Exhibit 10(d)
EXECUTION COPY
- --------------------------------------------------------------------------------
TXU US HOLDINGS COMPANY
$1,400,000,000
--------------------------------------------------
AMENDMENT TO FIVE-YEAR THIRD AMENDED AND RESTATED COMPETITIVE ADVANCE AND
REVOLVING CREDIT FACILITY AGREEMENT
Dated as of April 22, 2003
--------------------------------------------------
JPMORGAN CHASE BANK,
as Administrative Agent and Competitive Advance Facility Agent
Joint Lead Arrangers and Co-Book Managers
JPMORGAN SECURITIES, INC.
CITIGROUP GLOBAL MARKETS INC.
Co-Syndication Agents
BANK OF AMERICA, N.A.
CITIBANK, N.A.
Documentation Agent
THE BANK OF NEW YORK
- --------------------------------------------------------------------------------
2
AMENDMENT
TO CREDIT AGREEMENT
This AMENDMENT, dated as of April 22, 2003 (this "Amendment"), is made
to that certain Five-Year Third Amended and Restated Competitive Advance and
Revolving Credit Facility Agreement, dated as of July 31, 2002 (the "Credit
Agreement"), among TXU US Holdings Company, a Texas corporation (the
"Borrower"), the lenders party thereto (the "Lenders") and JPMorgan Chase Bank,
as Competitive Advance Facility Agent (in such capacity, the "CAF Agent"), as
administrative agent for the Lenders (in such capacity, the "Administrative
Agent"; and, together with the CAF Agent, the "Agents") and as fronting bank for
the Letters of Credit issued thereunder (in such capacity, the "Fronting Bank").
PRELIMINARY STATEMENT:
The Borrower, the Lenders, the Agents and the Fronting Bank previously
entered into the Credit Agreement. The Borrower has requested that the Lenders
agree to the amendment of the Credit Agreement as set forth herein, and the
Lenders have agreed to such request, subject to the terms and conditions of this
Amendment. Therefore, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
SECTIONN 1. Definitions. Capitalized terms used but not defined
herein have the meanings assigned to such terms in the Credit Agreement.
SECTION 2. Amendment. Subject to the satisfaction of the conditions
precedent set forth in Section 3 hereof, the Credit Agreement is hereby
amended as follows:
(a) The definition of "Applicable Margin" set forth in Section 1.01 of the
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
"Applicable Margin" shall mean the percentage per annum set
forth in the column identified as Level 1, Level 2, Level 3 or Level 4
below, based upon the level corresponding to the Debt Rating of the
Borrower at the time of determination. If there is a difference of one
level in the Debt Ratings, then the higher Debt Rating shall be used to
determine the Applicable Margin; if there is a difference of more than
one level in the Debt Ratings, then the level one level higher than the
lower Debt Rating shall be used to determine the Applicable Margin,
unless the lower Debt Rating is below Level 2, in which case the lower
Debt Rating will be used to determine the Applicable Margin. The
Applicable Margins set forth below with respect to each Level (i) shall
be increased by 0.25% during any period (and for only such period) in
which the aggregate amount of Outstanding Credits is greater than 33?%
but less than 66?% of the Total Commitments, and (ii) shall be
increased by 0.50% during any period (and for only such period) in
which the aggregate amount of Outstanding Credits is at least 66?% of
the Total Commitments. Any change in the Applicable Margin shall be
effective on the date on which the applicable rating agency announces
any change in the Debt Rating.
3
================= ================== =================== ================= ======================
Level 1 Level 2 Level 3 Level 4
------- ------- ------- -------
S&P BBB+ or better BBB or BBB- BB+ Lower than BB+*
Moody's Baa1 or better Baa2 or Baa3 Ba1 Lower than Ba1*
-------------- ------------ --- ---------------
- ----------------- ------------------ ------------------- ----------------- ----------------------
Percentage Per Annum
- -------------------------------------------------------------------------------------------------
Eurodollar 1.25% 1.45% 1.75% 2.25%
Margin
- ----------------- ------------------ ------------------- ----------------- ----------------------
ABR 0.25% 0.45% 0.75% 1.25%
Margin
================= ================== =================== ================= ======================
* or unrated
(b) The definition of "Facility Fee Percentage" set forth in Section 1.01 of the
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
"Facility Fee Percentage" shall mean the percentage per annum
set forth in the column identified as Level 1, Level 2, Level 3 or
Level 4 below, based upon the Level corresponding to the higher Debt
Rating of the Borrower at the time of determination. Any change in the
Facility Fee Percentage shall be effective on the date on which the
applicable rating agency announces any change in the applicable Debt
Rating.
