FIFTH AMENDMENT TO CREDIT AGREEMENT
EXHIBIT 10.73
FIFTH AMENDMENT TO CREDIT AGREEMENT
This FIFTH AMENDMENT TO CREDIT AGREEMENT, dated as of October 21, 2022 (including the annexes, schedules, exhibits and other attachments hereto, this “Fifth Amendment”), by and among Vistra Operations Company LLC, a Delaware limited liability company (the “Borrower”), Vistra Intermediate Company LLC, a Delaware limited liability company (“Holdings”), the other Credit Parties (as defined in the Credit Agreement referred to below) party hereto, the financial institutions providing 2022-E New Revolving Credit Commitments (as defined below) (each, a “2022-E New Revolving Loan Lender”) and Citibank, N.A., as Administrative Agent and as Collateral Agent. Capitalized terms used but not defined herein shall have the respective meanings assigned to such terms in the Credit Agreement (as defined below) as modified hereby.
RECITALS:
WHEREAS, reference is hereby made to the Credit Agreement, dated as of February 4, 2022 (as amended by the First Amendment to Credit Agreement, dated as of May 5, 2022 (the “First Amendment”), as further amended by the Second Amendment to Credit Agreement, dated as of May 26, 2022 (the “Second Amendment”), as further amended by the Third Amendment to Credit Agreement, dated as of June 8, 2022 (the “Third Amendment”), as further amended by the Fourth Amendment to Credit Agreement, dated as of October 5, 2022 (the “Fourth Amendment”) and as further amended, restated, amended and restated, supplemented and/or otherwise modified from time to time prior to the Fifth Amendment Effective Date referred to below, the “Credit Agreement”), among Holdings, the Borrower, the Lenders party thereto, the Administrative Agent, the Collateral Agent and the other parties named therein;
WHEREAS, the Borrower intends to amend the Credit Agreement to establish additional Revolving Credit Commitments (which establishment was approved by the Required Lenders in the First Amendment) by, among other things, entering into this Fifth Amendment with the Administrative Agent and the 2022-E New Revolving Loan Lenders as set forth herein, subject to the terms and conditions hereof and the Credit Agreement (as modified hereby);
NOW, THEREFORE, in consideration of the premises and agreements, provisions and covenants herein contained, the parties hereto agree as follows:
A.Amendments to Credit Agreement.
1.Amendments to the Credit Agreement. Effective as of the Fifth Amendment Effective Date, and subject to the terms and conditions set forth herein, the Credit Agreement is hereby amended as follows:
(a)Section 1.1 of the Credit Agreement is hereby amended by adding the following definitions in appropriate alphabetical order:
“Fifth Amendment” means that certain Fifth Amendment to Credit Agreement, dated as of the Fifth Amendment Effective Date, among Holdings, the Borrower, the other Credit Parties, the Administrative Agent, the Collateral Agent, the Lenders party thereto and the various other parties party thereto.
“Fifth Amendment Effective Date” shall have the meaning provided in the Fifth Amendment.
(b)The definition of “Joint Lead Arrangers” appearing in Section 1.1 of the Credit Agreement is hereby amended by deleting said definition in its entirety and inserting the following new definition in lieu thereof:
“Joint Lead Arrangers” shall mean (a) Citibank, N.A., Barclays Bank PLC, BMO Capital Markets Corp., BNP Paribas Securities Corp., Credit Agricole Corporate and Investment Bank, Credit Suisse Loan Funding LLC, Xxxxxxx Xxxxx Bank USA, JPMorgan Chase Bank, N.A., Mizuho Bank, Ltd., Xxxxxx Xxxxxxx Senior Funding, Inc., MUFG Bank, Ltd., Natixis, New York Branch and Royal Bank of Canada, as joint lead
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arrangers and joint bookrunners for the Lenders under this Agreement and the other Credit Documents, (b) Citibank, N.A., as lead arranger and bookrunner with respect to the First Amendment and the transactions contemplated thereby, (c) Citibank, N.A., as lead arranger and bookrunner with respect to the Second Amendment, the Third Amendment and the Fourth Amendment and the transactions contemplated thereby and (d) Citibank, N.A. and Sumitomo Mitsui Banking Corporation, as joint lead arrangers and joint bookrunners with respect to the Fifth Amendment and the transactions contemplated thereby.
