EXHIBIT 10.43
AMENDMENT NO. 1
AMENDMENT NO. 1 dated as of June 16, 2003 (the "Amendment") to the
Amended and Restated Credit and Guaranty Agreement dated as of March 28, 2003,
(the "Credit Agreement"), among Reliant Resources, Inc., as a Borrower and a
Guarantor ("RRI"), the other Credit Parties referred to therein, as Borrowers
and/or Guarantors, the lenders referred to therein (the "Lenders"), Bank of
America, N.A., as Administrative Agent, as Collateral Agent and as an Issuing
Bank, Barclays Bank PLC and Deutsche Bank AG, New York Branch, as Syndication
Agents, Citicorp USA, Inc., as Tranche A Agent and Citibank, N.A., as Tranche A
Collateral Agent.
INTRODUCTORY STATEMENT
All capitalized terms not otherwise defined in this Amendment are used
herein as defined in the Credit Agreement.
RRI is proposing to issue Indebtedness from time to time to refinance a
portion of the Indebtedness under the Credit Agreement, as contemplated by
Section 6.1(b)(i) of the Credit Agreement. In connection therewith, RRI has
requested that the Credit Agreement be amended to more fully implement a
collateral trust arrangement to effect the securing of such Indebtedness on an
equal and ratable basis with the Restructured Obligations and to make certain
other amendments in connection with the issuance of any such refinancing
Indebtedness. In addition, RRI has requested that certain other amendments to
the Credit Agreement be made all as herein set forth.
Subject to the terms and conditions hereof, the Lenders are willing to
agree to such amendment, but only upon the terms and conditions set forth
herein.
In consideration of the mutual agreements contained herein and other
good and valuable consideration the receipt of which is hereby acknowledged, the
parties hereto hereby agree as follows:
SECTION 1. Amendments to the Credit Agreement.
(A) The definition of "Citibank Intercreditor Agreement"
appearing in Article 1 of the Credit Agreement is hereby amended by inserting
the following words after the words "Tranche A Collateral Agent," appearing in
such definition:
"as such agreement has been assigned by Bank of
America, N.A., as Collateral Agent to the Collateral
Trustee, and"
(B) The definition of "Collateral" appearing in Article 1
of the Credit Agreement is hereby amended in its entirety to read as follows:
"'Collateral' shall mean, collectively, (i) the
"Collateral" as defined in the Collateral Trust
Agreement, and (ii) the "Collateral" as defined in
the Separate Security Agreement."
(C) The definition of "Collateral Agent" appearing in
Article 1 of the Credit Agreement is hereby amended in its entirety to read as
follows:
"'Collateral Agent' shall mean Bank of America, N.A.
in its capacity as collateral agent for the Credit
Agreement Secured Parties, or such
successor Collateral Agent as may be appointed
pursuant to Section 10.13 hereof."
(D) The definition of "Commodity Account Control
Agreement" appearing in Article 1 of the Credit Agreement is hereby amended in
its entirety to read as follows:
"'Commodity Account Control Agreement' shall mean a
written agreement or other authenticated record, in
form and substance reasonably satisfactory to the
Administrative Agent, pursuant to which the
commodities intermediary shall agree, among other
things, to comply with instructions from the
Collateral Trustee (or its co-trustees, agents or
sub-agents), to such commodities intermediary as to
Investment Property or to apply any value distributed
on account of any commodity contract as directed by
the Collateral Trustee (or its co-trustees, agents or
sub-agents), to such commodity intermediary, without
further consent of any Credit Party or its nominee,
as any such agreement or record may be amended,
amended and restated, supplemented or otherwise
modified, renewed or replaced from time to time."
(E) The definition of "Contribution Agreement" appearing
in Article 1 of the Credit Agreement is hereby amended in its entirety to read
as follows:
"'Contribution Agreement' shall mean that certain
Amended and Restated Contribution Agreement dated as
of July 1, 2003 and executed by each of the Credit
Parties, as such agreement may be amended, amended
and restated, supplemented or otherwise modified,
renewed or replaced from time to time."
(F) The definition of "Deposit Account Control Agreement"
appearing in Article 1 of the Credit Agreement is hereby amended in its entirety
to read as follows:
"'Deposit Account Control Agreement' shall mean, with
respect to any Deposit Account, a written agreement
or other authenticated record, in form and substance
reasonably satisfactory to the Administrative Agent,
pursuant to which the depositary bank in which such
Deposit Account is maintained shall agree, among
other things, to comply at any time with instructions
from the Collateral Trustee (or its co-trustees,
agents or sub-agents) to such depositary bank
directing the disposition of funds from time to time
credited to such Deposit Account, without further
consent of any Credit Party or its nominee, as any
such agreement or record may be amended, amended and
restated, supplemented or otherwise modified, renewed
or replaced from time to time."
(G) The definition of "Enterprise Value" appearing in
Article 1 of the Credit Agreement is hereby amended in its entirety to read as
follows:
"'Enterprise Value' shall mean an amount equal to (i)
the product of (A) the purchase price per share to be
paid by RRI or TG Holdco for each share of common
stock of Texas Genco either upon the exercise of the
Texas Genco Option determined on such exercise date
in accordance with the Option Agreement or in
connection with a Permitted TG
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Purchase Transaction (as applicable), in each case
exclusive of any control premium multiplied by (B)
the aggregate number of shares of the common stock of
Texas Genco issued and outstanding on the date the
Texas Genco Option is exercised in accordance with
the Option Agreement or a definitive agreement with
respect to a Permitted TG Purchase Transaction is
fully executed (as applicable), plus (ii) to the
extent not included in the purchase price per share
set forth in clause (i)(A) above and without any
duplication, any control premium actually paid by RRI
or TG Holdco in connection with the purchase of the
outstanding common stock of Texas Genco pursuant to
the Option Agreement or a Permitted TG Purchase
Transaction (as applicable), plus (iii) the aggregate
principal amount of any consolidated Indebtedness for
borrowed money of Texas Genco and its Subsidiaries
relative to its operations (A) on the date RRI or TG
Holdco exercises the Texas Genco Option or a
definitive agreement with respect to a Permitted TG
Purchase Transaction is fully executed (as
applicable) or (B) if such amount is not capable of
being determined on the date notice is required to be
delivered in accordance with Section 5.1(q), on the
last day of the fiscal quarter ending immediately
before the date the Texas Genco Option is exercised
or a definitive agreement with respect to a Permitted
TG Purchase Transaction is executed (as applicable).
In no event shall "Enterprise Value" include the
principal amount of any Indebtedness incurred to
purchase Texas Genco or incurred to provide working
capital to Texas Genco or TG Holdco."
(H) The definition of "Fundamental Documents" appearing
in Article 1 of the Credit Agreement is hereby amended in its entirety to read
as follows:
"'Fundamental Documents' shall mean (i) this Credit
Agreement, (ii) any Note, (iii) any application for a
Letter of Credit, (iv) the OPH Guaranty Agreement,
(v) the Collateral Trust Agreement, (vi) any
Mortgage, (vii) any Assignment of Leases and Rents,
(viii) the Security Agreement and the Separate
Security Agreement, (ix) any Security Document, (x)
any Instrument of Assumption and Joinder, (xi) the
Contribution Agreement, (xii) any UCC financing
statements, (xiii) any Perfection Certificates, (xiv)
any of the Fee Letters, (xv) the Warrant Agreement
and any of the RRI Warrants, (xvi) the Citibank
Intercreditor Agreement, (xvii) the Genco
Intercreditor Agreement, (xviii) the Subordination
Letter, and (xix) any other document, agreement,
certificate or instrument which is required to be or
is otherwise executed by any Credit Party in
connection with this Credit Agreement or any of the
documents listed above."
(I) The definition of "Genco Intercreditor Agreement"
appearing in Article 1 of the Credit Agreement is hereby amended in its entirety
to read as follows:
"'Genco Intercreditor Agreement' shall mean that
certain Intercreditor Agreement dated as July 1,
2003, between Texas Genco, L.P., the Collateral
Trustee and Bank of America in various capacities, as
such agreement may be amended, amended and restated,
supplemented or otherwise modified renewed or
replaced from time to time."
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(J) The definition of "Guaranteed Obligations" appearing
in Article 1 of the Credit Agreement is hereby amended (i) by inserting the
words ", in each of the foregoing cases described in clause (i) or clause (ii)
above, subject to the provisions of Section 8.4 hereof" at the end of clause
(ii)(B), immediately before the semicolon and the word "and"; and (ii) by
deleting the words ", in each case, subject to the provisions of Section 8.4
hereof" at the end of such definition and inserting the phrase ", subject to the
provisions of the OPH Guaranty Agreement" in lieu thereof.
(K) The definition of "Guarantors" appearing in Article 1
of the Credit Agreement is hereby amended by adding the following text at the
end thereof:
"; provided, however, that as such term is used in
Article 8 hereof, such term shall not include OPH."
(L) The definition of "Limited Guarantor" appearing in
Article 1 of the Credit Agreement is hereby amended by adding the following text
at the end thereof:
"; provided, however, that as such term is used in
Article 8 hereof, such term shall not include OPH."
(M) Clauses (c) and (d) of the definition of "Material
Adverse Effect" appearing in Article 1 of the Credit Agreement are hereby
amended in their entirety to read as follows:
"(c) materially and adversely affects the rights or
remedies of, or benefits available to, the
Administrative Agent, the Collateral Agent, the
Collateral Trustee, the Tranche A Agent, the Tranche
A Collateral Agent, the Lenders or any other Credit
Agreement Secured Party, under any Fundamental
Document, or (d) materially and adversely affects the
Liens granted to the Collateral Agent (for the
benefit of the Credit Agreement Secured Parties), the
Tranche A Collateral Agent (for the benefit of the
Lenders owed the Adjusted Tranche A Obligations)
and/or the Collateral Trustee (for the benefit of the
Secured Parties) or materially impairs the validity
or enforceability thereof in either case in this
clause (d), with respect to a material portion of the
Collateral and the Mortgaged Real Property Assets."
(N) The definition of "Mortgaged Real Property Assets"
appearing in Article 1 of the Credit Agreement is hereby amended in its entirety
to read as follows:
"'Mortgaged Real Property Assets' shall mean those
Real Property Assets of the Credit Parties on which a
Lien has been granted by the applicable Credit Party
to the Collateral Trustee (for the benefit of the
applicable Secured Parties)."
(O) The definition of "Outside Date" appearing in Article
1 of the Credit Agreement is hereby amended in its entirety to read as follows:
"'Outside Date' shall mean December 15, 2004."
(P) The definition of "Purchase Escrow Account" appearing
in Article 1 of the Credit Agreement is hereby amended by deleting the words "a
Securities Account with the Collateral Agent or one of its Affiliates in which"
and inserting the following text in lieu thereof:
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"Account No. 249-01218 maintained by RRI with Banc of America
Securities LLC (or any successor Securities Account thereto
with the Collateral Agent or any of its Affiliates provided,
such successor account is subject to a Control Agreement in
the form of the existing Control Agreement with respect to
Account No. 249-01218), in which account"
(Q) The definition of "Secured Parties" appearing in Article 1 of
the Credit Agreement is hereby amended in its entirety to read as follows:
"'Secured Parties' shall have the meaning given to such term
in the Collateral Trust Agreement."
(R) The definition of "Securities Account Control Agreement"
appearing in Article 1 of the Credit Agreement is hereby amended in its entirety
to read as follows:
"'Securities Account Control Agreement' shall mean, with
respect to any Pledged Securities or other Investment Property
(as such terms are defined in the Security Agreement), a
written agreement or other authenticated record, in form and
substance reasonably satisfactory to the Administrative Agent,
pursuant to which the securities intermediary which holds such
Pledged Securities or such other Investment Property shall
agree, among other things, to comply with entitlement orders
or other instructions from the Collateral Trustee (or its
co-trustees, agents or sub-agents) to such securities
intermediary as to Pledged Securities or other Investment
Property, without further consent of any Credit Party or its
nominee, as any such agreement or record may be amended,
amended and restated, supplemented or otherwise modified,
renewed or replaced from time to time."
(S) The definition of "Security Agreement" appearing in Article 1
of the Credit Agreement is hereby amended in its entirety to read as follows:
"'Security Agreement' shall mean the Amended and Restated
Security Agreement, dated as of July 1, 2003, among RRI, the
other Credit Parties and the Collateral Trustee (for the
benefit of the Secured Parties), as such agreement may be
amended, amended and restated, supplemented or otherwise
modified, renewed or replaced from time to time."
(T) Clause (i) of the definition of "Security Documents" appearing
in Article 1 of the Credit Agreement is hereby amended in its entirety to read
as follows:
"(i) the Collateral Trust Agreement, the Security
Agreement and the Separate Security Agreement,"
(U) Clause (ix) of the definition of "Security Documents"
appearing in Article 1 of the Credit Agreement is hereby amended by deleting the
words "in favor of the Collateral Agent or the Administrative Agent (on behalf
of the Secured Parties)" and inserting the following in lieu thereof:
"in favor of the Collateral Agent (for the benefit of the
Credit Agreement Secured Parties), the Collateral Trustee (for
the benefit of the Secured Parties)"
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(V) The definition of "Senior Priority Maturity Date"
appearing in Article 1 of the Credit Agreement is hereby amended in its entirety
to read as follows:
"'Senior Priority Maturity Date' shall mean the
earliest of (i) the consummation of the purchase by
RRI or one of its Subsidiaries of any of the
outstanding common stock of Texas Genco, (ii)
December 15, 2004, and (iii) such date on which the
Senior Priority Loans become due and payable pursuant
to Article 7 hereof."
(W) The definition of "Subordination Letter" appearing in
Article 1 of the Credit Agreement is hereby amended in its entirety to read as
follows:
"'Subordination Letter' shall mean that certain
letter agreement among Banc of America Securities LLC
and BNP Paribas, as arrangers, and Bank of America,
N.A., as Administrative Agent, with respect to the
subordination of the obligations of OPH under the OPH
Guaranty Agreement."
(X) The definition of "Title Policy" appearing in Article
1 of the Credit Agreement is hereby amended in its entirety to read as follows:
"'Title Policy' shall mean, with respect to any
Mortgaged Real Property Asset, a mortgagee policy of
title insurance (ALTA or the equivalent) or marked
"commitment" of title insurance insuring the
applicable Mortgage as a first priority Lien on such
Mortgaged Real Property Asset in favor of the
Collateral Trustee (for the benefit of the Senior
Priority Secured Parties) to secure the Senior
Priority Obligations or as a second priority Lien on
such Mortgaged Real Property Asset in favor of the
Collateral Trustee (for the benefit of the Secured
Parties) to secure the Pari Passu Obligations, as
applicable, free of all Liens other than the
Permitted Encumbrances, which policy of title
insurance shall be issued by a Title Company in such
policy amounts, with such endorsements and
affirmative insurance, and in form and substance
reasonably satisfactory to the Administrative Agent,
and shall contain no exceptions to coverage other
than matters satisfactory to the Administrative Agent
in its judgment reasonably exercised and which policy
of title insurance shall have been fully paid for by
RRI."
(Y) The definitions of "Assignment of Leases and Rents"
and "Mortgage" appearing in Article 1 of the Credit Agreement are each amended
by deleting the defined term "Collateral Agent" each time such term appears in
any of such definitions and inserting in the defined term "Collateral Trustee"
each such time in lieu thereof.
(Z) The following definitions are hereby added to Article
1 of the Credit Agreement in alphabetical order:
"'Actionable Default' shall have the meaning given in
the Collateral Trust Agreement.
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'Amendment No. 1 Closing Date' shall mean the
Amendment No. 1 Effective Date (as such term is
defined in Amendment No. 1 dated as of June 16, 2003,
to this Credit Agreement).
'Available Proceeds' shall have the meaning given to
such term in Section 2.11(h) hereof.
'Collateral Trust Agreement' shall mean that certain
collateral trust agreement among the Collateral
Trustee and the Credit Parties, as such agreement may
be amended, amended and restated, supplemented or
otherwise modified, renewed or replaced from time to
time.
'Collateral Trustee' shall mean any collateral
trustee for the Secured Parties under the Collateral
Trust Agreement.
'Copyright Office' shall have the meaning set forth
in the Security Agreement.
'Copyrights' shall have the meaning set forth in the
Security Agreement.
'Credit Agreement Secured Parties' shall mean the
Administrative Agent, the other Agents, the Tranche A
Agent, the Issuing Banks, the Collateral Agent, the
Tranche A Collateral Agent, the Lenders, the Lender
Hedging Banks, any and all Cash Management Banks, and
each of their respective successors and assigns.
'Equally and Ratably' shall have the meaning given in
the Collateral Trust Agreement.
