{"id":42981,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/agreement-and-consent-dynegy-inc-enron-corp-northern.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"agreement-and-consent-dynegy-inc-enron-corp-northern","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/agreement-and-consent-dynegy-inc-enron-corp-northern.html","title":{"rendered":"Agreement and Consent &#8211; Dynegy Inc., Enron Corp., Northern Natural Gas Co., Citicorp U.S.A. Inc., JPMorgan Chase Bank"},"content":{"rendered":"<pre>\n                              AGREEMENT AND CONSENT\n\n         This AGREEMENT AND CONSENT (this \"Agreement\"), dated as of November 19,\n2001 among Dynegy Inc., an Illinois corporation (\"Dynegy\"), Dynegy Holdings\nInc., a Delaware corporation (\"Dynegy Holdings\"), Enron Corp., an Oregon\ncorporation (\"Enron\"), CGNN Holding Company, Inc., a Delaware corporation\n(\"CGNN\"), MCTJ Holding Co. LLC, a Delaware limited liability company (\"MCTJ\"),\nNNGC Holding Company, Inc., a Delaware corporation (\"NNGC Holdings\"), Northern\nNatural Gas Company, a Delaware corporation (\"Northern Natural\") (Dynegy, Dynegy\nHoldings, Enron, CGNN, MCTJ, NNGC Holdings and Northern Natural being\ncollectively referred to herein as the \"Non-Bank Parties\"), Citicorp USA, Inc.\nand JPMorgan Chase Bank, as Co-Administrative Agents, and the lenders party to\nthe Credit Agreement (as defined below) (as defined in such Credit Agreement,\nthe \"Banks\").\n\n                                    RECITALS\n\n         A. CGNN, MCTJ, Enron, Dynegy Holdings, and Dynegy are parties to an\nOption Agreement, dated as of November 9, 2001 (the \"Option Agreement\"), as\namended as of November 19, 2001.\n\n         B. On November 9, 2001, Northern Natural filed a Certificate of\nDesignations of the Series A Preferred Stock (the \"Certificate of Designations\")\nwith the Secretary of State of the State of Delaware creating a series of\nNorthern Natural's Preferred Stock, par value $0.01 per share, designated as the\nSeries A Preferred Stock (the \"Series A Preferred\").\n\n         C. On November 13, 2001, Northern Natural issued 1,000 shares of Series\nA Preferred to Dynegy.\n\n         D. Northern Natural has entered into a Credit Agreement, dated as of\nNovember 19, 2001, with Citicorp North America, Inc. and JPMorgan Chase Bank, as\nCo-Administrative Agents, Citicorp North America, Inc., as Paying Agent,\nJPMorgan Chase Bank, as Collateral Trustee and Issuing Bank, and the Banks (as\namended, restated, modified or supplemented from time to time, the \"Credit\nAgreement\"), and various of the parties have entered, or in the future may\nenter, into Security Documents (as defined in the Credit Agreement). The Credit\nAgreement, the Notes, the Security Documents, the Enron Guaranty, each Notice of\nBorrowing, each Notice of Letter of Credit, the ETSC Agreement, the Subordinated\nEnron Note, the Fee Letter, the Letter of Credit Documents, the Assumption\nDocuments and the Corporate Amendment Documents (as each such term is defined in\nthe Credit Agreement), as amended, restated, modified or supplemented from time\nto time, are collectively referred to herein as the \"Bank Documents\".\n\n         E. The Credit Agreement requires, as a condition precedent to the\nextension of credit by the Banks, that the Non-Bank Parties enter into and agree\nand consent to the matters set forth in this Agreement.\n\n         F. As an inducement to Dynegy and Dynegy Holdings to enter into this\nAgreement, the Banks agree to certain matters set forth in this Agreement.\n\n\n\n\n         NOW, THEREFORE, in consideration of the mutual agreements herein\ncontained and other good and valuable consideration, the sufficiency of which is\nhereby acknowledged, the parties hereby agree as follows:\n\n         1. Dynegy and Dynegy Holdings approve, pursuant to Section 4.8.7 of the\nOption Agreement and Section 5.6 of the Certificate of Designations, the\namendment to the Certificate of Incorporation of Northern Natural attached\nhereto as ANNEX A. This approval constitutes a written consent under Section 228\nof the Delaware General Corporation Law. Northern Natural agrees promptly to\nfile the amendment to the certificate of incorporation of northern natural\nattached hereto as ANNEX A.