Exhibit 4.28

 

THIRD SUPPLEMENTAL INDENTURE

 

THIRD SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of April 2, 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 Company’s 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 2, 2015
    	
 
    	
 
    
	
 
    	
 
    
	
 
    	
DYNEGY   INC.
    
	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Robert C. Flexon
    
	
 
    	
Name:
    	
Robert   C. Flexon
    
	
 
    	
Title:
    	
President &   Chief Executive Officer
    
	
 
    	
 
    	
 
    
	
 
    	
DYNEGY ENERGY SERVICES (EAST), LLC
    
	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Robert C. Flexon
    
	
 
    	
Name:
    	
Robert   C. Flexon
    
	
 
    	
Title:
    	
Chief   Executive Officer
    
	
 
    	
 
    	
 
    
	
 
    	
DYNEGY RESOURCE I, LLC
    
	
 
    	
DYNEGY COMMERCIAL ASSET MANAGEMENT, LLC
    
	
 
    	
DYNEGY CONESVILLE, LLC
    
	
 
    	
DYNEGY DICKS CREEK, LLC
    
	
 
    	
DYNEGY FAYETTE II, LLC
    
	
 
    	
DYNEGY HANGING ROCK II, LLC
    
	
 
    	
DYNEGY KILLEN, LLC
    
	
 
    	
DYNEGY LEE II, LLC
    
	
 
    	
DYNEGY MIAMI FORT, LLC
    
	
 
    	
DYNEGY STUART, LLC
    
	
 
    	
DYNEGY WASHINGTON II, LLC
    
	
 
    	
DYNEGY ZIMMER, LLC
    
	
 
    	
DYNEGY COAL GENERATION, LLC
    
	
 
    	
DYNEGY GAS GENERATION, LLC
    
	
 
    	
DYNEGY GENERATION HOLDCO, LLC
    
	
 
    	
 
    
	
 
    	
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:
    
	
 
    	
 
    
	
 
    	
DYNEGY   ENERGY SERVICES, LLC
    
	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Robert C. Flexon
    
	
 
    	
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
    
	
 
    	
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
    
	
 
    	
SITHE/INDEPENDENCE   POWER PARTNERS, L.P.
    
	
 
    	
 
    
	
 
    	
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
    
	
 
    	
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
    
	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Robert C. Flexon
    
	
 
    	
Name:   
    	
Robert   C. Flexon
    
	
 
    	
Title:   
    	
President &   Chief Executive Officer
    


 

[SIGNATURE PAGES CONTINUE]

 











 

	
 
    	
WILMINGTON TRUST, NATIONAL ASSOCIATION,
    
	
 
    	
as Trustee
    
	
 
    	
 
    
	
 
    	
By: 
    	
/s/ Boris Treyger
    
	
 
    	
Name: 
    	
Boris Treyger
    
	
 
    	
Title: 
    	
Vice President
    


 











 

SCHEDULE I

 

SUBSIDIARY GUARANTEES

 

	
DYNEGY RESOURCE I, LLC
    	
 
    
	
DYNEGY COMMERCIAL ASSET MANAGEMENT, LLC
    	
 
    
	
DYNEGY ENERGY SERVICES (EAST), LLC
    	
 
    
	
DYNEGY CONESVILLE, LLC
    	
 
    
	
DYNEGY DICKS CREEK, LLC
    	
 
    
	
DYNEGY FAYETTE II, LLC
    	
 
    
	
DYNEGY HANGING ROCK II, LLC
    	
 
    
	
DYNEGY KILLEN, LLC
    	
 
    
	
DYNEGY LEE II, LLC
    	
 
    
	
DYNEGY MIAMI FORT, LLC
    	
 
    
	
DYNEGY RESOURCE I, LLC
    	
 
    
	
DYNEGY STUART, LLC
    	
 
    
	
DYNEGY WASHINGTON II, LLC
    	
 
    
	
DYNEGY ZIMMER, LLC
    	
 
    
	
DYNEGY COAL GENERATION, LLC
    	
 
    
	
DYNEGY GAS GENERATION, LLC
    	
 
    
	
DYNEGY GENERATION HOLDCO, LLC