Exhibit 10(c)
CONFORMED COPY
AMENDMENT
TO CREDIT AGREEMENT
This AMENDMENT, dated as of February 23, 2001 (this "Amendment"), is made
to that certain FIVE-YEAR SECOND AMENDED AND RESTATED COMPETITIVE ADVANCE AND
REVOLVING CREDIT FACILITY AGREEMENT, dated as of February 25, 2000 (the "Credit
Agreement"), among TEXAS UTILITIES COMPANY, a Texas corporation doing business
as TXU Corp. ("TXU"); TXU ELECTRIC COMPANY, a Texas corporation and a wholly
owned subsidiary of TXU ("TXU Electric"), and TXU GAS COMPANY, a Texas
corporation and a wholly owned subsidiary of TXU ("TXU Gas" and, together with
TXU and TXU Electric, the "Borrowers", and each individually, a "Borrower"); the
Lenders party thereto (the "Lenders"); and THE CHASE MANHATTAN BANK ("Chase"),
as Competitive Advance Facility Agent (in such capacity, the "CAF Agent"), as
administrative agent for the Lenders (in such capacity, the "Administrative
Agent"; and, together with the CAF Agent, the "Agents") and as fronting bank for
the Letters of Credit issued thereunder (in such capacity, the "Fronting Bank").
PRELIMINARY STATEMENT:
The Borrowers, the Lenders, the Agents and the Fronting Bank previously
entered into the Credit Agreement. The Borrowers have requested that the
Lenders, the Agents and the Fronting Bank agree to the amendment of the Credit
Agreement as set forth herein and the Lenders, the Agents and the Fronting Bank
have agreed to such request, subject to the terms and conditions of this
Amendment. Therefore, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
SECTION 1. Definitions. Capitalized terms used but not defined herein have
the meanings assigned to such terms in the Credit Agreement.
SECTION 2. Amendments. Subject to the satisfaction of the conditions
precedent set forth in Section 3 hereof, the Credit Agreement is hereby amended
as follows:
(a) The definition of "Facility A Credit Agreement" set forth in Section
1.01 of the Credit Agreement is hereby amended and restated in its entirety to
read as follows:
"Facility A Credit Agreement" shall mean the 364-Day Competitive
Advance and Revolving Credit Facility Agreement, dated as of February 23,
2001, among the Borrowers and certain other parties named therein, as
amended, modified or supplemented from time to time.
2
(b) The definition of "LC Commitment Amount" set forth in Section 1.01 of
the Credit Agreement is hereby amended and restated in its entirety to read as
follows:
"LC Commitment Amount" shall mean $500,000,000.
(c) The definition of "U.K. Facility Agreement" set forth in Section 1.01
of the Credit Agreement is hereby amended and restated in its entirety to read
as follows:
"U.K. Facility Agreement" shall mean the Facilities Agreements, dated
August 23, 2000, with respect to a (Pounds)750 million term facility, a
(Pounds)325 million revolving credit facility and a (Pounds)300 million
revolving credit facility, among TXU Europe Limited, the lenders parties
thereto and certain other parties named therein, as amended, modified or
supplemented from time to time.
(d) Clause (iii) of Section 2.01 of the Credit Agreement is hereby amended
and restated in its entirety to read as follows:
(iii) unless and until the TXU Electric Approval Date shall have
occurred, at no time shall the sum of (x) the outstanding aggregate
principal amount of all Loans made to TXU Electric plus (y) the outstanding
aggregate principal amount of all "Loans" under and as defined in the
Facility A Credit Agreement made to TXU Electric plus (z) the aggregate
amount of LC Outstandings for the account of, or owing by, TXU Electric
exceed $2,000,000,000,
(e) Section 3.14 ("Year 2000 Compliance") and all references thereto are
deleted.
