2.16. Taxes.
...................................................................................32
Section 2.17. Assignment of Commitments Under Certain
Circumstances. ...................................35
Section 2.18. Letters of Credit.
.......................................................................35
Article III REPRESENTATIONS AND WARRANTIES
......................................................................39
Section 3.01. Organization; Powers.
....................................................................39
Section 3.02. Authorization.
..........................................................................
40
Section 3.03. Enforceability.
..........................................................................40
Section 3.04. Governmental Approvals.
..................................................................40
Section 3.05. Financial Statements.
...................................................................
40
Section 3.06. Litigation.
..............................................................................41
Section 3.07. Federal Reserve Regulations.
.............................................................41
Section 3.08. Investment Company Act; Public Utility Holding
Company Act. ............................. 41
Section 3.09. No Material Misstatements.
...............................................................41
Section 3.10. Taxes.
...................................................................................41
Section 3.11. Employee Benefit Plans.
..................................................................42
Section 3.12. Significant Subsidiaries.
................................................................42
Section 3.13. Environmental Matters.
...................................................................42
Section 3.14. Solvency.
................................................................................43
Article IV CONDITIONS
...........................................................................................43
Section 4.01. Initial Extensions of Credit.
............................................................43
Section 4.02. Conditions for All Extensions of Credit.
.................................................44
Article V COVENANTS
.............................................................................................45
Section 5.01. Existence.
...............................................................................45
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Section 5.02. Compliance With Laws; Business and Properties.
...........................................45
Section 5.03. Financial Statements, Reports, Etc.
......................................................46
Section 5.04. Insurance.
...............................................................................47
Section 5.05. Taxes, Etc.
..............................................................................47
Section 5.06. Maintaining Records; Access to Properties and
Inspections. ...............................47
Section 5.07. ERISA.
...................................................................................48
Section 5.08. Use of Proceeds.
.........................................................................48
Section 5.09. Consolidations, Mergers, Sales and Acquisitions of
Assets and
Investments in
Subsidiaries........................................................................48
Section 5.10. Limitations on Liens.
....................................................................49
Section 5.11. Fixed Charge Coverage Ratio.
.............................................................51
Section 5.12. Debt to Total Capitalization Ratio.
......................................................51
Section 5.13. Restrictive Agreements.
..................................................................51
Article VI EVENTS OF DEFAULT
....................................................................................52
Article VII THE AGENT
...........................................................................................55
Article VIII MISCELLANEOUS
......................................................................................57
Section 8.01. Notices.
.................................................................................57
Section 8.02. Survival of Agreement.
...................................................................57
Section 8.03. Binding Effect.
..........................................................................58
Section 8.04. Successors and Assigns.
..................................................................58
Section 8.05. Expenses; Indemnity.
.....................................................................61
Section 8.06. Right of Setoff.
........................................................................
63
Section 8.07. Applicable Law.
.........................................................................
63
Section 8.08. Waivers; Amendment.
......................................................................63
Section 8.09. Entire Agreement.
........................................................................64
Section 8.10. Severability.
............................................................................64
Section 8.11. Counterparts.
............................................................................64
Section 8.12. Headings.
................................................................................64
Section 8.13. Interest Rate Limitation.
................................................................65
Section 8.14. Jurisdiction; Venue.
.....................................................................65
Section 8.15. Confidentiality.
........................................................................
66
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2
EXHIBITS AND SCHEDULES
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Exhibit A - Form of Assignment and Acceptance
Exhibit B - Form of Borrowing Request
Exhibit C - Form of Prepayment Notice
Exhibit D-1 - Form of Request for Issuance (JPMorgan Chase
Bank)
Exhibit D-2 - Form of Request for Issuance (Citibank, N.A.)
Exhibit E - Form of Notice of Interest Period
Schedule 2.01 - Commitments
Schedule 2.18(i) - Fronting Bank LC Limits
Schedule 5.13 - Restrictive Agreements
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<PAGE>
REVOLVING CREDIT AGREEMENT (this "Agreement"), dated as of
June 24, 2004, among TXU Energy Company LLC, a Delaware
limited liability company ("Energy"), TXU Electric Delivery
Company (formerly known as Oncor 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 ("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., as a fronting
bank for letters of credit issued hereunder.
