Exhibit 1.1
CONFORMED COPY
AES CHINA GENERATING CO. LTD.
$180,000,000
10 1/8% NOTES DUE 2006
UNDERWRITING AGREEMENT
December 12, 1996
December 12, 1996
Morgan Stanley & Co.
Incorporated
Donaldson, Lufkin & Jenrette
Securities Corporation
c/o Morgan Stanley & Co.
Incorporated
1585 Broadway
New York, New York 10036
Dear Sirs and Mesdames:
AES China Generating Co. Ltd., a corporation established under the laws
of Bermuda (the "Company"), proposes to issue and sell to the several
Underwriters named in Schedule I hereto (the "Underwriters") $180,000,000
principal amount of its 101/8% Notes Due 2006 (the "Notes") to be issued
pursuant to the provisions of an Indenture (the "Indenture") to be dated as of
the Closing Date (as defined herein) between the Company and Bankers Trust
Company, as trustee (the "Trustee"). As security for the payment and performance
by the Company of all of its obligations under the Indenture and the Notes, the
Company will assign all amounts on deposit in the Collateral Accounts (as
defined in the Indenture) at any time as collateral to Bankers Trust Company, as
collateral agent (the "Collateral Agent"), for the benefit of the Trustee on
behalf of the Noteholders upon the terms and conditions set forth in a Security
Agreement to be dated as of the Closing Date (the "Security Agreement") among
the Company, the Trustee and the Collateral Agent.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement (Commission File No. 333-5798) on Form
S-3, including a prospectus, relating to the Notes. The registration statement
on Form S-3 as amended at the time it becomes effective, including the
information (if any) deemed to be part of the registration statement at the time
of effectiveness pursuant to Rule 430A under the Securities Act of 1933, as
amended (the "Securities Act"), is hereinafter referred to as the "Registration
Statement"; the prospectus in the form first used to confirm sales of Notes is
hereinafter referred to as the "Prospectus." If the Company has filed an
abbreviated registration statement pursuant to Rule 462(b) under the Securities
Act (the "Rule 462 Registration Statement") increasing the size of the offering,
then any reference herein to the term "Registration Statement" shall be deemed
to include such Rule 462 Registration Statement. The "Bermuda Prospectus" means
the Registration Statement, or where applicable a copy thereof, signed by each
director of the Company or such director's duly authorized attorney-in-fact,
together with the required attachments thereto, or any supplement or amendment
thereto, filed with the Registrar of Companies in Bermuda (the "Registrar of
Companies") as required by The Companies Act 1981, as amended, of Bermuda (the
"Companies Act") and the rules and regulations promulgated thereunder (the
"Companies Act Rules").
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in the Prospectus complied or will comply when so
filed in all material respects with the Exchange Act and the applicable
rules and regulations of the Commission thereunder, (ii) each part of the
Registration Statement, when such part became effective, did not contain
and each such part, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, (iii) the Registration Statement and the Prospectus
comply and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iv) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not contain,
as of the date of any such amendment or supplement, any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties set
forth in this Section 1.(b) do not apply (A) to statements or omissions in
the Registration Statement or the Prospectus based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through you expressly for use therein or (B) to that part of
the Registration Statement that constitutes the Statement of Eligibility
(Form T-1) under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), of the Trustee.
(c) The Company has been duly incorporated and is validly existing and
in good standing (meaning that the Company has not failed to make any
filing with any Bermuda governmental authority or to pay any Bermuda
government fee or tax which might make the Company liable to be struck off
the Register of Companies of Bermuda and thereby cease to exist under the
laws of Bermuda) under the laws of Bermuda, has the corporate power and
authority to own its property and to conduct its business as described in
the Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and the Project Companies (as
defined below), taken as a whole.
(d) Jiaozuo Power Partners, L.P. ("Jiaozuo L.P.") has been duly
organized and is validly existing as a limited partnership in good standing
under the laws of its organization and each of AES Yangchun Power Co. Ltd.,
AES Chigen Co. (L) Ltd., AES Anhui Power Company Ltd., AES Tien Fu Power
Co. Ltd., AES Tien Fu Power Co. (L) Ltd., Jiaozuo (G.P.) Corp., AES China
Power Holding Co. (L) Ltd. and AES China Holding Co. (L) Ltd.
(collectively, together with Jiaozuo L.P., the "AES Group Companies" and
each an "AES Group Company") has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, and each of the AES Group Companies has
the corporate power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect on the Company
and the Project Companies, taken as a whole.
(e) Each of Hunan Xiangci-AES Hydro Power Company Ltd., Yangchun
Fuyang Diesel Engine Power Co. Ltd., Wuxi-AES-CAREC Gas Turbine Power
Company Ltd., Wuxi-AES-Zhonghang Power Co. Ltd., Sichuan Fuling Aixi Power
Company Ltd., Jiaozuo Wan Fang Power Company Ltd., Wuhu Shaoda Electric
Power Development Company Ltd., Chengdu-AES-Kaihua Gas Turbine Power Co.
Ltd., Anhui Liyuan AES Power Company Ltd. and Hefei Zhongli Energy Company
Ltd. (collectively the "Joint Venture Companies" and each a "Joint Venture
Company" and, together with the AES Group Companies, the "Project
Companies") has been duly organized under the laws of the People's Republic
of China (the "PRC") as a joint venture enterprise with the status of a
Chinese legal person, is validly existing under the laws of the PRC, has
the corporate power and authority to own its property (including land use
rights) and to conduct its business as described in the Prospectus, and is
in good standing and duly qualified to transact business in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except as otherwise
disclosed in the Prospectus.
(f) The Company has an authorized capitalization as set forth in the
Prospectus, and, except as set forth in the Prospectus, all of the issued
shares in the share capital of the Company have been duly and validly
authorized and issued and are fully paid. All of the issued shares in the
share capital (or partnership interests in the case of Jiaozuo L.P.) of
each AES Group Company have been duly and validly authorized and issued,
and are owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, restrictions on transfer, equities or claims.
(g) An AES Group Company or the Company is the owner of the respective
percentage of registered capital of each of the Joint Venture Companies as
set forth in the Prospectus, in each case free and clear of all liens,
encumbrances, equities, claims, restriction on transfer (other than as
required under PRC law or pursuant to the provisions of the Joint Venture
Documents (as defined below) of any such Joint Venture Company), voting
trust or other defect of title whatsoever, in all material respects; and
the ownership of such registered capital is valid and lawful under all
applicable laws, rules, regulations or guidelines of any local or other
court or public, governmental or regulatory agency or body in all material
respects.
(h) The contracted registered capital of each of the Joint Venture
Companies has been subscribed in full by the respective joint venture
partners of each such Joint Venture Company and all government approvals
relating to the subscription thereof have been issued and are in full force
and effect (except any such delayed subscription permitted pursuant to the
applicable Joint Venture Documents) such that the ownership of registered
capital of each such Joint Venture Company is as described in the
Registration Statement in all material respects.
(i) This Agreement has been duly authorized, executed and delivered by
the Company.
(j) The Security Agreement has been duly authorized by the Company
and, when executed and delivered by the Company, will be a valid and
binding agreement of the Company, enforceable in accordance with its terms
except as the enforceability thereof may be limited (i) by bankruptcy,
insolvency, fraudulent transfer, fraudulent conveyance, reorganization,
moratorium or similar laws affecting creditors' rights generally and (ii)
by equitable principles of general applicability.
(k) The Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized and, when executed and delivered by the
Company, will be a valid and binding agreement of the Company, enforceable
in accordance with its terms except as the enforceability thereof may be
limited (i) by bankruptcy, insolvency, fraudulent transfer, fraudulent
conveyance, reorganization, moratorium or similar laws affecting creditors'
rights generally and (ii) by equitable principles of general applicability.
(l) The Notes have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters in accordance with the terms
of this Agreement, will be entitled to the benefits of the Indenture and
will be valid and binding obligations of the Company, enforceable in
accordance with their terms except as the enforceability thereof may be
limited (i) by bankruptcy, insolvency, fraudulent transfer, fraudulent
conveyance, reorganization, moratorium, or similar laws affecting
creditors' rights generally and (ii) by equitable principles of general
applicability.
