Exhibit 10.5

 

Execution Version

 

WAIVER TO CREDIT AGREEMENT

 

This WAIVER TO CREDIT AGREEMENT (this “Waiver”) is entered into as of June 27, 2016, among Dynegy Inc., a Delaware corporation (the “Borrower”) and the Lenders party hereto.  Unless otherwise indicated, all capitalized terms used herein and not otherwise defined shall have the respective meanings provided such terms in the Credit Agreement referred to below.

 

RECITALS

 

WHEREAS, the Borrower, the lenders from time to time party thereto (each, a “Lender” and, collectively, the “Lenders”) and Credit Suisse AG, Cayman Islands Branch, as administrative agent (in such capacity, the “Administrative Agent”), are parties to that certain Credit Agreement, dated as of April 23, 2013 (as amended by that certain First Amendment to Credit Agreement, dated as of April 1, 2015, among the Borrower, the other Credit Parties party thereto, the Administrative Agent and the Lenders party thereto, and that certain Second Amendment to Credit Agreement, dated as of April 2, 2015, among the Borrower, the other Credit Parties party thereto, the Incremental Revolving Lenders thereto and the Administrative Agent, the “Credit Agreement”);

 

WHEREAS, in connection with the Delta Acquisition, the Borrower may establish a Revolving Commitment Increase to the Incremental Tranche B Revolving Loan Commitments in an aggregate principal amount of $75,000,000 (the “Incremental Tranche B Revolver Increase”) and incur Incremental Term Loans in an aggregate principal amount of $2,000,000,000 (the “Incremental Tranche C Term Loans” and, together with the Incremental Tranche B Revolver Increase, the “Delta Acquisition Incremental Financing”);

 

WHEREAS, the Borrower hereby requests the Lenders to waive the conditions contained in Section 2.15(a)(ii) of the Credit Agreement (collectively, the “Pro Forma Covenant Compliance Requirement”) and the leverage incurrence condition contained in the definition of “Maximum Incremental Facilities Amount” in the Credit Agreement (the “Incremental Ratio Cap” and, together with the Pro Forma Covenant Compliance Requirement, the “Incremental Ratio Tests”) in connection with the Delta Acquisition Incremental Financing; and

 

NOW, THEREFORE, in consideration of the foregoing, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

SECTION 1.  Waiver.  The Lenders party hereto hereby waive the Incremental Ratio Tests in connection with the Delta Acquisition Incremental Financing and hereby confirm that, notwithstanding the requirements set forth in Section 2.15(a) of the Credit Agreement or any other provision of any Credit Document, the Borrower may establish and incur the Delta Acquisition Incremental Financing without regard to the satisfaction of the Incremental Ratio Tests and no Default or Event of Default shall occur as a result of any breach of the Incremental Ratio Tests in connection with the Delta Acquisition Incremental Financing; it being understood that the funding of the Incremental Tranche C Term Loans may be effected through the release 

 











 

of escrowed funds incurred by an Unrestricted Subsidiary (in each case, on terms to be agreed) for such purpose and disbursed to, or at the direction of, the Borrower, which disbursement may be deemed to be the funding of the Incremental Tranche C Term Loans (including by way of conversion of loans).

 

SECTION 2.  Reference To And Effect Upon The Credit Agreement.  (a)  From and after the Waiver Effective Date, (i) the term “Agreement” in the Credit Agreement, and all references to the Credit Agreement in any other Credit Document, shall mean the Credit Agreement as modified hereby, and (ii) this Waiver shall constitute a Credit Document for all purposes of the Credit Agreement and the other Credit Documents.

 

(b) This Waiver is limited as specified and shall not constitute a modification, acceptance or waiver of any other provision of the Credit Agreement or any other Credit Document.

 

SECTION 3.  Effectiveness.  This Waiver shall become effective at such time (the “Waiver Effective Date”) when this Waiver shall have been duly executed and delivered by the Borrower and Lenders constituting the Required Lenders.

 

SECTION 4.  Definitions.  As used in this Waiver, the following terms have the meaning specified below:

 

“Delta Acquisition” means the purchase by the Borrower, directly or indirectly, of one hundred percent (100%) of the voting equity interests of the Delta Target Entities.

 

“Delta Acquisition Agreement” means the Stock Purchase Agreement, dated February 24, 2016 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with the provisions thereof, together with all schedules and exhibits thereto), among inter alia, Atlas Power Finance, LLC, an indirect domestic Subsidiary of the Borrower, and International Power, S.A., whereby the Borrower, indirectly, will acquire all of the issued and outstanding capital stock of GDF Suez Energy North America, Inc.

