EXHIBIT 4.1
FIRST AMENDMENT TO
364-DAY REVOLVING CREDIT AGREEMENT
Dated as of May 5, 1999
AMONG
DYNEGY INC.
(formerly known as
NGC CORPORATION)
and
THE FIRST NATIONAL BANK OF CHICAGO,
Individually and as Administrative Agent
THE CHASE MANHATTAN BANK
Individually and as Syndication Agent
and
CITIBANK, N.A.,
Individually and as Documentation Agent
and
THE LENDERS NAMED HEREIN
FIRST AMENDMENT TO 364-DAY REVOLVING CREDIT AGREEMENT
THIS FIRST AMENDMENT TO 364-DAY REVOLVING CREDIT AGREEMENT, dated as of
May 5, 1999, is among Dynegy Inc. (formerly known as NGC Corporation), a
Delaware corporation, as Borrower (the "Borrower"), the Lenders parties hereto,
The First National Bank of Chicago, as administrative agent (the "Administrative
Agent"), The Chase Manhattan Bank, as syndication agent (the "Syndication
Agent") and Citibank, N.A., as documentation agent (the "Documentation Agent").
Capitalized terms used herein, unless otherwise defined, have the meanings
assigned to them in the Credit Agreement (as hereinafter defined). The parties
hereto agree as follows:
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders, the Issuers, the Administrative Agent,
the Syndication Agent, and the Documentation Agent have heretofore entered into
a certain 364-Day Revolving Credit Agreement, dated as of May 27, 1998 (herein
called the "Credit Agreement"); and
WHEREAS, the Borrower, the Lenders, the Issuers, the Administrative Agent,
the Syndication Agent and the Documentation Agent now intend to amend the Credit
Agreement in certain respects as hereinafter provided;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the Borrower, the Lenders, the Issuers, the Administrative
Agent, the Syndication Agent and the Documentation Agent hereby agree as
follows:
SECTION 1. Amendments to Credit Agreement.
A. The following definitions are added to Section 1.1 of the Credit
Agreement in alphabetical order:
"Commitment Increase Effective Date" is defined in Section 2.25.
"Increasing Lenders" is defined in Section 2.25.
"New Lender" is defined in Section 2.25.
"New Funds Amount" means the amount by which a New Lender's or an
Increasing Lender's outstanding Committed Loans increase as of a Commitment
Increase Effective Date (without regard to any such increase as a result of
Advances made on such Commitment Increase Effective Date).
"Notice of Commitment Increase" is defined in Section 2.25.
"Partially Increasing Lender" is defined in Section 2.25.
"Reducing Lender" is defined in Section 2.25.
"Reduction Amount" means the amount by which a Reducing Lender's or a
Partially Increasing Lender's outstanding Loans decrease as of a Commitment
Increase Effective Date (without regard to any such increase as a result of
Advances made on such Commitment Increase Effective Date).
B. The definitions of "Aggregate Commitment", "Applicable Documentary
Margin", "Applicable Facility Fee", "Applicable Margin" and "Facility
Termination Date" appearing in Section 1.1 of the Credit Agreement are each
amended and restated to read as follows:
"Aggregate Commitment" means $400,000,000 as such amount may be reduced or
increased from time to time pursuant to the terms hereof, including without
limitation, Section 2.7 and Section 2.25.
"Applicable Documentary Margin" means on any date and with respect to each
Documentary Letter of Credit (subject to clause (iii) of the definition of
"Applicable Rating Level"), the applicable margin set forth below based on the
Applicable Rating Level on such date:
Applicable
Applicable Documentary
Rating Level Margin
--------------- ------------
Level I 0.2000%
Level II 0.2500%
Level III 0.3000%
Level IV 0.3750%
Level V 0.5000%
------------------ -----------
The Applicable Documentary Margin for each Applicable Rating Level set forth in
the chart above shall be increased on any date by 0.1250% if, on such date, the
aggregate amount of all outstanding Advances plus Letter of Credit Liabilities
is greater than 25% of the Aggregate Commitment.
