ex10-1.htm


    


      EXECUTION
COPY

       

      


       

      $235,000,000

       

      DYNEGY
HOLDINGS INC.

       

      7.50%
Senior Unsecured Notes due 2015

       

       

      PURCHASE
AGREEMENT

       

      December
2, 2009

       

      Credit
Suisse Securities (USA) LLC

       

      Citigroup
Global Markets Inc.

       

      As
Representatives of the several purchasers

       

      c/o
Credit Suisse Securities (USA) LLC

       

            Eleven
Madison Avenue,

       

            New
York, N.Y. 10010-3629

       

      Dear
Sirs:

       

      1.  Introductory.  Dynegy
Holdings Inc., a Delaware corporation (the “Company”), and Adio Bond, LLC,
a Delaware limited liability company (the “Selling Noteholder”), confirm
their agreement with the several purchasers named in Schedule A hereto (the
“Purchasers”), with
respect to the sale by the Selling Noteholder of $235,000,000 aggregate
principal amount of 7.50% Senior Unsecured Notes due 2015 (the “Offered Securities”) which
were issued under a fifth supplemental indenture dated as of December 1, 2009 to
the indenture dated 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
by a first supplemental indenture dated as of July 25, 2003, a second
supplemental indenture dated as of April 12, 2006, a third supplemental
indenture dated as of May 24, 2007 and a fourth supplemental indenture dated as
of May 24, 2007 (collectively, the “Indenture”), between the
Company and Wilmington Trust Company (as successor to JPMorgan Chase Bank,
N.A.), as Trustee, on a private placement basis pursuant to an exemption under
the United States Securities Act of 1933 (the “Securities Act”), and hereby
agree with the several Purchasers as follows.

       

      The
Company and the Selling Noteholder have completed a series of transactions
described in the Preliminary Offering Circular and the Final Offering Circular
under the heading “Summary-LS Power Transactions” (such transactions, the “Transactions”). As part of the
Transactions and pursuant to a Purchase Agreement dated as of August 9, 2009
between the Company and the Selling Noteholder (the “Noteholder Purchase
Agreement”), the Company has issued and sold to the Selling Noteholder
the Offered Securities.

       

      The
holders of the Offered Securities will be entitled to the benefits of a
Registration Rights Agreement dated as of December 1, 2009 between the Company
and the Selling Noteholder (the “Registration Rights
Agreement”), pursuant to which the Company has agreed to file a
registration statement with the Securities and Exchange Commission (the “Commission”) to exchange the
Offered Securities for a new class of securities with substantially identical
terms as the Offered Securities issued under the Indenture and registered under
the Securities Act subject to the terms and conditions therein
specified.

       

      As used
herein, the term “Operative
Documents” refers to this Agreement, the Registration Rights Agreement,
the Indenture and the Offered Securities.

       

      2A.  Representations and Warranties of
the Company.  The Company represents and warrants to, and
agrees with, the Purchasers that:

       

      (a) A
preliminary offering circular dated as of December 1, 2009 (the “Preliminary Offering
Circular”) relating to the Offered Securities to be resold by the
Purchasers and a final offering circular (the “Final Offering Circular”)
disclosing the resale price and other final terms of the Offered Securities
dated as of the date of this Agreement (even if finalized and issued subsequent
to the date of this Agreement) have been or will be prepared by the
Company.  “General
Disclosure Package” means the Preliminary Offering Circular, together
with any Issuer Free Writing Communication (as hereinafter defined) existing at
the Time of Sale (as hereinafter defined) as evidenced by its being specified in
Schedule B to this Agreement (including the term sheet listing the final
terms of the Offered Securities and their offering, included in Schedule B
to this Agreement, which is referred to as the “Terms
Communication”).  Any reference herein to the Preliminary
Offering Circular, the Final Offering Circular or the General Disclosure Package
shall be deemed to refer to and include any Exchange Act Report incorporated by
reference therein (as defined).  “Time of Sale” means when
resales of Securities were first made pursuant to the General Disclosure
Package.  As of the date of this Agreement and as of the Closing Date,
the Final Offering Circular does not include any untrue statement of a material
fact or 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.  At the Time of Sale and as of the Closing Date
neither (i) the General Disclosure Package, nor (ii) any individual Supplemental
Marketing Material (as hereinafter defined), when considered together with the
General Disclosure Package, 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 two sentences do not apply to statements in or
omissions from the Preliminary Offering Circular or Final Offering Circular, the
General Disclosure Package or any Supplemental Marketing Material based upon
written information furnished to the Company by any Purchaser through Credit
Suisse Securities (USA) LLC (“Credit Suisse”) specifically
for use therein, it being understood and agreed that the only such information
is that described as such in Section 8(c) hereof.   On the date
of this Agreement, the Company’s annual report on Form 10-K most recently
filed with the Commission and all subsequent reports (collectively, the “Exchange Act Reports”) which
have been or subsequently are deemed to be incorporated by reference in the
Preliminary Offering Circular, the General Disclosure Package or the Final
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.

       

      “Free Writing Communication”
means a written communication (as such term is defined in Rule 405 under
the Securities Act) that constitutes an offer to sell or a solicitation of an
offer to buy the Offered Securities and is made by means other than the
Preliminary Offering Circular or the Final Offering Circular.  “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 Offered Securities or of their offering,
in the form retained in the Company’s records. “Supplemental Marketing
Material” means any Issuer Free Writing Communication other than any
Issuer Free Writing Communication specified in Schedule B to this
Agreement.

       

      (b)  No
order or decree preventing the use of the General Disclosure Package, the Final
Offering Circular or any order asserting that the transactions contemplated by
this Agreement 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.

       

      (c)  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 General Disclosure
Package and the Final Offering Circular; and each of the Company and its
subsidiaries is duly qualified to do business as a foreign entity 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”). The Company has all requisite corporate power and authority to
enter into the Operative Documents and to consummate the transactions
contemplated thereby.

       

      
        
          
          

        

        
          - 1
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      (d)  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.

      
         

      

      (e)(i)  As
of the date hereof, subject to changes in the ordinary course of business or as
contemplated by the General Disclosure Package and the Final Offering Circular,
the Company has the capitalization set forth in the General Disclosure Package
and the Final 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.

       

      (f)  The
Offered Securities have been duly and validly authorized, executed, issued and
delivered, and constitute valid and binding obligations of the Company entitled
to the benefits of the Indenture, enforceable against the Company in accordance
with their terms, except as such enforceability may be limited by (i)
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors’ rights
generally and (ii) general principles of equity and the discretion of the court
before which any proceeding therefore may be brought (regardless of whether such
enforcement is considered in a proceeding in equity or at law). On the date
hereof, the Offered Securities conform to the description thereof contained in
the General Disclosure Package and the Final Offering Circular and on the
Closing Date the Offered Securities will conform to the description thereof
contained in the Final Offering Circular.

       

      (g)  The
Exchange Securities (as defined in the Registration Rights Agreement) have been,
or as of the Registered Exchange Offer (as defined in the Registration Rights
Agreement) will have been, duly and validly authorized by the Company and, when
duly executed by the Company in accordance with the terms of the Indenture,
assuming due authentication of the Exchange Securities by the Trustee, upon
exchange for the Initial Securities (as defined in the Registration Rights
Agreement), will be validly issued and delivered, and will constitute valid and
binding obligations of the Company entitled to the benefits of the Indenture,
enforceable against the Company in accordance with their terms, except as such
enforceability may be limited by (i) bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors’ rights generally and (ii) general principles of
equity and the discretion of the court before which any proceeding therefore may
be brought (regardless of whether such enforcement is considered in a proceeding
in equity or at law). The Exchange Securities will conform to the descriptions
thereof contained in the Registration Statement (as defined in the Registration
Rights Agreement).

