Form 10-Q Vistra Energy Corp. For: Jun 30
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E-mailExhibit 4.12
SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT
This SECOND AMENDMENT (this “Amendment”), dated as of June 3, 2019, is among TXU ENERGY RETAIL COMPANY LLC, a Texas limited liability company (“TXU”), as Originator (in such capacity, together with its successors and permitted assigns in such capacity, the “Servicer”), TXU ENERGY RECEIVABLES COMPANY LLC, a Delaware limited liability company, as buyer (the “Company”), Dynegy Energy Services, LLC, as an Originator, Dynegy Energy Services (East), LLC, as an Originator, and as agreed to and acknowledged by CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, a national banking association (“CACIB”), as Administrator (in such capacity, together with its successors and permitted assigns in such capacity, the “Administrator”). Capitalized terms used but not otherwise defined herein have the respective meanings assigned thereto in the Agreement (as defined below).
R E C I T A L S
WHEREAS, TXU, as Originator and the Company are parties to that certain Purchase and Sale Agreement, dated as of August 21, 2018 (as amended, restated, supplemented or otherwise modified through the date hereof, the “Agreement”).
WHEREAS, concurrently herewith, the Company, the Servicer, the Performance Guarantor, the Purchasers and Purchaser Agents party thereto and the Administrator are entering into that certain Second Amendment to Receivables Purchase Agreement, dated as of the date hereof (the “RPA Amendment”).
WHEREAS, the parties hereto desire to amend the Agreement as hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
A G R E E M E N T
SECTION 1. Amendments to the Agreement. The Agreement is hereby amended as follows:
(a) Section 6.1(e) of the Agreement is amended and restated in its entirety as follows:
(e) Deposits to Collection Accounts. Such Originator hereby directs the Servicer to, or to cause each Payment Processor to, instruct, all Obligors to make payments of all Sold Receivables to one or more Collection Accounts or Lock-Boxes or Payment Processors. Such Originator hereby directs the Servicer to instruct all Payment Processors to remit all payments of all Sold Receivables to one or more Collection Accounts or Lock-Boxes. If the Servicer fails to, or fails to cause each Payment Processor to, so instruct an Obligor, or if an Obligor or a Payment Processor fails to so deliver payments to a Collection Account or Lock-Box, such Originator will use all
reasonable efforts to, or to cause each Payment Processor to, cause such Obligor or Payment Processor to deliver subsequent payments on Sold Receivables to a Collection Account or Lock-Box and (ii) deposit, or cause to be deposited, any Collections received by it, into a Collection Account subject to a Lock-Box Agreement not later than two Business Days after receipt thereof. Such Originator shall only consent to the addition of a Payment Processor to those listed on Schedule III to the Receivables Purchase Agreement if the Administrator has received prior written notice of such addition. Notwithstanding the foregoing requirements of this Section 6.1(e), until June 28, 2019, Collections on Receivables originated by Dynegy Energy Services, LLC may be received into the Dynegy Account but only so long as all available Collections in such accounts are swept on a daily basis to the Concentration Account.
(b) Section 7.2(a) of the Agreement is amended and restated in its entirety as follows:
(a) Collection Procedures. Each Originator agrees to (i) direct, or cause each Payment Processor to direct, its respective Obligors to make payments of Receivables sold, contributed or otherwise conveyed or purported to be conveyed by it hereunder to one or more Collection Accounts or Lock-Boxes or Payment Processors and (ii) direct each Payment Processor to remit all payments of Receivables sold, contributed or otherwise conveyed or purported to be conveyed by it hereunder to one or more Collection Accounts or Lock-Boxes. Each Originator further agrees to transfer any Collections of Sold Receivables that it receives directly to a Collection Account or the Concentration Account within two (2) Business Days of receipt thereof, and agrees that all such Collections shall be deemed to be received in trust for the Company and the Administrator (as the Company’s assignee). Notwithstanding the foregoing requirements of this Section 7.2(a), until June 28, 2019, Collections on Receivables originated by Dynegy Energy Services, LLC may be received into the Dynegy Account but only so long as all available Collections in such accounts are swept on a daily basis to the Concentration Account.
SECTION 2. Conditions to Effectiveness.