2
"Applicable Facility Fee" means on any date (subject to clause (iii) of the
definition of "Applicable Rating Level") the rate per annum set forth below
opposite the Applicable Rating Level:
Applicable Rating Level Applicable Facility Fee
Level I 0.0900%
Level II 0.1000%
Level III 0.1500%
Level IV 0.2000%
Level V 0.2500%
----------------------------------------------------
"Applicable Margin" means on any date (subject to clause (iii) of the
definition of "Applicable Rating Level"), the applicable margin set forth below
based on the Applicable Rating Level on such date:
Applicable Applicable
Rating Level Margin
--------------- -----------
Level I 0.3100%
Level II 0.4000%
Level III 0.4500%
Level IV 0.5500%
Level V 0.7500%
------------------ ----------
The Applicable Margin for each Applicable Rating Level set forth in the chart
above shall be increased on any date by 0.1250% if, on such date, the aggregate
amount of all outstanding Advances plus Letter of Credit Liabilities is greater
than 25% of the Aggregate Commitment.
"Facility Termination Date" means the earlier of (i) May 3, 2000 or such
other later date as may result from any extension requested by the Borrower and
consented to by the Accepting Lenders pursuant to Section 2.24 and (ii) the date
on which the Aggregate Commitment shall have been reduced to zero pursuant to
Section 2.7.
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C. The Credit Agreement is amended by adding the following Section 2.25
at the end of Article II.
"2.25 Procedures with respect to the Aggregate Commitment. So long
as no Default or Unmatured Default has occurred and is continuing, the
Borrower may request from time to time, and subject to the terms and
conditions hereinafter set forth, that the Aggregate Commitment be
increased by giving written notice thereof to the Administrative Agent;
provided, however, that any such notice must be given no later than 60 days
prior to the then Facility Termination Date. Each such notice (a "Notice
of Commitment Increase") shall be in the form of Exhibit C-2 and specify
therein:
(i) the effective date of such increase, which date (the
requested "Commitment Increase Effective Date") shall be no earlier
than five Business Days after receipt by the Administrative Agent of
such notice;
(ii) the amount of the requested increase; provided, however,
that after giving effect to such requested increase, the Aggregate
Commitment shall not exceed $500,000,000;
(iii) the identity of the then Lenders, if any, which have
agreed with the Borrower to increase their respective Commitments in
an amount such that their respective Percentage after giving effect to
such requested increase will be the same or greater than their
respective Percentages prior to giving effect to such requested
increase (each such then Lender being a then "Increasing Lender"),
each other Lender which has agreed to increase its Commitment in an
amount such that its Lender's Percentage after giving effect to such a
requested increase will be less than its Lender's Percentage prior to
giving effect to such requested increase (each such Lender being a
"Partially Increasing Lender") and the identity of each financial
institution not already a Lender, if any, which has agreed with the
Borrower to become a Lender to effect such requested increase in the
Aggregate Commitment (each such assignee shall be reasonably
acceptable to the Administrative Agent and each such assignee being a
then "New Lender" and each Lender which has not agreed to increase its
Commitment being a "Reducing Lender"); and
(iv) the amount of the respective Commitments of the then
existing Lenders and such New Lenders from and after the effective
date of such increase.
On or before each Commitment Increase Effective Date:
4
(i) the Borrower, each Increasing Lender, each Partially
Increasing Lender and each then New Lender shall execute and deliver
to the Administrative Agent for its acceptance, as to form,
documentation embodying the provisions of the Notice of Commitment
Increase relating to the increase in the Aggregate Commitment to be
effected on such Commitment Increase Effective Date; and
(ii) upon acceptance of such documentation by the Administrative
Agent, which acceptance shall not be unreasonably withheld, and so
long as no Default or Unmatured Default has occurred and is
continuing, (A) the Administrative Agent shall give prompt notice of
such acceptance to each Lender, (B) it shall become effective, and the
Aggregate Commitment shall be increased to the amount specified
therein, on such Commitment Increase Effective Date, (C) the
Administrative Agent shall record each New Lender's information in the
Register, and the Borrower shall execute and deliver to each then New
Lender, upon written request by such New Lender, a Committed Note
payable to the order of such Lender in the face principal amount equal
to such Lender's Commitment and a Competitive Bid Note and (D) upon
written request by a Lender, the Borrower shall execute and deliver to
each such Increasing Lender and each such Partially Increasing Lender,
against receipt by the Borrower of such Lender's then existing
Committed Note, if any, a new Committed Note in the face principal
amount equal to such Lender's Commitment after giving effect to such
Commitment increase.
