Exhibit 4.6.2
FIRST AMENDMENT TO CREDIT AGREEMENT AND PLEDGE AGREEMENT
FIRST AMENDMENT TO CREDIT AGREEMENT AND PLEDGE AGREEMENT (this
"First Amendment"), dated as of September 3, 2004, among, TEXAS GENCO HOLDINGS,
INC., a Texas corporation (the "Parent"), TEXAS GENCO GP, LLC, a Texas limited
liability company ("Genco GP"), TEXAS GENCO LP, LLC, a Delaware limited
liability company ("Genco LP"), TEXAS GENCO SERVICES, LP, a Texas limited
partnership ("Genco Services"), TEXAS GENCO, LP, a Texas limited partnership
(the "Borrower"), the undersigned lenders party to the Credit Agreement referred
to below (the "Continuing Lenders") and DEUTSCHE BANK AG NEW YORK BRANCH, as
Administrative Agent and Collateral Agent (the "Administrative Agent"). All
capitalized terms used herein and not otherwise defined shall have the
respective meanings provided such terms in the Credit Agreement referred to
below immediately prior to the First Amendment Effective Date referred to below.
W I T N E S S E T H:
WHEREAS, the Parent, Genco GP, Genco LP, Genco Services, the
Borrower, various lenders (the "Lenders"), the Documentation Agent and the
Administrative Agent are parties to a Credit Agreement, dated as of December 23,
2003 (the "Credit Agreement")
WHEREAS, the Borrower and the Collateral Agent are parties to a
Pledge Agreement, dated as of December 23, 2003 (the "Pledge Agreement");
WHEREAS, the parties hereto wish to effect the agreements and
amendments herein provided; and
WHEREAS, subject to the terms and conditions of this First
Amendment, the parties hereto agree as follows:
I. Amendments to the Credit Agreement as at the First Amendment Effective
Date
1. The first paragraph of the Credit Agreement is hereby amended by
deleting said paragraph in its entirety and inserting the following paragraph in
lieu thereof:
"CREDIT AGREEMENT, dated as of December 23, 2003, among TEXAS GENCO
HOLDINGS, INC., a Texas corporation (the "Parent"), TEXAS GENCO GP, LLC, a
Texas limited liability company ("Genco GP"), TEXAS GENCO LP, LLC, a
Delaware limited liability company ("Genco LP"), TEXAS GENCO SERVICES, LP,
a Texas limited partnership ("Genco Services") TEXAS GENCO, LP, a Texas
limited partnership (the "Borrower"), the Lenders from time to time party
hereto, DEUTSCHE BANK AG NEW YORK BRANCH, as Administrative Agent and
Collateral Agent, CITIBANK, N.A., as Syndication Agent and COMPASS BANK,
as Documentation Agent. Unless otherwise defined herein, all capitalized
terms used herein and defined in Section 11 are used herein as so
defined."
2. Section 2.01(c) of the Credit Agreement is hereby amended by
inserting the following proviso at the end of clause (ii) of said Section:
"; provided, that subject to Section 4.02(d), each South Texas
Letter of Credit may have an expiry date occurring no later than the date
occurring 360 days after the Maturity Date"
3. Section 2.01(c) of the Credit Agreement is hereby further amended
by inserting the new sentence at the end of said Section:
"(d) Notwithstanding anything to the contrary contained in this
Agreement, any Security Document or any other Credit Document (i) subject
to the provisions of Section 13.20, each of the covenants, agreements and
Obligations of the Credit Parties contained in each Credit Document and
(ii) the participations of each Lender in each Letter of Credit purchased
by such Lender pursuant to Section 2.04, shall, in each case, remain in
full force and effect until the expiration or termination of such Letter
of Credit in accordance with its terms."
4. Section 4.02 of the Credit Agreement is hereby amended by
inserting the following new clause (d) at the end of said Section:
"(d) If any Letter of Credit is outstanding on the Maturity Date
which has an expiry date later than the Maturity Date (or which, pursuant
to its terms, may be extended to a date later than the Maturity Date) (all
such Letters of Credit outstanding on the Maturity Date, the "Continuing
Letters of Credit" and each, a "Continuing Letter of Credit"), the
Borrower shall, on or prior the Maturity Date, (i) pay to each Issuing
Lender which has issued any Continuing Letter of Credit an amount of cash
equal to 105% of the aggregate Stated Amount of all Continuing Letters of
Credit issued by such Issuing Lender to be held as security for all
Obligations of the Borrower to such Issuing Lender in respect of such
Continuing Letters of Credit in a cash collateral account to be
established by, and under the sole dominion and control of, the respective
Issuing Lender in accordance with the applicable Cash Collateral
Agreement, (ii) enter into a Cash Collateral Agreement with each such
Issuing Lender and take all other actions as may be reasonably requested
by such Issuing Lender in connection with the foregoing and (iii) deliver
to each such Issuing Lender an opinion from Baker Botts LLP covering (x)
the creation and perfection of the security interests granted under the
respective Cash Collateral Agreement and (y) and such other matters
incidental to the transactions contemplated hereby as such Issuing Lender
may reasonably request."
