Attached files
| file | filename |
|---|---|
| 8-K - DYNEGY INC 8-K 11-25-2009 - DYNEGY HOLDINGS, LLC | form8k.htm |
| EX-99.1 - EXHIBIT 99.1 - DYNEGY HOLDINGS, LLC | ex99_1.htm |
| EX-10.1 - EXHIBIT 10.1 - DYNEGY HOLDINGS, LLC | ex10_1.htm |
| EX-99.2 - EXHIBIT 99.2 - DYNEGY HOLDINGS, LLC | ex99_2.htm |
| EX-4.1 - EXHIBIT 4.1 - DYNEGY HOLDINGS, LLC | ex4_1.htm |
| EX-2.1 - EXHIBIT 2.1 - DYNEGY HOLDINGS, LLC | ex2_1.htm |
Exhibit 4.2
DYNEGY
HOLDINGS INC.
7.5%
Senior Unsecured Notes Due 2015
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS
OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND
TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE
REVERSE HEREOF.
THIS
SECURITY IS A BOOK-ENTRY SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF DTC (OR A NOMINEE OF
DTC). THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE
NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A
TRANSFER OF THIS SECURITY AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE
OF DTC TO DTC OR ANOTHER NOMINEE OF DTC) MAY BE REGISTERED EXCEPT IN SUCH
LIMITED CIRCUMSTANCES.
THIS NOTE
(OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE “SECURITIES
ACT”), AND THIS NOTE MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE
SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE
HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS NOTE MAY
BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) TO THE COMPANY,
(II) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (III) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (IV) IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO
IN (A) ABOVE.
F-1
IN
CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE SECURITY REGISTRAR
AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER
AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE
FOREGOING RESTRICTIONS.
THESE
NOTES HAVE BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT (“OID”) FOR UNITED STATES
FEDERAL INCOME TAX PURPOSES. THE ISSUE PRICE, AMOUNT OF OID, ISSUE DATE AND
YIELD TO MATURITY OF THESE NOTES MAY BE OBTAINED BY WRITING TO THE CHIEF
FINANCIAL OFFICER AT DYNEGY HOLDINGS INC., 1000 LOUISIANA, SUITE 5800, HOUSTON,
TEXAS 77002.
F-2
DYNEGY
HOLDINGS INC.
7.5%
Senior Unsecured Notes Due 2015
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No.
A-1
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CUSIP: 26816L
BA9
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Dynegy
Holdings Inc., a corporation duly organized and existing under the laws of the
State of Delaware (herein called the “Company”, which term includes
any successor Person under the Indenture referred to on the reverse hereof), for
value received, hereby promises to pay to Cede & Co. or registered assigns,
the principal sum of TWO HUNDRED THIRTY-FIVE MILLION DOLLARS ($235,000,000) on
June 1, 2015 and to pay interest thereon from December 1, 2009 or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, semi-annually in arrears on June 1 and December 1 in each year,
commencing June 1, 2010, at the rate of 7.5% per annum, until the principal
hereof is paid or made available for payment. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the May 15 or
November 15 (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date. Except as otherwise provided in the Indenture, any
such interest not so punctually paid or duly provided for will forthwith cease
to be payable to the Holder on such Regular Record Date and may either be paid
to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in the Indenture.
All payments of the principal of and interest on Securities of this series
issued in the form of a Global Security shall be made by wire transfer of
immediately available funds to the Depository. All payments of the
principal of and interest on Securities of this series issued in the form of
Definitive Securities will initially be made at the Corporate Trust Office of
the Trustee, or, from and after such time, such other office or agency of the
Company as may be designated by it for such purpose; provided, however, that at
the option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register. All payments of principal or interest shall be
made in such coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private
debts.
Reference
is hereby made to the further provisions of this Security set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
F-3
Unless
the certificate of authentication hereon has been executed by the Trustee
referred to on the reverse hereof, directly or through an Authenticating Agent,
by manual signature of an authorized signatory, this Security shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
F-4
IN
WITNESS WHEREOF, the Company has caused this instrument to be signed in its name
by its Chairman of the Board, President, Treasurer or Chief Financial Officer,
manually or by a facsimile of his signature, and its corporate seal (or a
facsimile thereof) to be hereunto affixed and the same to be attested by its
Secretary or an Assistant Secretary, all either manually or in
facsimile.
Dated:
December 1, 2009
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DYNEGY
HOLDINGS INC.