On each Commitment Increase Effective Date:
(i) each then New Lender and each then Increasing Lender shall,
by wire transfer of immediately available funds, deliver to the
Administrative Agent such Lenders' New Funds Amount for such
Commitment Increase Effective Date, which amount, for each such
Lender, shall constitute Committed Loans made by such Lender to the
Borrower pursuant to Section 2.1 on such Commitment Increase Effective
Date; and
(ii) the Administrative Agent shall, by wire transfer of
immediately available funds, pay to each then Reducing Lender and to
each Partially Increasing Lender its Reduction Amount for such
Commitment Increase Effective Date, which amount, for each such
Lender, shall constitute a prepayment by the Borrower pursuant to
Section 2.9, ratably in accordance with the respective principal
amounts thereof, of the principal amounts of all then outstanding
Committed Loans of such Lender.
5
The Administrative Agent shall record each then New Lender's, each
then Increasing Lender's and each then Partially Increasing Lender's
information in the Register. Also effective as of each Commitment Increase
Effective Date, each then New Lender and each then Increasing Lender shall
be deemed to have purchased and had transferred to it, and each then
Reducing Lender and each Partially Increasing Lender shall be deemed to
have sold and transferred to such New Lenders and Increasing Lenders, such
undivided interest and participation in such Reducing Lender's and such
Partially Increasing Lender's interest and participation in all then
outstanding Letters of Credit, the obligations of the Borrower with respect
thereto and any security therefor and any guaranty pertaining thereto at
any time existing as is necessary so that such undivided interests and
participations of all Lenders (including each then New Lender) shall accord
with their respective Lender's Percentages after giving effect to the
increase in the Aggregate Commitment on such Commitment Increase Effective
Date."
D. The Credit Agreement is amended by adding Exhibit C-2 attached hereto
to the Credit Agreement as Exhibit C-2.
E. The Credit Agreement is amended by replacing Schedule 2 to the Credit
Agreement with Schedule 2 to this Amendment.
SECTION 2. To induce the Lenders, the Issuers, the Administrative Agent,
the Syndication Agent and the Documentation Agent to enter into this Amendment,
the Borrower hereby reaffirms, as of the date hereof, its representations and
warranties contained in Article V of the Credit Agreement (except to the extent
such representations and warranties relate solely to an earlier date).
SECTION 3. The effectiveness of this Amendment is conditioned upon receipt
by the Administrative Agent of counterparts hereof duly executed by Borrower,
each Lender, each Issuer, the Administrative Agent, the Syndication Agent and
the Documentation Agent.
SECTION 4. Upon the effectiveness hereof as provided in the foregoing
Section 3, this Amendment (or the portions thereof) shall be deemed to be an
amendment to the Credit Agreement, and the Credit Agreement, as amended hereby,
is hereby ratified, approved and con firmed in each and every respect. All
references to the Credit Agreement in any other document, instrument, agreement
or writing shall hereafter be deemed to refer to the Credit Agreement as amended
hereby.
SECTION 5. THIS AMENDMENT SHALL BE A CONTRACT GOVERNED BY THE INTERNAL
LAWS OF THE STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO
NATIONAL BANKS. All obligations of the Borrower and rights of the Lenders, the
Issuers, the Administrative Agent, the Syndication Agent
6
and the Documentation Agent expressed herein shall be in addition to and not in
limitation of those provided by applicable law. Whenever possible each provision
of this Amendment shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Amendment shall be
prohibited by or invalid under applicable law, such pro vision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Amendment.
SECTION 6. This Amendment may be executed in any number of counterparts,
all of which taken together shall constitute one and the same instrument, and
any party hereto may execute this Amendment by signing one or more counterparts.