5. Section 7.12(b) of the Credit Agreement is hereby amended by
deleting the last sentence thereof and inserting the following sentence in lieu
thereof:
"At the time of the granting of any security interests pursuant to
the Indenture the Borrower and/or such entity surviving the merger
-2-
contemplated by the Genco LP Division, as the case may be, has good and
marketable title to all Indenture Collateral referred to therein free and
clear of all Liens (other than Permitted Liens)."
6. Section 8.12 of the Credit Agreement is hereby amended by
deleting said Section in its entirety and inserting the following new Section
8.12 in lieu thereof:
"Section 8.12 Future Guarantors. Each of the Credit Parties shall and
shall cause each of its Subsidiaries to promptly upon any Person becoming
a direct or indirect Subsidiary of the Parent to become a guarantor under
the Guaranty by executing an accession agreement in respect of this
Agreement in form and substance reasonably satisfactory to the
Administrative Agent, provided that (x) no such Subsidiary that is not a
Domestic Subsidiary shall be required to become a guarantor under the
Guaranty, unless such Subsidiary shall at such time guarantee any
Indebtedness of the Parent or any Domestic Subsidiary and (y) STP Nuclear
Operating Company shall not be required to become a guarantor under the
Guaranty."
7. Section 9 of the Credit Agreement is hereby amended by inserting
the following new Section 9.10:
"Section 9.10 Modifications to the Transaction Agreement. The Credit
Parties shall not, and shall not permit, any modification or amendment to
the Transaction Agreement which could reasonably be expected to (x) have a
material adverse effect on the ability of any Credit Party to perform its
payment obligations (including, without limitation, any obligations to
post cash collateral pursuant to Section 4.02(d)) under this Agreement or
any other Credit Document to which it is a party or (y) impair the rights
of the Collateral Agent or the Lenders in the Collateral or the perfection
or priority of the security interests granted or purported to be granted
therein pursuant to the Security Documents."
8. Section 10.03 of the Credit Agreement is hereby amended by
inserting the reference "Section 4.02(d)" immediately after the text "covenant
or agreement contained in" appearing in said Section.
9. Section 11 of the Credit Agreement is hereby amended by deleting
the definitions of "Agents", "Applicable Commitment Commission Percentage" and
"Applicable Margin", "Bond", "Issuing Lender", "Lead Arranger", "Maturity Date"
and "Security Documents" in their entirety and inserting the following new
definitions of in lieu thereof:
"Agents" shall mean and include (i) the Administrative Agent, (ii)
the Collateral Agent, (iii) for the purposes of Section 12 only, the
Documentation Agent and the Syndication Agent and (iv) for purposes of
Sections 12, 13.01, 13.12 and 13.15 only, the Joint Lead Arrangers.
"Applicable Commitment Commission Percentage" and "Applicable
Margin" shall mean (x) with respect to Commitment Commission, a percentage
-3-
per annum equal to 0.25% and (y) with respect to Loans maintained as (i)
Eurodollar Loans, (a) at all times prior to the date upon which the
requirements of Section 4.02(d) have been satisfied to the reasonable
satisfaction of the Lenders, a percentage per annum equal to 1.00% and (b)
at all times after the date upon which the requirements of Section 4.02(d)
have been satisfied to the reasonable satisfaction of the Lenders, a
percentage per annum equal to 0.50% and (ii) Base Rate Loans, a percentage
per annum equal to 0.0%.
"Bond" shall mean the bond in the original principal amount of the
Total Commitment as in effect on the First Amendment Effective Date issued
under the Indenture and pledged pursuant to the Pledge Agreement.
"Issuing Lender" shall mean (x) solely in respect of the South Texas
Letters of Credit, each of (i) DBAG for up to an aggregate Stated Amount
with respect to all South Texas Letters of Credit issued by DBAG equal to
50% of all South Texas Letters of Credit and (ii) Citibank for up to an
aggregate Stated Amount with respect to all South Texas Letters of Credit
issued by Citibank equal to 50% of all South Texas Letters of Credit, (y)
in respect of all Letters of Credit (other than the South Texas Letters of
Credit), Compass for up to an aggregate Stated Amount equal to the
difference of Total Commitment and the aggregate Stated Amount of all
South Texas Letters of Credit and (z) any other Lender which at the
request of the Borrower and with the consent of the Administrative Agent
(which shall not be unreasonably withheld or delayed) agrees, in such
Lender's sole discretion, to become an Issuing Lender for the purpose of
issuing Letters of Credit pursuant to Section 2 (which, in each case, for
purposes of this definition shall also include any respective banking
affiliate of DBAG, Citibank, Compass and such other Lender). It being
understood and agreed that on the First Amendment Effective Date the sole
Issuing Lenders are DBAG, Citibank and Compass (and their respective
banking affiliates).
