$235,000,000 DynegyHoldings Inc.

 

(a)  Indenture; Security Interests.  The Indenture has been duly authorized, executed and delivered by the Company; the Securities have been duly authorized by the Company; the Supplemental Indenture has been duly authorized by the Company, and when the Securities are delivered and paid for pursuant to this Agreement on the Closing Date, the Supplemental Indenture will have been duly executed and delivered by the Company, such Securities will have been duly executed, authenticated, issued and delivered, and the Indenture and such Securities will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles and entitled to the benefits and security provided by the Indenture.

 

(b)  Registration Rights Agreement.  The Registration Rights Agreement has been duly authorized by the Company; and, when the Securities are delivered and paid for pursuant to this Agreement on the Closing Date, the Registration Rights Agreement will have been duly executed and delivered and will be the valid and legally binding obligation of the Company, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.

 

(c)  Authorization of Agreement.  This Agreement has been duly authorized, executed and delivered by the Company.

 

(d)  Investment Company Act.  The Company is not an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the United States Investment Company Act of 1940 (the “Investment Company Act”); and the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof will not be an “investment company” as defined in the Investment Company Act.

 

(e)  Class of Securities Not Listed.  No securities of the same class (within the meaning of Rule 144A(d)(3)) as the Securities are listed on any national securities exchange registered under Section 6 of the Exchange Act or quoted in a U.S. automated inter-dealer quotation system.

 

(f)  No Registration.  The offer and sale of the Securities in the manner contemplated by this Agreement (assuming the representations and warranties in Section 4 of this Agreement are true and correct and the Purchaser complies with the offer and sale procedures set forth in this Agreement) will be exempt from the registration requirements of the Securities Act by reason of Section 4(2) thereof and it is not necessary to qualify an indenture in respect of the Securities under the United States Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”).

 

(g)  No General Solicitation.  Neither the Company, nor any of its affiliates, nor any person acting on its or their behalf (i) has, within the six-month period prior to the date hereof, offered or sold in the United States or to any U.S. person (as such terms are defined in Regulation S under the Securities Act) the Securities or any security of the same class or series as the Securities or (ii) has offered or will offer or sell the Securities in the United States by means of any form of general solicitation or general advertising within the meaning of Rule 502(c).  The Company has not and will not enter into any contractual arrangement with respect to the distribution of the Securities except for this Agreement and the Registration Rights Agreement.

 

(a) The Purchaser represents and warrants to the Company that it is an “accredited investor” within the meaning of Regulation D under the Securities Act.  Purchaser acknowledges that the Securities have not been registered under the Securities Act and may not be offered or sold except pursuant to an effective registration statement under, or an exemption from the registration requirements of, the Securities Act.

 

(b)  The Purchaser agrees that it and each of its affiliates will not offer or sell the Securities in the United States by means of any form of general solicitation or general advertising within the meaning of Rule 502(c), including, but not limited to (i) any advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or (ii) any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. The Purchaser agrees, with respect to resales made in reliance on Rule 144A of any of the Securities, to deliver either with the confirmation of such resale or otherwise prior to settlement of such resale a notice to the effect that the resale of such Securities has been made in reliance upon the exemption from the registration requirements of the Securities Act provided by Rule 144A.

 

(a)  Amendments and Supplements to Offering Circulars.  The Company will promptly advise the Purchaser of any proposal to amend or supplement the Offering Circular and will not effect such amendment or supplementation without the Purchaser’s consent, not to be unreasonably withheld. If, at any time during the 144A Resale Period, there occurs an event or development as a result of which any document included in the Offering Circular or the General Disclosure Package, if republished immediately following such event or development, included or would include an untrue statement of a material fact or would omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Company promptly will notify the Purchaser of such event and promptly will prepare and furnish, at its own expense, to the Purchaser and any underwriter at the request of the Purchaser, an amendment or supplement which will correct such statement or omission.  The Offering Circular will incorporate by reference, the Company’s  Exchange Act Reports for the year as well as future Exchange Act Reports, such that the Company may, to the extent possible, amend or supplement the Offering Circular by filing one or more Exchange Act Reports, which filings shall not require Purchaser’s consent.