       

      (h)  The
Indenture has been duly and validly authorized, executed and delivered by the
Company, constitutes the valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as such enforceability
may be limited by (i) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors’ rights generally and (ii) general principles of equity
and the discretion of the court before which any proceeding therefore may be
brought (regardless of whether such enforcement is considered in a proceeding in
equity or at law); and assuming the accuracy of the Selling Noteholder’s and the
Purchasers’ representations and warranties and the Selling Noteholder’s and the
Purchasers’ compliance with the agreements in Sections 4 and 5 hereof and
compliance with the limitations and restrictions contained under the heading
“Transfer Restrictions” in the Final Offering Circular, no qualification of the
Indenture under the Trust Indenture Act of 1939, as amended (the “TIA”) was required in
connection with the issuance and sale of the Offered Securities pursuant to the
Noteholder Purchase Agreement or is required in connection with the offer and
resale of the Offered Securities contemplated hereby; and the Indenture conforms
in all material respects to the requirements of the TIA, and the rules and
regulations of the Commission applicable to an indenture which is qualified
thereunder. On the date of this Agreement, the Indenture conforms to the
description thereof in the General Disclosure Package and the Final Offering
Circular, and on the Closing Date the Indenture will conform to the description
thereof in the Final Offering Circular.

       

      (i)  This
Agreement has been duly authorized, executed and delivered by the
Company.  The Registration Rights Agreement has been duly authorized,
executed and delivered and constitutes a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms, except as
such enforceability may be limited by (i) bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors’ rights generally and (ii) general principles
of equity and the discretion of the court before which any proceeding therefore
may be brought (regardless of whether such enforcement is considered in a
proceeding in equity or at law).

       

      (j)  Except
as disclosed in the General Disclosure Package and the Final 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 any
Purchaser or any subsequent purchaser for a brokerage commission, finder’s fee
or other like payment.

       

      (k)  No
consent, approval, authorization, or order of, or filing with, any governmental
agency or body or any court is or was required in connection with the issuance
and sale of the Offered Securities by the Company pursuant to the Noteholder
Purchase Agreement or in connection with the sale by the Selling Noteholder to
the Purchasers or the offer and resale of the Offered Securities by the
Purchasers contemplated hereby, 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, (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 Operative Documents
and (iv) those disclosed in the General Disclosure Package and the Final
Offering Circular.

       

      (l)  The
execution, delivery and performance of the Operative Documents, and the issuance
and sale of the Offered Securities pursuant to the Noteholder Purchase Agreement
and the offer and resale of the Offered Securities and compliance with the terms
and provisions thereof, have not resulted and will 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.

       

      (m)  Except
as disclosed in the General Disclosure Package and the Final 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.

       

      (n)  Except
as disclosed in the General Disclosure Package and the Final 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.

       

      (o)  To
the knowledge of the Company, except as disclosed in the General Disclosure
Package and the Final 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.

       

      (p)  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.

       

      (q)  Except
as disclosed in the General Disclosure Package and the Final Offering Circular,
neither the Company nor any of its subsidiaries is in violation of any statute,
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.

       

      (r)  Except
as disclosed in the General Disclosure Package and the Final 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 Operative Documents; and except as disclosed in the
General Disclosure Package and the Final Offering Circular no such actions,
suits or proceedings are, to the Company’s knowledge, threatened or
contemplated.

       

      
        
          
          

        

        
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      (s)  The
financial statements of the Company together with the related schedules and
notes included or incorporated by reference in the General Disclosure Package
and the Final Offering Circular present fairly in all material respects the
consolidated financial position of the Company and its subsidiaries as of the
dates indicated and the results of their operations and cash flows and the
changes in their financial position for the periods specified; and such
financial statements have been prepared in conformity with the generally
accepted accounting principles in the United States applied on a consistent
basis.  The pro forma financial information set forth or incorporated
by reference in the Offering Circular is, in all material respects, fairly
presented and prepared on a basis consistent with the historical financial
statements of the Company and its subsidiaries, except to the extent stated
therein, and gives effect to assumptions used in the preparation thereof which
have been made on a reasonable basis and in good faith.

       

      (t)  Except
as disclosed in the General Disclosure Package and the Final Offering Circular,
since the date as of which the information is given in the General Disclosure
Package and the Final Offering Circular, there has been no material adverse
change, nor any development or event reasonably expected to result in a 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 General Disclosure Package and the Final Offering Circular,
there has been no dividend or distribution of any kind declared, paid or made by
Company on any class of its capital stock.

       

      (u)  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.

       

      (v)  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 issuance and sale of the
Offered Securities pursuant to the Noteholder Purchase Agreement and the
application of the proceeds thereof as described in the General Disclosure
Package and the Final Offering Circular, will not be an “investment company” as
defined in the Investment Company Act.

       

      (w)  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 on Form 10-K and
are effective in all material respects to perform the functions for which they
were established.

       

      (x)  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.

       

      (y)  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 General Disclosure Package and the Final
Offering Circular.

       

      (z)  Ernst
& Young LLP and PricewaterhouseCoopers LLP, who have each certified certain
financial statements of the Company and its subsidiaries, are each independent
public accountants with respect to the Company as required by the Securities Act
and the rules and regulations of the Commission and the Public Company
Accounting Oversight Board.

       

      (aa)   Except
as set forth in the General Disclosure Package and the Final Offering Circular,
(i) the Company is not subject to regulation under the Federal Power Act, as
amended (“FPA”), other
than in regard to Section 203 thereof and (ii) no subsidiary of the Company is
(A) subject to regulation under the FPA other than as customarily imposed on a
power marketer with market-based rate or specific cost-based rate authority, or
as a “qualifying facility” (“QF”) under the Public Utility
Regulatory Policies Act of 1978, as amended (16 U.S.C. Section 796 et seq.)
(“PURPA”), as provided
in 18 C.F.R. Section 292.601(c), or (B) with respect to each of the power
generation projects in which any of the Company or its subsidiaries has an
interest that is a QF, subject to any state law or regulation with respect to
rates or the financial or organizational regulation of electric utilities, other
than as contemplated by 18 C.F.R. Section 292.602(c).

       

      (bb)  Except
as disclosed in the General Disclosure Package and the Final Offering Circular,
each of the power generation projects that is a QF under PURPA, in which the
Company or its subsidiaries has an interest, has certified to the FERC that it
meets the requirements for certification as a QF as set out in PURPA and the
regulations of the Federal Energy Regulatory Commission (“FERC”) promulgated thereunder,
as amended from time to time.

       

      (cc)  Each
of the Company and its subsidiaries that sells power at market-based rates
outside of the Electric Reliability Council of Texas, Inc. (“ERCOT”) has validly-issued
orders from the FERC authorizing it to engage in wholesale sales of electricity,
ancillary services in certain markets and, to the extent permitted under its
market-based rate tariff, other products and services at market-based rates. The
FERC has not issued any orders limiting the ability of each such entity to
engage in the wholesale sales of electricity at market-based prices, and has not
imposed any rate caps or mitigation measures other than rate caps and mitigation
measures generally applicable to similarly situated marketers or generators
selling electricity, ancillary services or other products at wholesale in the
geographic market where each such entity conducts its business.

       

      (dd)  Except
as disclosed in the General Disclosure Package and the Final Offering Circular,
there are no pending complaints filed with the FERC seeking abrogation or
modification of a contract for the sale of power by the Company or any of its
subsidiaries.

       

      (ee)  No
securities of the same class (within the meaning of Rule 144A(d)(3) under
the Securities Act) as the Offered 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.

       

      (ff)  The
offer and sale of the Offered Securities by the Company to the Selling
Noteholder in the manner contemplated by the Noteholder Purchase Agreement was
exempt from the registration requirements of the Securities Act by reason of
Section 4(2) thereof, and, the offer and sale of the Offered Securities by the
Selling Noteholder to the Purchasers in the manner contemplated by this
Agreement will be exempt from the registration requirements of the Securities
Act by reason of Rule 144A thereunder.

       

      (gg)  Neither
the Company nor any of its affiliates, nor any person acting on its or their
behalf (it being understood that no representation is made with respect to the
Selling Noteholder, any Purchaser, any Purchaser’s affiliates or any of their
representatives) (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 Offered Securities (other
than to the Selling Noteholder pursuant to the Noteholder Purchase Agreement) or
any security of the same class or series as the Offered Securities or (ii) has
offered or will offer or sell the Offered Securities (A) in the United States by
means of any form of general solicitation or general advertising within the
meaning of Rule 502(c) under the Securities Act or (B) with respect to any such
securities sold in reliance on Rule 903 of Regulation S under the Securities
Act, by means of any directed selling efforts within the meaning of Rule 902(c)
of Regulation S.  The Company has not entered and will not enter into
any contractual arrangement with respect to the distribution of the Offered
Securities except for this Agreement.