(m) The execution and delivery by the Company, and the performance by
the Company of its obligations under, this Agreement, the Indenture, the
Security Agreement and the Notes (i) will not contravene any provision of
applicable law or the memorandum of association or bye-laws of the Company
or any agreement or other instrument binding upon the Company or any of the
Project Companies that is material to the Company and the Project
Companies, taken as a whole, or any regulation, judgment, order or decree
of any governmental body, agency or any court having jurisdiction over the
Company or any Project Company or, (ii) except as contemplated by the
Security Agreement, result in the creation or imposition of any claim,
lien, mortgage, security interest or other encumbrance on any property or
assets of the Company or any of the Project Companies. No consent,
approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Company
of its obligations under this Agreement, the Indenture, the Security
Agreement or the Notes, except the following items: (i) such as may be
required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Notes, (ii) such as have been
duly obtained in accordance with Bermuda law and are in full force and
effect and (iii) such consents, approvals, authorizations, orders or
qualifications, the absence of which would not, individually or in the
aggregate, have a material adverse effect on the ability of the Company to
consummate the transactions contemplated by this Underwriting Agreement.
(n) The execution and delivery of, and performance by each Joint
Venture Company and, to the best of the Company's knowledge, by each of the
other parties thereto of its obligations under the Project Documents (as
defined below) to which it is party do not contravene, in any material
respect, any provision of applicable law or any regulation or any judgment,
order or decree of any governmental body or agency or any court having
jurisdiction over any such party. Each of the Project Documents constitutes
a valid and binding agreement of the appropriate Joint Venture Company and,
to the best of the Company's knowledge, of each of the other parties
thereto, is in full force and effect, and is enforceable in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws affecting creditors' rights
generally and to general principles of equity. "Project Documents" for each
Joint Venture Company and the power generation facility under construction
or owned by such Joint Venture Company (each a "Project") means all
material documents relating to property ownership and operation of such
Joint Venture Company, including but not limited to, the construction and
equipment procurement contracts, the power purchase agreement (together
with the tariff calculation and adjustment method), the dispatch and
interconnection agreement, the fuel supply agreements (if applicable), the
operation and maintenance agreement (if applicable) and the land use rights
grant or lease agreement. Schedule II hereto contains an accurate and
complete list of all Project Documents relating to each of the Joint
Venture Companies.
(o) The execution and delivery of and performance by the Company, each
AES Group Company and, to the best of the Company's knowledge, by each of
the other parties thereto of its obligations under the Joint Venture
Documents (as defined below) to which it is a party do not contravene, in
any material respect, any provision of applicable law or any regulation or
any judgment, order or decree of any governmental body or agency or any
court having jurisdiction over any such party. Each of the Joint Venture
Documents to which it is a party constitutes a valid and binding agreement
of the Company and the appropriate AES Group Company and, to the best of
the Company's knowledge, of the other parties thereto, is in full force and
effect and is enforceable in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, fraudulent transfer, fraudulent
conveyance, moratorium or similar laws affecting creditors' rights
generally and to general principles of equity. "Joint Venture Documents" in
connection with each Joint Venture Company means all material agreements
relating to the establishment of the Joint Venture Company, material
agreements between such Joint Venture Company and the joint venture
partners thereof and material agreements among the joint venture partners
of such Joint Venture Company, including but not limited to the joint
venture contract, articles of association, any profit sharing agreement not
otherwise contained in the joint venture contract and any financing
agreements entered into by each such Joint Venture Company. Schedule III
hereto contains an accurate and complete list of all the Joint Venture
Documents relating to each of the Joint Venture Companies.
(p) No consent, approval, authorization, permit, certificate or order
of or from, or filing, declaration or qualification with or to, any
governmental body, self-regulatory organization, court, tribunal, agency or
official in or of the PRC was or is required for (i) the establishment of
each of the Joint Venture Companies (taking into account the anticipated
total investment in such Joint Venture Company), (ii) the ownership by the
Company or an AES Group Company, as the case may be, of the respective
percentage of registered capital of each of the Joint Venture Companies as
set forth in the Prospectus, (iii) the performance by the Company, the
applicable AES Group Company, the applicable Joint Venture Company and, to
the best of the Company's knowledge, each other party thereto of its
obligations under the Joint Venture Documents to which it is a party, (iv)
the conduct by each of the Joint Venture Companies of its business and
ownership of its properties (including the establishment and ownership of
the relevant Project) as described in the Prospectus and as contemplated
under the Project Documents relating thereto, (v) the application of the
tariff calculation and adjustment method contained in the relevant power
purchase contract to the electricity tariff payable to the relevant Joint
Venture Company and (vi) the performance by each party of its obligations
under the Project Documents to which it is a party, including, but not
limited to, payment of, and adjustments to, the relevant tariff by the
relevant power purchaser of each Project as contemplated under the Project
Documents relating thereto (except, in the case of adjustments, any
approvals from the relevant pricing tariff bureau), except in each case (A)
such as have been obtained or made and are in full force and effect, and
have been listed in Schedule IV hereof, (B) those the absence of which,
individually or in the aggregate, would not have a material adverse effect
on the Company and the Project Companies, taken as a whole and (C) such
others, to the extent disclosed in the Prospectus. No such consent,
approval, authorization, permit, certificate or order, filing, declaration
or qualification that has been made or obtained contains any restriction on
the ability of any of the Joint Venture Companies to own, use or lease its
properties or to conduct its business or the Company's ability to satisfy
its payment obligations under the Notes, except such restrictions as are
disclosed in the Prospectus, and none of the Company or, to the knowledge
of the Company after due inquiry, any of the Project Companies has received
any notice of proceedings relating to the revocation or modification of any
such consent, approval, authorization, permit, certificate or order,
filing, declaration or qualification that has been made or obtained.
(q) Each Joint Venture Company has full power and authority to effect
dividend payments and remittances thereof and payments of interest and
principal on loans or advances by the Company or an AES Group Company
(collectively "Payments") outside the PRC in United States dollars. Each
Joint Venture Company has obtained all approvals currently required in the
PRC for it to be able to pay, and, subject to the acquisition of the
necessary foreign exchange, each such Joint Venture Company is currently
entitled to remit outside the PRC and pay, in United States Dollars, all
Payments payable to the Company or any of the AES Group Companies.
(r) All Payments by any Joint Venture Company to the Company or any
AES Group Company are currently free and clear of any PRC tax, duty,
withholding or deduction, except withholding tax payable on payments of
interest with respect to any loans to such Joint Venture Company.
(s) All payments under the Notes, the Indenture and this Agreement are
free and clear of any tax, duty, withholding or deduction and without
necessity of obtaining any license, consent or approval, governmental or
otherwise, of any nature whatsoever.
(t) All dividend payments or other distributions by any AES Group
Company to the Company are free and clear of any tax, duty, withholding or
deduction and without necessity of obtaining any license, consent or
approval of such jurisdiction, governmental or otherwise, of any nature
whatsoever.
(u) No taxes, imposts or duties of any nature (including, without
limitation, stamp or other issuance or transfer taxes or duties and capital
gains, income, withholding or other taxes) are payable by or on behalf of
the Underwriters, the Company or any of the Project Companies to Bermuda or
the United States or any political subdivision or taxing authority thereof
or therein in connection with (i) the issuance of the Notes in connection
with the offering and sale of the Notes; (ii) the sale of the Notes to the
Underwriters in the manner contemplated herein; or (iii) the resale and
delivery of Notes by the Underwriters in the manner contemplated in the
Prospectus.
(v) None of the Joint Venture Companies is, or with the giving of
notice or lapse of time or both would be, in violation of or in default
under (i) any provision of PRC law or the Joint Venture Documents of such
Joint Venture Company, (ii) any other agreement or instrument by which such
Joint Venture Company is bound or to which any of the property or assets of
such Joint Venture Company is subject or (iii) any approval, judgment,
order, decree or regulation of any governmental body or agency or of any
court having jurisdiction over such Joint Venture Company, except for such
defaults that would not, individually or in the aggregate, have a material
adverse effect on the Company and the Project Companies, taken as a whole.
(w) Each of the Joint Venture Companies has paid all PRC taxes which
it is required to have paid, except (A) for taxes the payment of which is
being contested in good faith by appropriate proceedings and for which
adequate reserves have been set aside on its books and (B) where the
failure to pay any such taxes would not, individually or in the aggregate,
have a material adverse effect on the Company and its Project Companies,
taken as a whole.
(x) Each of the Joint Venture Companies owns, or has been granted all
necessary rights to use, for the approved duration of such Joint Venture
Company, all of the material properties and assets owned or used by it or
transferred, assigned or otherwise conveyed to it in connection with its
formation or thereafter. Such properties and assets are free and clear of
all claims, liens, security interests or other encumbrances, other than
liens permitted under the Indenture, which would materially affect its
ability to perform under the Project Documents to which it is a party or
which would materially affect the Company's ability to satisfy its payment
obligations under the Notes. Each of the Joint Venture Companies has
obtained all land-use rights which are necessary in connection with the
construction, ownership and operation of the respective Project, for the
approved duration of such Joint Venture Company, and the conduct of their
respective businesses as described in the Registration Statement, free and
clear of all encumbrances and defects (other than such encumbrances or
defects which do not interfere with the use made and proposed to be made of
such land-use rights), and all such land-use rights are valid, binding and
enforceable in accordance with their respective terms, in all material
respects. All real property, buildings and equipment held under lease, if
any, by each of the Joint Venture Companies are held by each of them under
leases that are valid, binding and enforceable, in all material respects.