\n\n         2. The Non-Bank Parties hereby consent to (a) the execution and\ndelivery by Enron, NNGC Holdings and Northern Natural (and any other subsidiary\nof Enron that is a party to or bound by any Bank Document) of the Bank Documents\non or before the Initial Funding Date (as defined in the Credit Agreement) and\nany Security Documents, Notes, Notices of Borrowings and Letter of Credit\nDocuments thereafter, (b) the borrowing or assumption by Northern Natural of up\nto $450 million aggregate principal amount of indebtedness under the Bank\nDocuments, (c) the grant by NNGC Holdings and Northern Natural of the Liens (as\ndefined in the Credit Agreement) created under the Bank Documents, (d) the\nperfection and maintenance of the Liens created under the Bank Documents and (e)\nsubject to the terms hereof, the exercise by any Secured Party (as defined in\nthe Credit Agreement) of its or their remedies pursuant to the Bank Documents or\napplicable law, whether by judicial action or otherwise, including, without\nlimitation, any action to accelerate the Secured Obligations, to commence\ninsolvency or bankruptcy proceedings against any Loan Party (as defined in the\nCredit Agreement), foreclosure, sale in lieu of foreclosure, sale after default\nunder the Uniform Commercial Code of any relevant state, collection of accounts\nor other receivables, offset or the institution of litigation (collectively,\n\"Remedial Action\"). Additionally, such consent shall also constitute a written\nconsent of Dynegy and Dynegy Holdings given in accordance with Section 228 of\nthe General Corporation Law of the State of Delaware.\n\n         3. The Non-Bank Parties agree that Northern Natural may incur\nindebtedness that is Permitted Refinancing Debt (as defined in the Certificate\nof Designations), and use the proceeds thereof to retire the Secured Obligations\n(as defined in the Credit Agreement) in accordance with the Credit Agreement.\n\n         4. Except to the extent such payment or distribution is permitted by\nthe Bank Documents, Dynegy agrees that if it receives any payment or\ndistribution upon a redemption or repurchase or other acquisition by Northern\nNatural of the Series A Preferred prior to (i) the repayment in full in cash of\nthe non-contingent Secured Obligations, (ii) the termination of all Commitments\n(as defined in the Credit Agreement) and (iii) the termination or expiration of\nthe Letters of Credit (as defined in the Credit Agreement) or, if any Letters of\nCredit remain outstanding, the provision of cash collateral or an acceptable\nletter of credit in favor of the Issuing Bank (as defined in the Credit\nAgreement) to secure the undrawn amount thereunder, such acceptable letter of\ncredit to be issued by a bank reasonably satisfactory to the Issuing Bank\n(hereinafter, such cash collateral or acceptable letter of credit being referred\nto as the \"LC Collateral Agreements\") (the occurrence of items (i), (ii) and\n(iii) being referred to as the \"Bank Debt Repayment Date\") it shall pay over or\ndeliver to the Paying Agent for the benefit of the \n\n\n                                       2\n\n\n\nSecured Parties all such payments or distributions until the occurrence of \nthe Bank Debt Repayment Date.\n\n         5. Dynegy agrees that if it receives any payment or distribution upon a\nliquidation, deemed liquidation, dissolution, winding up, bankruptcy,\ninsolvency, receivership, reorganization, assignment for the benefit of\ncreditors or other marshaling of assets or liabilities of Northern Natural prior\nto the Bank Debt Repayment Date, it shall pay over or deliver to the Paying\nAgent for the benefit of the Secured Parties all such payments or distributions\nuntil the occurrence of the Bank Debt Repayment Date.\n\n         6. If an Event of Default (as defined in the Credit Agreement) or any\nother event occurs under the Bank Documents and the Co-Administrative Agents\nhave actual knowledge thereof, which results in, or gives the Secured Parties\nthe right to exercise, a Remedial Action (any such Event of Default or such\nother event hereinafter called a \"Trigger Event\"), the Co-Administrative Agents\nshall promptly, but in any case within three Business Days (as defined in the\nCredit Agreement) after having actual knowledge of such Trigger Event, provide\nwritten notice to Dynegy and Dynegy Holdings of the existence of the Trigger\nEvent. If the Secured Parties decide to take any Remedial Action as a result of\nsuch Trigger Event, the Co-Administrative Agents shall promptly, but in any case\nwithin three Business Days after such decision to take such Remedial Action,\nprovide