FOURTH AMENDMENT TO THE CREDIT AGREEMENT
EXHIBIT 99.3
EXECUTION COPY
FOURTH AMENDMENT TO THE CREDIT AGREEMENT
This FOURTH AMENDMENT, dated as of October 9, 2003 (this “Amendment”), to the Credit Agreement, dated as of April 1, 2003, as amended by the First Amendment to the Credit Agreement dated as of May 15, 2003, the Second Amendment to the Credit Agreement dated as of June 27, 2003 and the Third Amendment to the Loan Documents dated as of July 15, 2003 and as modified by the Lender Consent dated as of August 1, 2003 (such Credit Agreement, as so amended and modified, being the “Credit Agreement”), among Dynegy Holdings Inc., as the borrower (the “Borrower”), Dynegy Inc., as the parent guarantor (the “Parent Guarantor”), Citibank, N.A. and Bank of America, N.A., as administrative agents (the “Administrative Agents”) for the Lenders, Bank One, NA (Main Office Chicago), as collateral agent for the Lenders, and the various banks, financial institutions and other lenders parties thereto. Capitalized terms used without definition in this Amendment shall have the meanings set forth in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Borrower has requested, and the Lenders are willing to grant such request, that the Lenders agree to provide certain amendments with respect to the Credit Agreement as hereinafter set forth;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and subject to the terms and conditions hereof, the parties hereto agree as follows:
SECTION 1. Amendments. Subject to the occurrence of the Effective Date, the Credit Agreement is amended as follows:
(a) The definition of “2003 Second Lien Notes” contained in Section 1.01 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:
““2003 Second Lien Notes” means the first tranche and the second tranche of senior secured notes issued by the Borrower and guaranteed by the Subsidiary Guarantors on or after the Third Amendment Effective Date, in accordance with the provisions of Section 7.03(b)(xii).”
SECTION 2. Conditions to Effectiveness. This Amendment shall become effective on the first date (the “Effective Date”) on which, and only if, the Administrative Agents have received confirmation of each of the following, each in form and substance satisfactory to the Administrative Agents:
(a) Execution of Counterparts. The Administrative Agents shall have received counterparts of this Amendment duly executed by each of the Loan Parties and the Required Lenders.
(b) Payment of Fees and Expenses. The Administrative Agents shall have determined that all agency, custodial, filing service, collateral trustee, legal and other fees and disbursements incurred in connection with this Amendment and invoiced through the day immediately prior to the Effective Date, including all fees of the Administrative Agents and their respective counsel, shall have been paid in full by the Borrower.
(c) No Default. No event shall have occurred and be continuing that constitutes a Default.
(d) Certificate. A certificate from the secretary or assistant secretary of the Borrower and each Guarantor dated the Effective Date and certifying (i) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of the Borrower or such Guarantor, as the case may be, authorizing the execution, delivery and performance of this Amendment and the matters contemplated hereby, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment and the matters contemplated hereby.
(e) Opinions. Favorable written opinions of O’Melveny & Xxxxx LLP, counsel for the Borrower, the General Counsel or Assistant General Counsel of the Borrower, in each case, dated the Effective Date and addressed to the Administrative Agents and the Lenders as to such matters as the Administrative Agents may reasonably request, and such other opinions reasonably requested by the Administrative Agents.
SECTION 3. Confirmation of Representations and Warranties and Certain Acknowledgements and Agreements. The Borrower hereby represents and warrants, on and as of the Effective Date, that the representations and warranties contained in the Credit Agreement are correct and true in all material respects on and as of the date hereof, before and after giving effect to this Amendment, as though made on and as of the date hereof, other than any such representations or warranties that, by their terms, refer to a specific date. The Borrower agrees that all provisions of Section 11.05 of the Credit Agreement are in full force and effect and cover the entering into of this Amendment and the transactions contemplated hereby.
SECTION 4. 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 shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment by telecopier shall be effective as delivery of a manually executed counterpart of this Amendment.
SECTION 5. Reference to and Effect on the Loan Documents. (a) On and after the Effective Date, each reference in the Credit Agreement to “this Agreement”, “hereunder”,
2
“hereof” or words of like import referring to the Credit Agreement, and each reference in each of the other Loan Documents to “the Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement, as amended by this Amendment.
(b) The Credit Agreement and each of the other Loan Documents, as specifically amended by this Amendment, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed. Without limiting the generality of the foregoing, the Collateral Documents and all of the Collateral described therein do and shall continue to secure the payment of all Obligations of the Loan Parties under the Loan Documents, in each case as amended by this Amendment.