(y) No proceeding or other action for the winding up or dissolution or
for the withdrawal, revocation or cancellation of the business license of
any of the Joint Venture Companies has been commenced or threatened. No
notice of appointment of a receiver of any of the Joint Venture Companies
or any of its assets has been issued and no declaration or order of
insolvency has been or is threatened to be made.
(z) No material labor dispute with the employees of the Company or any
of the Joint Venture Companies exists or, to the knowledge of the Company,
is imminent.
(aa) The Company has disclosed to the Underwriters copies of (x) all
minutes and agenda of the board of directors, board of commissioners or
similar bodies of the Company and the Project Companies and (y) all
existing minutes and agenda of the management meetings of the Company and
the Project Companies.
(bb) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and the Project Companies, taken as a whole, from
that set forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement).
(cc) There are no legal or governmental proceedings pending or
threatened to which the Company or any of the Project Companies is a party
or to which any of the properties of the Company or any of the Project
Companies is subject that are required to be described in the Registration
Statement or the Prospectus and are not so described or any statutes,
regulations, contracts or other documents that are required to be described
in the Registration Statement or the Prospectus or to be filed as exhibits
to the Registration Statement that are not described or filed as required.
(dd) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when so filed in
all material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
(ee) The Bermuda Prospectus will comply at the time of filing with the
Registrar of Companies in all material respects with the applicable
provisions of the Companies Act, the Companies Act Rules and any other
applicable statutes, rules and regulations of Bermuda or any governmental
authority therein.
(ff) The Company is not and, after giving effect to the Offering and
the application of the proceeds thereof as described in the Prospectus,
will not be an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act").
(gg) The financial statements, including the notes thereto, and
supporting schedules included in the Registration Statement and the
Prospectus present fairly the consolidated financial position of the
Company and its subsidiaries as of the dates indicated and the consolidated
results of operations of the Company and its subsidiaries for the periods
specified. Said financial statements have been prepared in conformity with
United States generally accepted accounting principles applied on a
consistent basis. The supporting schedules included in the Registration
Statement and the Prospectus present fairly the information required to be
stated therein.
(hh) Each of the Joint Ventures has devised and maintains a system of
internal accounting controls sufficient to provide reasonable assurance
that (1) transactions are executed in accordance with management's general
or specific authorizations, (2) transactions are recorded as necessary to
permit preparation by the Company of financial statements in conformity
with United States generally accepted accounting principles and to maintain
accountability for assets, (3) access to assets is permitted only in
accordance with management's general or specific authorization and (4) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(ii) The Company is not (i) subject to regulation as a "holding
company" or a "subsidiary company" of a holding company or a "public
utility company" under Section 2(a) of the Public Utility Holding Company
Act of 1935 ("PUHCA"), (ii) subject to regulation under the Federal Power
Act or (iii) subject to regulation by any law of any state of the United
States with respect to rates or the financial or organizational regulation
of electric utilities.
(jj) The Company and the Project Companies (i) are in compliance with
any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) have received all permits,
licenses or other approvals required of them under applicable Environmental
Laws to conduct their respective businesses and (iii) are in compliance
with all terms and conditions of any such permit, license or approval,
except where such noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to comply with the
terms and conditions of such permits, licenses or approvals would not,
singly or in the aggregate, have a material adverse effect on the Company
and the Project Companies, taken as a whole.
(kk) In the ordinary course of its business, the Company conducts a
periodic review of the effect of Environmental Laws on the business,
operations and properties of the Company and the Joint Venture Companies,
in the course of which it identifies and evaluates associated costs and
liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance
with Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties). On the basis of such review, the Company has reasonably concluded
that such associated costs and liabilities would not, singly or in the
aggregate, have a material adverse effect on the Company and the Project
Companies, taken as a whole.
(ll) The Company has complied with all provisions of Section 517.075,
Florida Statutes relating to doing business with the Government of Cuba or
with any person or affiliate located in Cuba.
(mm) The Company has been designated as a non-resident of Bermuda for
exchange control purposes by the Bermuda Monetary Authority, whose
permission for issue and sale of the Notes as contemplated by this
Agreement has been obtained and is in full force and effect.
2. AGREEMENTS TO SELL AND PURCHASE. The Company hereby agrees to sell
to the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Company the respective principal amounts of Notes set forth in Schedule I hereto
opposite its name at 97.404% of their principal amount (the "Purchase Price")
plus accrued interest, if any, from December 19, 1996 to the date of payment and
delivery.
3. TERMS OF PUBLIC OFFERING. The Company is advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Notes as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. The Company is further
advised by you that the Notes are to be offered to the public initially at
99.904% of their principal amount (the "Public Offering Price") plus accrued
interest, if any, from December 19, 1996 to the date of payment and delivery and
to certain dealers selected by you at a price that represents a concession not
in excess of .250% of their principal amount under the Public Offering Price,
and that any Underwriter may allow, and such dealers may reallow, a concession,
not in excess of .125% of their principal amount, to any Underwriter or to
certain other dealers.
4. PAYMENT AND DELIVERY. Payment for the Notes shall be made by
certified or official bank check or checks payable to the order of the Company
in New York in immediately available funds (or, if agreed between the Company
and the Underwriters, by wire transfer in immediately available funds to an
account designated by the Company) in the amount of the Purchase Price less
US$275,000 reimbursement of certain of the Underwriters' expenses reimbursable
pursuant to Section 6.(g) hereof at the office of Davis Polk & Wardwell at 10:00
A.M., New York time, on December 19, 1996, or at such other time on the same or
such other date, not later than December 24, 1996, as shall be designated in
writing by you. The time and date of such payment are hereinafter referred to as
the "Closing Date."
Payment for the Notes shall be made against delivery to Trustee, as
custodian for the Depositary Trust Company for the respective accounts of the
several Underwriters of the one or more Global Notes (as defined in the
Indenture) registered in the name of Cede & Co. with any transfer taxes payable
in connection with the transfer of the Notes to the Underwriters duly paid.
5. CONDITIONS TO THE UNDERWRITERS' OBLIGATIONS. The obligations of the
Company and the several obligations of the Underwriters hereunder are subject to
the condition that the Registration Statement shall have become effective not
later than 5:00 p.m. (New York time) on the date hereof.
The several obligations of the Underwriters are subject to the
following further conditions:
(a) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating
accorded the Notes by any "nationally recognized statistical
rating organization," as such term is defined for purposes of
Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations of the Company and the Project Companies, taken as a
whole, from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement) that, in your judgment, is material and adverse and
that makes it, in your judgment, impracticable to market the
Notes on the terms and in the manner contemplated in the
Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an authorized officer of
the Company, to the effect set forth in clause (a)(i) above and to the
effect that the representations and warranties of the Company contained in
this Agreement are true and correct as of the Closing Date and that the
Company has complied with all of its agreements and satisfied all of the
conditions on its part to be performed or satisfied hereunder on or before
the Closing Date. The officers signing and delivering such certificate may
rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an
opinion of Skadden, Arps, Slate, Meagher & Flom LLP, United States counsel
for the Company, dated the Closing Date, in form and substance satisfactory
to the Underwriters, to the effect set forth in Exhibit A hereto. With
respect to paragraph (13) of Exhibit A, Skadden, Arps, Slate, Meagher &
Flom LLP may state that their opinion and belief are based upon their
participation in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto and review and
discussion of the contents thereof, but are without independent check or
verification, except as specified.
(d) The Underwriters shall have received on the Closing Date an
opinion of Commerce & Finance Law Office, special PRC counsel for the
Company, dated the Closing Date, in form and substance satisfactory to the
Underwriters, to the effect set forth in Exhibit B hereto.
(e) The Underwriters shall have received on the Closing Date an
opinion of Conyers, Dill & Pearman, Bermuda counsel for the Company, dated
the Closing Date, in form and substance satisfactory to the Underwriters,
to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an
opinion of Conyers, Dill & Pearman, British Virgin Islands counsel for the
Company, dated the Closing Date, in form and substance satisfactory to the
Underwriters, to the effect set forth in Exhibit D hereto.
(g) The Underwriters shall have received on the Closing Date an
opinion of Conyers, Dill & Pearman, Cayman Islands counsel for the Company,
dated the Closing Date, in form and substance satisfactory to the
Underwriters, to the effect set forth in Exhibit E hereto.
(h) The Underwriters shall have received on the Closing Date an
opinion of Raja, Darryl & Loh, Labuan counsel for the Company, dated the
Closing Date, in form and substance satisfactory to the Underwriters, to
the effect set forth in Exhibit F hereto.
