SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported)
April 7, 2015 (April 1, 2015)
DYNEGY INC.
(Exact name of registrant as specified in its charter)
Delaware |
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001-33443 |
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20-5653152 |
(State or Other Jurisdiction of Incorporation) |
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(Commission File Number) |
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(I.R.S. Employer Identification No.) |
601 Travis, Suite 1400, Houston, Texas |
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77002 |
(Address of principal executive offices) |
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(Zip Code) |
(713) 507-6400
(Registrants telephone number, including area code)
N.A.
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement.
First Amendment to Credit Agreement
On April 1, 2015, Dynegy Inc. (the Company) entered into a First Amendment to the Credit Agreement (the First Amendment) among the Company, certain subsidiaries of the Company, the lenders party thereto, Credit Suisse AG, Cayman Islands Branch (Credit Suisse), as administrative agent, and the other parties thereto, amending the Credit Agreement, dated as of April 23, 2013 (as amended, supplemented or otherwise modified, the Credit Agreement), among the Company, the lenders from time to time party thereto, Credit Suisse, as administrative Agent, and the other parties thereto. All capitalized terms used herein but not otherwise defined shall have the meanings given to them in the Credit Agreement or First Amendment filed herewith, as applicable.
The First Amendment provides for a new $350 million five-year senior secured incremental tranche of revolving commitments (the Incremental Tranche A Revolving Loan Commitments), which have terms substantially the same as the terms of the Borrowers outstanding tranche of revolving loans under the Credit Agreement and will mature on April 1, 2020. Amounts available under the Incremental Tranche A Revolving Loan Commitments are available on a revolving basis, and such amounts that are repaid or prepaid may be re-borrowed. The loans issued pursuant to the Incremental Tranche A Revolving Loan Commitments bear interest, initially, at either (a) 2.75% per annum plus the LIBO Rate with respect to any LIBOR Loan or (b) 1.75% per annum plus the Base Rate with respect to any Base Rate Loan, with steps down based on a Senior Secured Leverage Ratio (as defined in the Credit Agreement).
The foregoing summary highlights information contained in the First Amendment. It does not contain all the information that may be important to you and is qualified in its entirety by reference to the Credit Agreement, the First Amendment and the additional related agreements attached hereto as Exhibits 10.1 through 10.4 and incorporated herein by reference.
Item 2.01 Completion of Acquisition or Disposition of Assets.
On April 1, 2015 (the EquiPower Closing Date), the Company completed its previously announced acquisition of EquiPower Resources Corp. (EquiPower and, together with its wholly-owned subsidiaries, the EquiPower Guarantors) pursuant to the terms of the Stock Purchase Agreement, dated August 21, 2014 (as amended, the EquiPower Agreement) by and among Energy Capital Partners II, LP (ECP II), Energy Capital Partners II-A, LP (ECP II-A), Energy Capital Partners II-B, LP (ECP II-B), Energy Capital Partners II-C (Direct IP), LP (ECP II-C), Energy Capital Partners II-D, LP (ECP II-D), and Energy Capital Partners II (EquiPower Co-Invest), LP (ECP Coinvest and, collectively with ECP II, ECP II-A, ECP II-B, ECP II-C and ECP II-D, the EquiPower Sellers). EquiPower, Dynegy Resource II, LLC (the EquiPower Purchaser) and, solely for certain limited purposes set forth therein, each of Energy Capital Partners II-C, LP (ECP II-C Fund), and the Company. In the transaction, the EquiPower Purchaser purchased from the EquiPower Sellers 100% of the equity interests in EquiPower (the EquiPower Acquisition), and as of the effective time of the EquiPower Acquisition, EquiPower became a wholly-owned subsidiary of the EquiPower Purchaser.
Simultaneously on the EquiPower Closing Date, in a related transaction, the Company completed its previously announced acquisition of Brayton Point Holdings, LLC (Brayton and, together with its wholly-owned subsidiaries, the Brayton Guarantors; the EquiPower Guarantors and the Brayton Guarantors are collectively referred to herein as the ECP Guarantors) pursuant to the terms of the Stock Purchase Agreement and Agreement and Plan of Merger, dated August 21, 2014 (the Brayton Agreement), by and among Dynegy Resource III, LLC (the Brayton Purchaser), Dynegy Resources III-A, LLC (Merger Sub), Energy Capital Partners GP II, LP (ECP GP), ECP II, ECP II-A, ECP II-B, ECP II-D, and Energy Capital Partners II-C (Cayman), L.P. (ECP II-C (Cayman) and, collectively with ECP GP, ECP II, ECP II-A, ECP II-B and ECP II-D, the Brayton Sellers), Brayton, and, solely for certain limited purposes set forth therein, each of ECP II-C Fund and the Company. In the transaction, the Brayton Purchaser acquired from the Brayton Sellers and other holders of equity interests in Brayton, though a stock purchase and the related merger of Merger Sub with and into Brayton at the effective time of the transaction, 100% of the equity interests in Brayton (the Brayton Acquisition and, together with the EquiPower Acquisition, the ECP Acquisitions), and Brayton became a wholly-owned subsidiary of the Brayton Purchaser. Additional information regarding the ECP Acquisitions was previously disclosed in Item 1.01 of the Companys Current Report on Form 8-K filed with the Securities and Exchange Commission (the SEC) on August 26, 2014 and Item 1.01 of the Companys Current Report on Form 8-K filed with the SEC on April 1, 2015, which information is incorporated herein by reference.
The foregoing description of the EquiPower Agreement and the transactions consummated pursuant thereto is qualified in its entirety by reference to the full text of the EquiPower Agreement attached as Exhibit 2.2 to the Companys Current Report on Form 8-
2
K filed with the SEC on August 26, 2014, as amended by the full text of the Amendment to the Stock Purchase Agreement attached as Exhibit 2.1 to the Companys Current Report on Form 8-K filed with the SEC on April 1, 2015, which exhibits are incorporated herein by reference. The foregoing description of the Brayton Agreement and the transactions consummated pursuant thereto is qualified in its entirety by reference to the full text of the Brayton Agreement attached as Exhibit 2.3 to the Companys Current Report on Form 8-K filed with the SEC on August 26, 2014, which exhibit is incorporated herein by reference.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation Under an Off-Balance Sheet Arrangement of the Registrant.
On October 27, 2014, Dynegy Finance II, Inc., a Delaware corporation (the EquiPower Escrow Issuer), a wholly-owned subsidiary of the Company, issued $3.06 billion in aggregate principal amount of senior notes, the proceeds of which were placed into escrow until the consummation of the ECP Acquisitions. On the EquiPower Closing Date, the proceeds from the issuances were released from escrow and used to pay a portion of the ECP Acquisitions and to pay fees and expenses.
On the EquiPower Closing Date, the Company, as successor in interest to the EquiPower Escrow Issuer, executed a supplemental indenture, evidencing its accession to the $1,260,000,000 in aggregate principal amount of 6.75% senior notes due 2019 (the 2019 Notes) issued pursuant to the indenture, dated October 27, 2014, between the EquiPower Escrow Issuer and Wilmington Trust, National Association, as trustee (as amended or supplemented, the 2019 Notes Indenture). Interest is payable semiannually in arrears on May 1 and November 1 of each year, to the holders of record of 2019 Notes at the close of business on April 15 and October 15, respectively, immediately preceding such interest payment date. The first interest payment with respect to the 2019 Notes will be May 1, 2015. The 2019 Notes will be redeemable in whole or in part, at any time on or after May 1, 2017, upon not less than 30 nor more than 60 days notice, at the redemption prices (expressed as percentages of principal amount) set forth below, plus accrued and unpaid interest, if any, on the 2019 Notes redeemed, to but excluding the redemption date, if redeemed during the 12-month period beginning on May 1 of the years indicated below (subject to the rights of holders of the 2019 Notes on the relevant record date to receive interest on the relevant interest payment date):
Year |
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Percentage |
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2017 |
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103.375 |
% |
2018 |
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101.688 |
% |
2019 and thereafter |
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100.000 |
% |
At any time prior to May 1, 2017, up to 35% of the aggregate principal amount of the 2019 Notes may be redeemed upon not less than 30 nor more than 60 days notice, at a redemption price of 106.75% of the principal amount of the 2019 Notes redeemed, plus accrued and unpaid interest, if any, to but excluding the redemption date (subject to the rights of holders of the 2019 Notes on the relevant record date to receive interest due on the relevant interest payment date), with the proceeds of one or more Equity Offerings (as defined in the 2019 Notes Indenture); provided that: (1) at least 65% of the aggregate principal amount of the 2019 Notes issued on October 27, 2014 (excluding notes held by the Company and its subsidiaries) remain outstanding immediately after the occurrence of such redemption; and (2) the redemption occurs within 90 days of the date of the closing of such Equity Offering.
On the EquiPower Closing Date, the Company, as successor in interest to the EquiPower Escrow Issuer, executed a supplemental indenture, evidencing its accession to the $1,050,000,000 in aggregate principal amount of 7.375% senior notes due 2022 (the 2022 Notes) issued pursuant to the indenture, dated October 27, 2014, between the EquiPower Escrow Issuer and Wilmington Trust, National Association, as trustee (as amended or supplemented, the 2022 Notes Indenture). Interest is payable semiannually in arrears on May 1 and November 1 of each year, to the holders of record of 2022 Notes at the close of business on April 15 and October 15, respectively, immediately preceding such interest payment date. The first interest payment with respect to the 2022 Notes will be May 1, 2015. The 2022 Notes will be redeemable in whole or in part, at any time on or after November 1, 2018, upon not less than 30 nor more than 60 days notice, at the redemption prices (expressed as percentages of principal amount) set forth below, plus accrued and unpaid interest, if any, on the 2022 Notes redeemed, to but excluding the redemption date, if redeemed during the 12-month period beginning on November 1 of the years indicated below (subject to the rights of holders of the 2022 Notes on the relevant record date to receive interest on the relevant interest payment date):
Year |
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Percentage |
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2018 |
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103.688 |
% |
2019 |
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101.844 |
% |
2020 and thereafter |
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100.000 |
% |
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At any time prior to November 1, 2018, up to 35% of the aggregate principal amount of the 2022 Notes may be redeemed upon not less than 30 nor more than 60 days notice, at a redemption price of 107.375% of the principal amount of the 2022 Notes redeemed, plus accrued and unpaid interest, if any, to but excluding the redemption date (subject to the rights of holders of the 2022 Notes on the relevant record date to receive interest due on the relevant interest payment date), with the proceeds of one or more Equity Offerings (as defined in the 2022 Notes Indenture); provided that: (1) at least 65% of the aggregate principal amount of the 2022 Notes issued on October 27, 2014 (excluding notes held by the Company and its subsidiaries) remain outstanding immediately after the occurrence of such redemption; and (2) the redemption occurs within 90 days of the date of the closing of such Equity Offering.
On the EquiPower Closing Date, the Company, as successor in interest to the EquiPower Escrow Issuer, executed a supplemental indenture, evidencing its accession to the $750,000,000 in aggregate principal amount of 7.625% senior notes due 2024 (the 2024 Notes and, together with the 2019 Notes and the 2022 Notes, the Notes) issued pursuant to the indenture, dated October 27, 2014, between the EquiPower Escrow Issuer and Wilmington Trust, National Association, as trustee (as amended or supplemented, the 2024 Notes Indenture and, together with the 2019 Notes Indenture and the 2022 Notes Indenture, the Indentures and each an Indenture). The 2024 Notes bear interest at a rate of 7.625% per annum. Interest is payable semiannually in arrears on May 1 and November 1 of each year, to the holders of record of the 2024 Notes at the close of business on April 15 and October 15, respectively, immediately preceding such interest payment date. The first interest payment with respect to the 2024 Notes will be May 1, 2015. The 2024 Notes will be redeemable in whole or in part, at any time on or after November 1, 2019, upon not less than 30 nor more than 60 days notice, at the redemption prices (expressed as percentages of principal amount) set forth below, plus accrued and unpaid interest, if any, on the 2024 Notes redeemed, to but excluding the redemption date, if redeemed during the 12-month period beginning on November 1 of the years indicated below (subject to the rights of holders of the 2024 Notes on the relevant record date to receive interest on the relevant interest payment date):
Year |
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Percentage |
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2019 |
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103.813 |
% |
2020 |
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102.542 |
% |
2021 |
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101.271 |
% |
2022 and thereafter |
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100.000 |
% |
At any time prior to November 1, 2019, up to 35% of the aggregate principal amount of the 2024 Notes may be redeemed upon not less than 30 nor more than 60 days notice, at a redemption price of 107.625% of the principal amount of the 2024 Notes redeemed, plus accrued and unpaid interest, if any, to but excluding the redemption date (subject to the rights of holders of the 2024 Notes on the relevant record date to receive interest due on the relevant interest payment date), with the proceeds of one or more Equity Offerings (as defined in the 2024 Notes Indenture); provided that: (1) at least 65% of the aggregate principal amount of the 2024 Notes issued on October 27, 2014 (excluding notes held by the Company and its subsidiaries) remain outstanding immediately after the occurrence of such redemption; and (2) the redemption occurs within 90 days of the date of the closing of such Equity Offering.
The Company may also redeem the 2019 Notes, in whole or in part, at any time prior to May 1, 2017, the 2022 Notes, in whole or in part, at any time prior to November 1, 2018 and the 2024 Notes, in whole or in part, at any time prior to November 1, 2019, in each case, upon not less than 30 nor more than 60 days prior notice, at a redemption price equal to 100% of the principal amount of the Notes redeemed, plus the Applicable Premium (as defined in the applicable Indenture) as of, and accrued and unpaid interest, if any, to but excluding the redemption date, subject to the rights of holders of such Notes on the relevant record date to receive interest due on the relevant interest payment date.
The Notes are the Companys general unsecured obligations. On the EquiPower Closing Date, generally, each of the Companys current and future wholly-owned domestic subsidiaries that is a borrower or guarantor under the Companys existing credit facilities and the entities acquired in the ECP Acquisitions (collectively, the Subsidiary Guarantors) executed supplemental indentures evidencing their accession to the Notes as guarantors.
On the EquiPower Closing Date, the Company executed joinders to each of the three Unit Agreements, dated as of October 27, 2014, among the EquiPower Escrow Issuer, Dynegy Finance I, Inc. (the Duke Escrow Issuer) and Wilmington Trust, National Association, as unit agent (as amended or supplemented, the Unit Agreements and each a Unit Agreement), as a successor to the EquiPower Escrow Issuer. The Notes will continue to trade as part of the units, as contemplated in the applicable Unit Agreement.
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On the EquiPower Closing Date, the Company and the Subsidiary Guarantors executed a joinder to the registration rights agreement, dated October 27, 2014, among the EquiPower Escrow Issuer, the Duke Escrow Issuer, and Morgan Stanley & Co. LLC, Barclays Capital Inc., Credit Suisse Securities (USA) LLC, RBC Capital Markets, LLC and UBS Securities LLC as representatives of the initial purchasers identified therein (the Registration Rights Agreement). Pursuant to the Registration Rights Agreement, the Company has agreed for the benefit of the holders of the Notes to use commercially reasonable efforts to register with the Securities and Exchange Commission (the SEC) a new issue of each series of Notes having substantially identical terms as the applicable Notes (except for the provisions relating to the transfer restrictions and payment of special interest) as part of an offer to exchange freely tradable exchange notes for the Notes. Pursuant to the Registration Rights Agreement, the Company has agreed to use commercially reasonable efforts to cause a registration statement relating to such exchange offer to be declared effective on or prior to the later of (i) 360 days after October 27, 2014 and (ii) 180 days after the later of (x) the earlier of (1) the Duke Midwest Escrow Release Date (as defined in the Registration Rights Agreement) and (2) the Duke Midwest Assets Acquisition Deadline (as defined in the Registration Rights Agreement) and (y) the earlier of (1) the EquiPower Escrow Release Date (as defined in the Registration Rights Agreement) and (2) the EquiPower Acquisition Deadline (as defined in the Registration Rights Agreement). Further, pursuant to the Registration Rights Agreement, the Company has agreed to, if required under certain circumstances, file a shelf registration statement with the SEC covering resales of the applicable Notes.
If the Company fails to satisfy certain of its obligations under the Registration Rights Agreement (a Registration Default), it will be required to pay special interest on the applicable series of Notes equal to an additional 0.25% per annum of the principal amount of such Notes outstanding during the 90-day period immediately following the occurrence of such default. The amount of special interest will increase by an additional 0.25% per annum with respect to each subsequent 90-day period until such Registration Default is cured, up to a maximum amount of special interest for all Registration Defaults of 0.50% per annum of the principal amount of the Transfer Restricted Securities (as defined in the Registration Rights Agreement) outstanding.
Additionally, on the EquiPower Closing Date, the Company executed a second supplemental indenture adding the ECP Guarantors as guarantors of the $500,000,000 in aggregate principal amount of the 5.875% notes due 2023 (the 2023 Notes) issued pursuant to the indenture, dated May 20, 2013, among the Company, the Guarantors (as defined therein) and Wilmington Trust, National Association, as trustee.
The above description of the Notes is qualified in its entirety by reference to the full text of the Indentures governing the Notes, the Unit Agreements and the Registration Rights Agreement, which were previously filed by the Company on October 30, 2014, and are incorporated herein by reference. The above description of the supplemental indentures with respect to the Notes, joinders to the Unit Agreements and joinder to the Registration Rights Agreement are qualified in their entirety by the supplemental indentures with respect to the Notes, the joinders to the Unit Agreements and the joinder to the Registration Rights Agreement, copies of which are attached hereto as Exhibits 4.2, 4.4, 4.6, 4.8, 4.9, 4.11, 4.12, 4.14, 4.15 and 4.17, and incorporated by reference into this Item 2.03.
The above description of the addition of the ECP Guarantors to the 2023 Notes and the supplemental indenture with respect thereto is qualified in its entirety by reference to the full text of the indenture governing the 2023 Notes, which was previously filed by the Company on May 21, 2013 and the first supplemental indenture to the 2023 Notes, which was previously filed by the Company on February 27, 2014 and the second supplemental indenture to the 2023 Notes, a copy of which is attached hereto as Exhibit 4.20 and incorporated by reference into this Item 2.03.
The information regarding the First Amendment and the related agreements set forth under Item 1.01 is incorporated herein by reference.
Item 3.02 Unregistered Sales of Equity Securities
In connection with the consummation of the ECP Acquisitions, on April 1, 2015, the Company issued an aggregate of 3,460,053 shares of its common stock at a purchase price of $28.9013 per share for aggregate consideration of approximately $100 million as partial consideration for the ECP Acquisitions. The sales of these securities were deemed to be exempt from registration under the Securities Act of 1933, as amended (the Securities Act), in reliance upon Section 4(a)(2) of the Securities Act or Regulation D promulgated thereunder as a transaction by an issuer not involving any public offering. The recipients of securities in this transaction represented their intention to acquire the securities for investment only and not with a view to or for sale in connection with, any distribution thereof, and transfer was restricted in accordance with the requirements of the Securities Act (including by legending the securities). These securities were not convertible or exchangeable.
