WAIVER AND CONSENT TO CREDIT AGREEMENT
Exhibit 10.1
WAIVER AND CONSENT TO CREDIT AGREEMENT
This WAIVER AND CONSENT TO CREDIT AGREEMENT (this “Waiver”) is entered into as of December 13, 2016, among Dynegy Inc., a Delaware corporation (the “Borrower”), the subsidiaries of the Borrower party hereto 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, restated, amended and restated, supplemented, waived, or otherwise modified prior to the date hereof, the “Credit Agreement”);
WHEREAS, pursuant to Section 5.02(f) of the Credit Agreement, subject to exceptions set forth therein, within five Business Days after each date on or after the Closing Date upon which the Borrower or any of its Restricted Subsidiaries receives any cash proceeds from any Asset Sale, an amount equal to 100% of the Net Sale Proceeds, other than Excluded Proceeds, therefrom (any such Net Sale Proceeds, the “Asset Sale Proceeds Sweep Amount”) are required to be applied on such fifth Business Day as a mandatory repayment of Term Loans in accordance with the requirements of Sections 5.02(i) and (j) (the “Asset Sale Sweep Requirement”);
WHEREAS, pursuant to Section 5.02(g) of the Credit Agreement, subject to exceptions set forth therein, within five Business Days after each date on or after the Closing Date upon which the Borrower or any of its Restricted Subsidiaries receives any cash proceeds from any Recovery Event (other than Recovery Events where the Net Recovery Event Proceeds therefrom do not exceed $20,000,000), an amount equal to 100% of the Net Recovery Event Proceeds from such Recovery Event (any such Net Recovery Event Proceeds, the “Recovery Event Proceeds Sweep Amount” and, together with any Asset Sale Proceeds Sweep Amount, the “Sweep Amounts”) are required to be applied on such fifth Business Day as a mandatory repayment of Term Loans in accordance with the requirements of Sections 5.02(i) and (j) (the “Recovery Event Sweep Requirement” and, together with the Asset Sale Sweep Requirement, the “Sweep Requirements”);
WHEREAS, the Borrower hereby requests the Lenders to waive the Sweep Requirements in connection with any Sweep Amounts received by the Borrower or any of its Restricted Subsidiaries on or after the Waiver Effective Date and on or prior to the date that is 545 days after the Waiver Effective Date (the “Subject Sweep Amounts”) to the extent such Subject Sweep Amounts are applied to repay or prepay Revolving Loans (without the Lenders requiring any corresponding reduction of Revolving Loan Commitments or Total Revolving Loan Commitment) and/or other Indebtedness of the Borrower or its Restricted Subsidiaries that is secured by the Collateral on a pari passu basis with the Obligations (and, to the extent such other Indebtedness is revolving Indebtedness, without the Lenders requiring any corresponding reduction in commitments); 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 and Consent. The Lenders party hereto hereby waive the Sweep Requirements in connection with any Subject Sweep Amounts to the extent such Subject Sweep Amounts are applied to repay or prepay Revolving Loans (without the Lenders requiring corresponding reduction of Revolving Loan Commitments or Total Revolving Loan Commitment) and/or other Indebtedness of the Borrower or its Restricted Subsidiaries that is secured by the Collateral on a pari passu basis with the Obligations (and, to the extent such other Indebtedness is revolving Indebtedness, without the Lenders requiring any corresponding reduction in commitments).
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, the Subsidiaries of the Borrower that are Credit Parties on the Waiver Effective Date and Lenders constituting the Required Lenders.