 

(b)  Furnishing of Offering Circulars.  The Company will prepare at its expense an Offering Circular, and deliver the same to the Purchaser on  the Closing Date.  Prior to delivery of the Offering Circular in accordance with this Agreement, the Company shall furnish a draft copy thereof to the Purchaser, and shall use its reasonable best efforts to reflect in the Offering Circular such comments as the Purchaser or its counsel reasonably may propose in writing.  The Company will furnish to the Purchaser copies of the Offering Circular, each other document comprising a part of the General Disclosure Package and all amendments and supplements to such documents, in each case as soon as available and in such quantities as the Purchaser reasonably requests.  At any time when the Company is not subject to Section 13 or 15(d), the Company will promptly furnish or cause to be furnished to the Purchaser and, upon request of holders and prospective purchasers of the Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Securities pursuant to Rule 144A(d)(4) (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Securities. The Company will pay the expenses of printing and distributing to the Purchaser all such documents.

 

(c)  Blue Sky Qualifications.  The Company will arrange for the qualification of the Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States as the Purchaser designates and will continue such qualifications in effect so long as required for the resale of the Securities by the Purchaser during the 144A Resale Period, provided that the Company will not be required to qualify as a foreign corporation or to file a general consent to service of process in any such state.

 

(d)  Reporting Requirements.  For so long as the Purchaser holds any Securities, the Company will furnish to the Purchaser, as soon as available each report of the Company filed with the Commission under the Exchange Act. However, so long as the Company is subject to the reporting requirements of either Section 13 or Section 15(d) of the Exchange Act and is timely filing reports with the Commission on its Electronic Data Gathering, Analysis and Retrieval system (“EDGAR”), it is not required to furnish such reports or statements to the Purchaser.

(e)  Transfer Restrictions.  During the period of two years after the Closing Date, the Company will, upon request, furnish to the Purchaser and any holder of Securities a copy of the restrictions on transfer applicable to the Securities.

 

(f)  No Resales by Affiliates.  During the period of two years after the Closing Date, the Company will not, and will not permit any of its affiliates (as defined in Rule 144, other than the Purchaser) to, resell any of the Securities that have been reacquired by any of them.

 

(g)  Investment Company.  During the period of two years after the Closing Date, the Company will not be or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.

 

(h)  Payment of Expenses.  The Company will pay all expenses incidental to the performance of its obligations under this Agreement, the Indenture and the Registration Rights Agreement, including but not limited to (i) the fees and expenses of the Trustee and its professional advisers, (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Securities, the preparation and printing of the Securities, the Indenture, the Offering Circular, any other documents comprising any part of the General Disclosure Package, all amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Securities provided, however, the Company is not obligated to pay for or reimburse the Purchaser for its costs and expenses associated with the preparation and negotiation of this Agreement and the Registration Rights Agreement, and (iii) the reasonable fees and disbursements of one counsel to the Purchaser incurred in connection with 144A Resales.  The Company will also pay the costs and expenses of the Company and its officers and employees for its reasonable costs and expenses, in each case, relating to investor presentations on any “road show” in connection with the offering and sale of the Securities including, without limitation, any travel expenses of the Company’s officers and employees and any other expenses of the Company.

 

(j) Restriction on Sale of Securities.  For a period of 5 consecutive business days following the Closing Date, and for a period of 5 consecutive business days following the Purchaser’s request to conduct an Underwritten Offering as set forth in Section 5(l), neither the Company nor any of its subsidiaries will, directly or indirectly, take any of the following actions with respect to any United States dollar-denominated debt securities issued or guaranteed by the Company or such subsidiary and having a maturity of more than one year from the date of issue or any securities convertible into or exchangeable or exercisable for any such securities (“Lock-Up Securities”):  (i) offer, sell, issue, contract to sell, pledge or otherwise dispose of Lock-Up Securities, (ii) offer, sell, issue, contract to sell, contract to purchase or grant any option, right or warrant to purchase Lock-Up Securities, (iii) establish or increase a put equivalent position or liquidate or decrease a call equivalent position in Lock-Up Securities within the meaning of Section 16 of the Exchange Act or (iv) file with the Commission a registration statement under the Securities Act, other than registration statements contemplated by the Registration Rights Agreement, relating to Lock-Up Securities or publicly disclose the intention to take any such action, in each case, without the prior written consent of the Purchaser.

