EXHIBIT 10.3
$235,000,000
Dynegy Holdings
Inc.
7½% Senior
Notes due 2015
PURCHASE
AGREEMENT
August 9,
2009
Two
Tower Center, 11th Floor
East Brunswick,
NJ 08816
Dynegy Holdings Inc., a Delaware
corporation (the “ Company ”), agrees with Adio
Bond, LLC (the “ Purchaser ”) subject to the
terms and conditions stated herein, to issue and sell to the
Purchaser $235,000,000 principal amount of its 7½% Senior
Notes due 2015, having the terms set forth on Exhibit A hereto (
the “ Securities ”) to be issued under (i) a
base indenture, dated as of September 26, 1996, as amended and
restated as of March 23, 1998, as further amended and restated as
of March 14, 2001 and as supplemented through the date hereof (the
“ Base Indenture ”), between the Company
and Wilmington Trust Company (as successor to JPMorgan Chase Bank,
N.A.), as trustee (the “ Trustee ”) and (ii) a
supplemental indenture establishing the Securities, to be dated as
of the Closing Date (as defined below) (the “
Supplemental Indenture ” and, together with the
Base Indenture, the “ Indenture ”), between the
Company and the Trustee.
The
Purchaser and subsequent holders of the Securities will be entitled
to the benefits of a Registration Rights Agreement, in the form
attached hereto as Exhibit B, dated as of the Closing Date between
the Company and the Purchaser (the “ Registration Rights
Agreement ”), pursuant to which the Company will agree to
file a registration statement with the Commission (as defined
below) registering the resale of the Securities under the
Securities Act (as defined below).
On
the date hereof, certain affiliates of the Company and the
Purchaser have entered into a Purchase and Sale Agreement relating
to the sale (the “ Transactions ”) by such
affiliates of the Company to such affiliates of the Purchaser of
certain assets in exchange for cash and securities as set forth
therein (the “ Purchase and Sale Agreement
”).
The
Company hereby agrees with the Purchaser as follows:
1. Definitions.
For purposes of this Agreement:
“
Applicable Time ” means, with respect to each 144A
Resale, the date and time that the Purchaser enters into a binding
contract of sale with respect to the Securities sold in
such
“
Closing Date ” has the meaning set forth in Section 3
hereof.
“
Commission ” means the Securities and Exchange
Commission.
“
Exchange Act ” means the United States Securities
Exchange Act of 1934.
“
Exchange Act Reports ” means the Company’s
Annual Report on Form 10-K most recently filed with the Commission
and all subsequent reports which have been filed by the
Company
“
Free Writing Communication ” means a written
communication (as such term is defined in Rule 405) that
constitutes an offer to sell or a solicitation of an offer to buy
the Securities and
is made by means
other than the Offering Circular.
“
General Disclosure Package ” means the Offering
Circular together with any Issuer Free Writing Communication
existing at the Applicable Time.
“
Issuer Free Writing Communication ”
means a Free Writing
Communication prepared by or on behalf of the Company, used or
referred to by the Company or containing a description
of the final
terms of the Securities or of their offering.
“
Offering Circular ” means the offering circular
relating to the
Securities to be offered and resold by the Purchaser from time to
time in one or more 144A Resales, to be dated as of the
Closing
Date, and as amended from time to time following the Closing Date
in accordance with this Agreement.
“
144A Resale ” means any offer or sale of the
Securities by the Purchaser to a subsequent purchaser in accordance
with Rule 144A under the Securities Act that occurs during the
144A
“
144A Resale Period ” means the period beginning on the
Closing Date and ending on the date that the Shelf Registration
Statement becomes effective under the Securities Act.
“
Rules and Regulations ” means the rules and
regulations of the Commission.
“
Securities Act ” means the United States Securities
Act of 1933.
“
Securities Laws ” means, collectively, the
Sarbanes-Oxley Act of 2002 (“ Sarbanes-Oxley ”),
the Securities Act, the Exchange Act, the Rules and Regulations,
the auditing principles,
rules,
standards and practices applicable to auditors of
“issuers” (as defined in Sarbanes-Oxley) promulgated or
approved by the Public Company Accounting Oversight Board and
the
rules of the
New York Stock Exchange (“ Exchange Rules
”).
“
Shelf Registration Statement ” means the shelf
registration statement contemplated by the Registration Rights
Agreement.