(c)The definition of “Revolving Credit Commitment” appearing in Section 1.1 of the Credit Agreement is hereby amended by deleting said definition in its entirety and inserting the following new definition in lieu thereof:
“Revolving Credit Commitment” shall mean, (a) with respect to each Lender on the Fifth Amendment Effective Date, the amount set forth opposite such Lender’s name on Schedule 1.1(a) (as amended by the Fifth Amendment) as such Xxxxxx’s “Revolving Credit Commitment” and (b) in the case of any Lender that becomes a Lender after the Fifth Amendment Effective Date, the amount specified as such Lender’s “Revolving Credit Commitment” in the Assignment and Acceptance pursuant to which such Xxxxxx assumed a portion of the Total Revolving Credit Commitment, in each case as such Revolving Credit Commitment may be changed from time to time pursuant to the terms hereof (or any amendment hereto). On the Closing Date and prior to the First Amendment Effective Date, the aggregate amount of the Revolving Credit Commitments of all Lenders was $1,000,000,000. On the First Amendment Effective Date and prior to the Second Amendment Effective Date, the aggregate amount of the Revolving Credit Commitments of all Lenders was $2,000,000,000. On the Second Amendment Effective Date and prior to the Third Amendment Effective Date, the aggregate amount of the Revolving Credit Commitments of all Lenders was $2,200,000,000. On the Third Amendment Effective Date and prior to the Fourth Amendment Effective Date, the aggregate amount of the Revolving Credit Commitments of all Lenders was $2,250,000,000. On the Fourth Amendment Effective Date and prior to the Fifth Amendment Effective Date, the aggregate amount of the Revolving Credit Commitments of all Lenders was $1,250,000,000. On the Fifth Amendment Effective Date, the aggregate amount of the Revolving Credit Commitments of all Lenders is $1,350,000,000.
(d)Section 2.11 of the Credit Agreement is hereby amended by deleting the last sentence thereof in its entirety and inserting the following new sentence in lieu thereof:
For the avoidance of doubt, the reallocation of SOFR Loans on the Second Amendment Effective Date, Third Amendment Effective Date, Fourth Amendment Effective Date and Fifth Amendment Effective Date as contemplated by the Second Amendment, Third Amendment, Fourth Amendment and Fifth Amendment, respectively, shall not require the payment of any compensation under this Section 2.11.
B.Special Provisions Applicable to Revolving Credit Commitments.
1.Each 2022-E New Revolving Loan Lender acknowledges and agrees that upon its execution of this Fifth Amendment and the provision of its 2022-E New Revolving Credit Commitment that such 2022-E New Revolving Loan Lender shall be (or become) a “Revolving Credit Lender” and a “Lender” with respect to 2022-E New Revolving Credit Commitments (as defined below) under, and for all purposes of, the Credit Agreement and the other Credit Documents (in each case, as modified hereby), and shall be subject to and bound by the terms thereof, and shall perform all the obligations of and shall have all rights of a Revolving Credit Lender and a Lender thereunder.
2.Each 2022-E New Revolving Loan Lender hereby agrees to provide additional Revolving Credit Commitments (and make Revolving Credit Loans) in the aggregate principal amount set forth opposite such 2022-E New Revolving Loan Lender’s name on Schedule I annexed hereto (such additional Revolving Credit Commitments, the “2022-E New Revolving Credit Commitments”), on the terms and subject to the conditions set forth below and in the Credit Agreement (as modified hereby) (the “2022-E Revolving Commitment Increase”), which shall constitute an increase to the existing Revolving Credit Commitments. The 2022-E New Revolving
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Credit Commitments shall (i) become a part of the existing class of Revolving Credit Commitments for all purposes of the Credit Agreement and the other Credit Documents (in each case, as modified hereby) and (ii) together with all related Revolving Credit Exposure, be subject to the same prepayment provisions, Revolving Credit Termination Date and other terms and conditions applicable to the existing Revolving Credit Commitments and Revolving Credit Loans under the Credit Agreement and the other Credit Documents (in each case, as modified hereby).
3.Each 2022-E New Revolving Loan Lender (i) confirms that it has received a copy of the Credit Agreement and the other Credit Documents and the schedules and exhibits thereto (in each case, as modified hereby), together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Fifth Amendment; (ii) agrees that it will, independently and without reliance upon any Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement (as modified hereby); (iii) appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers under the Credit Agreement and the other Credit Documents (in each case, as modified hereby) as are delegated to such Agent by the terms thereof, together with such powers as are reasonably incidental thereto; and (iv) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Credit Agreement (as modified hereby) are required to be performed by it as a Revolving Credit Lender.