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Item 7.01 Regulation FD Disclosure
A copy of the press release issued by the Company on April 1, 2015 relating to the completion of the ECP Acquisitions is filed herewith as Exhibit 99.1 and incorporated herein by reference.
Pursuant to General Instruction B.2 of Form 8-K and SEC Release No. 33-8176, the information contained in the press release furnished as an exhibit hereto shall not be deemed filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, is not subject to the liabilities of that section and is not deemed incorporated by reference in any filing under the Securities Act except as shall be expressly set forth by specific reference in such a filing.
The press release contains statements intended as forward-looking statements which are subject to the cautionary statements about forward-looking statements set forth therein.
Item 9.01 Financial Statements and Exhibits.
(a) Financial Statements of Business Acquired
The financial statements required by Item 9.01(a) of Form 8-K, with respect to the EquiPower Acquisitions described in Item 2.01 herein, will be filed by amendment to this Current Report on Form 8-K not later than 71 calendar days after the date on which this Current Report on Form 8-K is required to be filed pursuant to Item 2.01.
(b) Pro Forma Financial Information
The pro forma financial information required by Item 9.01(b) of Form 8-K, with respect to the EquiPower Acquisitions described in Item 2.01 herein, will be filed by amendment to this Current Report on Form 8-K not later than 71 calendar days after the date on which this Current Report on Form 8-K is required to be filed pursuant to Item 2.01.
(d) Exhibits:
Exhibit No. |
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Document |
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*2.1 |
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Stock Purchase Agreement by and among Energy Capital Partners II, LP, Energy Capital Partners II-A, LP, Energy Capital Partners II-B, LP, Energy Capital Partners II-C (Direct IP), LP, Energy Capital Partners II-D, LP and Energy Capital Partners II (EquiPower Co-Invest), LP, Energy Capital Partners II-C, LP, for the limited purposes set forth therein, EquiPower Resources Corp., Dynegy Resource II, LLC, and Dynegy Inc., for the limited purposes set forth therein, dated as of August 21, 2014. (incorporated by reference to Exhibit 2.2 of Dynegy Inc.s Current Report on Form 8-K filed with the SEC on August 26, 2014) |
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*2.2 |
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Stock Purchase Agreement and Agreement and Plan of Merger by and among Energy Capital Partners GP II, LP, Energy Capital Partners II, LP, Energy Capital Partners II-A, LP, Energy Capital Partners II-B, LP, Energy Capital Partners II-D, LP, Energy Capital Partners II-C (Cayman), LP, Energy Capital Partners II-C, LP, for the limited purposes set forth therein, Brayton Point Holdings, LLC, Dynegy Resource III, LLC, Dynegy Resource III-A, LLC, and Dynegy Inc., for the limited purposes set forth therein, dated as of August 21, 2014. (incorporated by reference to Exhibit 2.3 of Dynegy Inc.s Current Report on Form 8-K filed with the SEC on August 26, 2014) |
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2.3 |
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Amendment to Stock Purchase Agreement, dated as of March 30, 2015, by and among Energy Capital Partners II, LP, Energy Capital Partners II-A, LP, Energy Capital Partners II-B, LP, Energy Capital Partners II-C (Direct IP), LP, Energy Capital Partners II-D, LP and Energy Capital Partners II (EquiPower Co-Invest), LP, Energy Capital Partners II-C, LP, for the limited purposes set forth therein, EquiPower Resources Corp., Dynegy Resource II, LLC, and Dynegy Inc., for the limited purposes set forth therein (incorporated by reference to Exhibit 2.1 of Dynegy Inc.s Current Report on Form 8-K filed with the SEC on April 1, 2015) |
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4.1 |
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2019 Unit Agreement, dated October 27, 2014, among Dynegy Finance I, Inc., Dynegy Finance II, Inc. and Wilmington Trust, National Association, as unit agent (incorporated by reference to Exhibit 4.1 to Dynegy Inc.s Current Report on Form 8-K filed with the SEC on October 30, 2014) |
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**4.2 |
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Joinder to the 2019 Unit Agreement, dated April 1, 2015, among Dynegy Inc., Dynegy Finance I, Inc. and Wilmington Trust, National Association, as unit agent |
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4.3 |
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2022 Unit Agreement, dated October 27, 2014, among Dynegy Finance I, Inc., Dynegy Finance II, Inc. and Wilmington Trust, National Association, as unit agent (incorporated by reference to Exhibit 4.2 to Dynegy Inc.s Current Report on Form 8-K filed with the SEC on October 30, 2014) |
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**4.4 |
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Joinder to the 2022 Unit Agreement, dated April 1, 2015, among Dynegy Inc., Dynegy Finance I, Inc. and Wilmington Trust, National Association, as unit agent |
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4.5 |
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2024 Unit Agreement, dated October 27, 2014, among Dynegy Finance I, Inc., Dynegy Finance II, Inc. and Wilmington Trust, National Association, as unit agent (incorporated by reference to Exhibit 4.3 to Dynegy Inc.s Current Report on Form 8-K filed with the SEC on October 30, 2014) |
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**4.6 |
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Joinder to the 2024 Unit Agreement, dated April 1, 2015, among Dynegy Inc., Dynegy Finance I, Inc. and Wilmington Trust, National Association, as unit agent |
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4.7 |
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2019 Notes Indenture, dated October 27, 2014, among Dynegy Finance II, Inc. and Wilmington Trust, National Association, as trustee (incorporated by reference to Exhibit 4.7 to Dynegy Inc.s Current Report on Form 8-K filed with the SEC on October 30, 2014) |
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**4.8 |
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First Supplemental Indenture to the 2019 Notes Indenture, dated April 1, 2015, between Dynegy Inc. and Wilmington Trust, National Association, as trustee, pursuant to which the Company assumes the obligations of the EquiPower Escrow Issuer under the 2019 Notes Indenture |
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**4.9 |
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Second Supplemental Indenture to the 2019 Notes Indenture, dated April 1, 2015, among Dynegy Inc., the Subsidiary Guarantors (as defined therein) and Wilmington Trust, National Association, as trustee, pursuant to which the Subsidiary Guarantors are added to the 2019 Notes Indenture. |
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4.10 |
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2022 Notes Indenture, dated October 27, 2014, among Dynegy Finance II, Inc. and Wilmington Trust, National Association, as trustee (incorporated by reference to Exhibit 4.8 to Dynegy Inc.s Current Report on Form 8-K filed with the SEC on October 30, 2014) |
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**4.11 |
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First Supplemental Indenture to the 2022 Notes Indenture, dated April 1, 2015, between Dynegy Inc. and Wilmington Trust, National Association, as trustee, pursuant to which the Company assumes the obligations of the EquiPower Escrow Issuer under the 2022 Notes Indenture |
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**4.12 |
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Second Supplemental Indenture to the 2022 Notes Indenture, dated April 1, 2015, among Dynegy Inc., the Subsidiary Guarantors (as defined therein) and Wilmington Trust, National Association, as trustee, pursuant to which the Subsidiary Guarantors are added to the 2022 Notes Indenture |
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4.13 |
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2024 Notes Indenture, dated October 27, 2014, among Dynegy Finance II, Inc. and Wilmington Trust, National Association, as trustee (incorporated by reference to Exhibit 4.9 to Dynegy Inc.s Current Report on Form 8-K filed with the SEC on October 30, 2014) |
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**4.14 |
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First Supplemental Indenture to the 2024 Notes Indenture, dated April 1, 2015, between Dynegy Inc. and Wilmington Trust, National Association, as trustee, pursuant to which the Company assumes the obligations of the EquiPower Escrow Issuer under the 2024 Notes Indenture |
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**4.15 |
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Second Supplemental Indenture to the 2024 Notes Indenture, dated April 1, 2015, among Dynegy Inc., the Subsidiary Guarantors (as defined therein) and Wilmington Trust, National Association, as trustee, pursuant to which the Subsidiary Guarantors are added to the 2024 Notes Indenture |
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4.16 |
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Registration Rights Agreement, dated October 27, 2014, among Dynegy Finance I, Inc., Dynegy Finance II, Inc. and Morgan Stanley & Co. LLC, Barclays Capital Inc., Credit Suisse Securities (USA) LLC, RBC Capital Markets, LLC and UBS Securities LLC as representatives of the initial purchasers identified therein (incorporated by reference to Exhibit 4.10 to Dynegy Inc.s Current Report on Form 8-K filed with the SEC on October 30, 2014) |
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**4.17 |
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Joinder to the Registration Rights Agreement, dated April 1, 2015, among Dynegy Inc. and the subsidiary guarantors identified therein |
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4.18 |
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2023 Notes Indenture, dated May 20, 2013, among Dynegy Inc., the Guarantors and Wilmington Trust, National Association as Trustee (5.875% Senior Notes due 2023) (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K of Dynegy Inc. filed on May 21, 2013 File No. 001-33443) |
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4.19 |
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First Supplemental Indenture to the 2023 Notes Indenture, dated as of December 5, 2014, among Dynegy Inc., the Guarantors and Wilmington Trust, National Association as Trustee (incorporated by reference to Exhibit 4.3 to the Annual Report on Form 10-K for the Year Ended December 31, 2013 of Dynegy Inc. File No. 001-33443) |
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**4.20 |
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Second Supplemental Indenture to the 2023 Notes Indenture, dated April 1, 2015, among Dynegy Inc., the Subsidiary Guarantors (as defined therein) and Wilmington Trust, National Association, as trustee, pursuant to which the Subsidiary Guarantors are added to the 2023 Notes Indenture |
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10.1 |
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Credit Agreement, dated as of April 23, 2013, among Dynegy Inc., as borrower and the guarantors, lenders and other parties thereto. (incorporated by reference to Exhibit 10.1 to Dynegy Inc.s Current Report on Form 8-K filed with the SEC on April 24, 2013) |
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10.2 |
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Guarantee and Collateral Agreement, dated as of April 23, 2013 among Dynegy Inc., the subsidiaries of the borrower from time to time party thereto and Credit Suisse AG, Cayman Islands Branch, as Collateral Trustee. (incorporated by reference to Exhibit 10.2 to Dynegy Inc.s Current Report on Form 8-K filed with the SEC on April 24, 2013) |
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10.3 |
|
Collateral Trust and Intercreditor Agreement, dated as of April 23, 2013 among Dynegy, the Subsidiary Guarantors (as defined therein), Credit Suisse AG, Cayman Islands Branch and each person party thereto from time to time. (incorporated by reference to Exhibit 10.3 to Dynegy Inc.s Current Report on Form 8-K filed with the SEC on April 24, 2013) |
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|
|
**10.4 |
|
First Amendment to Credit Agreement, dated as of April 1, 2015, among Dynegy Inc., as borrower, and the guarantors, lenders and other parties thereto |
|
|
|
**99.1 |
|
Press Release issued by Dynegy Inc. on April 1, 2015, announcing the closing of the EquiPower Acquisitions. |
* Pursuant to Item 601(b)(2) of Regulation S-K exhibits and schedules are omitted. Dynegy agrees to furnish supplementally to the SEC a copy of any omitted schedule or exhibit upon request by the Commission.
** Filed herewith
8
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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DYNEGY INC. |
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(Registrant) |
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Dated: April 7, 2015 |
By: |
/s/ Catherine B. Callaway |
|
Name: |
Catherine B. Callaway |
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Title: |
Executive Vice President, Chief Compliance Officer and General Counsel |
9
EXHIBIT INDEX
Exhibit No. |
|
Document |
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*2.1 |
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Stock Purchase Agreement by and among Energy Capital Partners II, LP, Energy Capital Partners II-A, LP, Energy Capital Partners II-B, LP, Energy Capital Partners II-C (Direct IP), LP, Energy Capital Partners II-D, LP and Energy Capital Partners II (EquiPower Co-Invest), LP, Energy Capital Partners II-C, LP, for the limited purposes set forth therein, EquiPower Resources Corp., Dynegy Resource II, LLC, and Dynegy Inc., for the limited purposes set forth therein, dated as of August 21, 2014. (incorporated by reference to Exhibit 2.2 of Dynegy Inc.s Current Report on Form 8-K filed with the SEC on August 26, 2014) |
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|
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*2.2 |
|
Stock Purchase Agreement and Agreement and Plan of Merger by and among Energy Capital Partners GP II, LP, Energy Capital Partners II, LP, Energy Capital Partners II-A, LP, Energy Capital Partners II-B, LP, Energy Capital Partners II-D, LP, Energy Capital Partners II-C (Cayman), LP, Energy Capital Partners II-C, LP, for the limited purposes set forth therein, Brayton Point Holdings, LLC, Dynegy Resource III, LLC, Dynegy Resource III-A, LLC, and Dynegy Inc., for the limited purposes set forth therein, dated as of August 21, 2014. (incorporated by reference to Exhibit 2.3 of Dynegy Inc.s Current Report on Form 8-K filed with the SEC on August 26, 2014) |
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2.3 |
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Amendment to Stock Purchase Agreement, dated as of March 30, 2015, by and among Energy Capital Partners II, LP, Energy Capital Partners II-A, LP, Energy Capital Partners II-B, LP, Energy Capital Partners II-C (Direct IP), LP, Energy Capital Partners II-D, LP and Energy Capital Partners II (EquiPower Co-Invest), LP, Energy Capital Partners II-C, LP, for the limited purposes set forth therein, EquiPower Resources Corp., Dynegy Resource II, LLC, and Dynegy Inc., for the limited purposes set forth therein (incorporated by reference to Exhibit 2.1 of Dynegy Inc.s Current Report on Form 8-K filed with the SEC on April 1, 2015) |
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|
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4.1 |
|
2019 Unit Agreement, dated October 27, 2014, among Dynegy Finance I, Inc., Dynegy Finance II, Inc. and Wilmington Trust, National Association, as unit agent (incorporated by reference to Exhibit 4.1 to Dynegy Inc.s Current Report on Form 8-K filed with the SEC on October 30, 2014) |
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|
|
**4.2 |
|
Joinder to the 2019 Unit Agreement, dated April 1, 2015, among Dynegy Inc., Dynegy Finance I, Inc. and Wilmington Trust, National Association, as unit agent |
|
|
|
4.3 |
|
2022 Unit Agreement, dated October 27, 2014, among Dynegy Finance I, Inc., Dynegy Finance II, Inc. and Wilmington Trust, National Association, as unit agent (incorporated by reference to Exhibit 4.2 to Dynegy Inc.s Current Report on Form 8-K filed with the SEC on October 30, 2014) |
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|
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**4.4 |
|
Joinder to the 2022 Unit Agreement, dated April 1, 2015, among Dynegy Inc., Dynegy Finance I, Inc. and Wilmington Trust, National Association, as unit agent |
|
|
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4.5 |
|
2024 Unit Agreement, dated October 27, 2014, among Dynegy Finance I, Inc., Dynegy Finance II, Inc. and Wilmington Trust, National Association, as unit agent (incorporated by reference to Exhibit 4.3 to Dynegy Inc.s Current Report on Form 8-K filed with the SEC on October 30, 2014) |
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|
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**4.6 |
|
Joinder to the 2024 Unit Agreement, dated April 1, 2015, among Dynegy Inc., Dynegy Finance I, Inc. and Wilmington Trust, National Association, as unit agent |
|
|
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4.7 |
|
2019 Notes Indenture, dated October 27, 2014, among Dynegy Finance II, Inc. and Wilmington Trust, National Association, as trustee (incorporated by reference to Exhibit 4.7 to Dynegy Inc.s Current Report on Form 8-K filed with the SEC on October 30, 2014) |
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**4.8 |
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First Supplemental Indenture to the 2019 Notes Indenture, dated April 1, 2015, between Dynegy Inc. and Wilmington Trust, National Association, as trustee, pursuant to which the Company assumes the obligations of the EquiPower Escrow Issuer under the 2019 Notes Indenture |
10
**4.9 |
|
Second Supplemental Indenture to the 2019 Notes Indenture, dated April 1, 2015, among Dynegy Inc., the Subsidiary Guarantors (as defined therein) and Wilmington Trust, National Association, as trustee, pursuant to which the Subsidiary Guarantors are added to the 2019 Notes Indenture. |
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|
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4.10 |
|
2022 Notes Indenture, dated October 27, 2014, among Dynegy Finance II, Inc. and Wilmington Trust, National Association, as trustee (incorporated by reference to Exhibit 4.8 to Dynegy Inc.s Current Report on Form 8-K filed with the SEC on October 30, 2014) |
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|
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**4.11 |
|
First Supplemental Indenture to the 2022 Notes Indenture, dated April 1, 2015, between Dynegy Inc. and Wilmington Trust, National Association, as trustee, pursuant to which the Company assumes the obligations of the EquiPower Escrow Issuer under the 2022 Notes Indenture |
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|
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**4.12 |
|
Second Supplemental Indenture to the 2022 Notes Indenture, dated April 1, 2015, among Dynegy Inc., the Subsidiary Guarantors (as defined therein) and Wilmington Trust, National Association, as trustee, pursuant to which the Subsidiary Guarantors are added to the 2022 Notes Indenture |
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|
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4.13 |
|
2024 Notes Indenture, dated October 27, 2014, among Dynegy Finance II, Inc. and Wilmington Trust, National Association, as trustee (incorporated by reference to Exhibit 4.9 to Dynegy Inc.s Current Report on Form 8-K filed with the SEC on October 30, 2014) |
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|
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**4.14 |
|
First Supplemental Indenture to the 2024 Notes Indenture, dated April 1, 2015, between Dynegy Inc. and Wilmington Trust, National Association, as trustee, pursuant to which the Company assumes the obligations of the EquiPower Escrow Issuer under the 2024 Notes Indenture |
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|
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**4.15 |
|
Second Supplemental Indenture to the 2024 Notes Indenture, dated April 1, 2015, among Dynegy Inc., the Subsidiary Guarantors (as defined therein) and Wilmington Trust, National Association, as trustee, pursuant to which the Subsidiary Guarantors are added to the 2024 Notes Indenture |
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|
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4.16 |
|
Registration Rights Agreement, dated October 27, 2014, among Dynegy Finance I, Inc., Dynegy Finance II, Inc. and Morgan Stanley & Co. LLC, Barclays Capital Inc., Credit Suisse Securities (USA) LLC, RBC Capital Markets, LLC and UBS Securities LLC as representatives of the initial purchasers identified therein (incorporated by reference to Exhibit 4.10 to Dynegy Inc.s Current Report on Form 8-K filed with the SEC on October 30, 2014) |
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**4.17 |
|
Joinder to the Registration Rights Agreement, dated April 1, 2015, among Dynegy Inc. and the subsidiary guarantors identified therein |
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4.18 |
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2023 Notes Indenture, dated May 20, 2013, among Dynegy Inc., the Guarantors and Wilmington Trust, National Association as Trustee (5.875% Senior Notes due 2023) (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K of Dynegy Inc. filed on May 21, 2013 File No. 001-33443) |
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|
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4.19 |
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First Supplemental Indenture to the 2023 Notes Indenture, dated as of December 5, 2014, among Dynegy Inc., the Guarantors and Wilmington Trust, National Association as Trustee (incorporated by reference to Exhibit 4.3 to the Annual Report on Form 10-K for the Year Ended December 31, 2013 of Dynegy Inc. File No. 001-33443) |
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**4.20 |
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Second Supplemental Indenture to the 2023 Notes Indenture, dated April 1, 2015, among Dynegy Inc., the Subsidiary Guarantors (as defined therein) and Wilmington Trust, National Association, as trustee, pursuant to which the Subsidiary Guarantors are added to the 2023 Notes Indenture |
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|
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10.1 |
|
Credit Agreement, dated as of April 23, 2013, among Dynegy Inc., as borrower and the guarantors, lenders and other parties thereto. (incorporated by reference to Exhibit 10.1 to Dynegy Inc.s Current Report on Form 8-K filed with the SEC on April 24, 2013) |
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|
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10.2 |
|
Guarantee and Collateral Agreement, dated as of April 23, 2013 among Dynegy Inc., the subsidiaries of the borrower from time to time party thereto and Credit Suisse AG, Cayman Islands Branch, as Collateral Trustee. (incorporated by |
11
|
|
reference to Exhibit 10.2 to Dynegy Inc.s Current Report on Form 8-K filed with the SEC on April 24, 2013) |
|
|
|
10.3 |
|
Collateral Trust and Intercreditor Agreement, dated as of April 23, 2013 among Dynegy, the Subsidiary Guarantors (as defined therein), Credit Suisse AG, Cayman Islands Branch and each person party thereto from time to time. (incorporated by reference to Exhibit 10.3 to Dynegy Inc.s Current Report on Form 8-K filed with the SEC on April 24, 2013) |
|
|
|
**10.4 |
|
First Amendment to Credit Agreement, dated as of April 1, 2015, among Dynegy Inc., as borrower, and the guarantors, lenders and other parties thereto |
|
|
|
**99.1 |
|
Press Release issued by Dynegy Inc. on April 1, 2015, announcing the closing of the EquiPower Acquisitions |
* Pursuant to Item 601(b)(2) of Regulation S-K exhibits and schedules are omitted. Dynegy agrees to furnish supplementally to the SEC a copy of any omitted schedule or exhibit upon request by the Commission.