       

      (hh)  Except
as disclosed in the General Disclosure Package and the Final 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
Offered Securities registered pursuant to any registration
statement.

       

      (ii)  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 this Agreement or the issuance or sale of the Offered Securities to
violate Regulation T, Regulation U or Regulation X of the Board of Governors of
the Federal Reserve System.

       

      (jj)  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.

       

      (kk)  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.

       

      (ll)  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
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.

       

      
        
          
          

        

        
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      (mm)  The
Company has filed all material federal, state and local income and franchise tax
returns required to be filed through the date hereof 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 General Disclosure Package and the Final 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.

       

      (nn)  Prior
to the date hereof, 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 and offering or resale of
the Offered Securities.

       

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

       

      (pp)  The
statements set forth in the Preliminary Offering Circular and the Final Offering
Circular under the caption “Description of Notes”, insofar as they purport to
constitute a summary of the terms of the Offered 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.

       

      2B.  Representations and Warranties of
the Selling Noteholder.  The Selling Noteholder represents and
warrants to, and agrees with, the Purchasers that:

       

      (a)  The
Selling Noteholder has valid and unencumbered title to the Offered Securities
and has full right, power and authority to enter into this Agreement and to
sell, assign, transfer and deliver the Offered Securities hereunder; and upon
the delivery of and payment for the Offered Securities on the Closing Date, the
Purchasers will acquire valid and unencumbered title to the Offered
Securities.

       

      (b)  Assuming
that the Purchasers’ representations and warranties made in Section 4 hereof are
true and correct and that the Purchasers and the Company comply with the offer
and sale procedures set forth in the Offering Circular, no consent, approval,
authorization or order of, or filing with, any governmental agency or body or
any court is required to be obtained or made by the Selling Noteholder in
connection with the resale of the Offered Securities sold by the Selling
Noteholder, except such as have been obtained and made under the Act and such as
may be required under state securities laws.

       

      (c)  The
execution, delivery and performance of this Agreement and the consummation of
the transactions herein contemplated will not result in a breach or violation of
any of the terms and provisions of, or constitute a default under, or result in
the imposition of any lien, charge or encumbrance upon any property or assets of
the Selling Noteholder pursuant to, (i) any statute, any rule, regulation or
order of any governmental agency or body or any court having jurisdiction over
the Selling Noteholder or any of its properties, (ii) any agreement or
instrument to which the Selling Noteholder is a party or by which the Selling
Noteholder is bound or to which any of the properties of the Selling Noteholder
is subject or (iii) the charter, bylaws or other constituent documents of
the Selling Noteholder, 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 on the resale of the Offered Securities.

       

      (d)  As
of the date of this Agreement and as of the Closing Date, the Final Offering
Circular does not include any untrue statement of a material fact or 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.  At the Time of Sale and as of the Closing Date neither
(i) the General Disclosure Package, nor (ii) any individual Supplemental
Marketing Material (as hereinafter defined), when considered together with the
General Disclosure Package, 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 two sentences do not apply to statements in
or omissions from the Preliminary Offering Circular or Final Offering Circular,
the General Disclosure Package or any Supplemental Marketing Material based upon
written information furnished to the Company or to the Selling Noteholder by any
Purchaser through Credit Suisse specifically for use therein, it being
understood and agreed that the only such information is that described as such
in Section 8(c) hereof.  Notwithstanding anything in this paragraph
(d) to the contrary, with respect to the Selling Noteholder, the provisions of
this paragraph (d) apply only to the extent that any statements in or omissions
from any Preliminary Offering Circular or Final Offering Circular, the General
Disclosure Package or any Supplemental Marketing Material are based upon written
information furnished to the Company by or on the behalf of the Selling
Noteholder specifically for use therein, it being understood and agreed that the
only such information furnished by the Selling Noteholder consists of the name
and address of the Selling Noteholder in the Preliminary Offering Circular and
Final Offering Circular.

       

      (e)  The
sale of the Offered Securities by the Selling Noteholder pursuant to this
Agreement is not prompted by any material information concerning the Company or
any of its subsidiaries that is not set forth the General Disclosure
Package.

       

      (f)  This
Agreement has been duly authorized, executed and delivered by the Selling
Noteholder.

       

      (g)  Except
as disclosed in the General Disclosure Package and the Final Offering Circular,
there are no contracts, agreements or understandings between the Selling
Noteholder and any person that would give rise to a valid claim against the
Selling Noteholder or any Purchaser or any subsequent purchaser for a brokerage
commission, finder’s fee or other like payment.

       

      (h)  The
Selling Noteholder has not taken, directly or indirectly, any action that is
designed to or that has constituted or that would reasonably be expected to
cause or result in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Offered
Securities.

       

      (i)  Neither
the Selling Noteholder nor any other person acting on behalf of the Selling
Noteholder (other than the Purchasers, as to which the Selling Noteholder makes
no representation) has offered or sold to any person any Offered Securities,
other than Offered Securities offered or sold to the Purchasers
hereunder.

       

      (j)  The
Selling Noteholder agrees that it and each of its affiliates have not entered
into and will not prior to the Closing Date or the termination of this Agreement
enter into any contractual arrangement with respect to the distribution of the
Offered Securities except for this Agreement.

       

      3.  Purchase, Sale and Delivery of
Offered Securities.  On the basis of the representations,
warranties and agreements herein contained, but subject to the terms and
conditions herein set forth, the Selling Noteholder agrees to sell to the
Purchasers, and the Purchasers agree, severally and not jointly, to purchase
from the Selling Noteholder, at a purchase price of 86.500% of the principal
amount thereof plus accrued interest from December 1, 2009 to the Closing Date
(as hereinafter defined), the respective principal amounts of the Offered
Securities set forth opposite the names of the several Purchasers in
Schedule A hereto.

       

      The
Selling Noteholder will deliver to the Purchasers against payment of the
purchase price the Offered Securities, in the form of one or more permanent
global securities in definitive form (the “Global Securities”) deposited with
the Trustee as custodian for The Depository Trust Company (“DTC”) and registered in the
name of Cede & Co., as nominee for DTC, by causing DTC to credit the Offered
Securities to the account of the Purchasers at DTC.  Interests in any
permanent global securities will be held only in book-entry form through DTC,
except in the limited circumstances described in the Final Offering
Circular.

       

      Payment
for the Offered Securities shall be made by the Purchasers in Federal (same day)
funds by wire transfer to an account at a bank acceptable to Credit Suisse, on
December 7, 2009, or at such other time not later than seven full business days
thereafter as Credit Suisse and the Selling Noteholder determine, such time
being herein referred to as the “Closing Date”.

       

      4.  Representations by Purchasers;
Resale by Purchasers. (a)  Each Purchaser severally represents
and warrants to the Company and the Selling Noteholder that it is an “accredited
investor” within the meaning of Regulation D under the Securities Act and a
“qualified institutional buyer” as defined in Rule 144A under the Securities
Act.

       

      (b)  Each
Purchaser severally acknowledges that the Offered Securities have not been
registered under the Securities Act and may not be offered or sold within the
United States or to, or for the account or benefit of, U.S. persons except
pursuant to an exemption from the registration requirements of the Securities
Act.  Each Purchaser severally represents and agrees that it has
offered and sold the Offered Securities and will offer and sell the Offered
Securities (i) as part of their distribution at any time and (ii) otherwise
until 40 days after the later of the commencement of the offering and the
Closing Date, only in accordance with Rule 144A (“Rule 144A”). Accordingly,
neither such Purchaser nor its affiliates, nor any persons acting on its or
their behalf, have engaged or will engage in any directed selling efforts with
respect to the Offered Securities.

       

      (c)  Each
Purchaser severally agrees that it and each of its affiliates has not entered
and will not enter into any contractual arrangement with respect to the
distribution of the Offered Securities except for any such arrangements with the
other Purchasers or affiliates of the other Purchasers or with the prior written
consent of the Company.

       

      (d)  Each
Purchaser severally agrees that it and each of its affiliates will not offer or
sell the Offered Securities by means of any form of general solicitation or
general advertising, within the meaning of Rule 502(c) under the Securities Act,
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.
Each Purchaser severally agrees, with respect to resales made in reliance on
Rule 144A of any of the Offered 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 Offered Securities has been made in
reliance upon the exemption from the registration requirements of the Securities
Act provided by Rule 144A.

