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EXHIBIT 4.6
NRG SOUTH CENTRAL GENERATING LLC
and
LOUISIANA GENERATING LLC
$500,000,000 8.962% Series A Senior Secured Bonds due 2016
$300,000,000 9.479% Series B Senior Secured Bonds due 2024
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
March 30, 2000
CHASE SECURITIES INC.
LEHMAN BROTHERS INC.
On behalf of the Initial Purchasers
Named in Schedule 1 hereto
Ladies and Gentlemen:
NRG South Central Generating LLC, a Delaware limited liability
company (the "Issuer"), proposes to issue and sell to the Initial Purchasers
named in Schedule 1 hereto (the "Initial Purchasers"), upon the terms and
subject to the conditions set forth in a purchase agreement dated March 30, 2000
(the "Purchase Agreement"), between the Issuer, the Subsidiary Guarantor and the
Initial Purchasers, $500,000,000 aggregate principal amount of its 8.962% Series
A Senior Secured Bonds due 2016 and $300,000,000 aggregate principal amount of
its 9.479% Series B Senior Secured Bonds due 2024 (the "Bonds"). Capitalized
terms used but not defined herein shall have the meanings given to such terms in
the Purchase Agreement.
As an inducement to the Initial Purchasers to enter into the
Purchase Agreement and in satisfaction of a condition to the obligations of the
Initial Purchasers thereunder, the Issuer and the Subsidiary Guarantor (together
with the Issuer, the "Registrants") agrees with the Initial Purchasers, for the
benefit of the holders (including the Initial Purchasers) of the Bonds, the
Exchange Bonds (as defined herein) and the Private Exchange Bonds (as defined
herein) (collectively, the "Holders"), as follows:
1. Registered Exchange Offer. The Registrants shall use
their reasonable best efforts to (i) prepare and file
with the Commission a registration statement (the
"Exchange Offer Registration Statement") on an
appropriate form under the Securities Act with
respect to a proposed offer to the Holders of the
Bonds (the "Registered Exchange Offer") to issue
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and deliver to such Holders, in exchange for the
Bonds, a like aggregate principal amount of debt
securities of the Issuer guaranteed by the Subsidiary
Guarantor (the "Exchange Bonds") that are identical
in all material respects to the Bonds, except for the
transfer restrictions relating to the Bonds and the
rights relating to this Agreement, (ii) use their
reasonable best efforts to cause the Exchange Offer
Registration Statement to become effective under the
Securities Act no later than 270 days following the
date of original issuance of the Bonds (the "Issue
Date") and (iii) unless the Exchange Offer would not
be permitted by applicable law, or the applicable
interpretations of the Commission's staff, keep the
Exchange Offer Registration Statement effective for
not less than 30 days (or longer, if required by
applicable law) after the date on which notice of the
Registered Exchange Offer is mailed to the Holders
(such period being called the "Exchange Offer
Registration Period"). The Exchange Bonds will be
issued under the Indenture or an indenture (the
"Exchange Bonds Indenture") between the Registrants
and the Bond Trustee or such other bank or trust
company that is reasonably satisfactory to the
Initial Purchasers, as trustee (the "Exchange Bonds
Trustee").