(i) The Underwriters shall have received on the Closing Date an
opinion of Haiwen & Partners, PRC counsel for the Underwriters, dated the
Closing Date, covering the matters referred to in Exhibit B.
(j) The Underwriters shall have received on the Closing Date an
opinion of Davis Polk & Wardwell, counsel for the Underwriters, dated the
Closing Date, covering the matters referred to in paragraphs (2), (3), (4),
(10) (but only as to the statements in the Prospectus under "Prospectus
Summary - The Offering," "Description of the Notes" and "Underwriters"),
(12) and (13) of Exhibit A. With respect to paragraph 13 of Exhibit A,
Davis Polk & Wardwell may state that their opinion and belief are based
upon their participation in the preparation of the Registration Statement
and Prospectus and any amendments or supplements thereto and review and
discussion of the contents thereof, but are without independent check or
verification, except as specified.
(k) The Underwriters shall have received on the Closing Date an
officer's certificate of the Trustee, dated the Closing Date, in form and
substance satisfactory to the Underwriters.
(l) The Underwriters shall have received on the Closing Date an
officer's certificate of the Collateral Agent, dated the Closing Date, in
form and substance satisfactory to the Underwriters.
(m) The Underwriters shall have received, on each of the date hereof
and the Closing Date, a letter dated the date hereof or the Closing Date,
as the case may be, in form and substance satisfactory to the Underwriters,
from Deloitte Touche Tohmatsu, independent public accountants, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements
and certain financial information contained in the Registration Statement
and the Prospectus.
(n) On or prior to the Closing Date, the Authorized Agent referred to
in Section 13 shall have accepted its appointment by the Company as
authorized agent pursuant to Section 13, and the Representatives shall have
received an executed copy of each such acceptance in form and substance
satisfactory to them.
(o) The Depository Trust Company shall have approved the forms of the
Global Notes.
(p) The Company shall have paid all fees and expenses payable to the
Underwriters pursuant to Section 6(g) hereof.
(q) The Underwriters shall have received on the Closing Date a
secretary's certificate of the Company in form and substance satisfactory
to the Underwriters.
(r) The opinions of Skadden, Arps, Slate, Meagher & Flom LLP; Conyers,
Dill & Pearman (Bermuda); Commerce & Finance Law Office; Conyers, Dill &
Pearman (British Virgin Islands); Conyers, Dill & Pearman (Cayman Islands)
and Raja, Darryl & Loh referred to in paragraphs (c), (d), (e), (f), (g)
and (h) above, respectively, shall be rendered to the Underwriters at the
request of the Company and shall so state therein.
6. COVENANTS OF THE COMPANY. In further consideration of the agreements
of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish to you, without charge, three signed copies of the
Registration Statement (including exhibits thereto) and three signed copies
of the Bermuda Prospectus (including the required attachments thereto and
all amendments thereof) and for delivery to each other Underwriter a
conformed copy of the Registration Statement (without exhibits thereto)
and, during the period mentioned in paragraph (c) below, as many copies of
the Prospectus and any supplements and amendments thereto or to the
Registration Statement as you may reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus, to furnish to you a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to
which you reasonably object, unless counsel advises the Company in writing,
with a copy thereof being furnished to you no less than 24 hours in advance
of such proposed filing or use, that such amendment or supplement is
required as a matter of law or pursuant to an order of a regulatory
authority or the requirement of a stock exchange.
(c) If, during such period after the first date of the public offering
of the Notes as in the opinion of counsel for the Underwriters the
Prospectus is required by law to be delivered in connection with sales by
an Underwriter or dealer, any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, not misleading, or if, in
the opinion of counsel for the Underwriters, it is necessary to amend or
supplement the Prospectus to comply with applicable law, forthwith to
prepare, file with the Commission and furnish, at its expense, to the
Underwriters and to the dealers (whose names and addresses you will furnish
to the Company) to which Notes may have been sold by you on behalf of the
Underwriters and to any other dealers upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as
so amended or supplemented will not, in the light of the circumstances when
the Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with law.
(d) To endeavor to qualify the Notes for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request.
(e) To make generally available to the holders of the Notes and to you
as soon as practicable an earning statement of the Company covering the
twelve-month period ending February 28, 1998 that satisfies the provisions
of Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
(f) During the period beginning on the date hereof and continuing to
and including the Closing Date, not to offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company or warrants to
purchase debt securities of the Company substantially similar to the Notes
(other than (i) the Notes and (ii) commercial paper issued in the ordinary
course of business), without the prior written consent of Morgan Stanley &
Co. Incorporated.
(g) To pay all expenses incident to the performance of its obligations
under this Agreement, including but not limited to: (i) the preparation and
filing of the Registration Statement and the Prospectus and all amendments
and supplements thereto; (ii) the preparation, issuance and delivery of the
Notes; (iii) the fees and disbursements of counsel to the Company; (iv) all
fees and expenses of the Trustee and its counsel and of the Collateral
Agent and its counsel; (v) the qualification of the Notes under state
securities or Blue Sky laws in accordance with the provisions of Section
6.(d), including filing fees and the fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the
preparation of any Blue Sky or Legal Investment Memoranda; (vi) the
printing and delivery to the Underwriters in quantities as hereinabove
stated of copies of the Registration Statement and all amendments thereto
and of each preliminary prospectus and the Prospectus and any amendments or
supplements thereto; (vii) the printing and delivery to the Underwriters of
copies of any Blue Sky or Legal Investment Memoranda; (viii) any fees
charged by rating agencies for the rating of the Notes; (ix) the filing
fees and expenses, if any, incurred with respect to any filing with the
National Association of Securities Dealers, Inc. made in connection with
the offering of the Notes; (x) any expenses incurred by the Company in
connection with a "road show" presentation to potential investors; (xi) any
tax, imposts or duties described in paragraph (u) of Section 1 hereof; and
(xii) certain fees and disbursements of counsel for the Underwriters.
(h) For so long as the Company remains a Bermuda corporation, it will
use its best efforts to ensure that the Company is, and remains, an
"exempted company" pursuant to the Companies Act.
7. INDEMNITY AND CONTRIBUTION. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred by any Underwriter or any such controlling person
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through you expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20
of the Exchange Act to the same extent as the foregoing indemnity from the
Company to such Underwriter, but only with reference to information
relating to such Underwriter furnished to the Company in writing by such
Underwriter through you expressly for use in the Registration Statement,
any preliminary prospectus, the Prospectus or any amendments or supplements
thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may
be sought pursuant to either paragraph (a) or (b) of this Section 7, such
person (the "indemnified party") shall promptly notify the person against
whom such indemnity may be sought (the "indemnifying party") in writing and
the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in
such proceeding and shall pay the fees and disbursements of such counsel
related to such proceeding. In any such proceeding, 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 retention of such counsel or (ii) the named parties to 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 that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings
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 such
indemnified parties and that all such fees and expenses shall be reimbursed
as they are incurred. Such firm shall be designated in writing by Morgan
Stanley & Co. Incorporated, in the case of parties indemnified pursuant to
paragraph (a) above and by the Company, in the case of parties indemnified
pursuant to paragraph (b) above. The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent,
but if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel as contemplated by
the second and third sentences of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into
more than 30 days after receipt by such indemnifying party of the aforesaid
request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or
threatened proceeding 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 an unconditional release
of such indemnified party from all liability on claims that are the subject
matter of such proceeding.
(d) To the extent the indemnification provided for in paragraph (a) or
(b) of this Section 7 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party under such paragraph, in
lieu of indemnifying such indemnified party thereunder, shall contribute to
the amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other hand from the offering of the
Notes or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and of the
Underwriters on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other
hand in connection with the offering of the Notes shall be deemed to be in
the same respective proportions as the net proceeds from the offering of
the Notes (before deducting expenses) received by the Company and the total
underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover of the Prospectus, bear to
the aggregate Public Offering Price of the Notes. The relative fault of the
Company on the one hand and the Underwriters on the other hand shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission. The Underwriters' respective obligations to contribute
pursuant to this Section 7 are several in proportion to the respective
principal amounts of Notes they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just
or equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) of
this Section 7. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 7, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Notes
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The remedies provided for in this
Section 7 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified party at law or in
equity.
(f) The indemnity and contribution provisions contained in this
Section 7 and the representations, warranties and other statements of the
Company contained in this Agreement shall remain operative and in full
force and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter or by or on behalf of the Company and of its
officers or directors or any person controlling the Company and (iii)
acceptance of and payment for any of the Notes.