       

      
        
          
          

        

        
          - 4
-

           


        

        
          
          

        

      

      (e)  Each
Purchaser severally represents and agrees that (i) it has only communicated
or caused to be communicated and will only communicate or cause to be
communicated any invitation or inducement to engage in investment activity
(within the meaning of section 21 of the Financial Services and Markets Act 2000
(the “FSMA”)) received
by it in connection with the issue or sale of any Offered Securities in
circumstances in which section 21(1) of the FSMA does not apply to the
Company and (ii) it has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it in relation to the
Offered Securities in, from or otherwise involving the United
Kingdom.

       

      (f)  In
relation to each Member State of the European Economic Area which has
implemented the Prospectus Directive (each, a “Relevant Member State”), each
Purchaser severally represents and agrees that with effect from and including
the date on which the Prospectus Directive is implemented in that Relevant
Member State (the “Relevant
Implementation Date”) it has not made and will not make an offer of
Offered Securities to the public in that Relevant Member State prior to the
publication of a prospectus in relation to the Offered Securities which has been
approved by the competent authority in that Relevant Member State or, where
appropriate, approved in another Relevant Member State and notified to the
competent authority in that Relevant Member State, all in accordance with the
Prospectus Directive, except that it may, with effect from and including the
Relevant Implementation Date, make an offer of Offered Securities to the public
in that Relevant Member State at any time:

       

      (i)           to
legal entities which are authorized or regulated to operate in the financial
markets or, if not so authorized or regulated, whose corporate purpose is solely
to invest in securities;

       

      (ii)           to
any legal entity which has two or more of (A) an average of at least 250
employees during the last financial year; (B) a total balance sheet of more than
€43,000,000 and (C) an annual net turnover of more than €50,000,000, as shown in
its last annual or consolidated accounts;

       

      (iii) to fewer than 100 natural or
legal persons (other than qualified investors as defined in the Prospectus
Directive) subject to obtaining the prior consent of the manager for any such
offer; or

       

      (iv)           in
any other circumstances which do not require the publication by the Company of a
prospectus pursuant to Article 3 of the Prospectus Directive.

       

      For the
purposes of this provision, the expression an “offer of Offered Securities to
the public” in relation to any Offered Securities in any Relevant Member State
means the communication in any form and by any means of sufficient information
on the terms of the offer and the Offered Securities to be offered so as to
enable an investor to decide to purchase or subscribe the Offered Securities, as
the same may be varied in that Member State by any measure implementing the
Prospectus Directive in that Member State and the expression “Prospectus
Directive” means Directive 2003/71/EC and includes any relevant implementing
measure in each Relevant Member State.

       

      5.  Certain Agreements of the Company
and the Selling Noteholder.  The Company and, to the extent set
forth below, the Selling Noteholder, agree with the several Purchasers
that:

       

      (a)  The
Company will advise Credit Suisse promptly of any proposal to amend or
supplement the Preliminary Offering Circular or Final Offering Circular and will
not effect such amendment or supplementation without Credit Suisse’s consent
(which consent shall not be unreasonably withheld or delayed). If, at any time
prior to the completion of the resale of the Offered Securities by the
Purchasers, there occurs an event or development as a result of which any
document included in the Preliminary Offering Circular or Final Offering
Circular, the General Disclosure Package or any Supplemental Marketing Material
included or would include an untrue statement of a material fact or omitted or
would omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances prevailing at such time, not
misleading, the Company promptly will notify Credit Suisse of such event and
promptly will prepare, at its own expense, an amendment or supplement which will
correct such statement or omission. Neither Credit Suisse’s consent to, nor the
Purchasers’ delivery to offerees or investors of, any such amendment or
supplement shall constitute a waiver of any of the conditions set forth in
Section 6.

       

      (b)  The
Company will furnish to Credit Suisse copies of the Preliminary Offering
Circular, each other document comprising a part of the General Disclosure
Package and the Final Offering Circular, all amendments and supplements to such
documents and each item of Supplemental Marketing Material, in each case as soon
as available and in such quantities as Credit Suisse reasonably requests. At any
time when the Company is not subject to Section 13 or 15(d) of the Exchange Act,
and any Offered Securities remain “restricted securities” within the meaning of
the Securities Act, the Company will promptly furnish or cause to be furnished
to Credit Suisse (and, upon request, to each of the other Purchasers) and, upon
request of holders and prospective purchasers of the Offered Securities, to such
holders and purchasers, copies of the information required to be delivered to
holders and prospective purchasers of the Offered Securities pursuant to
Rule 144A(d)(4) under the Securities Act (or any successor provision
thereto) in order to permit compliance with Rule 144A in connection with resales
by such holders of the Offered Securities. The Company will pay the expenses of
printing and distributing to the Purchasers all such documents.

       

      (c)  The
Company will use all commercially reasonable efforts to obtain the qualification
of the Offered Securities for sale and the determination of their eligibility
for investment under the laws of such jurisdictions in the United States and
Canada as Credit Suisse designates and will continue such qualifications in
effect so long as required for the resale of the Offered Securities by the
Purchasers, 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)  During
the period of one year after the Closing Date, the Company will, upon request,
furnish to Credit Suisse, each of the other Purchasers and any holder of Offered
Securities a copy of the restrictions on transfer applicable to the Offered
Securities.

       

      (e)  During
the period of five years hereafter, unless such documents are available
electronically via the EDGAR system maintained by the Commission, the Company
will furnish to Credit Suisse, and, upon request, to each of the other
Purchasers, as soon as practicable after the end of each fiscal year, a copy of
its annual report to stockholders for such year; and the Company will furnish to
Credit Suisse and, upon request, to each of the other Purchasers, (i) as
soon as available, a copy of each report and any definitive proxy statement of
the Company mailed to stockholders and (ii) the information required to be
provided to the Trustee for the Offered Securities pursuant to the
Indenture.

       

      (f)  Subject
to the Purchasers’ compliance with its representations and warranties and
agreements set forth in Section 4 hereof, the Company consents to the use of the
Preliminary Offering Circular, any other documents comprising any part of the
General Disclosure Package, the Final Offering Circular and any amendments and
supplements thereto required pursuant to Section 5(a) hereto, by the
Purchasers.

       

      (g)  During
the period of one year after the Closing Date, the Company will not, and will
not permit any of its affiliates (as defined in Rule 144 under the Securities
Act) to, resell any of the Offered Securities that have been reacquired by any
of them, unless such Offered Securities are resold in a transaction registered
under the Securities Act.

       

      (h)  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.

       

      (i)  The
Company agrees to pay all expenses incidental to the performance of its
obligations under the Operative Documents including (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
Offered Securities and, as applicable, the Exchange Securities (as defined in
the Registration Rights Agreement), the preparation and printing of the
Preliminary Offering Circular, any other documents comprising any part of the
General Disclosure Package, the Final Offering Circular, all amendments and
supplements thereto, each item of Supplemental Marketing Material and any other
document relating to the issuance, offer, sale and delivery of the Offered
Securities and as applicable the Exchange Securities, (iii) for any expenses
(including fees and disbursements of counsel) incurred in connection with
qualification of the Offered Securities or the Exchange Securities for sale
under the state securities laws as provided in Section 5(c) and the
printing of memoranda relating thereto, (iv) for any fees charged by investment
rating agencies for the rating of the Offered Securities or the Exchange
Securities, (v) for expenses incurred in distributing the Preliminary Offering
Circular, any other documents comprising any part of the General Disclosure
Package, the Final Offering Circular (including any amendments and supplements
thereto) and any Supplemental Marketing Material to the Purchasers and (vi) the
reasonable fees and expenses of Latham & Watkins LLP, counsel to the Selling
Noteholder, relating to the offer and sale of the Offered
Securities.  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 Offered Securities including, without
limitation, any travel expenses of the Company’s officers and employees and any
other expenses of the Company.

       

      (j)  In
connection with the offering, until Credit Suisse shall have notified the
Company, the other Purchasers and the Selling Noteholder, which notice shall be
promptly provided upon the written request of the Company or the Selling
Noteholder, of the completion of the resale of the Offered Securities, neither
the Company, the Selling Noteholder nor any of their respective affiliates has
or will, either alone or with one or more other persons, bid for or purchase for
any account in which they or any of their affiliates has a beneficial interest
any Offered Securities or attempt to induce any person to purchase any Offered
Securities; and neither they nor any of their affiliates will make bids or
purchases for the purpose of creating actual, or apparent, active trading in, or
of raising the price of, the Offered Securities.