"Joint Lead Arrangers" shall mean Deutsche Bank Securities Inc. and
Citigroup Global Markets Inc., in their capacity as Joint Lead Arrangers.
"Maturity Date" shall mean the earlier of (x) date occurring 180
days after the First Amendment Effective Date and (y) the Non-STP
Acquisition Date.
"Security Documents" shall mean (subject to Section 13.20), the
Indenture and any supplemental indenture issued to the Administrative
Agent in connection with the Bond, the Bond, Pledge Agreement, each Cash
Collateral Agreement, and each other collateral document or instrument
entered into pursuant to Section 5.05 or 8.11, if any, in each case as and
when delivered in accordance with this Agreement as same may be amended,
modified or supplemented from time to time in accordance with the terms
thereof and/or hereof.
10. Section 11 of the Credit Agreement is hereby further amended by
adding the following definitions in such Section in their appropriate
alphabetical order:
-4-
"Citibank" shall mean Citibank, N.A., in its individual capacity.
"Cash Collateral Agreement" shall mean a cash collateral agreement
substantially in the form of Exhibit J.
"Compass" shall mean Compass Bank, in its individual capacity.
"Continuing Letter of Credit" shall have the meaning provided in
Section 4.02(d).
"First Amendment Effective Date" shall mean the date upon which the
First Amendment to this Agreement, dated September 3, 2004 becomes
effective in accordance with its terms.
"Genco LP Division" shall have the meaning provided in the
Transaction Agreement.
"Genco LP Division Date" shall mean the earlier of (x) date upon
which the Genco LP Division is consummated in accordance with the
Transaction Agreement and (y) the date upon which Non-STP Assets are no
longer owned by the Borrower.
"Highest Lawful Rate" shall mean, with respect to each Lender, the
Administrative Agent and the Documentation Agent, the maximum nonusurious
interest rate, if any, that at any time or from time to time may be
contracted for, taken, reserved, charged or received with respect to any
Loan or on other amounts, if any, due to such Person pursuant to this
Agreement or any other Credit Document under applicable law. "Applicable
law" as used in this definition means, with respect to each Lender, the
Administrative Agent and the Documentation Agent, that law in effect from
time to time that permits the charging and collection by such Person of
the highest permissible lawful, nonusurious rate of interest on the
transactions herein contemplated under the laws of Texas.
"Non-STP Acquisition" shall have the meaning provided in the
Transaction Agreement.
"Non-STP Acquisition Date" shall mean the earlier of (x) the date
upon which the Non-STP Acquisition is consummated in accordance with the
terms of the Transaction Agreement and (y) the date upon which Non-STP
Assets are no longer owned by any Credit Party.
"Non-STP Assets" shall have the meaning provided in the Transaction
Agreement.
"Overnight Bridge Loan" shall have the meaning provided in the
Transaction Agreement.
"Public Company Merger" shall have the meaning provided in the
Transaction Agreement.
-5-
"Repurchase" shall have the meaning provided in Section 13.18.
"South Texas Letter of Credit" shall mean each Letter of Credit
issued by (x) DBAG (in its capacity as an Issuing Lender) and (y) Citibank
(in its capacity as an Issuing Lender), in each case, in connection with
the Borrower's acquisition of an increased ownership interest in the South
Texas Project; provided that (i) the aggregate Stated Amount of all South
Texas Letters of Credit shall not exceed $189,500,000 and (ii) neither
DBAG nor Citibank shall be required to issue a South Texas Letter of
Credit in a Stated Amount exceeding 50% of the aggregate Stated Amount of
all such South Texas Letters of Credit as provided in clause (i) of this
proviso. For the avoidance of doubt, it is understood that nothing
contained in this definition shall be deemed to increase the Commitments
of DBAG or Citibank or limit or modify the provisions contained in Section
2.01(c) or the definition of Issuing Lender.
"South Texas Project" shall mean the South Texas Project Nuclear
Electric Generating Station.
"Syndication Agent" shall mean Citibank in its capacity as
Syndication Agent.
"Transaction Agreement" shall mean that certain Transaction
Agreement, dated as of July 21, 2004, among CenterPoint Energy, Utility
Holding, LLC, NN Houston Sub, Inc., the Parent, HPC Merger Sub, Inc. and
GC Power Acquisition LLC and shall include all exhibits thereto, in each
case, as previously delivered to the Lenders and as may be amended from
time to time in accordance with the terms thereof and with the terms of
this Agreement.
11. The definition of the term "Permitted Liens" appearing in
Section 11 of the Credit Agreement is hereby amended by deleting the amount
"$250,000,000" appearing therein and inserting the amount "$425,000,000" in lieu
thereof.