written notice to Dynegy and Dynegy Holdings of the decision to take\nsuch Remedial Action. The Co-Administrative Agents, on behalf of the Secured\nParties, agree not to take any Remedial Action until the Standstill Period (as\nhereinafter defined) has ended; provided, however, nothing herein shall prohibit\nany Secured Party from exercising during the Standstill Period any right it may\nhave at law or under the Bank Documents (i) upon the occurrence and during the\ncontinuance of any Trigger Event to take such action as it deems to be\nreasonably necessary to maintain the effectiveness, perfection or priority of\nits Liens (as defined in the Credit Agreement) under the Bank Documents or (ii)\nupon the occurrence and during the continuance of any Trigger Event other than\nan Enron Default (as hereafter defined) to exercise its rights and remedies\nunder the Account Control Agreements (as defined in the Credit Agreement).\nDuring the Standstill Period, Dynegy shall have the right, but not the\nobligation, to cure any Event of Default (as defined in the Credit Agreement).\nFor purposes of this Agreement, \"Standstill Period\" means the period commencing\non the date a Trigger Event occurs and ending on the earliest of (i) 30 days\nafter delivering written notice to Dynegy and Dynegy Holdings of their decision\nto take any Remedial Action, and (ii) the occurrence of any Event of Default\nwith respect to Northern Natural under Section 6.01(e) of the Credit Agreement\n(the \"Standstill Period\").\n\n         During the Standstill Period, unless the Trigger Event has been cured\nor waived in accordance with the Bank Documents, Dynegy and its assignees shall\nhave the option, but not the obligation, to purchase from the holders (the\n\"Holders\") of the Secured Obligations (the \"Bank Debt\") for an amount (the \"Bank\nDebt Purchase Price\") equal to the sum of (a) the principal amount of Bank Debt\nthen outstanding (excluding the undrawn amount of any outstanding Letters of\nCredit), (b) any accrued and unpaid interest on the Bank Debt at the time of\npurchase and (c) all accrued and unpaid fees, costs and expenses owed by\nNorthern Natural under the Bank Documents. In addition, if such option is\nexercised, Dynegy will provide for LC Collateral Arrangements. The LC Collateral\nArrangements shall be effected, and the Bank Debt Purchase Price shall be paid\nin immediately available funds, in each case collectively in \n\n\n                                       3\n\n\n\nexchange for the contemporaneous (i) sale, transfer and assignment by the \nHolders to Dynegy or its assignee of all rights and obligations of the \nHolders under the Bank Documents as of such date and (ii) delivery to Dynegy \nor its assignee of all evidence of the Bank Debt. Such transfer shall be made \npursuant to documentation in form and substance reasonably satisfactory to \nall Co-Administrative Agents and Dynegy, and shall be made expressly without \nrepresentation or warranty by, or recourse to, the Holders except that the \nHolders shall provide a warranty of good title to the Bank Debt, free and \nclear of encumbrances. At Dynegy's request and expense, the Holders shall \nexecute and deliver such other documents as shall be reasonably requested to \nso transfer the Bank Debt and the liens and security interests evidenced by \nthe Security Documents.\n\n         During the Standstill Period, unless the Trigger Event has been cured\nor waived by the Secured Parties in accordance with the Bank Documents, in the\nevent that Dynegy has any senior unsecured long-term debt with an Investment\nGrade Rating (as hereinafter defined), Dynegy may at its option, in lieu of\nexercising the option contained in the previous paragraph, execute a guarantee\nof the Bank Debt or provide a guarantee of the Bank Debt from a Person which\nowns greater than 20% of Dynegy's common stock as of the date hereof and at such\ntime has senior unsecured long-term debt with an Investment Grade Rating, in\neither event pursuant to a Guarantee substantially in the form of ANNEX B\nattached hereto (any such guarantee herein called an \"Alternate Guarantee\" and\nthe Person executing and delivering such Alternate Guarantee is herein called\nthe \"Alternate Guarantor\"). If such Alternate Guarantor is not Dynegy, ANNEX B\nshall be modified as necessary. An \"Investment Grade Rating\" means the Person\nissuing the Guarantee has at least two of the following ratings: (i) at