WAIVER TO CREDIT AGREEMENT
Exhibit 10.5
Execution Version
This WAIVER TO CREDIT AGREEMENT (this “Waiver”) is entered into as of June 27, 2016, among Dynegy Inc., a Delaware corporation (the “Borrower”) and the Lenders party hereto. Unless otherwise indicated, all capitalized terms used herein and not otherwise defined shall have the respective meanings provided such terms in the Credit Agreement referred to below.
RECITALS
WHEREAS, the Borrower, the lenders from time to time party thereto (each, a “Lender” and, collectively, the “Lenders”) and Credit Suisse AG, Cayman Islands Branch, as administrative agent (in such capacity, the “Administrative Agent”), are parties to that certain Credit Agreement, dated as of April 23, 2013 (as amended by that certain First Amendment to Credit Agreement, dated as of April 1, 2015, among the Borrower, the other Credit Parties party thereto, the Administrative Agent and the Lenders party thereto, and that certain Second Amendment to Credit Agreement, dated as of April 2, 2015, among the Borrower, the other Credit Parties party thereto, the Incremental Revolving Lenders thereto and the Administrative Agent, the “Credit Agreement”);
WHEREAS, in connection with the Delta Acquisition, the Borrower may establish a Revolving Commitment Increase to the Incremental Tranche B Revolving Loan Commitments in an aggregate principal amount of $75,000,000 (the “Incremental Tranche B Revolver Increase”) and incur Incremental Term Loans in an aggregate principal amount of $2,000,000,000 (the “Incremental Tranche C Term Loans” and, together with the Incremental Tranche B Revolver Increase, the “Delta Acquisition Incremental Financing”);
WHEREAS, the Borrower hereby requests the Lenders to waive the conditions contained in Section 2.15(a)(ii) of the Credit Agreement (collectively, the “Pro Forma Covenant Compliance Requirement”) and the leverage incurrence condition contained in the definition of “Maximum Incremental Facilities Amount” in the Credit Agreement (the “Incremental Ratio Cap” and, together with the Pro Forma Covenant Compliance Requirement, the “Incremental Ratio Tests”) in connection with the Delta Acquisition Incremental Financing; and
NOW, THEREFORE, in consideration of the foregoing, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Waiver. The Lenders party hereto hereby waive the Incremental Ratio Tests in connection with the Delta Acquisition Incremental Financing and hereby confirm that, notwithstanding the requirements set forth in Section 2.15(a) of the Credit Agreement or any other provision of any Credit Document, the Borrower may establish and incur the Delta Acquisition Incremental Financing without regard to the satisfaction of the Incremental Ratio Tests and no Default or Event of Default shall occur as a result of any breach of the Incremental Ratio Tests in connection with the Delta Acquisition Incremental Financing; it being understood that the funding of the Incremental Tranche C Term Loans may be effected through the release
of escrowed funds incurred by an Unrestricted Subsidiary (in each case, on terms to be agreed) for such purpose and disbursed to, or at the direction of, the Borrower, which disbursement may be deemed to be the funding of the Incremental Tranche C Term Loans (including by way of conversion of loans).
SECTION 2. Reference To And Effect Upon The Credit Agreement. (a) From and after the Waiver Effective Date, (i) the term “Agreement” in the Credit Agreement, and all references to the Credit Agreement in any other Credit Document, shall mean the Credit Agreement as modified hereby, and (ii) this Waiver shall constitute a Credit Document for all purposes of the Credit Agreement and the other Credit Documents.
(b) This Waiver 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.
SECTION 3. Effectiveness. This Waiver shall become effective at such time (the “Waiver Effective Date”) when this Waiver shall have been duly executed and delivered by the Borrower and Lenders constituting the Required Lenders.
SECTION 4. Definitions. As used in this Waiver, the following terms have the meaning specified below:
“Delta Acquisition” means the purchase by the Borrower, directly or indirectly, of one hundred percent (100%) of the voting equity interests of the Delta Target Entities.
“Delta Acquisition Agreement” means the Stock Purchase Agreement, dated February 24, 2016 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with the provisions thereof, together with all schedules and exhibits thereto), among inter alia, Atlas Power Finance, LLC, an indirect domestic Subsidiary of the Borrower, and International Power, S.A., whereby the Borrower, indirectly, will acquire all of the issued and outstanding capital stock of GDF Suez Energy North America, Inc.
“Delta Target Entities” means collectively, GDF Suez Energy North America, Inc. and its subsidiaries to be acquired pursuant to the Delta Acquisition Agreement.