This Amendment shall become effective as of the date hereof, provided that neither the Facility Termination Date nor a Termination Event or Unmatured Termination Event has occurred and subject to (i) the payment of any fees, costs and expenses due and payable to each Purchaser Agent under the Fee Letter and (ii) the condition precedent that the Administrator shall have received each of the following, each duly executed and dated as of the date hereof (or such other date satisfactory to the Administrator), in form and substance satisfactory to the Administrator:
(a) counterparts of this Amendment (whether by facsimile or otherwise) executed by each of the parties hereto;
(b) counterparts of the RPA Amendment (whether by facsimile or otherwise) executed by each of the respective parties thereto; and
(c) such other documents, agreements, certificates, opinions and instruments as the Administrator may reasonably request prior to delivery by Administrator of an executed counterpart of this Amendment.
SECTION 3. Representations and Warranties.
Each of the Seller and the Servicer, as applicable, hereby represents and warrants to each Purchaser, each Purchaser Agent and the Administrator as follows:
(a) Representations and Warranties. The representations and warranties contained in Article V of the Agreement are true and correct as of the date hereof (unless stated to relate solely to an earlier date, in which case such representations or warranties were true and correct as of such earlier date).
(b) Enforceability. The execution and delivery by each of the Seller and the Servicer of this Amendment, and the performance of each of its obligations under this Amendment and the Agreement, as amended hereby, are within each of its organizational powers and have been duly authorized by all necessary action on each of its parts. This Amendment and the Agreement, as amended hereby, are each of the Seller’s and the Servicer’s valid and legally binding obligations, enforceable in accordance with its terms.
(c) No Default. Immediately after giving effect to this Amendment and the transactions contemplated hereby, no Termination Event or Unmatured Termination Event exists or shall exist and the Purchased Interest shall not exceed 100%.
SECTION 4. Effect of Amendment; Ratification. Except as specifically amended hereby, the Agreement is hereby ratified and confirmed in all respects, and all of its provisions shall remain in full force and effect. After this Amendment becomes effective, all references in the Agreement (or in any other Transaction Document) to “the Purchase and Sale Agreement”, “this Agreement”, “hereof”, “herein”, or words of similar effect, in each case referring to the Agreement, shall be deemed to be references to the Agreement as amended hereby. This Amendment shall not be deemed to expressly or impliedly waive, amend, or supplement any provision of the Agreement other than as specifically set forth herein.
SECTION 5. Counterparts. This Amendment may be executed in any number of counterparts (including in PDF or similar electronic format by facsimile or e-mail transmission), each of which, when so executed, shall be deemed to be an original, and all of which, when taken together, shall constitute one and the same agreement.
SECTION 6. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO ITS CONFLICTS OF LAW PROVISIONS (OTHER THAN
§5-1401 AND §5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, WHICH SHALL APPLY HERETO).
SECTION 7. Section Headings. The various headings of this Amendment are inserted for convenience only and shall not affect the meaning or interpretation of this Amendment or the Agreement or any provision hereof or thereof.
SECTION 8. Successors and Assigns. This Amendment shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.
SECTION 9. Severability. If any one or more of the agreements, provisions or terms of this Amendment shall for any reason whatsoever be held invalid or unenforceable, then such agreements, provisions or terms shall be deemed severable from the remaining agreements, provisions and terms of this Amendment and shall in no way affect the validity or enforceability of the provisions of this Amendment or the Agreement.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first written above.