The Borrowers have requested that the Lenders and the Fronting
Banks
provide the credit facility hereinafter described in the amounts
and on the
terms and conditions set forth herein, the Lenders and the
Fronting Banks have
so agreed on the terms and conditions set forth herein, and the
Agent has agreed
to act as agent for the Lenders, on such terms and
conditions;
Accordingly, the parties hereto agree as follows:
Article I
DEFINITIONS; CONSTRUCTION
Section 1.01. Defined Terms.
As used in this Agreement, the following terms shall have the
meanings
specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR
Loans.
"ABR Loan" shall mean any Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance
with
the provisions of Article II or any Eurodollar Loan converted
(pursuant
to Section 2.03, 2.08 or 2.12(a)(ii)) to a loan bearing interest
at a
rate determined by reference to the Alternate Base Rate.
"Acquisition Date" shall mean the date as of which a person
or
group of related persons first acquires more than 30% of any
outstanding class of Voting Shares of TXU (within the meaning
of
Section 13(d) or 14(d) of the Exchange Act, and the applicable
rules
and regulations thereunder).
"Administrative Fees" shall have the meaning assigned to
such
term in Section 2.04(d).
"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.
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2
"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, as applicable, the Tranche A
Applicable Margin or the Multi-Year Applicable Margin.
"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.
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3
=============================================================================
S&P Debt Rating
Moody's Debt Rating Applicable Rating Level
-----------------------------------------------------------------------------
A- or better 1
A3 or better
-----------------------------------------------------------------------------
BBB+ 2
Baa1
-----------------------------------------------------------------------------
BBB 3
Baa2
-----------------------------------------------------------------------------
BBB- 4
Baa3
-----------------------------------------------------------------------------
Below BBB-* 5
Below Baa3*
=============================================================================
* or unrated
"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,
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.
"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
<PAGE>
4
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.
"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, 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 TXU's
4+4 performance improvement program, 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,
<PAGE>
5
(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".
"Consolidated Shareholders' Equity" shall mean, for any
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 TXU's
4+4
performance improvement program, 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, (ii)
Consolidated Senior Debt of such Borrower and (iii) in the case
of
Energy, the aggregate outstanding amount of Preferred
Membership
Interests.
<PAGE>
6
"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.
"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 a Borrower or a
Consolidated
Subsidiary of a Borrower, (ii) that are not subject to
mandatory
redemption or the underlying securities, if any, of which are
not
subject to mandatory redemption, (iii) that are perpetual or
mature no
less than 30 years from the date of issuance, (iv) the
indebtedness
issued in connection with which, including any guaranty, is
subordinate
in right of payment to the unsecured and unsubordinated
indebtedness of
the issuer of such indebtedness or guaranty, and (v) the terms
of which
permit the deferral of the payment of interest or distributions
thereon
to a date occurring after the 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.
<PAGE>
7
"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
(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 mean any Tranche A Facility Fee or
Multi-Year Facility Fee.
"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.
<PAGE>
8
"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.
"Fronting Banks" shall mean (i) JPMorgan Chase Bank,
Citibank,
N.A. 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(e).
"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) and (B) amounts payable from
one
Borrower to the other in connection with nuclear decommissioning
costs,
retail clawback or other regulatory transition issues.
<PAGE>
9
"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;
provided further that, in the case of any Tranche A Borrowing
that
consists of any Eurodollar Borrowing made during the 30-day
period
ending on the Tranche A Commitment Termination Date, such period
also
may end on the Tranche A Commitment Termination Date, 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 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(e).
"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 2.18(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.
<PAGE>
10
"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).
"Lenders" shall have the meaning given such term in the
preamble hereto.
"Letter Agreements" shall mean (i) the Commitment Letter,
dated May 27, 2004, among the Borrowers, J.P. Morgan Securities,
Inc.,
JPMorgan Chase, Citigroup Global Markets Inc. and Citibank, N.A.
and
(ii) the Fee Letter, dated May 27, 2004, 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.
<PAGE>
11
"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.
"Moody's" shall mean Moody's Investors Service, Inc.