'Excluded Securities' shall mean debt or equity
securities that were issued by any Subsidiary of RRI
other than OPH, REMA or Reliant Energy Retail
Holdings, LLC (or their respective successors).
'Intellectual Property' shall have the meaning set
forth in the Security Agreement.
'Material Copyright' shall have the meaning set forth
in the Security Agreement.
'OPH Guaranty Agreement' shall mean that certain
Amended and Restated Guaranty Agreement executed by
OPH in favor of each of the holders of the Secured
Obligations, as such agreement may be amended,
amended and restated, supplemented or otherwise
modified, renewed or replaced from time to time.
'Pari Passu Obligations' shall mean all Secured
Obligations other than the Senior Priority
Obligations.
'Patents' shall have the meaning set forth in the
Security Agreement.
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'Permitted TG Purchase Transaction' shall mean a
single transaction pursuant to which RRI or TG Holdco
shall purchase 80% or more of the issued and
outstanding capital stock of Texas Genco from
CenterPoint or any of its Subsidiaries, for an
aggregate purchase price not exceeding the aggregate
purchase price that RRI or any of its Subsidiaries
would have paid if it had purchased such stock in
accordance with the terms of the Texas Genco Option;
provided, that a definitive agreement for such
transaction shall have been fully executed no later
than September 15, 2004, and such transaction shall
have been fully consummated no later than December
15, 2004.
'Pro Rata Percentage' shall mean, on any date of
determination and with respect to Net Cash Proceeds
to be applied in accordance with Section 2.11(h)
hereof, a percentage equal to (i) the Total Credit
Exposure on such date, divided by (ii) the sum of (A)
the Total Credit Exposure on such date plus (B) the
aggregate outstanding principal amount of the Secured
Notes described in clause (Y) of Section 2.11(h) with
respect to which an offer to repurchase or prepay is
required to be made, or which must be otherwise
repurchased or prepaid (in part), with the Net Cash
Proceeds described in such clause (Y) of Section
2.11(h).
'PTO' shall have the meaning set forth in the
Security Agreement.
'Secured Note Agreement' shall mean (a) each
indenture among RRI, the guarantors referred to
therein (if applicable) and the indenture trustee
thereunder and (b) each loan or note purchase
agreement among RRI, the guarantors referred to
therein (if applicable), the Lenders or note
purchasers thereunder and the administrative agent
(if any) thereunder, in each case pursuant to which a
series of Secured Notes was issued or a loan was made
constituting a series of Secured Notes, as such
agreement or indenture may be supplemented or
otherwise modified from time to time.
'Secured Notes' shall mean RRI's senior secured notes
issued from time to time in a private placement,
registered offering, exchange offering, or loan
transaction, in which notes have been issued in
accordance with Section 6.1(b)(i) hereof.
'Secured Obligations' shall have the meaning given to
such term in the Collateral Trust Agreement.
'Senior Priority Secured Parties' shall mean, at any
time, any Person who is holding a Senior Priority
Obligation or to whom a Senior Priority Obligation is
otherwise owing.
'Separate Security Agreement' shall mean that certain
Amended and Restated Security Agreement dated as of
July 1, 2003, among RRI, the other Credit Parties and
the Collateral Agent (for the benefit of the Credit
Agreement Secured Parties), as such agreement may be
amended, amended and restated, supplemented or
otherwise modified, renewed or replaced from time to
time.
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'Shared Collateral' shall have the meaning set forth
in the Collateral Trust Agreement.
'Specified Date' shall mean the earliest to occur of
(i) September 15, 2004 without a definitive agreement
being executed in connection with a Permitted TG
Purchase Transaction and without the Texas Genco
Option having been exercised, (ii) the consummation
date of the purchase of 100% of the equity of Texas
Genco by RRI or any of its Subsidiaries and the
payment of any control premium in connection
therewith, (iii) the date that CenterPoint or any of
its Subsidiaries sells or otherwise disposes of more
than twenty percent (20%) of the issued and
outstanding common stock of Texas Genco to a Person
other than RRI or one of its Subsidiaries, and (iv)
the Outside Date.
'Trademarks' shall have the meaning set forth in the
Security Agreement."
(AA) Section 2.10(e) of the Credit Agreement is hereby
amended by deleting the figure "$.50 billion" appearing therein and inserting
the figure "$.60 billion" in lieu thereof.
(BB) Section 2.11(f) of the Credit Agreement is hereby
amended in its entirety to read as follows:
"(f) Promptly, but in no event later than three
(3) Business Days, after the receipt of any Net Cash
Proceeds by any Credit Party from the issuance by any
Credit Party of any Indebtedness permitted under
Section 6.1(b) (other than the initial series of
Secured Notes, which for purposes of this Agreement
and the other Fundamental Documents, shall mean all
of the Secured Notes to be issued by RRI on July 1,
2003) or 6.1(l) hereof or the issuance of any
Indebtedness not permitted by the terms and
provisions of this Credit Agreement, to the extent
such Net Cash Proceeds from the issuance of
Indebtedness permitted under 6.1(l) hereof (if
applicable) have not been deposited in the Purchase
Escrow Account contemplated by, and permitted by
Section 5.18 hereof, RRI shall prepay or cause to be
prepaid Loans (determined as provided in Sections
2.11(k) and 2.11(l) below) in an amount equal to 100%
of such Net Cash Proceeds received by a Credit Party.
Immediately upon issuance of the initial series of
Secured Notes, RRI shall cause 100% of such Net Cash
Proceeds (net of reasonable reserves for transaction
expenses with respect to the issuance of the initial
series of Secured Notes) to be directly wire
transferred and irrevocably deposited into the
Prepayment Collateral Account and shall have
irrevocably authorized and directed the Collateral
Agent, in writing (which shall be in form and
substance satisfactory to the Administrative Agent
and the Collateral Agent), to apply such Net Cash
Proceeds to the prepayment of the Loans (determined
as provided in Sections 2.11(k) and 2.11(l) below),
at any time on July 7, 2003."
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(CC) Section 2.11(g) of the Credit Agreement is hereby
amended in its entirety to read as follows:
"(g) Promptly, but in no event later than three
(3) Business Days, after the receipt of any Net Cash
Proceeds by RRI from the issuance by RRI of any
Junior Securities (including the issuance of shares
of capital stock upon the exercise of any warrant,
option, right to purchase or other equivalent,
interest or similar right (however designated) issued
in connection with the Junior Securities), RRI shall
prepay Loans as follows: (A) at any time on or prior
to the Specified Date, no Loans shall be required to
be prepaid if 100% of such Net Cash Proceeds are
deposited in the Purchase Escrow Account as
contemplated by, and permitted by, Section 5.18
hereof; (B) if at any time on or prior to the
Specified Date, any portion of such Net Cash Proceeds
is not so deposited in the Purchase Escrow Account,
then fifty percent (50%) of such portion of Net Cash
Proceeds not so deposited in the Purchase Escrow
Account shall be applied as a prepayment of the Loans
(determined as provided in Sections 2.11(k) and
2.11(l) below) and the other 50% of such portion not
so deposited in the Purchase Escrow Account may be
retained by RRI for general corporate purposes; and
(C) at any time after the Specified Date, fifty
percent (50%) of such Net Cash Proceeds shall be
applied as a prepayment of the Loans (determined as
provided in Sections 2.11(k) and 2.11(l) below) and
the other 50% of such Net Cash Proceeds may be
retained by RRI for general corporate purposes."
(DD) Section 2.11(h) of the Credit Agreement is hereby
amended in its entirety to read as follows:
"(h) After the receipt of any Net Cash Proceeds
by a Credit Party (or in the case of clause (iii)
below, by TG Holdco, Texas Genco or any of the
Subsidiaries of Texas Genco) from any of the
following: (i) the sale, transfer, lease or other
disposition in any manner whatsoever of any Eligible
Asset permitted by Section 6.5 hereof (other than
sales, transfer, lease or other dispositions
described in Section 6.5(a)(iv), a disposition due to
a Recovery Event, and any Excluded Asset Sale), (ii)
any formation of a Joint Venture (other than TG
Holdco, Texas Genco or any Subsidiaries of Texas
Genco to the extent the Net Cash Proceeds thereof
have been used to fund and/or finance the acquisition
of Texas Genco in accordance with the provisions of
Section 5.18(f) hereof), (iii) at any time after the
consummation of the purchase of the outstanding
common stock of Texas Genco by RRI or any of its
Subsidiaries, any issuance of Equity Interests of TG
Holdco, Texas Genco or any Subsidiaries of Texas
Genco (including the issuance of shares of capital
stock upon the exercise of any warrant, option, right
to purchase or other equivalent, interest or similar
right (however designated)) or (iv) the sale or other
disposition in any manner whatsoever of any asset of
a Credit Party which sale or other disposition not
permitted by the terms and provisions of this Credit
Agreement, (X) if such Net Cash Proceeds are not
required by the terms of any Secured Note Agreement
to be offered to any holder of a Secured Note or
otherwise used to repurchase or prepay any Secured
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Notes, then promptly, but in no event later than
three (3) Business Days after receipt of such Net
Cash Proceeds, RRI shall prepay, or cause to be
prepaid, Loans (determined as provided in Section
2.11(k) and 2.11(l) below) in an amount equal to 100%
of such Net Cash Proceeds received and (Y) if such
Net Cash Proceeds are required by the terms of any
Secured Note Agreement to be offered to any holder of
a Secured Note or otherwise used to repurchase or
prepay any Secured Notes, then promptly, but in no
event later than three (3) Business Days after
receipt of such Net Cash Proceeds, RRI shall prepay,
or cause to be prepaid, Loans (determined as provided
in Section 2.11(k) and 2.11(l) below) in an amount
equal to 100% of such Net Cash Proceeds received
multiplied by the Pro Rata Percentage. In addition,
in the event any such Net Cash Proceeds described in
the foregoing sentence are offered to any holder of a
Secured Note but are not accepted by such holder
(such Net Cash Proceeds being referred to herein as
"Available Proceeds"), then promptly, but in no event
later than three (3) Business Days after the last day
for such holder to accept the repurchase or
prepayment offer, RRI shall prepay, or cause to be
prepaid, Loans (determined as provided in Section
2.11(k) and 2.11(l) below) in an amount equal to 100%
of such Available Proceeds. Notwithstanding the
foregoing, no prepayment of the Loans shall be
required in the case of clause (i) and clause (ii)
above, to the extent such Net Cash Proceeds have been
deposited in the Purchase Escrow Account as required
by Section 5.17 hereof or as contemplated by, and
permitted by Section 5.18 hereof, or in the case of
clause (iii) above, to the extent such Net Cash
Proceeds thereof have been used to fund or finance
the acquisition of minority Equity Interests of Texas
Genco in accordance with the last sentence of Section
5.18(f) hereof."
(EE) Section 2.11(i) of the Credit Agreement is hereby
amended in its entirety to read as follows:
"(i) In the event any payment of any proceeds of
any Recovery Event (to the extent such proceeds have
not been deposited in the Purchase Escrow Account as
required by Section 5.17 hereof or as contemplated
by, and permitted by Section 5.18 hereof, and
provided, that so long as no Event of Default shall
have occurred and then be continuing, such proceeds
received in connection with any Recovery Event (or
any portion thereof) may be expended or irrevocably
committed by RRI or any other Credit Party within
twelve (12) months after such Recovery Event to
repair or replace such property and RRI shall furnish
to the Administrative Agent evidence reasonably
satisfactory to the Administrative Agent of such
expenditure or commitment and shall have certified to
the Administrative Agent that such proceeds (or such
proceeds together with other funds which are
available to RRI and the other Credit Parties and
permitted to be used for such purpose pursuant to the
terms hereof) are sufficient to repair or replace
such property pending which the Collateral Trustee
shall hold such proceeds in an interest bearing
deposit account), such proceeds (or such lesser
percentage which represents the remaining portion of
such proceeds not expended or committed pursuant to
the immediately preceding
11
parenthetical phrase and less any amounts required to
pay for necessary remediation expenses with respect
to a condition affecting the applicable property, to
pay reasonable expenses incurred in connection with
the closure of the applicable property and to pay any
costs reasonably incurred in connection with such
Recovery Event, in each case subject to the terms of
the Citibank Intercreditor Agreement) shall be
treated as if they were the proceeds of an asset sale
subject to Section 2.11(h) above, and RRI shall
prepay Loans or, to the extent the Collateral Trustee
is loss payee under any insurance policy (if
applicable), irrevocably direct the Collateral
Trustee to transfer to the Administrative Agent to be
applied (in each case, promptly, but in no event
later than three (3) Business Days following receipt
of such proceeds) as a prepayment of Loans in
accordance with Section 2.11(h) above, provided, that
if an Event of Default shall have occurred and be
continuing, all proceeds of any Recovery Event which
would otherwise be payable to RRI pursuant to this
Section 2.11(i) shall be paid to the Collateral
Trustee and applied pursuant to the Collateral Trust
Agreement; provided, however, that with respect to
tangible property subject to any Permitted
Encumbrance, no such prepayment shall be required to
the extent that this Section would require an
application of proceeds of any Recovery Event that
would violate or breach any of the provisions of the
instruments or documents under which such Permitted
Encumbrance arises or which governs the application
of proceeds."
(FF) The first sentence of Section 2.11(k) of the Credit
Agreement is hereby amended by inserting the following language after the words
"Sections 2.11(e) through and including 2.11(i)" appearing therein:
", or any Net Cash Proceeds from an asset sale (other
than an asset sale resulting from the exercise of any
remedy pursuant to a Security Document) or from a
Recovery Event which proceeds are received by the
Administrative Agent from the Collateral Trustee
pursuant to the terms and provisions of the
Collateral Trust Agreement,"
(GG) The second sentence of Section 2.11(k) of the Credit
Agreement is hereby amended by (i) deleting the word "mandatory" appearing
therein and (ii) inserting the words "described above" after the words "Tranche
A Loans" appearing therein.
(HH) Section 2.11(l) of the Credit Agreement is hereby
amended by (i) deleting the word "Notwithstanding" at the beginning of such
Section and inserting the following words in lieu thereof "Subject to the terms
and provisions of the Collateral Trust Agreement and notwithstanding" and (ii)
inserting the following words after the words "all mandatory prepayments set
forth in this Section 2.11":
"or other amounts pursuant to Section 2.11(k) that
would otherwise be applied to prepay outstanding Term
Loans and outstanding Tranche A Loans in accordance
with such Section 2.11(k),"
(II) Section 2.11(o) of the Credit Agreement is hereby
amended by deleting the words "the Administrative Agent" appearing therein and
inserting the words "the Collateral Agent" in lieu thereof.
12
(JJ) Section 3.1(c) of the Credit Agreement is hereby
amended in its entirety to read as follows:
"(c) Each of the Credit Parties has the
corporate, limited liability company or partnership
as the case may be, power and authority (i) to own
its respective properties and to carry on its
respective business as now being, or as now intended
to be, conducted, (ii) to execute, deliver and
perform, as applicable, its obligations under this
Credit Agreement and the other Fundamental Documents
and any other documents contemplated hereby or
thereby to which it is or will be a party, (iii) to
grant to the Collateral Agent (for the benefit of the
Credit Agreement Secured Parties) and the Collateral
Trustee (for the benefit of the applicable Secured
Parties), the security interests in the Collateral
and the Mortgaged Real Property Assets as
contemplated by this Credit Agreement and the other
Fundamental Documents to which it is or will be a
party, and (iv) in the case of a Guarantor (other
than OPH), to guaranty the Obligations as
contemplated by Article 8 hereof, and in the case of
OPH, to guaranty the Obligations as contemplated by
the OPH Guaranty Agreement; and in the case of each
Borrower, to execute, deliver and perform its
obligations under this Credit Agreement and any Notes
executed by such Borrower and to borrow and obtain
Letters of Credit as provided herein."
(KK) Section 3.2 of the Credit Agreement is hereby amended
by deleting the text appearing before clause (i) of such Section and inserting
the following text in lieu thereof:
"The execution, delivery and performance of this
Credit Agreement and the other Fundamental Documents
to which it is a party, by each Credit Party, the
grant to the Collateral Agent (for the benefit of the
Credit Agreement Secured Parties), the Collateral
Trustee for the benefit of the applicable Secured
Parties and/or the Tranche A Collateral Agent for the
benefit of the Lenders owed the Adjusted Tranche A
Obligations of the security interest in the
Collateral and the Mortgaged Real Property Assets as
contemplated by this Credit Agreement and the other
Fundamental Documents to which it is or will be a
party, by each Credit Party, and, in the case of each
Borrower, the Borrowings hereunder and the execution,
delivery and performance of any Notes executed by
such Borrower and, in the case of each Guarantor
(other than OPH), the guaranty of the Obligations as
contemplated in Article 8 hereof and, in the case of
OPH, the Guaranty of the Obligations as contemplated
by the OPH Guaranty Agreement,"
(LL) Section 3.17(a) of the Credit Agreement is hereby
amended by deleting the words "the Collateral Agent for the benefit of the
Secured Parties" appearing therein and inserting the words "the Collateral
Trustee for the benefit of the applicable Secured Parties, the Collateral Agent
(for the benefit of the Credit Agreement Secured Parties)" in lieu thereof.