SECTION 7. This Amendment shall be binding upon the Borrower and the
Lenders, the Issuers, the Administrative Agent, the Syndication Agent and the
Documentation Agent and their respective successors and assigns, and shall inure
to the benefit of each of the Borrower, the Lenders, the Issuers, the
Administrative Agent, the Syndication Agent and the Documentation Agent and the
successors and assigns of any of the Lenders, the Issuers, the Administrative
Agent, the Syndication Agent and the Documentation Agent.
SECTION 8. EACH OF THE BORROWER, THE LENDERS, THE ISSUERS, THE
ADMINISTRATIVE AGENT, THE SYNDICATION AGENT AND THE DOCUMENTATION AGENT HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS AMENDMENT OR ANY LOAN DOCUMENT, OR ANY COURSE
OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS
OF ANY OF THE BORROWER, THE LENDERS, THE ISSUERS, THE ADMINISTRATIVE AGENT, THE
SYNDICATION AGENT OR THE DOCUMENTATION AGENT. THE BORROWER ACKNOWLEDGES AND
AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION
(AND EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY)
AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDER ENTERING INTO
THIS AMENDMENT.
SECTION 9. THE BORROWER HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE COURT SITTING IN
CHICAGO IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN
DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT
OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND
IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF
ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT
IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE AGENT,
ANY ISSUER OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE BORROWER IN THE COURTS
OF ANY OTHER JURISDICTION.
7
IN WITNESS WHEREOF, the Borrower, the Lenders, the Administrative Agent,
the Syndication Agent and the Documentation Agent have executed this Agreement
as of the date first above written.
DYNEGY INC.
By:________________________________
Print Name:________________________
Title:_____________________________
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Senior Vice President and
Chief Financial Officer
Telephone No.: (000) 000-0000
with a copy to:
Attn: Senior Vice President and General Counsel
THE FIRST NATIONAL BANK OF CHICAGO,
Individually and as Administrative Agent
By:________________________________
Print Name:________________________
Title:_____________________________
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Diversified Energy Division
Telecopy No.: 000-000-0000
with a copy to:
The First National Bank of Chicago
000 Xxxxxx Xx., 0xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attn: Xxxxx Xxxx
Telephone No.: 000-000-0000
Telecopy No.: 000-000-0000
THE CHASE MANHATTAN BANK,
Individually and as Syndication Agent
By:________________________________
Print Name:________________________
Title:_____________________________
000 Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attn: _____________________________
Telecopy No.: (000) 000-0000
CITIBANK, N.A.
Individually and as Documentation Agent
By:________________________________
Print Name:________________________
Title:_____________________________
Attn: _____________________________
Telecopy No.: _____________________
ABN AMRO BANK, N.V.
By:________________________________
Print Name:________________________
Title:_____________________________
By:________________________________
Print Name:________________________
Title:_____________________________
Xxxxx Xxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn:______________________________
Telecopy No.: 000-000-0000
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION
By:________________________________
Print Name:________________________
Title:_____________________________
000 Xxxxxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxx 00000-0000
Attn:______________________________
Telecopy No.: (000) 000-0000
THE BANK OF NOVA SCOTIA
By:________________________________
Print Name:________________________
Title:_____________________________
000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn:______________________________
Telecopy No.:______________________
THE BANK OF TOKYO-MITSUBISHI,
LTD., HOUSTON AGENCY
By:________________________________
Print Name:________________________
Title:_____________________________
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Attn: Xxxxx X. Xxxxxxx, P.E.
Telecopy No.: 713/658-0116
BANKBOSTON, N.A.