"Multi-Year Applicable Margin" shall mean, for any Type of
Tranche B Loan or Tranche C 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 the
time of determination. The Multi-Year Applicable Margins set
forth
below with respect to each Applicable Rating Level shall be
increased
(i) with respect to Tranche B Loans, by the percentage set forth
below
in the row designated "Utilization Fee" during any period (and
for only
such period) in which Tranche B Outstanding Credits are at least
33 1/3
% of the aggregate amount of the Tranche B Commitments and (ii)
with
respect to Tranche C Loans, by the percentage set forth below in
the
row designated "Utilization Fee" during any period (and for only
such
period) in which Tranche C Outstanding Credits are at least 33
1/3 % of
the aggregate amount of the Tranche C Commitments. At any time
an Event
of Default has occurred and is continuing, the Multi-Year
Applicable
Margins set forth below shall be increased for each Applicable
Rating
Level by 2.00%.
<TABLE>
<CAPTION>
================================================================================================================
<S> <C> <C> <C> <C> <C>
Applicable
Rating Level 1 Level 2 Level 3 Level 4 Level 5
------- ------- ------- ------- -------
Level
----------------------------------------------------------------------------------------------------------------
Percentage Per Annum
----------------------------------------------------------------------------------------------------------------
Eurodollar Loan 0.500% 0.700% 0.825% 0.925% 1.100%
----------------------------------------------------------------------------------------------------------------
ABR Loan 0% 0% 0% 0% 0%
----------------------------------------------------------------------------------------------------------------
Utilization Fee 0.125% 0.125% 0.125% 0.125% 0.500%
================================================================================================================
</TABLE>
"Multi-Year Facility Fee" shall have the meaning assigned to
such term in Section 2.04(b).
"Multi-Year 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. Any change in the Multi-Year Facility
Fee
Percentage shall be effective on the date on which the
applicable
rating agency announces any change in the applicable Debt
Rating.
<PAGE>
<TABLE>
<CAPTION>
12
=================================================================================================================
<S> <C> <C> <C> <C> <C>
Applicable
Rating Level Level 1 Level 2 Level 3 Level 4 Level 5
------- ------- ------- ------- -------
-----------------------------------------------------------------------------------------------------------------
Percentage Per annum
=================================================================================================================
Facility Fee 0.125% 0.150% 0.175% 0.200% 0.400%
=================================================================================================================
</TABLE>
"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 Agreements" shall mean, collectively, (i) that
certain Revolving Credit Agreement, dated as of April 22, 2003,
as
amended, among the Borrowers, as borrowers, the lenders party
thereto,
JPMorgan Chase, as administrative agent, and JPMorgan Chase, as
a
fronting bank, (ii) that certain Five-Year Third Amended and
Restated
Competitive Advance and Revolving Credit Facility Agreement,
dated as
of July 31, 2002, as amended, among Holdings, the lenders party
thereto
and JPMorgan Chase, as competitive advance facility agent,
as
administrative agent and as fronting bank, and (iii) that
certain
Three-Year Amended and Restated Revolving Credit Agreement,
dated as of
April 22, 2003, as amended, among Holdings, TXU, as exiting
borrower,
the lenders party thereto and Citibank, N.A., as administrative
agent.
"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.
<PAGE>
13
"Permitted Encumbrances" shall mean, as to any person at any
date, any of the following:
(a) (i) Liens for taxes, assessments or governmental charges
not then delinquent and Liens for workers' compensation awards
and
similar obligations not then delinquent and undetermined Liens
or
charges incidental to construction, Liens for taxes, assessments
or
governmental charges then delinquent but the validity of which
is being
contested at the time by such person in good faith against which
an
adequate reserve has been established, with respect to which
levy and
execution thereon have been stayed and continue to be stayed and
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;
<PAGE>
14
(f) rights reserved to or vested in any municipality or
public authority to use, control or regulate any property of
such
person;
(g) any obligations or duties, affecting the property of
such person, to any municipality or public authority with
respect to
any franchise, grant, license or permit;
(h) as of any particular time any controls, Liens,
restrictions, regulations, easements, exceptions or reservations
of any
municipality or public authority applying particularly to
space
satellites or nuclear fuel;
(i) any judgment Lien against such person securing a
judgment
for an amount not exceeding 25% of Consolidated Shareholders'
Equity
of 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.