Upon the effectiveness of the Exchange Offer Registration
Statement, the Registrants shall promptly commence the Registered Exchange
Offer, it being the objective of such Registered Exchange Offer to enable each
Holder electing to exchange Bonds for Exchange Bonds (assuming that such Holder
(a) is not an affiliate (as defined in Section 10(e) below) of any of the
Registrants or of an Exchanging Dealer (as defined herein) not complying with
the requirements of the next sentence, (b) is not an Initial Purchaser holding
Bonds that have, or that are reasonably likely to have, the status of an unsold
allotment in an initial distribution, (c) acquires the Exchange Bonds in the
ordinary course of such Holder's business and (d) has no arrangements or
understandings with any person to participate in the distribution of the
Exchange Bonds) and to trade such Exchange Bonds from and after their receipt
without any limitations or restrictions under the Securities Act and without
material restrictions under the securities laws of the several states of the
United States. The Registrants, the Initial Purchasers and each Exchanging
Dealer acknowledge that, pursuant to current interpretations by the Commission's
staff of Section 5 of the Securities Act, (i) each Holder that is a
broker-dealer electing to exchange Bonds, acquired for its own account as a
result of market-making activities or other trading activities, for Exchange
Bonds (an "Exchanging Dealer"), is required to deliver a prospectus containing
substantially the information set forth in Annex A hereto on the cover, in Annex
B hereto in the "Exchange Offer Procedures" section and the "Purpose of the
Exchange Offer" section and in Annex C hereto in the "Plan of Distribution"
section of such prospectus in connection with a sale of any such Exchange Bonds
received by such Exchanging Dealer pursuant to the Registered Exchange Offer and
(ii) if any Initial Purchaser elects to sell the Exchange Bonds acquired in
exchange for Bonds constituting any portion of an unsold allotment, it is
required to deliver a prospectus containing the information required by Items
507 and/or 508 of Regulation S-K under the Securities Act, as applicable, in
connection with such a sale.
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If, prior to the consummation of the Registered Exchange
Offer, any Holder holds any Bonds acquired by it that have, or that are
reasonably likely to be determined to have, the status of an unsold allotment in
an initial distribution, or any Holder is not entitled to participate in the
Registered Exchange Offer, the Issuer shall, upon the written request of any
such Holder, simultaneously with the delivery of the Exchange Bonds in the
Registered Exchange Offer, issue and deliver to any such Holder, in exchange for
the Bonds held by such Holder (the "Private Exchange"), a like aggregate
principal amount of debt securities of the Issuer guaranteed by the Subsidiary
Guarantor (the "Private Exchange Bonds") that are identical in all material
respects to the Exchange Bonds, except for the transfer restrictions relating to
such Private Exchange Bonds. The Private Exchange Bonds will be issued under the
same Indenture as the Exchange Bonds, and the Registrants shall use their
reasonable best efforts to cause the Private Exchange Bonds to bear the same
CUSIP number as the Exchange Bonds, upon resale of the Private Exchange Bonds
pursuant to a registration statement declared by the Commission.
In connection with the Registered Exchange Offer, the
Registrants shall:
(a) mail to each Holder a copy of the prospectus
forming part of the Exchange Offer Registration Statement, together
with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not
less than 30 days (or longer, if required by applicable law) after the
date on which notice of the Registered Exchange Offer is mailed to the
Holders;
(c) utilize the services of a depositary for the
Registered Exchange Offer with an address in the Borough of Manhattan,
The City of New York;
(d) permit Holders to withdraw tendered Bonds at any
time prior to the close of business, New York City time, on the last
business day on which the Registered Exchange Offer shall remain open;
and
(e) otherwise comply in all respects with all laws
that are applicable to the Registered Exchange Offer.
As soon as practicable after the close of the Registered
Exchange Offer and any Private Exchange, as the case may be, the Registrants
shall:
(a) accept for exchange all Bonds properly tendered
and not validly withdrawn pursuant to the Registered Exchange Offer and
the Private Exchange;
(b) deliver to the Bond Trustee for cancellation all
Bonds so accepted for exchange; and
(c) cause the Bond Trustee or the Exchange Bonds
Trustee, as the case may be, promptly to authenticate and deliver to
each Holder who has properly tendered,
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Exchange Bonds or Private Exchange Bonds, as the case may be, equal in
principal amount to the Bonds of such Holder so accepted for exchange.
The Registrants shall use their reasonable best efforts to
keep the Exchange Offer Registration Statement effective and to amend and
supplement the prospectus contained therein in order to permit such prospectus
to be used by all persons subject to the prospectus delivery requirements of the
Securities Act for such period of time as such persons must comply with such
requirements in order to resell the Exchange Bonds; provided that (i) in the
case where such prospectus and any amendment or supplement thereto must be
delivered by an Exchanging Dealer, such period shall end on the earlier of 90
days from the date of the consummation of the Exchange Offer and the date on
which all Exchanging Dealers have sold all Exchange Bonds held by them and (ii)
the Registrants shall make such prospectus and any amendment or supplement
thereto available to any broker-dealer for use in connection with any resale of
any Exchange Bonds for a period of not less than 90 days after the consummation
of the Registered Exchange Offer.