SECTION 5. Counterparts, Etc. This Waiver may be executed in any number of counterparts, each of which when so executed shall be deemed an original, but all such counterparts shall constitute one and the same instrument, and all signatures need not appear on any one counterpart. Any party hereto may execute and deliver a counterpart of this Waiver by delivering by facsimile or other electronic transmission a signature page of this Waiver signed by such party, and any such facsimile or other electronic signature shall be treated in all respects as having the same effect as an original signature. Section headings in this Waiver are included herein for convenience of reference only and shall not constitute part of this Waiver for any other purpose.
SECTION 6. Governing Law; WAIVER OF JURY TRIAL. This Waiver and the rights and obligations of the parties under this Waiver shall be governed by, and construed and interpreted in accordance with, the law of the State of New York. EACH OF THE
PARTIES HERETO IRREVOCABLY AGREES TO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY SUIT, ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) RELATED TO OR ARISING OUT OF THIS WAIVER.
SECTION 7. Jurisdiction. Each of the parties hereto irrevocably and unconditionally (a) submits to the exclusive jurisdiction of any state or federal court sitting in the Borough of Manhattan in the City of New York (or any appellate court therefrom) over any suit, action or proceeding arising out of or relating to this Waiver, the transactions contemplated hereby or the performance of services hereunder and agrees that all claims in respect of any such suit, action or proceeding shall be heard and determined in such New York state, or to the extent permitted thereby, such federal court sitting in the Borough of Manhattan in the City of New York (or any appellate court therefrom) and (b) agrees that a final judgment in any such suit, action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit or the judgment or in any other matter provided by law. You and we agree that service of any process, summons, notice or document by registered mail addressed to such person shall be effective service of process against such person for any suit, action or proceeding brought in any such court. Each of the parties hereto hereby irrevocably and unconditionally waives any objection to the laying of venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding has been brought in an inconvenient forum.
[Signature Pages to follow]
IN WITNESS WHEREOF, this Waiver has been executed by the parties hereto as of the date first written above.
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By: |
/s/ Siddharth Manjeshwar | |
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Name: |
Siddharth Manjeshwar |
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Title: |
Vice President and Treasurer |
Signature Page to Waiver to Dynegy Credit Agreement
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BLUE RIDGE GENERATION LLC | ||
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CASCO BAY ENERGY COMPANY, LLC | ||
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DYNEGY COAL HOLDCO, LLC | ||
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DYNEGY COAL INVESTMENTS HOLDINGS, LLC | ||
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DYNEGY COAL TRADING & TRANSPORTATION, L.L.C. | ||
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DYNEGY ENERGY SERVICES, LLC | ||
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DYNEGY ENERGY SERVICES (EAST), LLC | ||
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DYNEGY EQUIPMENT, LLC | ||
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DYNEGY GAS HOLDCO, LLC | ||
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DYNEGY GAS IMPORTS, LLC | ||
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DYNEGY GAS INVESTMENTS, LLC | ||
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DYNEGY GAS INVESTMENTS HOLDINGS, LLC | ||
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DYNEGY GASCO HOLDINGS, LLC | ||
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DYNEGY XXXXXXX ENERGY, LLC | ||
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DYNEGY MARKETING AND TRADE, LLC | ||
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DYNEGY MIDWEST GENERATION, LLC | ||
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DYNEGY MORRO BAY, LLC | ||
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DYNEGY XXXX LANDING, LLC | ||
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DYNEGY OAKLAND, LLC | ||
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DYNEGY POWER, LLC | ||
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DYNEGY POWER MARKETING, LLC | ||
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DYNEGY SOUTH BAY, LLC | ||
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HAVANA DOCK ENTERPRISES, LLC | ||
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ONTELAUNEE POWER OPERATING COMPANY, LLC | ||
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SITHE/INDEPENDENCE LLC | ||
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By: |
/s/ Siddharth Manjeshwar | |
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Name: |
Siddharth Manjeshwar |
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Title: |
Vice President and Treasurer |
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BLACK MOUNTAIN COGEN, INC. | ||
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DYNEGY ADMINISTRATIVE SERVICES COMPANY | ||
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DYNEGY GLOBAL LIQUIDS, INC. | ||
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DYNEGY OPERATING COMPANY | ||
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DYNEGY POWER GENERATION INC. | ||
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ILLINOVA CORPORATION | ||
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SITHE ENERGIES, INC. | ||
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By: |
/s/ Siddharth Manjeshwar | |
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Name: |
Siddharth Manjeshwar |
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Title: |
Vice President and Treasurer |
Signature Page to Waiver to Dynegy Credit Agreement
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MASSPOWER, a Massachusetts general partnership | ||