4.The parties hereto hereby agree that, on the Fifth Amendment Effective Date, (i) the Total Revolving Credit Commitment shall increase by the aggregate amount of the 2022-E New Revolving Credit Commitments of the 2022-E New Revolving Loan Lenders provided hereunder and (ii) the Borrower and the Administrative Agent, as the case may be, shall be permitted to take all actions that are, in their reasonable discretion, necessary or advisable to consummate the transactions contemplated by this Fifth Amendment (including any prepayments and reborrowings (or deemed prepayments and reborrowings) of Revolving Credit Loans requested by the Administrative Agent after giving effect to the 2022-E Revolving Commitment Increase). For the avoidance of doubt, each of the Revolving Credit Lenders with an existing Revolving Credit Commitment on the Fifth Amendment Effective Date prior to giving effect to this Fifth Amendment shall automatically and without further act be deemed to have assigned to each 2022-E New Revolving Loan Lender with a 2022-E New Revolving Credit Commitment, and each of such 2022-E New Revolving Loan Lenders shall automatically and without further act be deemed to have purchased and assumed, at the principal amount thereof, such interests in the Revolving Credit Loans on the Fifth Amendment Effective Date as shall be necessary in order that, after giving effect to all such assignments and assumptions, the Revolving Credit Loans will be held by all Revolving Credit Lenders (including the 2022-E New Revolving Loan Lenders) ratably in accordance with their respective Revolving Credit Commitments after giving effect to the 2022-E Revolving Commitment Increase (and the Administrative Agent and the Lenders party hereto hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained in the Credit Agreement shall not apply to the transactions effected pursuant to this Section B.4).
5.Substantially simultaneously with the effectiveness of the 2022-E New Revolving Credit Commitments, Schedule 1.1(a) to the Credit Agreement shall be amended and restated in its entirety as follows:
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Revolving Credit Commitments
| Revolving Credit Lender | Revolving Credit Commitment | ||||
| Citibank, N.A. | $100,000,000 | ||||
| Bank of America, N.A. | $25,000,000 | ||||
| Bank of Montreal, Chicago Branch | $100,000,000 | ||||
| Barclays Bank PLC | $100,000,000 | ||||
| BNP Paribas | $100,000,000 | ||||
| Credit Agricole Corporate and Investment Bank | $100,000,000 | ||||
| Credit Suisse AG, New York Branch | $100,000,000 | ||||
| Xxxxxxx Xxxxx Bank USA | $100,000,000 | ||||
| JPMorgan Chase Bank, N.A. | $100,000,000 | ||||
| Mizuho Bank, Ltd. | $100,000,000 | ||||
| Xxxxxx Xxxxxxx Senior Funding, Inc. | $60,000,000 | ||||
| Xxxxxx Xxxxxxx Bank, N.A. | $40,000,000 | ||||
| MUFG Bank, Ltd. | $25,000,000 | ||||
| Royal Bank of Canada | $100,000,000 | ||||
| Sumitomo Mitsui Banking Corporation | $100,000,000 | ||||
| Truist Bank | $100,000,000 | ||||
| TOTAL: | $1,350,000,000 | ||||
C.Conditions Precedent. This Fifth Amendment shall become effective as of the first date (the “Fifth Amendment Effective Date”) when each of the conditions set forth in this Section C shall have been satisfied:
1.The Administrative Agent shall have received duly executed counterparts hereof that, when taken together, bear the signatures of (a) the Borrower, (b) each of the other Credit Parties, (c) the Administrative Agent and the Collateral Agent and (d) each 2022-E New Revolving Loan Lender.
2.The Administrative Agent shall have received a customary legal opinion of (a) Sidley Austin LLP, counsel to the Credit Parties and (b) Xxxx Xxxxxxxx, Associate General Counsel of Vistra Energy Corp., in each case, addressed to the Administrative Agent, the Collateral Agent and each Revolving Credit Lender party to the Credit Agreement (as modified hereby) as of the Fifth Amendment Effective Date, in each case, dated as of the Fifth Amendment Effective Date and in form and substance reasonably satisfactory to the Administrative Agent.