The Indenture or the Exchange Bonds Indenture, as the case may
be, shall provide that the Bonds, the Exchange Bonds and the Private Exchange
Bonds shall vote and consent together on all matters as one class and that none
of the Bonds, the Exchange Bonds or the Private Exchange Bonds will have the
right to vote or consent as a separate class on any matter.
Interest on each Exchange Bond and Private Exchange Bond
issued pursuant to the Registered Exchange Offer and in the Private Exchange
will accrue from the last interest payment date on which interest was paid on
the Bonds surrendered in exchange therefor or, if no interest has been paid on
the Bonds, from the Issue Date.
Each Holder participating in the Registered Exchange Offer
shall be required to represent to the Issuer that at the time of the
consummation of the Registered Exchange Offer (i) any Exchange Bonds received
by such Holder will be acquired in the ordinary course of business, (ii) such
Holder will have no arrangements or understanding with any person to
participate in the distribution of the Bonds or the Exchange Bonds within the
meaning of the Securities Act and (iii) such Holder is not an affiliate of the
Registrants or, if it is such an affiliate, such Holder will comply with the
registration and prospectus delivery requirements of the Securities Act to the
extent applicable.
Notwithstanding any other provisions hereof, the Registrants
will ensure that (i) any Exchange Offer Registration Statement and any
amendment thereto and any prospectus forming part thereof and any supplement
thereto complies in all material respects with the Securities Act and the rules
and regulations of the Commission thereunder, (ii) any Exchange Offer
Registration Statement and any amendment thereto does not, when it becomes
effective, contain an 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 and (iii) any prospectus forming part of any Exchange
Offer Registration Statement, and any supplement to such prospectus, does not,
as of the consummation of the Registered Exchange Offer, include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the
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statements therein, in the light of the circumstances under which they were
made, not misleading.
2. Shelf Registration. If (i) because of any change in
law or applicable interpretations thereof by the
Commission's staff the Registrants are not permitted
to effect the Registered Exchange Offer as
contemplated by Section 1 hereof, or (ii) any Bonds
validly tendered pursuant to the Registered Exchange
Offer are not exchanged for Exchange Bonds within 315
days after the Issue Date (unless the Exchange Offer
is still in process), or (iii) any Initial Purchaser
so requests with respect to Bonds or Private Exchange
Bonds not eligible to be exchanged for Exchange Bonds
in the Registered Exchange Offer and held by it
following the consummation of the Registered Exchange
Offer, or (iv) any applicable law or interpretations
do not permit any Holder (other than an Initial
Purchaser) to participate in the Registered Exchange
Offer or (v) any Holder (other than an Initial
Purchaser) that participates in the Registered
Exchange Offer does not receive freely transferable
Exchange Bonds in exchange for tendered Bonds, or
(vi) the Issuer so elects, then the following
provisions shall apply:
(a) The Registrants shall use their reasonable
best efforts to file as promptly as
practicable with the Commission, and
thereafter shall use their reasonable best
efforts to cause to be declared effective, a
shelf registration statement on an
appropriate form under the Securities Act
relating to the offer and sale of the
Transfer Restricted Bonds (as defined below)
by the Holders thereof from time to time in
accordance with the methods of distribution
set forth in such registration statement
(hereafter, a "Shelf Registration Statement"
and, together with any Exchange Offer
Registration Statement, a "Registration
Statement").