** Filed herewith
12
Exhibit 4.2
2019 Notes Unit Agreement Joinder
April 1, 2015
Dynegy Inc., a Delaware corporation (the Company) hereby agrees as successor in interest to Dynegy Finance II, Inc., a Delaware corporation (Finance II), to be bound by the terms and provisions attributable to an Issuer of the Unit Agreement, dated as of October 27, 2014 (as amended, restated, supplemented or otherwise modified from time to time, the 2019 Notes Unit Agreement), among Finance II, Dynegy Finance I, Inc. and Wilmington Trust, National Association, as Unit Agent, and to assume and be bound to perform all obligations of an Issuer thereunder. By executing and delivering this Unit Agreement Joinder, the Company hereby becomes a party to the 2019 Notes Unit Agreement as an Issuer thereunder. Unless the context otherwise requires, all references to Finance II in the 2019 Notes Unit Agreement shall refer to the Company.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the undersigned has executed this counterpart as of the date first set forth above.
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Dynegy Inc., as an Issuer |
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By: |
/s/ Robert C. Flexon |
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|
Name: |
Robert C. Flexon |
|
|
Title: |
President & Chief Executive Officer |
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|
Dynegy Finance I, Inc., as an Issuer |
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By: |
/s/ Clint C. Freeland |
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|
Name: |
Clint C. Freeland |
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|
Title: |
Executive Vice President & Chief Financial Officer |
Exhibit 4.4
2022 Notes Unit Agreement Joinder
April 1, 2015
Dynegy Inc., a Delaware corporation (the Company) hereby agrees as successor in interest to Dynegy Finance II, Inc., a Delaware corporation (Finance II), to be bound by the terms and provisions attributable to an Issuer of the Unit Agreement, dated as of October 27, 2014 (as amended, restated, supplemented or otherwise modified from time to time, the 2022 Notes Unit Agreement), among Finance II, Dynegy Finance I, Inc. and Wilmington Trust, National Association, as Unit Agent, and to assume and be bound to perform all obligations of an Issuer thereunder. By executing and delivering this Unit Agreement Joinder, the Company hereby becomes a party to the 2022 Notes Unit Agreement as an Issuer thereunder. Unless the context otherwise requires, all references to Finance II in the 2022 Notes Unit Agreement shall refer to the Company.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the undersigned has executed this counterpart as of the date first set forth above.
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Dynegy Inc., as an Issuer |
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By: |
/s/ Robert C. Flexon |
|
|
Name: |
Robert C. Flexon |
|
|
Title: |
President & Chief Executive Officer |
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|
|
|
Dynegy Finance I, Inc., as an Issuer |
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|
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By: |
/s/ Clint C. Freeland |
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|
Name: |
Clint C. Freeland |
|
|
Title: |
Executive Vice President & Chief Financial Officer |
Exhibit 4.6
2024 Notes Unit Agreement Joinder
April 1, 2015
Dynegy Inc., a Delaware corporation (the Company) hereby agrees as successor in interest to Dynegy Finance II, Inc., a Delaware corporation (Finance II), to be bound by the terms and provisions attributable to an Issuer of the Unit Agreement, dated as of October 27, 2014 (as amended, restated, supplemented or otherwise modified from time to time, the 2024 Notes Unit Agreement), among Finance II, Dynegy Finance I, Inc. and Wilmington Trust, National Association, as Unit Agent, and to assume and be bound to perform all obligations of an Issuer thereunder. By executing and delivering this Unit Agreement Joinder, the Company hereby becomes a party to the 2024 Notes Unit Agreement as an Issuer thereunder. Unless the context otherwise requires, all references to Finance II in the 2024 Notes Unit Agreement shall refer to the Company.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the undersigned has executed this counterpart as of the date first set forth above.
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|
Dynegy Inc., as an Issuer |
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|
|
|
|
|
|
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By: |
/s/ Robert C. Flexon |
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|
|
Name: |
Robert C. Flexon |
|
|
|
Title: |
President & Chief Executive Officer |
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|
|
|
|
|
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|
Dynegy Finance I, Inc., as an Issuer |
|
|
|
|
|
|
|
|
By: |
/s/ Clint C. Freeland |
|
|
|
Name: |
Clint C. Freeland |
|
|
|
Title: |
Executive Vice President & Chief |
|
|
|
Financial Officer |
Exhibit 4.8
FIRST SUPPLEMENTAL INDENTURE
TO BE DELIVERED IN CONNECTION WITH THE EQUIPOWER ACQUISITION
FIRST SUPPLEMENTAL INDENTURE (this Supplemental Indenture), dated as of April 1, 2015, between Dynegy Inc., a Delaware corporation (the Successor) and Wilmington Trust, National Association, as trustee under the indenture referred to below (the Trustee). Unless otherwise defined in this Supplemental Indenture, capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture (as defined below).
W I T N E S S E T H
WHEREAS, Dynegy Finance II, Inc. (Finance II) has heretofore executed and delivered to the Trustee an indenture (the Indenture), dated as of October 27, 2014, between Finance II and the Trustee, providing for the original issuance of an aggregate principal amount of $1,260,000,000 of 6.75% Senior Notes due 2019 (the Initial Notes) and, subject to the terms of the Indenture, future unlimited issuances of 6.75% Senior Notes due 2019 (the Additional Notes, and together with the Initial Notes, the Notes);
WHEREAS, the Successor has filed with the Secretary of State of the State of Delaware a Certificate of Ownership and Merger, dated as of April 1, 2015, which provides for the merger of Finance II with and into the Successor (the Merger), with the Successor continuing its corporate existence under the laws of the State of Delaware as the surviving company of the Merger;
WHEREAS, Section 5.01 of the Indenture provides, among other things, that Finance II may consolidate or merge with or into another Person; provided that, among other things, the Person formed by or surviving any such consolidation or merger (if other than Finance II) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of Finance II under the Indenture, the Notes and the Registration Rights Agreement pursuant to documents in such form as are reasonably satisfactory to the Trustee;
WHEREAS, Section 9.01 of the Indenture provides, among other things, that the Indenture and Notes may be amended or supplemented without the consent of any Holder to provide for the assumption of Finance IIs obligations to Holders of Notes in the case of a merger or consolidation or sale of all or substantially all of Finance IIs assets; and
WHEREAS, the Successor desires and has requested that the Trustee join in the execution of this Supplemental Indenture for the purpose of evidencing such assumption by the Successor;
NOW THEREFORE, in consideration of the foregoing and for good and valuable consideration, the receipt of which is hereby acknowledged, the Trustee and the Successor mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
ARTICLE 1
ASSUMPTION AND AGREEMENTS
Section 1.1. The Successor hereby, in accordance with the terms and conditions of the Indenture, assumes the due and punctual payment of the principal of, premium, if any, and interest and Special Interest, if any, on the Notes, and the due and punctual performance and observance of all other covenants, conditions and other obligations contained in the Indenture, the Notes and the Registration Rights Agreement on the part of Finance II to be performed or observed.
Section 1.2. The Successor shall succeed to, and be substituted for, and may exercise every right and power of, Finance II under the Indenture and the Notes, with the same effect as if the Successor had been named as the Company therein.
ARTICLE 2
MISCELLANEOUS
Section 2.1. NEW YORK LAW TO GOVERN. THE INDENTURE, THIS SUPPLEMENTAL INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 2.2. Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
Section 2.3. Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
Section 2.4. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Successor.
Section 2.5. Ratification of Indenture; Supplemental Indenture Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
Dated: April 1, 2015
|
DYNEGY INC. |
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|
|
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By: |
/s/ Robert C. Flexon |
|
Name: |
Robert C. Flexon |
|
Title: |
President & Chief Executive Officer |
|
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|
WILMINGTON TRUST, NATIONAL ASSOCIATION, |
|
as Trustee |
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By: |
/s/ Boris Treyger |
|
Title: |
Authorized Signatory |
Exhibit 4.9
SECOND SUPPLEMENTAL INDENTURE
SUBSIDIARY GUARANTEES
SECOND SUPPLEMENTAL INDENTURE (this Supplemental Indenture), dated as of April 1, 2015, among the Subsidiary Guarantors listed on Schedule I hereto (the Guaranteeing Subsidiaries), each a wholly-owned domestic subsidiary of Dynegy Inc. (or its permitted successor), a Delaware corporation (the Company), the Company, and Wilmington Trust, National Association, as trustee under the indentures referred to below (the Trustee).
W I T N E S S E T H
WHEREAS, the Company (as successor by merger to Dynegy Finance II, Inc.) has heretofore executed and delivered to the Trustee an indenture (as supplemented, the Indenture), dated as of October 27, 2014, between the Company and the Trustee, providing for the original issuance of an aggregate principal amount of $1,260,000,000 of 6.75% Senior Notes due 2019 (the Initial Notes) and, subject to the terms of the Indenture, future unlimited issuances of 6.75% Senior Notes due 2019 (the Additional Notes, and together with the Initial Notes, the Notes);
WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiaries shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiaries shall unconditionally guarantee all of the Companys Obligations under the Notes and the Indenture (the Subsidiary Guarantees); and
WHEREAS, pursuant to Section 4.07 of the Indenture, the Trustee, the Company and the other Subsidiary Guarantors are authorized and required to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for good and valuable consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiaries, the Trustee, the Company and the other Subsidiary Guarantors mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. Capitalized Terms. Unless otherwise defined in this Supplemental Indenture, capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. Agreement to be Bound; Guarantee. Each of the Guaranteeing Subsidiaries hereby become a party to the Indenture as a Subsidiary Guarantor and as such will have all of the rights and be subject to all of the Obligations and agreements of a Subsidiary Guarantor under the Indenture. Each of the Guaranteeing Subsidiaries hereby agree to be bound by all of the provisions of the Indenture applicable to a Subsidiary Guarantor and to perform all of the Obligations and agreements of a Subsidiary Guarantor under the Indenture. In furtherance of the foregoing, each of the Guaranteeing Subsidiaries shall be deemed a Subsidiary Guarantor for purposes of Article 10 of the Indenture, including, without limitation, Section 10.02 thereof.
3. NEW YORK LAW TO GOVERN. THE INDENTURE, THE NOTES, THIS SUPPLEMENTAL INDENTURE AND THE SUBSIDIARY GUARANTEES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
4. Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
5. Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
6. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiaries and the Company.
7. Ratification of Indenture; Supplemental Indenture Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions
1
thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.
[Signature Page Follows]
2
IN WITNESS WHEREOF, we have hereunto signed our names as of the date set forth below.
Dated: |
April 1, 2015 |
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DYNEGY INC. |
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By: |
/s/ Robert C. Flexon |
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Name: |
Robert C. Flexon |
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Title: |
President & Chief Executive Officer |
[SIGNATURE PAGES CONTINUE]
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EQUIPOWER RESOURCES CORP. |
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DYNEGY RESOURCE II, LLC |
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DYNEGY RESOURCE III, 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 GENERATING HOLDCO, LLC |
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RICHLAND GENERATION EXPANSION LLC |
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MILFORD POWER COMPANY, LLC |
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LAKE ROAD HOLDINGS GP, LLC |
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LAKE ROAD HOLDINGS LP, LLC |
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LAKE ROAD GENERATING COMPANY, L.P. |
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RSG POWER, LLC |
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RICHLAND-STRYKER GENERATION, LLC |
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DYNEGY RESOURCES MANAGEMENT, LLC |
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DIGHTON 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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MASSPOWER |
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LIBERTY ELECTRIC GENERATION HOLDINGS, LLC |
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LEP HOLDINGS, LLC |
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LIBERTY ELECTRIC PA 2, LLC |
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LIBERTY ELECTRIC POWER, LLC |
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TOMCAT POWER, LLC |
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KINCAID HOLDINGS, LLC |
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KINCAID GENERATION, L.L.C. |
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KINCAID ENERGY SERVICES COMPANY, LLC |
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ELWOOD EXPANSION HOLDINGS, LLC |
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ELWOOD ENERGY HOLDINGS, LLC |
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ELWOOD SERVICES COMPANY, LLC |
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ELWOOD ENERGY HOLDINGS II, LLC |
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BRAYTON POINT HOLDINGS, LLC |
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ECP II-B (BRAYTON POINT IP) CORP |
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ECP II-C (BRAYTON POINT IP) CORP |
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By: |
/s/ Robert C. Flexon |
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Name: |
Robert C. Flexon |
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Title: |
President & Chief Executive Officer |
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DYNEGY ENERGY SERVICES, LLC |
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By: |
/s/ Robert C. Flexon |
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Name: |
Robert C. Flexon |
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Title: |
Chief Executive Officer |
[SIGNATURE PAGES CONTINUE]
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BLUE RIDGE GENERATION LLC |
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BLACK MOUNTAIN COGEN, INC. |
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CASCO BAY ENERGY COMPANY, LLC |
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DYNEGY ADMINISTRATIVE SERVICES COMPANY |
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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 EQUIPMENT, LLC |
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DYNEGY GASCO HOLDINGS, LLC |
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DYNEGY GAS HOLDCO, LLC |
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DYNEGY GAS IMPORTS, LLC |
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DYNEGY GAS INVESTMENTS, LLC |
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DYNEGY GAS INVESTMENTS HOLDINGS, LLC |
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DYNEGY GLOBAL LIQUIDS, INC. |
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DYNEGY KENDALL ENERGY, LLC |
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DYNEGY MARKETING AND TRADE, LLC |
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DYNEGY MIDWEST GENERATION, LLC |
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DYNEGY MORRO BAY, LLC |
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DYNEGY MOSS LANDING, LLC |
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DYNEGY OAKLAND, LLC |
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DYNEGY OPERATING COMPANY |
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DYNEGY POWER, LLC |
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DYNEGY POWER GENERATION INC. |
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DYNEGY POWER MARKETING, LLC |
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DYNEGY SOUTH BAY, LLC |
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HAVANA DOCK ENTERPRISES, LLC |
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ILLINOVA CORPORATION |
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ONTELAUNEE POWER OPERATING COMPANY, LLC |
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SITHE ENERGIES, INC. |
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SITHE/INDEPENDENCE LLC |
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By: |
/s/ Robert C. Flexon |
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Name: |
Robert C. Flexon |
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Title: |
President & Chief Executive Officer |
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WILMINGTON TRUST, NATIONAL ASSOCIATION, |
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as Trustee |
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By: |
/s/ Boris Treyger |
|
Name: |
Boris Treyger |
|
Title: |
Vice President |
SCHEDULE I
SUBSIDIARY GUARANTORS
EQUIPOWER RESOURCES CORP.
DYNEGY RESOURCE II, LLC
DYNEGY RESOURCE III, LLC
DYNEGY RESOURCES HOLDCO I, LLC
DYNEGY RESOURCES HOLDCO II, LLC
DYNEGY RESOURCES GENERATING HOLDCO, LLC
RICHLAND GENERATION EXPANSION LLC
MILFORD POWER COMPANY, LLC
LAKE ROAD HOLDINGS GP, LLC
LAKE ROAD HOLDINGS LP, LLC
LAKE ROAD GENERATING COMPANY, L.P.
RSG POWER, LLC
RICHLAND-STRYKER GENERATION, LLC
DYNEGY RESOURCES MANAGEMENT, LLC
DIGHTON POWER, LLC
MASSPOWER HOLDCO, LLC
MASSPOWER PARTNERS I, LLC
MASSPOWER PARTNERS II, LLC
MASSPOWER
LIBERTY ELECTRIC GENERATION HOLDINGS, LLC
LEP HOLDINGS, LLC
LIBERTY ELECTRIC PA 2, LLC
LIBERTY ELECTRIC POWER, LLC
TOMCAT POWER, LLC
KINCAID HOLDINGS, LLC
KINCAID GENERATION, L.L.C.
KINCAID ENERGY SERVICES COMPANY, LLC
ELWOOD EXPANSION HOLDINGS, LLC
ELWOOD ENERGY HOLDINGS, LLC
ELWOOD SERVICES COMPANY, LLC
ELWOOD ENERGY HOLDINGS II, LLC
BRAYTON POINT HOLDINGS, LLC
ECP II-B (BRAYTON POINT IP) CORP
ECP II-C (BRAYTON POINT IP) CORP
DYNEGY ENERGY SERVICES, LLC
BLUE RIDGE GENERATION LLC
BLACK MOUNTAIN COGEN, INC.
CASCO BAY ENERGY COMPANY, LLC
DYNEGY ADMINISTRATIVE SERVICES COMPANY
DYNEGY COAL HOLDCO, LLC
DYNEGY COAL INVESTMENTS HOLDINGS, LLC
DYNEGY COAL TRADING & TRANSPORTATION, L.L.C.
DYNEGY EQUIPMENT, LLC
DYNEGY GASCO HOLDINGS, LLC
DYNEGY GAS HOLDCO, LLC
DYNEGY GAS IMPORTS, LLC
DYNEGY GAS INVESTMENTS, LLC
DYNEGY GAS INVESTMENTS HOLDINGS, LLC
DYNEGY GLOBAL LIQUIDS, INC.
DYNEGY KENDALL ENERGY, LLC
Schedule I continues on next page
DYNEGY MARKETING AND TRADE, LLC
DYNEGY MIDWEST GENERATION, LLC
DYNEGY MORRO BAY, LLC
DYNEGY MOSS LANDING, LLC
DYNEGY OAKLAND, LLC
DYNEGY OPERATING COMPANY
DYNEGY POWER, LLC
DYNEGY POWER GENERATION INC.