8. TERMINATION. This Agreement shall be subject to termination by
notice given by Morgan Stanley & Co. Incorporated on behalf of the Underwriters
to the Company, if (a) after the execution and delivery of this Agreement and
prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange, the National Association of Securities
Dealers, Inc. or The Stock Exchange of Hong Kong Limited, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York, Hong Kong or Shanghai shall have been declared by the
relevant banking authorities, (iv) there shall have occurred a change or
development involving a prospective change in the existing financial, political,
economic or regulatory conditions in Bermuda, the PRC or Hong Kong, (including,
without limitation, a change in exchange controls, currency exchange rates or
taxation) which change or development makes it, in the sole judgment of Morgan
Stanley & Co. Incorporated on behalf of the Underwriters, impractical or
inadvisable to market the Notes, or the United States, Bermuda, or the PRC
imposes new exchange controls, or (v) there shall have occurred any outbreak or
escalation of hostilities or any change in financial markets or any major
calamity or crisis that, in the judgment of Morgan Stanley & Co., Incorporated
on behalf of the Underwriters, is material and adverse and (b) in the case of
any of the events specified in clauses (a)(i) through (v), such event, singly or
together with any other such event, makes it, in the judgment of Morgan Stanley
& Co., Incorporated, impracticable to market the Notes on the terms and in the
manner contemplated in the Prospectus.
9. EFFECTIVENESS; DEFAULTING UNDERWRITERS. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date, any one or more of the Underwriters shall fail
or refuse to purchase Notes that it has or they have agreed to purchase
hereunder on such date, and the aggregate principal amount of Notes which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is not more than one-tenth of the aggregate principal amount of the Notes to be
purchased on such date, the other Underwriters shall be obligated severally in
the proportions that the principal amount of Notes set forth opposite their
respective names in Schedule I bears to the principal amount of Notes set forth
opposite the names of all such non-defaulting Underwriters, or in such other
proportions as you may specify, to purchase the Notes which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the principal amount of Notes that any
Underwriter has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 9 by an amount in excess of one-ninth of such principal
amount of Notes without the written consent of such Underwriter. If, on the
Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase
Notes and the aggregate principal amount of Notes with respect to which such
default occurs is more than one-tenth of the aggregate principal amount of Notes
to be purchased on such date, and arrangements satisfactory to you and the
Company for the purchase of such Notes are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either you or the
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company agrees to reimburse the Underwriters or such Underwriters
as have so terminated this Agreement with respect to themselves, severally, for
all out-of-pocket expenses (including the fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering contemplated hereunder.
10. SUBMISSION TO JURISDICTION; AUTHORIZED AGENT. The Company (a)
agrees that any legal suit, action or proceeding brought by any Underwriter
arising out of or relating to this Agreement, the Indenture, the Notes or the
transactions contemplated hereby or thereby may be instituted in any federal or
state court in the Borough of Manhattan, the City of New York, (b) irrevocably
waives, to the fullest extent it may effectively do so, any objection (x) which
it may now or hereafter have to the laying of the venue of any such suit, action
or proceeding in any federal or state court in the Borough of Manhattan, the
City of New York or (y) that any such suit, action or proceeding has been
brought in an inconvenient forum, and (c) irrevocably submits to the
non-exclusive jurisdiction of any such court in any such suit, action or
proceeding.
The Company irrevocably designates and appoints The Prentice-Hall
Corporation System, Inc. as its authorized agent upon which process may be
served in any legal suit, action or proceeding arising out of or relating to
this Agreement or the transactions contemplated hereby which may be instituted
in any federal or state court in the Borough of Manhattan, the City of New York,
and agrees that service of process upon such agent, and written notice of said
service to the Company by the person serving the same, shall be deemed in every
respect effective service of process upon the Company in any such suit or
proceeding. The Company further agrees to take any and all actions as may be
necessary to maintain such designation and appointment of such agent in full
force and effect.
11. JUDGMENT CURRENCY. If for the purposes of obtaining judgment in any
court it is necessary to convert a sum due hereunder into any currency other
than United States dollars, the parties hereto agree, to the fullest extent that
they may effectively do so, that the rate of exchange used shall be the rate at
which in accordance with normal banking procedures an Underwriter could purchase
United States dollars with such other currency in New York City on the business
day preceding that on which final judgment is given. The obligation of the
Company in respect of any sum due from the Company to any Underwriter, or of any
Underwriter in respect of any sum due from such Underwriter to the Company
shall, notwithstanding any judgment in a currency other than United States
dollars, not be discharged until the first business day following receipt by
such Underwriter, or the Company, as the case may be, of any sum adjudged to be
so due in such other currency, on which (and only to the extent that) such
Underwriter, or the Company, as the case may be, may in accordance with normal
banking procedures purchase United States dollars with such other currency; if
the United States dollars so purchased are less than the sum originally due to
the Underwriter, or the Company, as the case may be, hereunder, the Company and
such Underwriter agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify such Underwriter, or the Company, as the case may be,
against such loss. If the United States dollars so purchased are greater than
the sum originally due to such Underwriter, or the Company, as the case may be,
hereunder, such Underwriter, or the Company, as the case may be, agrees to pay
to the Company or such Underwriter, as the case may be, an amount equal to the
excess of the dollars so purchased over the sum originally due to such
Underwriter, or the Company, as the case may be, hereunder.
12. WAIVER OF IMMUNITY. To the extent that the Company has or hereafter
may acquire any immunity from jurisdiction of any court or from any legal
process (whether through service or notice, attachment prior to judgment,
attachment in aid or execution, or otherwise) with respect to itself or its
property, such party hereby irrevocably waives such immunity in respect of its
obligations hereunder to the extent permitted by applicable law and, without
limiting the generality of the foregoing, agrees that the waivers set forth in
this paragraph shall have effect to the fullest extent permitted under the
Foreign Sovereign Immunities Act of 1976 of the United States and are intended
to be irrevocable for purposes of such Act.
13. COUNTERPARTS. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
14. APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
15. HEADINGS. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
Very truly yours,
AES CHINA GENERATING CO. LTD.
By: /s/ Paul T. Hanrahan
-------------------------
Paul T. Hanrahan
President and Chief Executive Officer
Accepted as of the date hereof
Morgan Stanley & Co. Incorporated
Donaldson, Lufkin & Jenrette
Securities Corporation
Acting severally on behalf
of themselves and the
several Underwriters named
herein.
By: Morgan Stanley & Co.
Incorporated
By: /s/ Elizabeth R. Chandler
----------------------------
Elizabeth R. Chandler
Principal
SCHEDULE I
PRINCIPAL AMOUNT
OF NOTES
UNDERWRITER.............................................. TO BE PURCHASED
- ----------- ----------------
Morgan Stanley & Co. Incorporated..................... 149,400,000
Donaldson, Lufkin & Jenrette
Securities Corporation.............................. 30,600,000
Total........ 180,000,000
===========
SCHEDULE II
[Project Documents (By Joint Venture Company)]
SCHEDULE III
[Joint Venture Documents (By Joint Venture Company)]
SCHEDULE IV
[Consents, Approvals etc. (By Joint Venture Company)]
Exhibit A
[Opinion of Skadden, Arps, Slate, Meagher & Flom]
(1) Such counsel has been advised by the Commission that the Registration
Statement has become effective; to the best of such counsel's
knowledge, no stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such
purpose are pending before or threatened by the Commission.
(2) The Indenture has been duly qualified under the Trust Indenture Act
and constitutes a valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms.
(3) When duly executed and authenticated in accordance with the terms of
the Indenture and delivered against payment therefor in accordance
with the terms of the Underwriting agreement, the Notes will be
entitled to the benefits of the Indenture and will be valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms.
(4) The Security Agreement constitutes a valid and legally binding
agreement of the Company, enforceable against the Company in
accordance with its terms.
(5) The execution and delivery by the Company of, and the performance by
the Company of its obligations under, the Indenture, the Notes, the
Security Agreement and the Underwriting Agreement, each in accordance
with its terms do not (i) constitute a breach or violation of a
default under any of the agreements and instruments set forth on
Exhibit A hereto ("Applicable Contracts"), (ii) contravene any
Applicable Law or (iii) contravene any applicable judgment, order or
decree set forth on Exhibit C hereto ("Applicable Orders").
"Applicable Laws" means those laws, rules and regulations of the State
of New York and of the United States of America which in our
experience, are normally applicable to transactions of the type
contemplated by the Indenture, the Notes, the Security Agreement and
the Underwriting Agreement and are not the subject of a specific
opinion herein referring expressly to a particular law or laws
(6) No consent, approval, authorization or order of, or qualification
with, any United States Federal or New York State governmental agency
or body is required to be obtained or made by the Company for the
performance by the Company of the transactions contemplated by the
Indenture, the Notes, the Security Agreement or the Underwriting
Agreement, except for (i) such consents, approval, authorizations or
qualifications as may be required under state securities or Blue Sky
laws in connection with the offer and
A-1
sale of the Notes or (ii) the registration of the Notes under the
Securities Act
(7) The Company is not and, immediately after giving effect to the
offering of the Notes and assuming the proceeds thereof have been
applied as described in the Prospectus, will not be, subject to
registration as an "investment company" under the Investment Company
Act of 1940, as amended.