 

(k) Form D Filing.  In connection with the sale of the Securities to the Purchaser, the Company will file the notice on Form D required by Rule 503 within the time required by such Rule and otherwise in compliance with such Rule. A copy of such notice shall be furnished promptly to the Purchaser.

 

(l) 144A Resale Cooperation; Underwritten 144A Resales.  During the 144A Resale Period, the Company also agrees upon request of the Purchaser in connection with a proposed 144A Resale of in excess of $25 million aggregate principal amount of Securities (or if the Purchaser holds less than $25 million aggregate principal amount of Securities, such lesser amount), but in no case more frequently than once every 21 days and in no case on more than three occasions, to (i) promptly provide marketing materials as may be requested by the Purchaser, (ii) promptly, but in any case not later than 4 business days following a request by the Purchaser, provide for the delivery of officers’ certificates, “10b-5” confirmation and other legal opinions from outside counsel (limited in 144A Resales that do not constitute an Underwritten Offering to paragraphs 11, 13 and 15 on Annex I hereto) and accountant’s “comfort” letters as may be requested by the Purchaser consistent with those to be delivered pursuant to Section 7 of this Agreement (provided that the Company shall only be required to provide bringdown “10b-5” confirmation and legal opinions from outside counsel and accountant’s “comfort” letters from the most recent date of such items previously provided by the Company to the Purchaser) and (iii) promptly cooperate with any other reasonable requests of the Purchaser, including facilitating customary underwriter diligence by the Purchaser  (including, without limitation, business, legal, financial, environmental, tax and accounting diligence) and responding to customary due diligence requests, allowing the Purchaser to conduct one or more due diligence calls with the Company and using reasonable best efforts to make management of the Company’s parent available; provided, however, Purchaser shall keep confidential any information provided or made available to it or its underwriters by or on behalf of the Company which is not otherwise publicly available.  The Company also agrees that the Purchaser may, on up to two additional occasions, conduct additional 144A Resales through Credit Suisse or another underwriter of the Purchaser’s choice and reasonably satisfactory to the Company (each an “Underwritten Offering”).  In the event that the Purchaser undertakes an Underwritten Offering but is unable to consummate such offering for any reason, such offering will not constitute an Underwritten Offering for purposes of the preceding sentence so long as Purchaser reimburses the Company for all costs and expenses incurred by the Company in connection with the Underwritten Offering which was not consummated; provided, however, each subsequent Underwritten Offering which is not consummated will constitute an Underwritten Offering for purposes of the preceding sentence.  In connection with any Underwritten Offering, the Company agrees to enter into a customary underwriting agreement with the Purchaser and such underwriter, substantially consistent with and no less favorable to the Purchaser than this Agreement and not more onerous on the Company than this Agreement, to participate in roadshow presentations as may be reasonably requested by the Purchaser or the underwriter and to cooperate with and provide materials to such underwriter as set forth in this Section 5(l) to the same extent it is required to cooperate and provide materials to the Purchaser.  Notwithstanding the foregoing, during any calendar year, the Company shall be entitled to suspend 144A Resales by the Purchaser (whether or not pursuant to an Underwritten Offering) for a reasonable period of time, but not in excess of 45 days in the aggregate and of which no more than 30 days may be consecutive, if the Company notifies the Purchaser, within the latter of five business days in advance (or if impracticable, as soon as practicable in advance) of such suspension that, in the opinion of its counsel, the Company would be required to disclose in the Offering Circular information not otherwise then required by law to be publicly disclosed and, in the good faith judgment of management of the Company, such disclosure is reasonably likely to adversely affect any material business transaction or negotiation in which the Company is then engaged.

 

(a)  No Material Adverse Change to Dynegy Business.  Subsequent to the execution and delivery of this Agreement, there shall not have occurred any material adverse change, or any development or event involving a prospective material adverse change, in the condition (financial or otherwise), results of operations, business, or properties of the Company and its subsidiaries taken as a whole.