SECTION 3. Conditions of Effectiveness. Section 2 of this Amendment shall
become effective as of the date first set forth above (the "Amendment Date")
when each of the following conditions shall have been fulfilled:
(i) the Agents, the Fronting Bank, the Required Lenders and the
Borrowers shall each have executed and delivered to the Administrative
Agent a counterpart of this Amendment;
(ii) the following statements shall be true and correct and the
Administrative Agent shall have received a certificate of a duly authorized
officer of TXU, dated the Amendment Date and in sufficient copies for each
Lender, stating that:
(A) the representations and warranties of each Borrower set
forth in Section 4 hereof are true and correct on and as of the
Amendment Date as though made on and as of such date; and
3
(B) no event has occurred and is continuing that constitutes a
Default or an Event of Default;
(iii) the Administrative Agent shall have received the following,
each dated the Amendment Date, in form and substance satisfactory to the
Administrative Agent and in sufficient copies for each Lender:
(A) certified copies of the resolutions of the Board of
Directors of each of the Borrowers approving the execution and
delivery by such Borrower of this Amendment and the performance by
such Borrower of its obligations under the Credit Agreement as amended
hereby, and of all documents evidencing other necessary corporate
action with respect to the execution and delivery by such Borrower of
this Amendment and the performance by such Borrower of its obligations
under the Credit Agreement as amended hereby;
(B) a certificate of the Secretary or an Assistant Secretary of
each of the Borrowers certifying:
(1) the names, true signatures and incumbency of the
officers of such Borrower authorized to sign this Amendment; and
(2) that neither the certificate of incorporation (or
comparable charter document) nor the bylaws of such Borrower have
been amended, supplemented or otherwise modified since February
25, 2000 or, if either such document has been amended,
supplemented or modified since such date, that attached thereto
is a true, correct and complete copy of such document as of the
Amendment Date;
(C) a certificate of a Responsible Officer of each Borrower
certifying that all actions, consents, authorizations or approvals of,
registrations or filings with, or other actions by, any Governmental
Authority required in connection with the execution and delivery by
such Borrower of this Amendment and the performance by such Borrower
of its obligations under the Credit Agreement as amended hereby have
been obtained and are in full force and effect and that a true,
correct and complete copy of each such consent, authorization,
approval and filing is attached thereto;
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(D) favorable opinions of counsel for the Borrowers as to such
matters as the Administrative Agent may reasonably request; and
(E) such other approvals, opinions and documents as any Lender,
through the Administrative Agent, may reasonably request.
SECTION 4. Representations and Warranties. Each Borrower represents and
warrants that (a) the representations and warranties contained in Article III of
the Credit Agreement (with each reference therein to "this Agreement",
"hereunder" and words of like import referring to the Credit Agreement being
deemed to be a reference to this Amendment and the Credit Agreement as amended
hereby) are true and correct on and as of the Amendment Date as though made on
and as of such date, and (b) no event has occurred and is continuing, or would
result from the execution and delivery of this Amendment, that constitutes a
Default or an Event of Default.
SECTION 5. Effect on the Credit Agreement. Except as specifically provided
above, the Credit Agreement shall continue to be in full force and effect and is
hereby in all respects ratified and confirmed. The execution, delivery and
effectiveness of this Amendment shall not, except as expressly provided herein,
operate as a waiver of any right, power or remedy of the Lenders, the Agents or
the Fronting Bank under the Credit Agreement, nor constitute a waiver of any
provision of the Credit Agreement.
SECTION 6. Costs, Expenses and Taxes. The Borrowers agree jointly and
severally to pay on demand all costs and expenses of the Administrative Agent in
connection with the preparation, execution and delivery of this Amendment and
the other instruments and documents to be delivered hereunder, including,
without limitation, the reasonable fees and out-of-pocket expenses of counsel
for the Administrative Agent with respect thereto, and all costs and expenses
(including, without limitation, counsel fees and expenses), if any, in
connection with the enforcement (whether through negotiations, legal proceedings
or otherwise) of this Amendment or such other instruments and documents. In
addition, the Borrowers agree jointly and severally to pay any and all stamp and
other taxes payable or determined to be payable in connection with the execution
and delivery of this Amendment and the other instruments and documents to be
delivered hereunder, and agree jointly and severally to save the Agents, the
Fronting Bank and the Lenders harmless from and against any and all liabilities
with respect to or resulting from any delay in paying or omission to pay such
taxes.