SECTION 4. 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 5. 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 6. Jurisdiction. Each of the parties hereto irrevocably and unconditionally (a) submits to the exclusive jurisdiction of any state or federal court sitting in the
Xxxxxxx xx Xxxxxxxxx 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/ Xxxxx X. Xxxxxxxx |
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Name: Xxxxx X. Xxxxxxxx |
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Title: Executive Vice President and Chief Financial Officer |
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BLACK MOUNTAIN COGEN, INC. | |
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BLUE RIDGE GENERATION LLC | |
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CASCO BAY ENERGY COMPANY, LLC | |
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DIGHTON POWER, LLC | |
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DYNEGY ADMINISTRATIVE SERVICES COMPANY | |
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DYNEGY COAL GENERATION, 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 COMMERCIAL ASSET MANAGEMENT, LLC | |
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DYNEGY CONESVILLE, LLC | |
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DYNEGY DICKS CREEK, LLC | |
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DYNEGY ENERGY SERVICES (EAST), LLC | |
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DYNEGY ENERGY SERVICES, LLC | |
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DYNEGY EQUIPMENT, LLC | |
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DYNEGY FAYETTE II, LLC | |
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DYNEGY GAS GENERATION, LLC | |
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DYNEGY GAS HOLDCO, LLC | |
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DYNEGY GAS IMPORTS, LLC | |
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DYNEGY GAS INVESTMENTS HOLDINGS, LLC | |
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DYNEGY GAS INVESTMENTS, LLC | |
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DYNEGY GASCO HOLDINGS, LLC | |
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DYNEGY GENERATION HOLDCO, LLC | |
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DYNEGY GLOBAL LIQUIDS, INC. | |
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DYNEGY HANGING ROCK II, LLC | |
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DYNEGY XXXXXXX ENERGY, LLC | |
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DYNEGY XXXXXX, LLC | |
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DYNEGY XXX XX, LLC | |
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DYNEGY MARKETING AND TRADE, LLC | |
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DYNEGY MIAMI FORT, 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 OPERATING COMPANY | |
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DYNEGY POWER GENERATION INC. | |
Signature Page to Waiver to Dynegy Credit Agreement
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DYNEGY POWER MARKETING, LLC | |
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DYNEGY POWER, LLC | |
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DYNEGY RESOURCE HOLDINGS, LLC | |
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DYNEGY RESOURCE I, LLC | |
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DYNEGY RESOURCE II, LLC | |
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DYNEGY RESOURCE III, 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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DYNEGY SOUTH BAY, 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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XXXXXX ENERGY HOLDINGS II, LLC | |
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XXXXXX ENERGY HOLDINGS, LLC | |
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XXXXXX EXPANSION HOLDINGS, LLC | |
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EQUIPOWER RESOURCES CORP. | |
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HAVANA DOCK ENTERPRISES, LLC | |
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ILLINOVA CORPORATION | |
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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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ONTELAUNEE POWER OPERATING 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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SITHE / INDEPENDENCE LLC | |
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SITHE ENERGIES, INC. | |
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TOMCAT POWER, LLC | |
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By: |
/s/ Xxxxx X. Xxxxxxxx |
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Name: Xxxxx X. Xxxxxxxx |
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Title: Executive Vice President and Chief Financial Officer |
Signature Page to Waiver to Dynegy Credit Agreement
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MASSPOWER, a Massachusetts general partnership | |
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By: |
/s/ Xxxxx X. Xxxxxxxx |
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Name: Xxxxx X. Xxxxxxxx |
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Title: Executive Vice President and Chief Financial Officer |
Signature Page to Waiver to Dynegy Credit Agreement
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MASSPOWER, a Massachusetts general partnership | |
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By: Masspower Partner II, LLC, its Managing Partner | |
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By: |
/s/ Xxxxx X. Xxxxxxxx |
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Name: Xxxxx X. Xxxxxxxx |
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Title: Executive Vice President and Chief Financial Officer |
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 |
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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 |
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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 |
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XXXXXXX XXXXX BANK USA, | ||
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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: |
Authorized Signatory |
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CREDIT AGRICOLE CORPORATE AND | ||
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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 Xxxxxx | |
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Name: |
Xxxxxxx Xxxxxx |
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Title: |
Managing Director |
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 |
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BANK OF AMERICA, N.A., | ||
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as Lender | ||
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By: |
/s/ Xxxxx X. Xxxxxx XX | |
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Name: |
Xxxxx X. Xxxxxx XX |
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Title: |
Managing Director |
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CREDIT SUISSE AG, CAYMAN ISLANDS | ||