 

(b) Officers’ Certificate.  The Purchaser shall have received a certificate dated the Closing Date, of an executive officer of the Company and a principal financial or accounting officer of the Company in which such officers shall state that the representations and warranties of the Company in this Agreement and in Annex II (to the extent indicated in Annex II) are true and correct, that the Company complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, and that, subsequent to the date of this Agreement there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or otherwise), results of operations, business or properties of the Company and its subsidiaries taken as a whole.

 

(c)  Purchase and Sale Agreement Cross-Condition.  On or prior to the Closing Date, all of the conditions precedent to all parties to the Purchase and Sale Agreement to effect the transactions contemplated by  the Purchase and Sale Agreement shall have been satisfied or waived by the parties and the Transactions shall have been consummated simultaneous with the issuance and sale of the Securities to the Purchaser.

 

(d)  Each of the Indenture and the Registration Rights Agreement shall have been duly authorized, executed and delivered.

 

(e)  The Securities shall have been duly authorized, executed, authenticated, issued and delivered.

 

(f)  Offering Circular.  The Company shall have delivered the Offering Circular to Purchaser.

 

By: /s/ Frank Hardenbergh

Dynegy Holdings Inc.

Senior Notes

$235,000,000

7.500%

June 1, 2015

None

Identical to existing 2015 Notes, except for the special mandatory redemption provision set forth below.

At the end of the first accrual period ending after the fifth anniversary of the Securities’ issuance (the “AHYDO redemption date”), the Company will redeem for cash a portion of each Security equal to the “Mandatory Principal Redemption Amount” (such redemption, a “Mandatory Principal Redemption”). The redemption price for the portion of each Security redeemed pursuant to a Mandatory Principal Redemption will be 100% of the principal amount of such portion plus any accrued interest thereon on the date of redemption. The “Mandatory Principal Redemption Amount” will equal the portion of a Security required to be redeemed to prevent such Security from being treated as an “applicable high yield discount obligation” within the meaning of Section 163(i)(1) of the Internal Revenue Code of 1986, as amended (the “Code”), provided in no event will such amount be less than the excess, if any of, (a) the aggregate amount of accrued and unpaid interest (including original issue discount) on the Security over (b) an amount equal to the product of the issue price of such Security (as defined in Sections 1273(b) and 1274(a) of the Code) and the yield to maturity of such Security, as such term is defined in applicable regulations of the U.S. Department of the Treasury. No partial redemption or repurchase of the Securities prior to the AHYDO redemption date pursuant to any other provision of the Indenture will alter the Company’s obligation to make the Mandatory Principal Redemption with respect to any Securities that remain outstanding on the AHYDO redemption date.

 

1.  

The Company is validly existing as a corporation in good standing under the laws of the State of Delaware, has the corporate power and authority under the General Corporation Law of the State of Delaware and its certificate of incorporation and bylaws to own its properties and conduct its business as described in the Offering Circular.

2.  

Each subsidiary of the Company listed on Exhibit 21.1 to the Company’s Annual Report on Form 10-K most recently filed with the Commission is validly existing as an entity in good standing under the laws of the jurisdiction of its formation.

3.  

The Company has the corporate power and authority to enter into the underwriting agreement.1

4.  

The Securities constitute valid and binding obligations of the Company entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms. The Securities conform in all material respects to the description thereof in the Offering Circular.

5.  

The Indenture is a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms. The Indenture conforms in all material respects to the description thereof in the Offering Circular.

6.  

No approval or authorization under the Federal Power Act, as amended, is required for the execution and delivery by the Company of the underwriting agreement and the performance by the Company of its obligations thereunder.1

7.  

No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body (each, a “Filing”) is required under any laws for  1[the due execution and delivery of the underwriting agreement by the Company and the performance by the Company of its obligations thereunder and] under the Indenture and the Securities, subject to the assumptions set forth in paragraph 14 and except (i) routine Filings necessary in connection with the conduct of the Company’s business, including routine Filings required to be made under the Exchange Act, (ii) such other Filings as have been obtained or made, (iii) Filings required under Federal and state securities laws 1[as provided in the underwriting agreement] and (iv) Filings required to maintain corporate and similar standing and existence.