(b) The Registrants shall use their reasonable
best efforts to keep the Shelf Registration
Statement continuously effective in order to
permit the prospectus forming part thereof
to be used by Holders of Transfer Restricted
Bonds for a period ending on the earlier of
(i) two years from the Issue Date or such
shorter period that will terminate when all
the Transfer Restricted Bonds covered by the
Shelf Registration Statement have been sold
pursuant thereto and (ii) the date on which
the Bonds become eligible for resale without
volume restrictions pursuant to Rule 144
under the Securities Act (in any such case,
such period being called the "Shelf
Registration Period"); provided that with
respect to Exchange Bonds received by an
Initial Purchaser in exchange for Bonds
constituting any portion of an unsold
allotment, the Issuer may, if permitted by
current interpretations by the Commission's
staff, file a post-
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effective amendment to the Exchange Offer
Registration Statement containing the
information required by Regulation S-K Items
507 and/or 508, as applicable, in
satisfaction of its obligations under this
Section 2 with respect thereto, and any such
Exchange Offer Registration Statement, as so
amended shall be referred to herein as, and
governed by the provisions herein applicable
to, a Shelf Registration Statement. The
Registrants shall be deemed not to have used
their reasonable best efforts to keep the
Shelf Registration Statement effective
during the requisite period if they
voluntarily take any action that would
result in Holders of Transfer Restricted
Bonds covered thereby not being able to
offer and sell such Transfer Restricted
Bonds during that period, unless such action
is (i) required by applicable law or (ii)
such action is taken by the Issuer in good
faith and for valid business reasons,
including the acquisition or divestiture of
assets.
(c) Notwithstanding any other provisions hereof,
the Registrants will ensure that (i) any
Shelf Registration Statement and any
amendment thereto and any prospectus forming
part thereof and any supplement thereto
complies in all material respects with the
Securities Act and the rules and regulations
of the Commission thereunder, (ii) any Shelf
Registration Statement and any amendment
thereto (in either case, other than with
respect to information included therein in
reliance upon or in conformity with written
information furnished to the Registrants by
or on behalf of any Holder specifically for
use therein (the "Holders' Information"))
does not, when it becomes effective, contain
an 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 and (iii)
any prospectus forming part of any Shelf
Registration Statement, and any supplement
to such prospectus (in either case, other
than with respect to Holders' Information),
does not include an untrue statement of a
material fact or omit 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.
3. Liquidated Damages. (a) The parties hereto agree that
the Holders of Transfer Restricted Bonds will suffer
damages if the Registrants fail to fulfill their
obligations under Section 1 or Section 2, as
applicable, and that it would not be feasible to
ascertain the extent of such damages. Accordingly, if
(i) the Registered Exchange Offer is not consummated
on or prior to 315 days (or if the 315th day is not a
business day, the next business day following the
315th day) after the Issue Date or (ii) the Exchange
Offer Registration Statement or the Shelf
Registration
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Statement, as the case may be, is not declared
effective within 270 days (or, if the 270th day is
not a business day, the next business day following
the 270th day) after the Issue Date (or in the case
of a Shelf Registration Statement required to be
filed in response to a change in law or the
applicable interpretations of the Commission's staff,
if later, within 45 days (or if the 45th day is not a
business day, the next business day following the
45th day) after publication of the change in law or
interpretation), (iii) the Shelf Registration
Statement is filed and declared effective within 270
days after the Issue Date (or in the case of a Shelf
Registration Statement required to be filed in
response to a change in law or the applicable
interpretations of Commission's staff, if later,
within 45 days after publication of the change in law
or interpretation) but shall thereafter cease to be
effective or usable (at any time that the Registrants
are obligated to maintain the effectiveness thereof)
without being succeeded within 45 days by an
additional Registration Statement filed and declared
effective (each such event referred to in clauses (i)
through (iii), a "Registration Default"), the
Registrants will be obligated to pay liquidated
damages to each Holder of Transfer Restricted Bonds,
during the period of one or more such Registration
Defaults, in the form of additional interest (in
addition to the interest otherwise payable with
respect to the Transfer Restricted Bonds) at a rate
of one half of one percent (0.50%) per annum, which
additional interest shall be payable by the
Registrants to each Holder of Transfer Restricted
Bonds at the time, in the manner and subject to the
same terms and conditions set forth in the Indenture
and the Bonds, until (i) the Exchange Offer
Registration Statement is declared effective and/or
the Registered Exchange Offer is consummated, (ii)
the Shelf Registration Statement is declared
effective or (iii) the Shelf Registration Statement
again becomes effective, as the case may be.