================ ===================== ================ ================= =====================
Level 1 Level 2 Level 3 Level 4
------- ------- ------- -------
S&P BBB+ or better BBB or BBB- BB+ Lower than BB+*
Moody's Baa1 or better Baa2 or Baa3 Ba1 Lower than Ba1*
-------------- ------------ --- ---------------
- ---------------- --------------------- ---------------- ----------------- ---------------------
Percentage Per Annum
- ---------------- --------------------- ---------------- ----------------- ---------------------
Facility Fee 0.250% 0.300% 0.500% 0.750%
================ ===================== ================ ================= =====================
* or unrated
(c) The definition of "LC Commitment Amount" set forth in Section 1.01 of
the Credit Agreement is hereby amended and restated in its entirety to read as
follows:
"LC Commitment Amount" shall mean $1,000,000,000.
(d) The definition of "Utilization Period" set forth in Section 1.01 of the
Credit Agreement is hereby deleted.
(e) Section 2.06(d) of the Credit Agreement is hereby amended and restated
in its entirety to read as follows:
(d) The Borrower agrees to pay the Administrative Agent for
the account of the Fronting Bank a fronting fee (a "Fronting Fee") and
such other charges with respect to such Letter of Credit as are set
forth in the Fee Letter or otherwise agreed upon with the Fronting
Bank, and agrees to pay to the Administrative Agent for the account of
the Lenders a fee (the "LC Fee") on the face amount of each Letter of
Credit issued by the Fronting Bank for the account of the Borrower
calculated at a rate per annum equal to (i) in the case of each
Designated Letter of Credit (as defined below) during the period from
April 22, 2003 to the earlier to occur of (A) the stated expiry date as
of April 22, 2003 of such Designated Letter of Credit and (B) September
30, 2003, the sum of 1.125% per annum plus (x) 0.25% per annum during
4
any period (and for only such period) in which the aggregate amount of
Outstanding Credits is greater than 33?% but less than 66?% of the
Total Commitments, or (y) 0.50% per annum during any period (and for
only such period) in which the aggregate amount of Outstanding Credits
is at least 66?% of the Total Commitments, and (ii) for all Letters of
Credit (other than each Designated Letter of Credit during the period
from April 22, 2003 to the earlier to occur of (A) the stated expiry
date as of April 22, 2003 of such Designated Letter of Credit and (B)
September 30, 2003), the Applicable Margin for Eurodollar Standby
Loans, computed, in the case of each of clauses (i) and (ii) above on
the basis of the actual number of days that each such Letter of Credit
is outstanding, assuming a year of 360 days, payable in arrears on each
March 31, June 30, September 30 and December 31, and on the date that
such Letter of Credit expires or is drawn in full. As used herein,
"Designated Letter of Credit" shall mean LOC No. P-220706 in the stated
amount of $13,422,500, LOC No. P-220775 in the stated amount of
$42,277,084, LOC No. P-220704 in the stated amount of $78,362,917, LOC
No. P-220703 in the stated amount of $33,388,334, LOC No. P-220707 in
the stated amount of $48,332,917 and LOC No. P-225765 in the stated
amount of $65,704,167.
(f) Paragraph (f) of Article VI is hereby amended and restated in its
entirety to read as follows:
(f) TXU shall no longer own, directly or indirectly, all the
outstanding common stock in the Borrower or any permitted successor to
the Borrower or the Borrower shall no longer own, directly or
indirectly, 100% of the common stock of Oncor or common members'
interest in Energy; provided, however, that the Borrower and Energy may
sell in an initial public offering up to 20% of the equity interests in
any Subsidiary comprising generating assets of Energy;
SECTION 3. Conditions of Effectiveness.