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By: Masspower Partners II, LLC, its Managing | ||
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Partner | ||
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By: |
/s/ Siddharth Manjeshwar | |
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Name: |
Siddharth Manjeshwar |
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Title: |
Vice President and Treasurer |
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DIGHTON POWER, LLC | ||
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DYNEGY RESOURCE II, LLC | ||
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DYNEGY RESOURCE III, LLC | ||
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DYNEGY RESOURCE HOLDINGS, LLC | ||
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DYNEGY RESOURCES GENERATING HOLDCO, LLC | ||
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DYNEGY RESOURCES HOLDCO I, LLC | ||
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DYNEGY RESOURCES HOLDCO II, LLC | ||
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DYNEGY RESOURCES MANAGEMENT, LLC | ||
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XXXXXX ENERGY HOLDINGS, LLC | ||
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XXXXXX ENERGY HOLDINGS II, LLC | ||
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XXXXXX EXPANSION HOLDINGS, LLC | ||
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XXXXXX SERVICES COMPANY, LLC | ||
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EQUIPOWER RESOURCES CORP. | ||
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XXXXXXX ENERGY SERVICES COMPANY, LLC | ||
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XXXXXXX GENERATION, L.L.C. | ||
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XXXXXXX HOLDINGS, LLC | ||
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LAKE ROAD GENERATING COMPANY, LLC | ||
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LIBERTY ELECTRIC POWER, LLC | ||
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MASSPOWER HOLDCO, LLC | ||
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MASSPOWER PARTNERS I, LLC | ||
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MASSPOWER PARTNERS II, LLC | ||
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MILFORD POWER COMPANY, LLC | ||
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RICHLAND GENERATION EXPANSION, LLC | ||
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RICHLAND-STRYKER GENERATION LLC | ||
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RSG POWER, LLC | ||
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TOMCAT POWER, LLC | ||
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By: |
/s/ Siddharth Manjeshwar | |
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Name: |
Siddharth Manjeshwar |
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Title: |
Vice President and Treasurer |
Signature Page to Waiver to Dynegy Credit Agreement
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DYNEGY COAL GENERATION, LLC | ||
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DYNEGY COMMERCIAL ASSET MANAGEMENT, LLC | ||
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DYNEGY CONESVILLE, LLC | ||
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DYNEGY DICKS CREEK, LLC | ||
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DYNEGY FAYETTE II, LLC | ||
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DYNEGY GAS GENERATION, LLC | ||
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DYNEGY GENERATION HOLDCO, LLC | ||
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DYNEGY HANGING ROCK II, LLC | ||
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DYNEGY XXXXXX, LLC | ||
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DYNEGY XXX XX, LLC | ||
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DYNEGY MIAMI FORT, LLC | ||
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DYNEGY RESOURCE I, LLC | ||
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DYNEGY STUART, LLC | ||
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DYNEGY WASHINGTON II, LLC | ||
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DYNEGY XXXXXX, LLC | ||
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By: |
/s/ Siddharth Manjeshwar | |
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Name: |
Siddharth Manjeshwar |
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Title: |
Vice President and Treasurer |
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SITHE/INDEPENDENCE POWER PARTNERS, L.P., a Delaware limited partnership | ||
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By: Sithe/Independence LLC, its General Partner | ||
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By: |
/s/ Siddharth Manjeshwar | |
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Name: |
Siddharth Manjeshwar |
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Title: |
Vice President and Treasurer |
Signature Page to Waiver to Dynegy Credit Agreement
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BARCLAYS BANK, PLC, | ||
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as Lender | ||
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By: |
/s/ Xxxxx Xxxxxxxx | |
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Name: |
Xxxxx Xxxxxxxx |
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Title: |
Managing Director |
Signature Page to Waiver to Dynegy Credit Agreement
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CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, | ||
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as Lender | ||
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By: |
/s/ Xxxxxxx Xxxxxxxxxxx | |
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Name: |
Xxxxxxx Xxxxxxxxxxx |
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Title: |
Authorized Signatory |
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By: |
/s/ Xxxxx Xxxxxxxxxx | |
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Name: |
Xxxxx Xxxxxxxxxx |
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Title: |
Authorized Signatory |
Signature Page to Waiver to Dynegy Credit Agreement
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Xxxxxx Xxxxxxx Bank, N.A., | ||
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as Lender | ||
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By: |