(c) 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 any Lender or the Agents under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents.
SECTION 6. Governing Law. This Amendment shall be governed by, and construed in accordance with, the laws of the State of New York, and shall be subject to the jurisdictional and service provisions of the Credit Agreement, as if this were a part of the Credit Agreement.
SECTION 7. Entire Agreement; Modification. This Amendment constitutes the entire agreement of the parties hereto with respect to the subject matter hereof, there being no other agreements or understandings, oral, written or otherwise, respecting such subject matter, any such agreement or understanding being superseded hereby, shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, and may not be amended, extended or otherwise modified, except in a writing executed in whole or in counterparts by each party hereto.
3
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above written.
DYNEGY HOLDINGS INC., as Borrower | ||
By: |
/S/ XXXXXX X. XXX | |
Name: |
Xxxxxx X. Xxx | |
Title: |
Sr. Vice President-Treasurer |
DYNEGY POWER CORP. |
||||
DPC II INC. |
||||
DYNEGY ENGINEERING, INC. |
||||
DYNEGY SERVICES, INC. |
||||
DYNEGY POWER MANAGEMENT SERVICES, L.P., |
||||
By: Dynegy Services, Inc., its general partner |
||||
CALCASIEU POWER, INC. |
||||
DYNEGY OPERATING COMPANY |
||||
DYNEGY PARTS AND TECHNICAL |
||||
SERVICES, INC. |
||||
DYNEGY POWER MANAGEMENT SERVICES, INC. |
||||
HEP COGEN, INC. |
||||
XXXXXXXX XXXXX, INC. |
||||
DYNEGY POWER INVESTMENTS, INC. |
||||
DYNEGY POWER SERVICES, INC. |
||||
DYNEGY POWER NEVADA, INC. |
||||
MICHIGAN COGEN, INC. |
||||
MICHIGAN POWER, INC. |
||||
MICHIGAN POWER HOLDINGS, INC. |
||||
OCG COGEN, INC. |
||||
OYSTER CREEK COGEN, INC. |
||||
RRP COMPANY |
||||
DPC COLOMBIA—OPON POWER |
||||
RESOURCES COMPANY |
||||
TERMO SANTANDER HOLDING, LLC |
||||
RIVERSIDE GENERATION, INC. |
||||
RIVERSIDE GENERATING COMPANY, L.L.C. |
||||
ROLLING HILLS GENERATION, INC. |
||||
DYNEGY RENAISSANCE POWER, INC. |
||||
DYNEGY NORTHEAST GENERATION, INC. |
||||
XXXXXX POWER, L.L.C. |
||||
DYNEGY MIDSTREAM GP, INC. |
||||
DYNEGY MIDSTREAM SERVICES, LIMITED PARTNERSHIP |
||||
By: Dynegy Midstream G.P., Inc., its general partner |
||||
MIDSTREAM BARGE COMPANY, L.L.C. |
||||
By: |
/S/ XXXXXX X. XXX |
|||
Xxxxxx X. Xxx | ||||
Xx. Vice President-Treasurer |
DYNEGY LIQUIDS MARKETING AND TRADE | ||
DYNEGY REGULATED HOLDINGS, LLC | ||
DYNEGY OPI, LLC | ||
DYNEGY NGL PIPELINE COMPANY, LLC | ||
DYNEGY INTRASTATE PIPELINE, LLC | ||
DYNEGY ENERGY PIPELINE COMPANY LLC | ||
DYNEGY UPPER HOLDINGS, L.L.C. | ||
DYNEGY HOLDING COMPANY, L.L.C. | ||
DMG ENTERPRISES, INC. | ||
HAVANA DOCK ENTERPRISES, LLC | ||