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BRANCH, | ||
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as Lender | ||
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By: |
/s/ Xxxxxx Xxxx | |
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Name: |
Xxxxxx Xxxx |
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Title: |
Authorized Signatory |
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If a second signature necessary: | ||
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By: |
/s/ Xxxxx Xxxxxxxxxx | |
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Name: |
Xxxxx Xxxxxxxxxx |
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Title: |
Authorized Signatory |
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XXXXXX XXXXXXX SENIOR FUNDING, INC., | ||
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as Lender | ||
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By: |
/s/ Xxx Xxxxxx | |
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Name: |
Xxx Xxxxxx |
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Title: |
Vice President |
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XXXXXX XXXXXXX BANK N.A., | ||
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as Lender | ||
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By: |
/s/ Xxx Xxxxxx | |
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Name: |
Xxx Xxxxxx |
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Title: |
Authorized Signatory |
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/ Xxxx Xxxxxxx | |
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Name: |
Xxxx Xxxxxxx |
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Title: |
Director |
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BARCLAYS BANK PLC, | ||
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as Lender | ||
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By: |
/s/ Xxxxxxxxxxx Xxxxxx | |
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Name: |
Xxxxxxxxxxx Xxxxxx |
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Title: |
Assistant Vice President |
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UBS AG, STAMFORD BRANCH, | ||
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as Lender | ||
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By: |
/s/ Xxxxxxx Xxxx | |
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Name: |
Xxxxxxx Xxxx |
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Title: |
Associate Director |
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By: |
/s/ Xxxxxxx Xxxx | |
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Name: |
Xxxxxxx Xxxx |
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Title: |
Director |
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DEUTSCHE BANK AG NEW YORK BRANCH, | ||
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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: |
Director |
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By: |
/s/ Xxxxxx Xxxxxxxxxx | |
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Name: |
Xxxxxx Xxxxxxxxxx |
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Title: |
Director |
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HASTINGS MUTUAL INSURANCE COMPANY, | ||
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as Lender | ||
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By: |
/s/ Xxxxxxxx News | |
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Name: |
Xxxxxxxx News |
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Title: |
Sr. Portfolio Manager |
Signature Page to Waiver to Dynegy Credit Agreement
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MACKENZIE UNCONSTRAINED BOND ETF | ||
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MACKENZIE FLOATING RATE INCOME ETF, | ||
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By: |
/s/ Movin Mokbel | |
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Name: |
Movin Mokbel |
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Title: |
VP, Investments |
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By: |
/s/ Xxxxxx Xxxxxx | |
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Name: |
Xxxxxx Xxxxxx |
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Title: |
VP, Investments |
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NEW YORK LIFE INSURANCE COMPANY, | ||
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By: |
/s/ Xxxxx Ra | |
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Name: |
Xxxxx Ra |
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Title: |
Senior Director |
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NEW YORK LIFE INSURANCE and ANNUITY CORPORATION | ||
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By: |
NYL Investors LLC, its Investment Manager, | |
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By: |
/s/ Xxxxx Ra | |
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Name: |
Xxxxx Ra |
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Title: |
Senior Director |
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MAINSTAY FLOATING RATE FUND, A SERIES OF MAINSTAY FUNDS TRUST | ||
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By: |
NYL Investors LLC, its Subadvisor, | |
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By: |
/s/ Xxxxx Ra | |
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Name: |
Xxxxx Ra |
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Title: |
Senior Director |
Signature Page to Waiver to Dynegy Credit Agreement
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MAINSTAY VP FLOATING RATE PORTFOLIO, A SERIES OF MAINSTAY VP FUNDS TRUST | ||
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By: |
NYL Investors LLC, its Subadvisor, | |
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By: |
/s/ Xxxxx Ra | |
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Name: |
Xxxxx Ra |
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Title: |
Senior Director |
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FLATIRON CLO 2007-1 LTD. | ||
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By: |
New York Life Investment Management LLC, as | |
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Collateral Manager and Attorney-In-Fact, | |
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By: |
/s/ Xxxxx Ra | |
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Name: |
Xxxxx Ra |
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Title: |
Senior Director |
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FLATIRON CLO 2011-1 LTD. | ||
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By: |
New York Life Investment Management LLC, as | |
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Collateral Manager and Attorney-In-Fact, | |
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By: |
/s/ Xxxxx Ra | |
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Name: |
Xxxxx Ra |
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Title: |
Senior Director |
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FLATIRON CLO 2012-1 LTD. | ||
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By: |
New York Life Investment Management LLC, as | |
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Collateral Manager and Attorney-In-Fact, | |