Following the cure of all Registration Defaults, the
accrual of liquidated damages will cease. As used
herein, the term "Transfer Restricted Bonds" means
(i) each Bond until the date on which such Bond has
been exchanged for a freely transferable Exchange
Bond in the Registered Exchange Offer, (ii) each Bond
or Private Exchange Bond until the date on which it
has been effectively registered under the Securities
Act and disposed of in accordance with the Shelf
Registration Statement or (iii) each Bond or Private
Exchange Bond until the date on which it is
distributed to the public pursuant to Rule 144 under
the Securities Act or is saleable pursuant to Rule
144(k) under the Securities Act. Notwithstanding
anything to the contrary in this Section 3(a), the
Registrants shall not be required to pay liquidated
damages to a Holder of Transfer Restricted Bonds if
such Holder failed to comply with its obligations to
make the representations set forth in the second to
last paragraph of Section 1, failed to provide the
information required to be provided by it, if any,
pursuant to Section 4(n) or failed to properly tender
Bonds for Exchange Bonds in the Exchange Offer.
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(b) The Registrants shall notify the Bond Trustee and the
Paying Agent under the Indenture immediately upon the
happening of each and every Registration Default. The
Registrants shall pay the liquidated damages due on
the Transfer Restricted Bonds by depositing with the
Paying Agent (which may not be the Issuer for these
purposes), in trust, for the benefit of the Holders
thereof, prior to 10:00 a.m., New York City time, on
the next interest payment date specified by the
Indenture and the Bonds, sums sufficient to pay the
liquidated damages then due. The liquidated damages
due shall be payable on each interest payment date
specified by the Indenture and the Bonds to the
record holder entitled to receive the interest
payment to be made on such date. Each obligation to
pay liquidated damages shall be deemed to accrue from
and including the date of the applicable Registration
Default.
(c) The parties hereto agree that the liquidated damages
provided for in this Section 3 constitute a
reasonable estimate of and are intended to constitute
the sole damages that will be suffered by Holders of
Transfer Restricted Bonds by reason of the failure of
(i) the Shelf Registration Statement to become or
remain effective or (ii) the Exchange Offer
Registration Statement to be declared effective
and/or the Registered Exchange Offer to be
consummated, in each case to the extent required by
this Agreement.
4. Registration Procedures. In connection with any Registration
Statement, the following provisions shall apply:
(a) The Registrants shall (i) furnish to each Initial
Purchaser, prior to the filing thereof with the
Commission, a copy of the Registration Statement and
each amendment thereof and each supplement, if any,
to the prospectus included therein and shall use
their reasonable best efforts to reflect in each such
document, when so filed with the Commission, such
comments as any Initial Purchaser may reasonably
propose; (ii) include information substantially
similar to that set forth in Annex A hereto on the
cover, in Annex B hereto in the "Exchange Offer
Procedures" section and the "Purpose of the Exchange
Offer" section and in Annex C hereto in the "Plan of
Distribution" section of the prospectus forming a
part of the Exchange Offer Registration Statement,
and include information substantially similar to that
set forth in Annex D hereto in the Letter of
Transmittal delivered pursuant to the Registered
Exchange Offer; and (iii) if requested by any Initial
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Purchaser, include the information required by Items
507 or 508 of Regulation S-K, as applicable, in the
prospectus forming a part of the Exchange Offer
Registration Statement.
(b) The Registrants shall advise each Initial Purchaser,
each Exchanging Dealer which has identified itself to
the Issuer and provided the Issuer a facsimile number
or address for notices and the Holders (if applicable
in the case of a Shelf Registration Statement) and,
if requested by any such person, confirm such advice
in writing (which, if after the effectiveness of the
Registration Statement, advice pursuant to clauses
(ii)(v) hereof shall be accompanied by an instruction
to suspend the use of the prospectus until the
requisite changes have been made):
(i) when any Registration Statement and any
amendment thereto has been filed with the
Commission and when such Registration
Statement or any post-effective amendment
thereto has become effective;
(ii) of any request by the Commission for
amendments or supplements to any
Registration Statement or the prospectus
included therein or for additional
information;
(iii) of the issuance by the Commission of any
stop order suspending the effectiveness of
any Registration Statement or the initiation
of any proceedings for that purpose;
(iv) of the receipt by the any of the Registrants
of any notification with respect to the
suspension of the qualification of the
Bonds, the Exchange Bonds or the Private
Exchange Bonds which are registered pursuant
to such Registration Statement for sale in
any jurisdiction or the initiation or
threatening of any proceeding for such
purpose; and
(v) of the happening of any event that requires
the making of any changes in any
Registration Statement or the prospectus
included therein in order that the
statements therein, in the case of the
prospectus, in light of the circumstances
under which they were made, are not
misleading and do not omit to state a
material fact required to be stated therein
or necessary to make the statements therein,
in the case of the prospectus, in light of
the circumstances under which they were
made, not misleading.