12. Section 12.01 of the Credit Agreement is hereby amended by
deleting the first sentence thereof and inserting the following text in lieu
thereof.
"The Lenders hereby designate (i) DBAG as Administrative Agent and
Collateral Agent to act as specified herein and in the other Credit
Documents, (ii) Compass Bank as Documentation Agent, (ii) Citibank, N.A.,
as Syndication Agent and (iii) Deutsche Bank Securities, Inc. and
Citigroup Global Markets Inc. as Joint Lead Arrangers, in each case to act
as specified herein and in the other Credit Documents."
13. Section 12.10 of the Credit Agreement is hereby amended by
deleting said Section in its entirety and inserting the following new Section
12.10 in lieu thereof:
12.10 Documentation Agent; Syndication Agent. Notwithstanding
anything to the contrary contained herein, nothing in this Agreement shall
impose on either the Documentation Agent, in such capacity or the
Syndication Agent, in such capacity, any duties or obligations.
-6-
14. Section 13.02 of the Credit Agreement is hereby amended by
inserting the text "or its Affiliates" immediately after the text "any time held
or owing by such Lender" appearing in said Section.
15. Section 13 of the Credit Agreement is hereby amended by adding
the following new Sections 13.17, 13.18, 13.19, 13.20 and 13.21 at the end of
said Section:
"Section 13.17 Genco LP Division. Notwithstanding anything to the
contrary contained in the Credit Agreement or any other Credit Document,
the Continuing Lenders hereby agree that the Genco LP Division shall be
permitted in accordance with the terms and conditions contained in the
Transaction Agreement; provided that on or prior to the Genco LP Division
Date, the following conditions shall have been satisfied, in each case, to
the reasonable satisfaction of the Lenders:
(a) (i) Texas Genco, LP shall survive the merger contemplated by the
Genco LP Division, (ii) at no time shall the Credit Agreement or any other
Credit Document cease to be in full force and effect as to Texas Genco,
LP, (iii) the Credit Agreement and each other Credit Document shall remain
in full force and effect as to the Borrower (after giving effect to such
merger);
(b) each surviving entity of the merger contemplated by the Genco LP
Division (other than the Borrower) shall (i) pursuant to documentation in
form and substance reasonably satisfactory to the Lenders, become a party
to the Credit Agreement as a Guarantor thereunder and expressly agree to
assume all obligations and liabilities of a Guarantor thereunder
(including, without limitation, the Guaranteed Obligations) and under each
of the other Credit Documents and (ii) take all actions and deliver all
documents, agreements and opinions reasonably requested by the Lenders in
connection with the assumption of such obligations and liabilities
including, without limitation, those actions and documents described in
Section 5 of the Credit Agreement, as if such Person were a Guarantor on
the Effective Date;
(c) the requirements and conditions contained in the Indenture in
connection with the Genco LP Division and the merger contemplated thereby
(including, without limitation, Articles Twelve and Thirteen thereof)
shall have been satisfied in all material respects in accordance therewith
and no such requirement or condition shall have been waived without the
express written consent of the Lenders;
(d) the Administrative Agent shall have received evidence of the
completion of all other recordings and filings of, or with respect to, the
Indenture as may be necessary or, in the reasonable opinion of the
Administrative Agent, desirable to effectively to create a valid and
enforceable first priority mortgage Lien (subject to Permitted Liens) and
otherwise perfect the security interests purported to be created by the
Indenture (after giving effect to the Genco LP Division); and
-7-
(e) the Administrative Agent and the Lenders shall have received a
copy of the opinions of Baker Botts LLP and the Deputy General Counsel of
CenterPoint Energy issued to the Trustee in connection with any actions
contemplated by the Genco LP Division and a reliance letter addressed to
the Administrative Agent and each of the Lenders in respect of each such
opinion.
Section 13.18 Public Company Merger. Notwithstanding anything to the
contrary contained in the Credit Agreement or any other Credit Document,
the Continuing Lenders hereby agree that the Public Company Merger and the
payments made in connection with the repurchase (the "Repurchase") of any
outstanding Common Stock of the Parent shall be permitted in accordance
with the terms and conditions contained in the Transaction Agreement;
provided that (i) the Parent shall survive the Public Company Merger (and
there shall be no other surviving entity of such merger), (ii) at no time
shall the obligations of the Parent under the Guaranty cease to be in full
force and effect, (iii) the Guaranty and each other Credit Document shall
remain in full force and effect as to the Parent (after giving effect to
such merger), (iv) the Overnight Bridge Loans constitute the unsecured
Indebtedness of the Parent guaranteed by the Parent's Domestic
Subsidiaries (which guaranty shall not be secured), (v) all payments in
respect of the Repurchase shall be made solely from the proceeds of the
Overnight Bridge Loan, the proceeds of the Non-STP Acquisition and/or the
cash on hand of the Parent and its Subsidiaries and (vi) the Overnight
Bridge Loans shall only be repaid with a portion of the proceeds of the
Non-STP Acquisition in accordance with Section 2.3(c) of the Transaction
Agreement.