TXU ENERGY RETAIL COMPANY LLC, as an Originator
By: /s/ Kristopher E. Moldovan_________
Name: Kristopher E. Moldovan
Title: Senior Vice President and Treasurer
Name: Kristopher E. Moldovan
Title: Senior Vice President and Treasurer
DYNEGY ENERGY SERVICES (EAST), LLC, as an Originator
By: /s/ Kristopher E. Moldovan_________
Name: Kristopher E. Moldovan
Title: Senior Vice President and Treasurer
Name: Kristopher E. Moldovan
Title: Senior Vice President and Treasurer
DYNEGY ENERGY SERVICES (EAST), LLC, as an Originator
By: /s/ Kristopher E. Moldovan_________
Name: Kristopher E. Moldovan
Title: Senior Vice President and Treasurer
Name: Kristopher E. Moldovan
Title: Senior Vice President and Treasurer
TXU ENERGY RECEIVABLES COMPANY LLC
By: /s/ Kristopher E. Moldovan_________
Name: Kristopher E. Moldovan
Title: Senior Vice President and Treasurer
Name: Kristopher E. Moldovan
Title: Senior Vice President and Treasurer
[Signature Page to Second Amendment to PSA]
ACKNOWLEDGED AND AGREED:
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as Administrator
By: /s/ Michael Regan_________________
Name: Michael Regan
Title: Managing Director
By: /s/ Roger Klepper__________________
Name: Roger Klepper
Title: Managing Director
[Signature Page to Second Amendment to PSA]
Exhibit 4.13
SECOND AMENDMENT TO RECEIVABLES PURCHASE AGREEMENT
This SECOND AMENDMENT (this “Amendment”), dated as of June 3, 2019, is among TXU ENERGY RECEIVABLES COMPANY LLC, a Delaware limited liability company, as seller (the “Seller”), TXU ENERGY RETAIL COMPANY LLC, a Texas limited liability company (“TXU”), as servicer (in such capacity, together with its successors and permitted assigns in such capacity, the “Servicer”), CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, a national banking association (“CACIB”), as Administrator (in such capacity, together with its successors and permitted assigns in such capacity, the “Administrator”), the PURCHASERS and PURCHASER AGENTS from time to time party to the Agreement (as defined below) and VISTRA OPERATIONS COMPANY LLC, a Delaware limited liability company (“Vistra”), as Performance Guarantor. Capitalized terms used but not otherwise defined herein have the respective meanings assigned thereto in the Agreement (as defined below).
R E C I T A L S
WHEREAS, the parties hereto are parties to the Receivables Purchase Agreement, dated as of August 21, 2018 (as amended, restated, supplemented or otherwise modified through the date hereof, the “Agreement”).
WHEREAS, the parties hereto desire to amend the Agreement as hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
A G R E E M E N T
SECTION 1. Amendments to the Agreement. The Agreement is hereby amended as follows:
(a) Section 4.3(a) of the Agreement is amended and restated in its entirety as follows:
(a) On or prior to the Closing Date, the Seller shall have delivered to the Administrator a Lock-Box Agreement in respect of each Collection Account and the Concentration Account identified on Schedule II as of the Closing Date and delivered an original counterpart thereof to the Administrator. The Lock-Box Agreements for the Collection Accounts and the Concentration Account shall provide the Administrator with “control” within the meaning of Section 9-104 of the UCC over such Collection Accounts and Concentration Account. The Lock-Box Banks for the Collection Accounts (other than any Collection Account receiving Collections (either directly or by transfer directly from a related Lock-Box) on a Receivable originated by Dynegy Energy Services, LLC or Dynegy Energy Services (East), LLC) shall be directed by the Servicer to sweep all available funds therein on a daily basis to the Concentration
Account. The Seller shall not, and shall not permit any other Person to, attempt to terminate such automatic sweep feature or attempt to close the Concentration Account or any Collection Account unless the Collections directed to such Collection Account are redirected to another Collection Account subject to a Lock-Box Agreement. Notwithstanding the foregoing requirements of this Section 4.3(a), until June 28, 2019 (the “Collection Account Grace Period End Date”), Collections on Receivables originated by Dynegy Energy Services, LLC may be received into the Dynegy Account but only so long as all available Collections in such accounts are swept on a daily basis to the Concentration Account.
SECTION 2. Conditions to Effectiveness.
This Amendment shall become effective as of the date hereof, provided that neither the Facility Termination Date nor a Termination Event or Unmatured Termination Event has occurred and subject to (i) the payment of any fees, costs and expenses due and payable to each Purchaser Agent under the Fee Letter and (ii) the condition precedent that the Administrator shall have received each of the following, each duly executed and dated as of the date hereof (or such other date satisfactory to the Administrator), in form and substance satisfactory to the Administrator:
(a) counterparts of this Amendment (whether by facsimile or otherwise) executed by each of the parties hereto; and
(b) such other documents, agreements, certificates, opinions and instruments as the Administrator may reasonably request prior to delivery by Administrator of an executed counterpart of this Amendment.