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By: |
/s/ Xxxxx Ra | |
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Name: |
Xxxxx Ra |
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Title: |
Senior Director |
Signature Page to Waiver to Dynegy Credit Agreement
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FLATIRON CLO 2013-1 LTD. | ||
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By: |
New York Life Investment Management LLC, as | |
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Collateral Manager and Attorney-In-Fact, | |
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By: |
/s/ Xxxxx Ra | |
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Name: |
Xxxxx Ra |
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Title: |
Senior Director |
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FLATIRON CLO 2014-1 LTD. | ||
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By: |
NYL Investors LLC, | |
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as Collateral Manager and Attorney-In-Fact, | |
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By: |
/s/ Xxxxx Ra | |
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Name: |
Xxxxx Ra |
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Title: |
Senior Director |
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FLATIRON CLO 2015-1 LTD. | ||
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By: |
NYL Investors LLC, | |
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as Collateral Manager and Attorney-In-Fact, | |
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By: |
/s/ Xxxxx Ra | |
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Name: |
Xxxxx Ra |
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Title: |
Senior Director |
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TCI-FLATIRON CLO 2016-1 LTD. | ||
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By: |
TCI Capital Management LLC, | |
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Its Collateral Manager | |
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By: |
NYL Investors LLC, | |
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Its Attorney-In-Fact, | |
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By: |
/s/ Xxxxx Ra | |
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Name: |
Xxxxx Ra |
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Title: |
Senior Director |
Signature Page to Waiver to Dynegy Credit Agreement
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Blue Cross of Idaho Health Service, Inc. | ||
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By: Seix Investment Advisors LLC, as Investment Manager | ||
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City National Rochdale Fixed Income Opportunities Fund | ||
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By: Seix Investment Advisors LLC, as Subadviser | ||
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Mountain View CLO 2013-1 Ltd. | ||
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By: Seix Investment Advisors LLC, as Collateral Manager | ||
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Mountain View CLO 2014-1 Ltd. | ||
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By: Seix Investment Advisors LLC, as Collateral Manager | ||
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Mountain View CLO IX Ltd. | ||
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By: Seix Investment Advisors LLC, as Collateral Manager | ||
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Mountain View X Ltd. | ||
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By: Seix Investment Advisors LLC, as Collateral Manager | ||
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RidgeWorth Funds — Seix Floating Rate High Income Fund | ||
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By: Seix Investment Advisors LLC, as Subadviser | ||
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Seix Multi-Sector Absolute Return Fund L.P. | ||
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By: Seix Multi-Sector Absolute Return Fund GP LLC, in its capacity as sole general partner | ||
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By: Seix Investment Advisors LLC, its sole member. | ||
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By: |
/s/ Xxxxxx Xxxxxxxxx | |
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Name: |
Xxxxxx Xxxxxxxxx |
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Title: |
Managing Director |
Signature Page to Waiver to Dynegy Credit Agreement
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SURETEC INSURANCE COMPANY, | ||
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as Lender | ||
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By: |
/s/ Xxxxxxxx News | |
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Name: |
Xxxxxxxx News |
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Title: |
Sr. Portfolio Manager |
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UNITED OHIO INSURANCE COMPANY, | ||
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as Lender | ||
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By: |
/s/ Xxxxxxxx News | |
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Name: |
Xxxxxxxx News |
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Title: |
Sr. Portfolio Manager |
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BNP Paribas, | ||
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as Lender | ||
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By: |
/s/ Xxxx Xxxxxx | |
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Name: |
Xxxx Xxxxxx |
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Title: |
Managing Director |
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If a second signature necessary: | ||
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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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Ohio Police and Fire Pension Fund | ||
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as Lender | ||
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By: |
PENN Capital Management Company, Inc., as its Investment Adviser | |
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By: |
/s/ Xxxxxxxxxxx Xxxxxxx | |
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Name: |
Xxxxxxxxxxx Xxxxxxx |
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Title: |
Business Operations Associate |
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Penn Capital Senior Floating Rate Income Fund | ||
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as Lender | ||
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By: |
PENN Capital Management Company, Inc., as its Investment Adviser | |
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By: |
/s/ Xxxxxxxxxxx Xxxxxxx | |
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Name: |
Xxxxxxxxxxx Xxxxxxx |
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Title: |
Business Operations Associate |
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eSure - Insurance Limited | ||
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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: |
Associate Director - Settlements |
Signature Page to Waiver to Dynegy Credit Agreement