<PAGE>
15
"Prepayment Notice" shall mean a notice of prepayment made
pursuant to Section 2.10(a), substantially in the form of
Exhibit C.
"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 or (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).
"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 2.18(a), in a form
substantially
similar to Exhibit D-1, if JPMorgan Chase is the applicable
Fronting
Bank, D-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.
<PAGE>
16
"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.
"Significant Disposition" shall mean a sale, lease,
disposition or other transfer by a Borrower, or any Subsidiary
of a
Borrower, during any 12-month period, of assets constituting,
either
individually or in the aggregate with all other assets sold,
leased,
disposed or otherwise transferred by such Borrower or any
Subsidiary
thereof during such period, 10% or more of the assets of such
Borrower
and its Subsidiaries taken as a whole, excluding any such sale,
lease,
disposition or other transfer to a Wholly Owned Subsidiary of
such
Borrower.
"Significant Subsidiary" shall mean, with respect to any
Borrower at any time, any Subsidiary of such Borrower that as of
such
time has total assets in excess of 10% of the total assets of
such
Borrower and its Consolidated Subsidiaries.
"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 any Qualified Transition Bond Issuer of any
Borrower
shall not be deemed a Subsidiary of such 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.
"Term Loan Conversion" shall have the meaning given such
term
in Section 2.06(a).
<PAGE>
17
"Term Loan Maturity Date" shall mean the date that is one
year
after the Tranche A Commitment Termination Date.
"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
$2,500,000,000.
"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 Applicable Margin" shall mean, for any Type of
Tranche A Loan made to any Borrower at any time, the percentage
per
annum set forth below corresponding to such Type of Tranche A
Loan in
the column under the Applicable Rating Level of such Borrower at
the
time of determination. The Tranche A Applicable Margins set
forth below
with respect to each Applicable Rating Level shall be increased
by the
percentage set forth below in the row designated "Utilization
Fee"
during any period (and for only such period) in which Tranche
A
Outstanding Credits are at least 33 1/3 % of the aggregate
amount of
the Tranche A Commitments. At any time an Event of Default has
occurred
and is continuing, the Tranche A Applicable Margins set forth
below
shall be increased for each Applicable Rating Level by 2.00%.
Upon the
occurrence of the Term Loan Conversion (if applicable), the
Tranche A
Applicable Margins for Eurodollar Loans with respect to each
Applicable
Rating Level set forth below shall be increased by 0.250%.
<TABLE>
<CAPTION>
==============================================================================================================
<S> <C> <C> <C> <C> <C>
Applicable
Rating Level Level 1 Level 2 Level 3 Level 4 Level 5
------- ------- ------- ------- -------
---------------------------------------------------------------------------------------------------------------
Percentage Per Annum
---------------------------------------------------------------------------------------------------------------
Eurodollar Loan 0.525% 0.725% 0.850% 0.950% 1.200%
---------------------------------------------------------------------------------------------------------------
ABR Loan 0% 0% 0% 0% 0%
---------------------------------------------------------------------------------------------------------------
Utilization Fee 0.125% 0.125% 0.125% 0.125% 0.500%
===============================================================================================================
</TABLE>
"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.
"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
<PAGE>
18
Credit, as such Tranche A Commitment may be permanently
terminated or
reduced from time to time pursuant to Section 2.09 or modified
from
time to time pursuant to Section 8.04. Subject to Section
2.06(b), 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 the date
that is 364 days after the date hereof.
"Tranche A Facility Fee" shall have the meaning assigned to
such term in Section 2.04(a).
"Tranche 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. Any change in the Tranche A Facility
Fee
Percentage shall be effective on the date on which the
applicable
rating agency announces any change in the applicable Debt
Rating.
<TABLE>
<CAPTION>
===================================================================================================================
<S> <C> <C> <C> <C> <C>
Applicable
Rating Level Level 1 Level 2 Level 3 Level 4 Level 5
------- ------- ------- ------- -------
--------------------------------------------------------------------------------------------------------------------
Percentage Per annum
====================================================================================================================
Facility Fee 0.100% 0.125% 0.150% 0.175% 0.300%
====================================================================================================================
</TABLE>
"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.
<PAGE>
19
"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.
"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 2.09 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 the date
that is three years after the date hereof.
"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.
<PAGE>
20
"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.