 

“Delta Target Entities” means collectively, GDF Suez Energy North America, Inc. and its subsidiaries to be acquired pursuant to the Delta Acquisition Agreement.

 

SECTION 5.  Counterparts, Etc.  This Waiver may be executed in any number of counterparts, each of which when so executed shall be deemed an original, but all such counterparts shall constitute one and the same instrument, and all signatures need not appear on any one counterpart.  Any party hereto may execute and deliver a counterpart of this Waiver by delivering by facsimile or other electronic transmission a signature page of this Waiver signed by such party, and any such facsimile or other electronic signature shall be treated in all respects as having the same effect as an original signature.  Section headings in this Waiver are included herein for convenience of reference only and shall not constitute part of this Waiver for any other purpose.

 

SECTION 6.  Governing Law; WAIVER OF JURY TRIAL.  This Waiver and the rights and obligations of the parties under this Waiver shall be governed by, and construed and interpreted in accordance with, the law of the State of New York.  EACH OF THE 

 

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PARTIES HERETO IRREVOCABLY AGREES TO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY SUIT, ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) RELATED TO OR ARISING OUT OF THIS WAIVER.

 

SECTION 7.  Jurisdiction.  Each of the parties hereto irrevocably and unconditionally (a) submits to the exclusive jurisdiction of any state or federal court sitting in the Borough of Manhattan in the City of New York (or any appellate court therefrom) over any suit, action or proceeding arising out of or relating to this Waiver, the transactions contemplated hereby or the performance of services hereunder and agrees that all claims in respect of any such suit, action or proceeding shall be heard and determined in such New York state, or to the extent permitted thereby, such federal court sitting in the Borough of Manhattan in the City of New York (or any appellate court therefrom) and (b) agrees that a final judgment in any such suit, action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit or the judgment or in any other matter provided by law.  You and we agree that service of any process, summons, notice or document by registered mail addressed to such person shall be effective service of process against such person for any suit, action or proceeding brought in any such court.  Each of the parties hereto hereby irrevocably and unconditionally waives any objection to the laying of venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding has been brought in an inconvenient forum.

 

[Signature Pages to follow]

 

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IN WITNESS WHEREOF, this Waiver has been executed by the parties hereto as of the date first written above.

 

 

	
 
    	
DYNEGY   INC.
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Siddharth Manjeshwar
    
	
 
    	
 
    	
Name:
    	
Siddharth Manjeshwar
    
	
 
    	
 
    	
Title:
    	
Vice   President and Treasurer
    


 

Signature Page to Waiver to Dynegy Credit Agreement

 











 

	
 
    	
BLUE   RIDGE GENERATION LLC
    
	
 
    	
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   ENERGY SERVICES (EAST), 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/   Siddharth Manjeshwar
    
	
 
    	
 
    	
Name:
    	
Siddharth Manjeshwar
    
	
 
    	
 
    	
Title:
    	
Vice   President and Treasurer
    
	
 
    	
 
    
	
 
    	
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/   Siddharth Manjeshwar
    
	
 
    	
 
    	
Name:
    	
Siddharth Manjeshwar
    
	
 
    	
 
    	
Title:
    	
Vice   President and Treasurer
    


 

Signature Page to Waiver to Dynegy Credit Agreement

 











 

	
 
    	
MASSPOWER, a Massachusetts general partnership
    
	
 
    	
 
    
	
 
    	
By:   Masspower Partners II, LLC, its Managing
    
	
 
    	
Partner
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Siddharth Manjeshwar
    
	
 
    	
 
    	
Name:
    	
Siddharth Manjeshwar
    
	
 
    	
 
    	
Title:
    	
Vice   President and Treasurer
    
	
 
    	
 
    
	
 
    	
DIGHTON POWER, LLC
    
	
 
    	
DYNEGY RESOURCE II, LLC
    
	
 
    	
DYNEGY RESOURCE III, LLC
    
	
 
    	
DYNEGY RESOURCE HOLDINGS, LLC
    
	
 
    	
DYNEGY RESOURCES GENERATING HOLDCO, LLC
    
	
 
    	
DYNEGY RESOURCES HOLDCO I, LLC
    
	
 
    	
DYNEGY RESOURCES HOLDCO II, LLC
    
	
 
    	
DYNEGY RESOURCES MANAGEMENT, LLC
    
	
 
    	
ELWOOD ENERGY HOLDINGS, LLC
    
	
 
    	
ELWOOD ENERGY HOLDINGS II, LLC
    
	
 
    	
ELWOOD EXPANSION HOLDINGS, LLC
    
	
 
    	
ELWOOD SERVICES COMPANY, LLC
    
	
 
    	
EQUIPOWER RESOURCES CORP.
    