(MM) Section 3.17(b) of the Credit Agreement is hereby
amended by deleting the words "the Collateral Agent, for the benefit of the
Secured Parties" appearing therein and inserting the words "the Collateral
Trustee, for the benefit of the applicable Secured Parties" in lieu thereof.
13
(NN) The second sentence of Section 3.25 of the Credit
Agreement is hereby amended by deleting the words "Collateral Agent (for the
benefit of the Secured Parties)" and inserting the words "Collateral Trustee
(for the benefit of the applicable Secured Parties)" in lieu thereof.
(OO) Article 3 of the Credit Agreement is hereby amended
by adding the following new Section at the end thereof:
"SECTION 3.27 Tax Shelter Regulations. Except to the
extent a Borrower has otherwise notified the
Administrative Agent in writing pursuant to Section
5.22 hereof, such Borrower does not intend to treat
the Loans and/or Letters of Credit and the related
transactions hereunder as being a "reportable
transaction" (within the meaning of Treasury
Regulation Section 1.6011-4)."
(PP) Section 5.1(b) of the Credit Agreement is hereby
amended by deleting the number "(iii)" the second time it appears in such
Section and inserting the number "(iv)" in lieu thereof.
(QQ) Section 5.1(o) of the Credit Agreement is hereby
amended by (i) deleting the words "Collateral Agent" appearing therein and
inserting the words "Collateral Trustee" in lieu thereof, and (ii) adding the
following text at the end thereof, immediately after the words "in all material
respects;":
"and furnish to the Administrative Agent, copies of
any notices, correspondence and/or other documents
delivered by RRI or any of its Subsidiaries to the
Collateral Trustee pursuant to the Collateral Trust
Agreement or any other Fundamental Document,
simultaneously with delivery thereof to the
Collateral Trustee;"
(RR) Section 5.1(p) of the Credit Agreement is hereby
amended by inserting the following words at the end thereof, immediately after
the words "Schedule 3.16 hereof":
"or any agreement with respect to any Material
Indebtedness of a Credit Party or a Non-Credit Party"
(SS) Section 5.1(q) of the Credit Agreement is hereby
amended in its entirety to read as follows:
"(q) (i) Promptly, and in any event within two
(2) Business Days, (x) after the earliest to occur of
the exercise of the Texas Genco Option, the
expiration of the Texas Genco Option and the
termination of the Texas Genco Option, notice thereof
to the Agents; (y) after the execution of a
definitive agreement with respect to a Permitted TG
Purchase Transaction, notice thereof to the Agents;
and (z) after the exercise of the Texas Genco Option
or the execution of a definitive agreement with
respect to a Permitted TG Purchase Transaction (as
applicable), to the Agents, a certificate (in form
and substance reasonably satisfactory to the Agents)
setting forth the calculation of Enterprise Value;
and (ii) to the Administrative Agent, such notices as
are required to be delivered to the Administrative
Agent pursuant to the Control Agreement with respect
to the Purchase Escrow Account; and"
14
(TT) Section 5.1 of the Credit Agreement is hereby amended
by (i) redesignating subsection (r) thereof as subsection (s), and (ii) adding
the following new subsection immediately after subsection (q) appearing therein:
"(r) Promptly, and in any event within five (5)
Business Days, after the incurrence and/or issuance
of any Seward Tax-Exempt Bonds or the termination
(without replacement) of any Seward Letter of Credit,
notice thereof to the Agents; and"
(UU) Sections 5.5(a) and 5.5(b) of the Credit Agreement
are hereby amended by deleting the words "Collateral Agent" each time such words
appear in such Sections and inserting the words "Collateral Trustee" in lieu
thereof.
(VV) Section 5.5(c) of the Credit Agreement is hereby
amended by deleting the words "Furnish to the Collateral Agent," and inserting
the words "Furnish to the Collateral Trustee (with copies to the Administrative
Agent)" in lieu thereof.
(WW) Section 5.6(b) of the Credit Agreement is hereby
amended by deleting the words "audits and examinations" and inserting the
following in lieu thereof:
"audits, inspections and examinations as the
Administrative Agent shall reasonably determine,"
(XX) Section 5.9 of the Credit Agreement is hereby amended
in its entirety to read as follows:
"SECTION 5.9 Further Assurances; Security Interests.
Upon the request of the Administrative Agent, at the
cost and expense of RRI, duly execute and deliver, or
cause to be duly executed and delivered, such further
agreements, documents, instruments, consents,
authorizations or approvals (in form and substance
reasonably satisfactory to the Administrative Agent),
and take or cause to be taken such action, as may be
necessary, or requested by the Administrative Agent
or its counsel, to carry out the provisions and
purposes of this Credit Agreement and the other
Fundamental Documents including, without limitation,
such further agreements, documents or instruments as
may be appropriate in the reasonable judgment of the
Administrative Agent or its counsel, to provide the
Collateral Trustee (or the Collateral Agent, if
applicable) (for the benefit of the applicable
Secured Parties) a perfected Lien in the Collateral
to the extent required by the terms hereof or any
Fundamental Document, and any and all documents for
filing under the provisions of any Applicable Law of
the United States or any other jurisdiction which the
Administrative Agent may deem necessary or reasonably
advisable, and perform or cause to be performed such
other acts which are necessary or reasonably
advisable, from time to time, in order to grant,
perfect and maintain in favor of the Collateral
Trustee (or the Collateral Agent, if applicable) (for
the benefit of the applicable Secured Parties) the
security interest in the Collateral and the Lien on
the Mortgaged Real Property Assets to the extent
required by the terms of any Fundamental Document,
subject only to Permitted Encumbrances (such further
assurances to include, without limitation, using all
commercially
15
reasonable efforts to obtain waivers from mortgagees,
landlords and any other Person who has possession of
or any interest in any Collateral with a value in
excess of $15,000,000 or any real property on which
any Collateral may be located, in form and substance
satisfactory to the Administrative Agent). In the
event any Credit Party is required to deliver any
cash, Cash Equivalents or other security to the
Collateral Agent as provided in Section 2.4(h) or
Section 2.5(h) hereof, such Credit Party agrees that
it shall execute such agreements and other documents
as the Collateral Agent shall reasonably request in
order to grant, perfect and/or maintain in favor of
the Collateral Agent (for the benefit of the Credit
Agreement Secured Parties), a security interest in,
and Lien on, any such assets so delivered. In the
event that any Credit Party is unable to promptly
obtain an acknowledgment from a bailee holding goods
constituting Collateral upon request of the
Administrative Agent or the Collateral Trustee as
provided in Section 6.08 of the Security Agreement,
then, at the request of the Administrative Agent,
such Credit Party shall promptly move such Collateral
to a bailee that shall authenticate a record
acknowledging that it is holding the Collateral for
the benefit of the Collateral Trustee."
(YY) Section 5.10(c) of the Credit Agreement is hereby
amended by inserting the words "the Collateral Trustee," immediately after the
words "the Collateral Agent," appearing therein.
(ZZ) The first sentence of Section 5.11(b) of the Credit
Agreement is hereby amended in its entirety to read as follows:
"Subject to the provisions of Section 5.11(c) below,
promptly (1) after the formation or acquisition after
the Closing Date of any new Domestic Subsidiary
(other than a Domestic Subsidiary of a Non-Credit
Party that is prohibited from becoming a Credit Party
pursuant to an agreement for Indebtedness in
existence on the Closing Date which is permitted
under Section 6.1 hereof, or an agreement for any
refinancing or renewal of any such Indebtedness
pursuant to, and in accordance with, Section 6.1(n)
hereof) that has assets with a book value in excess
of $10,000,000, or (2) with respect to any Domestic
Subsidiary which was formed or acquired after the
Closing Date and which did not have assets with a
book value in excess of $10,000,000, after such
Subsidiary acquires or otherwise holds assets with a
book value in excess of $10,000,000, or (3) after any
Domestic Subsidiary ceases to be an Excluded Entity
(as the case may be), deliver to the Collateral
Trustee (with copies to the Administrative Agent) the
following: (i) an Instrument of Assumption and
Joinder executed by such Subsidiary pursuant to
which, among other things, such Subsidiary shall
become a Credit Party hereunder; and a Joinder
Agreement (in substantially the form of Exhibit A to
the Collateral Trust Agreement) pursuant to which,
among other things, such Subsidiary shall become a
party to the Collateral Trust Agreement and the
Security Agreement, (ii) appropriate UCC-1 financing
statements with respect to the collateral under the
Security Agreement and under the Separate Security
Agreement, (iii) an executed Perfection Certificate
with respect to such Subsidiary (together with all
applicable Lien searches), (iv) Organizational
Documents described in Section 4.1(c)
16
with respect to such Subsidiary, (v) a written
opinion of counsel covering those matters addressed
in the opinion delivered on the Closing Date but
limited to such Subsidiary, (vi) Mortgages as and to
the extent required by Section 5.12 hereof, (vii)
such other security documents as may be reasonably
requested by the Administrative Agent or its counsel
and all of the foregoing in form and substance
reasonably satisfactory to the Administrative Agent
and its counsel, and (viii) if applicable,
certificates or other instruments (if any)
representing 100% of the Equity Interests in such
Subsidiary owned by a Credit Party together with an
undated stock power (or other appropriate document)
executed in blank for each such certificate or other
instrument."
(AAA) The first sentence of Section 5.12 of the Credit
Agreement is hereby amended in its entirety to read as follows:
"If, after the Amendment No. 1 Closing Date, any
Credit Party purchases, leases or otherwise acquires,
any Real Property Asset having a fair market value of
$10,000,000 or more, (i) promptly, but in any event
within thirty (30) days or such additional period of
time not to exceed thirty (30) days with the prior
written consent of the Administrative Agent, after
such purchase, lease or other acquisition, provide
written notice thereof to the Administrative Agent
and the Collateral Trustee, setting forth in
sufficient detail for the filing of a mortgage
thereon, a description of such Real Property Asset
purchased, leased or otherwise acquired and an
appraisal or such Credit Party's good faith estimate
of the current fair market value of such Real
Property Asset and (ii) the applicable Credit Party
shall promptly execute and deliver to the Collateral
Trustee (with copies to the Administrative Agent),
one or more Mortgages to secure the Senior Priority
Obligations (if outstanding) and the Pari Passu
Obligations and such other documents, instruments,
reports, opinions, insurance policies as the
Administrative Agent or its counsel shall reasonably
request (and in form and substance reasonably
satisfactory to the Administrative Agent and its
counsel) with respect to such Real Property Asset
consistent with the reports, opinions, insurance
policies and other information required to be
delivered with the other Mortgaged Real Property
Assets."
(BBB) Section 5.15(a) of the Credit Agreement is hereby
amended by deleting the words "Collateral Agent)" appearing at the end thereof
and inserting the following in lieu thereof:
"Collateral Trustee); provided, however, that the Net
Cash Proceeds (net of reasonable reserves for
transaction expenses with respect to the issuance of
the initial series of Secured Notes) from the
issuance of the initial series of Secured Notes shall
be held in the Prepayment Collateral Account in
accordance with Section 2.11(f) hereof."
(CCC) Section 5.15(b) of the Credit Agreement is hereby
amended in its entirety to read as follows:
"(b) Maintain the Purchase Escrow Account as a
Securities Account, which account is subject to a
Securities Account Control Agreement (in
17
form and substance satisfactory to the Administrative
Agent) which agreement shall provide, among other
things, that amounts in the Purchase Escrow Account
may be invested in Cash Equivalents of the type
described in clause (vi) of the definition of "Cash
Equivalents" in Article 1 hereof, as directed by RRI,
so long as no Event of Default has occurred and is
continuing."
(DDD) Section 5.18 of the Credit Agreement is hereby
amended in its entirety to read as set forth in Annex 1 hereto.
(EEE) Article 5 of the Credit Agreement is hereby amended
by adding the following new Sections at the end thereof:
"SECTION 5.22 Notification Relating to Tax Shelter
Regulations. In the event a Borrower determines to
take any action inconsistent with its intention set
forth in Section 3.27 hereof, promptly notify the
Administrative Agent thereof and deliver to the
Administrative Agent, a duly completed copy of IRS
Form 8886 (or any successor form thereto). If such
Borrower so notifies the Administrative Agent, such
Borrower acknowledges that one or more of the Lenders
may treat its loans and/or its interest in Letters of
Credit as part of a transaction that is subject to
Treasury Regulation Section 301.6112-1, and in which
case, such Lender or Lenders, as applicable, will
maintain the lists and other records required by such
Treasury Regulation.
SECTION 5.23 Intellectual Property. With respect to
any Credit Party, comply with the following covenants
in respect of any of such Credit Party's Intellectual
Property that constitutes Collateral:
(a) Each Credit Party shall notify the
Administrative Agent immediately if it knows or has
reason to know that any application or registration
relating to any Patent, Trademark or Material
Copyright (now or hereafter existing) may become
abandoned or dedicated or may lapse, or of any
adverse determination or development (including the
institution of, or any such determination or
development in, any proceeding in the PTO, the
Copyright Office or any court) regarding a Credit
Party's ownership of any Patent, Trademark, or
Material Copyright, its right to register the same,
or to keep and maintain the same;
(b) Each Credit Party, either itself or through
any agent, employee, licensee or designee, shall
notify the Administrative Agent and the Collateral
Trustee upon filing an application for the
registration of any Patent, Trademark, or Copyright
with the PTO, the Copyright Office or any similar
office or agency of any jurisdiction, and, upon
request of the Administrative Agent, such Credit
Party shall execute and deliver any and all Patent
Security Agreement Supplements, Trademark Security
Agreement Supplements or Copyright Security Agreement
Supplements (as such terms are defined in the
Security Agreement) as the Administrative Agent may
request to evidence the Collateral Trustee's (for the
benefit of the Secured Parties) security interest and
Lien in such
18
Patent, Trademark or Copyright (which is a Material
Copyright), and the general intangibles of such
Credit Party relating thereto or represented thereby;
(c) Each Credit Party shall register all
Material Copyrights of such Credit Party with the
Copyright Office and take all actions necessary or
requested by the Administrative Agent to maintain and
pursue each application, to obtain the relevant
registration and to maintain the registration of each
Material Copyright (now or hereafter existing);
(d) Each Credit Party shall take all actions
necessary or requested by the Administrative Agent to
maintain and pursue each application, to obtain the
relevant registration and to maintain the
registration of each Patent or Trademark (now or
hereafter existing), including the filing of
applications for renewal, affidavits of use,
affidavits of noncontestability and opposition and
interference and cancellation proceedings, unless the
applicable Credit Party shall reasonably determine
that such Patent or Trademark is not material to the
conduct of its business;
(e) In the event that any of the Collateral
consisting of Patents, Trademarks, or Copyrights is
infringed upon, or misappropriated or diluted by a
third party, the applicable Credit Party shall,
unless such Credit Party shall reasonably determine
that such Patent, Trademark or Copyright is no longer
material to the conduct of its business or
operations, take all reasonable actions, including
suing for infringement, misappropriation or dilution
and to recover any and all damages for such
infringement, misappropriation or dilution, and shall
periodically report to the Administrative Agent as to
the status of such actions;
(f) With respect to any Intellectual Property
constituting Collateral that any Credit Party has
reasonably determined continues to be useful and
material to the conduct of such Credit Party's
business, such Credit Party will not take or omit to
take any action whereby such Intellectual Property
could reasonably be expected to become abandoned,
dedicated, lapsed or invalidated;
(g) Each Credit Party assumes all responsibility
and liability arising from the use of the
Intellectual Property and hereby indemnifies and
holds the Administrative Agent, the Collateral
Trustee and each Secured Party harmless from and
against any claim, suit, loss, damage or expense
(including reasonable attorneys' fees) in connection
with such Intellectual Property or out of the
manufacture, promotion, labeling, sale or
advertisement of any such product by any Credit Party
(or any affiliate or Subsidiary thereof);
(h) Each Credit Party will do all things that
are necessary and proper within each Credit Party's
power and control to keep each license of or
constituting Intellectual Property held by such
Credit Party as licensee or licensor except to the
extent that (i) such Credit Party has reasonably
determined that the failure to keep any such license
in full force and effect could not be reasonably
expected to have a Material Adverse
19
Effect or (ii) any such license would expire by its
terms (as in effect on the date hereof) or is
terminable at will by a Person other than such Credit
Party; and
(i) Each Credit Party shall not create any
nonexclusive license in any Trademark, Copyright,
Patent or other Intellectual Property or general
intangible, in each case owned by or licensed to any
Credit Party unless such license is in writing and by
its terms is expressly subject and subordinate to the
security interest and Lien created by the Fundamental
Documents.