Section 13.19 Non-STP Acquisition. Notwithstanding anything to the
contrary contained in the Credit Agreement or any other Credit Document
and subject to the definition of Maturity Date, the Lenders hereby agree
that the Non-STP Acquisition shall be permitted in accordance with the
terms and conditions contained in the Transaction Agreement, provided that
concurrently with or prior to the Non-STP Acquisition Date, (i) all of the
requirements of Section 4.02(d) have been satisfied to the reasonable
satisfaction of the Lenders and (ii) the Total Commitment shall have been
terminated, no Revolving Note, Loan, Unpaid Drawing or any Letter of
Credit which has not been cash collateralized to the reasonable
satisfaction of the Lenders in accordance with Section 4.02(d) is
outstanding and all other Obligations (other than indemnities described in
Section 13.13, and any other indemnities set forth in any other Credit
Document which survive the termination of the Total Commitment, in each
case which are not then due and payable) shall have been paid in full in
cash.
Section 13.20 Termination of the Guaranty, the Pledge Agreement and
Certain Covenants and Events of Default Upon Cash Collateralization. The
Lenders hereby agree that, notwithstanding anything to the contrary
contained in this Agreement or any other Credit Document and without
limiting any other provision of this Agreement, upon the satisfaction of
the requirements contained in Section 4.02(d) to the reasonable
satisfaction of the Lenders:
(a) except for the covenants contained in Section 8.01(a), (b), (d)
and (k), Section 8.02, 8.04 and 8.11 and Section 9.07, all other covenants
contained in Section 8
-8-
and Section 9 and the covenants contained in Section 4.02(a) shall be of
no further force and effect and no breach of such covenants shall
constitute a Default or Event of Default under this Agreement or any other
Credit Document;
(b) the occurrence of any of the events described in Sections 10.04,
10.06, 10.07, 10.08, 10.09 and 10.11 shall, in each case, no longer
constitute Events of Default under the Credit Agreement or any other
Credit Document;
(c) the Guaranty shall terminate and be of no further force and
effect; and
(d) the Pledge Agreement shall terminate in accordance with its
terms.
13.21. Limitation on Interest. Notwithstanding anything to the
contrary contained in this Agreement or any other Credit Document, all
agreements between the Borrower, the Administrative Agent or any Lender,
whether now existing or hereafter arising and whether written or oral, are
hereby expressly limited so that in no contingency or event whatsoever,
whether by reason of demand being made in respect of an amount due under
any Credit Document or otherwise, shall the amount paid, or agreed to be
paid, to the Administrative Agent or any Lender for the use, forbearance,
or detention of the money to be loaned under this Agreement, any Revolving
Notes or any other Credit Document or otherwise or for the payment or
performance of any covenant or obligation contained herein or in any other
Credit Document exceed the Highest Lawful Rate. If, as a result of any
circumstances whatsoever, fulfillment of any provision hereof or of any of
such documents, at the time performance of such provision shall be due,
shall involve transcending the limit of validity prescribed by Applicable
Law, then, ipso facto, the obligation to be fulfilled shall be reduced to
the limit of such validity, and if, from any such circumstance, the
Administrative Agent or any Lender shall ever receive interest under
Applicable Law that would exceed the Highest Lawful Rate, such amount that
would exceed the Highest Lawful Rate shall be applied to the reduction of
the principal amount owing on account of such Lender's Loans or the
amounts owing on other obligations of the Borrower to the Administrative
Agent or any Lender under any Credit Document and not to the payment of
interest, or if such excessive interest exceeds the unpaid principal
balance of such Lender's Loans and the amounts owing on other obligations
of the Borrower to the Administrative Agent or any Lender under any Credit
Document, as the case may be, such excess shall be refunded to the
Borrower to the extent required under Applicable Law. All sums paid or
agreed to be paid to the Administrative Agent or any Lender for the use,
forbearance or detention of the indebtedness of the Borrower to the
Administrative Agent or any Lender shall, to the fullest extent permitted
by Applicable Law, be amortized, prorated, allocated and spread throughout
the full term of such indebtedness until payment in full of the principal
(including the period of any renewal or extension thereof) so that the
interest on account of such indebtedness shall not exceed the Highest
Lawful Rate. Notwithstanding anything to the contrary contained in any
Credit Document, it is understood and agreed that if at any time the rate
of interest that accrues on the outstanding principal balance of any Loan
shall exceed the Highest Lawful Rate, the rate of interest that accrues on
the outstanding principal
-9-
balance of any Loan shall be limited to the Highest Lawful Rate, but any
subsequent reductions in the rate of interest that accrues on the
outstanding principal balance of any Loan shall not reduce the rate of
interest that accrues on the outstanding principal balance of any Loan
below the Highest Lawful Rate until the total amount of interest accrued
on the outstanding principal balance of any Loan equals the amount of
interest that would have accrued if such interest rate had at all times
been in effect."