3.The Administrative Agent shall have received (w) a certificate from the Chief Financial Officer or Senior Vice President and Treasurer of the Borrower, dated the Fifth Amendment Effective Date, substantially in the form of the certificate provided pursuant to Section 6.9 of the Credit Agreement (with appropriate adjustments to reflect the 2022-E Revolving Commitment Increase) and certifying that, immediately after giving effect to this Fifth Amendment and the 2022-E Revolving Commitment Increase and the other transactions contemplated hereby, the Borrower and its Subsidiaries, on a consolidated basis, are Solvent, (x) a certificate of good standing (or subsistence) with respect to each Credit Party from the Secretary of State (or similar official) of the State of such Credit Party’s organization, (y) a closing certificate executed by an Authorized Officer of the Borrower, dated the Fifth Amendment Effective Date, certifying as to the accuracy (with respect to
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clauses (a), (b) and (c) of Section D.2 of this Fifth Amendment, in all material respects) of the matters set forth in Section D.2 of this Fifth Amendment and (z) a certificate executed by an Authorized Officer of the Borrower, dated the Fifth Amendment Effective Date, certifying as to the incumbency and specimen signature of each officer of a Credit Party executing this Fifth Amendment or any other document delivered in connection herewith on behalf of any Credit Party and attaching (A) a true and complete copy of the certificate of incorporation (or other applicable charter document) of each Credit Party, including all amendments thereto, as in effect on the Fifth Amendment Effective Date, certified as of a recent date by the Secretary of State (or analogous official) of the jurisdiction of its organization, that has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (x) above, (B) a true and complete copy of the by-laws (or other applicable operating agreements) of each Credit Party as in effect on the Fifth Amendment Effective Date and (C) a true and complete copy of resolutions duly adopted or written consents duly executed by the board of directors (or equivalent governing body or any committee thereof) of each Credit Party authorizing the execution, delivery and performance of this Fifth Amendment, the performance of the Credit Agreement and the other Credit Documents (in each case, as modified hereby), the transactions contemplated by this Fifth Amendment and certifying that such resolutions or written consents have not been modified, rescinded or amended and are in full force and effect. Notwithstanding the foregoing, the conditions set forth in clauses (z)(A) and (z)(B) of the immediately preceding sentence may be satisfied by a certification of an Authorized Officer of the Borrower certifying that there have been no changes to the applicable Organizational Documents since the versions thereof previously delivered to the Administrative Agent.
4.No Default or Event of Default shall have occurred and be continuing (both immediately before and immediately after giving effect to this Fifth Amendment and the transactions contemplated hereby).
5.The Administrative Agent shall have received a certificate, dated as of the Fifth Amendment Effective Date and executed by an Authorized Officer of the Borrower, certifying that the condition in Section C.4 above has been satisfied on such date.
6.The Administrative Agent shall have received, at least two Business Days prior to the Fifth Amendment Effective Date, all documentation and other information with respect to the Credit Parties that is requested by the Administrative Agent or a Lender and is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case to the extent reasonably requested in writing at least 5 Business Days prior to the Fifth Amendment Effective Date by the Administrative Agent or the Lenders.
7.The Borrower shall pay (i) all then-accrued and outstanding interest with respect to all outstanding Revolving Credit Loans immediately prior to such incurrence and (ii) all then-accrued and outstanding Revolving Credit Commitment Fees immediately prior to such incurrence, in each case, irrespective of whether such accrued amounts are otherwise then due and payable by the terms of the Credit Agreement.
8.The Borrower shall, to the extent invoiced prior to the Fifth Amendment Effective Date, reimburse or pay all reasonable and documented out-of-pocket expenses in connection with this Fifth Amendment and any other reasonable and documented out-of-pocket expenses of the Agents, excluding the reasonable fees, charges and disbursements of counsel for the Agents as required to be paid or reimbursed pursuant to the Credit Agreement, which shall be paid on a post-closing basis.
9.The Borrower shall have paid to each 2022-E New Revolving Loan Lender, an upfront fee equal to 0.05% of such 2022-E New Revolving Loan Lender’s 2022-E New Revolving Credit Commitments.
D.Other Terms.
1.Credit Agreement Governs. Except as expressly set forth in this Fifth Amendment, the 2022-E New Revolving Credit Commitments shall otherwise be subject to the provisions of the Credit Agreement and the other Credit Documents (in each case, as modified hereby).
