EIGHTH SUPPLEMENTAL INDENTURE TO BE DELIVERED IN CONNECTION WITH THE VISTRA ACQUISITION
Exhibit 4.39
EIGHTH SUPPLEMENTAL INDENTURE
TO BE DELIVERED IN CONNECTION WITH THE VISTRA ACQUISITION
EIGHTH SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of April 9, 2018, between Vistra Energy Corp., a Delaware corporation (the “Successor”), the Subsidiary Guarantors (as defined in the Indenture referred to herein) and Wilmington Trust, National Association, as trustee under the indenture referred to below (the “Trustee”). Unless otherwise defined in this Supplemental Indenture, capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture (as defined below).
WITNESSETH
WHEREAS, Dynegy Inc. (as successor by merger to Dynegy Finance II, Inc.) (“Dynegy”) has heretofore executed and delivered to the Trustee an indenture (as supplemented from time to time prior to the date hereof, the “Indenture”), dated as of October 27, 2014, among Dynegy, the Subsidiary Guarantors named therein and the Trustee, providing for the original issuance of an aggregate principal amount of $750,000,000 of 7.625% Senior Notes due 2024 and, subject to the terms of the Indenture, future unlimited issuances of 7.625% Senior Notes due 2024 (the “2024 7.625% Notes”);
WHEREAS, the Successor has filed with the Secretary of State of the State of Delaware a Certificate of Merger, dated as of April 9, 2018, which provides for the merger of Dynegy with and into the Successor (the “Merger”), with the Successor continuing its corporate existence under the laws of the State of Delaware as the surviving company of the Merger;
WHEREAS, Section 5.01 of the Indenture provides, among other things, that Dynegy may consolidate or merge with or into another Person; provided that, among other things, the Person formed by or surviving any such consolidation or merger (if other than Dynegy) assumes all the obligations of Dynegy under the Indenture and the 2024 7.625% Notes pursuant to a supplemental indenture;
WHEREAS, Section 9.01 of the Indenture provides, among other things, that the Indenture and the 2024 7.625% Notes may be amended or supplemented without the consent of any Holder to provide for the assumption of Dynegy’s obligations to Holders of the 2024 7.625% Notes in the case of a merger or consolidation; and
WHEREAS, the Successor desires and has requested that the Trustee join in the execution of this Supplemental Indenture for the purpose of evidencing such assumption by the Successor.
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NOW THEREFORE, in consideration of the foregoing and for good and valuable consideration, the receipt of which is hereby acknowledged, the Trustee and the Successor mutually covenant and agree for the equal and ratable benefit of the Holders of the 2024 7.625% Notes as follows:
ARTICLE 1
ASSUMPTION AND AGREEMENTS
Section 1.1. The Successor hereby, in accordance with the terms and conditions of the Indenture, assumes the due and punctual payment of the principal of, premium, if any, and interest on the 2024 7.625% Notes, and the due and punctual performance and observance of all other covenants, conditions and other obligations contained in the Indenture and the 2024 7.625% Notes on the part of Dynegy to be performed or observed.
Section 1.2. The Successor shall succeed to, and be substituted for, and may exercise every right and power of, Dynegy under the Indenture and the 2024 7.625% Notes, with the same effect as if the Successor had been named as “the Company” therein.
ARTICLE 2
MISCELLANEOUS
Section 2.1. NEW YORK LAW TO GOVERN. THE INDENTURE, THIS SUPPLEMENTAL INDENTURE AND THE 2024 7.625% Notes SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 2.2. Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
Section 2.3. Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
Section 2.4. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Successor.
Section 2.5. Ratification of Indenture; Supplemental Indenture Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of the 2024 7.625% Notes heretofore or hereafter authenticated and delivered shall be bound hereby.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
| VISTRA ENERGY CORP., as Successor | ||||
| By: |
/s/ Xxxxxxxxxx X. Xxxxxxxx | |||
| Name: |
Xxxxxxxxxx X. Xxxxxxxx | |||
| Title: |
Senior Vice President and Treasurer | |||
ANP BELLINGHAM ENERGY COMPANY, LLC
ANP BLACKSTONE ENERGY COMPANY, LLC
CALUMET ENERGY TEAM, LLC
CASCO BAY ENERGY COMPANY, LLC
COFFEEN AND WESTERN RAILROAD COMPANY
DYNEGY ADMINISTRATIVE SERVICES COMPANY
DYNEGY ASSOCIATES NORTHEAST LP, INC.
DYNEGY COAL GENERATION, LLC
DYNEGY COAL HOLDCO, LLC
DYNEGY COAL TRADING & TRANSPORTATION, L.L.C.
DYNEGY COMMERCIAL ASSET MANAGEMENT, LLC
DYNEGY CONESVILLE, LLC
DYNEGY DICKS CREEK, LLC
DYNEGY ENERGY SERVICES (EAST), LLC
DYNEGY ENERGY SERVICES, LLC
DYNEGY FAYETTE II, LLC
DYNEGY GAS IMPORTS, LLC
DYNEGY GLOBAL LIQUIDS, INC.
DYNEGY HANGING ROCK II, LLC
DYNEGY XXXXXXX ENERGY, LLC
DYNEGY XXXXXX, LLC
DYNEGY MARKETING AND TRADE, LLC
DYNEGY MIAMI FORT, LLC
DYNEGY MIDWEST GENERATION, LLC
DYNEGY MORRO BAY, LLC
DYNEGY XXXX LANDING, LLC
DYNEGY NORTHEAST GENERATION GP, INC.
DYNEGY OAKLAND, LLC
DYNEGY OPERATING COMPANY
DYNEGY POWER GENERATION INC.
DYNEGY POWER MARKETING, LLC
DYNEGY POWER, LLC
[Signature Page to 2024 7.625% Notes Supplemental Indenture]
DYNEGY RESOURCE II, LLC
DYNEGY RESOURCES GENERATING HOLDCO, LLC
DYNEGY SOUTH BAY, LLC
DYNEGY STUART, LLC
DYNEGY WASHINGTON II, LLC
DYNEGY XXXXXX, LLC
EQUIPOWER RESOURCES CORP.
HAVANA DOCK ENTERPRISES, LLC
HOPEWELL POWER GENERATION, LLC
ILLINOIS POWER GENERATING COMPANY
ILLINOIS POWER MARKETING COMPANY
ILLINOIS POWER RESOURCES GENERATING, LLC
ILLINOIS POWER RESOURCES, LLC
ILLINOVA CORPORATION
IPH, LLC
IPH II, LLC
XXXXXXX GENERATION, L.L.C.
LAKE ROAD GENERATING COMPANY, LLC
LIBERTY ELECTRIC POWER, LLC
MASSPOWER, LLC
MILFORD POWER COMPANY, LLC
NEPCO SERVICES COMPANY
NORTHEASTERN POWER COMPANY
ONTELAUNEE POWER OPERATING COMPANY, LLC
XXXXXXXXX ENERGY, LLC
RICHLAND-STRYKER GENERATION, LLC
SITHE ENERGIES, INC.
SITHE/INDEPENDENCE LLC,
as Subsidiary Guarantors
| By: | /s/ Xxxxxxxxxx X. Xxxxxxxx | |
| Name: | Xxxxxxxxxx X. Xxxxxxxx | |
| Title: | Senior Vice President and Treasurer |
[Signature Page to 2024 7.625% Notes Supplemental Indenture]
| WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee | ||||
| By: | /s/ Xxxxx Xxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxx | |||
| Title: | Assistant Vice President | |||
[Signature Page to 2024 7.625% Notes Supplemental Indenture]