"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 2.09
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 the date
that is five years after the date hereof.
"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.
<PAGE>
21
"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.
"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>
22
Article II
THE CREDITS
Section 2.01. Commitments.
(a) Subject to the terms and conditions and relying upon the
representations 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
2.18; (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
2.18; 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 2.18. 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
$2,000,000,000.
(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>
23
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 2.13.
Unless the
Agent shall have received notice from a Lender prior to the date
of any
Borrowing that such Lender will not make available to the Agent
such
Lender's portion of such Borrowing, the Agent may assume that
such Lender
has made such portion available to the Agent on the date of such
Borrowing
in accordance with this 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. Any Borrowing or part
thereof so
<PAGE>
24
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
telecopy 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,
in the case of Tranche B Borrowings and Tranche C Borrowings, or
the Term Loan
Maturity Date, in the case of Tranche A Borrowings. If no
election as to the
Type of Borrowing is specified in any such notice, then the
requested Borrowing
shall be 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, in the case of Tranche B Borrowings
and Tranche C
Borrowings, or the Term Loan Maturity Date, in the case of
Tranche A Borrowings.
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 September 30, 2004) and on each date on which the Tranche
A Commitment of
such Lender shall be terminated or reduced as provided herein, a
facility fee (a
"Tranche A Facility Fee"), at a rate per annum equal to the
Tranche A Facility
Fee Percentage from time to time in effect on the Tranche A
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
Tranche A Commitment
Termination Date, Term Loan Maturity Date (if applicable) or any
date on which
the Tranche A Commitment of such Lender shall be
terminated).
(b) 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 September 30, 2004) and on each date on which the Tranche
B Commitment or
<PAGE>
25
Tranche C Commitment (as applicable) of such Lender shall be
terminated or
reduced as provided herein, a facility fee (a "Multi-Year
Facility Fee"), at a
rate per annum equal to the Multi-Year Facility Fee Percentage
from time to time
in effect on the Tranche B Commitment and Tranche C 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 Tranche B Commitment
or Tranche C
Commitment (as applicable) of such Lender shall be
terminated).
(c) 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 Tranche A
Commitment,
Tranche B Commitment, or Tranche C Commitment (as applicable) as
provided
herein.
(d) 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").
(e) 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 (i) the face amount of each Tranche A 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 Tranche A Eurodollar Loans (regardless
of whether any
such Tranche A Loans are then outstanding), and (ii) the face
amount of each
Tranche B Letter of Credit and each Tranche C Letter of Credit
issued by any
Fronting Bank for the account of such Borrower, calculated at a
rate per annum
equal to the Multi-Year Applicable Margin for Eurodollar Loans
(regardless of
whether any such Tranche B Loans or Tranche C Loans (as
applicable) 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.
(f) 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 Loan shall be due
and
payable on the last day of the Interest Period applicable
thereto and on the
Applicable Commitment Termination Date; provided, however, that
if the Term Loan
Conversion has occurred with respect to any Borrower, the
outstanding principal
balance of the Tranche A Loans outstanding to such Borrower on
the Tranche A
Commitment Termination Date shall be due and payable on the Term
Loan Maturity
Date.
<PAGE>
26
(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) of this Section 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.
Section 2.06. Term Loan.
(a) If (and only if) on the Tranche A Commitment Termination
Date no
Default or Event of Default has occurred and is continuing with
respect to a
Borrower, the date for repayment of any Tranche A Loans
outstanding to such
Borrower on such date automatically shall be extended to the
Term Loan Maturity
Date (the "Term Loan Conversion"). The applicable Borrower shall
submit to the
Agent, not later than 11:00 a.m., New York City time, three
Business Days before
the Tranche A Commitment Termination Date, a notice in the form
of Exhibit E
specifying the interest period relating to any Eurodollar
Borrowings outstanding
to such Borrower subject to the Term Loan Conversion.