       

      (k)  Except
as stated in this Agreement, the General Disclosure Package or the Final
Offering Circular, none of the Company, the Selling Noteholder or any of their
respective affiliates have taken, nor will any of them take, directly or
indirectly, any action designed to or that might reasonably be expected to cause
or result in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Offered Securities.

       

      (l)  The
Offered Securities are eligible for clearance and settlement through
DTC.

       

      
        
          
          

        

        
          - 5
-

           


        

        
          
          

        

      

      (m)  The
Company agrees not to sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in the Securities Act), that
would be integrated with the sale of the Offered Securities in a manner that
would require the registration under the Securities Act of the sale to the
Selling Noteholder, the resale by the Selling Noteholder to the Purchasers or
the resale of the Offered Securities by the Purchasers.

       

      (n)  The
Company agrees to comply with all the terms and conditions of the Operative
Documents and all agreements set forth in the representation letter of the
Company to DTC relating to the approval of the Offered Securities by DTC for
“book entry” transfer.

       

      (o) For a
period of five consecutive business days following the date hereof, 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 Credit
Suisse.

       

      6.  Free Writing
Communications.  (a)  The Company and the Selling
Noteholder represent and agree that, unless they obtain the prior consent of
Credit Suisse, and each Purchaser severally represents and agrees that, unless
it obtains the prior consent of the Company, Credit Suisse and the Selling
Noteholder, it has not made and will not make any offer relating to the Offered
Securities that would constitute an Issuer Free Writing
Communication.

       

      (b)  The
Company consents to the use by any Purchaser of a Free Writing Communication
that (i) contains only (A) information describing the preliminary terms of
the Offered Securities or their offering or (B) information that describes
the final terms of the Offered Securities or their offering and that is included
in the Terms Communication or is included in or is subsequently included in the
Final Offering Circular or (ii) does not contain any material information
about the Company or its securities that was provided by or on behalf of the
Company, it being understood and agreed that any such Free Writing Communication
referred to in clause (i) or (ii) shall not be an Issuer Free Writing
Communication for purposes of this Agreement.

       

      7.  Conditions of the Obligations of the
Purchasers.  The obligations of the several Purchasers to
purchase and pay for the Offered Securities will be subject to the accuracy of
the representations and warranties on the part of the Company and the Selling
Noteholder herein as of the date hereof and on the Closing Date, to the accuracy
of the statements of officers of the Company and the Selling Noteholder made
pursuant to the provisions hereof, to the performance by the Company and the
Selling Noteholder of their respective obligations hereunder and to the
following additional conditions precedent:

       

      (a)  The
Purchasers shall have received letters, dated the date of this Agreement,
of  Ernst & Young LLP and PricewaterhouseCoopers LLP, independent
public accountants of the Company, substantially in the form attached hereto as
Annex A and B respectively, confirming that they are independent public
accountants within the meaning of the Securities Act and the applicable
published rules and regulations thereunder.  Each such letter shall be
in form and substance reasonably satisfactory to the Purchasers as agreed as of
the date hereof and shall cover the matters ordinarily covered by accountants’
“comfort letters” to initial purchasers in connection with offerings similar to
the offering of the Offered Securities.

       

      (b)  Subsequent
to the execution and delivery of this Agreement, there shall not have occurred
(i) any change, or any development or event involving a prospective change, in
the condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole which, in the
judgment of a majority in interest of the Purchasers, including Credit Suisse,
is material and adverse and makes it impractical or inadvisable to proceed with
completion of the offering or the resale of and payment for the Offered
Securities; (ii) any downgrading in the rating of any debt securities of
the Company by any “nationally recognized statistical rating organization” (as
defined for purposes of Rule 436(g) under the Securities Act), or any public
announcement that any such organization has under surveillance or review its
rating of any debt securities of the Company (other than an announcement with
positive implications of a possible upgrading, and no implication of a possible
downgrading, of such rating) or any announcement that the Company has been
placed on negative outlook as of or after the date of this Agreement; (iii) any
change in U.S. or international financial, political or economic conditions or
currency exchange rates or exchange controls as would, in the judgment of a
majority in interest of the Purchasers, including Credit Suisse, be likely to
prejudice materially the success of the proposed issue, sale or distribution of
the Offered Securities, whether in the primary market or in respect of dealings
in the secondary market; (iv) (A) any material suspension or material limitation
of trading in securities generally on the New York Stock Exchange or (B) any
setting of minimum prices for trading on such exchange, or any suspension of
trading of any securities of the Company on any exchange or in the
over-the-counter market; (v) any general banking moratorium declared by U.S.
Federal or New York authorities; (vi) any major disruption of settlements of
securities or clearance services in the United States; or (vii) any attack on,
outbreak or escalation of hostilities or act of terrorism involving the United
States, any declaration of war by Congress or any other national or
international calamity or emergency if, in the judgment of a majority in
interest of the Purchasers, including Credit Suisse, the effect of any such
attack, outbreak, escalation, act, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the offering or sale of
and delivery and payment for the Offered Securities.

       

      (c)  The
Purchasers shall have received an opinion, dated the Closing Date, of Locke Lord
Bissell & Liddell LLP, counsel for the Company, substantially in the form of
the following:

       

      (i)  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 Delaware
General Corporation Law and its certificate of incorporation and bylaws to own
its properties and conduct its business as described in the General Disclosure
Package and the Final Offering Circular.

       

      (ii)  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.

       

      (iii)  The
Company has or, as of the applicable time, had the corporate power and authority
to enter into each of the Operative Documents.

       

      (iv)  The
Offered Securities constitute valid and binding obligations of the Company
entitled to the benefits of the Indenture and are enforceable against the
Company in accordance with their terms. The Offered Securities conform in all
material respects to the description thereof in the General Disclosure Package
and the Final Offering Circular.

       

      (v)  The
Exchange Securities, when duly executed, authenticated, issued and delivered as
provided in the Indenture and the Registration Rights Agreement, will constitute
valid and binding obligations of the Company, enforceable against the Company in
accordance with their terms.

       

      (vi)  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 General Disclosure Package and the
Final Offering Circular.

       

      (vii)  No
approval or authorization under the Federal Power Act, as amended, is required
for the execution and delivery by the Company of the Operative Documents and the
performance by the Company of the obligations thereunder.

       

      (viii)  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 the due execution and delivery of the Operative Documents by the
Company and the performance by the Company of its obligations thereunder,
subject to the assumptions set forth in paragraph (xvi) 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 as provided in the Operative Documents and
(iv) Filings required to maintain corporate and similar standing and
existence.

       

      (ix)  The
execution and delivery of the Operative Documents by the Company do not, and the
performance by the Company of its obligations thereunder will not, result in any
violation of any order, writ, judgment or decree known to such
counsel.

       

      (x)  The
execution and delivery of the Operative Documents by the Company does not, and
the performance by the Company of its obligations thereunder will not, (a)
violate the certificate of incorporation or bylaws of the Company,
(b) breach or result in a default of any currently existing agreement or
instrument listed as an exhibit to 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 with the Commission or (c) violate the Delaware General
Corporation Law, New York State law or U.S. federal law or any rule or
regulation promulgated thereunder.

       

      (xi)  (a)
The execution and delivery of the Operative Documents by the Company, and the
performance by the Company of its obligations under the Operative Documents,
have been duly authorized by all necessary corporate action on the part of the
Company and (b) each Operative Document has been duly executed and delivered by
the Company.

       

      
        
          
          

        

        
          - 6
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      (xii)  The
Registration Rights Agreement is a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms.

       

      (xiii)  The
statements contained in the Preliminary Offering Circular and the Final Offering
Circular under the captions (a) “Description of Notes”, insofar as such
statements purport to constitute a summary of the terms of the Indenture and the
Offered Securities, (b) “Description of Certain Indebtedness” and “Plan of
Distribution”, insofar as such statements purport to constitute a summary of the
documents referred to therein and (c) “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.

       

      (xiv)  The
Company is not and, after giving effect to the offering and sale of the Offered
Securities to the Selling Noteholder, will not be an “investment company” as
defined in the Investment Company Act of 1940, as amended.