8.  

The  1[execution and delivery of the underwriting agreement by the Company does not, and the] performance by the Company of its obligations 1[thereunder and] under the Indenture and the Securities will not, result in any violation of any order, writ, judgment or decree known to us.

9.  

The  1[execution and delivery of the underwriting agreement by the Company do not, and the] performance by the Company of its obligations 1[thereunder and] under the Indenture and the Securities will not, (i) violate the certificate of incorporation or bylaws of the Company, (ii) breach or result in a default of any currently existing agreement or listed as an exhibit to the Exchange Act Reports or (iii) violate any included law (Delaware General Corporation law and NY law and federal law).

10.  

[(i) The execution and delivery of the underwriting agreement by the Company, and the performance by the Company of its obligations under the underwriting agreement, have been duly authorized by all necessary corporate action on the part of the Company and (ii) the underwriting agreement has been duly executed and delivered by the Company.]1

11.  

The statements contained in the Offering Circular under the captions (i) “Description of Securities,” insofar as such statements purport to constitute a summary of the terms of the Indenture and the Securities, (ii) “Description of Certain Indebtedness and Related Matters” and “Plan of Distribution,” insofar as such statements purport to constitute a summary of the documents referred to therein, and (iii) “Material U.S. Federal Income Tax Considerations,” insofar as such statements purport to constitute a summary of the United States federal tax laws referred to therein, in each case, are accurate and fairly summarize in all material respects the matters referred to therein.

12.  

The Company is not required to register as an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended.

13.  

The Indenture conforms in all material respects to the requirements of the Trust Indenture Act, and the rules and regulations of the Commission applicable to an indenture which is qualified thereunder.

14.  

Assuming without independent investigation, (i) the accuracy of the representations and warranties of the Company set forth in the underwriting agreement and in those certain certificates delivered on the date hereof (A) that the Securities were sold to the Purchaser in accordance with the terms of and in a manner contemplated by the Agreement and (B) that the Securities are sold to the underwriters, and initially resold by the underwriters, in accordance with the terms of and in the manner contemplated by, the underwriting agreement and the Offering Circular; (ii) the accuracy of the representations and warranties of the Company set forth in the Agreement (other than as set forth in Section 2(f) thereof) and underwriting agreement (other than as set forth in Section [insert reference to “no registration” representation in underwriting agreement] and in those certain certificates delivered on the date hereof; (iii) the accuracy of the representations and warranties of (A) the Purchaser in the Agreement and (B) the underwriters set forth in the underwriting agreement; (iv) the due performance and compliance by the Company and the underwriters of their respective covenants and agreements set forth in the underwriting agreement; and (v) the underwriters’ compliance with the Offering Circular and the transfer procedures and restrictions described therein, it was and is not necessary to register the Securities under the Securities Act or to qualify an indenture in respect thereof under the Trust Indenture Act in connection with the issuance and sale of the Securities by the Company to the Purchaser, the sale by the Purchaser to the underwriters or in connection with the offer, resale and delivery of the Securities by the underwriters in the manner contemplated by the underwriting agreement and the Offering Circular, it being expressly understood that we express no opinion in this paragraph 14 or paragraph 7 as to any subsequent offer or resale of any of the Securities.1

15.  

Because the primary purpose of our professional engagement was not to establish or confirm factual matters or financial, accounting or statistical information, and because many determinations involved in the preparation of the disclosure package and the Offering Circular are of a wholly or partially non-legal character, other than in paragraph 11 and the last sentence of paragraph 4 and paragraph 5, we are not passing upon and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the disclosure package and the Offering Circular, and we make no representation that we have independently verified the accuracy, completeness or fairness of such statements.

1.  

[At the Applicable Time and]2 as of the Closing Date neither (i) the Offering Circular, nor (ii) any individual supplemental marketing material, when considered together with the Offering Circular, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Offering Circular or any supplemental marketing material based upon written information relating to the Purchaser furnished to the Company by the Purchaser specifically for use therein. As of the Applicable Time, the Company’s Exchange Act Reports which have been or subsequently are deemed to be incorporated by reference in the Offering Circular do not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Such documents, when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder.