Unless
otherwise specified, a reference to a “rule” is to the
indicated rule under the Securities Act.
2. Representations
and Warranties of the Company. The Company
represents and warrants to, and agrees with, the Purchaser
that:
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(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.
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(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.
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(c) Authorization of
Agreement. This Agreement has been duly authorized,
executed and delivered by the Company.
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(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.
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(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.
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(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 ”).
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(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.
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3. Purchase, Sale and
Delivery of Securities. On the basis of the
representations, warranties and agreements and subject to the terms
and conditions set forth herein, the Company agrees to sell to the
Purchaser, and the Purchaser agrees to purchase from the Company,
the Securities for a total purchase price of $199,750,000 (the
“ Purchase Price ”). The parties
hereto agree that the issue price of the Securities for
purposes of Section 1273 of the Code shall be equal to the Purchase
Price.
The
Company will deliver against payment of the Purchase Price, the
Securities in the form of one permanent global security in
definitive form without interest coupons (the “ Restricted
Global Securities ”) deposited with the Trustee as
custodian for The Depositary Trust Company (“ DTC
”) and registered in the name of Cede & Co., as nominee
for DTC. The Restricted Global Securities shall include
certain legends regarding restrictions on transfer to be set forth
under a section entitled “Transfer Restrictions” in the
Offering Circular. Interests in any permanent global
Securities will be held only in book-entry form through DTC, except
in the limited circumstances to be described in the Offering
Circular.
Payment for the Securities shall be
made by the Purchaser in Federal (same day) funds by wire transfer
to an account at a bank acceptable to the Purchaser drawn to the
order of the Company at the office of Latham & Watkins LLP, New
York, NY, on the Closing Date (as defined in the Purchase and Sale
Agreement) (the “ Closing Date ”), against
delivery to the Trustee as custodian for DTC of the Restricted
Global Securities. The Restricted Global Securities will be made
available for checking at the above office of Latham & Watkins
at least 24 hours prior to the Closing Date.
4. Representations by
Purchaser; Resale by Purchaser.
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(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.
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(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.
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5. Certain Agreements
of the Company. The Company agrees with the
Purchaser that:
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(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.
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(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.
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(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.
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(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.
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(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.
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(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.
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(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.
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(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.
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(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.
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(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.
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(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.
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6. Free Writing
Communications .
(a) Issuer Free
Writing Communications . The Company represents and
agrees that, unless it obtains the prior consent of the Purchaser,
and the Purchaser represents and agrees that, unless it obtains the
prior consent of the Company, it has not made and will not make any
offer relating to the Securities that would constitute an Issuer
Free Writing Communication.
(b) Term Sheets
. The Company consents to the use by the Purchaser of a
Free Writing Communication that (i) contains only information
describing the terms of the Securities or their offering, including
by means of a pricing term sheet, or (ii) does not contain any
material information about the Company or its securities, it being
understood and agreed that the Company shall not be responsible to
the Purchaser for liability arising from any inaccuracy in such
Free Writing Communications referred to in clause (i) or (ii) as
compared with the information in the Offering Circular or the
General Disclosure Package.
7. Conditions of the
Obligation of the Purchaser and the Company . The
obligation of the Purchaser to purchase and pay for the Securities
will be subject to the accuracy of the representations and
warranties of the Company herein (as though made on the Closing
Date), to the accuracy of the statements of officers of the Company
made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder in all material respects and
to the following additional conditions precedent (and the
obligation of the Company to issue and sell the Securities to the
Purchaser will be subject to the condition set forth in Section
7(c) only):
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(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.
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(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.
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(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.
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(d) Each of the Indenture
and the Registration Rights Agreement shall have been duly
authorized, executed and delivered.
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(e) The Securities shall
have been duly authorized, executed, authenticated, issued and
delivered.
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(f) Offering
Circular. The Company shall have delivered the
Offering Circular to Purchaser.
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(g)
Accountants’ Comfort Letter . The Purchaser
shall have received letters, dated the Closing Date, on the
Offering Circular, of each of Ernst & Young LLP and
PricewaterhouseCoopers
LLP, confirming that they are a registered public
accounting firm and independent public accountants within the
meaning of the Securities Laws and in form and substance
satisfactory to the
(h) Opinion of Counsel for Company
. The Purchaser shall have received an opinion, dated
the Closing Date, of Akin Gump Strauss Hauer & Feld LLP,
counsel for the Company, the form of
which is
attached hereto as Annex I.
