Exhibit 10(e)
[EXECUTION VERSION]
AMENDMENT NO. 1 TO CREDIT AGREEMENT
This AMENDMENT, dated as of August 29, 2003 (this "Amendment"), is made
to that certain Revolving Credit Facility Agreement, dated as of April 22, 2003
(the "Credit Agreement"), among TXU Energy Company LLC, a Delaware limited
liability company ("Energy"), Oncor Electric Delivery Company, a Texas
corporation ("Oncor", and, together with Energy, the "Borrowers"), the lenders
party thereto (the "Lenders") and JPMorgan Chase Bank, as administrative agent
for the Lenders (in such capacity, the "Agent") and as fronting bank for the
Letters of Credit issued thereunder (in such capacity, the "Fronting Bank").
PRELIMINARY STATEMENT:
The Borrowers, the Lenders, the Agent and the Fronting Bank previously
entered into the Credit Agreement. The Borrowers have 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, subsection (f) of Article VI of the Credit
Agreement 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 or common members' interest in such Borrower or any
permitted successor to such Borrower (which shall constitute an Event of
Default for the Borrower in which TXU has ceased to own, directly or
indirectly, 100% of such common stock or common members' interest), or
Energy shall no longer own, directly or indirectly, 100% of the common
stock, common members' interest or partnership interests in TXU
Generation Company LP, TXU Portfolio Management Company LP or TXU Energy
Retail Company LP (which shall constitute an Event of Default for
Energy); provided, however, that 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 Agent shall have received from the Required Lenders and
the Borrowers 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 Agent shall have received:
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(i) a certificate of a Secretary or Assistant Secretary of each Borrower,
dated the Amendment Date, certifying:
(A) that attached thereto is a copy of the certificate of
incorporation, including all amendments thereto, of the applicable
Borrower, certified as of a recent date by the Secretary of State of
the state of Texas or Delaware, as applicable, which has not been
amended since the date of the last amendment thereto shown on an
attached certificate of good standing of the applicable Borrower
as of a recent date from such Secretary of State;
(B) that attached thereto is a true and complete copy of the bylaws
of the applicable 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 applicable
Borrower authorizing the execution and delivery by the applicable
Borrower of this Amendment, the Extensions of Credit to be made
under the Credit Agreement, as amended, and the performance by the
applicable 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 applicable Borrower; and
(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 applicable Borrower of this Amendment or the Amended Credit
Agreement;
(F) the representations and warranties of the applicable Borrower
set forth in Section 4 are true and correct on and as of the
Amendment Date as though made on and as of such date; and
(G) no event has occurred and is continuing that constitutes a
Default or an Event of Default under the Amended Credit Agreement.
(ii) a certificate of another duly authorized officer of each 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 Agent:
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(A) Hunton & Williams LLP, counsel to the Borrowers;
(B) Thelen Reid & Priest LLP, special New York counsel to the
Borrowers; and
(C) King & Spalding LLP, special New York counsel to the Agent.
Section 4. Representations and Warranties. Each Borrower represents and
warrants that (a) the representations and warranties contained in Article III
of the Credit Agreement (with each reference therein to "this Agreement",
"hereunder" and words of like import referring to the Credit Agreement being
deemed to be a reference to this Amendment and the 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 Amended Credit Agreement.
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 Agent 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. Energy 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
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, Energy 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 Agent, 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]
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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 ENERGY COMPANY LLC
By /s/ Kirk R. Oliver
-------------------------------------------
Name: Kirk R. Oliver
Title: Treasurer and Assistant Secretary
ONCOR ELECTRIC DELIVERY COMPANY
By /s/ Kirk R. Oliver
-------------------------------------------
Name: Kirk R. Oliver
Title: Treasurer and Assistant Secretary
S-2
JPMORGAN CHASE BANK
By /s/ Robert W. Traband
------------------------------------------
Name: Robert W. Traband
Title: Vice President
S-3
ABN AMRO BANK N.V.
By /s/ Kris A. Grosshans
-------------------------------------
Name: Kris A. Grosshans
Title: Senior Vice President
By /s/ Frank T. J. Van Deur
------------------------------------
Name: Frank T. J. Van Deur
Title: Vice President
S-4
BANK ONE, NA (Main office Chicago)
By /s/ Jane A. Bek
-------------------------------------
Name: Jane A. Bek
Title: Director
S-5
CITIBANK, N.A.
By /s/ Sandip Sen
--------------------------------------
Name: Sandip Sen
Title: Managing Director
S-6
CREDIT SUISSE FIRST BOSTON
By /s/ James P. Moran
-------------------------------------
Name: James P. Moran
Title: Director
By /s/ Denise L. Alvarez
------------------------------------
Name: Denise L. Alvarez
Title: Associate
S-7
LEHMAN COMMERCIAL PAPER INC.
By /s/ Jane E. Gillard
-------------------------------------
Name: Jane E. Gillard
Title: Authorized Signatory
S-8
MELLON BANK, N.A.
By /s/ Roger E. Howard
---------------------------------------
Name: Roger E. Howard
Title: Vice President
S-9
MERRILL LYNCH BANK USA
By /s/ Louis Alder
---------------------------------------
Name: Louis Alder
Title: Vice President
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WACHOVIA BANK, NATIONAL ASSOCIATION
By /s/ Rotcher Watkins
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Name: Rotcher Watkins
Title: Managing Director
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[INTENTIONALLY LEFT BLANK]
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CREDIT LYONNAIS NEW YORK BRANCH
By /s/ Olivier Audemard
--------------------------------
Name: Olivier Audemard
Title: Senior Vice President
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UBS AG, CAYMAN ISLANDS BRANCH
By /s/ Patricia O'Kicki
---------------------------------------------
Name: Patricia O'Kicki
Title: Director
By /s/ Wilfred V. Saint
---------------------------------------------
Name: Wilfred V. Saint
Title: Associate Director
Banking Products
Services, US