2.  

No order or decree preventing the use of the Offering Circular or any order asserting that the transactions contemplated by this Agreement [or by the 144A Resale]2 are subject to the registration requirements of the Securities Act, has been issued and no proceeding for that purpose has commenced or is pending or, to the knowledge of the Company, is contemplated.

3.  

Each of the Company and its subsidiaries has been duly incorporated or formed and is an existing corporation, limited liability company, limited partnership or general partnership in good standing under the laws of its state of organization, with power and authority (corporate and other) to own its properties and conduct its business as described in the Offering Circular; and each of the Company and its subsidiaries is duly qualified to do business as a foreign corporation, limited liability company, limited partnership or general partnership in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except to the extent the failure to so qualify or be in good standing could not reasonably be expected to have a material adverse effect on the condition (financial or other), business, properties, results of operations or, to the knowledge of the Company, prospects of the Company and its subsidiaries, taken as a whole (a “Material Adverse Effect”).

4.  

Neither the Company nor any of its subsidiaries is (i) in default in the performance of any obligation, agreement, covenant or condition contained in any indenture, loan agreement, mortgage, lease or other agreement or instrument to which the Company or its subsidiaries is a party or by which the Company or any of its subsidiaries or their respective property is bound, or (ii) in violation of its respective charter or bylaws, operating agreement or other organizational document that governs the existence or administration of such entity, in the case of clause (i), except as could not reasonably be expected to have a Material Adverse Effect.

5.  

[As of the Applicable Time and]2 as of the Closing Date, subject to changes in the ordinary course of business or as contemplated by the Offering Circular, (i) the Company has the capitalization set forth in the Offering Circular, under the heading “Capitalization”; (ii) all of the issued shares of capital stock of the Company and its subsidiaries have been duly and validly authorized and issued and are fully paid and non-assessable; and (iii) the capital stock of each subsidiary owned by the Company, directly or through subsidiaries, is owned free from liens, encumbrances and material defects, other than those described in the Exchange Act Reports.

6.  

[As of the Applicable Time, the Securities conform to the description thereof contained in the Offering Circular, and]2 on the closing date the Securities will conform to the description thereof contained in the Offering Circular.

7.  

[Assuming the accuracy of subsequent purchaser’s representations and warranties made to, and the subsequent purchaser’s compliance with the agreements made with, the Purchaser in connection with the 144A Resale and compliance with the limitations and restrictions contained under the heading “Transfer Restrictions” in the Offering Circular, no qualification of the Indenture under the Trust Indenture Act is required in connection with the offer and sale of the Securities contemplated by the 144A Resale;]2 and the Indenture conforms in all material respects to the requirements of the Trust Indenture Act, and the rules and regulations of the Commission applicable to an indenture which is qualified thereunder.  [As of the Applicable Time, the Indenture conforms to the description thereof in the Circular,]2 and on the closing date the Indenture will conform to the description thereof in the Offering Circular.

8.  

Except as disclosed in Offering Circular, there are no contracts, agreements or understandings between the Company and any person that would give rise to a valid claim against the Company or the Purchaser [or any subsequent purchaser]2 for a brokerage commission, finder’s fee or other like payment.

9.  

No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court was required in connection with the issuance and sale of the Securities to the Purchaser [or is required by the Purchaser and the 144A Resales by the Purchaser]2, except for (i) such as may be required under foreign or state securities laws, blue sky laws and related regulations, (ii) those that have been obtained or made on or prior to the Closing Date [or Applicable Time]2, (iii) those that could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and would not materially adversely affect the ability of the Company to perform its obligations under the Agreement and (iv) those disclosed in the Offering Circular.

10.  

The sale of the Securities to the Purchaser did not result in a breach or violation of any of the terms and provisions of, or constitute a default under (i) any statute, any rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their properties, (ii) any agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the properties of the Company or any of its subsidiaries is subject, or (iii) the charter or bylaws of the Company or any of its subsidiaries, except in the case of (i) and (ii), for such breaches, violations or defaults as could not reasonably be expected to have a Material Adverse Effect.