DYNEGY POWER MARKETING, LLC
DYNEGY SOUTH BAY, LLC
HAVANA DOCK ENTERPRISES, LLC
ILLINOVA CORPORATION
ONTELAUNEE POWER OPERATING COMPANY, LLC
SITHE ENERGIES, INC.
SITHE/INDEPENDENCE LLC
Exhibit 4.11
FIRST SUPPLEMENTAL INDENTURE
TO BE DELIVERED IN CONNECTION WITH THE EQUIPOWER ACQUISITION
FIRST SUPPLEMENTAL INDENTURE (this Supplemental Indenture), dated as of April 1, 2015, between Dynegy Inc., a Delaware corporation (the Successor) and Wilmington Trust, National Association, as trustee under the indenture referred to below (the Trustee). Unless otherwise defined in this Supplemental Indenture, capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture (as defined below).
W I T N E S S E T H
WHEREAS, Dynegy Finance II, Inc. (Finance II) has heretofore executed and delivered to the Trustee an indenture (the Indenture), dated as of October 27, 2014, between Finance II and the Trustee, providing for the original issuance of an aggregate principal amount of $1,050,000,000 of 7.375% Senior Notes due 2022 (the Initial Notes) and, subject to the terms of the Indenture, future unlimited issuances of 7.375% Senior Notes due 2022 (the Additional Notes, and together with the Initial Notes, the Notes);
WHEREAS, the Successor has filed with the Secretary of State of the State of Delaware a Certificate of Ownership and Merger, dated as of April 1, 2015, which provides for the merger of Finance II with and into the Successor (the Merger), with the Successor continuing its corporate existence under the laws of the State of Delaware as the surviving company of the Merger;
WHEREAS, Section 5.01 of the Indenture provides, among other things, that Finance II may consolidate or merge with or into another Person; provided that, among other things, the Person formed by or surviving any such consolidation or merger (if other than Finance II) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of Finance II under the Indenture, the Notes and the Registration Rights Agreement pursuant to documents in such form as are reasonably satisfactory to the Trustee;
WHEREAS, Section 9.01 of the Indenture provides, among other things, that the Indenture and Notes may be amended or supplemented without the consent of any Holder to provide for the assumption of Finance IIs obligations to Holders of Notes in the case of a merger or consolidation or sale of all or substantially all of Finance IIs assets; and
WHEREAS, the Successor desires and has requested that the Trustee join in the execution of this Supplemental Indenture for the purpose of evidencing such assumption by the Successor;
NOW THEREFORE, in consideration of the foregoing and for good and valuable consideration, the receipt of which is hereby acknowledged, the Trustee and the Successor mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
ARTICLE 1
ASSUMPTION AND AGREEMENTS
Section 1.1. The Successor hereby, in accordance with the terms and conditions of the Indenture, assumes the due and punctual payment of the principal of, premium, if any, and interest and Special Interest, if any, on the Notes, and the due and punctual performance and observance of all other covenants, conditions and other obligations contained in the Indenture, the Notes and the Registration Rights Agreement on the part of Finance II to be performed or observed.
Section 1.2. The Successor shall succeed to, and be substituted for, and may exercise every right and power of, Finance II under the Indenture and the Notes, with the same effect as if the Successor had been named as the Company therein.
ARTICLE 2
MISCELLANEOUS
Section 2.1. NEW YORK LAW TO GOVERN. THE INDENTURE, THIS SUPPLEMENTAL INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 2.2. Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
Section 2.3. Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
Section 2.4. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Successor.
Section 2.5. Ratification of Indenture; Supplemental Indenture Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
Dated: April 1, 2015
|
DYNEGY INC. |
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|
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By: |
/s/ Robert C. Flexon |
|
Name: |
Robert C. Flexon |
|
Title: |
President & Chief Executive Officer |
|
|
|
WILMINGTON TRUST, NATIONAL ASSOCIATION, |
|
as Trustee |
|
|
|
By: |
/s/ Boris Treyger |
|
Title: |
Authorized Signatory |
Exhibit 4.12
SECOND SUPPLEMENTAL INDENTURE
SUBSIDIARY GUARANTEES
SECOND SUPPLEMENTAL INDENTURE (this Supplemental Indenture), dated as of April 1, 2015, among the Subsidiary Guarantors listed on Schedule I hereto (the Guaranteeing Subsidiaries), each a wholly-owned domestic subsidiary of Dynegy Inc. (or its permitted successor), a Delaware corporation (the Company), the Company, and Wilmington Trust, National Association, as trustee under the indentures referred to below (the Trustee).
W I T N E S S E T H
WHEREAS, the Company (as successor by merger to Dynegy Finance II, Inc.) has heretofore executed and delivered to the Trustee an indenture (as supplemented, the Indenture), dated as of October 27, 2014, between the Company and the Trustee, providing for the original issuance of an aggregate principal amount of $1,050,000,000 of 7.375% Senior Notes due 2022 (the Initial Notes) and, subject to the terms of the Indenture, future unlimited issuances of 7.375% Senior Notes due 2022 (the Additional Notes, and together with the Initial Notes, the Notes);
WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiaries shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiaries shall unconditionally guarantee all of the Companys Obligations under the Notes and the Indenture (the Subsidiary Guarantees); and
WHEREAS, pursuant to Section 4.07 of the Indenture, the Trustee, the Company and the other Subsidiary Guarantors are authorized and required to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for good and valuable consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiaries, the Trustee, the Company and the other Subsidiary Guarantors mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. Capitalized Terms. Unless otherwise defined in this Supplemental Indenture, capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. Agreement to be Bound; Guarantee. Each of the Guaranteeing Subsidiaries hereby become a party to the Indenture as a Subsidiary Guarantor and as such will have all of the rights and be subject to all of the Obligations and agreements of a Subsidiary Guarantor under the Indenture. Each of the Guaranteeing Subsidiaries hereby agree to be bound by all of the provisions of the Indenture applicable to a Subsidiary Guarantor and to perform all of the Obligations and agreements of a Subsidiary Guarantor under the Indenture. In furtherance of the foregoing, each of the Guaranteeing Subsidiaries shall be deemed a Subsidiary Guarantor for purposes of Article 10 of the Indenture, including, without limitation, Section 10.02 thereof.
3. NEW YORK LAW TO GOVERN. THE INDENTURE, THE NOTES, THIS SUPPLEMENTAL INDENTURE AND THE SUBSIDIARY GUARANTEES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
4. Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
5. Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
6. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiaries and the Company.
7. Ratification of Indenture; Supplemental Indenture Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions
1
thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.
[Signature Page Follows]
2
IN WITNESS WHEREOF, we have hereunto signed our names as of the date set forth below.
Dated: |
April 1, 2015 |
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|
|
|
|
DYNEGY INC. |
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|
|
By: |
/s/ Robert C. Flexon |
|
Name: |
Robert C. Flexon |
|
Title: |
President & Chief Executive Officer |
[SIGNATURE PAGES CONTINUE]
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EQUIPOWER RESOURCES CORP. |
|
DYNEGY RESOURCE II, LLC |
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DYNEGY RESOURCE III, 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 GENERATING HOLDCO, LLC |
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RICHLAND GENERATION EXPANSION LLC |
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MILFORD POWER COMPANY, LLC |
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LAKE ROAD HOLDINGS GP, LLC |
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LAKE ROAD HOLDINGS LP, LLC |
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LAKE ROAD GENERATING COMPANY, L.P. |
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RSG POWER, LLC |
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RICHLAND-STRYKER GENERATION, LLC |
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DYNEGY RESOURCES MANAGEMENT, LLC |
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DIGHTON 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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MASSPOWER |
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LIBERTY ELECTRIC GENERATION HOLDINGS, LLC |
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LEP HOLDINGS, LLC |
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LIBERTY ELECTRIC PA 2, LLC |
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LIBERTY ELECTRIC POWER, LLC |
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TOMCAT POWER, LLC |
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KINCAID HOLDINGS, LLC |
|
KINCAID GENERATION, L.L.C. |
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KINCAID ENERGY SERVICES COMPANY, LLC |
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ELWOOD EXPANSION HOLDINGS, LLC |
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ELWOOD ENERGY HOLDINGS, LLC |
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ELWOOD SERVICES COMPANY, LLC |
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ELWOOD ENERGY HOLDINGS II, LLC |
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BRAYTON POINT HOLDINGS, LLC |
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ECP II-B (BRAYTON POINT IP) CORP |
|
ECP II-C (BRAYTON POINT IP) CORP |
|
|
|
|
|
|
|
By: |
/s/ Robert C. Flexon |
|
Name: |
Robert C. Flexon |
|
Title: |
President & Chief Executive Officer |
|
|
|
|
DYNEGY ENERGY SERVICES, LLC |
|
|
|
|
|
|
|
By: |
/s/ Robert C. Flexon |
|
Name: |
Robert C. Flexon |
|
Title: |
Chief Executive Officer |
[SIGNATURE PAGES CONTINUE]
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BLUE RIDGE GENERATION LLC |
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BLACK MOUNTAIN COGEN, INC. |
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CASCO BAY ENERGY COMPANY, LLC |
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DYNEGY ADMINISTRATIVE SERVICES COMPANY |
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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 EQUIPMENT, LLC |
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DYNEGY GASCO HOLDINGS, LLC |
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DYNEGY GAS HOLDCO, LLC |
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DYNEGY GAS IMPORTS, LLC |
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DYNEGY GAS INVESTMENTS, LLC |
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DYNEGY GAS INVESTMENTS HOLDINGS, LLC |
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DYNEGY GLOBAL LIQUIDS, INC. |
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DYNEGY KENDALL ENERGY, LLC |
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DYNEGY MARKETING AND TRADE, LLC |
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DYNEGY MIDWEST GENERATION, LLC |
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DYNEGY MORRO BAY, LLC |
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DYNEGY MOSS LANDING, LLC |
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DYNEGY OAKLAND, LLC |
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DYNEGY OPERATING COMPANY |
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DYNEGY POWER, LLC |
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DYNEGY POWER GENERATION INC. |
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DYNEGY POWER MARKETING, LLC |
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DYNEGY SOUTH BAY, LLC |
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HAVANA DOCK ENTERPRISES, LLC |
|
ILLINOVA CORPORATION |
|
ONTELAUNEE POWER OPERATING COMPANY, LLC |
|
SITHE ENERGIES, INC. |
|
SITHE/INDEPENDENCE LLC |
|
|
|
By: |
/s/ Robert C. Flexon |
|
Name: |
Robert C. Flexon |
|
Title: |
President & Chief Executive Officer |
|
|
|
|
|
WILMINGTON TRUST, NATIONAL ASSOCIATION, |
|
as Trustee |
|
|
|
|
|
By: |
/s/ Boris Treyger |
|
Name: |
Boris Treyger |
|
Title: |
Vice President |
SCHEDULE I
SUBSIDIARY GUARANTORS
EQUIPOWER RESOURCES CORP.
DYNEGY RESOURCE II, LLC
DYNEGY RESOURCE III, LLC
DYNEGY RESOURCES HOLDCO I, LLC
DYNEGY RESOURCES HOLDCO II, LLC
DYNEGY RESOURCES GENERATING HOLDCO, LLC
RICHLAND GENERATION EXPANSION LLC
MILFORD POWER COMPANY, LLC
LAKE ROAD HOLDINGS GP, LLC
LAKE ROAD HOLDINGS LP, LLC
LAKE ROAD GENERATING COMPANY, L.P.
RSG POWER, LLC
RICHLAND-STRYKER GENERATION, LLC
DYNEGY RESOURCES MANAGEMENT, LLC
DIGHTON POWER, LLC
MASSPOWER HOLDCO, LLC
MASSPOWER PARTNERS I, LLC
MASSPOWER PARTNERS II, LLC
MASSPOWER
LIBERTY ELECTRIC GENERATION HOLDINGS, LLC
LEP HOLDINGS, LLC
LIBERTY ELECTRIC PA 2, LLC
LIBERTY ELECTRIC POWER, LLC
TOMCAT POWER, LLC
KINCAID HOLDINGS, LLC
KINCAID GENERATION, L.L.C.
KINCAID ENERGY SERVICES COMPANY, LLC
ELWOOD EXPANSION HOLDINGS, LLC
ELWOOD ENERGY HOLDINGS, LLC
ELWOOD SERVICES COMPANY, LLC
ELWOOD ENERGY HOLDINGS II, LLC
BRAYTON POINT HOLDINGS, LLC
ECP II-B (BRAYTON POINT IP) CORP
ECP II-C (BRAYTON POINT IP) CORP
DYNEGY ENERGY SERVICES, LLC
BLUE RIDGE GENERATION LLC
BLACK MOUNTAIN COGEN, INC.
CASCO BAY ENERGY COMPANY, LLC
DYNEGY ADMINISTRATIVE SERVICES COMPANY
DYNEGY COAL HOLDCO, LLC
DYNEGY COAL INVESTMENTS HOLDINGS, LLC
DYNEGY COAL TRADING & TRANSPORTATION, L.L.C.
DYNEGY EQUIPMENT, LLC
DYNEGY GASCO HOLDINGS, LLC
DYNEGY GAS HOLDCO, LLC
DYNEGY GAS IMPORTS, LLC
DYNEGY GAS INVESTMENTS, LLC
DYNEGY GAS INVESTMENTS HOLDINGS, LLC
DYNEGY GLOBAL LIQUIDS, INC.
DYNEGY KENDALL ENERGY, LLC
Schedule I continues on next page
DYNEGY MARKETING AND TRADE, LLC
DYNEGY MIDWEST GENERATION, LLC
DYNEGY MORRO BAY, LLC
DYNEGY MOSS LANDING, LLC
DYNEGY OAKLAND, LLC
DYNEGY OPERATING COMPANY
DYNEGY POWER, LLC
DYNEGY POWER GENERATION INC.
DYNEGY POWER MARKETING, LLC
DYNEGY SOUTH BAY, LLC
HAVANA DOCK ENTERPRISES, LLC
ILLINOVA CORPORATION
ONTELAUNEE POWER OPERATING COMPANY, LLC
SITHE ENERGIES, INC.
SITHE/INDEPENDENCE LLC
Exhibit 4.14
FIRST SUPPLEMENTAL INDENTURE
TO BE DELIVERED IN CONNECTION WITH THE EQUIPOWER ACQUISITION
FIRST SUPPLEMENTAL INDENTURE (this Supplemental Indenture), dated as of April 1, 2015, between Dynegy Inc., a Delaware corporation (the Successor) and Wilmington Trust, National Association, as trustee under the indenture referred to below (the Trustee). Unless otherwise defined in this Supplemental Indenture, capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture (as defined below).
W I T N E S S E T H
WHEREAS, Dynegy Finance II, Inc. (Finance II) has heretofore executed and delivered to the Trustee an indenture (the Indenture), dated as of October 27, 2014, between Finance II and the Trustee, providing for the original issuance of an aggregate principal amount of $750,000,000 of 7.625% Senior Notes due 2024 (the Initial Notes) and, subject to the terms of the Indenture, future unlimited issuances of 7.625% Senior Notes due 2024 (the Additional Notes, and together with the Initial Notes, the Notes);
WHEREAS, the Successor has filed with the Secretary of State of the State of Delaware a Certificate of Ownership and Merger, dated as of March April 1, 2015, which provides for the merger of Finance II with and into the Successor (the Merger), with the Successor continuing its corporate existence under the laws of the State of Delaware as the surviving company of the Merger;
WHEREAS, Section 5.01 of the Indenture provides, among other things, that Finance II may consolidate or merge with or into another Person; provided that, among other things, the Person formed by or surviving any such consolidation or merger (if other than Finance II) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of Finance II under the Indenture, the Notes and the Registration Rights Agreement pursuant to documents in such form as are reasonably satisfactory to the Trustee;
WHEREAS, Section 9.01 of the Indenture provides, among other things, that the Indenture and Notes may be amended or supplemented without the consent of any Holder to provide for the assumption of Finance IIs obligations to Holders of Notes in the case of a merger or consolidation or sale of all or substantially all of Finance IIs assets; and
WHEREAS, the Successor desires and has requested that the Trustee join in the execution of this Supplemental Indenture for the purpose of evidencing such assumption by the Successor;
NOW THEREFORE, in consideration of the foregoing and for good and valuable consideration, the receipt of which is hereby acknowledged, the Trustee and the Successor mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
ARTICLE 1
ASSUMPTION AND AGREEMENTS
Section 1.1. The Successor hereby, in accordance with the terms and conditions of the Indenture, assumes the due and punctual payment of the principal of, premium, if any, and interest and Special Interest, if any, on the Notes, and the due and punctual performance and observance of all other covenants, conditions and other obligations contained in the Indenture, the Notes and the Registration Rights Agreement on the part of Finance II to be performed or observed.
Section 1.2. The Successor shall succeed to, and be substituted for, and may exercise every right and power of, Finance II under the Indenture and the Notes, with the same effect as if the Successor had been named as the Company therein.
ARTICLE 2
MISCELLANEOUS
Section 2.1. NEW YORK LAW TO GOVERN. THE INDENTURE, THIS SUPPLEMENTAL INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 2.2. Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
Section 2.3. Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
Section 2.4. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Successor.
Section 2.5. Ratification of Indenture; Supplemental Indenture Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
Dated: April 1, 2015
|
DYNEGY INC. |
|
|
|
By: |
/s/ Robert C. Flexon |
|
Name: |
Robert C. Flexon |
|
Title: |
President & Chief Executive Officer |
|
|
|
WILMINGTON TRUST, NATIONAL ASSOCIATION, |
|
as Trustee |
|
|
|
By: |
/s/ Boris Treyger |
|
Title: |
Authorized Signatory |
|
|
|
|
Exhibit 4.15
SECOND SUPPLEMENTAL INDENTURE
SUBSIDIARY GUARANTEES
SECOND SUPPLEMENTAL INDENTURE (this Supplemental Indenture), dated as of April 1, 2015, among the Subsidiary Guarantors listed on Schedule I hereto (the Guaranteeing Subsidiaries), each a wholly-owned domestic subsidiary of Dynegy Inc. (or its permitted successor), a Delaware corporation (the Company), the Company, and Wilmington Trust, National Association, as trustee under the indentures referred to below (the Trustee).
W I T N E S S E T H
WHEREAS, the Company (as successor by merger to Dynegy Finance II, Inc.) has heretofore executed and delivered to the Trustee an indenture (as supplemented, the Indenture), dated as of October 27, 2014, between the Company and the Trustee, providing for the original issuance of an aggregate principal amount of $750,000,000 of 7.625% Senior Notes due 2024 (the Initial Notes) and, subject to the terms of the Indenture, future unlimited issuances of 7.625% Senior Notes due 2024 (the Additional Notes, and together with the Initial Notes, the Notes);
WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiaries shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiaries shall unconditionally guarantee all of the Companys Obligations under the Notes and the Indenture (the Subsidiary Guarantees); and
WHEREAS, pursuant to Section 4.07 of the Indenture, the Trustee, the Company and the other Subsidiary Guarantors are authorized and required to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for good and valuable consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiaries, the Trustee, the Company and the other Subsidiary Guarantors mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. Capitalized Terms. Unless otherwise defined in this Supplemental Indenture, capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. Agreement to be Bound; Guarantee. Each of the Guaranteeing Subsidiaries hereby become a party to the Indenture as a Subsidiary Guarantor and as such will have all of the rights and be subject to all of the Obligations and agreements of a Subsidiary Guarantor under the Indenture. Each of the Guaranteeing Subsidiaries hereby agree to be bound by all of the provisions of the Indenture applicable to a Subsidiary Guarantor and to perform all of the Obligations and agreements of a Subsidiary Guarantor under the Indenture. In furtherance of the foregoing, each of the Guaranteeing Subsidiaries shall be deemed a Subsidiary Guarantor for purposes of Article 10 of the Indenture, including, without limitation, Section 10.02 thereof.