(b) If the Term Loan Conversion has occurred with respect to
any
Borrower, the Tranche A Commitments with respect to such
Borrower shall
automatically be reduced on the Tranche A Commitment Termination
Date to an
amount equal to the aggregate principal amount of Tranche A
Loans outstanding to
such Borrower on such date, after giving effect to the Term Loan
Conversion. If,
on any day after the Tranche A Commitment Termination Date, the
aggregate
principal amount of the Tranche A Loans outstanding to any
Borrower on such
date shall be less than the Tranche A Commitments with respect
to such Borrower
on such date, then the Tranche A Commitments with respect to
such Borrower shall
be reduced to an amount equal to the principal amount of the
Tranche A Loans
outstanding to such Borrower on such date.
Section 2.07. 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 Tranche A Applicable Margin
or the Multi-Year
Applicable Margin (as applicable) from time to time in
effect.
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27
(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
Tranche A Applicable Margin or the Multi-Year Applicable Margin
(as applicable)
from time to time in effect.
(c) Interest on each Loan shall be payable on each Interest
Payment Date
applicable to such Loan except as otherwise provided in this
Agreement. The
applicable LIBO Rate or Alternate Base Rate for each Interest
Period or day
within an Interest Period, as the case may be, shall be
determined by 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 2.08. Alternate Rate of Interest.
In the event, and on each occasion, that on the day two Business
Days
prior to the commencement of any Interest Period for a
Eurodollar Borrowing the
Agent shall have determined (i) that dollar deposits in the
principal amounts of
the Eurodollar Loans comprising such Borrowing are not generally
available in
the London interbank market or (ii) that reasonable means do not
exist for
ascertaining the LIBO Rate, the Agent shall, as soon as
practicable thereafter,
give telecopy notice of such determination to the Borrowers and
the Lenders. In
the event of any such determination under clause (i) or (ii)
above, until the
Agent shall have advised the Borrowers and the Lenders that the
circumstances
giving rise to such notice no longer exist, any request by a
Borrower for a
Eurodollar Borrowing pursuant to Section 2.03 shall be deemed to
be a request
for an ABR Borrowing. In the event the Required Lenders notify
the Agent that
the rates at which dollar deposits are being offered will not
adequately and
fairly reflect the cost to such Lenders of making or maintaining
Eurodollar
Loans during such Interest Period, the Agent shall notify the
applicable
Borrower of such notice and until the Required Lenders shall
have advised the
Agent that the circumstances giving rise to such notice no
longer exist, any
request by such Borrower for a Eurodollar Borrowing shall be
deemed a request
for an ABR Borrowing. Each determination by the Agent hereunder
shall be made in
good faith and shall be conclusive absent manifest error;
provided that the
Agent, shall, upon request, provide to the applicable Borrower a
certificate
setting forth in reasonable detail the basis for such
determination.
Section 2.09. Termination and Reduction of Commitments.
(a) The Tranche A Commitments, subject to Section 2.06(b), shall
be
terminated automatically on the Tranche A Commitment Termination
Date, the
Tranche B Commitments shall be 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.
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28
(b) Upon at least two Business Days' prior irrevocable written
notice
to the Agent, the Borrowers, acting jointly, may at any time in
whole
permanently terminate, or from time to time in part permanently
reduce, the
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 (i) the Tranche A
Commitments, the
Tranche A Facility Fees on the amount of the Tranche A
Commitments so terminated
or reduced and (ii) the Tranche B Commitments or the Tranche C
Commitments, the
Multi-Year Facility Fee on the amount of the Tranche B
Commitments and Tranche C
Commitments so terminated or reduced, in each case accrued
through the date of
such termination or reduction.
Section 2.10. 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
Prepayment
Notice via telecopy (or telephone notice promptly confirmed by
telecopy) to the
Agent: (i) before 11:00 a.m., New York City time, three Business
Days prior to
prepayment, in the case of Eurodollar Loans, and (ii) before
11:00 a.m., New
York City time, one Business Day prior to prepayment, in the
case of ABR Loans;
provided, however, that each partial prepayment shall be in an
amount which is
an integral multiple of $10,000,000 and not less than
$10,000,000.
(b) 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 2.11. Reserve Requirements; Change in Circumstances.
(a) Notwithstanding any other provision herein, if after the
date of
this Agreement any change in applicable law or regulation or in
the
interpretation or administration thereof by any Governmental
Authority charged
with the interpretation or administration thereof (whether or
not having the
force of law) shall change the basis of taxation of payments to
any Lender 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
<PAGE>
29
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 Section 2.10(c), 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 Le
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