       

      (xv)  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.

       

      (xvi)  Assuming
without independent investigation, (i) the accuracy of the representations and
warranties of the Company set forth in the Agreement and in those certain
certificates delivered on the Closing Date (A) that the Offered Securities were
sold to the Selling Noteholder in accordance with the terms of and in a manner
contemplated by the Noteholder Purchase Agreement and the Final Offering
Circular and (B) that the Offered Securities are sold to the Purchasers by the
Selling Noteholder, and resold by the Purchasers in accordance with the terms of
and in the manner contemplated by the Agreement and the Final Offering Circular;
(ii) the accuracy of the representations and warranties of the Company set
forth in the Noteholder Purchase Agreement (other than as set forth in Section
2(f) thereof) and the Agreement (other than as set forth in Section 2A(ff));
(iii) the accuracy of the representations and warranties of (A) the Selling
Noteholder in the Noteholder Purchase Agreement and (B) the Purchasers set forth
in the Agreement; (iv) the due performance and compliance by the Company
and the Purchasers of their respective covenants and agreements set forth in the
Agreement; and (v) the Purchasers’ compliance with the Final Offering
Circular and the transfer procedures and restrictions described therein, it was
and is not necessary to register the Offered 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 Offered Securities by the Company
to the Selling Noteholder, the sale by the Selling Noteholder to the Purchasers
or in connection with the offer, resale and delivery of the Offered Securities
by the Purchasers in the manner contemplated by the Agreement and the Final
Offering Circular, it being expressly understood that such counsel expresses no
opinion in this paragraph or in paragraph (viii) as to any subsequent offer or
resale of any of the Offered Securities.

       

      Because
the primary purpose of such counsel’s 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
General Disclosure Package and the Final Offering Circular are of a wholly or
partially non-legal character, other than in paragraph (xiii) and the last
sentence of paragraph (iv), paragraph (v) and paragraph (vi), such counsel is
not passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the General Disclosure
Package and the Final Offering Circular, and such counsel makes no
representation that it has independently verified the accuracy, completeness or
fairness of such statements.

       

      However,
in the course of such counsel’s acting as counsel to the Company in connection
with the preparation of the General Disclosure Package and the Final Offering
Circular, it has reviewed the General Disclosure Package and the Final Offering
Circular and has participated in conferences and telephone conversations with
representatives of the Company, representatives of the underwriters’ and
Purchaser’s counsel, representatives of the independent public accountants for
the Company and representatives of the underwriters and the Purchaser, during
which conferences and conversations the contents of the General Disclosure
Package and the Final Offering Circular and related matters were
discussed.

      
         

      

      Based on
such counsel’s participation in such conferences and conversations, such
counsel’s review of the  documents described above, such counsel’s
understanding of the U.S. federal securities laws and the experience such
counsel has gained in its practice thereunder, such counsel advises that it has
no reason to believe that the Final Offering Circular, or any amendment or
supplement thereto, as of its date and as of the Closing Date, contained any
untrue statement of a material fact or omitted to state any material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; such counsel has no reason to believe that
the General Disclosure Package, as of the Time of Sale and as of the Closing
Date, contained any untrue statement of a material fact, or omitted to state any
material fact, necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading; it being
understood that such counsel expresses no opinion as to the financial
statements, financial schedules or other financial and accounting data contained
or incorporated by reference in the General Disclosure Package or the Final
Offering Circular.

       

      (d)  The
Purchasers shall have received an opinion, dated the Closing Date, of J. Kevin
Blodgett, General Counsel and Executive Vice President, Administration, of
Dynegy Inc., that:

       

      (i)  All
of the outstanding shares of capital stock of the Company have been duly and
validly authorized and issued and are fully paid and
non-assessable.

       

      (ii)  Each
subsidiary of the Company is validly existing in good standing under the laws of
its jurisdiction of organization; and all of the issued shares of capital stock
or other ownership interests of each such subsidiary have been duly and validly
authorized and issued, are fully paid and non-assessable and, except for
directors’ qualifying shares and except as otherwise disclosed in the General
Disclosure Package and Final Offering Circular, are owned directly or indirectly
of record by the Company, and to such counsel’s knowledge, free from liens,
encumbrances and material defects;

       

      (iii)  Except
as set forth in the General Disclosure Package and the Final 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
Offered Securities registered pursuant to any registration statement;
and

       

      (iv)  To
such counsel’s knowledge, and other than as set forth in the General Disclosure
Package and the Final Offering Circular, there are no pending actions, suits or
proceedings against or affecting the Company or its subsidiaries or any of their
respective properties that, if determined adversely to the Company or any of its
subsidiaries, would 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 Operative Documents, or which are otherwise
material in the context of the sale of the Offered Securities; and no such
actions, suits or proceedings are, to such counsel’s knowledge, threatened or
contemplated; and such counsel shall also state that he has no reason to believe
that the Final Offering Circular, or any amendment or supplement thereto, as of
the date hereof and as of the Closing Date, contained any untrue statement of a
material fact or omitted to state any material fact  necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading; such counsel has no reason to believe that the
documents specified in a schedule to such counsel’s letter, consisting of those
included in the General Disclosure Package and the Final Offering Circular, as
of the Time of Sale and as of the Closing Date, contained any untrue statement
of a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; it being understood
that such counsel need express no opinion as to the financial statements or
other financial data or any statistical data (including statistical data related
to capacity and other matters with respect to various power plants) contained in
the General Disclosure Package or the Final Offering Circular.

       

      (e)  The
Purchasers shall have received from Cravath, Swaine & Moore LLP, counsel for
the Purchasers, such opinion or opinions, dated the Closing Date, with respect
to the incorporation of the Company, the validity of the Offered Securities, the
Final Offering Circular, the General Disclosure Package, the exemption from
registration for the offer and sale of the Offered Securities by the Selling
Noteholder to the several Purchasers and the resales by the several Purchasers
as contemplated hereby and other related matters as Credit Suisse may require,
and the Company and the Selling Noteholder shall have furnished to such counsel
such documents as they request for the purpose of enabling them to pass upon
such matters.

       

      (f)  The
Purchasers shall have received a certificate, dated the Closing Date, of the
President and a principal financial or accounting officer of the Company in
which such officers, to the best of their knowledge after reasonable
investigation, shall state that the representations and warranties of the
Company in this Agreement are true and correct, that the Company has complied
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 the most recent financial statements in the General Disclosure Package
and the Final Offering Circular there has been no material adverse change, nor
any development or event that reasonably could be expected to result in a
prospective material adverse change, in the condition (financial or other),
business, properties, results of operations or prospects of the Company or any
of its subsidiaries except as set forth in the General Disclosure Package and
the Final Offering Circular.

       

      (g)  The
Purchasers shall have received a certificate, dated the Closing Date, of a
principal executive officer and a principal financial or accounting officer of
the Selling Noteholder in which such officers, to the best of their knowledge
after reasonable investigation, shall state that the representations and
warranties of such Selling Noteholder in this Agreement are true and correct and
that the Selling Noteholder has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to the
Closing Date.

       

      (h)  The
Purchasers shall have received letters, dated the Closing Date, of Ernst &
Young LLP and PricewaterhouseCoopers LLP which meets the requirements of
subsection (a) of this Section, except that the specified date referred to
in Annex A and B, respectively, will be a date not more than three days prior to
the Closing Date for the purposes of this subsection.

       

      (i)  On
the Closing Date, each Operative Document will conform, as to legal matters, in
all material respects to the description thereof contained in the General
Disclosure Package and the Final Offering Circular.

       

      
        
          
          

        

        
          - 7
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      (j)  The
Company and the Selling Noteholder will furnish the Purchasers with such
conformed copies of such opinions, certificates, letters and documents as the
Purchasers reasonably requests.  Credit Suisse may in its sole
discretion waive compliance with any conditions to the obligations of the
Purchasers hereunder.