The
Purchaser may in its sole discretion waive compliance with any
conditions to the obligations of the Purchaser
hereunder.
8. Indemnification
and Contribution . (a)
Indemnification of Purchaser . The Company will
indemnify and hold harmless the Purchaser, its officers, employees,
agents, partners, members, directors and its affiliates (other than
the Company) and each person, if any, who controls such Purchaser
within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act (each, an “
Indemnified Party ”), against any and all losses,
claims, damages or liabilities, joint or several, to which such
Indemnified Party may become subject, under the Securities Act, the
Exchange Act, other Federal or state statutory law or regulation or
otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact
contained in the Offering Circular, in each case as amended or
supplemented, or any Issuer Free Writing Communication, or arise
out of or are based upon the omission or alleged omission of a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading and will reimburse each Indemnified Party for any legal
or other expenses reasonably incurred by such Indemnified Party in
connection with investigating, preparing or defending against any
loss, claim, damage, liability, action, litigation, investigation
or proceeding whatsoever (whether or not such Indemnified Party is
a party thereto) whether threatened or commenced and in connection
with the enforcement of this provision with respect to any of the
above as such expenses are incurred; provided, however, that the
Company will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission
or alleged omission from any of such documents in reliance upon and
in conformity with written information furnished to the Company by
the Purchaser specifically for use therein.
(b) Indemnification of Company
. The Purchaser will indemnify and hold harmless the
Company and its directors and officers and its affiliates (other
than the Purchaser) and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act (each, a “ Purchaser
Indemnified Party ”), against any losses, claims, damages
or liabilities, joint or several, to which such Purchaser
Indemnified Party may become subject, under the Securities Act, the
Exchange Act, other Federal or state statutory law or regulation or
otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact
contained in the Offering Circular, in each case as amended or
supplemented, or any Issuer Free Writing Communication
or arise out of or are
based upon the omission or the alleged omission of a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, in
each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written
information furnished to the Company by the Purchaser specifically
for use therein, and will reimburse each Purchaser Indemnified
Party for any legal or other expenses reasonably incurred by such
Purchaser Indemnified Party in connection with investigating,
preparing or defending against any such loss, claim, damage,
liability, action, litigation, investigation or proceeding
whatsoever (whether or not such Purchaser Indemnified Party is a
party thereto) whether threatened or commenced based upon any such
untrue statement or omission, or any such alleged untrue statement
or omission and in connection with the enforcement of this
provision with respect to any of the above as such expenses are
incurred, provided, however, that the Purchaser shall not be liable
for any losses, claims, damages or liabilities arising out of or
based upon the Company’s failure to perform its obligations
under Section 5(a) of this Agreement.
(c) Actions against Parties; Notification
. Promptly after receipt by an indemnified party under
this Section of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under subsection (a) or (b) above,
notify the indemnifying party of the commencement thereof; but the
failure to notify the indemnifying party shall not relieve it from
any liability that it may have under subsection (a) or (b) above
except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such
failure; and provided further that the failure to notify the
indemnifying party shall not relieve it from any liability that it
may have to an indemnified party otherwise than under subsection
(a) or (b) above. In case any such action is brought
against any indemnified party and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party
will not be liable to such indemnified party under this Section for
any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than
reasonable costs of investigation. It is understood and
agreed that the indemnifying party shall not, in connection with
any proceeding or related proceeding in the same jurisdiction, be
liable for the fees and expenses of more than one separate firm (in
addition to any local counsel) for all indemnified
parties. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of
any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such
settlement includes (i) an unconditional release of such
indemnified party from all liability on any claims that are the
subject matter of such action and (ii) does not include a statement
as to or an admission of fault, culpability or failure to act by or
on behalf of any indemnified party.
(d) Contribution . If the
indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection
(a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of
the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such proportion as is
appropriate to reflect the relative benefits received by the
Company on the one hand and the Purchaser on the other from the
offering of the Securities or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Purchaser on the other
in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Purchaser on the other shall
be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the
Company bear to any profit in excess of the purchase price paid to
the Company for the Securities received by the Purchaser from 144A
Resales of the Securities. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied
by the Company or the Purchaser and the parties’ relative
intent, knowledge, access to information and opportunity to correct
or prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection
(d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject
of this subsection (d). Notwithstanding the provisions of this
subsection (d), the Purchaser shall not be required to contribute
any amount in excess of the amount by which the total price at
which the Securities purchased by it were resold exceeds the amount
of any damages which the Purchaser has otherwise been required to
pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. The Company and
the Purchaser agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) were determined by pro
rata allocation or by any other method of allocation which does not
take account of the equitable considerations referred to in this
Section 8(d).