(a) This Amendment shall become effective as of the date first set forth
above when and if the Administrative Agent shall have received from the Required
Lenders, the Fronting Bank and the Borrower signed counterparts of this
Amendment; and
(b) Section 2 of this Amendment shall become effective on the date (the
"Amendment Date") when and if the Administrative Agent shall have received:
(i) a certificate of a Secretary or Assistant Secretary of the
Borrower, dated the Amendment Date, certifying:
(A) that attached thereto is a copy of the certificate of incorporation,
including all amendments thereto, of the Borrower, certified as of a recent date
by the Secretary of State of the state of Texas, which has not been amended
since the date of the last amendment thereto shown on an attached certificate of
good standing of the Borrower as of a recent date from such Secretary of State;
5
(B) that attached thereto is a true and complete copy of the bylaws of the
Borrower as in effect on the Amendment Date and at all times since a date prior
to the date of the resolutions described in (C) below;
(C) that attached thereto are true and complete copies of resolutions duly
adopted by the Board of Directors of the Borrower authorizing the execution and
delivery by the Borrower of this Amendment, the Extensions of Credit to be made
under the Credit Agreement, as amended, and the performance by the Borrower of
all of its obligations under the Credit Agreement, as amended by this Amendment
(the "Amended Credit Agreement"), and that such resolutions have not been
modified, rescinded or amended and are in full force and effect; and
(D) as to the incumbency and specimen signature of each officer executing
this Amendment and any other document delivered in connection herewith on behalf
of the Borrower;
(E) that no action, consent or approval of, registration or filing with or
other action by any Governmental Authority is or will be required in connection
with the execution, delivery and performance by the Borrower of this Amendment
or the Amended Credit Agreement;
(F) that the representations and warranties set forth in Article III of the
Credit Agreement are true and correct in all material respect as of the
Amendment Date; and
(G) that no Event of Default or Default under the Credit Agreement, as
amended by this Amendment, has occurred and is continuing on the Amendment Date;
(ii) a certificate of another duly authorized officer of the Borrower as to
the incumbency and specimen signature of the Secretary or Assistant
Secretary executing the certificate pursuant to (i) above; and
(iii favorable legal opinions of the following, in form and substance
satisfactory to the Administrative Agent:
(A) Hunton & Williams LLP, counsel to the Borrower;
(B) Thelen Reid & Priest LLP, special New York counsel to the Borrower;
and
(C) King & Spalding LLP, special New York counsel to the Administrative
Agent.
SECTION 4. Representations and Warranties. The Borrower represents and
warrants that (a) the representations and warranties contained in Article III
of the Credit Agreement (with each reference therein to "this Agreement",
"hereunder" and words of like import referring to the Credit Agreement being
6
deemed to be a reference to this Amendment and the Amended Credit Agreement)
are true and correct on and as of the Amendment Date as though made on and as
of such date, and (b) no event has occurred and is continuing, or would result
from the execution and delivery of this Amendment, that constitutes a Default
or an Event of Default under the Credit Agreement, as amended by this Amendment.
SECTION 5. Effect on the Credit Agreement. Except as specifically provided
above, the Credit Agreement shall continue to be in full force and effect and is
hereby in all respects ratified and confirmed. The execution, delivery and
effectiveness of this Amendment shall not, except as expressly provided herein,
operate as a waiver of any right, power or remedy of the Lenders, the Agents or
the Fronting Bank under the Credit Agreement, nor constitute a waiver of any
provision of the Credit Agreement.
SECTION 6. Costs, Expenses and Taxes. The Borrower agrees to pay on demand
all costs and expenses of the Administrative Agent in connection with the
preparation, execution and delivery of this Amendment and the other instruments
and documents to be delivered hereunder, including, without limitation, the
reasonable fees and out-of-pocket expenses of counsel for the Administrative
Agent with respect thereto, and all reasonable costs and expenses (including,
without limitation, counsel fees and expenses), if any, in connection with the
enforcement (whether through negotiations, legal proceedings or otherwise) of
this Amendment or such other instruments and documents. In addition, the
Borrower agrees to pay any and all stamp and other taxes payable or determined
to be payable in connection with the execution and delivery of this Amendment
and the other instruments and documents to be delivered hereunder, and agrees to
save the Agents, the Fronting Bank and the Lenders harmless from and against any
and all liabilities with respect to or resulting from any delay in paying or
omission to pay such taxes.
SECTION 7. Execution in Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute but one and the same
instrument.
SECTION 8. Governing Law. This Amendment shall be governed by, and construed
in accordance with, the internal laws of the State of the New York.
[Signature pages to follow]
S-1
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
TXU US HOLDINGS COMPANY
By /s/ Kirk R. Oliver
-------------------------------------------------
Name: Kirk R. Oliver
Title: Treasurer and Assistant Secretary
Signature Page to Amendment to Five-Year Third Amended and Restated Competitive
Advance and Revolving Credit Facility Agreement
S-2
JPMORGAN CHASE BANK, individually and as Administrative
Agent, Competitive Advance Facility Agent and Fronting Bank
By /s/ Robert W. Trabano
---------------------------------------------------------
Name: Robert W. Trabano
Title: Vice President
Signature Page to Amendment to Five-Year Third Amended and Restated Competitive
Advance and Revolving Credit Facility Agreement
S-3
ABN AMRO BANK N.V.