SECTION 5.24 Issuances of Additional Indebtedness. In
the event that RRI issues any Indebtedness after the
Amendment No. 1 Closing Date pursuant to Section
6.1(b)(i) hereof, which Indebtedness is to be secured
as permitted by, and in accordance with, Sections
6.1(b)(i) and 6.2(w) hereof, no later than five (5)
Business Days prior to the issuance of such
Indebtedness, deliver to the Collateral Trustee (and
in the case of the documents referred to in clause
(b) below, the applicable Title Company) (in all
cases, with copies to the Administrative Agent and in
the case of the documents referred to in clause (b)
below, the Collateral Trustee as well) each of the
following documents (all of which shall be in form
and substance satisfactory to the Administrative
Agent): (a) a certificate from RRI and any Credit
Party that is a guarantor of such Indebtedness
certifying that (i) the incurrence of such
Indebtedness does not violate the terms and
provisions of any agreement governing any then
existing Indebtedness, and (ii) no Event of Default
or Actionable Default (as defined in the Collateral
Trust Agreement) shall have occurred and then be
continuing, or will occur upon the issuance of such
Indebtedness and the related lien; (b) a supplemental
mortgage in recordable form, with respect to each
Mortgaged Real Property Asset then in existence; (c)
a title insurance endorsement or such other evidence
or confirmation as is reasonably requested by the
Administrative Agent with respect to each existing
Title Policy confirming that the Mortgages, as so
supplemented, continue to secure the Pari Passu
Obligations as applicable, free of all Liens other
than the Permitted Encumbrances; (d) a reliance
letter addressed to the Collateral Trustee, the
Administrative Agent, the Tranche A Agent, the
Issuing Banks, the Collateral Agent, the Tranche A
Collateral Agent and the Lenders for each opinion
being delivered by counsel to any of the Credit
Parties in connection with the issuance of such
Indebtedness; and (e) such other supplements and
documents (including opinions) as may be reasonably
requested by the Administrative Agent or the
Collateral Trustee."
(FFF) Clause (ii) of Section 6.1(b) of the Credit Agreement
is hereby amended by deleting the figure "$200,000,000" appearing therein and
inserting the figure "$300,000,000" in lieu thereof.
(GGG) Section 6.2(c) of the Credit Agreement is hereby
amended in its entirety to read as follows:
20
"(c) the Liens of the Collateral Agent (for the
benefit of the applicable Credit Agreement Secured
Parties), the Collateral Trustee (for the benefit of
the applicable Secured Parties) or the Tranche A
Collateral Agent (for the benefit of the Lenders owed
the Adjusted Tranche A Obligations) under this Credit
Agreement, the other Fundamental Documents and any
other document contemplated hereby or thereby;"
(HHH) Section 6.2(w) of the Credit Agreement is hereby
amended in its entirety to read as follows:
"(w) Liens securing Indebtedness permitted under
Section 6.1(b), 6.1(l) and/or 6.1(q) hereof;
provided, that any Liens securing Indebtedness
permitted under Section 6.1(b) shall be granted to
the Collateral Trustee and shall be subject to the
Collateral Trust Agreement; and"
(III) Section 6.2(x) of the Credit Agreement is hereby
amended by adding ", L.P." after the words "Texas Genco" appearing in such
Section.
(JJJ) Section 6.3(u) of the Credit Agreement is hereby
amended by inserting the words "or any Subsidiary of a Credit Party" after the
words "Credit Party" the first time such words appear in such Section.
(KKK) The last paragraph of Section 6.3 of the Credit
Agreement is hereby amended by inserting the words "Section 6.3(k) or" before
the words "Section 6.3(u)" appearing therein.
(LLL) Section 6.4(a)(iii) of the Credit Agreement is hereby
amended by adding the following text at the end thereof, immediately after the
words "rights offering" as they appear for the second time in Section:
", and (z) payments for the redemption of any
fractional share issued in connection with a
conversion of any convertible security constituting a
Junior Security"
(MMM) Section 6.4(b) of the Credit Agreement is hereby
amended by (i) inserting the words "described in clause (i) through (iv) above"
after the words "in all the foregoing cases" appearing in the proviso at the end
of such Section, and (ii) adding the following text at the end of such Section,
immediately after the word "continuing":
", and (v) to make prepayments or repurchases in
respect of Indebtedness incurred pursuant to Section
6.1(b)(i) hereof which prepayments or repurchases are
made from proceeds of asset sales in accordance with
the terms and provisions of the applicable Secured
Note Agreement for such Indebtedness."
(NNN) Section 6.11 of the Credit Agreement is hereby
amended by inserting the following text immediately after clause (ii)(B) of such
Section:
"or (C) restrictions and conditions set forth in any
agreement creating or evidencing any Indebtedness
permitted by Section 6.1(b)(i) hereof; provided, that
any such Indebtedness and such restrictions and
conditions
21
continue to satisfy each of the conditions set forth
in such Section 6.1(b)(i),"
(OOO) Section 6.14 of the Credit Agreement is hereby
amended by (i) deleting the words "Collateral Agent" appearing at the end
thereof and inserting the words "Collateral Trustee" in lieu thereof and (ii)
inserting the word "applicable" immediately before the words "Secured Parties"
appearing therein.
(PPP) Section 6.15 of the Credit Agreement is hereby
amended by (i) inserting "(a)" at the beginning thereof, immediately before the
word "Sell"; (ii) replacing "(a)" and "(b)" appearing in such Section with "(i)"
and "(ii)" respectively; and (iii) adding the following section at the end
thereof:
"(b) Without the Administrative Agent's prior
written consent (which consent shall not be
unreasonably withheld or delayed): (i) grant any
extension of the time of payment of any of the
Collateral consisting of Accounts, Chattel Paper,
Instruments (as defined in the Security Agreement) or
payment intangibles or (ii) release, wholly or
partly, any obligor liable for the payment thereof,
provided, however, the foregoing shall not restrict
any extensions or releases granted or made by any
Credit Party in the ordinary course of such Credit
Party's business and consistent with such prudent
practices used in industries that are the same as or
similar to those which such Credit Party is engaged."
(QQQ) Article 6 of the Credit Agreement is hereby amended
by adding the following new Section at the end thereof:
"SECTION 6.22 Use of Mortgaged Real Property Assets.
(a) Unless (i) required by Applicable Law, (ii) the
Administrative Agent has otherwise agreed in writing,
or (iii) otherwise expressly provided herein, allow
changes in the use for which all or any part of any
Mortgaged Real Property Asset was intended at the
time the applicable Mortgage and/or Assignment of
Leases and Rents with respect to such Mortgaged Real
Property Asset was executed by the applicable Credit
Party, if such change would have a Material Adverse
Effect."
(b) Except as expressly permitted under this
Credit Agreement, subdivide any Mortgaged Real
Property Asset, or initiate or acquiesce in a change
in the zoning classification of any Mortgaged Real
Property Asset without the Administrative Agent's
prior written consent, if such change would have a
Material Adverse Effect."
(RRR) Section 7(a) of the Credit Agreement is hereby
amended by inserting the words "the Collateral Trustee," immediately after the
words "the Collateral Agent," appearing therein.
(SSS) The parenthetical phrase appearing at the end of
Section 7(f) of the Credit Agreement is hereby amended in its entirety to read
as follows:
"(provided that the foregoing clause of this
paragraph (f) shall not apply to (i) secured
Indebtedness permitted hereunder that becomes due
prior to its stated maturity as a result of the
voluntary sale or transfer as permitted hereunder, or
from a casualty or Condemnation Event, in either
22
case of the property or assets securing such
Indebtedness or (ii) secured Indebtedness issued
pursuant to Section 6.1(b)(i) hereof that is required
to be prepaid or repurchased as a result of an offer
to prepay or repurchase such Indebtedness with the
proceeds of asset sales in accordance with the terms
and provisions of the applicable Secured Note
Agreement for such Indebtedness);"
(TTT) Section 7(m) of the Credit Agreement is hereby
amended in its entirety to read as follows:
"(m) (i) this Credit Agreement, the Security
Agreement, any Mortgage, any Assignment of Leases and
Rents, or any other Fundamental Document shall, for
any reason, not be or shall cease to be in full force
and effect or shall be declared null and void, or any
of the Fundamental Documents shall not give or shall
cease to give the Administrative Agent, the
Collateral Agent, the Collateral Trustee, the other
Agents, the Lenders or any of the other Secured
Parties (as applicable), the rights, powers and
privileges purported to be created thereby or shall
not give or shall cease to give the Collateral Agent,
the Collateral Trustee and/or the Tranche A
Collateral Agent (as applicable) the Liens, rights,
powers and privileges purported to be created thereby
in favor of the Collateral Agent (for the benefit of
the Credit Agreement Secured Parties), the Collateral
Trustee for the benefit of the Secured Parties,
and/or the Tranche A Collateral Agent for the benefit
of the Lenders owed the Adjusted Tranche A
Obligations (respectively) superior to and prior to
the rights of all third Persons and subject to no
other Liens (other than Permitted Encumbrances), or
(ii) the validity or enforceability of the Liens
granted, to be granted, or purported to be granted,
by any of the Fundamental Documents shall be
contested by any Credit Party or any of their
respective Affiliates; provided, that no such defects
pursuant to clause (i) above with respect to a Lien
granted or purported to be granted by any of the
Fundamental Documents shall give rise to an Event of
Default under this paragraph (m) unless such defects
shall adversely affect the aggregate value of the
Collateral or the Mortgaged Real Property Assets
(taken as whole) by an aggregate amount of
$50,000,000 or more;"
(UUU) The last paragraph of Article 7 of the Credit
Agreement is hereby amended by (i) deleting the first parenthetical phrase
appearing in such Section immediately preceding clause (x) therein, and (ii)
inserting the words "the Collateral Trustee," immediately following the words
"the Collateral Agent" as such words appear in the last sentence of such
paragraph.
(VVV) The first sentence of Section 8.1(a) of the Credit
Agreement is hereby amended by inserting the words "Credit Agreement"
immediately preceding the words "Secured Parties" appearing in such sentence.
(WWW) Clauses (i), (iv), (v) and (viii) of Section 8.1(b)
of the Credit Agreement are hereby amended by inserting the words "the
Collateral Trustee," immediately after the words "the Collateral Agent," each
time such words appear in such clauses.
23
(XXX) Clause (ix) of Section 8.1(b) of the Credit Agreement
is hereby amended in its entirety to read as follows:
"(ix) any provision of Applicable Law or regulation
purporting to prohibit the payment by any Borrower,
any Guarantor or OPH of any amount payable by it
under a Fundamental Document."
(YYY) Section 8.1(c) of the Credit Agreement is hereby
amended by inserting the words "the Collateral Trustee," immediately after the
words "the Collateral Agent," each time such words appear in such Section.
(ZZZ) Section 8.1(e) of the Credit Agreement is hereby
amended by inserting the words "the Collateral Trustee," immediately following
the words "the Collateral Agent," appearing in such Section.
(AAAA) Section 8.2 of the Credit Agreement is hereby amended
by inserting the words "the Collateral Trustee," immediately following the words
"the Collateral Agent," appearing in such Section.
(BBBB) Section 8.3 of the Credit Agreement is hereby amended
in its entirety to read as follows:
"SECTION 8.3 Continuation and Reinstatement, etc. (a)
Each Guarantor further agrees that its Guaranty
hereunder shall continue to be effective or be
reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the
Guaranteed Obligations is rescinded or must otherwise
be restored or returned by any Secured Party upon the
bankruptcy or reorganization of any Borrower or any
Guarantor, or otherwise. In furtherance of the
provisions of this Article 8, and not in limitation
of any other right which any Credit Agreement Secured
Party may have at law or in equity against any
Borrower, any Guarantor or any other Person by virtue
hereof, upon failure of any Borrower to pay any
Obligation when and as the same shall become due,
whether at maturity, by acceleration, after notice or
otherwise, each applicable Guarantor hereunder of
such Obligation hereby promises to and will, upon
receipt of written demand by the Administrative Agent
(acting at the request of a Credit Agreement Secured
Party), forthwith pay or cause to be paid to the
Administrative Agent for the benefit of the Credit
Agreement Secured Parties (as applicable) in cash an
amount equal to the unpaid amount of such Obligation
with interest thereon at a rate of interest equal to
the rate specified in Section 2.12(a) hereof, and
thereupon the Administrative Agent shall assign,
without recourse and without representation or
warranty of any kind, such Obligation, and shall
instruct the Collateral Trustee or the Tranche A
Collateral Agent (as applicable), without recourse
and without representation or warranty of any kind,
to assign all security interests, if any, then held
by the Collateral Trustee or the Tranche A Collateral
Trustee (as applicable), in respect of such
Obligation, to the Guarantor or Guarantors making
such payment; such assignment to be subordinate and
junior to the rights of the Collateral Agent, the
Collateral Trustee or the Tranche A Collateral Agent
on behalf of the Credit Agreement Secured Parties,
the Secured
24
Parties or the Lenders owed the Adjusted Tranche A
Obligations (as applicable) with regard to amounts
payable by any Borrower in connection with the
remaining unpaid Obligations (including Post-Petition
Interest) and to be pro tanto to the extent to which
the Obligation in question was discharged by the
Guarantor or Guarantors making such payments.
(b) All rights of a Guarantor against any
Borrower, arising as a result of the payment by such
Guarantor of any sums to the Administrative Agent for
the benefit of the Credit Agreement Secured Parties,
to the Tranche A Agent for the benefit of the Tranche
A Lenders, or directly to the Lenders or Credit
Agreement Secured Party hereunder by way of right of
subrogation or otherwise, shall in all respects be
subordinated and junior in right of payment to, and
shall not be exercised by, such Guarantor until and
unless, the occurrence of the Bank Credit Termination
Date. If any amount shall be paid to such Guarantor
for the account of a Borrower, such amount shall be
held in trust for the benefit of the Administrative
Agent, segregated from such Guarantor's own assets,
and shall forthwith be paid to the Administrative
Agent on behalf of the applicable Credit Agreement
Secured Parties to be credited and applied to the
Obligations, whether matured or unmatured."
(CCCC) Section 8.4(b) of the Credit Agreement is hereby
amended in its entirety to read as follows:
"(b) Notwithstanding anything to the contrary
contained in this Credit Agreement (but subject to
the terms and provisions of Section 8.4(a) above),
the amount guaranteed by each Limited Guarantor
hereunder shall be limited to an amount calculated as
described in Part B of Schedule 8.4 hereto; provided,
however, that the foregoing shall cease to apply to
any Limited Guarantor on the date on which the
contractual obligation (or replacement thereof to the
extent permitted by the terms of this Credit
Agreement) that prohibited such Limited Guarantor
from guaranteeing its Guaranteed Obligations
hereunder in full shall no longer be in effect."
(DDDD) Article 8 of the Credit Agreement is hereby amended
by adding the following new Section at the end thereof:
"8.6 Release of any Guaranty. The Credit Parties
hereby agree that in the event any Guarantor or OPH
is to be released from its obligations under any
Guaranty pursuant to any of the Fundamental Documents
(such entity being referred to as a "Released
Guarantor"), then RRI and/or the Released Guarantor
shall arrange for, or otherwise cause, any Guaranty
from such Released Guarantor which was issued in
connection with any Indebtedness to also be released
prior to, or concurrently with, the release of any
Guaranty pursuant to any of the Fundamental
Documents. The Lenders hereby agree that in the event
any Guarantor or OPH is released from its obligations
under any Guaranty pursuant to any of the Fundamental
Documents and such Guarantor or OPH (as applicable)
is an issuer of "Excluded Securities" (as defined in
the
25
Collateral Trust Agreement) in which the Collateral
Trustee holds a Lien solely for the benefit of the
Credit Agreement Secured Parties, then (a) the
Collateral Trustee's Lien on the Excluded Securities
shall also be released upon the release of all
Guaranties issued by such Released Guarantor under
the Fundamental Documents and in connection with any
Indebtedness, and (b) the Administrative Agent and/or
the Collateral Agent shall at the request of RRI,
release, or direct the Collateral Trustee to release,
any Liens on such Excluded Securities."
(EEEE) Article 9 of the Credit Agreement is hereby amended
in its entirety to read as set forth in Annex 2 hereto.