	
 
    	
KINCAID ENERGY SERVICES COMPANY, LLC
    
	
 
    	
KINCAID GENERATION, L.L.C.
    
	
 
    	
KINCAID HOLDINGS, LLC
    
	
 
    	
LAKE ROAD GENERATING COMPANY, LLC
    
	
 
    	
LIBERTY ELECTRIC POWER, LLC
    
	
 
    	
MASSPOWER HOLDCO, LLC
    
	
 
    	
MASSPOWER PARTNERS I, LLC
    
	
 
    	
MASSPOWER PARTNERS II, LLC
    
	
 
    	
MILFORD POWER COMPANY, LLC
    
	
 
    	
RICHLAND GENERATION EXPANSION, LLC
    
	
 
    	
RICHLAND-STRYKER GENERATION LLC
    
	
 
    	
RSG POWER, LLC
    
	
 
    	
TOMCAT POWER, LLC
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Siddharth Manjeshwar
    
	
 
    	
 
    	
Name:
    	
Siddharth Manjeshwar
    
	
 
    	
 
    	
Title:
    	
Vice   President and Treasurer
    


 

Signature Page to Waiver to Dynegy Credit Agreement

 











 

	
 
    	
DYNEGY COAL GENERATION, LLC
    
	
 
    	
DYNEGY COMMERCIAL ASSET MANAGEMENT, LLC
    
	
 
    	
DYNEGY CONESVILLE, LLC
    
	
 
    	
DYNEGY DICKS CREEK, LLC
    
	
 
    	
DYNEGY FAYETTE II, LLC
    
	
 
    	
DYNEGY GAS GENERATION, LLC
    
	
 
    	
DYNEGY GENERATION HOLDCO, 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
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Siddharth Manjeshwar
    
	
 
    	
 
    	
Name:
    	
Siddharth Manjeshwar
    
	
 
    	
 
    	
Title:
    	
Vice   President and Treasurer
    
	
 
    	
 
    
	
 
    	
SITHE/INDEPENDENCE POWER   PARTNERS, L.P., a   Delaware limited partnership
    
	
 
    	
 
    
	
 
    	
By:   Sithe/Independence LLC, its General Partner
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Siddharth Manjeshwar
    
	
 
    	
 
    	
Name:
    	
Siddharth Manjeshwar
    
	
 
    	
 
    	
Title:
    	
Vice   President and Treasurer
    


 

Signature Page to Waiver to Dynegy Credit Agreement

 











 

	
 
    	
BARCLAYS BANK, PLC,
    
	
 
    	
as   Lender
    
	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Kevin Crealese
    
	
 
    	
 
    	
Name:
    	
Kevin   Crealese
    
	
 
    	
 
    	
Title:
    	
Managing   Director
    


 

Signature Page to Waiver to Dynegy Credit Agreement

 











 

	
 
    	
CREDIT SUISSE AG,   CAYMAN ISLANDS BRANCH,
    
	
 
    	
as   Lender
    
	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Mikhail Faybusovich
    
	
 
    	
 
    	
Name:   
    	
Mikhail   Faybusovich
    
	
 
    	
 
    	
Title:
    	
Authorized   Signatory
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Karim Rahimtoola
    
	
 
    	
 
    	
Name:
    	
Karim   Rahimtoola
    
	
 
    	
 
    	
Title:
    	
Authorized Signatory
    


 

Signature Page to Waiver to Dynegy Credit Agreement

 











 

	
 
    	
Morgan Stanley Bank,   N.A.,
    
	
 
    	
as   Lender
    
	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Patrick Layton
    
	
 
    	
 
    	
Name:   
    	
Patrick   Layton
    
	
 
    	
 
    	
Title:
    	
Authorized   Signatory
    


 

Signature Page to Waiver to Dynegy Credit Agreement

 











 

	
 
    	
Morgan Stanley Senior   Funding, Inc.,
    
	
 
    	
as   Lender
    
	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Patrick Layton
    
	
 
    	
 
    	
Name:   
    	
Patrick   Layton
    
	
 
    	
 
    	
Title:
    	
Vice   President
    


 

Signature Page to Waiver to Dynegy Credit Agreement

 











 

	
 
    	
BANK OF AMERICA, N.A.,   as Lender
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   J.B. Meanor
    