By /s/ Kris A. Grosshans
------------------------------------------------
Name: Kris A. Grosshans
Title: Senior Vice President
By /s/ Thomas J. Sterr
------------------------------------------------
Name: Thomas J. Sterr
Title: Vice President
Signature Page to Amendment to Five-Year Third Amended and Restated Competitive
Advance and Revolving Credit Facility Agreement
S-4
[INTENTIONALLY OMITTED]
Signature Page to Amendment to Five-Year Third Amended and Restated Competitive
Advance and Revolving Credit Facility Agreement
S-5
BANK OF AMERICA, N.A.
By /s/ Jay T. Wampler
--------------------------------------------
Name: Jay T. Wampler
Title: Managing Director
Signature Page to Amendment to Five-Year Third Amended and Restated Competitive
Advance and Revolving Credit Facility Agreement
S-6
THE BANK OF NEW YORK
By /s/ Nathan S. Howard
-----------------------------------------------------
Name: Nathan S. Howard
Title: Vice President
Signature Page to Amendment to Five-Year Third Amended and Restated Competitive
Advance and Revolving Credit Facility Agreement
S-7
[INTENTIONALLY OMITTED]
Signature Page to Amendment to Five-Year Third Amended and Restated Competitive
Advance and Revolving Credit Facility Agreement
S-8
BANK ONE, NA
(Main office - Chicago)
By /s/ Michael Murphy
-----------------------------------------
Name: Michael Murphy
Title: Managing Director
Signature Page to Amendment to Five-Year Third Amended and Restated Competitive
Advance and Revolving Credit Facility Agreement
S-9
[INTENTIONALLY OMITTED]
Signature Page to Amendment to Five-Year Third Amended and Restated Competitive
Advance and Revolving Credit Facility Agreement
S-10
[INTENTIONALLY OMITTED]
Signature Page to Amendment to Five-Year Third Amended and Restated Competitive
Advance and Revolving Credit Facility Agreement
S-11
[INTENTIONALLY OMITTED]
Signature Page to Amendment to Five-Year Third Amended and Restated Competitive
Advance and Revolving Credit Facility Agreement
S-12
CIBC
By /s/ M. Sanjeeva Senamayake
----------------------------------------------
Name: M. Sanjeeva Senamayake
Title: Executive Director
CIBC World Markets Corp. As Agent
Signature Page to Amendment to Five-Year Third Amended and Restated Competitive
Advance and Revolving Credit Facility Agreement
S-13
CITIBANK, N.A.
By /s/ Peter Kettle
---------------------------------------------------
Name: Peter Kettle
Title: Vice President
Signature Page to Amendment to Five-Year Third Amended and Restated Competitive
Advance and Revolving Credit Facility Agreement
S-14
COMMERZBANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By /s/ Harry P. Yergey
---------------------------------------------------
Name: Harry P. Yergey
Title: Senior Vice President & Manager
By /s/ Brian J. Campbell
---------------------------------------------------
Name: Brian J. Campbell
Title: Senior Vice President
Signature Page to Amendment to Five-Year Third Amended and Restated Competitive
Advance and Revolving Credit Facility Agreement
S-15
CREDIT LYONNAIS NEW YORK BRANCH
By /s/ Olivier Audemard
-------------------------------------------------
Name: Olivier Audemard
Title: Senior Vice President
Signature Page to Amendment to Five-Year Third Amended and Restated Competitive
Advance and Revolving Credit Facility Agreement
S-16
CREDIT SUISSE FIRST BOSTON
By /s/ Christopher Lally
------------------------------------------------------
Name: Christopher Lally
Title: Vice President
By /s/ Ian W. Nalitt
-----------------------------------------------------
Name: Ian W. Nalitt
Title: Associate
Signature Page to Amendment to Five-Year Third Amended and Restated Competitive
Advance and Revolving Credit Facility Agreement
S-17
[INTENTIONALLY OMITTED]
Signature Page to Amendment to Five-Year Third Amended and Restated Competitive
Advance and Revolving Credit Facility Agreement
S-18
[INTENTIONALLY OMITTED]
Signature Page to Amendment to Five-Year Third Amended and Restated Competitive
Advance and Revolving Credit Facility Agreement
S-19
[INTENTIONALLY OMITTED]
Signature Page to Amendment to Five-Year Third Amended and Restated Competitive
Advance and Revolving Credit Facility Agreement
S-20
[INTENTIONALLY OMITTED]
Signature Page to Amendment to Five-Year Third Amended and Restated Competitive
Advance and Revolving Credit Facility Agreement
S-21
GUARANTY BANK
By /s/ Jim R. Hamilton
----------------------------------------
Name: Jim R. Hamilton
Title: Senior Vice President
Signature Page to Amendment to Five-Year Third Amended and Restated Competitive
Advance and Revolving Credit Facility Agreement
S-22
KBC BANK N.V.