11.  

Except as disclosed in the Offering Circular, the Company and its subsidiaries possess adequate certificates, authorities or permits issued by appropriate governmental agencies or bodies necessary to conduct the business now operated by them and have not received any notice of proceedings relating to the revocation or modification of any such certificate, authority or permit that, if determined adversely to the Company or its subsidiaries, could individually or in the aggregate reasonably be expected to have a Material Adverse Effect.

12.  

Except as disclosed in the Offering Circular, each of the Company and its subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by all governmental agencies, bodies or courts, except where the failure to comply could not reasonably be expected to have a Material Adverse Effect.

13.  

To the knowledge of the Company and except as disclosed in the Offering Circular, no labor dispute with the employees of the Company and its subsidiaries that could reasonably be expected to result in a Material Adverse Effect is imminent.

14.  

The Company and its subsidiaries own or possess on reasonable terms, adequate trademarks, trade names and other rights to patents, copyrights and other intellectual property (collectively, “intellectual property rights”) necessary to conduct the business now operated by them, or presently employed by them, and have not received any notice of infringement of or conflict with asserted rights of others with respect to any intellectual property rights that, if determined adversely to the Company or any of its subsidiaries, could reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect.

15.  

Except as disclosed in the Offering Circular, neither the Company nor any of its subsidiaries is in violation of any statute, any rule, regulation, decision or order of any governmental agency or body or any court, domestic or foreign having jurisdiction over the Company or any of its subsidiaries or any of their respective properties, relating to the use, disposal or release of hazardous or toxic substances or relating to the protection or restoration of the environment or human exposure to hazardous or toxic substances (collectively, “Environmental Laws”), owns or operates any real property contaminated with any substance that is subject to any Environmental Laws, is liable for any off-site disposal or contamination pursuant to any Environmental Laws, or is subject to any claim relating to any Environmental Laws, which violation, contamination, liability or claim could reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect; and the Company is not aware of any pending investigation which might lead to such a claim.

16.  

Except as disclosed in the Offering Circular, there are no pending actions, suits or proceedings against or affecting the Company, any of its subsidiaries or their respective properties that, if determined adversely to the Company or its subsidiaries, could reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect or would materially and adversely affect the ability of the Company to perform its obligations under the Agreement; and except as disclosed in the Offering Circular no such actions, suits or proceedings are, to the Company’s knowledge, threatened or contemplated.

17.  

The financial statements of the Company together with related schedules and notes, included or incorporated by reference in the Offering Circular present fairly the consolidated financial position of the Company and its subsidiaries as of the dates indicated and the results of their operations and the changes in their financial position for the periods specified; said financial statements have been prepared in conformity with generally accepted accounting principles consistently applied during the period, except as stated therein.

18.  

Except as disclosed in the Offering Circular, since the date as of which the information is given in the Offering Circular, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or other), business, properties, results of operations or, to the knowledge of the Company, prospects of the Company and its subsidiaries, taken as a whole and, except as disclosed in or contemplated by the Offering Circular, there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.

19.  

The Company is subject to the reporting requirements of either Section 13 or Section 15(d) of the Exchange Act and files reports with the Commission on the Electronic Data Gathering, Analysis, and Retrieval (EDGAR) system.

20.  

The Company has established and maintains disclosure controls and procedures (as defined in Rule 13a-15(e) and 15d-15(e) under the Exchange Act), which (i) are designed to ensure that material information relating to the Company and its consolidated subsidiaries is made known to the principal executive officer and its principal financial officer by others within those entities, particularly during the periods in which the periodic reports required under the Exchange Act are being prepared and (ii) have been evaluated for effectiveness as of a date within 90 days prior to the date of the Company’s annual report and are effective in all material respects to perform the functions for which they were established.

21.  

Based on the most recent evaluation of its disclosure controls and procedures, the Company is not aware of (i) any material weakness in the design or operation of internal controls which could adversely affect the ability of the Company to record, process, summarize and report financial data or any material weaknesses in internal controls or (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in internal controls.

22.  