least\nBBB- from Standard &amp; Poor's Rating Group or any successor thereto, (ii) at least\nBaa3 from Moody's Investors Service, Inc. or any successor thereto, or (iii) at\nleast BBB- from Fitch IBCA, Duff &amp; Phelps or any successor thereto. Upon the\nexecution of such an Alternate Guarantee, any Event of Default under Sections\n6.01(b) (as subsection (b) relates to any action by Enron or any ERISA Affiliate\n(as defined in the Credit Agreement) other than Northern Natural and its\nSubsidiaries under Section 4.01(h) and Section 4.01(m)); 6.01(i); 6.01(j),\n6.01(k), and 6.01(l) (as subsections (j), (k) and (l) relate to any ERISA\nAffiliate other than Northern Natural and its Subsidiaries); 6.01(m); and\n6.01(n)(A), (B) and (C) of the Credit Agreement (each, an \"Enron Default\") will\nautomatically be cured and such Events of Default will be amended to substitute\nthe Alternate Guarantor for Enron as appropriate given the context and\nreferences to Enron in Sections 4.01(m) and 5.02(l) of the Credit Agreement will\nbe changed to references to the Alternate Guarantor. Upon the execution of such\nan Alternate Guarantee on or before the end of the Standstill Period, the Enron\nGuaranty and any other guaranty of the Secured Obligations by Enron or any\nSubsidiary of Enron (other than Northern Natural and NNGC Holdings) will be\nterminated and any such Enron Default shall be deemed cured.\n\n         7. Dynegy and any subsequent holder of shares of the Series A Preferred\nagree that they will not sell, assign, transfer, convey or otherwise dispose of\nany shares of or interest in the Series A Preferred unless the recipient of such\nshares or interest has previously agreed in writing, in form and substance\nreasonably satisfactory to the Co-Administrative Agents and delivered to the\nCo-Administrative Agents, to become a Non-Bank Party to and be subject to and\nbound by this Agreement; provided that no such Assignee of Dynegy shall have the\nbenefit of the option to provide a guarantee under Section 6 hereof. Dynegy\nagrees to submit to Northern Natural for legending in accordance with Section 8\nof the Certificate of Amendment to the Restated \n\n\n                                       4\n\n\n\nCertificate of Incorporation of Northern Natural, and Northern Natural agrees \nto so legend the certificate or certificates representing all of the \noutstanding shares of Series A Preferred.\n\n         8.  Each of JPMorgan Chase Bank, Citicorp USA, Inc. and Citicorp North\nAmerica, Inc. hereby (i) represents that it has no security interest in the\nPledged Shares (as defined in the Credit Agreement) other than pursuant to the\nSecurity Documents and the Voting Trust Agreements referred to therein and (ii)\nagrees that none of Northern Natural, NNGC Holdings and MCTJ has guaranteed any\nindebtedness of Enron or its Affiliates (other than MCTJ and its subsidiaries)\nto the Banks.\n\n         9.  This Agreement shall be governed by and construed in accordance \nwith the laws of the State of New York. This Agreement may not be amended \nexcept by an instrument in writing signed by each of the parties hereto.\n\n         10. This Agreement and any amendments hereto may be executed in\ncounterparts, each of which shall be deemed an original and all of which taken\ntogether shall constitute but a single document.\n\n         11. Except as specifically set forth or referred to herein, nothing\nherein is intended or shall be construed to confer upon any Person other than\nthe parties hereto and their successors or assigns, (including without\nlimitation any Person that becomes a Secured Party in accordance with the Bank\nDocuments) any rights or remedies under or by reason of this Agreement.\n\n         12. This Agreement shall be binding upon and inure to the benefit of\neach of the parties hereto and their successors and assigns.\n\n         13. Nothing contained in this Agreement shall be deemed to create for\nany purpose whatsoever a partnership between the parties hereto or any\nfiduciary, agency, joint venture, trust or other similar duties between the\nparties hereto.\n\n         14. Nothing herein shall be interpreted to create any liability of\nDynegy for the payment or performance of the Secured Obligations or impose any\nliability upon Dynegy due to the occurrence of any Default or Event of Default\n(as such terms are defined in the Credit Agreement).\n\n\n                                       5\n\n\n\n         This Agreement is executed this 19th day of November, 2001.