By /s/ Robert Snauffer
---------------------------------------
Name: Robert Snauffer
Title: First Vice President
By /s/ Jean-Pierre Diels
---------------------------------------
Name: Jean-Pierre Diels
Title: First Vice President
Signature Page to Amendment to Five-Year Third Amended and Restated Competitive
Advance and Revolving Credit Facility Agreement
S-23
LEHMAN COMMERCIAL PAPER INC.
By /s/ Suzanne Flynn
-------------------------------------------
Name: Suzanne Flynn
Title: Authorized Signatory
Signature Page to Amendment to Five-Year Third Amended and Restated Competitive
Advance and Revolving Credit Facility Agreement
S-24
LLOYDS TSB BANK PLC
By /s/ Nicholas J. Bruce
-------------------------------------------------
Name: Nicholas J. Bruce
Title: Vice President, Credit Services B-499
By /s/ Matthew A.L. Packham
---------------------------------------------------
Name: Matthew A.L. Packham
Title: Assistant Director, Credit Services
P-002
Signature Page to Amendment to Five-Year Third Amended and Restated Competitive
Advance and Revolving Credit Facility Agreement
S-25
MELLON BANK, N.A.
By /s/ Roger E. Howard
----------------------------------------------
Name: Roger E. Howard
Title: Vice President
Signature Page to Amendment to Five-Year Third Amended and Restated Competitive
Advance and Revolving Credit Facility Agreement
S-26
MERRILL LYNCH CAPITAL CORPORATION
By /s/ Carol J.E. Feeley
-------------------------------------------
Name: Carol J.E. Feeley
Title: Vice President
Signature Page to Amendment to Five-Year Third Amended and Restated Competitive
Advance and Revolving Credit Facility Agreement
S-27
[INTENTIONALLY OMITTED]
Signature Page to Amendment to Five-Year Third Amended and Restated Competitive
Advance and Revolving Credit Facility Agreement
S-28
NATIONAL AUSTRALIA BANK LIMITED
A.C.N. 004044937
By /s/ Robert A. Mulderrig
-----------------------------------------
Name: Robert A. Mulderrig
Title: Head of Asset Structuring - N.A.
Signature Page to Amendment to Five-Year Third Amended and Restated Competitive
Advance and Revolving Credit Facility Agreement
S-29
[INTENTIONALLY OMITTED]
Signature Page to Amendment to Five-Year Third Amended and Restated Competitive
Advance and Revolving Credit Facility Agreement
S-30
[INTENTIONALLY OMITTED]
Signature Page to Amendment to Five-Year Third Amended and Restated Competitive
Advance and Revolving Credit Facility Agreement
S-31
SUMITOMO MITSUI BANKING CORPORATION
By /s/ David A. Buck
--------------------------------------
Name: David A. Buck
Title: Senior Vice President
Signature Page to Amendment to Five-Year Third Amended and Restated Competitive
Advance and Revolving Credit Facility Agreement
S-32
[INTENTIONALLY OMITTED]
Signature Page to Amendment to Five-Year Third Amended and Restated Competitive
Advance and Revolving Credit Facility Agreement
S-33
UBS AG, STAMFORD BRANCH
By /s/ Thomas Salzano
-----------------------------------------
Name: Thomas Salzano
Title: Director
By /s/ Patricia O'Kicki
-----------------------------------------
Name: Patricia O'Kicki
Title: Director
Signature Page to Amendment to Five-Year Third Amended and Restated Competitive
Advance and Revolving Credit Facility Agreement
S-34
UFJ BANK LIMITED
By /s/ John T. Feeney
-------------------------------------
Name: John T. Feeney
Title: Vice President
Signature Page to Amendment to Five-Year Third Amended and Restated Competitive
Advance and Revolving Credit Facility Agreement
S-35
WACHOVIA BANK, NATIONAL ASSOCIATION
By /s/ Rotcher Watkins
----------------------------------------
Name: Rotcher Watkins
Title: Managing Director
Signature Page to Amendment to Five-Year Third Amended and Restated Competitive
Advance and Revolving Credit Facility Agreement