DMT HOLDINGS, INC. | ||
DMT G.P., L.L.C. | ||
DMT HOLDINGS, L.P. | ||
DYNEGY MARKETING AND TRADE | ||
DYNEGY COAL TRADING & | ||
TRANSPORTATION, L.L.C. | ||
NGC STORAGE, INC. | ||
BLACK THUNDER MEMBER, INC. | ||
ILLINOVA CORPORATION | ||
ILLINOVA GENERATING COMPANY | ||
IGC XXXXXX COUNTY, INC. | ||
IGC XXXXXX FRONTIER, INC. | ||
IPG FERNDALE, INC. | ||
IPG PARIS, INC. | ||
CHARTER OAK (PARIS) INC. | ||
ILLINOVA ENERGY PARTNERS, INC. | ||
PARISH POWER, INC. | ||
CALCASIEU POWER, LLC | ||
DELTA COGEN, INC. | ||
DYNEGY POWER HOLDINGS, INC. | ||
COGEN POWER, INC. | ||
COGEN POWER, L.P. | ||
By: CoGen Power, Inc., its general partner | ||
DYNEGY LIQUIDS G.P., L.L.C. | ||
By: Dynegy Midstream Services, Limited Partnership, | ||
By: Dynegy Midstream G.P., Inc. its general partner | ||
By: |
/S/ XXXXXX X. XXX | |
Xxxxxx X. Xxx | ||
Xx. Vice President-Treasurer |
DYNEGY INC. | ||
BG HOLDINGS, INC. | ||
BLACK MOUNTAIN COGEN, INC. | ||
BLUEGRASS GENERATION, INC. | ||
BLUEGRASS GENERATION COMPANY, L.L.C. | ||
DYNEGY CABRILLO II LLC | ||
BLUE RIDGE GENERATION INC. | ||
BLUE RIDGE GENERATION LLC | ||
CHICKAHOMINY GENERATING COMPANY | ||
CHICKAHOMINY POWER, LLC | ||
FLORIDA MERCANTILE POWER, INC. | ||
PALMETTO POWER, L.L.C. | ||
GASIFICATION SERVICES, INC. | ||
GEORGIA MERCANTILE POWER, INC. | ||
HEARD COUNTY POWER, L.L.C. | ||
XXXX COUNTY IPP, INC. | ||
HARTWELL INDEPENDENT POWER PARTNERS, INC. | ||
HARTWELL POWER COMPANY | ||
DYNEGY ROSETON, L.L.C. | ||
DYNEGY XXXXXX POWER RETAIL, L.L.C. | ||
DYNEGY GLOBAL ENERGY, INC. | ||
DYNEGY BROADBAND MARKETING AND TRADE | ||
DYNEGY GP INC. | ||
DYNEGY TECHNOLOGY CAPITAL CORP. | ||
DYNEGY STRATEGIC INVESTMENTS, L.P. | ||
By: Dynegy Strategic Investments GP, L.L.C., its general partner | ||
DYNEGY STRATEGIC INVESTMENTS GP, L.L.C. | ||
RENAISSANCE POWER, L.L.C. | ||
ROLLING HILLS GENERATING, L.L.C. | ||
DYNEGY POWER MARKETING, INC. | ||
By: |
/S/ XXXXXX X. XXX | |
Xxxxxx X. Xxx | ||
Xx. Vice President-Treasurer |
DYNEGY ENERGY SERVICES, INC. | ||
ILLINOIS POWER ENERGY, INC. | ||
DES NORTHEAST, INC. | ||
DEM GP, LLC | ||
DYNEGY ENERGY MARKETING, LP | ||
By: DEM GP, LLC, its general partner | ||
DYNEGY ADMINISTRATIVE SERVICES COMPANY | ||
NIPC, INC. | ||
DFS L.P., LLC | ||
DFS GENERAL PARTNER, LLC | ||
DYNEGY FINANCIAL SERVICES, LP | ||
By: DFS GENERAL PARTNER, LLC, its general partner | ||
DYNEGY XXXXXX MEMBER, INC. | ||
DYNEGY MIDWEST GENERATION, INC. | ||
DYNEGY I.T., INC. | ||
CHESAPEAKE POWER, INC. | ||
XXXXX RIVER ENERGY CORP. | ||
DPC POWER RESOURCES HOLDING | ||
COMPANY | ||
DRY CREEK POWER, INC. | ||
ROCKINGHAM POWER, L.L.C. | ||
DYNEGY POWER DEVELOPMENT COMPANY | ||
By: |
/S/ XXXXXX X. XXX | |
Xxxxxx X. Xxx | ||
Xx. Vice President-Treasurer |
DYNEGY MANAGEMENT, INC. | ||