3. NEW YORK LAW TO GOVERN. THE INDENTURE, THE NOTES, THIS SUPPLEMENTAL INDENTURE AND THE SUBSIDIARY GUARANTEES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
4. Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
5. Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
6. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiaries and the Company.
7. Ratification of Indenture; Supplemental Indenture Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions
1
thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.
[Signature Page Follows]
2
IN WITNESS WHEREOF, we have hereunto signed our names as of the date set forth below.
Dated: |
April 1, 2015 |
|
|
|
|
|
|
|
DYNEGY INC. |
|
|
|
|
|
By: |
/s/ Robert C. Flexon |
|
|
Name: |
Robert C. Flexon |
|
|
Title: |
President & Chief Executive Officer |
[SIGNATURE PAGES CONTINUE]
|
EQUIPOWER RESOURCES CORP. |
|
DYNEGY RESOURCE II, LLC |
|
DYNEGY RESOURCE III, LLC |
|
DYNEGY RESOURCES HOLDCO I, LLC |
|
DYNEGY RESOURCES HOLDCO II, LLC |
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DYNEGY RESOURCES GENERATING HOLDCO, LLC |
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RICHLAND GENERATION EXPANSION LLC |
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MILFORD POWER COMPANY, LLC |
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LAKE ROAD HOLDINGS GP, LLC |
|
LAKE ROAD HOLDINGS LP, LLC |
|
LAKE ROAD GENERATING COMPANY, L.P. |
|
RSG POWER, LLC |
|
RICHLAND-STRYKER GENERATION, LLC |
|
DYNEGY RESOURCES MANAGEMENT, LLC |
|
DIGHTON POWER, LLC |
|
MASSPOWER HOLDCO, LLC |
|
MASSPOWER PARTNERS I, LLC |
|
MASSPOWER PARTNERS II, LLC |
|
MASSPOWER |
|
LIBERTY ELECTRIC GENERATION HOLDINGS, LLC |
|
LEP HOLDINGS, LLC |
|
LIBERTY ELECTRIC PA 2, LLC |
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LIBERTY ELECTRIC POWER, LLC |
|
TOMCAT POWER, LLC |
|
KINCAID HOLDINGS, LLC |
|
KINCAID GENERATION, L.L.C. |
|
KINCAID ENERGY SERVICES COMPANY, LLC |
|
ELWOOD EXPANSION HOLDINGS, LLC |
|
ELWOOD ENERGY HOLDINGS, LLC |
|
ELWOOD SERVICES COMPANY, LLC |
|
ELWOOD ENERGY HOLDINGS II, LLC |
|
BRAYTON POINT HOLDINGS, LLC |
|
ECP II-B (BRAYTON POINT IP) CORP |
|
ECP II-C (BRAYTON POINT IP) CORP |
|
|
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By: |
/s/ Robert C. Flexon |
|
Name: |
Robert C. Flexon |
|
Title: |
President & Chief Executive Officer |
|
DYNEGY ENERGY SERVICES, LLC |
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|
|
|
|
|
|
By: |
/s/ Robert C. Flexon |
|
Name: |
Robert C. Flexon |
|
Title: |
Chief Executive Officer |
[SIGNATURE PAGES CONTINUE]
|
BLUE RIDGE GENERATION LLC |
|
BLACK MOUNTAIN COGEN, INC. |
|
CASCO BAY ENERGY COMPANY, LLC |
|
DYNEGY ADMINISTRATIVE SERVICES COMPANY |
|
DYNEGY COAL HOLDCO, LLC |
|
DYNEGY COAL INVESTMENTS HOLDINGS, LLC |
|
DYNEGY COAL TRADING & TRANSPORTATION, L.L.C. |
|
DYNEGY EQUIPMENT, LLC |
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DYNEGY GASCO HOLDINGS, LLC |
|
DYNEGY GAS HOLDCO, LLC |
|
DYNEGY GAS IMPORTS, LLC |
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DYNEGY GAS INVESTMENTS, LLC |
|
DYNEGY GAS INVESTMENTS HOLDINGS, LLC |
|
DYNEGY GLOBAL LIQUIDS, INC. |
|
DYNEGY KENDALL ENERGY, LLC |
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DYNEGY MARKETING AND TRADE, LLC |
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DYNEGY MIDWEST GENERATION, LLC |
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DYNEGY MORRO BAY, LLC |
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DYNEGY MOSS LANDING, LLC |
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DYNEGY OAKLAND, LLC |
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DYNEGY OPERATING COMPANY |
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DYNEGY POWER, LLC |
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DYNEGY POWER GENERATION INC. |
|
DYNEGY POWER MARKETING, LLC |
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DYNEGY SOUTH BAY, LLC |
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HAVANA DOCK ENTERPRISES, LLC |
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ILLINOVA CORPORATION |
|
ONTELAUNEE POWER OPERATING COMPANY, LLC |
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SITHE ENERGIES, INC. |
|
SITHE/INDEPENDENCE LLC |
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|
|
By: |
/s/ Robert C. Flexon |
|
Name: |
Robert C. Flexon |
|
Title: |
President & Chief Executive Officer |
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|
|
WILMINGTON TRUST, NATIONAL ASSOCIATION, |
|
as Trustee |
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|
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By: |
/s/ Boris Treyger |
|
Name: |
Boris Treyger |
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Title: |
Vice President |
SCHEDULE I
SUBSIDIARY GUARANTORS
EQUIPOWER RESOURCES CORP.
DYNEGY RESOURCE II, LLC
DYNEGY RESOURCE III, LLC
DYNEGY RESOURCES HOLDCO I, LLC
DYNEGY RESOURCES HOLDCO II, LLC
DYNEGY RESOURCES GENERATING HOLDCO, LLC
RICHLAND GENERATION EXPANSION LLC
MILFORD POWER COMPANY, LLC
LAKE ROAD HOLDINGS GP, LLC
LAKE ROAD HOLDINGS LP, LLC
LAKE ROAD GENERATING COMPANY, L.P.
RSG POWER, LLC
RICHLAND-STRYKER GENERATION, LLC
DYNEGY RESOURCES MANAGEMENT, LLC
DIGHTON POWER, LLC
MASSPOWER HOLDCO, LLC
MASSPOWER PARTNERS I, LLC
MASSPOWER PARTNERS II, LLC
MASSPOWER
LIBERTY ELECTRIC GENERATION HOLDINGS, LLC
LEP HOLDINGS, LLC
LIBERTY ELECTRIC PA 2, LLC
LIBERTY ELECTRIC POWER, LLC
TOMCAT POWER, LLC
KINCAID HOLDINGS, LLC
KINCAID GENERATION, L.L.C.
KINCAID ENERGY SERVICES COMPANY, LLC
ELWOOD EXPANSION HOLDINGS, LLC
ELWOOD ENERGY HOLDINGS, LLC
ELWOOD SERVICES COMPANY, LLC
ELWOOD ENERGY HOLDINGS II, LLC
BRAYTON POINT HOLDINGS, LLC
ECP II-B (BRAYTON POINT IP) CORP
ECP II-C (BRAYTON POINT IP) CORP
DYNEGY ENERGY SERVICES, LLC
BLUE RIDGE GENERATION LLC
BLACK MOUNTAIN COGEN, INC.
CASCO BAY ENERGY COMPANY, LLC
DYNEGY ADMINISTRATIVE SERVICES COMPANY
DYNEGY COAL HOLDCO, LLC
DYNEGY COAL INVESTMENTS HOLDINGS, LLC
DYNEGY COAL TRADING & TRANSPORTATION, L.L.C.
DYNEGY EQUIPMENT, LLC
DYNEGY GASCO HOLDINGS, LLC
DYNEGY GAS HOLDCO, LLC
DYNEGY GAS IMPORTS, LLC
DYNEGY GAS INVESTMENTS, LLC
DYNEGY GAS INVESTMENTS HOLDINGS, LLC
DYNEGY GLOBAL LIQUIDS, INC.
DYNEGY KENDALL ENERGY, LLC
Schedule I continues on next page
DYNEGY MARKETING AND TRADE, LLC
DYNEGY MIDWEST GENERATION, LLC
DYNEGY MORRO BAY, LLC
DYNEGY MOSS LANDING, LLC
DYNEGY OAKLAND, LLC
DYNEGY OPERATING COMPANY
DYNEGY POWER, LLC
DYNEGY POWER GENERATION INC.
DYNEGY POWER MARKETING, LLC
DYNEGY SOUTH BAY, LLC
HAVANA DOCK ENTERPRISES, LLC
ILLINOVA CORPORATION
ONTELAUNEE POWER OPERATING COMPANY, LLC
SITHE ENERGIES, INC.
SITHE/INDEPENDENCE LLC
Exhibit 4.17
First Registration Rights Agreement Joinder
April 1, 2015
Each of the undersigned hereby agrees as Issuer or Guarantor (each as defined in the Registration Rights Agreement (the Registration Rights Agreement), dated as of October 27, 2014, among Dynegy Finance I, Inc., a Delaware corporation, Dynegy Finance II, Inc., a Delaware corporation and Morgan Stanley & Co. LLC, Barclays Capital Inc., Credit Suisse Securities (USA) LLC, RBC Capital Markets, LLC and UBS Securities LLC, as representatives of the several Initial Purchasers listed on Schedule I thereto), as applicable, to be bound by the terms and provisions attributable to an Issuer or a Guarantor, as applicable, of the Registration Rights Agreement and to assume and be bound to perform all obligations of an Issuer or a Guarantor, as applicable, thereunder. By executing and delivering this First Registration Rights Agreement Joinder, each of the undersigned hereby becomes a party to the Registration Rights Agreement as an Issuer or a Guarantor (in each case, as indicated in the signature pages hereto), as applicable, thereunder.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the undersigned has executed this counterpart as of the date first set forth above.
|
|
Dynegy Inc., as an Issuer |
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By: |
/s/ Robert C. Flexon |
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|
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Name: |
Robert C. Flexon |
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|
|
Title: |
President & Chief Executive Officer |
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|
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|
|
Dynegy Energy Services, LLC, as a Guarantor |
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|
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|
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By: |
/s/ Robert C. Flexon |
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|
|
Name: |
Robert C. Flexon |
|
|
|
Title: |
Chief Executive Officer |
|
Blue Ridge Generation LLC |
|
Black Mountain Cogen, Inc. |
|
Casco Bay Energy Company, LLC |
|
Dynegy Administrative Services Company |
|
Dynegy Coal Holdco, LLC |
|
Dynegy Coal Investments Holdings, LLC |
|
Dynegy Coal Trading & Transportation, L.L.C. |
|
Dynegy Equipment, LLC |
|
Dynegy GasCo Holdings, LLC |
|
Dynegy Gas Holdco, LLC |
|
Dynegy Gas Imports, LLC |
|
Dynegy Gas Investments, LLC |
|
Dynegy Gas Investments Holdings, LLC |
|
Dynegy Global Liquids, Inc. |
|
Dynegy Kendall Energy, LLC |
|
Dynegy Marketing and Trade, LLC |
|
Dynegy Midwest Generation, LLC |
|
Dynegy Morro Bay, LLC |
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Dynegy Moss Landing, LLC |
|
Dynegy Oakland, LLC |
|
Dynegy Operating Company |
|
Dynegy Power, LLC |
|
Dynegy Power Generation Inc. |
|
Dynegy Power Marketing, LLC |
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Dynegy South Bay, LLC |
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Havana Dock Enterprises, LLC |
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Illinova Corporation |
|
Ontelaunee Power Operating Company, LLC |
|
Sithe Energies, Inc. |
|
Sithe/Independence LLC, as Guarantors |
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|
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|
|
By: |
/s/ Robert C. Flexon |
|
|
Name: |
Robert C. Flexon |
|
|
Title: |
President & Chief Executive Officer |
|
EquiPower Resources Corp. |
|
Dynegy Resource II, LLC |
|
Dynegy Resource III, LLC |
|
Dynegy Resources Holdco I, LLC |
|
Dynegy Resources Holdco II, LLC |
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Dynegy Resources Generating Holdco, LLC |
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Richland Generation Expansion LLC, |
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Milford Power Company, LLC |
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Lake Road Holdings GP, LLC |
|
Lake Road Holdings LP, LLC |
|
Lake Road Generating Company, L.P. |
|
RSG Power, LLC |
|
Richland-Stryker Generation LLC |
|
Dynegy Resources Management, LLC |
|
Dighton Power, LLC |
|
Masspower Holdco, LLC |
|
Masspower Partners I, LLC |
|
Masspower Partners II, LLC |
|
MASSPOWER |
|
Liberty Electric Generation Holdings, LLC |
|
LEP Holdings, LLC |
|
Liberty Electric PA 2, LLC |
|
Liberty Electric Power, LLC |
|
Tomcat Power, LLC |
|
Kincaid Holdings, LLC |
|
Kincaid Generation, L.L.C. |
|
Kincaid Energy Services Company, LLC |
|
Elwood Expansion Holdings, LLC |
|
Elwood Energy Holdings, LLC |
|
Elwood Services Company, LLC |
|
Elwood Energy Holdings II, LLC |
|
Brayton Point Holdings, LLC |
|
ECP II-B (Brayton Point IP) Corp |
|
ECP II-C (Brayton Point IP) Corp, as Guarantors |
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|
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|
|
|
By: |
/s/ Robert C. Flexon |
|
|
Name: |
Robert C. Flexon |
|
|
Title: |
President & Chief Executive Officer |
Exhibit 4.20
SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE (this Supplemental Indenture), dated as of April 1, 2015 among the Subsidiary Guarantors listed on Schedule I (the Guaranteeing Subsidiaries), each a wholly-owned domestic subsidiary of Dynegy Inc. (or its permitted successor), a Delaware corporation (the Company), the Company, the other Subsidiary Guarantors (as defined in the Indenture referred to herein) and Wilmington Trust, National Association, as trustee under the Indenture referred to herein (the Trustee).
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture (the Indenture), dated as of May 20, 2013, among the Company, the Subsidiary Guarantors named therein and the Trustee, providing for the original issuance of an aggregate principal amount of $500,000,000 of 5.875% Senior Notes due 2023 (the Notes), and, subject to the terms of the Indenture, future unlimited issuances of 5.875% Senior Notes due 2023 (the Additional Notes and, together with the Initial Notes, the Notes);
WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiaries shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiaries shall unconditionally guarantee all of the Companys Obligations under the Notes and the Indenture (the Subsidiary Guarantees); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee, the Company and the other Subsidiary Guarantors are authorized and required to execute and deliver this Supplemental Indenture without the consent of any Holders of Notes.
NOW THEREFORE, in consideration of the foregoing and for good and valuable consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiaries, the Trustee, the Company and the other Subsidiary Guarantors mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. Capitalized Terms. Unless otherwise defined in this Supplemental Indenture, capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. Agreement to be Bound; Guarantees. Each of the Guaranteeing Subsidiaries hereby becomes a party to the Indenture as a Subsidiary Guarantor and as such will have all of the rights and be subject to all of the Obligations and agreements of a Subsidiary Guarantor under the Indenture. Each of the Guaranteeing Subsidiaries hereby agrees to be bound by all of the provisions of the Indenture applicable to a Subsidiary Guarantor and to perform all of the Obligations and agreements of a Subsidiary Guarantor under the Supplemental Indenture. In furtherance of the foregoing, each of the Guaranteeing Subsidiaries shall be deemed a Subsidiary Guarantor for purposes of Article 10 of the Indenture, including, without limitation, Section 10.02 thereof.
3. NEW YORK LAW TO GOVERN. THE INDENTURE, THE NOTES AND THE SUBSIDIARY GUARANTEES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
4. Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
5. Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
6. The Trustee. The Trustee shall not be responsible or liable in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiaries and the Company.
7. Ratification of Indenture; Supplemental Indenture Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.
[Signature Page Follows]
2
IN WITNESS WHEREOF, we have hereunto signed our names as of the date set forth below.
Dated: |
April 1, 2015. |
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|
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|
|
DYNEGY INC. |
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|
|
By: |
/s/ Robert C. Flexon |
|
Name: |
Robert C. Flexon |
|
Title: |
President & Chief Executive Officer |
|
|
|
EQUIPOWER RESOURCES CORP. |
|
DYNEGY RESOURCE II, LLC |
|
DYNEGY RESOURCE III, LLC |
|
DYNEGY RESOURCES HOLDCO I, LLC |
|
DYNEGY RESOURCES HOLDCO II, LLC |
|
DYNEGY RESOURCES GENERATING HOLDCO, LLC |
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RICHLAND GENERATION EXPANSION LLC |
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MILFORD POWER COMPANY, LLC |
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LAKE ROAD HOLDINGS GP, LLC |
|
LAKE ROAD HOLDINGS LP, LLC |
|
LAKE ROAD GENERATING COMPANY, L.P. |
|
RSG POWER, LLC |
|
RICHLAND-STRYKER GENERATION, LLC |
|
DYNEGY RESOURCES MANAGEMENT, LLC |
|
DIGHTON POWER, LLC |
|
MASSPOWER HOLDCO, LLC |
|
MASSPOWER PARTNERS I, LLC |
|
MASSPOWER PARTNERS II, LLC |
|
MASSPOWER |
|
LIBERTY ELECTRIC GENERATION HOLDINGS, LLC |
|
LEP HOLDINGS, LLC |
|
LIBERTY ELECTRIC PA 2, LLC |
|
LIBERTY ELECTRIC POWER, LLC |
|
TOMCAT POWER, LLC |
|
KINCAID HOLDINGS, LLC |
|
KINCAID GENERATION, L.L.C. |
|
KINCAID ENERGY SERVICES COMPANY, LLC |
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ELWOOD EXPANSION HOLDINGS, LLC |
|
ELWOOD ENERGY HOLDINGS, LLC |
|
ELWOOD SERVICES COMPANY, LLC |
|
ELWOOD ENERGY HOLDINGS II, LLC |
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BRAYTON POINT HOLDINGS, LLC |
|
ECP II-B (BRAYTON POINT IP) CORP |
|
ECP II-C (BRAYTON POINT IP) CORP |
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|
|
By: |
/s/ Robert C. Flexon |
|
Name: |
Robert C. Flexon |
|
Title: |
President & Chief Executive Officer |
|
|
|
DYNEGY ENERGY SERVICES, LLC |
|
|
|
By: |
/s/ Robert C. Flexon |
|
Name: |
Robert C. Flexon |
|
Title: |
Chief Executive Officer |
[SIGNATURE PAGES CONTINUE]
|
SUBSIDIARY GUARANTORS: |
|
|
|
BLUE RIDGE GENERATION LLC |
|
BLACK MOUNTAIN COGEN, INC. |
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CASCO BAY ENERGY COMPANY, LLC |
|
DYNEGY ADMINISTRATIVE SERVICES COMPANY |
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DYNEGY COAL HOLDCO, LLC |
|
DYNEGY COAL INVESTMENTS HOLDINGS, LLC |
|
DYNEGY COAL TRADING & TRANSPORTATION, L.L.C. |
|
DYNEGY EQUIPMENT, LLC |
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DYNEGY GASCO HOLDINGS, LLC |
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DYNEGY GAS HOLDCO, LLC |
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DYNEGY GAS IMPORTS, LLC |
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DYNEGY GAS INVESTMENTS, LLC |
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DYNEGY GAS INVESTMENTS HOLDINGS, LLC |
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DYNEGY GLOBAL LIQUIDS, INC. |
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DYNEGY KENDALL ENERGY, LLC |
|
DYNEGY MARKETING AND TRADE, LLC |
|
DYNEGY MIDWEST GENERATION, LLC |
|
DYNEGY MORRO BAY, LLC |
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DYNEGY MOSS LANDING, LLC |
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DYNEGY OAKLAND, LLC |
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DYNEGY OPERATING COMPANY |
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DYNEGY POWER, LLC |
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DYNEGY POWER GENERATION INC. |
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DYNEGY POWER MARKETING, LLC |
|
DYNEGY SOUTH BAY, LLC |
|
HAVANA DOCK ENTERPRISES, LLC |
|
ILLINOVA CORPORATION |
|
ONTELAUNEE POWER OPERATING COMPANY, LLC |
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SITHE ENERGIES, INC. |
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SITHE/INDEPENDENCE LLC |
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SITHE/INDEPENDENCE POWER PARTNERS, L.P. |
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|
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By: |
/s/ Robert C. Flexon |
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Name: |
Robert C. Flexon |
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Title: |
President & Chief Executive Officer |
[SIGNATURE PAGES CONTINUE]
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WILMINGTON TRUST, NATIONAL ASSOCIATION, |
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as Trustee |
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|
|
By: |
/s/ Boris Treyger |
|
Name: |
Boris Treyger |
|
Title: |
Vice President |
SCHEDULE I
SUBSIDIARY GUARANTORS
EQUIPOWER RESOURCES CORP.