SECTION 3. Representations and Warranties.
Each of the Seller and the Servicer, as applicable, hereby represents and warrants to each Purchaser, each Purchaser Agent and the Administrator as follows:
(a) Representations and Warranties. The representations and warranties contained in Exhibit III of the Agreement are true and correct as of the date hereof (unless stated to relate solely to an earlier date, in which case such representations or warranties were true and correct as of such earlier date).
(b) Enforceability. The execution and delivery by each of the Seller and the Servicer of this Amendment, and the performance of each of its obligations under this Amendment and the Agreement, as amended hereby, are within each of its organizational powers and have been duly authorized by all necessary action on each of its parts. This Amendment and the Agreement, as amended hereby, are each of the Seller’s and the Servicer’s valid and legally binding obligations, enforceable in accordance with its terms.
(c) No Default. Immediately after giving effect to this Amendment and the transactions contemplated hereby, no Termination Event or Unmatured Termination Event exists or shall exist and the Purchased Interest shall not exceed 100%.
SECTION 4. Effect of Amendment; Ratification. Except as specifically amended hereby, the Agreement is hereby ratified and confirmed in all respects, and all of its provisions shall remain in full force and effect. After this Amendment becomes effective, all references in the Agreement (or in any other Transaction Document) to “the Receivables Purchase Agreement”, “this Agreement”, “hereof”, “herein”, or words of similar effect, in each case referring to the Agreement, shall be deemed to be references to the Agreement as amended hereby. This Amendment shall not be deemed to expressly or impliedly waive, amend, or supplement any provision of the Agreement other than as specifically set forth herein.
SECTION 5. Reaffirmation of Performance Guaranty. After giving effect to this Amendment and each of the other transactions contemplated hereby, all of the provisions of the Performance Guaranty shall remain in full force and effect and Vistra hereby ratifies and affirms the Performance Guaranty and acknowledges that the Performance Guaranty has continued and shall continue in full force and effect in accordance with its terms.
SECTION 6. Counterparts. This Amendment may be executed in any number of counterparts (including in PDF or similar electronic format by facsimile or e-mail transmission), each of which, when so executed, shall be deemed to be an original, and all of which, when taken together, shall constitute one and the same agreement.
SECTION 7. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO ITS CONFLICTS OF LAW PROVISIONS (OTHER THAN §5-1401 AND §5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, WHICH SHALL APPLY HERETO).
SECTION 8. Section Headings. The various headings of this Amendment are inserted for convenience only and shall not affect the meaning or interpretation of this Amendment or the Agreement or any provision hereof or thereof.
SECTION 9. Successors and Assigns. This Amendment shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.
SECTION 10. Severability. If any one or more of the agreements, provisions or terms of this Amendment shall for any reason whatsoever be held invalid or unenforceable, then such agreements, provisions or terms shall be deemed severable from the remaining agreements, provisions and terms of this Amendment and shall in no way affect the validity or enforceability of the provisions of this Amendment or the Agreement.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first written above.