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(c) Subject to the last sentence of Section 2(b), the
Registrants will use its reasonable best efforts to
obtain the withdrawal at the earliest possible time
of any order suspending the effectiveness of any
Registration Statement.
(d) The Registrants will furnish to each Holder of
Transfer Restricted Bonds included within the
coverage of any Shelf Registration Statement, without
charge, at least one conformed copy of such Shelf
Registration Statement and any posteffective
amendment thereto, including financial statements and
schedules and, if any such Holder so requests in
writing, all exhibits thereto (including those, if
any, incorporated by reference).
(e) The Registrants will, during the Shelf Registration
Period, promptly deliver to each Holder of Transfer
Restricted Bonds included within the coverage of any
Shelf Registration Statement, without charge, as many
copies of the prospectus (including each preliminary
prospectus) included in such Shelf Registration
Statement and any amendment or supplement thereto as
such Holder may reasonably request; and the
Registrants consent to the use (in accordance with
applicable law) of such prospectus or any amendment
or supplement thereto by each of the selling Holders
of Transfer Restricted Bonds in connection with the
offer and sale of the Transfer Restricted Bonds
covered by such prospectus or any amendment or
supplement thereto.
(f) The Registrants will furnish to each Initial
Purchaser and each Exchanging Dealer, without charge,
at least one conformed copy of the Exchange Offer
Registration Statement and any posteffective
amendment thereto, including financial statements and
schedules and, if any Initial Purchaser or Exchanging
Dealer so requests in writing, all exhibits thereto
(including those, if any, incorporated by reference).
(g) The Registrants will, during the Exchange Offer
Registration Period or the Shelf Registration Period,
as applicable, promptly deliver to each Initial
Purchaser, each Exchanging Dealer and such other
persons that are required by law to deliver a
prospectus following the Registered Exchange Offer,
or during the Shelf Registration Period, as
applicable, without charge, as many copies of the
final prospectus included in the Exchange Offer
Registration Statement or the Shelf Registration
Statement and any amendment or supplement thereto as
such Initial Purchaser, Exchanging Dealer or other
persons may reasonably request; and the Registrants
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consent to the use (in accordance with applicable
law) of such prospectus or any amendment or
supplement thereto by any such Initial Purchaser,
Exchanging Dealer or other persons, as applicable, as
aforesaid.
(h) Prior to the effective date of any Registration
Statement, the Registrants will use their reasonable
best efforts to cooperate with the Holders of Bonds,
Exchange Bonds or Private Exchange Bonds included
therein and their respective counsel in connection
with the registration or qualification of, such
Bonds, Exchange Bonds or Private Exchange Bonds for
offer and sale under the securities or blue sky laws
of such jurisdictions as any such Holder reasonably
requests in writing and do any and all other acts or
things necessary to enable the offer and sale in such
jurisdictions of the Bonds, Exchange Bonds or Private
Exchange Bonds covered by such Registration
Statement; provided that the Registrants will not be
required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to
take any action which would subject it to general
service of process or to taxation in any such
jurisdiction where it is not then so subject.
(i) Unless the applicable securities shall be in
book-entry only form, the Registrants will cooperate
with the Holders of Bonds, Exchange Bonds or Private
Exchange Bonds to facilitate the timely preparation
and delivery of certificates representing Bonds,
Exchange Bonds or Private Exchange Bonds issued or
sold pursuant to any Registration Statement free of
any restrictive legends and in such denominations and
registered in such names as the Holders thereof may
request in writing prior to sales of Bonds, Exchange
Bonds or Private Exchange Bonds pursuant to such
Registration Statement.