DYNEGY RESOURCES HOLDCO I, LLC
DYNEGY RESOURCES HOLDCO II, LLC
DYNEGY RESOURCES GENERATING HOLDCO, LLC
RICHLAND GENERATION EXPANSION LLC,
MILFORD POWER COMPANY, LLC
LAKE ROAD HOLDINGS GP, LLC
LAKE ROAD HOLDINGS LP, LLC
LAKE ROAD GENERATING COMPANY, L.P.
RSG POWER, LLC
RICHLAND-STRYKER GENERATION LLC
DYNEGY RESOURCES MANAGEMENT, LLC
DIGHTON POWER, LLC
MASSPOWER HOLDCO, LLC
MASSPOWER PARTNERS I, LLC
MASSPOWER PARTNERS II, LLC
MASSPOWER
LIBERTY ELECTRIC GENERATION HOLDINGS, LLC
LEP HOLDINGS, LLC
LIBERTY ELECTRIC PA 2, LLC
LIBERTY ELECTRIC POWER, LLC
TOMCAT POWER, LLC
KINCAID HOLDINGS, LLC
KINCAID GENERATION, L.L.C.
KINCAID ENERGY SERVICES COMPANY, LLC
ELWOOD EXPANSION HOLDINGS, LLC
ELWOOD ENERGY HOLDINGS, LLC
ELWOOD SERVICES COMPANY, LLC
ELWOOD ENERGY HOLDINGS II, LLC
BRAYTON POINT ENERGY, LLC
ECP II-B (BRAYTON POINT IP) CORP
ECP II-C (BRAYTON POINT IP) CORP
DYNEGY RESOURCE II, LLC
DYNEGY RESOURCE III, LLC
Exhibit 10.4
FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (this First Amendment) is entered into as of April 1, 2015, among Dynegy Inc., a Delaware corporation (the Borrower), the Guarantors party hereto, the Additional Lenders and Lenders party hereto (in such capacity, each, an Incremental Revolving Lender and, collectively, the Incremental Revolving Lenders) and Credit Suisse AG, Cayman Islands Branch, as administrative agent (in such capacity, the Administrative Agent). 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 the Administrative Agent are parties to that certain Credit Agreement, dated as of April 23, 2013 (the Credit Agreement);
WHEREAS, the Borrower has previously notified the Administrative Agent that it was requesting an Incremental Revolving Commitment pursuant to Section 2.15 of the Credit Agreement;
WHEREAS, pursuant to Section 2.15 of the Credit Agreement, the Borrower may establish Incremental Revolving Commitments by, among other things, entering into an Incremental Amendment pursuant to the terms and conditions of the Credit Agreement (it being agreed that this First Amendment constitutes an Incremental Amendment which meets such requirements) with each Lender and/or Additional Lender agreeing to provide such Incremental Revolving Commitments and the Administrative Agent;
WHEREAS, the Borrower has requested that the Incremental Revolving Lenders extend credit to the Borrower in the form of Incremental Revolving Commitments in an aggregate principal amount of $350,000,000 (the Incremental Tranche A Revolving Loan Commitments);
WHEREAS, the Borrower has requested that certain of the Incremental Revolving Lenders agree to provide the Borrower with additional Letter of Credit Commitments in an aggregate principal amount of $157,500,000 (the Additional L/C Commitments); and
WHEREAS, each Incremental Revolving Lender has indicated its willingness to provide the Incremental Tranche A Revolving Loan Commitments and, to the extent applicable to such Incremental Revolving Lender, the Additional L/C Commitments, in each case, on the terms and subject to the conditions contained herein;
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. Incremental Revolving Commitments and Additional L/C Commitments.
(a) This First Amendment constitutes an Incremental Amendment pursuant to which a new Incremental Revolver and a new Class of Incremental Revolving Commitments is established pursuant to Section 2.15 of the Credit Agreement upon the occurrence of the First Amendment Effective Date (as defined below).
(b) Each Incremental Revolving Lender hereby severally commits to provide Incremental Tranche A Revolving Loan Commitments in the amount set forth opposite its name under the column entitled Incremental Tranche A Revolving Loan Commitment on Schedule I attached hereto, and, in connection with the entry into this Incremental Amendment, each Incremental Revolving Lender hereby severally agrees to increase its Letter of Credit Commitment (the Letter of Credit Commitment Increase) in the amount set forth opposite its name under the column entitled Letter of Credit Commitment Increase on Schedule I attached hereto, with each such commitment and increase to be effective as of the First Amendment Effective Date. The parties hereby agree that on the First Amendment Effective Date (after giving effect to this Incremental Amendment)), (1) the total Incremental Tranche A Revolving Loan Commitments shall be $350,000,000, (2) the total Letter of Credit Commitment shall increase by the amount of the Letter of Credit Commitment Increase effected hereby, (3) the total Revolving Loan Commitments shall increase by the amount of the Incremental Tranche A Revolving Loan Commitments and (4) as set forth in Section 6 of this First Amendment, there shall be an automatic adjustment to the RL Percentage of each Revolving Lender in the aggregate Letter of Credit Exposure and the aggregate Swingline Loan Exposure to reflect the new RL Percentage of each Revolving Lender in the aggregate Letter of Credit Exposure and the aggregate Swingline Loan Exposure resulting from the Incremental Tranche A Revolving Loan Commitments.
SECTION 2. Amendments to Credit Agreement.
(a) Effective as of the First Amendment Effective Date, the Credit Agreement is hereby amended as follows:
(i) The definition of Applicable Margin contained in Section 1 of the Credit Agreement is hereby deleted in its entirety and replaced with the following:
Applicable Margin shall mean a percentage per annum equal to (i) in the case of Initial Tranche B-1 Term Loans maintained as (A) Base Rate Loans, 2.00% and (B) LIBOR Loans, 3.00%; (ii) in the case of Initial Tranche B-2 Term Loans maintained as (A) Base Rate Loans, 2.00% and (B) LIBOR Loans, 3.00%; (iii) initially in the case of Initial Revolving Loans maintained as (A) Base Rate Loans, 1.75% and (B) LIBOR Loans, 2.75%; (iv) initially in the case of Incremental Tranche A Revolving Loans maintained as (A) Base Rate Loans, 1.75% and (B) LIBOR Loans, 2.75%, (v) initially, in the case of Unutilized Revolving Loan Commitments attributable to Initial Revolving Loan Commitments, 0.50%, (vi) initially, in the case of Unutilized Revolving Loan Commitments attributable to Incremental Tranche A Revolving Loan Commitments, the Applicable Margin in respect of Unutilized Revolving Loans attributable to Initial Revolving Loan Commitments at the time of the effectiveness of the Incremental Tranche A Revolving Loan Commitments and (vii) in the case of Swingline Loans, 1.75%. From and after each day of delivery of any certificate delivered in accordance with the first sentence of the following paragraph indicating an entitlement to a different margin for Initial Revolving Loans, Incremental Tranche A Revolving Loans, Swingline Loans, and Unutilized Revolving Loan Commitments, attributable to Initial Revolving Loan Commitments and Incremental Tranche A Revolving Loan Commitments, than that described in the immediately preceding sentence (each, a Start Date) to and including the applicable End Date described below, the Applicable Margins for such Initial Revolving Loans, Incremental Tranche A Revolving Loans, Swingline Loans and Unutilized Revolving Loan Commitments, attributable to Initial Revolving Loan Commitments and Incremental Tranche A Revolving Loan Commitments (hereinafter, the Adjustable Applicable Margins) shall be those set forth below opposite the Senior
2
Secured Leverage Ratio indicated to have been achieved in any certificate delivered in accordance with the following sentence:
Senior Secured Leverage Ratio |
|
Unutilized Revolving Loan Commitment Margin |
|
Initial Revolving Loan Base Rate Margin |
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Initial Revolving Loan LIBO Rate Margin |
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Incremental Tranche A Revolving Loan Base Rate Margin |
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Incremental Tranche A Revolving Loan LIBO Rate Margin |
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Swingline Loan Base Rate Margin |
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Greater than or equal to 2.25:1.00 |
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0.500 |
% |
1.75 |
% |
2.75 |
% |
1.75 |
% |
2.75 |
% |
1.75 |
% |
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Greater than or equal to 1.75:1.00 but less than 2.25:1.00 |
|
0.375 |
% |
1.50 |
% |
2.50 |
% |
1.50 |
% |
2.50 |
% |
1.50 |
% |
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Less than 1.75:1.00 |
|
0.375 |
% |
1.25 |
% |
2.25 |
% |
1.25 |
% |
2.25 |
% |
1.25 |
% |
The Senior Secured Leverage Ratio used in a determination of Adjustable Applicable Margins shall be determined based on the delivery of a certificate of the Borrower (each, a Quarterly Pricing Certificate) by an Authorized Officer of the Borrower to the Administrative Agent (with a copy to be sent by the Administrative Agent to each Lender), within 50 days of the last day of any Fiscal Quarter of the Borrower, which certificate shall set forth the calculation of the Senior Secured Leverage Ratio as at the last day of the Test Period ended immediately prior to the relevant Start Date (but determined on a Pro Forma Basis) and the Adjustable Applicable Margins which shall be thereafter applicable (until same are changed or cease to apply in accordance with the following sentences). The Adjustable Applicable Margins so determined shall apply, except as set forth in the succeeding sentence, from the relevant Start Date to the earlier of (x) the date on which the next certificate is delivered to the Administrative Agent, and (y) the date which is 51 days (or 106 days in the case of the fourth Fiscal Quarter of the Borrower) following the last day of the Test Period in which the previous Start Date occurred (such earliest date, the End Date), at which time, if no certificate has been delivered to the Administrative Agent indicating an entitlement to new Adjustable Applicable Margins (and thus commencing a new Start Date), the Adjustable Applicable Margins shall be those set forth in the first sentence of this definition (such Adjustable Applicable Margins as so determined, the Highest Adjustable Applicable Margins). Notwithstanding anything to the contrary contained above in this definition, the Adjustable Applicable Margins shall be the Highest Adjustable Applicable Margins (x) at all times during which there shall exist any Event of Default and (y) at all times prior to the date of delivery of the financial statements pursuant to Section 9.01(a) for the first full Fiscal Quarter of the Borrower following the Closing Date.
Notwithstanding anything to the contrary contained above in this definition or elsewhere in this Agreement, if it is subsequently determined that the Senior Secured Leverage Ratio set forth in any Quarterly Pricing Certificate delivered for any period is
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inaccurate for any reason and the result thereof is that the Lenders received interest for any period based on an Applicable Margin that is less than that which would have been applicable had the Senior Secured Leverage Ratio been accurately determined, then, for all purposes of this Agreement, the Applicable Margin for any day occurring within the period covered by such Quarterly Pricing Certificate shall retroactively be deemed to be the relevant percentage as based upon the accurately determined Senior Secured Leverage Ratio for such period, and any shortfall in the interest theretofore paid by the Borrower for the relevant period pursuant to Section 2.08(a) and (b) as a result of the miscalculation of the Senior Secured Leverage Ratio shall be deemed to be (and shall be) due and payable under the relevant provisions of Section 2.08(a) or (b), as applicable, at the time the interest for such period was required to be paid pursuant to said Section on the same basis as if the Senior Secured Leverage Ratio had been accurately set forth in such Quarterly Pricing Certificate (and shall remain due and payable until paid in full, together with all amounts owing under Section 2.08(d), in accordance with the terms of this Agreement). Such Applicable Margin shall be due and payable on the earlier of (i) the occurrence of a Default or an Event of Default under Section 11.05 and (ii) promptly upon written demand to the Borrower (but in no event later than five (5) Business Days after such written demand); provided that in the case of preceding clause (ii), nonpayment of such Applicable Margin as a result of any inaccuracy shall not constitute a Default or Event of Default (whether retroactively or otherwise), and no such amounts shall be deemed overdue (and no amounts shall accrue interest at the applicable default rate), at any time prior to the date that is five (5) Business Days after such written demand to the Borrower.
The Applicable Margins with respect to any Term Loans other than Initial Term Loans, Revolving Loans other than Initial Revolving Loans and Incremental Tranche A Revolving Loans and Unutilized Revolving Loan Commitments attributable to Revolving Loan Commitments other than the Initial Revolving Loan Commitments and Incremental Tranche A Revolving Loan Commitments, shall in each case be determined in accordance with the relevant provisions of this Agreement, and shall utilize the rules provided above to the extent specified in the respective Incremental Amendment, Extension or Refinancing Amendment, as applicable.
(ii) The definition of Class contained in Section 1 of the Credit Agreement is hereby amended by inserting the text Incremental Tranche A Revolving Loans, immediately after the text Initial Tranche B-2 Term Loans, appearing therein.
(iii) The definition of Commitment contained in Section 1 of the Credit Agreement is hereby amended by inserting the text , an Incremental Tranche A Revolving Loan Commitment, immediately after the text Initial Revolving Loan Commitment appearing therein.
(iv) The definition of Issuing Lender contained in Section 1 of the Credit Agreement is hereby amended by (A) inserting the text Barclays Bank PLC, immediately prior to the text Credit Suisse, in each instance appearing therein, (B) deleting the text and immediately prior to the text Royal Bank of Canada appearing therein, (C) inserting the text and UBS AG, Stamford Branch immediately after the text Royal Bank of Canada appearing therein, (D) inserting the text (as may be adjusted by the Borrower and each applicable Issuing Lender from time to time, each a Letter of Credit Commitment immediately after the text the caption Letter of Credit Commitment appearing therein and (E) inserting the text ) immediately prior to the second proviso contained therein.
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(v) The definition of Latest Maturity Date contained in Section 1 of the Credit Agreement is hereby amended by (A) inserting the text Incremental Tranche A Revolving Loan Commitments, immediately after the text Initial Revolving Loan Commitments appearing therein and (B) inserting the text other immediately prior to the text Incremental Revolver appearing therein.
(vi) The definition of Maturity Date contained in Section 1 of the Credit Agreement is hereby amended by (A) deleting the text or immediately prior to the text Initial Revolving Loan Maturity Date appearing therein and (B) inserting the text , or the Incremental Tranche A Revolving Loan Maturity Date immediately after the text Initial Revolving Loan Maturity Date appearing therein.
(vii) The definition of Revolving Loan Commitments contained in Section 1 of the Credit Agreement is hereby amended by (A) inserting the text Incremental Tranche A Revolving Loan Commitment and immediately after the text Initial Revolving Loan Commitment, appearing therein and (B) inserting the text other immediately prior to the text Incremental Revolving Commitment appearing therein.
(viii) Section 1 of the Credit Agreement is hereby further amended by inserting the following definitions in the appropriate alphabetical order:
First Amendment shall mean that certain First Amendment to Credit Agreement, dated as of April 1, 2015, among the Borrower, the Guarantors party thereto, the financial institutions party thereto as Additional Lenders and Lenders, and the Administrative Agent.
First Amendment Effective Date shall mean the first date that all of the conditions precedent in Section 4 of the First Amendment are satisfied or waived in accordance with Section 4 of the First Amendment, which date is April 1, 2015.
First Amendment Letter of Credit Commitment shall mean the increase or new Letter of Credit Commitment of each Issuing Lender extended to the Borrower on the First Amendment Effective Date in connection with the effectiveness of the First Amendment (as the same may be reduced pursuant to Section 3.02(b) hereof).
Incremental Tranche A Revolving Loan Commitment shall mean, for each Lender party to this Agreement on the Closing Date, the amount set forth opposite such Lenders name on Schedule 1.01(b) directly below the column entitled Incremental Tranche A Revolving Loan Commitment, as the same may from time to time be (x) reduced or terminated pursuant hereto, (y) increased (but only with the consent of the respective Lender) in accordance with the terms hereof or (z) adjusted as a result of assignments to or from such Lender pursuant hereto.
Incremental Tranche A Revolving Loan Maturity Date shall mean April 1, 2020.
Incremental Tranche A Revolving Loans shall mean all Revolving Loans made from time to time pursuant to the Incremental Tranche A Revolving Loan Commitments.
Initial Letter of Credit Commitment shall mean the Letter of Credit Commitment of each Issuing Lender as in effect on the First Amendment Effective Date immediately
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prior to the effectiveness of the First Amendment (as the same may be reduced pursuant to Section 3.02(b) hereof).
Letter of Credit Commitment shall have the meaning provided in the definition of Issuing Lender (as may be reduced pursuant to Section 3.02(b) hereof).
(ix) Section 2.07 of the Credit Agreement is hereby amended by inserting the text aggregate immediately prior to the text Revolving Loan Commitments appearing therein.