(FFFF) Section 10.1(c) of the Credit Agreement is hereby
amended in its entirety to read as follows:
"(c) The Secured Parties hereby authorize the
Administrative Agent or the Collateral Agent as
applicable (in its sole discretion) to do any of the
following, and during the Designated Period, the
Tranche A Collateral Agent to take the actions set
forth below:
(i) in connection with (A) the sale, exchange or
other disposition of any asset included in the
Collateral, of any Mortgaged Real Property Asset or
of all of the Equity Interests of any Guarantor, or
(B) any sale, dissolution or liquidation of any
Subsidiary, in each case to the extent undertaken in
accordance with the terms of this Credit Agreement;
and, provided no Default or Event of Default has
occurred and is then continuing, (x) in the case of
the Administrative Agent or the Collateral Agent, to
authorize the Collateral Trustee to release a Lien
granted to it (for the benefit of any Secured
Parties) and/or to release (or, in the case of OPH
Guaranty Agreement, to authorize the Collateral
Trustee to release) such Guarantor from its
obligations hereunder and under any other applicable
Fundamental Documents or (y) in the case of the
Tranche A Collateral Agent, to release a Lien granted
to it (for the benefit of any Lenders owed the
Adjusted Tranche A Obligations), on such asset,
Mortgaged Real Property Asset or Equity Interest;
(ii) [Intentionally deleted.]
(iii) in connection with any monetization or
securitization permitted under Section 6.1(k) and
6.2(p) hereof, to authorize the Collateral Trustee to
release the Lien granted to it (for the benefit of
any Secured Parties) on the property sold in such
transaction upon the closing thereof;
(iv) to determine that the cost to RRI or another
Credit Party is disproportionate to the benefit to be
realized by the Administrative Agent, the other
Agents, the Collateral Agent, the Tranche A Agent,
the Tranche A Collateral Agent, Lenders owed the
Adjusted Tranche A Obligations, the Issuing Banks,
the Lenders, the Collateral Trustee and/or the other
Secured Parties by perfecting or maintaining a Lien
in a given asset or group of assets included in the
Collateral or in any Mortgaged Real Property Asset,
and that RRI or other Credit Party should not be
26
required to perfect or maintain such Lien in favor of
the Collateral Trustee (for the benefit of any
Secured Parties) or the Tranche A Collateral Agent
(for the benefit of any Lenders owed the Adjusted
Tranche A Obligations) (as applicable);
(v) to appoint subagents to be the holder of
record of a Lien to be granted to the Collateral
Agent (for the benefit of any Credit Agreement
Secured Parties), to the Tranche A Collateral Agent
(for the benefit of any Lenders owed the Adjusted
Tranche A Obligations) or to the Collateral Trustee
(for the benefit of any Secured Parties) (as
applicable), or to hold on behalf of the Collateral
Agent, the Tranche A Collateral Agent or the
Collateral Trustee such Lien, or Collateral or
instruments relating thereto;
(vi) to enter into and perform its obligations
(including exercising its discretion as provided
therein) under the other Fundamental Documents,
including performing its obligations or exercising
its discretion under the terms of the Collateral
Trust Agreement, whether as Administrative Agent, as
Collateral Agent or as co-trustee, agent or sub-agent
for the Collateral Trustee and releasing, or
confirming the release of, any Lien granted for the
benefit of any applicable Secured Party, which
release is authorized pursuant to any Fundamental
Document; and
(vii) to enter into (and/or authorize the
Collateral Trustee to enter into) intercreditor
and/or subordination agreements on terms acceptable
to the Administrative Agent with Persons who have
been granted Liens which are permitted pursuant to
Section 6.2 hereof, including the Citibank
Intercreditor Agreement and the Genco Intercreditor
Agreement.
The Collateral Agent or the Administrative Agent and,
during the Designated Period, the Tranche A Agent or
the Tranche A Collateral Agent (as applicable),
hereby agrees, at the written request of RRI, to
release or direct the Collateral Trustee to release,
or to confirm the release or direct the Collateral
Trustee to confirm the release of (as applicable),
the applicable Lien granted for the benefit of any
Credit Agreement Secured Parties, any Adjusted
Tranche A Obligations or any Secured Parties (as
applicable), pursuant to any Fundamental Document in
the case of any event described in clause (c)(i),
(c)(iii) or (c)(vi) above."
(GGGG) Section 10.2(a) of the Credit Agreement is
hereby amended by inserting the following text at the end thereof, immediately
after the words "Revolving Credit Loans":
"; or (2) in the case of a Senior Priority Loan, at
the Base Rate plus the Applicable Interest Margin for
Base Rate Loans which are Senior Priority Loans."
(HHHH) The first paragraph of Section 10.2(b) of
the Credit Agreement is hereby amended by inserting the words "Credit Agreement"
immediately before the words "Secured Parties" appearing in such first
paragraph.
27
(IIII) The last paragraph of Section 10.2(b) of the Credit
Agreement is hereby amended by inserting the words "Credit Agreement"
immediately before the words "Secured Party" or "Secured Party's", each place
such words appear in such Section.
(JJJJ) Section 10.5 of the Credit Agreement is hereby
amended by inserting the words "Credit Agreement" immediately before the words
"Secured Parties" each place such words appear in such Section.
(KKKK) The first sentence of Section 10.12 of the Credit
Agreement is hereby amended by deleting the phrase "or the Collateral Agent"
appearing therein and inserting the words ", the Collateral Agent or the
Collateral Trustee" in lieu thereof.
(LLLL) Section 10.14(b) of the Credit Agreement is hereby
amended in its entirety to read as follows:
"(b) If the Administrative Agent, the Collateral
Agent, the Collateral Trustee, the Tranche A Agent,
the Tranche A Collateral Agent, any Issuing Bank, any
Lender or any other Credit Agreement Secured Party is
required at any time to return to RRI or any other
Credit Party, or to a trustee, receiver, liquidator,
custodian, or any official under any proceeding under
any Debtor Relief Law or otherwise, any portion of a
payment made by RRI or any other Credit Party, each
Lender or other Credit Agreement Secured Party agrees
that it shall, on demand of the Administrative Agent
or Collateral Trustee, return its share of the amount
to be returned which was received by the applicable
Lender or other Credit Agreement Secured Party, plus
interest thereon from the date of such demand to the
date such payment is made at a rate per annum equal
to the Federal Funds Rate."
(MMMM) The second address appearing in clause (i) of Section
11.1(a) of the Credit Agreement is hereby amended in its entirety to read as
follows:
"1111 Louisiana Street
Houston, Texas 77002
Attention: General Counsel
Facsimile No.: (713) 497-0140
Telephone No.: (713) 497-7265"
(NNNN) Clause (vi) of Section 11.1(a) of the Credit
Agreement is hereby amended by deleting the last three (3) lines of such clause
and inserting the following in lieu thereof:
"Attention: Eric Chilton
Facsimile No.: (212) 412-7691
Telephone No.: (212) 412-1485"
(OOOO) Section 11.2 of the Credit Agreement is hereby
amended in its entirety to read as follows:
"SECTION 11.2 Survival of Agreement, Representations
and Warranties, etc. All warranties, representations
and indemnities made by any of the Credit Parties
herein, in any other Fundamental Document or
28
in any certificate or instrument delivered by it or
on its behalf in connection with or pursuant to this
Credit Agreement or any other Fundamental Document
shall be considered to have been relied upon by the
Administrative Agent, the other Agents, the
Collateral Agent, the Collateral Trustee, the Tranche
A Agent, the Tranche A Collateral Agent, the Issuing
Banks and the Lenders and, except for any
terminations, amendments, modifications or waivers
thereof in accordance with the terms hereof, shall
survive the execution and delivery of this Credit
Agreement, the combination and continuation of the
Existing Loans, the making of any Revolving Credit
Loans, the making of any Senior Priority Loans and
the issuance of the Letters of Credit herein
contemplated, and the execution and delivery of any
Notes hereunder, in each case, regardless of any
investigation made by the Administrative Agent, the
other Agents, the Collateral Agent, the Collateral
Trustee, the Tranche A Agent, the Tranche A
Collateral Agent, any Issuing Bank or any of the
Lenders or on their behalf and notwithstanding the
Administrative Agent, the other Agents, the
Collateral Agent, the Collateral Trustee, the Tranche
A Agent, the Tranche A Collateral Agent, any Issuing
Bank or any Lender may have had notice or knowledge
of any Default or Event of Default or incorrect
representation or warranty at the time any credit is
extended hereunder, and shall continue in full force
and effect so long as any Obligation is outstanding
and unpaid, any Letter of Credit is outstanding and
so long as the Revolving Credit Commitments or the
Senior Priority Commitments have not been terminated.
All statements in any such certificate or instrument
delivered in connection with, or pursuant to this
Credit Agreement or any other Fundamental Document
shall constitute representations and warranties by
the Credit Parties hereunder. Notwithstanding the
foregoing, any representation, warranty, agreement or
indemnity with respect to any tax shall survive at
least until thirty (30) days after the expiration of
the applicable statute of limitations with respect to
such tax."
(PPPP) The first sentence of Section 11.9 of the Credit
Agreement is hereby amended by inserting the words "the Collateral Trustee,"
immediately after the words "the Collateral Agent," appearing in such sentence.
(QQQQ) Clause (a) of Section 11.11 of the Credit Agreement
is hereby amended by deleting the phrase "and 11.11(c)" in the second line of
such Section and inserting the phrase "through 11.11(f)" in lieu thereof.
(RRRR) Section 11.11(c) of the Credit Agreement is hereby
deleted in its entirety and replaced with the following:
"[INTENTIONALLY DELETED]"
(SSSS) The proviso in Section 11.13 of the Credit Agreement
is hereby amended by inserting the words ", the Collateral Trustee," immediately
after the words "the Collateral Agent" as it appears in the proviso.
29
(TTTT) The first sentence of Section 11.18(a) of the Credit
Agreement is hereby amended by (i) deleting the word "or" appearing immediately
before clause (viii) appearing therein, and (ii) inserting the following new
clause at the end of such sentence, immediately after the words "contemplated
thereby":
"or (ix) to the Collateral Trustee."
(UUUU) Section 11.18(b) of the Credit Agreement is hereby
amended in its entirety to read as follows:
"(b) Notwithstanding anything to the contrary
contained in this Credit Agreement or any other
express or implied agreement, arrangement or
understanding, "Information" shall not include, and
the Credit Parties and Lenders agree that any of the
Agents, the Collateral Agent, the Tranche A Agent,
the Tranche A Collateral Agent, the Issuing Banks,
the Lenders and their affiliates, employees,
representatives and other agents may disclose to any
and all Persons, without limitation of any kind, any
information with respect to the "tax treatment" and
"tax structure" (in each case, within the meaning of
Treasury Regulation Section 1.6011-4) of the
transactions contemplated hereby and all materials of
any kind (including opinions or other tax analyses)
that are provided to any of the Agents, the
Collateral Agent, the Tranche A Agent, the Tranche A
Collateral Agent, the Issuing Banks or the Lenders
relating to such tax treatment and tax structure;
provided that with respect to any document or similar
item that in either case contains information
concerning the tax treatment or tax structure of the
transaction as well as other information, this
sentence shall only apply to such portions of the
document or similar items that relate to the tax
treatment or tax structure of the transactions
contemplated hereby."
(VVVV) The first sentence of Section 11.19 of the Credit
Agreement is hereby amended in its entirety to read as follows:
"Each of this Credit Agreement (including the
Exhibits and Schedules hereto), the Fee Letters, the
Security Documents relating to the grant of a Lien to
the Collateral Agent (for the benefit of the Credit
Agreement Secured Parties), to the Collateral Trustee
(for the benefit of the Secured Parties) or to the
Tranche A Collateral Agent (for the benefit of the
Tranche A Lenders), and other Fundamental Documents
represents the entire agreement of the parties with
regard to the subject matter hereof or thereof (as
applicable)."
(WWWW) Section 11.21 of the Credit Agreement is hereby
amended by inserting the words "the Collateral Trustee," immediately after the
words "the Collateral Agent," as it appears in such Section.
(XXXX) Clause (c) of the first sentence of Section 11.22 of
the Credit Agreement is hereby amended in its entirety to read as follows:
"(c) financial statements, certificates, and
other information previously or hereafter furnished
to any of the Agents, the Collateral
30
Agent, the Collateral Trustee, the Tranche A Agent,
the Tranche A Collateral Agent, any Co-Lead Arranger,
any Joint Book-Running Manager, any Issuing Bank or
any Lender may be reproduced by the party receiving
the same or the Administrative Agent by any
photographic, photostatic, microfilm, micro-card,
miniature photographic or other similar process."
(YYYY) Section 11.25 of the Credit Agreement is hereby amended
by inserting the phrase "and the Collateral Trust Agreement" immediately after
the defined term "Intercreditor Agreements" each time such defined term appears
in such Section or in the heading of such Section.
(ZZZZ) Article 11 of the Credit Agreement is hereby amended by
adding the following new Sections at the end thereof:
"SECTION 11.26 Confirmation by the Lenders. Within
three (3) Business Days of any request by the
Administrative Agent or the Collateral Agent, each
Lender agrees that it will confirm the aggregate
amount of the Obligations owed to such Lender. In the
event any Lender fails to timely provide such
confirmation, such Lender agrees that the
Administrative Agent or the Collateral Agent (as
applicable) may use as the amount of Obligations owed
to such Lender the amounts set forth in the Register.
SECTION 11.27 Sharing of Liens. (a) Notwithstanding
(i) anything to the contrary contained in the
Fundamental Documents, (ii) the time of incurrence of
any Restructured Obligations, any series of Secured
Notes or any other Pari Passu Obligations, (iii) the
order or method of attachment or perfection of any
Liens securing any Restructured Obligations, any
series of Secured Notes or any other Pari Passu
Obligations, (iv) the time or order of filing or
recording of financing statements, mortgages or other
documents filed or recorded to perfect any Lien upon
any Shared Collateral, (v) the time of taking
possession or control over any Shared Collateral or
(vi) the rules for determining priority under any law
governing relative priorities of Liens:
(x) all Liens at any time granted by
RRI or any of its Subsidiaries in the Shared
Collateral to secure any Restructured Obligations,
any series of Secured Notes or any other Pari Passu
Obligations shall secure, Equally and Ratably, all
liabilities of RRI or such Subsidiary under or in
respect of the Restructured Obligations, Secured
Notes and other Pari Passu Obligations, and
(y) all proceeds of all Liens at any
time granted by RRI or any of its Subsidiaries in the
Shared Collateral to secure any Restructured
Obligations, any series of Secured Notes or any other
Pari Passu Obligations shall be allocated and
distributed Equally and Ratably on account of all
liabilities of RRI or such Subsidiary under or in
respect of the Restructured Obligations, Secured
Notes and other Pari Passu Obligations.
31
(b) The provisions of this Section 11.27 are
intended for the benefit of, and shall be enforceable
as a third party beneficiary by, the Collateral
Trustee and each of the present and future holders of
Secured Notes and their trustees or representatives."
(AAAAA) Schedule 6.5 of the Credit Agreement is hereby amended
in its entirety by replacing it with Schedule 6.5 (Revised) attached hereto.
(BBBBB) Schedule 8.4 of the Credit Agreement is hereby amended
in its entirety by replacing it with Schedule 8.4 (Revised) attached hereto.
(CCCCC) Schedules 8.4(a) and 8.4(b) of the Credit Agreement
are hereby deleted in their entirety; and the references to such Schedules are
hereby deleted from the Table of Contents of the Credit Agreement.
(DDDDD) Exhibit C to the Credit Agreement is hereby amended in
its entirety by replacing it with Exhibit C (Revised) attached hereto.
(EEEEE) Exhibit D to the Credit Agreement and the reference
thereto in the Table of Contents of the Credit Agreement, are hereby deleted in
their entirety and replaced with the words "[Intentionally Deleted]".
