AMENDMENT NO. 2 TO CREDIT AGREEMENT
Exhibit
10(a)
EXECUTION
COPY
AMENDMENT
NO. 2 TO CREDIT AGREEMENT
This
AMENDMENT NO. 2, dated as of
August 24, 2007 (this “Amendment”), is made to that
certain $1,500,000,000 Revolving Credit Agreement, dated as of March 1, 2007,
as
amended by that certain Amendment No. 1 to Credit Agreement, dated as of June
29, 2007 (as amended, the “Credit Agreement”), among
Texas Competitive Electric Holdings Company LLC (formerly known as “TXU Energy
Company LLC”) (“TCEH”), as the Borrower, certain
lenders party thereto (the “Lenders”) and Credit
Suisse, Cayman Islands Branch, as administrative agent for the Lenders (in
such
capacity, the “Agent”).
PRELIMINARY
STATEMENT:
TCEH
has requested that the Lenders agree to the further amendment of the Credit
Agreement as set forth herein, and the Required 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. Amendments. The
Credit Agreement is hereby amended as follows:
(a) the
definition of “Commitment Termination Date” set forth in Section 1.01 is hereby
amended and restated in its entirety to read as
follows: ‘“Commitment Termination Date”
shall mean the earlier of: (i) the date of any issuance by the Borrower of
any debt or preferred equity securities or the entering into by the Borrower
of
any credit facility, including any extension or refinancing of any other debt
of
the Borrower, but excluding (A) the issuance of pollution control revenue
bonds, commercial paper, the Incremental Notes and the New Incremental Notes,
(B) the entering into by the Borrower of any credit facility, the proceeds
of
which are to be used principally to support margin requirements under the
long-term hedging program of the Borrower and its Affiliates consistent with
that described in the Borrower’s report on Form 10-Q for the fiscal quarter
ended June 30, 2007; and (C) borrowings, deemed borrowings and extensions
of credit under uncommitted lines of credit and other credit facilities in
place
on February 24, 2007 or any credit facility described in clause (B) above;
and (ii) February 23, 2008;
(b) the
following definition is hereby added to Section 1.01 in appropriate alphabetical
order: ““New
Incremental
Notes”
means
up to $1,500,000,000
in unsecured notes issued on a single date by
the Borrower after August 24,
2007 and with a scheduled maturity
after March 3, 2008.”;
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(c) the
following subsection (f) is hereby added at the end of Section
2.08: “(f)The
Total
Commitment shall, (i)
on the date of execution of any
credit facility described in clause (i)(B) of the definition of Commitment
Termination Date, automatically and permanently reduce by an
amount equal to (A) in the event that
the Total Commitment has not already been reduced upon the issuance of New
Incremental Notes pursuant to clause (ii) below, $500,000,000, or (B) in the
event that the Total Commitment has already been reduced upon the issuance
of
New Incremental Notes pursuant to clause (ii) below, the lesser of (x)
$500,000,000 and (y) the aggregate principal amount of the New
Incremental
Notes that were issued, and
(ii) on the
date of issuance of any New
Incremental Notes,
automatically and permanently reduce by an amount equal to (A)
in the event that
the Total Commitment has not already been reduced pursuant to clause (i) above,
the greater of (x) $500,000,000 and (y) the aggregate principal amount
of the New
Incremental
Notes issued on
such date, and (B) in the event
that the Total
Commitment has already been reduced pursuant to clause (i) above, the aggregate
principal amount of the
New
Incremental
Notes issued on
such date.”; and
(d) Section
2.09(b) is hereby amended and restated in its entirety to read as
follows: “(b) On any
date on which the Total Commitment shall be reduced pursuant to
Section 2.08(c),
(d) or (f)
above,
the Borrower shall, with respect
to outstanding Loans, prepay such Loans and/or, with respect to LC Outstandings,
deliver cash collateral to be held by the Agent in the Cash Collateral Account
to the extent and for the duration necessary to cause the Outstanding Credits
minus the amount of cash held in the Cash Collateral Account to be no greater
than the Total Commitment (after giving effect to any such reduction pursuant
to
Section 2.08(c),
(d) or
(f)). At
such time that cash is no longer
required to be held by the Agent as collateral under this Section 2.09(b),
the Agent will repay and reassign to the Borrower any such cash then on deposit
in the Cash Collateral Account, and the Lien of the Agent on the Cash Collateral
Account with respect to such cash shall automatically
terminate.”.
SECTION
3.
Effectiveness of Amendment. This
Amendment shall become effective as of the date first set forth above (the
“Amendment Date”) when the Required Lenders and TCEH
shall each have executed and delivered to the Agent a counterpart of this
Amendment.
SECTION
4. Representations and
Warranties. TCEH represents and warrants
that:
(a)
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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 the Credit Agreement, as amended by this Amendment)
are
true and correct on and as of the Amendment Date as though made on
and as
of such date; and
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(b)
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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.
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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.
SECTION
6. Cost, Expenses and
Taxes. TCEH 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, reasonable 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, TCEH 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 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
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. Delivery of an executed counterpart of a signature page
of this Amendment by facsimile transmission or other electronic transmission
(i.e., a “pdf” or “tif”) shall be effective as delivery of a manually executed
counterpart hereof.
SECTION
8. Governing Law. This
Amendment shall be governed by, and construed in accordance with, the internal
laws of the State of New York.
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TEXAS
COMPETITIVE ELECTRIC HOLDINGS COMPANY LLC
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By:
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Name:
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Title:
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CITIBANK,
N.A., as Lender
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By:
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Name:
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Title:
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CREDIT
SUISSE, CAYMAN ISLANDS BRANCH, as Lender
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By:
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Name:
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Title:
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