       

      8.  Indemnification and
Contribution.  (a)  The Company will indemnify and
hold harmless each Purchaser, its officers, partners, members, directors and its
affiliates and each person, if any, who controls such Purchaser within the
meaning of Section 15 of the Securities Act, against any losses, claims, damages
or liabilities, joint or several, to which such Purchaser may become subject,
under the Securities Act or the Exchange Act 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 Preliminary Offering Circular or the Final
Offering Circular, in each case as amended or supplemented, or any Issuer Free
Writing Communication or Supplemental Marketing Material or the Exchange Act
Reports, or arise out of or are based upon the omission or alleged omission to
state therein a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading,
including 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, and will reimburse each Purchaser for any legal or other expenses
reasonably incurred by such Purchaser in connection with investigating or
defending any such loss, claim, damage, liability or action 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 any Purchaser
through Credit Suisse specifically for use therein, it being understood and
agreed that the only such information consists of the information described as
such in subsection (c) below.

       

      (b)  The
Selling Noteholder will indemnify and hold harmless each Purchaser, its
officers, partners, members, directors and its affiliates and each person, if
any, who controls such Purchaser within the meaning of Section 15 of the
Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which such Purchaser may become subject, under the Securities Act or
the Exchange Act 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 Preliminary Offering Circular or the Final Offering Circular, in each case
as amended or supplemented, made in reliance on and in conformity with written
information that is furnished to the Company by or on the behalf of the Selling
Noteholder specifically for use therein, and will reimburse each Purchaser for
any out-of-pocket legal or other expenses reasonably incurred by such Purchaser
in connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred, it being understood and
agreed that the only such information furnished by the Selling Noteholder
consists of the name and address of the Selling Noteholder in the Preliminary
Offering Circular and Final Offering Circular; provided, however, that the
Selling Noteholder 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 any Purchaser through Credit Suisse
specifically for use therein, it being understood and agreed that the only such
information consists of the information described as such in subsection (c)
below.

       

      (c)  Each
Purchaser will severally and not jointly indemnify and hold harmless the Company
and its directors and officers, the Selling Noteholder and each person, if any,
who controls the Company within the meaning of Section 15 of the Securities Act,
against any losses, claims, damages or liabilities to which the Company or such
Selling Noteholder may become subject, under the Securities Act or the Exchange
Act 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 Preliminary
Offering Circular or the Final Offering Circular, in each case as amended or
supplemented, or any Issuer Free Writing Communication or Supplemental Marketing
Material or arise out of or are based upon the omission or the alleged omission
to state therein 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 such Purchaser through Credit Suisse specifically for use therein,
and will reimburse any legal or other expenses reasonably incurred by the
Company or such Selling Noteholder in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are incurred,
it being understood and agreed that the only such information furnished by any
Purchaser consists of the information in the Preliminary and Final Offering
Circular under the caption “Plan of Distribution” in paragraph two, the second
sentence of paragraph nine and paragraph ten; provided, however, that the
Purchasers 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.

       

      (d)  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), (b)
or (c) 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), (b) or (c) 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), (b) or (c)
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. If the indemnifying party has assumed the defense in any
such proceedings, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the contrary; (ii) the indemnifying party
has failed within a reasonable time to retain counsel reasonably satisfactory to
the indemnified party; (iii) the indemnified party shall have reasonably
concluded that there may be legal defenses available to it that are different
from or in addition to those available to the indemnifying party; or (iv) the
named parties in any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them.  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, and that all such fees and expenses shall be reimbursed as they are
incurred.  Any such separate firm for any Purchaser, its affiliates,
directors and officers and any control persons of such Purchaser shall be
designated in writing by Credit Suisse, any such separate firm for the Company
and its directors and officers and any control persons of the Company shall be
designated in writing by the Company and any such separate firm of the Selling
Noteholder shall be designated in writing the Selling Noteholder. 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.

       

      (e)  If
the indemnification provided for in this Section is unavailable or insufficient
to hold harmless an indemnified party under subsection (a), (b) or (c) 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), (b) or (c) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company and/or
the Selling Noteholder on the one hand and the Purchasers on the other from the
sale or resale of the Offered Securities, as the case may be, 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
and/or the Selling Noteholder on the one hand and the Purchasers 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, the Selling
Noteholder and the Purchasers shall be deemed to be in the same proportion as,
in the case of the Company, the total net proceeds received by the Company from
the Selling Noteholder under the Noteholder Purchase Agreement and, in the case
of the Selling Noteholder, to the total net proceeds from the resale of the
Offered Securities to the Purchasers received by the Selling Noteholder, in each
case bear to the total discounts and commissions received by the Purchasers from
the Selling Noteholder under this Agreement.  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, the Selling
Noteholder or the Purchasers 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 (e) 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 (e). Notwithstanding
the provisions of this subsection (e), no Purchaser shall be required to
contribute any amount in excess of the amount by which the total price at which
the Offered Securities purchased by it were resold exceeds the amount of any
damages which such Purchaser has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged
omission.  The Purchasers’ obligations in this subsection (e) to
contribute are several in proportion to their respective purchase obligations
and not joint.

       

      (f)  The
obligations of the Company and the Selling Noteholder under this Section shall
be in addition to any liability which the Company and the Selling Noteholder may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls the Company or the Selling Noteholder,
respectively, within the meaning of the Securities Act or the Exchange Act; and
the obligations of the Purchasers under this Section shall be in addition to any
liability which the respective Purchasers may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls the
respective Purchasers within the meaning of the Securities Act or the Exchange
Act.

       

      9.  Default of
Purchasers.  If any Purchaser or Purchasers default in their
obligations to purchase Offered Securities hereunder and the aggregate principal
amount of the Offered Securities that such defaulting Purchaser or Purchasers
agreed but failed to purchase does not exceed 10% of the total principal amount
of the Offered Securities, Credit Suisse may make arrangements satisfactory to
the Company and the Selling Noteholder for the purchase of such Offered
Securities by other persons, including any of the Purchasers, but if no such
arrangements are made by the Closing Date, the non-defaulting Purchasers shall
be obligated severally, in proportion to their respective commitments hereunder,
to purchase the Offered Securities that such defaulting Purchasers agreed but
failed to purchase. If any Purchaser or Purchasers so default and the aggregate
principal amount of the Offered Securities with respect to which such default or
defaults occur exceeds 10% of the total principal amount of the Offered
Securities and arrangements satisfactory to Credit Suisse, the Company and the
Selling Noteholder for the purchase of such Offered Securities by other persons
are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Purchaser, the
Company or the Selling Noteholder, except as provided in Section 10. As
used in this Agreement, the term “Purchaser” includes any person substituted for
a Purchaser under this Section. Nothing herein will relieve a defaulting
Purchaser from liability for its default.

       

      
        
          
          

        

        
          - 8
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      10.  Survival of Certain Representations
and Obligations.  The respective indemnities, agreements,
representations, warranties and other statements of the Selling Noteholder, the
Company or their respective officers and of the several Purchasers 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 any Purchaser, the Selling Noteholder, the Company or any of
their respective representatives, officers or directors or any controlling
person, and will survive delivery of and payment for the Offered Securities. If
this Agreement is terminated pursuant to Section 9 or if for any reason the
purchase of the Offered Securities by the Purchasers 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 Selling
Noteholder, the Company and the Purchasers pursuant to Section 8 shall
remain in effect. If the purchase of the Offered Securities by the Purchasers is
not consummated for any reason other than solely because of the occurrence of
any event specified in clause (iii), (iv)(A), (v), (vi) or (viii) of
Section 7(b), the Company will reimburse the Purchasers and the Selling
Noteholder for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the
Offered Securities.

       

      11.  Notices.  All
communications hereunder will be in writing and, if sent to the Purchasers will
be mailed, delivered, faxed or sent by courier and confirmed to the Purchasers,
c/o Credit Suisse Securities (USA) LLC, Eleven Madison Avenue, New York,
N.Y. 10010-3629, Attention:  LCD-IBD, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at  1000 Louisiana
Street, Suite 5800, Houston, Texas 77002 Attention: General Counsel (Fax:
713-507-6808) or, if sent to the Selling Noteholder will be mailed, delivered or
telegraphed and confirmed to it at Adio Bond, LLC, Two Tower Center, 11th
Floor, East Brunswick, NJ 08816, Attention: Corporate Counsel (Fax (713)
356-2185) with a copy to Latham & Watkins LLP, 885 Third Avenue, New York,
NY 10022 Attention: Marc Jaffe and Wesley Holmes; provided, however, that any
notice to a Purchaser pursuant to Section 8 will be mailed, delivered, faxed or
sent by courier and confirmed to such Purchaser.