2.Credit Party Certifications. By execution of this Fifth Amendment, each Credit Party hereby certifies, solely with respect to itself and on behalf of the applicable Credit Party and not in his/her individual capacity, that as of the Fifth Amendment Effective Date:
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(a)such Credit Party has the corporate or other organizational power and authority to execute and deliver this Fifth Amendment and carry out the terms and provisions of this Fifth Amendment and the Credit Agreement and the other Credit Documents (in each case, as modified hereby) and has taken all necessary corporate or other organizational action to authorize the execution and delivery of this Fifth Amendment and performance of this Fifth Amendment and the Credit Agreement and the other Credit Documents (in each case, as modified hereby);
(b)such Credit Party has duly executed and delivered this Fifth Amendment and each of this Fifth Amendment and the Credit Agreement and the other Credit Documents (in each case, as modified hereby) constitutes the legal, valid and binding obligation of such Credit Party enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization and other similar laws relating to or affecting creditors’ rights generally and general principles of equity (whether considered in a proceeding in equity or law) (provided that, with respect to the creation and perfection of security interests with respect to Indebtedness, Stock and Stock Equivalents of Foreign Subsidiaries, only to the extent the creation and perfection of such obligation is governed by the Uniform Commercial Code);
(c)none of the execution and delivery by such Credit Party of this Fifth Amendment, the performance by such Credit Party of this Fifth Amendment and the Credit Agreement and the other Credit Documents (in each case, as modified hereby) or the compliance with the terms and provisions hereof or thereof or the consummation of the transactions contemplated hereby will (a) contravene any applicable provision of any material Applicable Law (including material Environmental Laws) other than any contravention which would not reasonably be expected to result in a Material Adverse Effect, (b) result in any breach of any of the terms, covenants, conditions or provisions of, or constitute a default under, or result in the creation or imposition of any Lien upon any of the property or assets of Holdings, the Borrower or any Restricted Subsidiary (other than Liens created under the Credit Documents, Permitted Liens or Liens subject to an intercreditor agreement permitted hereby or the Collateral Trust Agreement) pursuant to the terms of any material indenture, loan agreement, lease agreement, mortgage, deed of trust or other material debt agreement or instrument to which Holdings, the Borrower or any Restricted Subsidiary is a party or by which it or any of its property or assets is bound other than any such breach, default or Lien that would not reasonably be expected to result in a Material Adverse Effect, or (c) violate any provision of the Organizational Documents of such Credit Party;
(d)the representations and warranties of such Credit Party contained in the Credit Agreement and the other Credit Documents (in each case, as modified hereby) are true and correct in all material respects on and as of the Fifth Amendment Effective Date (both before and after giving effect thereto) to the same extent as though made on and as of the Fifth Amendment Effective Date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(e)no Default or Event of Default has occurred and is continuing or would result from the consummation of the transactions contemplated hereby; and
(f)the Borrower falls under an express exclusion from the “legal entity customer” definition under 31 C.F.R. §1010.230(e)(2) and the applicable exclusion is 31 C.F.R. §1020.315(b)(5).
3.Notice. For purposes of the Credit Agreement, the initial notice address of any new Revolving Credit Lender shall be as set forth in the Administrative Questionnaire provided to the Administrative Agent by such new Revolving Credit Lender.
4.Recordation of the New Commitments and Loans. On the Fifth Amendment Effective Date (promptly after giving effect thereto), the Administrative Agent will record the 2022-E New Revolving Credit Commitments provided by each 2022-E New Revolving Loan Lender (and related Revolving Credit Loans) (and the Administrative Agent will take into account and make an appropriate record of the amended and restated schedule of Revolving Credit Commitments set forth in Section B.5 of this Fifth Amendment), in each case, in the Register.
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5.Amendment, Modification and Waiver. This Fifth Amendment may not be amended, modified or waived except by an instrument or instruments in writing signed and delivered in accordance with the provisions of Section 13.1 of the Credit Agreement.
6.Entire Agreement. This Fifth Amendment, the Credit Agreement (as modified hereby) and the other Credit Documents constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and supersede all other prior agreements and understandings, both written and verbal, among the parties or any of them with respect to the subject matter hereof.
7.GOVERNING LAW. THIS FIFTH AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
8.Severability. Any term or provision of this Fifth Amendment which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Fifth Amendment or affecting the validity or enforceability of any of the terms or provisions of this Fifth Amendment in any other jurisdiction. If any provision of this Fifth Amendment is so broad as to be unenforceable, the provision shall be interpreted to be only so broad as would be enforceable.
9.Counterparts. This Fifth Amendment may be executed in one or more counterparts (and by different parties hereto in different counterparts), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery by fax or other electronic transmission of an executed counterpart of a signature page to this Fifth Amendment shall be effective as delivery of an original executed counterpart of this Fifth Amendment and the words “execution,” “execute”, “signed,” “signature,” and words of like import in or related to any document to be signed in connection with this Fifth Amendment shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Administrative Agent, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act. The Administrative Agent may, in its discretion, require that any such documents and signatures executed electronically or delivered by fax or other electronic transmission be confirmed by a manually-signed original thereof; provided that the failure to request or deliver the same shall not limit the effectiveness of any document or signature executed electronically or delivered by fax or other electronic transmission.