DMS LP, INC. | ||
DMT L.P., L.L.C. | ||
DYNEGY STRATEGIC INVESTMENTS LP, INC. | ||
DEM LP, LLC | ||
By: |
/S/ XXXXX X. XXXXXXXXXXX | |
Xxxxx X. Xxxxxxxxxxx | ||
President |
DYNEGY DANSKAMMER, L.L.C. | ||
By: |
/S/ J. XXXXX XXXXXXXX | |
J. Xxxxx Xxxxxxxx | ||
Assistant Secretary |
CITIBANK, N.A., as Administrative Agent, Payment Agent and Lender | ||
By: |
/S/ XXXXX XXXXXXXXX | |
Name: |
Xxxxx XxXxxxxxx | |
Title: |
Senior Vice President | |
BANK OF AMERICA, N.A., | ||
as Administrative Agent and Lender | ||
By: |
/S/ XXXXX XXXX STRAND | |
Name: |
Xxxxx Xxxx Strand | |
Title: |
Managing Director | |
BANK ONE, NA, as L/C Issuer and Lender | ||
By: |
/S/ XXXXXXX XXXXXXXXX | |
Name: |
Xxxxxxx Xxxxxxxxx | |
Title: |
F V P | |
JPMORGAN CHASE BANK | ||
By: |
/S/ XXXXXX X. XXXXXXX | |
Name: |
Xxxxxx X. Xxxxxxx | |
Title: |
Vice President | |
THE TORONTO-DOMINION BANK | ||
By: |
/S/ XXXX XXXX | |
Name: |
Xxxx Xxxx | |
Title: |
Manager – Credit Administration |
ABN AMRO BANK N.V. | ||
By: |
/S/ XXXXX X. XXXXX, XX. | |
Name: |
Xxxxx X. Xxxxx, Xx. | |
Title: |
Vice President | |
By: |
/S/ XXXX XXXX | |
Name: |
Xxxx Xxxx | |
Title: |
Vice President | |
CREDIT LYONNAIS NEW YORK BRANCH | ||
By: |
/S/ OLIVIER AUDEMAND | |
Name: |
Olivier Audemand | |
Title: |
Senior Vice President | |
CREDIT SUISSE FIRST BOSTON, Cayman Island Branch | ||
By: |
/S/ XXXXX X. XXXXXXXX | |
Name: |
Xxxxx X. Xxxxxxxx | |
Title: |
Director | |
By: |
/S/ XXXXX X. XXXX | |
Name: |
Xxxxx X. Xxxx | |
Title: |
Associate | |
XXXXXX COMMERCIAL PAPER INC. | ||
By: |
/S/ XXXX X. XXXXXXX | |
Name: |
Xxxx X. Xxxxxxx | |
Title: |
Authorized Signatory |
ROYAL BANK OF CANADA | ||
By: |
/S/ X. X. XXXXX | |
Name: |
X.X. Xxxxx | |
Title: |
Vice President | |
SOCIETE GENERALE | ||
By: |
/S/ XXXXXXXXX X. XXXXXX | |
Name: |
Xxxxxxxxx X. Xxxxxx | |
Title: |
Director | |
WestLB AG, NEW YORK BRANCH | ||
By: |
/S/ XXXXXX XXXXXXXXX | |
Name: |
Xxxxxx Xxxxxxxxx | |
Title: |
Executive Director | |
By: |
/S/ XXX XXXXXXXXXX | |
Name: |
Xxx Xxxxxxxxxx | |
Title: |
Managing Director | |
DEUTSCHE BANK AG | ||
NEW YORK BRANCH | ||
By: |
/S/ XXXXXXX XXXXXXXX | |
Name: |
Xxxxxxx Xxxxxxxx | |
Title: |
Director | |
By: |
/S/ XXXX XXXXXXXX | |
Name: |
Xxxx Xxxxxxxx | |
Title: |
Director |
XXXXXXX XXXXX CAPITAL CORP. | ||
By: |
/S/ XXXXX X.X. XXXXXX | |
Name: |
Xxxxx X.X. Xxxxxx | |
Title: |
Vice President | |
THE BANK OF NOVA SCOTIA | ||
By: |
/S/ XXX XXXXXXX | |
Name: |
Xxx Xxxxxxx | |
Title: |
Assistant General Manager | |
CREDIT AGRICOLE INDOSUEZ | ||
By: |
/S/ XXXXXXXX X. XXXXXXX | |
Name: |
Xxxxxxxx X. Xxxxxxx | |
Title: |
Vice President | |
By: |
/S/ XXXX XXXXXXXXX | |
Name: |
Xxxx XxXxxxxxx | |
Title: |
First Vice President | |
FLEET NATIONAL BANK | ||
By: |
/S/ XXXXX XXXXXX | |
Name: |