Since the date of the most recent evaluation of such disclosure controls and procedures, there have been no significant changes in internal controls or in other factors that could significantly affect internal controls, including any corrective actions with regard to significant deficiencies and material weaknesses, except as disclosed in the Offering Circular.

23.  

The accountants who certified the financial statements of the Company included or incorporated in the Offering Circular are independent public accountants as required by the Securities Act and the rules and regulations thereunder.

24.  

Except as disclosed in the Offering Circular, there are no pending complaints filed with the Federal Energy Regulatory Commission seeking abrogation or modification of a contract for the sale of power by the Company or any of its subsidiaries.

25.  

Except as disclosed in the Offering Circular, there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company or to require the Company to include such securities with the Securities registered pursuant to any registration statement.

26.  

Neither the Company nor any of its subsidiaries nor any agent thereof acting on the behalf of them has taken, and none of them will take, any action that might cause the Agreement or the sale of the Securities to violate Regulation T, Regulation U or Regulation X of the Board of Governors of the Federal Reserve System.

27.  

The Company and each of its subsidiaries carry, or are covered by, insurance in such amounts and covering such risks as is adequate for the conduct of their respective businesses and the value of their respective properties and as is customary for companies engaged in similar businesses in similar industries.

28.  

No “nationally recognized statistical rating organization” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act (i) has imposed (or has informed the Company that it is considering imposing) any condition (financial or otherwise) on the Company’s retaining any rating assigned to the Company or any securities of the Company or (ii) has indicated to the Company that it is considering (a) the downgrading, suspension, or withdrawal of, or any review for a possible change that does not indicate the direction of the possible change in, any rating so assigned or (b) any change in the outlook for any rating of the Company or any securities of the Company.

29.  

Except for such matters as could not reasonably be expected to have a Material Adverse Effect, the Company is in compliance with all presently applicable provisions of the Employee Retirement Income Security Act of 1974 (“ERISA”); no “reportable event” (as defined in ERISA) has occurred with respect to any “pension plan” (as defined in ERISA), for which the Company would have any liability; the Company has not incurred and does not expect to incur liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any “pension plan” or (ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended, including the regulations and published interpretations thereunder (the “Code”); and each “pension plan” for which the Company would have any liability that is intended to be qualified under Section 401(a) of the Code is so qualified in all material respects and nothing has occurred, whether by action or by failure to act, which would cause the loss of such qualification.

30.  

The Company has filed all material federal, state and local income and franchise tax returns required to be filed through the Applicable Time [the Closing Date] and has paid all taxes due thereon, except (i) those taxes that are not reasonably likely to result in a Material Adverse Effect, (ii) those taxes, assessments or other charges that are being contested in good faith by appropriate proceedings or (iii) as described in the Offering Circular; and no tax deficiency has been determined adversely to the Company or any of its subsidiaries which has had (nor does the Company has any knowledge of any tax deficiency in writing which, if determined adversely to the Company or any of its subsidiaries, could reasonably be expected to have) a Material Adverse Effect.

31.  

[Prior to the Applicable Time] 2 the Closing Date, neither the Company nor any of its affiliates has taken any action which is designed to or which has constituted or which might have been expected to cause or result in stabilization or manipulation of the price of any security of the Company in connection with the sale of the Securities.

32.  

The offer and sale of the Securities by the Purchaser to the subsequent purchaser (assuming that the subsequent purchaser’s representations and warranties made to the Purchaser in connection with the 144A Resale are true and correct and the subsequent purchaser complies with the offer and sale procedures set forth in the Offering Circular) will be exempt from the registration requirements of the Securities Act by reason of Rule 144A thereunder.

33.  

The Offering Circular contains all the information specified in, and meeting the requirements of, Rule 144A(d)(4) under the Securities Act.

34.  

The statements set forth in the Offering Circular under the caption “Description of Securities,” insofar as they purport to constitute a summary of the terms of the Securities, under the captions “Material U.S. Federal Income Tax Considerations,” “Description of Certain Indebtedness” and “Plan of Distribution,” insofar as they purport to describe the provisions of the laws and documents referred to therein, are accurate and fair summaries in all material respects.