       

      12.  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 Offered Securities shall be entitled to enforce the
agreements for their benefit contained in the second and third sentences of
Section 5(b) hereof against the Company as if such holders were parties
thereto.

       

      13.  Representation of
Purchasers.  Credit Suisse will act for the several Purchasers
in connection with this purchase, and any action under this Agreement taken by
Credit Suisse will be binding upon all the Purchasers.

       

      14.  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.

       

      15.  Absence of Fiduciary
Relationship.  The Company and the Selling Noteholder
acknowledge and agree that:

       

      (a)  The
Purchasers have been retained solely to act as purchasers in connection with the
purchase, offering and resale of the Offered Securities and that no fiduciary,
advisory or agency relationship between the Company or the Selling Noteholder
and the Purchasers has been created in respect of any of the transactions
contemplated by this Agreement or the Preliminary Offering Circular or Final
Offering Circular, irrespective of whether the Purchasers have advised or are
advising the Company or the Selling Noteholder on other matters;

       

      (b)  the
purchase price of the Offered Securities set forth in this Agreement was
established by the Selling Noteholder following discussions and arms-length
negotiations with the Purchasers and the Selling Noteholder is capable of
evaluating and understanding and understands and accepts the terms, risks and
conditions of the transactions contemplated by this Agreement;

       

      (c)  the
Company and the Selling Noteholder have been advised that the Purchasers and
their affiliates are engaged in a broad range of transactions which may involve
interests that differ from those of the Company or the Selling Noteholder and
that the Purchasers have no obligation to disclose such interests and
transactions to the Company or the Selling Noteholder by virtue of any
fiduciary, advisory or agency relationship; and

       

      (d)  the
Company and the Selling Noteholder waive, to the fullest extent permitted by
law, any claims they each may have against the Purchasers for breach of
fiduciary duty or alleged breach of fiduciary duty and agrees that the
Purchasers shall have no liability (whether direct or indirect) to the Company
or the Selling Noteholder in respect of such a fiduciary duty claim or to any
person asserting a fiduciary duty claim on behalf of or in right of the Company
or the Selling Noteholder, including stockholders, employees or creditors of the
Company or the Selling Noteholder.

       

      16.  Applicable
Law.  This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York without regard to principles
of conflicts of laws other than Section 5-1401 of the New York General
Obligations Law.

       

      The
Company and the Selling Noteholder hereby submit to the non-exclusive
jurisdiction of the Federal and state courts in the Borough of Manhattan in The
City of New York in any suit or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby.

      
 

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      If the
foregoing is in accordance with the Purchasers’ understanding of our agreement,
kindly sign and return to the Company and the Selling Noteholder one of the
counterparts hereof, whereupon it will become a binding agreement among the
Company, the Selling Noteholder and the several Purchasers in accordance with
its terms.

       

      Very
truly yours,

      


      
        	
                                                     DYNEGY HOLDINGS
      INC.,

              
	
                                                     by

              
	 
      	
                                                            /s/ Richard J.
    Evans

              
	 
      	
                                                            Name:          Richard
      J. Evans

              
	 
      	
                                                            Title:    Vice
      President, Assistant Treasurer

              


      

      


      
        	
                                                     ADIO BOND,
      LLC,

              
	
                                                     by

              
	 
      	
                                                            /s/ James
    Bartlett

              
	 
      	
                                                            Name:          James
      Bartlett

              
	 
      	
                                                            Title:    President

              


      

      


      


      
        	
                The
      foregoing Purchase Agreement is hereby con-

                firmed
      and accepted as of the date first above written.

              	 
      
	 
      	 
      
	
                CREDIT
      SUISSE SECURITIES (USA) LLC, for itself and as a representative of the
      several Purchasers

              	 
      
	 
      	 
      
	
                By     /s/ Reiner
      Boehning

              	 
      
	
                   Name:  Reiner
      Boehning

                   Title:    Managing
      Director

              	 
      
	
                 

                CITIGROUP
      GLOBAL MARKETS INC., for itself and as a representative of the several
      Purchasers

              	 
      
	 
      	 
      
	
                By   /s/ Michael
      Dorenfeld

              	 
      
	
                    Name:  Michael
      Dorenfeld

                    Title:    Vice
      President

              	 
      


      


      
        
           


        

        
          - 10
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      SCHEDULE
A

       

      


       

      
        	
                 

                Purchaser

              	
                
                  Principal
      Amount of

                  Offered
      Securities to be Purchased

                   

                

              
	
                Credit
      Suisse Securities (USA) LLC

              	
                $94,000,000

              
	
                Citigroup
      Global Markets Inc.

              	
                47,000,000

              
	
                ING
      Financial Markets LLC

              	
                23,500,000

              
	
                Calyon
      Securities (USA) Inc.

              	
                17,625,000

              
	
                BNP
      Paribas Securities Corp.

              	
                17,625,000

              
	
                Mitsubishi
      UFJ Securities (USA), Inc.

              	
                17,625,000

              
	
                WestLB
      AG (Duesseldorf)

              	
                17,625,000

              
	
                Total

              	
                
                                   $235,000,000

                   

                

              


      

      


       

       
 

      


      


       


      
        
           


        

        
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      SCHEDULE
B

       

      


       

      The
pricing term sheet attached hereto as Annex C

       


      
        
           


        

        
          - 12
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      ANNEX
A

       

      Form
Comfort Letter was not included in final executed agreement.

       


      
        
           


        

        
          - 13
-

           


        

        
           


        

      


      ANNEX
B

       

      Form
Comfort Letter was not included in final executed agreement.

       


      
        
           


        

        
          - 14
-

           


        

        
           


        

      


      ANNEX
C


      
        
           


        

        
          - 15
-

           


        

        
           


        

      


      


      


      TERM
SHEET

       

      Dynegy
Holdings Inc.

       

      $235,000,000
7.5% Senior Unsecured Notes due 2015

       

      Term sheet dated December 2,
2009 to the Preliminary Offering Circular dated December 1, 2009 (the
“Preliminary Offering Circular”) of Dynegy Holdings Inc. (the
“Company”)

       

      This Term
Sheet is qualified in its entirety by reference to the Preliminary Offering
Circular.

       

      The
information in this Term Sheet supplements the Preliminary Offering Circular
and

       

      supersedes
the information in the Preliminary Offering Circular to the extent inconsistent
with

       

      the
information in the Preliminary Offering Circular.

       

      


      
        	
                $235,000,000
      7.5 % Senior Unsecured Notes due 2015

              
	
                Issuer:

              	 
      	
                Dynegy
      Holdings Inc.

              
	
                Security
      Description:

              	 
      	
                Senior
      Unsecured Notes

              
	
                Distribution:

              	 
      	
                144A
      with Registration Rights

              
	
                Face:

              	 
      	
                $235,000,000

              
	
                Gross
      Proceeds:

              	 
      	
                $205,625,000

              
	
                Coupon:

              	 
      	
                7.500%

              
	
                Maturity:

              	 
      	
                June
      1, 2015

              
	
                Offering
      Price:

              	 
      	
                87.500%

              
	
                Yield
      to Maturity:

              	 
      	
                10.560%

              
	
                Spread
      to Treasury:

              	 
      	
                +834
      basis points

              
	
                Benchmark:

              	 
      	
                UST
      4.125% due May 15, 2015

              
	
                Interest
      Payment Dates:

              	 
      	
                June
      1 and December 1

              
	
                Beginning:

              	 
      	
                June
      1, 2010

              
	
                CUSIP:

              	 
      	
                26816LBA9

              
	
                Trade
      Date:

              	 
      	
                December
      2, 2009

              
	
                Settlement
      Date:

              	 
      	
                December
      7, 2009 (T+3)

              
	
                Denominations:

              	 
      	
                2,000x1,000

              
	
                Joint
      Book-running Managers & Joint Lead Managers:

              	 
      	
                Credit
      Suisse Securities (USA) LLC

              
	 
      	 
      	
                Citigroup
      Global Markets Inc.

              
	
                Co-Managers:

              	 
      	
                ING
      Financial Markets LLC

              
	 
      	 
      	
                Caylon
      Securities (USA) Inc.

              
	 
      	 
      	
                BNP
      Paribas Securities Corp.

              
	 
      	 
      	
                Mitsubishi
      UFJ Securities (USA), Inc.

              
	 
      	 
      	
                WestLB
      AG (Duesseldorf)

              


      

      


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