16. Schedule I to the Credit Agreement is hereby amended by deleting
Schedule I to the Credit Agreement in its entirety and replacing it with
Schedule I attached hereto.
17. Schedule II to the Credit Agreement is hereby amended by
deleting Schedule II to the Credit Agreement in its entirety and replacing it
with Schedule II attached hereto.
18. The Credit Agreement is hereby further amended by inserting new
Exhibit J in the form of Exhibit J attached hereto.
19. The cover page to the Credit Agreement is hereby amended by (i)
deleting the text ", AS LEAD ARRANGER AND BOOK RUNNER" immediately following the
text "DEUTSCHE BANK SECURITIES INC.", and inserting the text "and CITIGROUP
GLOBAL MARKETS INC., AS JOINT LEAD ARRANGERS AND BOOK RUNNERS" in lieu thereof,
(ii) inserting the text "CITIBANK, N.A., as Syndication Agent" immediately below
the text "as Administrative Agent and Collateral Agent" and (iii) deleting the
amount "$75,000,000" appearing therein and replacing it with the amount
"$250,000,000".
II. Amendments to the Pledge Agreement as at the First Amendment Effective
Date
1. Clause (b) of Section 1 to the Pledge Agreement is hereby amended
by deleting the definition of "Pledged Bonds" in its entirety and inserting the
following definition in lieu thereof:
""Pledged Bonds": shall mean the First Mortgage Indenture Bonds
Series C, initially authenticated and delivered in the aggregate principal
amount of two hundred fifty million dollars ($250,000,000), established in
the Third Supplemental Indenture, dated as of September 3, 2004, between
the Company and the Trustee."
2. Section 21 of the Pledge Agreement is hereby amended by inserting
the following new text immediately after the text "Letter of Credit" appearing
in said Section:
"which has not been cash collateralized to the reasonable
satisfaction of the Lenders in accordance with Section 4.02(d) of the
Credit Agreement"
III. Agreements
1. The parties hereto agree that upon the effectiveness of this
First Amendment, each Person set forth on Schedule III hereto (each a
"Non-Continuing Lender" and collectively, the "Non-Continuing Lenders") shall no
longer constitute a "Lender" under the
-10-
Credit Agreement, except with respect to indemnification provisions applicable
to such Non-Continuing Lender under any Credit Document.
2. Concurrently with the effectiveness of this First Amendment, the
Borrower agrees that in connection with the amendment made in Section 15 of
Article I hereof and the agreements made in Section 1 of this Article III and
notwithstanding anything to the contrary contained in the Credit Agreement, the
Borrower shall take all actions as may be reasonably necessary to ensure that
all Lenders (after giving effect to this First Amendment) participate in each
Borrowing of Loans outstanding on the First Amendment Effective Date on a pro
rata basis including, without limitation, by making such voluntary repayments of
outstanding Loans and the incurring such new Loans as necessary to ensure the
foregoing (even though as a result thereof Lenders may incur costs of the type
described in Section 1.11 which costs shall be for the account of, and paid by,
the Lender on the First Amendment Effective Date).
3. Each of the Parent, Genco GP, Genco LP and Genco Services hereby
represents and warrants that, subject to Section 13.20 of the Credit Agreement
(after giving effect to this First Amendment), (i) it has full power and
authority, and has taken all action necessary, to execute and deliver this First
Amendment and to continue the guarantees made by it under the Guaranty (after
giving effect to this First Amendment), (ii) it is and shall continue to be on
and after the First Amendment Effective Date, bound by the provisions of the
Guaranty and each other Credit Document to which it is a party (except to the
extent that the enforcement thereof may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws affecting creditors' rights
generally and by equity principles), (iii) on and after the First Amendment
Effective Date, it continues to be a Guarantor for all purposes under the
Guaranty and each other Credit Document, (iv) on and after the First Amendment
Effective Date, it will continue to obtain benefits from the incurrence of Loans
to, and the issuance of Letters of Credit for the account of, the Borrower, (v)
on and after the First Amendment Effective Date and after giving effect to
clause (vi) below, the guarantees made by it under the Guaranty remain in full
force and effect and (vi) on and after the First Amendment Effective Date all
references in the Guaranty and each other Credit Document to the "Credit
Agreement" shall be deemed and are references to the Credit Agreement as amended
hereby.