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|||||
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By:
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/s/ Carolyn J. Stone | ||||
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Name:
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Carolyn
J. Stone
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||||
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Title:
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Senior
Vice President and Treasurer
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||||
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Attest:
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|||||
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By:
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/s/ Heidi D. Lewis
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||||
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Name:
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Heidi D. Lewis
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||||
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Title:
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Assistant Secretary
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||||
F-5
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This is
one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
WILMINGTON
TRUST COMPANY,
as
Trustee
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By:
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||
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AUTHORIZED
OFFICER
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F-6
Reverse
of 7.5% Senior Unsecured Note
This
Senior Unsecured Note is one of a duly authorized issue of securities of the
Company (herein called the “Securities”), issued and to be
issued in one or more series under an Indenture, dated as of September 26, 1996,
and as amended and restated on March 23, 1998, and as further amended and
restated on March 14, 2001 and as supplemented by the First Supplemental
Indenture dated as of July 25, 2003, the Second Supplemental Indenture dated as
of April 12, 2006, the Third Supplemental Indenture, dated as of May 24, 2007,
the Fourth Supplemental Indenture dated as of May 24, 2007 and the Fifth
Supplemental Indenture dated as of December 1, 2009 (as so amended, restated and
supplemented, the “Indenture”), between the
Company and Wilmington Trust Company (as successor to JPMorgan Chase Bank,
N.A.), as Trustee (herein called the “Trustee,” which term includes
any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof, unlimited as to
principal amount.
The
Holder of this Security is entitled to the benefits of a Registration Rights
Agreement, dated as of December 1, 2009, between the Company and the initial
purchaser named therein (the “Registration Rights
Agreement”). Capitalized terms used in this paragraph but not
defined herein have the meanings assigned to them in the Registration Rights
Agreement. In the event that (i) the Company fails to file an
Exchange Offer Registration Statement with the Commission on or prior to the
270th day after the Issue Date, (ii) if the Exchange Offer Registration
Statement is not declared effective by the Commission on or prior to the 365th
day after the Issue Date or, if obligated to file a Shelf Registration Statement
because of the circumstances described in Section 2(a)(i) of the Registration
Rights Agreement do not permit the Company to effect a Registered Exchange
Offer, a Shelf Registration Statement is not declared effective by the
Commission on or prior to the 180th day after the Issue Date, (iii) if the
Registered Exchange Offer is not consummated on or before the 405th day after
the Issue Date, (iv) if obligated to file the Shelf Registration Statement
because of circumstances described in Section 2(a)(ii) or 2(a)(iii) of the
Registration Rights Agreement, the Company fails to file the Shelf Registration
Statement with the Commission on or prior to the 30th day (the “Shelf Filing Date”) after the
date on which the obligation to file a Shelf Registration Statement arises, (v)
if obligated to file the Shelf Registration Statement because of certain
circumstances described in Section 2(a)(ii) or 2(a)(iii) of the Registration
Rights Agreement, the Shelf Registration Statement has not become effective on
or prior to the 90th day of the Shelf Filing Date, or (vi) after the Exchange
Offer Registration Statement or the Shelf Registration Statement, as the case
may be, is declared effective, such Registration Statement thereafter ceases to
be effective or usable (subject to certain exceptions) (each such event referred
to in the preceding clauses (i) through (vi) a “Registration Default”),
interest (the “Additional
Interest”) shall accrue (in addition to stated interest on the Securities
of this series) from and including the date on which the first such Registration
Default shall occur to but excluding the date on which all Registration Defaults
have been cured, at a rate per annum equal to 0.25% of the principal amount of
the Securities of this series; provided, however, that such
rate per annum shall increase by 0.25% per annum from and including the 90th day
after the first such Registration Default (and each successive 90th day
thereafter) unless and until all Registration Defaults have been cured; provided further, however, that in no
event shall the Additional Interest accrue at a rate in excess of 1.0% per
annum. The Additional Interest will be payable in cash semiannually
in arrears each June 1 and December 1.
R-7
The
Securities of this series are not subject to any sinking fund. The
Securities shall not be redeemable at the option of any Holders
thereof.
The
Securities shall not be redeemable at the option of the Company prior to
maturity; provided, however, that the
Company may, from time to time, purchase the Securities in the open market or
otherwise from time to time.
The
Indenture contains provisions for defeasance of (a) the entire indebtedness of
the Company on this Security and (b) certain restrictive covenants upon
compliance by the Company with certain conditions set forth therein which
provisions apply to this Security.
If an
Event of Default with respect to the Securities of this series shall occur and
be continuing, the principal hereof may be declared due and payable in the
manner and with the effect provided in the Indenture.
The
Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the Holders of the Securities of each series to be affected under
the Indenture at any time by the Company and the Trustee with the consent of the
Holders of a majority in principal amount of the Securities at the time
Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this
Security.
R-8
As set
forth in, and subject to, the provisions of the Indenture, no Holder of any
Security of this series will have any right to institute any proceeding with
respect to the Indenture or for any remedy thereunder, unless such Holder shall
have previously given to the Trustee written notice of a continuing Event of
Default with respect to this series, the Holders of not less than 25% in
principal amount of the Outstanding Securities of this series shall have made
written request, and offered reasonable indemnity, to the Trustee to institute
such proceeding as trustee, and the Trustee shall not have received from the
Holders of a majority in principal amount of the Outstanding Securities of this
series a direction inconsistent with such request and shall have failed to
institute such proceeding within 60 days; provided, however, that such
limitations do not apply to a suit instituted by the Holder hereof for the
enforcement of payment of the principal of or interest on this Security on or
after the respective due dates expressed herein.