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SECTION 7. Execution in Counterparts. This Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument.
SECTION 8. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the internal laws of the State of the New York.
[Signature pages to follow.]
S-1
TXU CORP.
By /s/ Kirk R. Oliver
---------------------------------
Name: Kirk R. Oliver
Title: Treasurer and Assistant Secretary
TXU ELECTRIC COMPANY
By /s/ Laura Conn
---------------------------------
Name: Laura Conn
Title: Treasurer and Assistant Secretary
TXU GAS COMPANY
By /s/ Laura Conn
---------------------------------
Name: Laura Conn
Title: Treasurer and Assistant Secretary
S-2
THE CHASE MANHATTAN BANK,
individually and as Administrative Agent, Competitive
Advance Facility Agent and Fronting Bank
By /s/ Robert W. Traband
---------------------------------
Name: Robert W. Traband
Title: Vice President
S-3
ABN AMRO BANK N.V.
By /s/ Kevin S. McFadden
---------------------------------
Name: Kevin S. McFadden
Title: Group Vice President
By /s/ Jeffrey Dodd
---------------------------------
Name: Jeffrey Dodd
Title: Group Vice President
S-4
THE BANK OF TOKYO-MITSUBISHI, LTD.
By /s/ John M. Mearns
---------------------------------
Name: John M. Mearns
Title: Vice President and Manager
S-5
BNP PARIBAS
By /s/ Mark A. Renaus
---------------------------------
Name: Mark A. Renaud
Title: Director
By /s/ Andrew S. Platt
---------------------------------
Name: Andrew S. Platt
Title: Vice President
S-6
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S-7
BAYERISCHE LANDESBANK GIROZENTRALE,
CAYMAN ISLANDS BRANCH
By /s/ Peter Obermann
---------------------------------
Name: Peter Obermann
Title: Senior Vice President
By /s/ Sean O'Sullivan
---------------------------------
Name: Sean O'Sullivan
Title: Vice President
S-8
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S-9
CITIBANK, NA
By /s/ Sandip Sen
---------------------------------
Name: Sandip Sen
Title: Managing Director and Vice President
S-10
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES
By /s/ W. David Suttles
---------------------------------
Name: W. David Suttles
Title: Vice President
By /s/ Subash R. Viswanathan
---------------------------------
Name: Subash R. Viswanathan
Title: Senior Vice President
S-11
CREDIT LYONNAIS NEW YORK BRANCH
By /s/ Phillippe Soustra
---------------------------------
Name: Phillippe Soustra
Title: Senior Vice President
S-12
CREDIT SUISSE FIRST BOSTON
By /s/ Jay Chall
---------------------------------
Name: Jay Chall
Title: Director
By /s/ Lalita Advani
---------------------------------
Name: Lalita Advani
Title: Assistant Vice President
S-13
THE DAI-ICHI KANGYO BANK, LTD.
By /s/ Andreas Pantelli
---------------------------------
Name: Andreas Pantelli
Title: Senior Vice President
S-14
DANSKE BANK A/S
By /s/ Dennis T. Shugrue
---------------------------------
Name: Dennis T. Shugrue
Title: Assistant Vice President
By /s/ John A. O'Neill
---------------------------------
Name: John A. O'Neill
Title: Vice President
S-15
DEUTSCHE BANK AG, NEW YORK AND/OR CAYMAN ISLANDS
BRANCHES
By /s/ Joel Makowsky
---------------------------------
Name: Joel Makowsky
Title: Vice President
By /s/ Hans C. Narberhau
---------------------------------
Name: Hans C. Narberhau
Title: Vice President
S-16
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S-17
FIRST UNION NATIONAL BANK
By /s/ Joe K. Dancy
---------------------------------
Name: Joe K. Dancy
Title: Vice President
S-18
GUARANTY FEDERAL BANK, FSB
By /s/ Jim R. Hamilton
---------------------------------
Name: Jim R. Hamilton
Title: Vice President
S-19
THE INDUSTRIAL BANK OF JAPAN, LIMITED
NEW YORK BRANCH
By /s/ Michael N. Oakes
---------------------------------
Name: Michael N. Oakes
Title: Senior Vice President, Houston Office
S-20
KBC BANK N.V.