10.Submission to Jurisdiction. Each party hereto irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or proceeding relating to this Fifth Amendment and the other Credit Documents to which it is a party, or for recognition and enforcement of any judgment in respect thereof, to the exclusive general jurisdiction of the courts of the State of New York, the courts of the United States of America for the Southern District of New York and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to such Person at such address of which the Administrative Agent shall have been notified pursuant to Section 13.2 of the Credit Agreement;
(d) agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the right to sue in any other jurisdiction;
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(e) subject to the last paragraph of Section 13.5 of the Credit Agreement, waives, to the maximum extent not prohibited by Applicable Law, any right it may have to claim or recover in any legal action or proceeding referred to in this Section D.10 any special, exemplary, punitive or consequential damages; and
(f) agrees that a final judgment in any action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Applicable Law.
11.Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES (TO THE EXTENT PERMITTED BY APPLICABLE LAW) TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS FIFTH AMENDMENT AND FOR ANY COUNTERCLAIM THEREIN.
12.Reaffirmation. By executing and delivering a counterpart hereof, (i) each Credit Party hereby agrees that, as of the Fifth Amendment Effective Date and after giving effect to this Fifth Amendment and the transactions contemplated hereby, all Obligations of the Borrower (including, without limitation, the Revolving Credit Exposure with respect to the 2022-E New Revolving Credit Commitments) shall be guaranteed pursuant to the Guarantee in accordance with the terms and provisions thereof and shall be secured pursuant to the Security Documents in accordance with the terms and provisions thereof; (ii) each Credit Party hereby (A) agrees that, notwithstanding the effectiveness of this Fifth Amendment, as of the Fifth Amendment Effective Date and after giving effect thereto, the Security Documents continue to be in full force and effect, (B) agrees that, as of the Fifth Amendment Effective Date and after giving effect to this Fifth Amendment and the transactions contemplated hereby, all of the Liens and security interests created and arising under each Security Document to which it is a party remain in full force and effect on a continuous basis, and the perfected status and priority of each such Lien and security interest continues in full force and effect on a continuous basis, unimpaired, uninterrupted and undischarged, as collateral security for its Obligations under the Credit Documents (as modified hereby) to which it is a party, in each case, to the extent provided in, and subject to the limitations and qualifications set forth in, such Credit Documents (as modified hereby) and (C) affirms and confirms all of its obligations and liabilities under the Credit Agreement and each other Credit Document (as modified hereby) to which it is a party, in each case after giving effect to this Fifth Amendment and the transactions contemplated hereby, including its guarantee of the Obligations and the pledge of and/or grant of a security interest in its assets as Collateral pursuant to the Security Documents (as modified hereby) to which it is a party to secure such Obligations, all as provided in the Security Documents (as modified hereby), and acknowledges and agrees that, as of the Fifth Amendment Effective Date, such obligations, liabilities, guarantee, pledge and grant continue in full force and effect in respect of, and to secure, such Obligations under the Credit Agreement and the other Credit Documents, in each case after giving effect to this Fifth Amendment and the incurrence of the 2022-E Revolving Commitment Increase effected hereby and the other transactions contemplated hereby; and (iii) each Guarantor agrees that nothing in the Credit Agreement, this Fifth Amendment or any other Credit Document shall be deemed to require the consent of such Guarantor to any future amendment to the Credit Agreement. This Fifth Amendment shall not extinguish the obligations of the parties outstanding under the Security Documents or discharge, release or otherwise change the priority of any Lien on any Collateral pursuant to any of the Security Documents. Nothing herein contained shall be construed as a substitution or novation of the obligations, guarantees and liabilities outstanding under the Security Documents, and it is the intent of the parties hereto to confirm that all of the respective obligations of each of the Borrower and each other Credit Party under the Security Documents to which it is a party shall continue in full force and effect.
13.Miscellaneous. This Fifth Amendment shall constitute a Credit Document for all purposes of the Credit Agreement and the other Credit Documents (in each case, as modified hereby). The provisions of Section B of this Fifth Amendment are deemed incorporated as of the Fifth Amendment Effective Date into the Credit Agreement as if fully set forth therein. Except as specifically modified by this Fifth Amendment, (i) the Credit Agreement and the other Credit Documents shall remain in full force and effect and (ii) the execution, delivery and performance of this Fifth Amendment shall not constitute a waiver of any provision of, or operate as a waiver of any right, power or remedy of any Agent or Lender under, the Credit Agreement or any of the other Credit Documents.
[SIGNATURES APPEAR ON THE FOLLOWING PAGES]
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IN WITNESS WHEREOF, each of the undersigned has caused its duly authorized officer to execute and deliver this Fifth Amendment as of the date first set forth above.