4. The Borrower hereby represents, warrants and agrees that (i) it
has full power and authority, and has taken all action necessary, to execute and
deliver this First Amendment and to continue the pledge and grant of security
interests made by it under the Pledge Agreement and each other Security Document
(after giving effect to this First Amendment), (ii) subject to Section 13.20 of
the Credit Agreement (after giving effect to this First Amendment), it is and
shall continue to be on and after the First Amendment Effective Date, bound by
the provisions of the Pledge Agreement and each other Credit Document to which
it is a party, (iii) on and after the First Amendment Effective Date and after
giving effect to clause (iv) below, the Pledge Agreement remains in full force
and effect and (iv) on and after the First Amendment Effective Date all
references in each Security Document to the "Credit Agreement" shall be deemed
and are references to the Credit Agreement as amended hereby.
-11-
IV. Miscellaneous
1. In order to induce the undersigned Lenders to enter into this
First Amendment, the Borrower hereby represents and warrants that (x) no Default
or Event of Default exists on the First Amendment Effective Date both before and
after giving effect to this First Amendment, and (y) all of the representations
and warranties contained in the Credit Agreement are true and correct in all
material respects on the First Amendment Effective Date, both before and after
giving effect to this First Amendment, with the same effect as though such
representations and warranties had been made on and as of the First Amendment
Effective Date (unless such representations expressly relate to an earlier date,
in which case they shall be true and correct in all material respects on and as
of such earlier date).
2. This First Amendment is limited as specified and shall not
constitute a modification, acceptance or waiver of any other provision of the
Credit Agreement or any other Credit Document.
3. This First Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which counterparts when executed and delivered shall be an original, but all
of which shall together constitute one and the same instrument. A complete set
of counterparts shall be lodged with the Borrower and the Administrative Agent.
4. THIS FIRST AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK.
5. This First Amendment shall become effective on the date (the
"First Amendment Effective Date") when:
(A) the Borrower and each Continuing Lender shall have signed a
counterpart hereof (whether the same or different counterparts) and shall have
delivered (including by way of telecopier) the same to the Administrative Agent;
(B) there shall have been delivered to the Administrative Agent for
the account of each Lender that has requested same, the appropriate Revolving
Note executed by the Borrower, in each case in the amount, maturity and as
otherwise provided in the Credit Agreement (after giving effect to this First
Amendment);
(C) the Commitments of each Non-Continuing Lender shall have been
terminated and the Obligations due and payable to the Non-Continuing Lenders on
the First Amendment Effective Date shall have been paid in full;
(D) on the First Amendment Effective Date, all reasonable costs,
fees and expenses (including, without limitation, the reasonable legal fees and
expenses of White & Case LLP) payable to the Lead Arrangers, the Agents and the
Lenders shall have been paid in full;
-12-
(E) the Administrative Agent shall have received executed copies of,
(i) the Third Supplemental Indenture, dated September 3, 2004, between the
Borrower and the Trustee in the form of Exhibit A hereto (the "Third
Supplemental Indenture"), (ii) the Officer's Certificate of Genco GP, dated
September 3, 2004, in form of Exhibit B hereto, (iii) the Company Order, dated
September 3, 2004, from the Borrower to the Trustee, in the form of Exhibit C
hereto, (iv) the opinion of Baker Botts LLP issued to the Trustee in connection
with any of the transactions contemplated by this First Amendment and a reliance
letter addressed to the Administrative Agent and each of the Lenders in respect
of such opinion and (v) any all other documents required under the Indenture;
(F) the Borrower shall have delivered to the Collateral Agent, the
First Mortgage Bond Series C, in the aggregate principal amount of two hundred
fifty million dollars;
(G) the Administrative Agent shall have received legal opinions
addressed to each Agent and the Lenders from (i) New York counsel opinion of
Baker Botts LLP, (ii) the Deputy General Counsel of CenterPoint Energy and (iii)
local counsel opinion of Baker Botts LLP, and, in each case covering matters,
reasonably acceptable to the Administrative Agent including, without limitation,
(x) a no-conflicts opinion as to (1) the material Indebtedness for Borrowed
Money of any Credit Party which will remain outstanding of the First Amendment
Effective Date (if any) and (2) any material contracts of Parent or its
subsidiaries, (y) title, perfection and priority of the security interests
securing the Bond and (z) and such other matters incidental to the transactions
contemplated hereby as the Administrative Agent may reasonably request;
(H) the Administrative Agent shall have received a certificate,