(x) Section 3.02 of the Credit Agreement is hereby amended by:
A. inserting the text (a) immediately prior to the first sentence thereof;
B. inserting the text then Latest immediately prior to the text Maturity Date in clause (ii)(y) thereof;
C. inserting the following text immediately prior to the period at the end of the first sentence thereof:
; provided that if any Letter of Credit with a stated termination date occurring after the Initial Revolving Loan Maturity Date is issued or extended by an Issuing Lender in accordance with the preceding paragraph and the Initial Revolving Loan Maturity Date would, at the time of such issuance or extension, occur within 12 months after the date of such issuance or extension, the Stated Amount of such Letter of Credit shall not exceed, when added to the sum of the aggregate Stated Amount of all Letters of Credit issued by such Issuing Lender that (x) have a stated termination date occurring after the Initial Revolving Loan Maturity Date and (y) are then outstanding, the Letter of Credit Commtiment of such Issuing Lender that will be in effect on the Initial Revolving Loan Maturity Date (calculated after giving effect to any reduction on such date pursuant to Section 3.02(b)) unless the excess amount shall have been cash collateralized or backstopped in a manner reasonably satisfactory to the applicable Issuing Lender; and
D. inserting the following text immediately after the first sentence thereof:
(b) Notwithstanding anything to the contrary contained in this Agreement, (i) in the event all or a portion of the Initial Revolving Loan Commitments are terminated (but not by way of an extension hereunder) and the aggregate Initial Letter of Credit Commitments would exceed the aggregate Initial Revolving Loan Commitments in effect immediately after such termination, the aggregate Initial Letter of Credit Commitments shall be reduced by an amount equal to the dollar amount by which the aggregate Initial Letter of Credit Commitments would exceed the aggregate Initial Revolving Loan Commitments as in effect immediately after such termination and (ii) in the event all or a portion of the Incremental Tranche A Revolving Loan Commitments are terminated (but not by way of an extension hereunder) and the aggregate First Amendment Letter of Credit Commitments would exceed the aggregate Incremental Tranche A Revolving Loan Commitments in effect immediately after such termination, the aggregate First Amendment Letter of Credit Commitments shall be reduced by an amount equal to the dollar amount by which the aggregate First Amendment Letter of Credit Commitments would exceed the aggregate Incremental Tranche A Revolving Loan Commitments as in effect immediately after such termination; provided that, in connection with any such reduction of any Letter of Credit Commitment set forth above, to the extent any Letters of
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Credit are then outstanding, such reduction shall be allocated among the applicable Issuing Lenders on a pro rata basis to the applicable Letter of Credit Commitment based on the relative sizes of such Letter of Credit Commitments of such Issuing Lenders; provided, further, that, to the extent such pro rata allocation would necessitate the replacement or cash collateralization of then outstanding Letters of Credit, the parties hereto agree that such reduction may be allocated on a non-pro rata basis as mutually agreed by the Administrative Agent and the Borrower in order to minimize the need to replace or cash collateralize any such then outstanding letters of Letters Credit; provided, further, that, at the time of any reduction to the Letter of Credit Commitments pursuant to this clause (b), any Issuing Lender may in its sole discretion agree that its applicable Letter of Credit Commitments not be reduced (a Declined Reduction) and such Declined Reduction shall not be reallocated among the other Issuing Lenders.
(xi) Section 13.10(a) of the Credit Agreement is hereby amended by adding the following text immediately prior to the . at the end thereof:
; provided, further, that no such change, waiver, discharge or termination shall, without the consent of the Majority Lenders of the respective Class of RL Lenders directly and adversely affected thereby, amend, modify or waive (i) the pro rata borrowing requirement in respect of Revolving Loans set forth in Section 2.07 or (ii) the pro rata prepayment requirement with respect to Revolving Loans set forth in Section 5.01.
(b) Effective as of the First Amendment Effective Date, Schedule 1.01(b) of the Credit Agreement is hereby amended and restated in its entirety in the form attached hereto as Annex I hereto.
SECTION 3. Reference To And Effect Upon The Credit Agreement.
(a) From and after the First Amendment 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 First Amendment shall constitute a Credit Document for all purposes of the Credit Agreement and the other Credit Documents.
(b) Each Credit Party, by its signature below, hereby confirms that (i) its Guaranty and each Security Document to which it is a party remains in full force and effect and (ii) its Guaranty and each Security Document to which it is a party covers all Obligations, in each case after giving effect to this First Amendment.
(c) This First Amendment 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 4. Effectiveness.
(a) This First Amendment shall become effective at the time (the First Amendment Effective Date) when each of the following conditions shall have been satisfied (or waived by the First Amendment Lead Arrangers):
(i) this First Amendment shall have been duly executed and delivered by the Borrower, the other Credit Parties, the Incremental Revolving Lenders and the Administrative Agent;
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(ii) prior to or substantially concurrently with the First Amendment Effective Date, the EquiPower Refinancing shall have been (or shall be) consummated;
(iii) subject to the Limited Conditionality Provision (as defined below), each of the EquiPower Target Entities, to the extent required to become a Subsidiary Guarantor pursuant to Section 9.10(d) of the Credit Agreement (determined without regard to any grace periods contained therein), shall have executed and delivered to the Administrative Agent or the Collateral Trustee (as appropriate) an Additional Guarantor Accession Agreement (as defined in the Intercreditor Agreement) and a supplement in the form of Exhibit A to the Guarantee and Collateral Agreement and the Administrative Agent shall have received (in each case subject to the Limited Conditionality Provision):
A. customary closing certificates with respect to the EquiPower Target Entities that become Credit Parties on the First Amendment Effective Date in form and substance consistent with those delivered on the Closing Date pursuant to Section 6.03(a) of the Credit Agreement, (w) a good standing certificate (or local equivalent) from the jurisdiction of organization of each EquiPower Target Entity that becomes a Credit Party on the First Amendment Effective Date dated as of a recent date, (x) a Notice of Borrowing (solely to the extent Revolving Loans in respect of the Incremental Tranche A Revolving Loan Commitments are to be made on the First Amendment Effective Date (it being agreed that no Notice of Borrowing or notice of repayment shall be required in connection with the borrowings and adjustments set forth in Section 6 hereof)), (y) a customary legal opinion received from White & Case LLP, New York counsel to the Credit Parties, and addressed to the Administrative Agent, the Collateral Trustee and the Incremental Revolving Lenders and dated the First Amendment Effective Date, and (z) the results of UCC, tax and judgment lien searches with respect to each of the EquiPower Target Entities that become Credit Parties on the First Amendment Effective Date run in the jurisdiction of formation of each such EquiPower Target Entity;
B. a solvency certificate from the chief financial officer (or other officer with reasonably equivalent responsibilities) of the Borrower substantially in the form of Exhibit F to the Credit Agreement; and
C. the other documents and instruments required to be delivered pursuant to Section 9.10(d) of the Credit Agreement (without giving regard to the deadlines for delivery set forth therein but subject to the Limited Conditionality Provision) necessary to establish that the Administrative Agent will have perfected security interests in the Collateral to be acquired on the First Amendment Effective Date pursuant to the EquiPower Transactions;
(iv) substantially concurrently with the effectiveness of the Incremental Tranche A Revolving Loan Commitments, the EquiPower Finance Sub Merger and the EquiPower Escrow Release, the EquiPower Acquisition shall be consummated in accordance with the terms of the EquiPower Acquisition Agreement, but without giving effect to any amendments, waivers or consents by the Borrower that are materially adverse to the interests of the Incremental Revolving Lenders or the First Amendment Lead Arrangers in their respective capacities as such without the consent of the First Amendment Lead Arrangers, such consent not to be unreasonably withheld, delayed or conditioned (it being understood that the granting of any consent under the EquiPower Acquisition Agreement that is not materially adverse to the interests of the Incremental Revolving
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Lenders or the First Amendment Lead Arrangers shall not otherwise constitute an amendment or waiver);
(v) the EquiPower Acquisition Agreement Representations and EquiPower Specified Representations shall be true and correct in all material respects;
(vi) since August 21, 2014, no EquiPower Acquisition Funding Date Material Adverse Effect shall have occurred and be continuing;
(vii) the First Amendment Lead Arrangers shall have received (a) the audited financial statements, including combined balance sheets, statements of operations, statements of cash flows, statements of stockholder equity of the Combined Acquired Companies (as defined in the EquiPower Acquisition Agreement), for the twelve-month periods ended December 31, 2011, 2012 and 2013, (b) unaudited financial statements, including consolidated balance sheets, statements of operations and statements of cash flows of the Combined Acquired Companies, as of and for the nine months ended September 30, 2013 and 2014, (c) unaudited financial statements, including consolidated balance sheets, statements of operations and statements of cash flows of the Combined Acquired Companies, as of and for the six months ended June 30, 2013 and 2014, and (d) a pro forma consolidated balance sheet and related pro forma statement of income of the Borrower as of the last day of and for the most recently completed four fiscal quarter (or longer) period ending prior to the First Amendment Effective Date for which financial statements were required to be delivered pursuant to preceding clause (c), prepared after giving effect to the EquiPower Transactions as if the EquiPower Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of the statement of income) (it being agreed that the filing by the Borrower with the SEC of the pro forma financial statements contained in the Form 8K filed by the Borrower on December 2, 2014 satisfy this clause (d) for all purposes hereof);
(viii) all fees required to be paid on the First Amendment Effective Date and all expenses required to be paid on the First Amendment Effective Date, in each case, in connection with the incurrence of the Incremental Tranche A Revolving Loan Commitments and, in the case of expenses, to the extent invoiced at least two (2) business days prior to the First Amendment Effective Date, shall have been paid;
(ix) all documentation and other information required by regulatory authorities under applicable know your customer and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, that has been reasonably requested by the Incremental Revolving Lenders at least ten (10) days in advance of the First Amendment Effective Date shall have been received by the First Amendment Lead Arrangers at least three Business Days prior to the First Amendment Effective Date; and
(x) the conditions precedent to the incurrence of Incremental Revolving Commitments set forth in Section 2.15(a)(ii), (iv) and (v) of the Credit Agreement shall have been satisfied.
(b) Notwithstanding anything in this First Amendment or any letter agreement or other undertaking concerning the financing of the transactions contemplated by this First Amendment to the contrary, (a) the terms of the documentation entered into in connection with the establishment of the Incremental Tranche A Revolving Loan Commitments shall be in a form such that they do not impair the availability of the Incremental Tranche A Revolving Loan Commitments on the First Amendment Effective Date if the conditions set forth in Section 4(a) hereof are satisfied or waived by the First
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Amendment Lead Arrangers (and, if applicable, waived in accordance with the terms of the Credit Agreement), it being understood that, (1) to the extent any lien search or Collateral (including the creation or perfection of any security interest) is not or cannot be provided on the First Amendment Effective Date (other than, (i) a lien on Collateral that may be perfected solely by the filing of a financing statements under the UCC and (ii) a pledge of the equity interests in the EquiPower Target Entities directly acquired by the Buyer on the First Amendment Effective Date and constituting Collateral required to be pledged under the Credit Agreement with respect to which a lien may be perfected by the delivery of a stock (or equivalent) certificate) after the Borrowers use of commercially reasonable efforts to do so without undue burden or expense, then the provision and/or perfection of such lien search or Collateral shall not constitute a condition precedent to the availability and initial funding of the Incremental Tranche A Revolving Loan Commitments on the First Amendment Effective Date but may instead be delivered and/or perfected within 60 days (or, with respect to any Mortgage, 90 days) (or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion) after the First Amendment Effective Date pursuant to arrangements consistent with the requirements of Section 9.10 of the Credit Agreement and (2) without limitation of clause (1), with respect to guarantees and security to be provided by the EquiPower Target Entities as set forth in Section 4(a)(iii) that are required to become Guarantors, if such guarantees and security cannot be provided as a condition precedent because the directors or managers of such entities have not authorized such guarantees and security and the elections of new directors or managers to authorize such guarantees and security has not taken place prior to the First Amendment Effective Date (such guarantees and security, Duly Authorized Guarantees and Security and any such entity subject to such limitation referenced to in this clause (2), each, a Deferred Loan Party), such elections shall take place, such authorizations shall be provided and such Duly Authorized Guarantees and Security (and the documentation required to be delivered by such Deferred Loan Parties pursuant to Section 4(a)(iii)) shall be provided no later than 5:00 p.m. (New York City time) on the First Amendment Effective Date, and (c) the only conditions (express or implied) to the availability of the Incremental Tranche A Revolving Loan Commitments on the First Amendment Effective Date are those expressly set forth in Section 4(a) hereof, and such conditions shall be subject in all respects to the provisions of this Section 4(b). This paragraph and the provisions contained herein are referred to in this First Amendment as the Limited Conditionality Provision.
SECTION 5. Definitions. As used in this First Amendment, the following terms have the meaning specified below:
Buyer means, collectively, the Brayton Group Buyer and the EquiPower Group Buyer.
Brayton Group Buyer means Dynegy Resource III, LLC, a Delaware limited liability company and an indirect Wholly-Owned Domestic Subsidiary of the Borrower that is a Restricted Subsidiary and that is or will (on or prior to the First Amendment Effective Date) become a Subsidiary Guarantor.
Brayton Group Merger Sub means Dynegy Resource III-A, LLC, a Delaware limited liability company, and an indirect Wholly-Owned Domestic Subsidiary of the Borrower.
Brayton Group Sellers means, collectively, Energy Capital Partners GP II, LP, a Delaware limited partnership, Energy Capital Partners II, LP, a Delaware limited partnership, Energy Capital Partners II-A, LP, a Delaware limited partnership, Energy Capital Partners II-B, LP, a Delaware limited partnership, Energy Capital Partners II-D, LP, a Delaware limited partnership, and Energy Capital Partners II-C (Cayman), L.P., a Cayman Islands limited partnership.
Brayton Group Target Entities means, collectively, Brayton Point Holdings, LLC, a Delaware limited liability company and Brayton Point Energy, LLC, a Virginia limited liability company.
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EquiPower Acquisition means the purchase by the Borrower, indirectly through the Buyer, of all of the issued and outstanding shares of capital stock and membership interests of the EquiPower Target Entities.
EquiPower Acquisition Agreement means, collectively, (i) the Stock Purchase Agreement, dated August 21, 2014 (together with the exhibits and disclosure schedules thereto, the EquiPower Group Acquisition Agreement), among the Borrower, the EquiPower Group Buyer, EquiPower Resources Corp. and the EquiPower Group Sellers and (ii) the Stock Purchase Agreement and Plan of Merger, dated August 21, 2014 (together with the exhibits and disclosure schedules thereto) among the Brayton Group Buyer, the Brayton Group Merger Sub, Brayton Point Holdings, LLC, and the Brayton Group Sellers.
EquiPower Acquisition Agreement Representations shall mean such of the representations made by or on behalf of the EquiPower Target Entities in the EquiPower Acquisition Agreement as are material to the interests of the Lenders, but only to the extent that the Borrower or the Borrowers applicable Affiliate has the right to terminate its obligations under the EquiPower Acquisition Agreement or refuse to consummate the EquiPower Acquisition as a result of a breach of such representations in the EquiPower Acquisition Agreement.
EquiPower Acquisition Funding Date Material Adverse Effect means a Material Adverse Effect (as defined in the EquiPower Acquisition Agreement).
EquiPower Escrow Release means the release from escrow of the proceeds of the EquiPower Finance Sub Notes and the application of the proceeds of the EquiPower Finance Sub Notes to fund the EquiPower Acquisition.
EquiPower Finance Sub means Dynegy Finance II, Inc., a wholly-owned Unrestricted Subsidiary of the Borrower.
EquiPower Finance Sub Merger means the merger of EquiPower Finance Sub with and into the Borrower.
EquiPower Finance Sub Notes means EquiPower Finance Subs (a) 6.75% Senior Notes due 2019, (b) 7.375% Senior Notes due 2022 and (c) 7.625% Senior Notes due 2024, in each case, issued pursuant to an Indenture dated October 27, 2014 between EquiPower Finance Sub, as issuer, and the other parties thereto, as amended, modified or supplemented from time to time in accordance with the terms thereof.
EquiPower Group Buyer means Dynegy Resource II, LLC, a Delaware limited liability company and an indirect Wholly-Owned Domestic Subsidiary of the Borrower that is a Restricted Subsidiary and that is or will (on or prior to the First Amendment Effective Date) become a Subsidiary Guarantor.
EquiPower Group Sellers means, collectively, Energy Capital Partners II, LP, Energy Capital Partners II-A, LP, Energy Capital Partners II-B, LP, Energy Capital Partners II-C (Direct IP), LP, a Delaware limited partnership, Energy Capital Partners II-D, LP and Energy Capital Partners II (EquiPower Co-Invest), LP, a Delaware limited partnership.
EquiPower Group Target Entities means EquiPower Resources Corp. and its Subsidiaries, as set forth in the EquiPower Group Acquisition Agreement.
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EquiPower Refinancing means the repayment, redemption, defeasance, discharge, refinancing or termination (or irrevocable notice for the repayment or redemption) of all existing third party debt for borrowed money of the EquiPower Target Entities and the release and discharge of all security and guarantees in respect thereof other than indebtedness, security and guarantees permitted to remain outstanding under the Credit Agreement after the First Amendment Effective Date.
EquiPower Specified Representations means the representations and warranties set forth in the Credit Agreement made with respect to the Borrower and the Guarantors relating to: organizational existence; organizational power and authority (as it relates to due authorization, execution and delivery of this First Amendment); due authorization, execution and delivery of this First Amendment, and enforceability, in each case, as it relates to entering into and performance under this First Amendment; solvency on the First Amendment Effective Date (after giving effect to the EquiPower Transactions) of the Borrower and its subsidiaries taken as a whole; no conflicts of this First Amendment with charter documents; Federal Reserve margin regulations; the Investment Company Act; the PATRIOT Act; OFAC; FCPA and, subject to the Limited Conditionality Provision, the validity and perfection of security interests with respect to the Collateral to be acquired on the First Amendment Effective Date pursuant to the EquiPower Transactions (subject in all respects to security interests and liens permitted under the Credit Agreement).
EquiPower Target Entities means, collectively, the Brayton Group Target Entities and the EquiPower Group Target Entities.
EquiPower Transactions means (a) the EquiPower Acquisition, (b) the Borrower obtaining the Incremental Tranche A Revolving Loan Commitments, (c) the EquiPower Finance Sub Merger and EquiPower Escrow Release, (d) the EquiPower Refinancing and (e) the payment of fees, premiums, expenses and other transaction costs incurred in connection with preceding clauses (a) through (d), including to fund any original issue discount and upfront fees.
First Amendment Lead Arrangers means Morgan Stanley Senior Funding, Inc., Barclays Bank PLC, Credit Suisse Securities (USA) LLC, RBC Capital Markets* and UBS Securities LLC, in their capacities as joint lead arrangers in respect of the Incremental Tranche A Revolving Loan Commitments.
SECTION 6. Loan Adjustments. In accordance with Section 2.15(h) of the Credit Agreement, upon the incurrence of the Incremental Tranche A Revolving Loan Commitments, (x) each RL Lender immediately prior to such incurrence will automatically and without further act be deemed to have assigned to each Incremental Revolving Lender, and each such Incremental Revolving Lender will automatically and without further act be deemed to have assumed, a portion of such RL Lenders participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swingline Loans held by each RL Lender (including each such Incremental Revolving Lender) will equal the percentage of the aggregate Revolving Loan Commitments of all RL Lenders represented by such RL
* RBC Capital Markets is a brand name for the capital markets activities of Royal Bank of Canada and its affiliates.