9. Survival of
Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and
other statements of the Company or its officers and of the
Purchaser set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation,
or statement as to the results thereof, made by or on behalf of the
Purchaser, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive
delivery of and payment for the Securities. If for any reason the
purchase of the Securities by the Purchaser is not consummated, the
Company shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 5 and the respective
obligations of the Company and the Purchaser pursuant to
Section 8 shall remain in effect.
10.
Notices. All communications hereunder will be in
writing and, if sent to the Purchaser will be mailed, delivered or
telegraphed and confirmed to the Purchaser at Adio Bond LLC, Two
Tower Center, 11th Floor, East Brunswick, NJ 08816,
Attention: Corporate Counsel, Telecopy: (732)
249-7290 with copies (which shall not constitute notice) to: Latham
& Watkins LLP, 885 Third Avenue, New York, NY,
Fax: (212) 751-4864, Attention: Marc Jaffe
and Wesley Holmes, or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it: Dynegy Holdings Inc.,
1000 Louisiana, Suite 5800, Houston, Texas 77002, Attention
: General Counsel, Fax Number: (713) 356-2185 with copies (which
shall not constitute notice) to: Akin Gump Strauss Hauer & Feld
LLP, 1111 Louisiana St., 44th Floor, Houston Texas 77002, Fax:
(713) 236-0822, Attention: Michael E. Dillard,
P.C.
11. Successors.
This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and
the controlling persons referred to in Section 8, and no other
person will have any right or obligation hereunder, except that
holders of Securities shall be entitled to enforce the agreements
for their benefit contained in the fifth and sixth sentences of
Section 5(b) hereof against the Company as if such holders
were parties thereto.
12.
Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one
and the same Agreement.
13.
Applicable Law. This Agreement shall be
governed by, and construed in accordance with, the Laws of the
State of Delaware. All actions arising out of or
relating to this Agreement shall be heard and determined in any
state or federal court sitting in Delaware, and the parties hereby
irrevocably submit to the exclusive jurisdiction of such courts in
any such action and irrevocably waive the defense of an
inconvenient forum to the maintenance of any such
action. Each party irrevocably consents to the service
of any and all process in any such action by the mailing of copies
of such process to such party at its address specified in this
Agreement. The parties agree that a final judgment in
any such action shall be conclusive and may be enforced in any
other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Section 13 shall affect
the right of any party to serve legal process in any other manner
permitted by law. The consents to jurisdiction set forth
in this Section 13 shall not constitute general consents to service
of process in the State of Delaware and shall have no effect for
any purpose except as provided in this Section 13 and shall not be
deemed to confer rights on any person other than the
parties. EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ALL RIGHTS TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT,
TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
If
the foregoing is in accordance with the Purchaser’s
understanding of our agreement, kindly sign and return to us one of
the counterparts hereof, whereupon it will become a binding
agreement between the Company and the Purchaser in accordance with
its terms.
By:../s/ Lynn A. Lednicky
Name: Lynn A.
Vice-President
Title: Executive
Vice-President
The
foregoing Purchase Agreement
is
hereby confirmed and accepted
as of
the date first above written.
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By:
/s/ Frank Hardenbergh
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Title: Executive
Vice-President
EXHIBIT
A
SECURITIES TERM
SHEET
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Issuer:
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Dynegy Holdings Inc.
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Security Description:
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Senior Notes
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Face:
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$235,000,000
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Coupon:
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7.500%
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Maturity:
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June 1, 2015
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Optional redemption:
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None
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Terms/Covenants:
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Identical to existing 2015 Notes,
except for the special mandatory redemption provision set forth
below.
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Special Redemption:
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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.
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EXHIBIT
B
FORM OF REGISTRATION
RIGHTS AGREEMENT
$235,000,000
Principal Amount
DYNEGY HOLDINGS
INC.