By:________________________________
Print Name:________________________
Title:_____________________________
000 Xxxxxxx Xxxxxx
Mail Stop 01-08-04
Xxxxxx, XX 00000
Attn: X. Xxxx
Telecopy No.: (000) 000-0000
CREDIT AGRICOLE INDOSUEZ
By:________________________________
Print Name:________________________
Title:_____________________________
By:________________________________
Print Name:________________________
Title:_____________________________
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xxxxx Xxxxxxx
Telecopy No.: (000) 000-0000
CREDIT LYONNAIS NEW YORK BRANCH
By:________________________________
Print Name:________________________
Title:_____________________________
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xxxxxxx Xxxxxxx, Vice President
Telecopy No.: (000) 000-0000
THE FUJI BANK, LIMITED, NEW YORK BRANCH
By:________________________________
Print Name:________________________
Title:_____________________________
Two World Trade Center
79th Floor
New York, New York
Attn: Xx. Xxxxxx Xxxxx
Telecopy No.: (000) 000-0000
SOCIETE GENERALE, SOUTHWEST AGENCY
By:________________________________
Print Name:________________________
Title:_____________________________
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxx Xxxxxx
Telecopy No.: (000) 000-0000
THE TORONTO-DOMINION BANK
By:________________________________
Print Name:________________________
Title:_____________________________
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn:______________________________
Telecopy No.: (000) 000-0000
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By:________________________________
Print Name:________________________
Title:_____________________________
By:________________________________
Print Name:________________________
Title:_____________________________
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn:______________________________
Telecopy No.: (000) 000-0000
EXHIBIT "C-2"
The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Petroleum and Mining Division
Telecopier: (000) 000-0000
cc: The First National Bank of Chicago
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxx
Telecopier: (000) 000-0000
Date: ________________________
Notice of Commitment Increase
Reference is made to the 364 Day Revolving Credit Agreement, dated as of
May 27, 1998, among Dynegy Inc. formerly known as NGC Corporation, a Delaware
corporation, as Borrower (the "Borrower"), the Lenders (parties thereto), The
First National Bank of Chicago, as Administrative Agent, The Chase Manhattan
Bank, as Syndication Agent and Citibank, N.A., as Documentation Agent (as
amended, modified and supplemented to the date hereof, the "Agreement").
Capitalized terms used herein but not otherwise defined have the meanings
assigned to them in the Agreement. The undersigned hereby gives notice pursuant
to Section 2.25 of the Agreement of its intent to increase the Aggregate
Commitment by the amount of $ , effective
(the "Commitment Increase Effective Date"). The existing Lenders agreeing to
increase their commitments and the assignees agreeing to become New Lenders to
effect such requested increase are identified below.
From and after the Commitment Increase Effective Date, the respective
Commitments of the existing Lenders agreeing to increase their commitments and
the New Lenders will be as set forth below (and Schedule 2 shall be deemed to be
amended to reflect the same):
Existing Lenders: Commitment
___________________ $_____________
___________________ $_____________
___________________ $_____________
___________________ $_____________
Existing Lenders: Commitment
___________________ $_____________
___________________ $_____________
New Lenders: Commitment
___________________ $_____________
___________________ $_____________
___________________ $_____________
___________________ $_____________
___________________ $_____________
___________________ $_____________
The undersigned Authorized Officer represents and warrants that (a) the
increase requested hereby complies with the requirements of Section 2.25 of the
Agreement and (b) no Default or Unmatured Default exists as of the date hereof
and no Default will exist on the Commitment Increase Effective Date.
___________________________________
By:________________________________
Name:______________________________
Title:_____________________________
SCHEDULE 2
COMMITMENTS
The First National Bank of Chicago $ 42,500,000
Bank of America National Trust and Savings Association 40,000,000
The Chase Manhattan Bank 40,000,000
Citibank, N.A. 40,000,000
ABN-AMRO Bank, N.V. 30,000,000
BankBoston, N.A. 30,000,000
Credit Lyonnais New York Branch 30,000,000
The Toronto-Dominion Bank 30,000,000
Westdeutsche Landesbank Girozentrale, New York Branch 30,000,000
Societe Generale, Southwest Agency 20,000,000
The Bank of Nova Scotia 17,500,000
The Bank of Tokyo-Mitsubishi, Ltd., Houston Agency 17,500,000
The Fuji Bank, Limited, Houston Agency 17,500,000
Credit Agricole Indosuez 15,000,000
TOTAL $400,000,000