CITIBANK, N.A., as Administrative Agent and Collateral Agent
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Managing Director / Authorized Signatory
Title: Managing Director / Authorized Signatory
[Signature Page to Fifth Amendment]
SUMITOMO MITSUI BANKING CORPORATION, as a 2022-E New Revolving Loan Lender
By: /s/ Xxxxx Xxx Xxxxxx
Name: Xxxxx Xxx Xxxxxx
Title: Director
Title: Director
[Signature Page to Fifth Amendment]
VISTRA OPERATIONS COMPANY LLC, as Borrower
By:/s/ Xxxxxxxxxx X. Xxxxxxxx
Name: Xxxxxxxxxx X. Xxxxxxxx
Title: Executive Vice President and Chief Financial Officer
Title: Executive Vice President and Chief Financial Officer
VISTRA INTERMEDIATE COMPANY LLC, as Holdings
By:/s/ Xxxxxxxxxx X. Xxxxxxxx
Name: Xxxxxxxxxx X. Xxxxxxxx
Title: Executive Vice President and Chief Financial Officer
Title: Executive Vice President and Chief Financial Officer
[Signature Page to Fifth Amendment]
| AMBIT CALIFORNIA, LLC | ||
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| AMBIT HOLDINGS, LLC | ||
| AMBIT ILLINOIS, LLC | ||
| AMBIT MARKETING, LLC | ||
| AMBIT MIDWEST, LLC | ||
| AMBIT NEW YORK, LLC | ||
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| CRIUS ENERGY CORPORATION | ||
| CRIUS ENERGY, LLC | ||
| CRIUS SOLAR FULFILLMENT, LLC | ||
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| DYNEGY COAL HOLDCO, LLC | ||
| DYNEGY COAL TRADING & TRANSPORTATION, L.L.C. | ||
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| DYNEGY ENERGY SERVICES (EAST), LLC | ||
| DYNEGY ENERGY SERVICES, LLC | ||
| DYNEGY XXXXXX, LLC | ||
| DYNEGY MARKETING AND TRADE, LLC | ||
| DYNEGY MIDWEST GENERATION, LLC | ||
| DYNEGY OPERATING COMPANY | ||
| DYNEGY POWER MARKETING, LLC | ||
| DYNEGY RESOURCES GENERATING HOLDCO, LLC | ||
| DYNEGY SOUTH BAY, LLC | ||
| DYNEGY STUART, LLC | ||
| EMERALD GROVE SOLAR, LLC | ||
| ENERGY REWARDS, LLC | ||
[Signature Page to Fifth Amendment]
| XXXXX POWER COMPANY, LLC | ||
| EQUIPOWER RESOURCES CORP. | ||
| EVERYDAY ENERGY, LLC | ||
| EVERYDAY ENERGY NJ, LLC | ||
| FAYETTE POWER COMPANY LLC | ||
| FOREST GROVE SOLAR LLC | ||
| GENERATION SVC COMPANY | ||
| HALLMARK SOLAR, LLC | ||
| HANGING ROCK POWER COMPANY LLC | ||
| XXXX ENERGY, 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 | ||
| XXXXXXX POWER COMPANY LLC | ||
| XXXXXXX GENERATION, L.L.C. | ||
| LA FRONTERA HOLDINGS, LLC | ||
| LAKE ROAD GENERATING COMPANY, LLC | ||
| LIBERTY ELECTRIC POWER, LLC | ||
| LONE STAR ENERGY COMPANY, INC. | ||
| LONE STAR PIPELINE COMPANY, INC. | ||
| LUMINANT ADMINISTRATIVE SERVICES COMPANY | ||
| LUMINANT COAL GENERATION LLC | ||
| LUMINANT COMMERCIAL ASSET MANAGEMENT LLC | ||
| LUMINANT ENERGY COMPANY LLC | ||
| LUMINANT ENERGY TRADING CALIFORNIA COMPANY | ||
| LUMINANT ET SERVICES COMPANY LLC | ||
| LUMINANT GAS IMPORTS LLC | ||
| LUMINANT GENERATION COMPANY LLC | ||
| LUMINANT MINING COMPANY LLC | ||
| LUMINANT POWER GENERATION INC. | ||
| LUMINANT POWER LLC | ||
| MASSPOWER, LLC | ||