SECTION 2. Representations and Warranties. Each of the Credit Parties
represents and warrants as of the date hereof and as of the Amendment No. 1
Effective Date, to each of the Agents, the Tranche A Agent, the Issuing Banks
and the Lenders that:
(A) the execution, delivery and performance by each of
the Credit Parties of this Amendment, the Credit Agreement as modified by this
Amendment, the Collateral Trust Agreement (as defined in Section 3 hereof) and
any other documents delivered pursuant to Section 4 hereof (i) have been duly
authorized by all requisite corporate, partnership or limited liability company
action (as applicable) on the part of each such Credit Party; and (ii) will not
violate (x) any provision of any statute, rule or regulation, or any
Organizational Document of any of the Credit Parties, (y) any applicable order
of any court or any rule, regulation or order of any other agency of government,
or (z) any indenture, agreement or other instrument to which any of the Credit
Parties is a party or by which any of the Credit Parties or any of their
respective properties is bound, or be in conflict with, result in a breach of,
constitute (with notice or lapse of time or both) a default under, or create any
right to terminate, any such indenture, agreement, or other instrument;
(B) upon the occurrence of the Amendment No. 1 Effective
Date (as defined in Section 4 below), this Amendment and each other agreement
delivered pursuant to Section 4 hereof will constitute the legal, valid and
binding obligation of the applicable Credit Parties that are party thereto,
enforceable in accordance with its terms, except as the enforceability thereof
may be limited by applicable bankruptcy, insolvency, reorganization or other
similar laws affecting creditors' rights generally and by general equitable
principles (regardless of whether the issue of enforceability is considered in a
proceeding in equity or at law);
(C) no Default or Event of Default shall have occurred
and then be continuing under the Credit Agreement;
32
(D) the Credit Parties have obtained all consents and
waivers from any Persons necessary for the execution, delivery and performance
of this Amendment and any other document or transaction contemplated hereby; and
(E) after giving effect to this Amendment, all
representations and warranties set forth in the Credit Agreement and the other
Fundamental Documents are true, correct and complete in all material respects on
and as of the date hereof with the same effect as if such representations and
warranties had been made on and as of the date hereof, unless such
representation is as of a specific date, in which case, as of such date.
SECTION 3. Authorization, Acknowledgements and Agreements of the
Lenders.
(A) The Lenders hereby authorize the Administrative Agent
and/or the Collateral Agent to enter into (i) a collateral trust agreement which
is in form and substance satisfactory to the Agents (the "Collateral Trust
Agreement"), (ii) such amendments to the Fundamental Documents as are necessary,
advisable, or otherwise requested by RRI to implement the terms and provisions
of the Collateral Trust Agreement; and (iii) OPH Guaranty Agreement (as defined
in Section 1(V) above).
(B) The Lenders hereby acknowledge and agree (i) to be
bound by the terms and provisions of the executed Collateral Trust Agreement and
(ii) that any costs, expenses, liabilities or other obligations incurred by the
Administrative Agent or the Collateral Agent pursuant to, or in connection with,
the Collateral Trust Agreement shall be subject to reimbursement and
indemnification by the Lenders in accordance with Section 10.6 of the Credit
Agreement.
SECTION 4. Effective Date. This Amendment shall not become effective
until the date on which all of the following conditions precedent shall have
been satisfied, or waived in writing (such date being referred to herein as the
"Amendment No. 1 Effective Date"):
(A) The Administrative Agent shall have received fully
executed counterparts of this Amendment executed by (i) the Credit Parties, (ii)
the Administrative Agent, (iii) the Required Lenders and (iv) the Required
Senior Priority Lenders.
(B) The Secured Note Agreements (as defined in Section
1(V) above) for the initial series of Secured Notes (as defined in Section 1(V)
above and which for purposes of this Amendment shall mean all of the Secured
Notes to be issued by RRI on July 1, 2003) shall have been executed and
delivered by all of the parties thereto. The initial of series Secured Notes
shall have been issued; 100% of the Net Cash Proceeds from such issuance shall
have been directly wire transferred and irrevocably deposited into the
Prepayment Collateral Account; and RRI shall have given irrevocable written
instructions (in form and substance satisfactory to the Administrative Agent and
the Collateral Agent) that the Collateral Agent apply such proceeds so deposited
as provided in Section 2.11(f) as amended hereby).
(C) The Administrative Agent shall have received fully
executed copies of each of the documents required in connection with the
Collateral Trust Agreement and the transactions contemplated therein and all of
such documents shall be in form and substance reasonably satisfactory to the
Administrative Agent, the Collateral Agent, the other Agents and their
respective counsel.
(D) The Administrative Agent shall have received the
written opinion of (i) Bracewell & Patterson, L.L.P., counsel to the Credit
Parties, and (ii) from counsel to the Credit Parties in each jurisdiction where
a Mortgaged Real Property Asset is located, each dated the Amendment No. 1
Effective Date and addressed to the Agents, the Tranche A Agent, the Issuing
Banks, the Collateral
33
Agent, the Tranche A Collateral Agent and the Lenders, which opinions shall be
in form and substance reasonably satisfactory to the Administrative Agent and
its counsel.
(E) The Agents and their respective counsels shall have
received such approvals, information, materials and documentation as any of the
Agents or their respective counsel may reasonably request, which approvals,
information, materials and documentation shall be reasonably satisfactory in
form and substance to the Agents and their respective counsel.
(F) All fees and other charges presently due and payable
to the Administrative Agent or any Lender pursuant to any Fundamental Document
shall have been paid by RRI.
(G) All out-of-pocket expenses incurred by the Agents and
invoiced by 5:00 p.m. (New York City time) two (2) Business Days prior to the
Amendment No. 1 Effective Date, which expenses have been incurred in connection
with the Credit Agreement, this Amendment, any other Fundamental Document or the
transactions contemplated by any of the foregoing (including, without
limitation, the reasonable fees and disbursements of Clifford Chance US LLP)
shall have been paid by RRI.
SECTION 5. CONFIRMATION AND ACKNOWLEDGEMENT OF THE OBLIGATIONS;
RELEASE. EACH OF THE BORROWERS HEREBY (A) CONFIRMS AND ACKNOWLEDGES TO THE
AGENTS, THE ISSUING BANKS AND THE LENDERS THAT IT IS VALIDLY AND JUSTLY INDEBTED
TO THE AGENTS, THE ISSUING BANKS AND THE LENDERS FOR THE PAYMENT OF ALL
OBLIGATIONS (AS DEFINED IN THE CREDIT AGREEMENT) WITHOUT OFFSET, DEFENSE, CAUSE
OF ACTION OR COUNTERCLAIM OF ANY KIND OR NATURE WHATSOEVER AND (B) REAFFIRMS AND
ADMITS THE VALIDITY AND ENFORCEABILITY OF THE CREDIT AGREEMENT AND THE OTHER
FUNDAMENTAL DOCUMENTS AND THE LIENS IN THE COLLATERAL AND THE MORTGAGED REAL
PROPERTY ASSETS WHICH WERE GRANTED PURSUANT TO ANY OF THE FUNDAMENTAL DOCUMENTS
OR OTHERWISE. EACH OF THE CREDIT PARTIES, ON ITS OWN BEHALF AND ON BEHALF OF ITS
SUCCESSORS AND ASSIGNS, HEREBY WAIVES, RELEASES AND DISCHARGES EACH AGENT, EACH
ISSUING BANK, EACH LENDER, EACH SECURED PARTY AND ALL OF THE AFFILIATES OF EACH
AGENT, EACH ISSUING BANK, EACH LENDER AND EACH SECURED PARTY, AND ALL OF THE
DIRECTORS, OFFICERS, EMPLOYEES, ATTORNEYS, AGENTS, SUCCESSORS AND ASSIGNS OF
EACH AGENT, EACH ISSUING BANK, EACH LENDER, EACH SECURED PARTY AND SUCH
AFFILIATES, FROM ANY AND ALL CLAIMS, DEMANDS, ACTIONS OR CAUSES OF ACTION (KNOWN
AND UNKNOWN) ARISING OUT OF OR IN ANY WAY RELATING TO ANY OF THE FUNDAMENTAL
DOCUMENTS AND ANY DOCUMENTS, AGREEMENTS, DEALINGS OR OTHER MATTERS CONNECTED
WITH ANY OF THE FUNDAMENTAL DOCUMENTS, IN EACH CASE TO THE EXTENT ARISING (X) ON
OR PRIOR TO THE AMENDMENT NO. 1 EFFECTIVE DATE OR (Y) OUT OF, OR RELATING TO,
ACTIONS, DEALINGS OR MATTERS OCCURRING ON OR PRIOR TO THE AMENDMENT NO. 1
EFFECTIVE DATE.
SECTION 6. ACKNOWLEDGEMENT AND CONSENT BY THE GUARANTORS.
(A) EACH OF THE GUARANTORS HEREBY ACKNOWLEDGES THAT IT
HAS READ THIS AMENDMENT AND CONSENTS TO THE TERMS HEREOF AND FURTHER CONFIRMS
AND AGREES THAT ITS GUARANTEE PURSUANT TO THE CREDIT AGREEMENT (OR IN THE CASE
OF OPH, THE OPH GUARANTY AGREEMENT
34
(AS DEFINED IN SECTION 1(V) ABOVE)) IS, AND SHALL CONTINUE TO BE, IN FULL FORCE
AND EFFECT AND IS HEREBY CONFIRMED AND RATIFIED IN ALL RESPECTS.
(B) EACH OF THE GUARANTORS HEREBY CONFIRMS AND
ACKNOWLEDGES THAT IT IS VALIDLY AND JUSTLY INDEBTED TO THE ADMINISTRATIVE AGENT,
THE ISSUING BANKS AND THE LENDERS FOR THE PAYMENT OF ALL OF THE OBLIGATIONS
WHICH IT HAS GUARANTEED, WITHOUT OFFSET, DEFENSE, CAUSE OF ACTION OR
COUNTERCLAIM OF ANY KIND OR NATURE WHATSOEVER.
(C) EACH OF THE GUARANTORS HEREBY REAFFIRMS AND ADMITS
THE VALIDITY AND ENFORCEABILITY OF THE CREDIT AGREEMENT AND THE FUNDAMENTAL
DOCUMENTS TO WHICH IT IS A PARTY AND THE LIENS IN THE COLLATERAL AND THE
MORTGAGED REAL PROPERTY ASSETS WHICH WERE GRANTED BY IT PURSUANT TO ANY OF THE
FUNDAMENTAL DOCUMENTS OR OTHERWISE.
SECTION 7. Costs and Expenses. RRI acknowledges and agrees that its
obligations set forth in Section 11.4 of the Credit Agreement include the
preparation, execution and delivery of this Amendment and any other
documentation contemplated hereby or thereby (whether or not this Amendment
becomes effective or the transactions contemplated hereby are consummated),
including, but not limited to, the reasonable fees and disbursements of Clifford
Chance US LLP, counsel to the Administrative Agent.
SECTION 8. Limited Waiver or Modification; Ratification of Credit
Agreement.
(A) Except to the extent hereby expressly waived or
modified, the Credit Agreement remains in full force and effect and is hereby
ratified and confirmed.
(B) This Amendment shall be limited precisely as written
and shall not be deemed (i) to be a consent granted pursuant to, or a waiver or
modification of, any other term or condition of the Credit Agreement or any of
the instruments or agreements referred to therein or a waiver of any Default or
Event of Default under the Credit Agreement, whether or not known to the Agents,
the Issuing Banks or the Lenders or (ii) to prejudice any right or rights which
the Administrative Agent, the Issuing Banks, the Lenders or any of the other
Secured Parties may now have or have in the future under or in connection with
any Fundamental Document or any of the instruments or agreements referred to in
a Fundamental Document. The Administrative Agent, the other Agents, the Issuing
Banks and the Lenders hereby expressly reserve all of the Administrative
Agent's, the other Agents', the Issuing Banks', the Lenders' or any of the other
Secured Parties' (as applicable) respective rights and remedies under the Credit
Agreement and each of the other Fundamental Documents, as well as under
applicable law. No failure to exercise, delay in exercising or any singular or
partial exercise, by the Administrative Agent, the Agents, any of the Issuing
Banks, any of the Lenders or any of the other Secured Parties, of any right,
power or remedy hereunder or any of the other Fundamental Documents shall
operate as a waiver thereof or in the case of a singular or partial exercise of
a right, power or remedy, preclude any other or further exercise thereof of any
other right, power or remedy, nor shall any of the Fundamental Documents be
construed as a standstill or a forbearance by any of the Agents, the Issuing
Banks, the Lenders or the other Secured Parties of their rights and remedies
thereunder. All remedies of the Administrative Agent, the Agents, the Issuing
Banks, the Lenders or the other Secured Parties are cumulative and are not
exclusive of any other remedies under any other Fundamental Document or provided
by applicable law. Except to the extent hereby modified, the Credit Agreement
shall continue in full force and effect in accordance with the provisions
thereof on the date hereof and the Credit Agreement as heretofore amended or
modified and as
35
modified by this Amendment are hereby ratified and confirmed. As used in the
Credit Agreement, the terms "Credit Agreement," "this Agreement," "herein,"
"hereafter," "hereto," "hereof," and words of similar import, shall, unless the
context otherwise requires, mean the Credit Agreement as modified by this
Amendment. Reference to the terms "Agreement" or "Credit Agreement" appearing in
the Exhibits or Schedules to the Credit Agreement or in the other Fundamental
Documents shall, unless the context otherwise requires, mean the Credit
Agreement as modified by this Amendment. This Amendment shall be deemed to have
been jointly drafted, and no provision of it shall be interpreted or construed
for, or against, any party hereto because such party purportedly prepared or
requested such provision, any other provision, or this Amendment as a whole.
SECTION 9. Counterparts. This Amendment may be executed in any number
of counterparts and by the 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. Delivery of an executed signature page to this Amendment by
facsimile shall be as effective as delivery of a manually executed counterpart
of this Amendment.
SECTION 10. Fundamental Document. This Amendment is a Fundamental
Document pursuant to the Credit Agreement and shall (unless expressly indicated
herein or therein) be construed, administered, and applied, in accordance with
all of the terms and provisions of the Credit Agreement.
SECTION 11. Severability. Any provision of this Amendment which is
invalid, illegal or unenforceable under the applicable law of any jurisdiction,
shall, as to such jurisdiction, be ineffective to the extent of such invalidity,
illegality or unenforceability without invalidating the remaining provisions
hereof, and any such invalidity, illegality or unenforceability in any
jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION 12. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WHICH ARE
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WHOLLY WITHIN THE STATE OF NEW
YORK.
SECTION 13. Successors and Assigns. The provisions of this Amendment
shall be binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns.
SECTION 14. Headings. The headings of this Amendment are for the
purposes of reference only and shall not affect the construction of, or be taken
into consideration in interpreting, this Amendment.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
36
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and the year first above written.
BORROWER:
RELIANT RESOURCES, INC.
By: /s/ William S. Waller, Jr.
--------------------------------------------
Name: William S. Waller, Jr.
Title: Vice President and Treasurer
OTHER CREDIT PARTIES:
GUIDESTREET, INC.
INSYNC INTERNET SERVICES, INCORPORATED
OPD GROUP, INC.
OPOS MIDATLANTIC, INC.
ORION POWER ATLANTIC, INC.
ORION POWER DEVELOPMENT COMPANY, INC.
ORION POWER HOLDINGS, INC.
ORION POWER MARKETING AND SUPPLY, INC.
ORION POWER NEW YORK GP II, INC.
ORION POWER OPERATING SERVICES ASTORIA, INC.
ORION POWER OPERATING SERVICES CARR STREET, INC.
ORION POWER OPERATING SERVICES COLDWATER, INC.
ORION POWER OPERATING SERVICES MIDWEST, INC.
ORION POWER OPERATING SERVICES, INC.
RELIANT ENERGY BROADBAND, INC.
RELIANT ENERGY COMMUNICATIONS, INC.
RELIANT ENERGY COOLWATER, INC.
RELIANT ENERGY DEER PARK, INC.
By: /s/ William S. Waller, Jr.
--------------------------------------------
Name: William S. Waller, Jr.
Title: Vice President and Treasurer
for each of the above-named Credit
Parties
RELIANT ENERGY DEVELOPMENT SERVICES, INC.
RELIANT ENERGY ELLWOOD, INC.
RELIANT ENERGY ETIWANDA, INC.
RELIANT ENERGY EUROPE TRADING & MARKETING, INC.
RELIANT ENERGY MANDALAY, INC.
RELIANT ENERGY MID-ATLANTIC DEVELOPMENT, INC.
RELIANT ENERGY NET VENTURES, INC.
RELIANT ENERGY NORTHEAST GENERATION, INC.
RELIANT ENERGY NORTHEAST HOLDINGS, INC.
RELIANT ENERGY ORMOND BEACH, INC.
RELIANT ENERGY POWER GENERATION, INC.
RELIANT ENERGY POWER OPERATIONS I, INC.
RELIANT ENERGY POWER OPERATIONS II, INC.
RELIANT ENERGY RENEWABLES, INC.
RELIANT ENERGY SABINE (TEXAS), INC.
RELIANT ENERGY SERVICES INTERNATIONAL, INC.
RELIANT ENERGY SERVICES, INC.
RELIANT ENERGY SHELBY DEVELOPMENT CORP.
RELIANT ENERGY SHELBY HOLDING CORP.
RELIANT ENERGY SOLUTIONS CALIFORNIA, INC.