(8) The Company is not (i) subject to regulation as a "holding company" or
a "public utility company" under Section 2(a) of the Public Utility
Holding Company Act of 1935, (ii) subject to regulation under the
Federal power Act or (iii) subject to regulation under the laws of the
State of New York with respect to rates or the financial or
organizational regulation of electric utilities.
(9) Under the laws of the State of New York relating to submission to
jurisdiction, the Company has, pursuant to the Indenture, the Notes,
the Security Agreement and the Underwriting Agreement (i) validly and
irrevocably submitted to the personal jurisdiction of any New York
State or United States Federal court located in Borough of Manhattan
in The City of New York, in any action, suit or proceeding brought by
any Underwriter arising out of our relating to the Indenture, the
Notes, the Security Agreement, the Underwriting Agreement or the
transactions contemplated thereby, (ii) validly waived any objection
to the laying of venue of a proceeding in any such court and (iii)
validly appointed The Prentice-Hall Corporation System, Inc. as its
authorized agent for service of process; service of process effected
on such agent in the manner set forth in Section 11.11 of the
Indenture, Section 8.11 of the Security Agreement and Section 10 of
the Underwriting Agreement will be effective to confer valid personal
jurisdiction over the Company.
(10) The statements set forth in the Prospectus under the captions
"Description of the Notes," insofar as they purport to constitute a
summary of the terms of the Notes, and "The Amalgamation -- Certain
Effects of the Amalgamation" have been reviewed by such counsel and
fairly summarize the matters purported to the described therein in all
material respects. Although the summary set forth in the section of
the Prospectus entitled "Taxation - United States Taxation" does not
purport to discuss all possible United States Federal income tax
considerations related to the acquisition, holding, or disposition of
the Notes by a "United States holder" (as defined therein), such
discussion constitutes, in all material respects, a fair and accurate
summary of the United States Federal income tax considerations that
are likely to be material to an original purchaser of the Notes who is
a United States holder.
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(11) Each document heretofore filed pursuant to the Exchange Act of 1934,
as amended (the "Exchange Act"), and incorporated by reference in the
Prospectus complied as to form when so filed in all material respects
with the Exchange Act and the applicable rules and regulations of the
Commission thereunder.
(12) The Registration Statement and Prospectus (except for financial
statements and schedules included therein, as to which such counsel
need not express any opinion) comply as to form in all material
respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
(13) Such counsel (i) has no reason to believe that the Registration
Statement and the prospectus included therein at the time the
Registration Statement became effective contained any untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading and (ii) has no reason to believe that the Prospectus
contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, except that, in each case, such counsel need not express
any opinion or belief with respect to (A) any information included in
or omitted from the sections of the Registration Statement entitled
"Appendix A - The People's Republic of China" and "Appendix B -
Glossary of Power Industry Terms," (B) the financial statements and
other financial or statistical data included in or excluded from the
Registration Statement or the Prospectus, (C) exhibits to the
Registration Statement and (D) that part of the Registration Statement
that constitutes the Form T-1 filed with respect to the Indenture.
(14) The "transfer" (within the meaning of Section 8-313 of the UCC) of
securities collateral consisting of U.S. government book-entry
securities, Depository Trust Company securities and certificated
securities to the Collateral Agent (as defined in the Security
Agreement), together with the Security Agreement will create a valid
and perfected security interest in such securities collateral to
secure the Secured Obligations (as defined in the Security Agreement).
(15) The Security Agreement is effective to create a valid security
interest in that portion of the Collateral (as defined in Security
Agreement) consisting of Instruments to secure the Secured
Obligations. The security interest of the Collateral Agent in such
instruments will be perfected upon delivery of such Instruments to the
Collateral Agent in the State of New York.
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(16) After due inquiry of responsible officers of the Company, such counsel
does not know of (i) any legal or governmental proceedings pending or
threatened to which the Company or any of the Project Companies is a
party or to which any of the properties of the Company or any of the
Project Companies is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or
(ii) any statutes or regulations of the State of New York or the
United States or any contracts or other documents governed by the laws
of the State of New York or the Federal laws of the United States that
are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required.
A-4
Exhibit B
[Opinion of Commerce & Finance Law Office]
(1) Each of the Joint Venture Companies has been duly organized under the
laws of the PRC as a joint venture enterprise with the status of a
Chinese legal person, is validly existing under the laws of the PRC,
has the corporate power and authority to own its property (including
land use rights) and to conduct its business as described in the
Prospectus and its Joint Venture Documents and business license, and
is in good standing and duly qualified to transact business in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification except as otherwise
disclosed in the Prospectus.
(2) None of the Joint Venture Companies is in violation of its business
license, Joint Venture Documents or other constituent documents.
(3) An AES Group Company or the Company is the owner of the respective
percentage of registered capital of each of the Joint Venture
Companies as set forth in the Prospectus, in each case free and clear
of all liens, encumbrances, equities, claims, restriction on transfer
(other than as required under applicable PRC law or pursuant to the
provisions of the Joint Venture Documents of any such Joint Venture
Company), voting trust or other defect of title whatsoever; the
ownership of such registered capital is valid and lawful, in all
material respects, under all applicable PRC laws, rules, regulations
or guidelines of any local or other court or public, governmental or
regulatory agency or body.
(4) The contracted registered capital of each of the Joint Venture
Companies has been subscribed in full by the respective joint venture
partners of each such Joint Venture Company and all government
approvals relating to the subscription thereof have been issued and
are in full force and effect except any such delayed subscription
permitted pursuant to the applicable Joint Venture Documents such that
the ownership of registered capital of each Joint Venture Company is
as described in the Registration Statement in all material respects.
(5) The execution and delivery by the Company of, and the performance by
the Company of its obligations under, the Underwriting Agreement, the
Indenture, the Security Agreement and the Notes (i) will not
contravene any provision of PRC law or any agreement or other
instrument binding upon any of the Joint Venture Companies that is
material to the Company and the Project Companies, taken as a whole,
or any regulation, judgment, order or decree of any governmental body,
agency or any court having jurisdiction over any Joint Venture Company
or (ii) except as contemplated by the Security Agreement, result in
the creation or imposition of any
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claim, lien, mortgage, security interest or other encumbrance on any
property or assets of any Joint Venture Company.
(6) Each of the Project Documents constitutes a valid and binding
agreement of the appropriate Joint Venture Company, is in full force
and effect, and is enforceable in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws affecting creditors' rights generally and
to general principles of equity.
(7) To the best of such counsel's knowledge after due inquiry, each of the
Project Documents constitutes a valid and binding agreement of each of
the parties thereto other than the Joint Venture Companies, is in full
force and effect and is enforceable in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws affecting creditors'
rights generally and to general principles of equity.
(8) The performance of each AES Group Company or the Company, as the case
may be, of its obligations under the applicable Joint Venture
Documents does not and will not contravene, in any material respect,
(i) any provision of PRC law or any regulation or (ii) any approval,
judgment, order, decree or regulation of any governmental body or
agency or any court having jurisdiction over such AES Group Company or
any of the properties or assets of such AES Group Company.
(9) The performance of each Joint Venture Company of its obligations under
the applicable Project Documents does not and will not contravene, in
any material respect, (i) any provision of PRC law or any regulation
or (ii) any approval, judgment, order, decree or regulation of any
governmental body or agency or any court having jurisdiction over such
Joint Venture Company or any of the properties or assets of such Joint
Venture Company.
(10) To the best of such counsel's knowledge after due inquiry, each of the
Joint Venture Documents constitutes, in all material respects, a valid
and binding agreement of each of the parties thereto other than the
AES Group Companies, is in full force and effect and is enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws
affecting creditors' rights generally and to general principles of
equity.