/s/ Xxxxxxx Xxxxxx | |
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Name: |
Xxxxxxx Xxxxxx |
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Title: |
Authorized Signatory |
Signature Page to Waiver to Dynegy Credit Agreement
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Xxxxxx Xxxxxxx Senior Funding, Inc., | ||
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as Lender | ||
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By: |
/s/ Xxxxxxx Xxxxxx | |
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Name: |
Xxxxxxx Xxxxxx |
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Title: |
Vice President |
Signature Page to Waiver to Dynegy Credit Agreement
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BANK OF AMERICA, N.A., as Lender | ||
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By: |
/s/ X.X. Xxxxxx | |
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Name: |
X.X. Xxxxxx |
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Title: |
Managing Director |
Signature Page to Waiver to Dynegy Credit Agreement
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DEUTSCHE BANK AG NEW YORK BRANCH, | ||
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as Lender | ||
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By: |
/s/ Xxxxxx X. Xxxxxxxxxx | |
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Name: |
Xxxxxx X. Xxxxxxxxxx |
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Title: |
Director |
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By: |
/s/ Xxxxx Xxxxxxxxx | |
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Name: |
Xxxxx Xxxxxxxxx |
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Title: |
Vice President |
Signature Page to Waiver to Dynegy Credit Agreement
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JPMORGAN CHASE BANK, N.A., | ||
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as Lender | ||
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By: |
/s/ Xxxx Xxxxxxxxx | |
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Name: |
Xxxx Xxxxxxxxx |
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Title: |
Executive Director |
Signature Page to Waiver to Dynegy Credit Agreement
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ROYAL BANK OF CANADA, | ||
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as Lender | ||
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By: |
/s/ Xxxxx Xxxxxxxxx | |
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Name: |
Xxxxx Xxxxxxxxx |
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Title: |
Authorized Signatory |
Signature Page to Waiver to Dynegy Credit Agreement
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UBS AG, STAMFORD BRANCH, as Lender | ||
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By: |
/s/ Xxxxx Xxxxxxx | |
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Name: |
Xxxxx Xxxxxxx |
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Title: |
Associate Director |
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By: |
/s/ Xxxxxxx Xxxxx | |
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Name: |
Xxxxxxx Xxxxx |
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Title: |
Director |
Signature Page to Waiver to Dynegy Credit Agreement
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MUFG UNION BANK, N.A., | ||
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as Lender | ||
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By: |
/s/ Chi-Xxxxx Xxxx | |
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Name: |
Chi-Xxxxx Xxxx |
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Title: |
Director |
Signature Page to Waiver to Dynegy Credit Agreement
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THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., | ||
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as Lender | ||
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By: |
/s/ Chi-Xxxxx Xxxx | |
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Name: |
Chi-Xxxxx Xxxx |
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Title: |
Director |
Signature Page to Waiver to Dynegy Credit Agreement
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BNP PARIBAS, as Lender | ||
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By: |
/s/ Xxxxx X’Xxxxx | |
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Name: |
Xxxxx X’Xxxxx |
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Title: |
Managing Director |
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By: |
/s/ Xxxxxx Xxxx | |
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Name: |
Xxxxxx Xxxx |
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Title: |
Vice President |
Signature Page to Waiver to Dynegy Credit Agreement
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CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, | ||
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as Lender | ||
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By: |
/s/ Xxxxx Xxxxxxx | |
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Name: |
Xxxxx Xxxxxxx |
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Title: |
Managing Director |
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By: |
/s/ Xxxxxxx Xxxxxxxxx | |
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Name: |
Xxxxxxx Xxxxxxxxx |
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Title: |
Director |
Signature Page to Waiver to Dynegy Credit Agreement
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SUNTRUST BANK, | ||
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as Lender | ||
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By: |
/s/ Xxxxxxx Xxxxxxx | |
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Name: |
Xxxxxxx Xxxxxxx |
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Title: |
Managing Director |
Signature Page to Waiver to Dynegy Credit Agreement
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XXXXXXX XXXXX BANK USA, | ||
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as Lender | ||
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By: |
/s/ Xxxxx Xx | |
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Name: |
Xxxxx Xx |
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Title: |
Authorized Signatory |
Signature Page to Waiver to Dynegy Credit Agreement