RELIANT ENERGY TRADING EXCHANGE, INC.
RELIANT ENERGY VENTURES, INC.
RELIANT ENERGY WHOLESALE SERVICE COMPANY
RELIANT RESOURCES INTERNATIONAL SERVICES, INC.
RELIANTENERGY.COM, INC.
TEXAS STAR ENERGY COMPANY
By: /s/ William S. Waller, Jr.
--------------------------------------------
Name: William S. Waller, Jr.
Title: Vice President and Treasurer
for each of the above-named Credit
Parties
BEAVER RIVER, LLC
EDDYSTONE POWER, LLC
FREE STATE ELECTRIC, LLC
GRANE CREEK, LLC
LIBERTY MEMBER, LLC
LIBERTY MIDATLANTIC, LLC
MIDATLANTIC LIBERTY, LLC
REEVES COUNTY LAND
ASSOCIATES, LLC RELIANT
ENERGY ARROW CANYON, LLC
RELIANT ENERGY ATLANTIC, LLC
RELIANT ENERGY AURORA DEVELOPMENT, LLC
RELIANT ENERGY AURORA HOLDING, LLC
RELIANT ENERGY BIGHORN, LLC
RELIANT ENERGY CALIFORNIA HOLDINGS, LLC
RELIANT ENERGY CHOCTAW COUNTY, LLC
RELIANT ENERGY CONSTRUCTION, LLC
RELIANT ENERGY CORPORATE SERVICES, LLC
RELIANT ENERGY CUSTOMER CARE SERVICES, LLC
RELIANT ENERGY DESERT BASIN, LLC
RELIANT ENERGY ELECTRIC SOLUTIONS, LLC
RELIANT ENERGY EQUIPMENT COMPANY, LLC
RELIANT ENERGY ERIE WEST, LLC
RELIANT ENERGY FLORIDA HOLDINGS, LLC
RELIANT ENERGY FUNDING, LLC
RELIANT ENERGY GAS STORAGE, LLC
RELIANT ENERGY GILBERT, LLC
RELIANT ENERGY HUNTERSTOWN, LLC
RELIANT ENERGY INDIAN RIVER, LLC
RELIANT ENERGY KEY/CON FUELS, LLC
RELIANT ENERGY NEW SMYRNA BEACH, LLC
RELIANT ENERGY OSCEOLA, LLC
RELIANT ENERGY PARTSCO, LLC
RELIANT ENERGY PORTLAND, LLC
By: /s/ William S. Waller, Jr.
--------------------------------------------
Name: William S. Waller, Jr.
Title: Vice President and Treasurer
for each of the above-named Credit
Parties
RELIANT ENERGY RENEWABLES ATASCOCITA GP, LLC
RELIANT ENERGY RENEWABLES BAYTOWN GP, LLC
RELIANT ENERGY RENEWABLES BLUE BONNET GP, LLC
RELIANT ENERGY RENEWABLES COASTAL PLAINS GP, LLC
RELIANT ENERGY RENEWABLES CONROE GP, LLC
RELIANT ENERGY RENEWABLES FORT WORTH GP, LLC
RELIANT ENERGY RENEWABLES SECURITY GP, LLC
RELIANT ENERGY RETAIL HOLDINGS, LLC
RELIANT ENERGY RETAIL SERVICES, LLC
RELIANT ENERGY SERVICES DESERT BASIN, LLC
RELIANT ENERGY SERVICES MID-STREAM, LLC
RELIANT ENERGY SERVICES NEW MEXICO, LLC
RELIANT ENERGY SEWARD, LLC
RELIANT ENERGY SIGNAL PEAK, LLC
RELIANT ENERGY SOLUTIONS EAST, LLC
RELIANT ENERGY SOLUTIONS HOLDINGS, LLC
RELIANT ENERGY SOLUTIONS WEST, LLC
RELIANT ENERGY SOLUTIONS, LLC
RELIANT ENERGY TITUS, LLC
RELIANT ENERGY WINTER HAVEN, LLC
STAREN POWER, LLC
By: /s/ William S. Waller, Jr.
--------------------------------------------
Name: William S. Waller, Jr.
Title: Vice President and Treasurer
for each of the above-named Credit
Parties
RELIANT ENERGY CAPTRADES HOLDING CORP.
RELIANT ENERGY SABINE (DELAWARE), INC.
RELIANT ENERGY RENEWABLES HOLDINGS II, LLC
By: /s/ Patricia Genzel
--------------------------------------------
Name: Patricia Genzel
Title: President for each of the above-named
Credit Parties
ORION POWER ATLANTIC LLC
By: Orion Power Atlantic, Inc.,
its Managing Member
By: /s/ William S. Waller, Jr.
--------------------------------------------
Name: William S. Waller, Jr.
Title: Vice President and Treasurer
ORION POWER ATLANTIC, LTD.
By: Orion Power Atlantic LLC,
its General Partner
By: /s/ William S. Waller, Jr.
--------------------------------------------
Name: William S. Waller, Jr.
Title: Vice President and Treasurer
RELIANT ENERGY AURORA I, LP
RELIANT ENERGY AURORA II, LP
By: Reliant Energy Aurora Development, LLC,
each of its General Partner
By: /s/ William S. Waller, Jr.
--------------------------------------------
Name: William S. Waller, Jr.
Title: Vice President and Treasurer
RELIANT ENERGY AURORA, LP
By: Reliant Energy Aurora I, LP,
its General Partner
By: /s/ William S. Waller, Jr.
--------------------------------------------
Name: William S. Waller, Jr.
Title: Vice President and Treasurer
RELIANT ENERGY RENEWABLES ATASCOCITA, LP
By: Reliant Energy Renewables Atascocita GP,
LLC, its General Partner
By: /s/ William S. Waller, Jr.
--------------------------------------------
Name: William S. Waller, Jr.
Title: Vice President and Treasurer
RELIANT ENERGY RENEWABLES BAYTOWN, LP
By: Reliant Energy Renewables Baytown GP, LLC,
its General Partner
By: /s/ William S. Waller, Jr.
--------------------------------------------
Name: William S. Waller, Jr.
Title: Vice President and Treasurer
RELIANT ENERGY RENEWABLES BLUE BONNET, LP
By: Reliant Energy Renewables Blue Bonnet GP,
LLC, its General Partner
By: /s/ William S. Waller, Jr.
--------------------------------------------
Name: William S. Waller, Jr.
Title: Vice President and Treasurer
RELIANT ENERGY RENEWABLES COASTAL PLAINS, LP
By: Reliant Energy Renewables Coastal Plains GP,
LLC, its General Partner
By: /s/ William S. Waller, Jr.
--------------------------------------------
Name: William S. Waller, Jr.
Title: Vice President and Treasurer
RELIANT ENERGY RENEWABLES CONROE, LP
By: Reliant Energy Renewables Conroe GP, LLC,
its General Partner
By: /s/ William S. Waller, Jr.
--------------------------------------------
Name: William S. Waller, Jr.
Title: Vice President and Treasurer
RELIANT ENERGY RENEWABLES FORT WORTH, LP
By: Reliant Energy Renewables Fort Worth GP,
LLC, its General Partner
By: /s/ William S. Waller, Jr.
--------------------------------------------
Name: William S. Waller, Jr.
Title: Vice President and Treasurer
RELIANT ENERGY RENEWABLES SECURITY, LP
By: Reliant Energy Renewables Security GP, LLC,
its General Partner
By: /s/ William S. Waller, Jr.
--------------------------------------------
Name: William S. Waller, Jr.
Title: Vice President and Treasurer
RELIANT ENERGY SHELBY COUNTY II, LP
RELIANT ENERGY SHELBY COUNTY, LP
By: Reliant Energy Shelby I, LP,
each of its General Partner
By: /s/ William S. Waller, Jr.
--------------------------------------------
Name: William S. Waller, Jr.
Title: Vice President and Treasurer
RELIANT ENERGY SHELBY I, LP
RELIANT ENERGY SHELBY II, LP
By: Reliant Energy Shelby Development Corp.,
each of its General Partner
By: /s/ William S. Waller, Jr.
--------------------------------------------
Name: William S. Waller, Jr.
Title: Vice President and Treasurer
CHOCTAW COUNTY TRUST
HUNTERSTOWN TRUST
SEWARD TRUST
By: Reliant Energy Funding, LLC,
each of its Trustee
By: /s/ William S. Waller, Jr.
--------------------------------------------
Name: William S. Waller, Jr.
Title: Vice President and Treasurer
AGENTS AND LENDERS:
BANK OF AMERICA, N.A., individually, as
Administrative Agent, as Collateral Agent and as
an Issuing Bank
By: /s/ E. J. Joost
--------------------------------------------
Name: E. J. Joost
Title: Managing Director
BARCLAYS BANK PLC, individually, as Syndication
Agent and as an Issuing Bank
By: /s/ Eric Chilton
--------------------------------------------
Name: Eric Chilton
Title: Managing Director
DEUTSCHE BANK AG, NEW YORK BRANCH, individually,
as Syndication Agent and as an Issuing Bank
By: /s/ Keith C. Braun
--------------------------------------------
Name: Keith C. Braun
Title: Director
By: /s/ Mark B. Cohen
--------------------------------------------
Name: Mark B. Cohen
Title: Managing Director
CITICORP USA, INC., individually and as Tranche
A Agent
By: ____________________________________________
Name:
Title:
CITIBANK, N.A., as Tranche A Collateral Agent
By: ____________________________________________
Name:
Title:
ABN AMRO BANK N.V.
By: /s/ Steven C. Wimpenny
--------------------------------------------
Name: Steven C. Wimpenny
Title: Group Senior Vice President
By: /s/ William J. Fitzgerald
--------------------------------------------
Name: William J. Fitzgerald
Title: Group Senior Vice President
THE BANK OF NOVA SCOTIA
By: /s/ Denis P. O'Meara
--------------------------------------------
Name: Denis P. O'Meara
Title: Managing Director
THE BANK OF TOKYO-MITSUBISHI, LTD.
By: ____________________________________________
Name:
Title:
BAYERISCHE HYPO- UND VEREINSBANK AG, NEW YORK
BRANCH AND/OR GRAND CAYMAN BRANCH
By: /s/ William W. Hunter
--------------------------------------------
Name: William W. Hunter
Title: Director
By: /s/ Shannon Batchman
--------------------------------------------
Name: Shannon Batchman
Title: Director
BAYERISCHE LANDESBANK,
Cayman Islands Branch (f/k/a BAYERISCHE
LANDESBANK GIROZENTRALE, CAYMAN ISLANDS
BRANCH)
By: ____________________________________________
Name:
Title:
By: ____________________________________________
Name:
Title:
BNP PARIBAS
By: /s/ Francis Ballard
--------------------------------------------
Name: Francis Ballard
Title: Director
By: /s/ Timothy F. Vincent
--------------------------------------------
Name: Timothy F. Vincent
Title: Vice President
CITIGROUP FINANCIAL PRODUCTS, INC.
By: ____________________________________________
Name:
Title:
COBANK, ACB
By: ____________________________________________
Name:
Title:
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN
BRANCHES
By: /s/ Harry Yergey
--------------------------------------------
Name: Harry Yergey
Title: Senior Vice President & Manager
By: /s/ Subash Viswanathan
--------------------------------------------
Name: Subash Viswanathan
Title: Senior Vice President
CREDIT SUISSE FIRST BOSTON
By: ____________________________________________
Name:
Title:
DEXIA CREDIT LOCAL, NEW YORK AGENCY
By: ____________________________________________
Name:
Title:
By: ____________________________________________
Name:
Title:
ING CAPITAL LLC
By: /s/ Stephen E. Fischer
--------------------------------------------
Name: Stephen E. Fischer
Title: Managing Director
By: /s/ Clara B. Alvarez
--------------------------------------------
Name: Clara B. Alvarez
Title: Director
INTESABCI, LOS ANGELES FOREIGN BRANCH
By: ____________________________________________
Name:
Title:
By: ____________________________________________
Name:
Title:
JP MORGAN CHASE BANK, individually and as an
Issuing Bank
By: /s/ Robert W. Traband
--------------------------------------------
Name: Robert W. Traband
Title: Vice President
MERRILL LYNCH CAPITAL CORPORATION
By: /s/ Carol J.E. Feeley
--------------------------------------------
Name: Carol J.E. Feeley
Title: Vice President
Merrill Lynch Capital Corporation
MERRILL LYNCH PIERCE FENNER & SMITH INCORPORATED
(d/b/a MERRILL LYNCH & CO.)
By: /s/ Kevin Lydon
--------------------------------------------
Name: Kevin Lydon
Title: Managing Director
NATIONAL AUSTRALIA BANK LTD
By: /s/ Robert A. Mulderrig
--------------------------------------------
Name: Robert A. Mulderrig
Title: Head of Asset Structuring
ROYAL BANK OF CANADA
By: /s/ Rizwan Ahmad
--------------------------------------------
Name: Rizwan Ahmad
Title: Senior Manager
THE ROYAL BANK OF SCOTLAND PLC
By: ____________________________________________
Name:
Title:
TORONTO DOMINION (TEXAS), INC.
By: /s/ Mark A. Baird
--------------------------------------------
Name: Mark A. Baird
Title: Vice President
THE TORONTO DOMINION BANK
By: /s/ Mark A. Baird
--------------------------------------------
Name: Mark A. Baird
Title: Manager Credit Administration
U.S. BANK NATIONAL ASSOCIATION
By: ____________________________________________
Name:
Title:
WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK
BRANCH, individually and as an Issuing Bank
By: ____________________________________________
Name:
Title:
By: ____________________________________________
Name:
Title:
SCHEDULE 6.5
(REVISED)
ELIGIBLE ASSETS
1
SCHEDULE 8.4
(REVISED)
LIMITATIONS APPLICABLE
TO THE
LIMITED GUARANTORS
1
EXHIBIT C
(REVISED)
[REVISED FORM OF INSTRUMENT OF ASSUMPTION AND JOINDER]
[TO FOLLOW]
1
ANNEX 1
SECTION 5.18 Texas Genco Option. (a) Funding of Option From Asset
Sales. Prior to the Specified Date, RRI shall be permitted to retain the
following: (X) in an amount up to the TG Basket Amount, Net Cash Proceeds of
sales or other dispositions of Eligible Assets of RRI or any of its Subsidiaries
(including Net Cash Proceeds received in connection with a Recovery Event not
used to repair or replace (or committed to repair or replace) the applicable
property within 12 months after such Recovery Event in accordance with Section
2.11(i) hereof, but less any amounts required to pay for necessary remediation
expenses with respect to a condition affecting the applicable property, to pay
reasonable expenses incurred in connection with the closure of the applicable
property and to pay any costs reasonably incurred in connection with such
Recovery Event), and the Net Cash Proceeds from Excluded Asset Sales that, at
RRI's option, have been deposited into the Purchase Escrow Account, (Y) Net Cash
Proceeds of all issuances of Junior Securities and (Z) Net Cash Proceeds from
the issuance of Indebtedness permitted under Section 6.1(l) hereof, which
proceeds in the case of clause (X), (Y) and/or (Z) have not been used to repay
the Term Loans and Tranche A Loans; provided, however, that all such proceeds
are (A) held in the Purchase Escrow Account and (B) all amounts held in the
Purchase Escrow Account are used first, upon any termination of the Total Senior
Priority Commitment (including any such termination that occurs concurrently
with the consummation of the purchase of the Equity Interests of Texas Genco
contemplated under the Texas Genco Option or in connection with a Permitted TG
Purchase Transaction (as applicable), to repay in full all outstanding Senior
Priority Loans and to cash collateralize Senior Priority L/C Exposure at 105% of
the aggregate face amount thereof (to the extent that RRI has not obtained
acceptable back to back letters of credit for such letters of credit as required
herein) and second, to fund the purchase of Texas Genco; and provided, further,
however, that RRI shall not be permitted to use any funds in the Purchase Escrow
Account to fund the purchase of any equity of Texas Genco if an Event of Default
has occurred and is continuing.