dated the First Amendment Effective Date, and signed on behalf of the Borrower
by a Responsible Officer, stating that all conditions in this Section 5 (other
than clause (H)) of this First Amendment have been satisfied on such date;
(I) the Administrative Agent shall have received evidence of the
completion of all other recordings and filings of, or with respect to, the
Indenture as may be necessary or, in the reasonable opinion of the
Administrative Agent, desirable to effectively to create a valid and enforceable
first priority mortgage Lien (subject to Permitted Liens) and otherwise perfect
the security interests purported to be created by the Indenture;
(J) since December 31, 2003, nothing shall have occurred (and
neither the Administrative Agent nor any Lender shall have become aware of any
facts or conditions not previously known) which the Administrative Agent or the
Required Lenders shall determine could reasonably be expected to have a Material
Adverse Effect;
(K) on or prior to the First Amendment Effective Date, all necessary
governmental (domestic and foreign) and third party approvals and/or consents in
connection with the transactions contemplated by the Credit Documents (after
giving effect to this First Amendment) shall have been obtained and remain in
effect, and all applicable waiting periods shall have expired without any action
being taken by any
-13-
competent authority which in the reasonable judgment of the Administrative Agent
or the Required Lenders restrains, prevents or imposes materially adverse
conditions upon the consummation of the transactions contemplated by the Credit
Documents. Additionally, there shall not exist any judgment, order, injunction
or other restraint issued or filed or a hearing seeking injunctive relief or
other restraint pending or notified prohibiting or imposing materially adverse
conditions upon the making of any Loan, issuance of any Letter of Credit or the
consummation of the transactions contemplated by the Credit Documents;
(L) on the First Amendment Effective Date, no litigation by any
entity (private or governmental) shall be pending or threatened with respect to
this Agreement, any other Credit Document or any other documentation executed in
connection herewith and therewith or the transactions contemplated hereby and
thereby, or which the Administrative Agent or the Required Lenders shall
determine has had, or could reasonably be expected to have, a Material Adverse
Effect; and
(M) the Administrative Agent shall have received evidence that all
other actions necessary or, in the reasonable opinion of the Administrative
Agent, desirable to perfect and protect the security interests purported to be
created by the Indenture (after giving effect to this First Amendment) have been
taken.
6. From and after the First Amendment Effective Date all references
in the Credit Agreement and the other Credit Documents to the Credit Agreement
shall be deemed to be references to the Credit Agreement as modified hereby.
Except as modified hereunder, the terms, provisions and conditions of the Credit
Agreement and the other Credit Documents shall continue in full force and
effect.
* * * * *
-14-
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this First Amendment to be duly executed and delivered as of the
date first above written.
TEXAS GENCO, LP
By: TEXAS GENCO GP, LLC,
its General Partner
By: /s/ MARC KILBRIDE
-------------------------------
Name: Marc Kilbride
Title: V.P. and Treasurer
TEXAS GENCO HOLDINGS, INC.
By: /s/ MARC KILBRIDE
-------------------------------
Name: Marc Kilbride
Title: V.P. and Treasurer
TEXAS GENCO GP, LLC
By: /s/ MARC KILBRIDE
-------------------------------
Name: Marc Kilbride
Title: V.P. and Treasurer
TEXAS GENCO LP, LLC
By: /s/ PATRICIA F. GENZEL
-------------------------------
Name: Patricia F. Genzel
Title: Manager and President
TEXAS GENCO SERVICES , LP
By: TEXAS GENCO GP, LLC,
its General Partner
By: /s/ MARC KILBRIDE
-------------------------------
Name: Marc Kilbride
Title: V.P. and Treasurer
DEUTSCHE BANK AG NEW YORK
BRANCH, individually and as
Administrative Agent and
Collateral Agent
By: /s/ RICHARD HENSHALL
-------------------------------
Name: Richard Henshall
Title: Director
By: /s/ OLIVER RIEDINGER
-------------------------------
Name: Oliver Riedinger
Title: Vice President
CITIBANK, N.A.
By: /s/ SANDIP SEN
--------------------------------
Name: Sandip Sen
Title: Managing Director
COMPASS BANK
By: /s/ COLLIS SANDERS
--------------------------------
Name: Collis Sanders
Title: Executive Vice President
SCHEDULE I
COMMITMENTS
Lender Commitment
- ------ ------------
Deutsche Bank AG New York Branch $110,000,000
Citibank N.A. $110,000,000
Compass Bank $ 30,000,000
Total: $250,000,000
============
SCHEDULE II
LENDER ADDRESSES
DEUTSCHE BANK AG NEW YORK BRANCH
60 Wall Street
New York, NY 10005-2858
Telephone: (212) 250-3968
Facsimile: (212) 797-4346
Attention: Richard Henshall
CITIBANK, N.A.
2 Penns Way, Suite 110
New Castle, DE 19720
Telephone: (302) 894-6084
Facsimile: (212) 994-0847
Attention: Karen Riley
COMPASS BANK
24 Greenway Plaza, Suite 1400
Houston, TX 77046
Telephone: (713) 968-8234
Facsimile: (713) 968-8211
Attention: Collis Sanders
SCHEDULE III
NON-CONTINUING LENDERS
Bank of America, N.A.
Credit Suisse First Boston
JPMorgan Chase Bank
Wachovia Bank, National Association