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Lenders Revolving Loan Commitment and (y) if, on the First Amendment Effective Date, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior to the effectiveness of the Incremental Tranche A Revolving Loan Commitments be prepaid from the proceeds of Revolving Loans made under the Credit Agreement (reflecting such increase in Revolving Loan Commitments pursuant to the Incremental Tranche A Revolving Loan Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Lender pursuant to such prepayment in accordance with Section 2.11 of the Credit Agreement.
SECTION 7. Waiver. Except as explicitly set forth in Section 4 of this First Amendment, each Additional Lender and Lender party hereto agrees, solely with respect to the occurrence of the First Amendment Effective Date and the Credit Events to occur on the First Amendment Effective Date (including the incurrence of the Incremental Tranche A Revolving Loan Commitments and the Additional L/C Commitments and the issuance of any Letter of Credit on such date), to waive any conditions precedent to the incurrence of the Incremental Tranche A Revolving Loan Commitments and the Additional L/C Commitments set forth in Section 7 of the Credit Agreement.
SECTION 8. Joinder of New Issuing Lender. To the extent that any Issuing Lender with First Amendment Letter of Credit Commitments was not an Issuing Lender immediately prior to the First Amendment Effective Date, the parties hereto agree that this First Amendment shall constitute a joinder of such Issuing Bank, in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, and that the signature of the Administrative Agent and the Borrower below constitute an acknowledgment and acceptance of such joinder.
SECTION 9. Counterparts, Etc. This First Amendment 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 First Amendment by delivering by facsimile or other electronic transmission a signature page of this First Amendment 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 First Amendment are included herein for convenience of reference only and shall not constitute part of this First Amendment for any other purpose.
SECTION 10. Governing Law. This First Amendment and the rights and obligations of the parties under this First Amendment shall be governed by, and construed and interpreted in accordance with, the law of the State of New York; provided, that (a) the interpretation of the definition of EquiPower Acquisition Funding Date Material Adverse Effect (and whether or not an EquiPower Acquisition Funding Date Material Adverse Effect has occurred), (b) the determination of the accuracy of any EquiPower Acquisition Agreement Representation and whether as a result of any inaccuracy thereof the Borrower or its applicable affiliate has the right to terminate its obligations under the EquiPower Acquisition Agreement or refuse to consummate the EquiPower Acquisition and (c) the determination of whether the EquiPower Acquisition has been consummated in accordance with the terms of the EquiPower Acquisition Agreement and, in any case, claims or disputes arising out of any such interpretation or determination or any aspect thereof, in each case, shall be governed by, and construed and interpreted in accordance with the laws of the State of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof.
[Signature Pages to follow]
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IN WITNESS WHEREOF, this First Amendment has been executed by the parties hereto as of the date first written above.
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DYNEGY INC. |
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/s/ Clint C. Freeland |
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Name: |
Clint C. Freeland |
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Title: |
Executive Vice President and Chief |
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Financial Officer |
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BLUE RIDGE GENERATION LLC |
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CASCO BAY ENERGY COMPANY, LLC |
|
DYNEGY COAL HOLDCO, LLC |
|
DYNEGY COAL INVESTMENTS HOLDINGS, LLC |
|
DYNEGY COAL TRADING & TRANSPORTATION, L.L.C. |
|
DYNEGY ENERGY SERVICES, LLC |
|
DYNEGY EQUIPMENT, LLC |
|
DYNEGY GAS HOLDCO, LLC |
|
DYNEGY GAS IMPORTS, LLC |
|
DYNEGY GAS INVESTMENTS, LLC |
|
DYNEGY GAS INVESTMENTS HOLDINGS, LLC |
|
DYNEGY GASCO HOLDINGS, LLC |
|
DYNEGY KENDALL ENERGY, LLC |
|
DYNEGY MARKETING AND TRADE, LLC |
|
DYNEGY MIDWEST GENERATION, LLC |
|
DYNEGY MORRO BAY, LLC |
|
DYNEGY MOSS LANDING, LLC |
|
DYNEGY OAKLAND, LLC |
|
DYNEGY POWER, LLC |
|
DYNEGY POWER MARKETING, LLC |
|
DYNEGY SOUTH BAY, LLC |
|
HAVANA DOCK ENTERPRISES, LLC |
|
ONTELAUNEE POWER OPERATING COMPANY, LLC |
|
SITHE/INDEPENDENCE LLC |
|
|
|
|
|
|
|
By: |
/s/ Clint C. Freeland |
|
|
Name: |
Clint C. Freeland |
|
|
Title: |
Executive Vice President and Chief |
|
|
|
Financial Officer |
|
|
|
|
|
|
BLACK MOUNTAIN COGEN, INC. |
|
DYNEGY ADMINISTRATIVE SERVICES COMPANY |
|
DYNEGY GLOBAL LIQUIDS, INC. |
|
DYNEGY OPERATING COMPANY |
|
DYNEGY POWER GENERATION INC. |
|
ILLINOVA CORPORATION |
|
SITHE ENERGIES, INC. |
|
|
|
|
|
|
|
By: |
/s/ Clint C. Freeland |
|
|
Name: |
Clint C. Freeland |
|
|
Title: |
Executive Vice President and Chief |
|
|
|
Financial Officer |
|
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as the Administrative Agent, an Incremental Revolving Lender and an Issuing Lender |
|
|
|
|
|
By: |
/s/ Mikhail Faybusovich |
|
|
Name: |
Mikhail Faybusovich |
|
|
Title: |
Authorized Signatory |
|
|
|
|
|
By: |
/s/ Samuel Miller |
|
|
Name: |
Samuel Miller |
|
|
Title: |
Authorized Signatory |
|
MORGAN STANLEY SENIOR FUNDING, INC., as an Incremental Revolving Lender and an Issuing Lender |
|
|
|
|
|
By: |
/s/ Dmitriy Barskiy |
Name: |
Dmitriy Barskiy |
|
|
Title: |
Vice President |
|
MORGAN STANLEY BANK, N.A., as an Incremental Revolving Lender and an Issuing Lender |
|
|
|
|
|
By: |
/s/ Dmitriy Barskiy |
|
|
Name: |
Dmitriy Barskiy |
|
|
Title: |
Authorized Signatory |
|
BARCLAYS BANK PLC, as an Incremental Revolving Lender and an Issuing Lender |
|
|
|
|
|
By: |
/s/ Christine Aharonian |
|
|
Name: |
Christine Aharonian |
|
|
Title: |
Vice President |
|
ROYAL BANK OF CANADA, as an Incremental Revolving Lender and an Issuing Lender |
|
|
|
|
|
By: |
/s/ Mary Elizabeth Mandanas |
|
|
Name: |
Mary Elizabeth Mandanas |
|
|
Title: |
Authorized Signatory |
|
UBS AG, STAMFORD BRANCH, as an Incremental Revolving Lender and an Issuing Lender |
|
|
|
|
|
By: |
/s/ Darlene Arias |
|
|
Name: |
Darlene Arias |
|
|
Title: |
Director, Banking Products Services, US |
|
|
|
|
|
By: |
/s/ Craig Pearson |
|
|
Name: |
Craig Pearson |
|
|
Title: |
Associate Director, Banking Product |
|
|
Services, US |
|
BANK OF AMERICA, N.A., as an Incremental Revolving Lender |
|
|
|
|
|
By: |
/s/ William Merritt |
|
|
Name: |
William Merritt |
|
|
Title: |
Vice President |
|
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as an Incremental Revolving Lender |
|
|
|
|
|
By: |
/s/ Dixon Schultz |
|
|
Name: |
Dixon Schultz |
|
|
Title: |
Managing Director |
|
|
|
|
|
By: |
/s/ Sharada Manne |
|
|
Name: |
Sharada Manne |
|
|
Title: |
Managing Director |
|
DEUTSCHE BANK AG NEW YORK BRANCH, as an Incremental Revolving Lender |
|
|
|
|
|
By: |
/s/ Marcus M. Tarkington |
|
|
Name: |
Marcus M. Tarkington |
|
|
Title: |
Director |
|
|
|
|
|
By: |
/s/ Anca Trifan |
|
|
Name: |
Anca Trifan |
|
|
Title: |
Managing Director |
|
BNP PARIBAS, as an Incremental Revolving Lender |
|
|
|
|
|
By: |
/s/ Nicole Rodriguez |
|
|
Name: |
Nicole Rodriguez |
|
|
Title: |
Vice President |
|
|
|
|
|
By: |
/s/ Ade Adedeji |
|
|
Name: |
Ade Adedeji |
|
|
Title: |
Vice President |
|
JPMORGAN CHASE BANK, N.A., as an Incremental Revolving Lender |
|
|
|
|
|
By: |
/s/ Juan Javellana |
|
|
Name: |
Juan Javellana |
|
|
Title: |
Executive Director |
|
MUFG UNION BANK, N.A., as an Incremental Revolving Lender |
|
|
|
|
|
By: |
/s/ Chi-Cheng Chen |
|
|
Name: |
Chi-Cheng Chen |
|
|
Title: |
Director |
|
SUNTRUST BANK, as an Incremental Revolving Lender |
|
|
|
|
|
By: |
/s/ Michael Canavan |
|
|
Name: |
Michael Canavan |
|
|
Title: |
Director |
SCHEDULE I
Incremental Tranche A Revolving Loan Commitments; Letter of Credit Commitment Increase
Incremental Revolving Lender |
|
Incremental Tranche A Revolving Loan Commitment |
|
Letter of Credit Commitment Increase |
|
Morgan Stanley Senior Funding, Inc. |
|
$ |
33,780,000 |
|
|
|
Morgan Stanley Bank, N.A. |
|
|
|
$ |
35,000,000 |
|
Barclays Bank PLC |
|
$ |
33,770,000 |
|
$ |
35,000,000 |
|
Credit Suisse AG |
|
$ |
33,780,000 |
|
$ |
35,000,000 |
|
Royal Bank of Canada |
|
$ |
27,630,000 |
|
$ |
35,000,000 |
|
UBS AG, Stamford Branch |
|
$ |
27,630,000 |
|
$ |
17,500,000 |
|
Deutsche Bank AG New York Branch |
|
$ |
27,630,000 |
|
$ |
0 |
|
Bank of America, N.A. |
|
$ |
27,630,000 |
|
$ |
0 |
|
Credit Agricole Corporate and Investment Bank |
|
$ |
27,630,000 |
|
$ |
0 |
|
BNP Paribas |
|
$ |
27,630,000 |
|
$ |
0 |
|
JPMorgan Chase Bank, N.A. |
|
$ |
27,630,000 |
|
$ |
0 |
|
MUFG Union Bank, N.A. |
|
$ |
27,630,000 |
|
$ |
0 |
|
SunTrust Bank |
|
$ |
27,630,000 |
|
$ |
0 |
|
ANNEX I
Schedule 1.01(b) to Credit Agreement
Lender |
|
Initial Revolving Loan Commitment |
|
Letter of Credit Commitment |
|
Initial Tranche B-1 Term Loan Commitment |
|
Initial Tranche B-2 Term Loan Commitment |
|
Incremental Tranche A Revolving Loan Commitment |
|
Credit Suisse AG, Cayman Islands Branch |
|
$ |
50,000,000 |
|
$ |
121,000,000.00 |
|
$ |
500,000,000.00 |
|
$ |
800,000,000.00 |
|
$ |
33,780,000 |
|
Morgan Stanley Bank, N.A. |
|
$ |
50,000,000 |
|
$ |
135,476,500.00 |
|
|
|
|
|
|
|
Morgan Stanley Senior Funding, Inc. |
|
|
|
|
|
|
|
|
|
$ |
33,780,000 |
|
Barclays Bank PLC |
|
$ |
50,000,000 |
|
$ |
35,000,000.00 |
|
|
|
|
|
$ |
33,770,000 |
|
Deutsche Bank AG New York Branch |
|
$ |
50,000,000 |
|
|
|
|
|
|
|
$ |
27,630,000 |
|
Goldman Sachs Bank USA |
|
$ |
50,000,000 |
|
|
|
|
|
|
|
|
|
JPMorgan Chase Bank, N.A. |
|
$ |
50,000,000 |
|
|
|
|
|
|
|
$ |
27,630,000 |
|
Bank of America, N.A. |
|
$ |
50,000,000 |
|
|
|
|
|
|
|
$ |
27,630,000 |
|
Royal Bank of Canada |
|
$ |
50,000,000 |
|
$ |
235,000,000.00 |
|
|
|
|
|
$ |
27,630,000 |
|
UBS AG, Stamford Branch |
|
$ |
30,000,000 |
|
$ |
17,500,000.00 |
|
|
|
|
|
$ |
27,630,000 |
|
MUFG Union Bank, N.A. |
|
$ |
25,000,000 |
|
|
|
|
|
|
|
$ |
27,630,000 |
|
Wells Fargo Principal Lending |
|
$ |
10,000,000 |
|
|
|
|
|
|
|
|
|
Black Diamond CLO 2006-1 (Cayman) Ltd. |
|
$ |
5,000,000 |
|
|
|
|
|
|
|
|
|
Black Diamond CLO 2012-1 Ltd. |
|
$ |
5,000,000 |
|
|
|
|
|
|
|
|
|
Credit Agricole Corporate and Investment Bank |
|
|
|
|
|
|
|
|
|
$ |
27,630,000 |
|
SunTrust Bank |
|
|
|
|
|
|
|
|
|
$ |
27,630,000 |
|
BNP Paribas |
|
|
|
|
|
|
|
|
|
$ |
27,630,000 |
|
Total |
|
$ |
475,000,000.00 |
|
|
|
$ |
500,000,000.00 |
|
$ |
800,000,000.00 |
|
$ |
350,000,000.00 |
|
Exhibit 99.1
FOR IMMEDIATE RELEASE |
|
NR15-06 |
Dynegy Completes EquiPower and Brayton Point Acquisitions from
Energy Capital Partners
Allocating $100 million of capital to reduce equity issued to fund transaction
Synergy target raised to $100 million from $40 million
HOUSTON, TX (April 1, 2015) Dynegy Inc. (NYSE: DYN), through its wholly owned subsidiary, has finalized its acquisition of EquiPower Resources Corp. and Brayton Point Holdings, LLC from Energy Capital Partners (ECP). The transactions include 10 generating stations, capable of generating 6.3 gigawatts of electricity into the New England and PJM power markets. The Company now owns nearly 20,000 MW operating in eight states.
With the EquiPower and Brayton Point acquisitions, Dynegy has considerable scale in the PJM and New England markets and diversity of fuel and revenue streams across the portfolio, said Dynegy President and Chief Executive Officer Robert C. Flexon. New England and PJM are both attractive, well-functioning markets and we will benefit from having a more robust presence there.
Dynegys other pending acquisition, of Duke Energys commercial generation and retail assets in the Midwest, has received all required approvals and is expected to close tomorrow, April 2.
Planning for the integration of both of these acquisitions has advanced considerably since our initial expectation of $40 million in synergies and we now expect to achieve $100 million in synergies, Flexon added. Additionally, after careful evaluation of Dynegys liquidity position, outlook for the business, impact of higher expected synergies, and current price of common shares, we have decided to allocate $100 million of capital to reduce the equity that would have been issued under the original transaction terms.
The original acquisition price was $3.45 billion including $3.25 billion of cash and $200 million of common stock, issued to ECP at closing. On March 30, Dynegy and ECP amended the purchase and sales agreements to increase cash consideration to $3.35 billion and reduce the common stock that would have been issued by 50% or 3,460,053 shares, based on the settlement price of $28.90 per share.
1
Newly Acquired Generating Assets
Plant |
|
Location |
|
Market |
|
Net Capacity (1) (MW) |
|
Ownership |
|
Fuel |
|
Brayton Point(2) |
|
Somerset, MA |
|
ISO-NE |
|
1,493 |
|
100 |
% |
Coal |
|
Dighton |
|
Dighton, MA |
|
ISO-NE |
|
187 |
|
100 |
% |
Gas |
|
Lake Road |
|
Dayville, CT |
|
ISO-NE |
|
856 |
|
100 |
% |
Gas |
|
Masspower |
|
Indian Orchard, MA |
|
ISO-NE |
|
280 |
|
100 |
% |
Gas |
|
Milford |
|
Milford, CT |
|
ISO-NE |
|
579 |
|
100 |
% |
Gas |
|
Elwood |
|
Elwood, IL |
|
PJM |
|
788 |
|
50 |
% |
Gas |
|
Kincaid |
|
Kincaid, IL |
|
PJM |
|
1,108 |
|
100 |
% |
Coal |
|
Liberty |
|
Eddystone, PA |
|
PJM |
|
600 |
|
100 |
% |
Gas |
|
Richland |
|
Defiance, OH |
|
PJM |
|
447 |
|
100 |
% |
Gas |
|
Stryker |
|
Stryker, OH |
|
PJM |
|
19 |
|
100 |
% |
Oil |
|
(1) MW ratings are based on winter capacity.
(2) Brayton Point is scheduled to be retired on June 1, 2017
About Dynegy
We are committed to leadership in the electricity sector. With approximately 19,500 megawatts of power generation capacity and two retail electricity companies, we serve our customers and markets by providing safe, reliable and economic energy. Homefield Energy and Dynegy Energy Services are retail electricity providers serving businesses and residents in Illinois.
Forward-Looking Statement
This press release contains statements reflecting assumptions, expectations, projections, intentions or beliefs about future events that are intended as forward-looking statements particularly those statements concerning: the New England and PJM markets and the anticipated benefits associated with such markets; the anticipated closing of the acquisition of the Duke Energy Midwest Generation assets and retail business; and the anticipated synergies resulting from the acquisitions. Discussion of risks and uncertainties that could cause actual results to differ materially from current projections, forecasts, estimates and expectations of Dynegy is contained in Dynegys filings with the Securities and Exchange Commission (the SEC). Specifically, Dynegy makes reference to, and incorporates herein by reference, the section entitled Risk Factors in its 2014 Form 10-K. In addition to the risks and uncertainties set forth in Dynegys SEC filings, the forward-looking statements described in this press release could be affected by, among other things, (i) conditions to the closing of the Duke Energy Midwest acquisition may not be satisfied timely, or not at all; (ii) problems may arise in successfully integrating the Duke Energy, EquiPower and Brayton power facilities into Dynegys current portfolio, which may result in Dynegy not operating as effectively and efficiently as expected; (iii) Dynegy may be unable to achieve expected synergies or it may take longer than expected to achieve such synergies; (iv) any of the transactions may involve unexpected costs or unexpected liabilities; (v) the industry may be subject to future regulatory or legislative actions, including environmental, that could adversely affect Dynegy; and (vi) Dynegy may be adversely affected by other economic, business, and/or competitive factors. Any or all of Dynegys forward-looking statements may turn out to be wrong. They can be affected by inaccurate assumptions or by known or unknown risks, uncertainties and other factors, many of which are beyond Dynegys control.
Contacts: Media: Micah Hirschfield, 713.767.5800; Analysts: Andy Smith, 713.507.6466
2
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