(11) No consent, approval, authorization, permit, certificate or order of
or from, or filing, declaration or qualification with or to, any
governmental body, self-regulatory organization, court, tribunal,
agency or official was or is required for (i) the establishment of
each Joint Venture Company (taking
B-2
into account the anticipated total investment in such Joint Venture
Company, (ii) the ownership by the Company or an AES Group Company, as
the case may be, of the respective percentage of registered capital of
each of the Joint Venture Companies as set forth in the Prospectus,
(iii) the performance by the Company, the applicable AES Group
Company, the applicable Joint Venture Company, and to the best of such
counsel's knowledge, each other party thereto of its obligations under
the Joint Venture Documents, (iv) the conduct by each Joint Venture
Company of its business and ownership of its properties (including the
establishment and ownership of the relevant Project) as described in
the Prospectus and as contemplated under the Project Documents, (v)
the application of the tariff calculation and adjustment method
contained in the relevant power purchase contract to the electricity
tariff payable to the relevant Joint Venture Company, (vi) the
performance by each party of its obligations under the Project
Documents to which it is a party, including, but not limited to,
payment of, and adjustments to, the relevant tariff by the relevant
power purchaser of each Project as contemplated under the Project
Documents, and (vii) the performance by the Company of its obligations
under the Underwriting Agreement, the Indenture, the Security
Agreement or the Notes, except such as have been obtained or made and
are in full force and effect and have been listed in Schedule IV of
this Agreement; no such consent, approval, authorization, permit,
certificate or order, filing, declaration or qualification that has
been made or obtained contains any restriction on the ability of the
Joint Venture Companies to own, use or lease its properties, to
conduct its business or to satisfy its obligations and enjoy rights
and benefits contemplated under the Joint Venture Documents and
Project Documents or the Company's ability to satisfy its payment
obligations under the Notes, except such restrictions as are disclosed
in the Prospectus.
(12) Each Joint Venture Company has full power and authority to effect
dividend payments and remittances thereof and payments of interest and
principal on loans or advances by the Company or an AES Group Company
(collectively, "Payments") outside the PRC in Unites States dollars.
Each Joint Venture Company has obtained all approvals currently
required in the PRC for it to be able to pay, and, subject to the
acquisition of the necessary foreign exchange, each such Joint Venture
Company is currently entitled to remit outside the PRC and pay, in
United States Dollars, all Payments payable to the Company or any AES
Group Company.
(13) All Payments by any Joint Venture Company to the Company or any AES
Group Company are currently free and clear of any PRC tax, duty,
withholding or deduction, except withholding tax payable on payments
of interest with respect to any loans to such Joint Venture Company.
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(14) None of the Joint Venture Companies is, or with the giving of notice
or lapse of time or both would be, in violation of or in default under
(i) any provision of PRC law, the Project Documents relating to such
Joint Venture Company or the Joint Venture Documents of such Joint
Venture Company, (ii) any other agreement or instrument by which such
Joint Venture Company is bound or to which any of the property or
assets of such Joint Venture Company is subject or (iii) any approval,
judgment, order, decree or regulation of any governmental body or
agency or of any court having jurisdiction over such Joint Venture
Company, except for such defaults that would not, individually or in
the aggregate, have a material adverse effect on the Company and the
Project Companies, taken as a whole.
(15) Each of the Joint Venture Companies has paid all PRC taxes which it is
required to have paid, except (i) for taxes payment of which is being
contested in good faith by appropriate proceedings and for which
reserves deemed by it to be adequate have been set aside on its books
and (ii) where the failure to pay any such taxes would not,
individually or in the aggregate, have a material adverse effect on
the Company and its Project Companies, taken as a whole.
(16) Each of the Joint Venture Companies owns or has been granted all
necessary rights to use, for the approved duration of such Joint
Venture Company, all of the material properties and assets owned or
used by it or transferred, assigned or otherwise conveyed to it in
connection with its formation or thereafter. Such properties and
assets are free and clear of all claims, liens, security interests or
other encumbrances, other than Liens permitted under the Indenture,
which would materially affect its ability to perform under the Project
Documents to which it is a party or which would materially affect the
Company's ability to satisfy its payment obligations under the Notes.
Each of the Joint Venture Companies has obtained all land-use rights
which are necessary in connection with the construction, ownership and
operation of the respective Project, for the approved duration of such
Joint Venture Company, and the conduct of their respective businesses
as described in the Registration Statement, free and clear of all
encumbrances and defects (other than such encumbrances or defects
which do not interfere with the use made and proposed to be made of
such land-use rights), and all such land-use rights are valid, binding
and enforceable in accordance with their respective terms, in all
material respects. All real property, buildings and equipment held
under lease if any, by each of the Joint Venture Companies are held by
each of them under leases that are valid, binding and enforceable, in
all material respects.
B-4
(17) Each of the Joint Venture Companies (i) is in compliance with all
applicable laws and regulations relating to the protection of human
health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"), (ii) has
received all permits, licenses and approvals required, if any, under
applicable Environmental Laws to conduct is business, including to
construct, own and operate the Projects, as described in the
Prospectus and (iii) is in compliance with all terms and conditions of
such permits, licenses and approvals, except where any noncompliance
with Environmental Laws, failure to receive required permits, licenses
or other approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals would not, singly or in the
aggregate, have a material adverse effect on such Joint Venture
Company or on the Company's ability to satisfy its payment obligations
under the Notes; and none of the Joint Venture Companies has received
any notice of proceedings relating to the revocation or modification
of any of such permits, licenses or approvals.
(18) To the best of such counsel's knowledge after due inquiry, none of the
Joint Venture Companies nor other person has taken any action nor have
any other steps been taken or legal proceedings been started or
threatened against any of the Joint Venture Companies for its winding
up or dissolution, or for the withdrawal, revocation or cancellation
of the business license of any of the Joint Venture Companies; and no
notice of appointment of a receiver of any of the Joint Venture
Companies or any of its assets has been issued and no declaration or
order of insolvency has been or is threatened to be made.
(19) There are no legal or governmental proceedings pending (i) to which
any of the Project Companies is a party or to which any such Project
Company's properties or assets is subject, or (ii) which could,
individually or in the aggregate, reasonably be expected to have a
material adverse effect on any of the Project Companies or the
Projects or the validity or enforceability of the Underwriting
Agreement, the Indenture, the Security Agreement or the Notes or the
Project Documents and, to the best of such counsel's knowledge, after
due inquiry, no such proceedings are threatened.
(20) The statements in the Prospectus under the captions "Enforceability of
Civil Liabilities;" "Risk Factors -- Risks Pertaining to the PRC --
Developing Legal System," "-- Risks Related to the Company's Business
-- Regulation and Restrictions; Tariffs," "-- Government Approval
Process," "-- Environmental Matters," "The PRC Electric Power Industry
-- Organization of the PRC's Electric Power Industry" and "-- Electric
Power Law;" "Business -- Joint Venture Companies," "-- Government
Approvals," "-- Environmental Regulation," "-- Description of the
Current Projects" and "-- Description of the Potential Projects;" and
"Appendix A --
B-5
The People's Republic of China -- Environmental Protection," "--
Foreign Exchange Controls and Exchange Rate Information" and "-- Legal
System," in each case insofar as such statements constitute summaries
of the legal matters, documents or proceedings referred to therein,
fairly present the information called for with respect to such legal
matters, documents and proceedings and, fairly summarize the matters
referred to therein.
B-6
Exhibit C
[Opinion of Conyers, Dill & Pearman (Bermuda)]
(1) The Bermuda Prospectus is in compliance with the requirements of the
Companies Act 1981 and, together with the required attachments, has
been filed with the Registrar of Companies in Bermuda pursuant to the
Companies Act 1981. whenever any of the particulars in the Prospectus
ceases in a material respect to be accurate, supplementary particulars
must also be issued and filed with the Registrar of Companies in
Bermuda.
(2) The Company is duly incorporated and validly existing and in
compliance (meaning that the Company has not failed to make any filing
with any Bermuda governmental authority or to pay any Bermuda
government fee or tax which might make the Company liable to be struck
off the Register of Companies and thereby cease to exist under the
laws of Bermuda) under the laws of Bermuda.
(3) The Company has the necessary corporate power and authority to enter
into and perform its obligations under the Registration Statement, the
Prospectus, the Underwriting Agreement, the Indenture, the Notes and
the Security Agreement (the "Documents"). The execution and delivery
of the Documents by the Company and the performance of its obligations
thereunder will not violate the memorandum of association or by-laws
of the Company, nor any applicable law or regulation of Bermuda.
(4) The Company has the corporate capacity and power:
(a) to generate, sell, supply, transmit and trade in electricity;
(b) to directly or indirectly and either solely or jointly with
others, to construct, develop, acquire, own, hold, dispose of,
sell or otherwise deal with interests in, manage, operate and
maintain, and advise, consult with and provide services to others
in connection with, electrical power generation facilities of all
kinds and related facilities, including fuel source and supply,
fuel transmission and electricity transmission facilities; and
(c) to borrow or raise or secure the payment of money in such manner
as the Company may think fit;
(d) as set out in paragraphs (b) to (n) and (p) to (u) inclusive of
the Second Schedule to the Companies Act 1981.
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(5) The Company has an authorized capitalization as set forth in the
Prospectus.