By /s/ Jean-Pierre Diels/Patrick A. Janssens
----------------------------------------------
Name: Jean-Pierre Diels/Patrick A. Janssens
Title: First Vice President and Vice President
S-21
LEHMAN COMMERCIAL PAPER INC.
By /s/ G. Andrew Keith
---------------------------------
Name: G. Andrew Keith
Title: Authorized Signatory
S-22
LLOYDS TSB BANK PLC
By /s/ Windsor R. Davies
---------------------------------
Name: Windsor R. Davies
Title: Director, Corporate Banking, USA
By /s/ David Rodway
---------------------------------
Name: David Rodway
Title: Assistant Director
S-23
MELLON BANK, N.A.
By /s/ Roger E. Howard
---------------------------------
Name: Roger E. Howard
Title: Vice President
S-24
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S-25
NATIONAL AUSTRALIA BANK LIMITED
A.C.N. 004044937
By /s/ Frank J. Campiglia
---------------------------------
Name: Frank J. Campiglia
Title: Vice President
S-26
THE ROYAL BANK OF SCOTLAND PLC
By /s/ Clark McGrin
---------------------------------
Name: Clark McGrin
Title: Senior Vice President
S-27
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S-28
SOCIETE GENERALE
By /s/ David Bird
---------------------------------
Name: David Bird
Title: Vice President
S-29
[This page intentionally left blank]
S-30
THE SUMITOMO BANK LIMITED
By /s/ C. Michael Garrido
---------------------------------
Name: C. Michael Garrido
Title: Senior Vice President
S-31
TORONTO DOMINION (TEXAS), INC.
By /s/ Mark A. Baird
---------------------------------
Name: Mark A. Baird
Title: Vice President
S-32
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH
By /s/ Duncan M. Robertson
---------------------------------
Name: Duncan M. Robertson
Title: Director
By /s/ Anthony Alessandro
---------------------------------
Name: Anthony Alessandro
Title: Manager
S-33
THE BANK OF NEW YORK
By /s/ Nathan S. Howard
---------------------------------
Name: Nathan S. Howard
Title: Vice President
S-34
FLEET NATIONAL BANK
By /s/ Robert Lanigan
---------------------------------
Name: Robert Lanugan
Title: Managing Director
S-35
BANCA NAZIONALE DEL LAVORO S.p.A.
NEW YORK BRANCH
By /s/ Carlo Vecchi
---------------------------------
Name: Carlo Vecchi
Title: Senior Vice President
By /s/ Robert Mancone
---------------------------------
Name: Robert Mancone
Title: Vice President
S-36
THE CHASE MANHATTAN BANK
By /s/ Robert W. Traband
---------------------------------
Name: Robert W. Traband
Title: Vice President
S-37
UBS AG, STAMFORD BRANCH
By /s/ Dorothy L. McKinley
---------------------------------
Name: Dorothy L. McKinley
Title: Director
By /s/ Lynne B. Alfarone
---------------------------------
Name: Lynne B. Alfarone
Title: Associate Director
S-38
BANK OF AMERICA, N.A.
By /s/ Michelle A. Schoenfeld
---------------------------------
Name: Michelle A. Schoenfeld
Title: Vice President
S-39
THE FUJI BANK, LIMITED
By /s/ Shinichiro Kuruma
---------------------------------
Name: Shinichiro Kuruma
Title: Vice President & Manager
S-40
BANK ONE, NA
By /s/ Sean Drinan
---------------------------------
Name: Sean Drinan
Title: Director