7.5% Senior Unsecured
Notes due 2015
REGISTRATION
RIGHTS AGREEMENT
[______________], 2009
Two
Tower Center, 11th Floor
East Brunswick,
NJ 08816
Dear Sirs:
Dynegy Holdings Inc., a Delaware
corporation (the “ Company ”), proposes to issue
and sell to Adio Bond, LLC (the “ Initial
Purchaser ”) pursuant to the purchase agreement dated
August [__], 2009 (the “ Purchase Agreement ”),
subject to the terms and conditions stated therein, $235,000,000
aggregate principal amount of its 7.5% Senior Unsecured Notes due
2015 (the “ Initial Securities
”). The Initial Securities will be issued under
(i) a base indenture, dated as of September 26, 1996, as amended
and restated as of March 23, 1998, as further amended and restated
as of March 14, 2001 and as supplemented through the date hereof
(the “ Base Indenture ”), between the
Company and Wilmington Trust Company (as successor to JPMorgan
Chase Bank, N.A.), as trustee (the “ Trustee ”)
and (ii) a supplemental indenture establishing the Securities, to
be dated as of the Closing Date (as defined below) (the “
Supplemental Indenture ” and, together with the
Base Indenture, the “ Indenture ”), between the
Company and the Trustee. As an inducement to the Initial
Purchaser, the Company agrees with the Initial Purchaser, for the
benefit of the holders of the Initial Securities (including,
without limitation, the Initial Purchaser) and the Exchange
Securities (as defined below) (collectively the “
Holders ”), as follows:
1.
Registered Exchange
Offer . (a) The Company shall,
at its own cost, prepare and, not later than 270 days after (or if
the 270th day is not a business day, the first business day
thereafter) the date of original issue of the Initial Securities
(the “ Issue Date ”), file with the Securities
and Exchange Commission (the “ Commission ”) a
registration statement (the “ Exchange Offer Registration
Statement ”) on an appropriate form under the Securities
Act of 1933, as amended (the “ Securities Act
”), with respect to a proposed offer (the “
Registered Exchange Offer ”) to the Holders of
Transfer Restricted Securities (as defined in Section 6 hereof),
who are not prohibited by any law or policy of the Commission from
participating in the Registered Exchange Offer, to issue and
deliver to such Holders, in exchange for the Initial Securities, a
like aggregate principal amount of debt securities (the “
Exchange Securities ”) of the Company issued under the
Indenture and identical in all material respects to the Initial
Securities (except for the transfer restrictions relating to the
Initial Securities and the provisions relating to the matters
described in Section 6 hereof) that would be registered under the
Securities Act. The Company shall use its reasonable
best efforts to cause such Exchange Offer Registration Statement to
become effective under the Securities Act within 365 days (or if
the 365th day is not a business day, the first business day
thereafter) after the Issue Date of the Initial Securities and
shall keep the Exchange Offer Registration Statement effective for
not less than 30 days (or longer, if required by applicable law)
after the date notice of the Registered Exchange Offer is mailed to
the Holders (such period being called the “ Exchange Offer
Registration Period ”).
(b) If the Company effects the
Registered Exchange Offer, the Company will be entitled to close
the Registered Exchange Offer 30 days after the commencement
thereof; provided that the Company has accepted all
the Initial Securities theretofore validly tendered in accordance
with the terms of the Registered Exchange Offer.
(c) Following the declaration of the
effectiveness of the Exchange Offer Registration Statement, the
Company shall commence the Registered Exchange Offer on any day
during the period beginning on the 360th day after the Issue Date
and ending on the 370 th day after the Issue date, it
being the objective of such Registered Exchange Offer to enable
each Holder of Transfer Restricted Securities (as defined in
Section 6 hereof) electing to exchange the Initial Securities for
Exchange Securities (assuming that such Holder is not an affiliate
of the Company within the meaning of the Securities Act, acquires
the Exchange Securities in the ordinary course of such
Holder’s business and has no arrangements with any person to
participate in the distribution (within the meaning of the
Securities Act) of the Exchange Securities and is not prohibited by
any law or policy of the Commission from participating in the
Registered Exchange Offer) to trade such Exchange Securities from
and after their receipt without any limitations or restrictions
under the Securities Act and without material restrictions under
the securities laws of the several states of the United
States.
