Exhibit 10(d)
EXECUTION COPY
AMENDMENT NO. 1 TO CREDIT AGREEMENT
This AMENDMENT NO. 1, dated as of July 10, 2003, (this "Amendment") is
made to that certain $400,000,000 Three-Year Amended and Restated Revolving
Credit Agreement, dated as of April 22, 2003 (the "Credit Agreement"), among TXU
US Holdings Company, as borrower (the "Borrower"), TXU Corp., as exiting
borrower, certain lenders parties thereto (the "Lenders") and Citibank, N.A., as
administrative agent for the Lenders (in such capacity, the "Agent").
PRELIMINARY STATEMENT:
The Borrower, the Lenders and the Agent 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:
Section 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 definitions of "Credit Lyonnais Facility", "Credit Lyonnais
Facility Ratable Percentage", "Credit Lyonnais Facility Total Commitment",
"Merrill Lynch Facility", "Merrill Lynch Facility Ratable Percentage", and
"Merrill Lynch Facility Total Commitment" are hereby deleted in their entirety
from Section 1.01 of the Credit Agreement.
(b) Section 2.09 of the Credit Agreement is hereby amended by deleting
subsection (c) thereof and redesignating subsection (d) thereof as subsection
(c).
SECTION 2.09. Termination and Reduction of Commitments.
(a) The Commitments shall be automatically terminated on the
Maturity Date.
(b) Upon at least two Business Days' prior irrevocable written
notice to the Agent, the Borrower may at any time in whole permanently
terminate, or from time to time in part permanently reduce, the Total
Commitment; provided, however, that (i) each partial reduction of the
Total Commitment shall be in an integral multiple of $10,000,000 and
(ii) no such termination or reduction shall be made that would reduce
the Total Commitment to an amount less than (A) the aggregate principal
amount of outstanding Loans on the date of such termination or
reduction (after giving effect to any prepayment made pursuant to
Section 2.10) or (B) $25,000,000, unless the result of such termination
or reduction referred to in this clause (B) is to reduce the Total
Commitment to $0. The Agent shall advise the Lenders of any notice
given pursuant to this Section 2.09(b) and of each Lender's portion of
any such termination or reduction of the Total Commitment.
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(c) Each reduction in the Total Commitment hereunder shall be
made ratably among the Lenders in accordance with their respective
Commitments. The Borrower shall pay to the Agent for the account of the
Lenders, on the date of each termination or reduction of the Total
Commitment, the Facility Fees on the amount of the Commitments so
terminated or reduced accrued through the date of such termination or
reduction.
Section 3. Termination of Letter Agreement. Pursuant to
Article VII of the Credit Agreement, the Lenders hereby authorize and direct
the Agent to terminate as of the Amendment Date (as defined below) the letter
agreement, dated April 22, 2003, among the Borrower, TXU, the Agent, Credit
Lyonnais New York Branch ("Credit Lyonnais"), as agent for the lenders under
the $45,000,000 Revolving Credit Agreement, dated as of April 22, 2003
(the "$45,000,000 Facility"), among TXU, the lenders named therein and Credit
Lyonnais, as agent, and Merrill Lynch Capital Corporation ("MLCC"), as agent
for the lenders under the $55,000,000 Revolving Credit Agreement, dated as of
April 22, 2003 (the "$55,000,000 Facility"), among TXU, the lenders named
therein and MLCC, as agent.
Section 4. Conditions of Effectiveness. This Amendment shall
become effective as of the date first set forth above (the "Amendment Date")
when each of the following conditions shall have been fulfilled:
(a) the Required Lenders and the Borrower shall each have executed and
delivered to the Agent a counterpart of this Amendment;
(b) the following statements shall be true and correct, and the Agent
shall have received a certificate of a duly authorized officer of the
Borrower, dated the Amendment Date and in sufficient copies for each Lender,
stating that:
(i) the representations and warranties of the Borrower set forth
in Section 5 hereof are true and correct on and as of the Amendment
Date as though made on and as of such date; and
(ii) no event has occurred and is continuing that constitutes a
Default or an Event of Default under the Credit Agreement, as amended
by this Amendment; and
(c) The Agent shall have received evidence satisfactory to it that TXU
shall have delivered, pursuant to Section 2.09 of each of the $45,000,000
Facility and the $55,000,000 Facility, an irrevocable written notice of
termination of the Total Commitment (as defined in the $45,000,000 Facility and
the $55,000,000 Facility, respectively).
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Section 5. 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 deemed to be a
reference to this Amendment and the Credit Agreement as amended hereby) are true
and correct on and as of the Amendment Date as though made on and as of such
date; and
(b) no event has occurred and is continuing, or would result from the
execution and delivery of this Amendment, that constitutes a Default or an
Event of Default under the Credit Agreement, as amended by this Amendment.
Section 6. 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 or the Agent under the Credit Agreement, nor constitute a waiver of any
provision of the Credit Agreement.
Section 7. Costs, Expenses and Taxes. The Borrower agrees to pay on
demand all costs and expenses of the 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 Agent with
respect thereto, and all costs and expenses (including, without limitation,
counsel fees and expenses), if any, in connection with the enforcement (whether
through negotiations, legal proceedings or otherwise) of this Amendment or such
other instruments and documents. In addition, the 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 agree jointly and severally to save
the Lenders and the Agent 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 8. 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 9. 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]
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TXU US HOLDINGS COMPANY
as Borrower
By /s/ Kirk R. Oliver
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Kirk R. Oliver
Treasurer and Assistant Secretary
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AMARILLO NATIONAL BANK
By /s/ Mark Fields
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Name: Mark Fields
Title: Assistant Vice President
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[INTENTIONALLY OMITTED]
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CITIBANK, N.A.
By /s/ Sandip Sen
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Name: Sandip Sen
Title: Managing Director
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[INTENTIONALLY OMITTED]
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CREDIT SUISSE FIRST BOSTON
By /s/ James P. Moran
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Name: James P. Moran
Title: Director
By /s/ David J. Dodd
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Name: David J. Dodd
Title: Associate