No
reference herein to the Indenture and no provision of this Security or of the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of and interest on this Security at the
times, place and rate, and in the coin or currency herein,
prescribed.
As
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of this Security is registrable in the Security Register, upon
surrender of this Security for registration of transfer at the office or agency
of the Company in any place where the principal of and interest on this Security
are payable, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities of this series and of like tenor, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The
Securities of this series are issuable only in registered form, without coupons,
in denominations of $2,000 and any integral multiple of $1,000 above that
amount. As provided in the Indenture and subject to certain limitations therein
set forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the
same.
No
service charge shall be made for any such registration of transfer or exchange,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
Prior to
due presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name this Security is registered as the owner hereof for all purposes,
whether or not this Security is overdue, and none of the Company, the Trustee or
any agent shall be affected by notice to the contrary.
R-9
Each
Holder of this Security, by acceptance hereof, acknowledges and agrees to the
provisions of the Registration Rights Agreement, including the obligations of
the Holders with respect to a registration and the indemnification of the
Company to the extent provided therein.
The
Indenture and this Security 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.
Except as
set forth in the second paragraph of this Reverse of 7.5% Senior Unsecured
Notes, all terms used in this Security which are defined in the Indenture shall
have the same meanings assigned to them in the Indenture.
R-10
ASSIGNMENT
FORM
To assign
this 7.5% Senior Unsecured Note Due 2015 (this “7.5% Security”), fill in the
form below:
I or we
assign and transfer this 7.5% Security to
(Print or
type assignee’s name, address and zip code)
(Insert
assignee’s soc. sec. or tax I.D. No.)
and
irrevocably
appoint agent
to transfer this 7.5% Security on the books of the Company. The agent
may substitute another to act for him.
|
Date:
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Your Signature:
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|||
Sign
exactly as your name appears on the other side of this 7.5%
Security.
In
connection with any transfer of any of the 7.5% Securities evidenced by this
certificate occurring prior to the expiration of the relevant period referred to
in Rule 144 under the Securities Act of 1933, as amended (the “Act”), after the later of the
date of original issuance of such 7.5% Securities and the last date, if any, on
which such 7.5% Securities were owned by the Company or any Affiliate of the
Company, the undersigned confirms that such 7.5% Securities are being
transferred in accordance with its terms:
CHECK ONE
BOX BELOW
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1.
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£
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to
the Company; or
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2.
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£
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pursuant
to an effective registration statement under the Act;
or
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3.
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£
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inside
the United States to a “qualified institutional buyer” (as defined in Rule
144A under the Act) that purchases for its own account or for the account
of a qualified institutional buyer to whom notice is given that such
transfer is being made in reliance on Rule 144A, in each case pursuant to
and in compliance with Rule 144A under the Act;
or
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|
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4.
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£
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pursuant
to the exemption from registration provided by Rule 144 under the
Act.
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Unless
one of the boxes is checked, the Trustee will refuse to register any of the 7.5%
Securities evidenced by this certificate in the name of any person other than
the registered holder thereof; provided, however, that if box
(4) is checked, the Trustee shall be entitled to require, prior to registering
any such transfer of the 7.5% Securities, such legal opinions, certifications
and other information as the Company has reasonably requested to confirm that
such transfer is being made pursuant to an exemption from, or in a transaction
not subject to, the registration requirements of the Act, such as the exemption
provided by Rule 144 under such Act.
R-11
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Signature
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|||
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Signature
Guarantee:
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|||
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Signature
must be guaranteed
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Signature
|
Signatures
must be guaranteed by an “eligible guarantor institution” meeting the
requirements of the Security Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program (“STAMP”) or such
other “signature guarantee program” as may be determined by the Security
Registrar in addition to, or in substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
TO BE
COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.
The
undersigned represents and warrants that it is purchasing this 7.5% Security for
its own account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a “qualified institutional buyer”
within the meaning of Rule 144A under the Act, and is aware that the sale to it
is being made in reliance on Rule 144A and acknowledges that it has received
such information regarding the Company as the undersigned has requested pursuant
to Rule 144A or has determined not to request such information and that it is
aware that the transferor is relying upon the undersigned’s foregoing
representations in order to claim the exemption from registration provided by
Rule 144A.
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Dated:
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Notice:
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To
be executed by
an
executive officer
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||||
R-12
SCHEDULE
OF INCREASES OR DECREASES IN GLOBAL SECURITY
The
initial principal amount of this Global Security is $235,000,000. The
following increases or decreases in this Global Security have been
made:
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Date
of Increase or Decrease
|
Amount
of Decrease in Principal Amount of this Global Security
|
Amount
of Increase in Principal Amount of this Global Security
|
Remaining
Principal Amount of this Global Security Following such Decrease or
Increase
|
Signature
of Authorized Signatory of Trustee or Custodian
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||||
R-13