(6) The Company has taken all corporate action required to authorize its
execution, delivery and performance of the Documents. The Documents
have been duly executed by or on behalf of the Company, and constitute
the valid and binding obligations of the Company, enforceable in
accordance with the terms thereof.
(7) The Notes to be sold pursuant to the Registration Statement and the
Prospectus have been duly authorized and, when executed,
authenticated, issued and delivered in accordance with the provisions
of the Indenture and as contemplated by the Registration Statement and
the Prospectus, will constitute valid and binding obligations of the
Company, enforceable in accordance with the terms thereof.
(8) No order, consent, approval, license, authorization or validation of
or exemption by any government or public body or authority of Bermuda
or any sub-division thereof is required to authorize or is required in
connection with the execution, delivery, performance and enforcement
of the Documents except such as have been duly obtained in accordance
with Bermuda law and are in full force and effect.
(9) The Company has been designated as a non-resident of Bermuda for
exchange control purposes by the Bermuda Monetary Authority, whose
permission for issue and transfer of the Notes to persons regarded as
non-residents of Bermuda for exchange control purposes as contemplated
by the Underwriting Agreement has been obtained and is in full force
and effect, and;
(a) "Foreign Currency" Accounts (all currencies other than Bermuda
dollars) with banks in or outside Bermuda may be opened and
maintained without reference to the Bermuda Monetary Authority.
(b) "External Bermuda Dollar" Accounts with banks in Bermuda may be
opened and maintained provided that balances therein are limited
to those necessary to meet day-to-day local expenses.
(c) "Resident Bermuda Dollar" Accounts may not be opened in the name
of the Company.
C-2
(10) It is not necessary to ensure the enforceability in Bermuda of the
Underwriting Agreement, the Indenture, the Security Agreement and the
Notes (the "Agreements") that they be registered in any register kept
by, or filed with, any governmental authority or regulatory body in
Bermuda. However, to ensure the priority in Bermuda of any charge
created by the Agreements that such charge be registered in the
Register of Charges in accordance with Section 55 of the Companies Act
1981. On registration such charge will have priority in Bermuda over
any unregistered charge and over any subsequently registered charge in
respect of the assets which are the subject of such charge.
(11) The obligations of the Company under the Indenture and the Notes will
rank at least pari passu in priority of payment with all other
unsecured unsubordinated indebtedness of the Company other than
indebtedness which is preferred by virtue of any provision of the laws
of Bermuda of general application.
(12) The Company is not entitled to any immunity under the laws of Bermuda,
whether characterized as sovereign immunity or otherwise, from any
legal proceedings, whether in Bermuda or elsewhere, to enforce or to
collect upon the Documents (including, without limitation, immunity
from service of process, immunity from jurisdiction of any court or
tribunal or immunity of any of its property from attachment in aid of
execution upon a judgment in respect of itself or its property).
(13) There is no income or other tax of Bermuda imposed by withholding or
otherwise on any payment to be made to or by the Company or the
Underwriters under the Documents. The Documents will not be subject to
ad valorem stamp duty in Bermuda and no registration, documentary,
recording, transfer or other similar tax, fee or charge is payable in
connection with the execution, delivery, filing, registration or
performance of the Agreements.
(15) The choice of the New York law to govern the Agreements is a valid
choice of law and the submission therein by the Company to the
non-exclusive jurisdiction of the federal or state courts in the
Borough of Manhattan, The City of New York (the "Foreign Courts") is
valid and binding upon the Company.
(16) The courts of Bermuda would recognize as a valid judgment, a final and
conclusive judgment in personam obtained in the Foreign Courts against
the parties to the Documents based upon the Documents under which a
sum of money is payable (other than a
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sum of money payable in respect of multiple damages, taxes or other
charges of a like nature or in respect of a fine or other penalty) and
would give a judgment based thereon provided that (a) such courts had
proper jurisdiction over the parties subject to such judgment, (b)
such courts did not contravene the rules of natural justice of
Bermuda, (c) such judgment was not obtained by fraud, (d) the
enforcement of the judgment would not be contrary to the public policy
of Bermuda, (e) no new admissible evidence relevant to the action is
submitted prior to the rendering of the judgment by the courts of
Bermuda and (f) there is due compliance with the correct procedures
under the laws of Bermuda.
(17) Based solely upon a search of the Cause Book of the Supreme Court of
Bermuda conducted at [ am/pm] on [ ], there are no judgments against,
nor legal or governmental proceedings, pending in Bermuda to which the
Company is subject.
(18) The Agreements may be enforced against the Company, in the courts of
Bermuda and any court having appellate jurisdiction therefrom without
any express submission to any such jurisdiction, and, if action were
taken in respect of any of the Agreements before such courts, such
courts would recognize and give effect to the provisions therein
whereby they are to be governed by and construed in accordance with
New York law.
(19) The statements (i) in the Prospectus under the captions
"Enforceability of Civil Liabilities," "The Amalgamation," "Taxation -
Bermuda Taxation" and "Certain Foreign Issuer Considerations" and (ii)
in the Registration Statement in Item 15 of the Prospectus, in each
case insofar as such statements constitute summaries of Bermuda legal
matters, documents or proceedings therein, fairly represent the
information called for with respect to such Bermuda legal matters,
documents and proceedings and fairly summarize the matters referred to
therein.
C-4
Exhibit D
[Opinion of Conyers, Dill & Pearman (British Virgin Islands)]
(1) Each of AES Yangchun Power Co. Ltd., AES Tien Fu Power Co. Ltd. and
AES Anhui Power Company Ltd. (collectively, the "AES Group Companies"
and each an "AES Group Company") has been duly incorporated and is
validly existing as a corporation in good standing under the laws the
British Virgin Islands, and each of the AES Group Companies has the
power and authority (corporate and other) to own its property and to
conduct its business as described in the Prospectus.
(2) All of the issued shares in the share capital of each AES Group
Company have been duly and validly authorized and issued, and are
owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, restrictions on transfer, equities or claims.
(3) The execution and delivery of and performance by each AES Group
Company of its obligations under the Joint Venture Documents to which
it is a party do not contravene its memorandum and by-laws or any
provision of applicable law or any regulation, judgment, order or
decree of any governmental body or agency or any court having
jurisdiction over any such AES Group Company.
(4) All dividend payments and remittances thereof and other distributions
by each AES Group Company to the Company are free and clear of any
tax, duty, withholding or deduction.
D-1
Exhibit E
[Opinion of Conyers, Dill & Pearman (Cayman Islands)]
(1) Jiaozuo Power Partners, L.P. ("Jiaozuo L.P.") has been duly organized
and is validly existing as a limited partnership in good standing
under the laws of its organization and Jiaozuo (G.P.) Corp.
(collectively, together with Jiaozuo L.P., the "AES Group Companies"
and each an "AES Group Company") has been duly incorporated and is
validly existing as a corporation in good standing under the laws the
Cayman Islands, and each of the AES Group Companies has the power and
authority (corporate and other) to own its property and to conduct its
business as described in the Prospectus.
(2) All of the issued shares in the share capital (or partnership
interests in the case of Jiaozuo L.P.) of each AES Group Company have
been duly and validly authorized and issued, and are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
restrictions on transfer, equities or claims.
(3) The execution and delivery of and performance by each AES Group
Company of its obligations under the Joint Venture Documents to which
it is a party do not contravene its memorandum and by-laws or any
provision of applicable law or any regulation, judgment, order or
decree of any governmental body or agency or any court having
jurisdiction over any such AES Group Company.
(4) All dividend payments and remittances thereof and other distributions
by each AES Group Company to the Company are free and clear of any
tax, duty, withholding or deduction.
E-1
Exhibit F
[Opinion of Raja, Darryl & Loh]
(1) Each of AES Chigen Co. (L) Ltd., AES Tien Fu Power Co (L) Ltd., AES
China Power Holding Co. (L) Ltd., and AES China Holding Co. (L) Ltd.
(collectively, the "AES Group Companies" and each an "AES Group
Company") has been duly incorporated and is validly existing as a
corporation in good standing under the laws of Labuan, and each of the
AES Group Companies has the power and authority (corporate and other)
to own its property and to conduct its business as described in the
Prospectus.
(2) All of the issued shares in the share capital of each AES Group
Company have been duly and validly authorized and issued, and are
owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, restrictions on transfer, equities or claims.
(3) The execution and delivery of and performance by each AES Group
Company of its obligations under the Joint Venture Documents to which
it is a party do not contravene its memorandum and by-laws or any
provision of applicable law or any regulation, judgment, order or
decree of any governmental body or agency or any court having
jurisdiction over any such AES Group Company.
(4) All dividend payments and remittances thereof and other distributions
by each AES Group Company to the Company are free and clear of any
tax, duty, withholding or deduction.
F-1