(d) The Company acknowledges that,
pursuant to current interpretations by the Commission’s staff
of Section 5 of the Securities Act, in the absence of an applicable
exemption therefrom, each Holder which is a broker-dealer electing
to exchange Securities, acquired for its own account as a result of
market making activities or other trading activities, for Exchange
Securities (an “ Exchanging Dealer ”), is
required to deliver a prospectus containing the information set
forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the
“ Exchange Offer Procedures ” section or
corresponding section and the “ Purpose of the Exchange
Offer ” section or corresponding section, and (c) Annex C
hereto in the “ Plan of Distribution ” section
or corresponding section of such prospectus in connection with a
sale of any such Exchange Securities received by such Exchanging
Dealer pursuant to the Registered Exchange Offer.
(e) The Company shall use its reasonable
best efforts to keep the Exchange Offer Registration Statement
effective and to amend and supplement the prospectus contained
therein, in order to permit such prospectus to be lawfully
delivered by all persons subject to the prospectus delivery
requirements of the Securities Act for such period of time as such
persons must comply with such requirements in order to resell the
Exchange Securities; provided , however , that (i) in
the case where such prospectus and any amendment or supplement
thereto must be delivered by an Exchanging Dealer, such period
shall be the lesser of 180 days following the launch of the
Registered Exchange Offer and the date on which all Exchanging
Dealers have sold all Exchange Securities held by them (unless such
period is extended pursuant to Section 3(j) below) and (ii) the
Company shall make such prospectus and any amendment or supplement
thereto available to any broker-dealer for use in connection with
any resale of any Exchange Securities for a period of not less than
90 days after the consummation of the Registered Exchange
Offer. The Initial Securities and the Exchange
Securities are herein collectively called the
“Securities”.
(f) [Intentionally omitted].
(g) In connection with the Registered
Exchange Offer, the Company shall:
(i) mail to each Holder a copy of the
prospectus forming part of the Exchange Offer Registration
Statement, together with an appropriate letter of transmittal and
related documents;
(ii) keep the Registered Exchange Offer
open for not less than 30 days (or longer, if required by
applicable law) after the date notice thereof is mailed to the
Holders;
(iii) utilize the services of a depositary
for the Registered Exchange Offer, which may be the Trustee or an
affiliate of the Trustee;
(iv) permit Holders to withdraw tendered
Securities at any time prior to the close of business, New York
time, on the last business day on which the Registered Exchange
Offer shall remain open; and
(v) otherwise comply with all applicable
laws.
(h) As soon as practicable after the
close of the Registered Exchange Offer, the Company
shall:
(i) accept for exchange all the Initial
Securities validly tendered and not withdrawn pursuant to the
Registered Exchange Offer;
(ii) deliver to the Trustee for
cancellation all the Initial Securities so accepted for exchange;
and
(iii) cause the Trustee to authenticate
and deliver promptly to each Holder of the Initial Securities,
Exchange Securities equal in principal amount to the Initial
Securities of such Holder so accepted or tendered for
exchange.
(i) The Indenture will provide that the
Exchange Securities will not be subject to the transfer
restrictions set forth in the Indenture and that all the Securities
will vote and consent together on all matters as one class and that
none of the Securities will have the right to vote or consent as a
class separate from one another on any matter.
(j) Interest on each Exchange Security
issued pursuant to the Registered Exchange Offer will accrue from
the last interest payment date on which interest was paid on the
Initial Securities surrendered in exchange therefor or, if no
interest has been paid on the Initial Securities, from the date of
original issue of the Initial Securities.
(k) Each Holder participating in the
Registered Exchange Offer shall be required to represent to the
Company that at the time of the consummation of the Registered
Exchange Offer (i) any Exchange Securities received by such Holder
will be acquired in the ordinary course of business, (ii) such
Holder will have no arrangements or understanding with any person
to participate in the distribution of the Exchange Securities
within the meaning of the Securities Act, (iii) such Holder is not
an “affiliate,” as defined in Rule 405 of the
Securities Act, of the Company or if it is an affiliate, such
Holder will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable, (iv)
if such Holder is not a broker-dealer, that it is not engaged in,
and does not intend to engage in, the distribution of the Exchange
Securities and (v) if such Holder is a broker-dealer, that it will
receive Exchange Securities for its own account in exchange for
Initial Securities that were acquired as a result of market-making
activities or other trading activities and that it will be required
to acknowledge that it will deliver a prospectus in connection with
any resale of such Exchange Securities.
(l) Notwithstanding any other provisions
hereof, the Company will ensure that (i) any Exchange Offer
Registration Statement and any amendment thereto and any prospectus
forming part thereof and any supplement thereto complies in all
material respects wit
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