(b) Application of Funds Upon Purchase of Equity of Texas
Genco. Upon the consummation of the purchase of any of the outstanding common
stock of Texas Genco by RRI or any of its Subsidiaries, the Total Senior
Priority Commitment will terminate (if the Total Senior Priority Commitment
shall not have previously been terminated) and amounts held in the Purchase
Escrow Account shall first, be applied to repay in full all outstanding Senior
Priority Loans and to the extent that RRI has not obtained acceptable back to
back letters of credit for any outstanding letter of credit under the Total
Senior Priority Commitment as required by the last sentence of this Section
5.18(b), to cash collateralize Senior Priority L/C Exposure at 105% of the
aggregate face amount thereof, and may second, be used to pay the consideration
for the purchase of the remaining equity of Texas Genco, to pay any control
premium required to be paid in connection therewith and to repay any
indebtedness of Texas Genco required to be repaid in connection with such
purchase. For purposes of clarification, if less than 100% of the equity of
Texas Genco is initially purchased, any amounts remaining in the Purchase Escrow
Account after such initial purchase (and after the application thereof provided
in clause "first" above) shall remain in the Purchase Escrow Account until the
earlier of (i) the date on which 100% of the equity of Texas Genco is purchased
and any required control premium in connection therewith has been paid and (ii)
the Outside Date, unless RRI elects to apply such balance to the repayment of
outstanding Term Loans and Tranche A Loans. Upon the termination of the Total
Senior Priority Commitment and concurrently with the consummation of the
purchase of any of the outstanding common stock of Texas Genco, RRI shall cause
acceptable back to back letters of credit to be issued for any then outstanding
Senior Priority Letters of Credit.
(c) Use of Proceeds of Junior Securities. In connection
with the purchase of Texas Genco with funds on deposit in the Purchase Escrow
Account, RRI shall use such funds in the following order: first, funds
constituting the Net Cash Proceeds from the issuance of Junior Securities;
second, funds constituting the Net Cash Proceeds of asset sales; and third,
funds constituting the Net Cash
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Proceeds from the issuance of Indebtedness under Section 6.1(l) hereof. RRI
shall not be permitted to use the proceeds of the Purchase Escrow Account to
purchase any minority interest in Texas Genco until RRI has completed the
acquisition of the Equity Interests of Texas Genco pursuant to the Texas Genco
Option or pursuant to a Permitted TG Purchase Transaction.
(d) Application of Funds Upon Purchase of 100% of Equity
of Texas Genco or Occurrence of Outside Date. If less than 100% of the equity of
Texas Genco is initially purchased, then upon the earlier of (i) the
consummation of the purchase of 100% of the equity of Texas Genco and the
payment of any premium or the repayment of any indebtedness, in each case
required to be paid in connection therewith and (ii) the Outside Date (and
assuming the repayment of the Senior Priority Loans and the providing of back to
back letters of credit in respect of the Senior Priority Letters of Credit
issued under the Total Senior Priority Commitment as provided herein), RRI shall
cause any cash remaining in the Purchase Escrow Account (X) which constitutes
Net Cash Proceeds from the issuance of Indebtedness under Section 6.1(l) hereof
or from any sale or disposition of any of the European Assets or the Desert
Basin generating facility (as described in items 1 and 7, respectively, on
Schedule 6.5 hereto) to be applied (within three (3) Business Days) to repay
outstanding Term Loans and outstanding Tranche A Loans, on a pro rata basis
determined in accordance with the aggregate outstanding principal balance of the
Term Loans and the aggregate outstanding principal balance of the Tranche A
Loans, (Y) which constitutes Net Cash Proceeds from asset sales (other than from
any sale or disposition of any of the European Assets or the Desert Basin
generating facility) be applied to repay outstanding Term Loans and outstanding
Tranche A Loans in accordance with the provisions of Section 2.11(h) hereof
(within three (3) Business Days, provided that any such repayment to be made
with Available Proceeds shall be made as promptly as possible, but in no event
later than three (3) Business Days after the last day for acceptance of the
applicable repayment or payment offer, and (Z) 50% of such cash which
constitutes Net Cash Proceeds from the issuance of Junior Securities to be
applied (within three (3) Business Days) to repay the outstanding Term Loans and
outstanding Tranche A Loans, on a pro rata basis determined in accordance with
the aggregate outstanding principal balance of the Term Loans and the aggregate
outstanding principal balance of the Tranche A Loans and the other 50% shall be
released to RRI for general corporate purposes.
(e) Application of Funds Upon Expiration or Termination
of Option and there is no Permitted TG Purchase Transaction. If the Texas Genco
Option has expired or terminated and by September 15, 2004, neither RRI nor TG
Holdco has executed a definitive agreement with CenterPoint and any of its
Subsidiaries in connection with a Permitted TG Purchase Transaction (and
provided, that CenterPoint and any of its Subsidiaries has not sold or otherwise
disposed of more than twenty percent (20%) of the issued and outstanding common
stock of Texas Genco to a Person other than RRI or one of its Subsidiaries),
then RRI shall cause any cash in the Purchase Escrow Account to be applied as
follows: first, an amount equal to 105% of the Total Senior Priority Commitment
(whether drawn or undrawn) shall be transferred to the Collateral Agent to be
held by the Collateral Agent as cash collateral in a separate, blocked
collateral account with the Collateral Agent (such account being referred to as
the "Specified Collateral Account" and it being understood that cash in the
Purchase Escrow Account constituting Net Cash Proceeds from the issuance of
Junior Securities shall be transferred to the Specified Collateral Account
before using funds constituting Net Cash Proceeds from asset sales or from the
issuance of Indebtedness under Section 6.1(l) hereof), and second, (i) any
remaining cash constituting Net Cash Proceeds from the issuance of Indebtedness
under Section 6.1(l) hereof or from any sale or disposition of any of the
European Assets or the Desert Basin generating facility (as described in items 1
and 7, respectively, on Schedule 6.5 hereto) shall be applied (within three (3)
Business Days) to repay outstanding Term Loans and outstanding Tranche A Loans,
on a pro rata basis determined in accordance with the aggregate outstanding
principal balance of the Term Loans and the aggregate outstanding principal
balance of the Tranche A Loans, (ii) any remaining cash constituting Net Cash
Proceeds from asset sales (other than from any sale or disposition of any of the
European Assets or the Desert Basin
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generating facility) shall be applied to repay outstanding Term Loans and
outstanding Tranche A Loans in accordance with the provisions of Section 2.11(h)
hereof (within three (3) Business Days, provided that any such repayment to be
made with Available Proceeds shall be made as promptly as possible, but in no
event later than three (3) Business Days after the last day for acceptance of
the applicable repayment or prepayment offer), (iii) 50% of any such remaining
cash constituting Net Cash Proceeds from the issuance of Junior Securities shall
be applied (within three (3) Business Days) to repay the outstanding Term Loans
and outstanding Tranche A Loans, on a pro rata basis determined in accordance
with the aggregate outstanding principal balance of the Term Loans and the
aggregate outstanding principal balance of the Tranche A Loans and (iv) the
other 50% of such cash constituting Net Cash Proceeds from the issuance of
Junior Securities shall be released to RRI for general corporate purposes. In
the event that CenterPoint or any of its Subsidiaries sells or otherwise
disposes of more than twenty percent (20%) of the issued and outstanding common
stock of Texas Genco to a Person other than RRI or one of its Subsidiaries, then
(1) RRI shall provide written notice to the Agents upon any executive officer of
RRI or any of its Subsidiaries obtaining knowledge thereof and (2) upon receipt
of such notice, any cash in the Purchase Escrow Account shall be applied as
provided in the immediately preceding sentence. Upon the termination of the
Total Senior Priority Commitment in its entirety, the payment in full in cash of
any Senior Priority Loans outstanding, the termination or expiration of all
Senior Priority Letters of Credit, and/or the issuance of acceptable back to
back letters of credit for the entire outstanding Senior Priority L/C Exposure,
(X) in the event that any of the outstanding common stock of Texas Genco has
been purchased by RRI or any of its Subsidiaries (whether pursuant to the Texas
Genco Option or a Permitted TG Purchase Transaction), any cash in the Purchase
Escrow Account shall remain in such account and may be used by RRI to pay the
consideration for the purchase of remaining equity of Texas Genco, to pay any
control premium required to be paid in connection therewith and to repay any
indebtedness of Texas Genco required to be repaid in connection with such
purchase and (Y) in the event the Texas Genco Option has terminated or expired
and there is no Permitted TG Purchase Transaction, any cash in the Specified
Collateral Account being held as cash collateral shall be applied as provided in
clauses (i)-(iv) of the first sentence of this Section 5.18(e).
(f) Funding of Purchase. RRI shall be permitted to fund
and/or finance a portion of the acquisition of Texas Genco in an amount up to
50% of the Enterprise Value of Texas Genco with the following; provided that,
subject to the terms of the last sentence of this Section 5.18(f), any of the
following are incurred, consummated or committed (as applicable) no later than
the consummation of the purchase of any of the outstanding common stock of Texas
Genco by RRI or any of its Subsidiaries pursuant to the Texas Genco Option or a
Permitted TG Purchase Transaction (as applicable): (i) proceeds of purchase
money indebtedness incurred by Texas Genco in which case such purchase money
indebtedness shall be secured by the assets of Texas Genco and its Subsidiaries
and the equity of Texas Genco shall be pledged to the Collateral Trustee as
collateral security for the Obligations, (ii) in the event less than 100% of the
equity of Texas Genco is acquired, proceeds of indebtedness incurred by TG
Holdco in which case (x) such indebtedness shall be secured solely by the Equity
Interests of Texas Genco and not in any assets of Texas Genco and (y) the Equity
Interests of TG Holdco and any shareholder of TG Holdco (other than any third
party not an Affiliate of RRI holding Equity Interests in Texas Genco or TG
Holdco) shall be pledged to the Collateral Trustee as collateral security for
the Obligations, (iii) existing indebtedness of Texas Genco outstanding on the
date of purchase and permitted to remain outstanding (which indebtedness (x) may
be secured by the assets of Texas Genco if RRI causes Texas Genco to incur
purchase money indebtedness as contemplated by clause (i) above or (y) shall be
secured solely by the equity of Texas Genco and shall not be secured by the
assets of Texas Genco or its Subsidiaries if RRI causes TG Holdco to incur
indebtedness as contemplated by clause (ii) above) and (iv) sales or other
dispositions by RRI or TG Holdco of the equity of RRI, TG Holdco, Texas Genco or
the Subsidiaries of Texas Genco, subject to Section 5.18(j) below. The funding
of the purchase of Texas Genco shall be conducted by RRI or TG Holdco on a basis
that is non-recourse to RRI or any of its Subsidiaries (other than Texas Genco
or its Subsidiaries or TG Holdco; provided, that the assets of
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Texas Genco and its Subsidiaries may only be subject to a security interest in
respect of indebtedness incurred by Texas Genco in accordance with the
foregoing). In the event that the assets of Texas Genco are not pledged to
secure the indebtedness of Texas Genco as permitted herein, RRI shall cause
Texas Genco to grant a security interest in its assets to the Collateral Trustee
as collateral security for the Secured Obligations unless the definitive loan
document for any Indebtedness incurred by Texas Genco or TG Holdco (as
applicable) as permitted by clause (i) or clause (ii) above, expressly prohibits
the granting of such security interest. In all circumstances, Texas Genco will
not be permitted to grant a security interest in any of its assets without the
simultaneous pledge and delivery of the equity of Texas Genco (other than equity
owned by any third party not an Affiliate of RRI) to the Collateral Trustee as
collateral security for the Obligations. To the extent RRI finances the
acquisition of Texas Genco with any purchase money indebtedness as provided
hereunder, no term loans under such permitted purchase money indebtedness may be
reborrowed once repaid. Any refinancing of such purchase money indebtedness may
not be for a principal amount in excess of the outstanding principal amount and
unfunded commitments of such original purchase money indebtedness on the date of
such refinancing. In addition to any purchase money indebtedness permitted under
this Section 5.18(f), RRI shall be permitted to cause Texas Genco or TG Holdco
to obtain a working capital credit facility (with recourse solely to Texas Genco
or TG Holdco and its assets) in an amount not to exceed fifty million dollars
($50,000,000); provided, that such working capital facility (x) may be secured
by the assets of Texas Genco if RRI causes Texas Genco to incur purchase money
indebtedness as contemplated by clause (i) above or (y) shall be secured solely
by the equity of Texas Genco and shall not be secured by the assets of Texas
Genco or its Subsidiaries if RRI causes TG Holdco to incur indebtedness as
contemplated by clause (ii) above. The foregoing working capital credit facility
shall require an annual clean down of all outstandings (other than letters of
credit and cash posted) thereunder for a period of not less than ten (10)
consecutive calendar days. Notwithstanding the terms of the first proviso
appearing in this Section 5.18(f), RRI shall be able to fund and/or finance the
purchase of minority equity interests of Texas Genco after the consummation of
the purchase of equity interests pursuant to the Texas Genco Option, with
proceeds of Indebtedness described in clauses (i) and/or (ii) of this Section
5.18(f); provided, that in no event, shall the aggregate amount of funding
and/or financing from transactions described in clauses (i) through (iv) of this
Section 5.18(f), at any time, exceed 50% of the applicable Enterprise Value.
(g) Application of Funds in Excess of Term Loan and
Tranche A Loan. To the extent that the amount to be applied to the payment of
Term Loans and Tranche A Loans under this Section 5.18 exceeds the aggregate
amount of Term Loans and Tranche A Loans then outstanding, such excess shall be
applied first, to the mandatory prepayment of the Revolving Credit Loans and
then to cash collateralize Revolver L/C Exposure at 105% of the aggregate face
amount thereof. All mandatory prepayments of the Revolving Loans shall
permanently reduce the Revolving Credit Commitment on a dollar-for-dollar basis.
(h) Cash in Purchase Escrow Account and Specified
Collateral Account. It is understood that any cash in the Purchase Escrow
Account and the Specified Collateral Account shall be Collateral for the
Obligations as provided in the Collateral Trust Agreement, with the Senior
Priority Obligations being secured on a first priority basis.
(i) Limitation on Funds Used to Acquire Texas Genco.
Notwithstanding anything to the contrary contained herein, the only source of
funds used to acquire the equity of Texas Genco shall be (i) funds held in the
Purchase Escrow Account or (ii) proceeds of permitted purchase money
Indebtedness and equity issuances referred to in Section 5.18(f) hereof. Neither
RRI nor any of its Subsidiaries may be permitted to use cash on hand or the
proceeds of any Loan to acquire any equity of Texas Genco.
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(j) Rights of Minority Interests. To the extent RRI seeks
to sell equity in Texas Genco or TG Holdco, ensure that the operative agreement
for the Joint Venture to be formed as a result of such sale, contains the terms
and provisions outlined in Schedule 5.18(j) hereof.
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ANNEX 2
ARTICLE 9
PREPAYMENT COLLATERAL ACCOUNT
SECTION 9.1 Prepayment Collateral Account. There shall be established
with the Collateral Agent or one of its affiliates, an account (the "Prepayment
Collateral Account") in the name of the Collateral Agent, into which (a) any
Borrower may from time to time deposit Dollars pursuant to, and in accordance
with, Section 2.11(o) hereof and (b) 100% of the Net Cash Proceeds received by
RRI or any of its Subsidiaries from the issuance of the initial series of
Secured Notes shall be irrevocably deposited. Except to the extent otherwise
expressly provided in Section 9.2(a) hereof, the Prepayment Collateral Account
shall be under the sole dominion and control of the Collateral Agent.
SECTION 9.2 Investment of Funds. (a) The Collateral Agent is hereby
authorized and directed to invest and reinvest the funds from time to time
deposited into the Prepayment Collateral Account so long as no Event of Default
has occurred and is continuing, on the instructions of the applicable Borrower
or RRI (as appropriate) (provided that any such instructions given verbally
shall be confirmed promptly in writing) or, if such Borrower or RRI (as
appropriate) shall fail to give such instructions upon delivery of any such
funds, in the sole discretion of the Collateral Agent; provided, that in no
event may any Borrower or RRI give instructions to the Collateral Agent to, or
may the Collateral Agent in its discretion, invest or reinvest funds in the
Prepayment Collateral Account in any Investment other than Cash Equivalents.
(b) Any net income or gain on the investment of funds
from time to time held in the Prepayment Collateral Account shall be for the
account of the Borrowers or RRI (as appropriate) and shall be promptly
reinvested by the Collateral Agent as a part of the Prepayment Collateral
Account; and any net loss on any such investment shall be for the account of the
Borrowers or RRI (as appropriate) and shall be charged against the Prepayment
Collateral Account.
(c) None of the Administrative Agent, the Collateral
Agent, the other Agents, the Lenders or the other Credit Agreement Secured
Parties shall be a trustee for any of the Credit Parties, or shall have any
obligations or responsibilities, or shall be liable for anything done or not
done, in connection with the Prepayment Collateral Account, except as expressly
provided herein and except that the Collateral Agent shall have the obligations
of a secured party under the UCC. None of the Administrative Agent, the
Collateral Agent, the other Agents, the Lenders or the other Credit Agreement
Secured Parties shall have any obligation or responsibility or shall be liable
in any way for any investment decision made in accordance with this Section 9.2
or for any decrease in the value of the investments held in the Prepayment
Collateral Account.
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