TXU ENERGY RECEIVABLES COMPANY LLC,
as Seller
By: /s/ Kristopher E. Moldovan_________
Name: Kristopher E. Moldovan
Title: Senior Vice President and Treasurer
Name: Kristopher E. Moldovan
Title: Senior Vice President and Treasurer
TXU ENERGY RETAIL COMPANY LLC, in its individual capacity and as Servicer
By: /s/ Kristopher E. Moldovan_________
Name: Kristopher E. Moldovan
Title: Senior Vice President and Treasurer
Name: Kristopher E. Moldovan
Title: Senior Vice President and Treasurer
VISTRA OPERATIONS COMPANY LLC, as Performance Guarantor
By: /s/ Kristopher E. Moldovan_________
Name: Kristopher E. Moldovan
Title: Senior Vice President and Treasurer
Name: Kristopher E. Moldovan
Title: Senior Vice President and Treasurer
[Signature Page to Second Amendment to RPA]
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as Administrator
By: /s/ Michael Regan_________________
Name: Michael Regan
Title: Managing Director
By: /s/ Roger Klepper__________________
Name: Roger Klepper
Title: Managing Director
[Signature Page to Second Amendment to RPA]
CACIB PURCHASER GROUP:
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as Purchaser Agent
By: /s/ Michael Regan_________________
Name: Michael Regan
Title: Managing Director
By: /s/ Roger Klepper__________________
Name: Roger Klepper
Title: Managing Director
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as Committed Purchaser
By: /s/ Michael Regan_________________
Name: Michael Regan
Title: Managing Director
By: /s/ Roger Klepper__________________
Name: Roger Klepper
Title: Managing Director
ATLANTIC ASSET SECURITIZATION LLC,
as Conduit Purchaser
By: /s/ Michael Regan_________________
Name: Michael Regan
Title: Managing Director
By: /s/ Roger Klepper__________________
Name: Roger Klepper
Title: Managing Director
[Signature Page to Second Amendment to RPA]
RBC PURCHASER GROUP:
ROYAL BANK OF CANADA, as Purchaser Agent
By: /s/ Veronica L. Gallagher______________
Name: Veronica L. Gallagher
Title: Authorized Signatory
ROYAL BANK OF CANADA, as Committed Purchaser
By: /s/ Veronica L. Gallagher______________
Name: Veronica L. Gallagher
Title: Authorized Signatory
By: /s/ Stephen A. Kuklinski______________
Name: Stephen A. Kuklinski
Title: Authorized Signatory
THUNDER BAY FUNDING, LLC,
as Conduit Purchaser
By: /s/ Veronica L. Gallagher______________
Name: Veronica L. Gallagher
Title: Authorized Signatory
[Signature Page to Second Amendment to RPA]
Exhibit 31.1
CERTIFICATION OF PRESIDENT AND CHIEF EXECUTIVE OFFICER
PURSUANT TO
EXCHANGE ACT RULES 13a-14(a) AND 15d-14(a),
AS ADOPTED PURSUANT TO
SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Curtis A. Morgan, certify that:
1. | I have reviewed this Quarterly Report on Form 10-Q of Vistra Energy Corp.; |
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
4. | The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
c) | Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
d) | Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and |
5. | The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions): |
a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and |
b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. |
Date: August 2, 2019 | /s/ Curtis A. Morgan |
Curtis A. Morgan | |
President and Chief Executive Officer | |
(Principal Executive Officer) | |
Exhibit 31.2
CERTIFICATION OF CHIEF FINANCIAL OFFICER
PURSUANT TO
EXCHANGE ACT RULES 13a-14(a) AND 15d-14(a),
AS ADOPTED PURSUANT TO
SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, David A. Campbell, certify that:
1. | I have reviewed this Quarterly Report on Form 10-Q of Vistra Energy Corp.; |
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
4. | The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
c) | Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
d) | Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and |
5. | The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions): |
a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and |
b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. |
Date: August 2, 2019 | /s/ David A. Campbell |
David A. Campbell | |
Executive Vice President and Chief Financial Officer | |
(Principal Financial Officer) | |
Exhibit 32.1
CERTIFICATION OF PRESIDENT AND CHIEF EXECUTIVE OFFICER
PURSUANT TO 18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Quarterly Report of Vistra Energy Corp. (the “Company”) on Form 10-Q for the period ended June 30, 2019 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Curtis A. Morgan, President and Chief Executive Officer of the Company, hereby certify as of the date hereof, solely for the purposes of Title 18, Chapter 63, Section 1350 of the United States Code, that to the best of my knowledge:
(1) | the Report fully complies with the requirements of Section 13(a) or 15(d), as applicable, of the Securities Exchange Act of 1934, and |
(2) | the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company at the dates and for the periods indicated. |
Date: August 2, 2019 | /s/ Curtis A. Morgan |
Curtis A. Morgan | |
President and Chief Executive Officer | |
(Principal Executive Officer) | |
The foregoing certification is not deemed filed with the Securities and Exchange Commission for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (Exchange Act), and is not to be incorporated by reference into any filing of Vistra Energy Corp. under Securities Act of 1933, as amended, or the Exchange Act, whether made before or after the date hereof, regardless of any general incorporation language of such filing.