	
 
    	
 
    	
Name:   
    	
J.B.   Meanor
    
	
 
    	
 
    	
Title:
    	
Managing   Director
    


 

Signature Page to Waiver to Dynegy Credit Agreement

 












 

	
 
    	
DEUTSCHE BANK AG NEW   YORK BRANCH,
    
	
 
    	
as   Lender
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Marcus M. Tarkington
    
	
 
    	
 
    	
Name:
    	
Marcus   M. Tarkington
    
	
 
    	
 
    	
Title:
    	
Director
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Peter Cucchiara
    
	
 
    	
 
    	
Name:   
    	
Peter   Cucchiara
    
	
 
    	
 
    	
Title:
    	
Vice President
    


 

Signature Page to Waiver to Dynegy Credit Agreement

 











 

	
 
    	
JPMORGAN CHASE BANK,   N.A.,
    
	
 
    	
as   Lender
    
	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Juan Javellana
    
	
 
    	
 
    	
Name:   
    	
Juan   Javellana
    
	
 
    	
 
    	
Title:
    	
Executive   Director
    


 

Signature Page to Waiver to Dynegy Credit Agreement

 











 

	
 
    	
ROYAL BANK OF CANADA,
    
	
 
    	
as   Lender
    
	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Frank Lambrinos
    
	
 
    	
 
    	
Name:   
    	
Frank   Lambrinos
    
	
 
    	
 
    	
Title:
    	
Authorized   Signatory
    


 

Signature Page to Waiver to Dynegy Credit Agreement

 











 

	
 
    	
UBS AG, STAMFORD   BRANCH, as Lender
    
	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Craig Pearson
    
	
 
    	
 
    	
Name:   
    	
Craig   Pearson
    
	
 
    	
 
    	
Title:
    	
Associate   Director
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Darlene Arias
    
	
 
    	
 
    	
Name:
    	
Darlene   Arias
    
	
 
    	
 
    	
Title:
    	
Director
    


 

Signature Page to Waiver to Dynegy Credit Agreement

 











 

	
 
    	
MUFG UNION BANK, N.A.,
    
	
 
    	
as   Lender
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Chi-Cheng Chen
    
	
 
    	
 
    	
Name:
    	
Chi-Cheng   Chen
    
	
 
    	
 
    	
Title:
    	
Director
    


 

Signature Page to Waiver to Dynegy Credit Agreement

 











 

	
 
    	
THE BANK OF   TOKYO-MITSUBISHI UFJ, LTD.,
    
	
 
    	
as Lender
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Chi-Cheng Chen
    
	
 
    	
 
    	
Name:
    	
Chi-Cheng   Chen
    
	
 
    	
 
    	
Title:
    	
Director
    


 

Signature Page to Waiver to Dynegy Credit Agreement

 











 

	
 
    	
BNP PARIBAS, as Lender
    
	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Denis O’Meara
    
	
 
    	
 
    	
Name:   
    	
Denis   O’Meara
    
	
 
    	
 
    	
Title:
    	
Managing   Director
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Karima Omar
    
	
 
    	
 
    	
Name:   
    	
Karima   Omar
    
	
 
    	
 
    	
Title:
    	
Vice President
    


 

Signature Page to Waiver to Dynegy Credit Agreement

 











 

	
 
    	
CREDIT   AGRICOLE CORPORATE AND INVESTMENT BANK,
    
	
 
    	
as   Lender
    
	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Dixon Schultz
    
	
 
    	
 
    	
Name:   
    	
Dixon   Schultz
    
	
 
    	
 
    	
Title:
    	
Managing   Director
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Nimisha Srivastav
    
	
 
    	
 
    	
Name:   
    	
Nimisha   Srivastav
    
	
 
    	
 
    	
Title:
    	
Director
    


 

Signature Page to Waiver to Dynegy Credit Agreement

 











 

	
 
    	
SUNTRUST BANK,
    
	
 
    	
as   Lender
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Michael Canavan
    
	
 
    	
 
    	
Name:
    	
Michael   Canavan
    
	
 
    	
 
    	
Title:
    	
Managing   Director
    


 

Signature Page to Waiver to Dynegy Credit Agreement

 











 

	
 
    	
GOLDMAN SACHS BANK USA,
    
	
 
    	
as   Lender
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Jerry Li
    
	
 
    	
 
    	
Name:
    	
Jerry   Li
    
	
 
    	
 
    	
Title:
    	
Authorized   Signatory
    


 

Signature Page to Waiver to Dynegy Credit Agreement