Xxxxx Xxxxxx | |
Title: |
Senior Workout Officer |
FLEET CAPITAL CORPORATION | ||
By: |
| |
Name: |
||
Title: |
||
XXXXXXX SACHS CREDIT PARTNERS, L.P. | ||
By: |
| |
Name: |
||
Title: |
||
MIZUHO GLOBAL, LTD. | ||
By: |
/S/ XXXXXXX XXXXXXXXXX | |
Name: |
Xxxxxxx Xxxxxxxxxx | |
Title: |
Deputy General Manager | |
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES | ||
By: |
/S/ XXXXX X. XXXXXX | |
Name: |
Xxxxx X. Xxxxxx | |
Title: |
Senior Vice President & Manager | |
By: |
/S/ XXXXXX X. XXXXXXXXXXX | |
Name: |
Xxxxxx X. Xxxxxxxxxxx | |
Title: |
Senior Vice President |
BEAR XXXXXXX & CO., INC. | ||
By: |
| |
Name: |
||
Title: |
||
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX | ||
By: |
| |
Name: |
||
Title: |
||
CITIGROUP FINANCIAL PRODUCTS INC. | ||
By: |
/S/ XXXX XXXXXXXX | |
Name: |
Xxxx Xxxxxxxx | |
Title: |
Managing Director | |
XXXXXXXXXXX SENIOR | ||
FLOATING RATE FUND | ||
By: |
| |
Name: |
||
Title: |
||
SEMINOLE FUNDING LLC | ||
By: |
| |
Name: |
||
Title: |
TRS THEBE LLC | ||
By: |
/S/ XXXXXXX X’XXXXXX | |
Name: |
Xxxxxxx X’Xxxxxx | |
Title: |
Vice President | |
UBS AG, STAMFORD BRANCH | ||
By: |
/S/ XXXXXXX X. XXXXXX | |
Name: |
Xxxxxxx X. Xxxxxx | |
Title: |
Associate Director | |
By: |
/S/ XXXXXX X. XXXXXXXX | |
Name: |
Xxxxxx X. Xxxxxxxx | |
Title: |
Associate Director | |
BEAR XXXXXXX INVESTMENT PRODUCTS INC. | ||
By: |
| |
Name: |
||
Title: |
||
CENTURION CDO II, LTD. | ||
By: |
American Express Asset Management Group Inc. as Collateral Manager | |
By: |
/S/ XXXXXX XXXXXXXXX | |
Name: |
Xxxxxx Xxxxxxxxx | |
Title: |
Director – Operations | |
CENTURION CDO III, LTD | ||
By: |
American Express Asset Management Group Inc. as Collateral Manager | |
By: |
/S/ XXXXXX XXXXXXXXX | |
Name: |
Xxxxxx Xxxxxxxxx | |
Title: |
Director – Operations |
CENTURION CDO VI, LTD | ||
By: |
American Express Asset Management Group Inc. as Collateral Manager | |
By: |
/S/ XXXXXX XXXXXXXXX | |
Name: |
Xxxxxx Xxxxxxxxx | |
Title: |
Director – Operations | |
HBK MASTER FUND L.P. | ||
By: |
| |
Name: |
||
Title: |
||
LAGUNA FUNDING LLC | ||
By: |
/S/ XXX X. XXXXXX | |
Name: |
Xxx X. Xxxxxx | |
Title: |
Asst. Vice President | |
SEQUILS-CENTURION V, LTD. | ||
By: |
| |
Name: |
||
Title: |
||
SPECIAL SITUATIONS | ||
INVESTING GROUP, INC. | ||
By: |
| |
Name: |
||
Title: |
||
COLONIAL FUNDING LLC | ||
By: |
/S/ XXX X. XXXXXX | |
Name: |
Xxx X. Xxxxxx | |
Title: |
Asst. Vice President |
CASTLERIGG MASTER INVESTMENTS LTD. | ||
By: |
Xxxxxxx Asset Mgmt Corp. | |
By: |
/S/ XXXXXX X. XXXXXXX | |
Name: |
Xxxxxx X. Xxxxxxx | |
Title: |
Principal | |
KZH ING-2 LLC | ||
By: |
/S/ HI HUA | |
Name: |
Hi Hua | |
Title: |
Authorized Agent | |
KZH STERLING LLC | ||
By: |
/S/ HI HUA | |
Name: |
Hi Hua | |
Title: |
Authorized Agent |