Exhibit 32.2
CERTIFICATION OF CHIEF FINANCIAL OFFICER
PURSUANT TO 18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Quarterly Report of Vistra Energy Corp. (the “Company”) on Form 10-Q for the period ended June 30, 2019 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, David A. Campbell, Executive Vice President and Chief Financial Officer of the Company, hereby certify as of the date hereof, solely for the purposes of Title 18, Chapter 63, Section 1350 of the United States Code, that to the best of my knowledge:
(1) | the Report fully complies with the requirements of Section 13(a) or 15(d), as applicable, of the Securities Exchange Act of 1934, and |
(2) | the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company at the dates and for the periods indicated. |
Date: August 2, 2019 | /s/ David A. Campbell |
David A. Campbell | |
Executive Vice President and Chief Financial Officer | |
(Principal Financial Officer) | |
The foregoing certification is not deemed filed with the Securities and Exchange Commission for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (Exchange Act), and is not to be incorporated by reference into any filing of Vistra Energy Corp. under Securities Act of 1933, as amended, or the Exchange Act, whether made before or after the date hereof, regardless of any general incorporation language of such filing.
Exhibit 95.1
Mine Safety Disclosures
Safety is a top priority in all our businesses, and accordingly, it is a key component of our focus on operational excellence, our employee performance reviews and employee compensation. Our health and safety program objectives are to prevent workplace accidents and ensure that all employees return home safely and comply with all regulations.
Vistra Energy currently owns and operates, or is in the process of reclaiming, 12 surface lignite coal mines in Texas to provide fuel for its electricity generation facilities. Vistra Energy also owns or leases, and is in the process of reclaiming, two waste-to-energy surface facilities in Pennsylvania. These mining operations are regulated by the U.S. Mine Safety and Health Administration (MSHA) under the Federal Mine Safety and Health Act of 1977, as amended (the Mine Act), as well as other regulatory agencies such as the RCT. The MSHA inspects U.S. mines, including Vistra Energy's, on a regular basis and if it believes a violation of the Mine Act or any health or safety standard or other regulation has occurred, it may issue a citation or order, generally accompanied by a proposed fine or assessment. Such citations and orders can be contested and appealed to the Federal Mine Safety and Health Review Commission (FMSHRC), which often results in a reduction of the severity and amount of fines and assessments and sometimes results in dismissal. The number of citations, orders and proposed assessments vary depending on the size of the mine as well as other factors.
Disclosures related to specific mines pursuant to Section 1503 of the Dodd-Frank Wall Street Reform and Consumer Protection Act and Item 104 of Regulation S-K sourced from data documented at July 11, 2019 in the MSHA Data Retrieval System for the three months ended June 30, 2019 (except pending legal actions, which are at June 30, 2019), are as follows:
Mine (a) | Section 104 S and S Citations (b) | Section 104(b) Orders | Section 104(d) Citations and Orders | Section 110(b)(2) Violations | Section 107(a) Orders | Total Dollar Value of MSHA Assessments Proposed (c) | Total Number of Mining Related Fatalities | Received Notice of Pattern of Violations Under Section 104(e) | Received Notice of Potential to Have Pattern Under Section 104(e) | Legal Actions Pending at Last Day of Period (d) | Legal Actions Initiated During Period | Legal Actions Resolved During Period | |||||||||||||||||
Kosse | — | — | — | — | — | — | — | — | — | 2 | — | — | |||||||||||||||||
Liberty | 2 | — | — | — | — | — | — | — | — | — | — | 1 | |||||||||||||||||
Northeastern Power Cogeneration Facility | — | — | — | — | — | — | — | — | — | — | — | 1 | |||||||||||||||||
____________
(a) | Excludes mines for which there were no applicable events. |
(b) | Includes MSHA citations for mandatory health or safety standards that could significantly and substantially contribute to a serious injury if left unabated. |
(c) | Total value in thousands of dollars for proposed assessments received from MSHA for all citations and orders issued in the three months ended June 30, 2019, including but not limited to Sections 104, 107 and 110 citations and orders that are not required to be reported. |
(d) | Pending actions before the FMSHRC involving a coal or other mine. Both are contests of proposed penalties. |
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