\n\n                             DYNEGY INC.\n\n\n                             By:   \/s\/ Hugh A. Tarpley\n                                  ----------------------------------------------\n                                  Name: Hugh A. Tarpley\n                                  Title: Executive Vice President\n\n                             DYNEGY HOLDINGS INC.\n\n\n                             By:   \/s\/ Hugh A. Tarpley\n                                  ----------------------------------------------\n                                  Name: Hugh A. Tarpley\n                                  Title: Executive Vice President\n\n                             ENRON CORP.\n\n\n                             By:   \/s\/ Raymond M. Bowen, Jr.\n                                  ----------------------------------------------\n                                  Name: Raymond M. Bowen, Jr.\n                                  Title: Executive Vice President Finance and\n                                         Treasurer\n\n\n\n\n                                       6\n\n\n\n                             CGNN HOLDING COMPANY, INC.\n\n\n                             By:  \/s\/ Kevin A. Howard\n                                  ----------------------------------------------\n                                  Name: Kevin A. Howard\n                                  Title: Authorized Agent\n\n                             MCTJ HOLDING CO. LLC\n\n\n                             By:  \/s\/ Kevin A. Howard\n                                  ----------------------------------------------\n                                  Name: Kevin A. Howard\n                                  Title: Authorized Agent\n\n                             NNGC HOLDING COMPANY, INC.\n\n\n                             By:  \/s\/ Kevin A. Howard\n                                  ----------------------------------------------\n                                  Name: Kevin A. Howard\n                                  Title: Authorized Agent\n\n                             NORTHERN NATURAL GAS COMPANY\n\n\n                             By:  \/s\/ Kevin A. Howard\n                                  ----------------------------------------------\n                                  Name: Kevin A. Howard\n                                  Title: Authorized Agent\n\n                             CITICORP NORTH AMERICA, INC.,\n                             as Co-Administrative Agent\n\n                             By:   \/s\/ J. Christoper Lyons\n                                  ----------------------------------------------\n                                  Name: J. Christoper Lyons\n                                  Title:  Vice President\n\n                             JPMORGAN CHASE BANK,\n                             as Co-Administrative Agent and as a Bank\n\n\n                             By:   \/s\/ Robert Anastasio\n                                  ----------------------------------------------\n                                  Name: Robert Anastasio\n                                  Title: Vice President\n\n\n\n                                       7\n\n\n\n                             CITICORP USA, INC.,\n                             as a Bank\n\n                             By:   \/s\/ J. Christoper Lyons\n                                  ----------------------------------------------\n                                  Name: J. Christoper Lyons\n                                  Title:  Vice President\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7104,7381,7454],"corporate_contracts_industries":[9415,9535,9409],"corporate_contracts_types":[9622,9626],"class_list":["post-42981","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-citigroup-inc","corporate_contracts_companies-dynegy-inc","corporate_contracts_companies-enron-corp","corporate_contracts_industries-financial__banks","corporate_contracts_industries-utilities__gas","corporate_contracts_industries-energy__exploration","corporate_contracts_types-planning","corporate_contracts_types-planning__merger"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42981","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42981"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42981"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42981"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42981"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}