| MIAMI FORT POWER COMPANY LLC | ||
| MIDLOTHIAN ENERGY, LLC | ||
| MILFORD POWER COMPANY, LLC | ||
| MORRO BAY ENERGY STORAGE 1, LLC | ||
| MORRO BAY ENERGY STORAGE 2, LLC | ||
| MORRO BAY POWER COMPANY LLC | ||
| XXXX LANDING ENERGY STORAGE 1, LLC | ||
| XXXX LANDING ENERGY STORAGE 2, LLC | ||
| XXXX LANDING ENERGY STORAGE 3, LLC | ||
[Signature Page to Fifth Amendment]
| XXXX LANDING ENERGY STORAGE 4, LLC | ||
| XXXX LANDING POWER COMPANY LLC | ||
| NCA RESOURCES DEVELOPMENT COMPANY LLC | ||
| NEPCO SERVICES COMPANY | ||
| NORTHEASTERN POWER COMPANY | ||
| OAK GROVE MANAGEMENT COMPANY LLC | ||
| OAK HILL SOLAR LLC | ||
| OAKLAND ENERGY STORAGE 1, LLC | ||
| OAKLAND ENERGY STORAGE 2, LLC | ||
| OAKLAND ENERGY STORAGE 3, LLC | ||
| OAKLAND POWER COMPANY LLC | ||
| ONTELAUNEE POWER OPERATING COMPANY, LLC | ||
| XXXXXXXXX ENERGY, LLC | ||
| PUBLIC POWER, LLC, A CONNECTICUT LIMITED LIABILITY COMPANY | ||
| PUBLIC POWER, LLC, A PENNSYLVANIA LIMITED LIABILITY COMPANY | ||
| PUBLIC POWER & UTILITY OF MARYLAND, LLC | ||
| PUBLIC POWER & UTILITY OF NY, INC. | ||
| REGIONAL ENERGY HOLDINGS, INC. | ||
| RICHLAND-STRYKER GENERATION LLC | ||
| SANDOW POWER COMPANY LLC | ||
| SAYREVILLE POWER GENERATION LP | ||
| SAYREVILLE POWER GP INC. | ||
| SAYREVILLE POWER HOLDINGS LLC | ||
| SITHE ENERGIES, INC. | ||
| SITHE/INDEPENDENCE LLC | ||
| SOUTHWESTERN ELECTRIC SERVICE COMPANY, INC. | ||
| TEXAS ELECTRIC SERVICE COMPANY, INC. | ||
| TEXAS ENERGY INDUSTRIES COMPANY, INC. | ||
| TEXAS POWER & LIGHT COMPANY, INC. | ||
| TEXAS UTILITIES COMPANY, INC. | ||
| TEXAS UTILITIES ELECTRIC COMPANY, INC. | ||
| TRIEAGLE 1, LLC | ||
| TRIEAGLE 2, LLC | ||
| TRIEAGLE ENERGY LP | ||
| TRINIDAD POWER STORAGE LLC | ||
| TXU ELECTRIC COMPANY, INC. | ||
| TXU ENERGY RETAIL COMPANY LLC | ||
| TXU RETAIL SERVICES COMPANY | ||
| UPTON COUNTY SOLAR 2, LLC | ||
| VALUE BASED BRANDS LLC | ||
| VIRIDIAN ENERGY, LLC | ||
| VIRIDIAN ENERGY NY, LLC | ||
| VIRIDIAN ENERGY OHIO LLC | ||
[Signature Page to Fifth Amendment]
| VIRIDIAN ENERGY PA LLC | ||
| VIRIDIAN INTERNATIONAL MANAGEMENT LLC | ||
| VIRIDIAN NETWORK, LLC | ||
| VISTRA ASSET COMPANY LLC | ||
| VISTRA CORPORATE SERVICES COMPANY | ||
| VISTRA EP PROPERTIES COMPANY | ||
| VISTRA FINANCE CORP. | ||
| VISTRA INSURANCE SOLUTIONS LLC | ||
| VISTRA PREFERRED INC. | ||
| VISTRA ZERO LLC | ||
| VOLT ASSET COMPANY, INC. | ||
| WASHINGTON POWER GENERATION, LLC | ||
| WISE COUNTY POWER COMPANY, LLC | ||
| WISE-FUELS PIPELINE, INC. | ||
| XXXXXX POWER COMPANY LLC, as Subsidiary Guarantors | ||
By:/s/ Xxxxxxxxxx X. Xxxxxxxx
Name: Xxxxxxxxxx X. Xxxxxxxx
Title: Executive Vice President and Chief Financial Officer
Title: Executive Vice President and Chief Financial Officer
[Signature Page to Fifth Amendment]
SCHEDULE I
| 2022-E New Revolving Loan Lender | Type of Commitment | Amount | ||||||
| Sumitomo Mitsui Banking Corporation | 2022-E New Revolving Credit Commitment | $100,000,000.00 | ||||||
| TOTAL: | N/A | $100,000,000.00 | ||||||