(j) Subject to the last sentence of Section 2(b), after
effectiveness of a Registration Statement, if any
event contemplated by Section 4(b)(ii) through (v)
occurs during the period for which the Registrants
are required to maintain the effectiveness of such
Registration Statement, the Registrants will promptly
prepare and file with the Commission a posteffective
amendment to the Registration Statement or a
supplement to the related prospectus or file any
other required document so that, as thereafter
delivered to purchasers of the Bonds, Exchange Bonds
or Private Exchange Bonds from a Holder, the
prospectus will not include an untrue statement of a
material fact or omit 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.
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(k) Not later than the effective date of the applicable
Registration Statement, the Registrants will provide
a CUSIP number for the Bonds, the Exchange Bonds and
the Private Exchange Bonds, as the case may be, and
provide the applicable trustee with printed
certificates for the Bonds, the Exchange Bonds or the
Private Exchange Bonds, as the case may be, in a form
eligible for deposit with The Depository Trust
Issuer.
(l) The Issuer will comply with all applicable rules and
regulations of the Commission and will make generally
available to its security holders as soon as
practicable after the effective date of the
applicable Registration Statement an earning
statement satisfying the provisions of Section 11(a)
of the Securities Act.
(m) The Registrants will cause the Indenture or the
Exchange Bonds Indenture, as applicable, to be
qualified under the Trust Indenture Act as required
by applicable law in a timely manner.
(n) The Issuer may require each Holder of Transfer
Restricted Bonds to be registered pursuant to any
Shelf Registration Statement to furnish to the Issuer
such information (including supplements thereto)
concerning the Holder and the distribution of such
Transfer Restricted Bonds as the Registrants may from
time to time reasonably require for inclusion in such
Shelf Registration Statement, and the Issuer may
exclude from such registration the Transfer
Restricted Bonds of any Holder that fails to furnish
such information (including supplements thereto)
within a reasonable time after receiving such
request.
(o) In the case of a Shelf Registration Statement, each
Holder of Transfer Restricted Bonds to be registered
pursuant thereto agrees that, upon receipt of any
notice from the Registrants pursuant to Section
4(b)(ii) through (v), such Holder will discontinue
disposition of such Transfer Restricted Bonds until
such Holder's receipt of copies of the supplemental
or amended prospectus contemplated by Section 4(j) or
until advised in writing (the "Advice") by the Issuer
that the use of the applicable prospectus may be
resumed. If the Registrants shall give any notice
under Section 4(b)(ii) through (v) during the period
that the Registrants are required to maintain an
effective Registration Statement (the "Effectiveness
Period"), such Effectiveness Period shall be extended
by the number of days during such period from and
including the date of the giving of such notice to
and including the date when each seller of Transfer
Restricted Bonds covered by
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such Registration Statement shall have received (x)
the copies of the supplemental or amended prospectus
contemplated by Section 4(j) (if an amended or
supplemental prospectus is required) or (y) the
Advice (if no amended or supplemental prospectus is
required).
(p) In the case of a Shelf Registration Statement, the
Registrants shall enter into such customary
agreements (including, if requested, an underwriting
agreement in customary form) and take all such other
action, if any, as Holders of a majority in aggregate
principal amount of the Bonds, Exchange Bonds and
Private Exchange Bonds being sold or the managing
underwriters (if any) shall reasonably request in
order to facilitate any disposition of Bonds,
Exchange Bonds or Private Exchange Bonds pursuant to
such Shelf Registration Statement.
(q) In the case of a Shelf Registration Statement, the
Registrants shall (i) make reasonably available for
inspection by a representative of, and Special
Counsel (as defined below) acting for, Holders of a
majority in aggregate principal amount of the Bonds,
Exchange Bonds and Private Exchange Bonds being sold
pursuant to such Shelf Registration Statement and any
underwriter participating in any disposition of
Bonds, Exchange Bonds or Private Exchange Bonds
pursuant to such Shelf Registration Statement, all
relevant financial and other records, pertinent
corporate documents and properties of the Registrants
and their subsidiaries and (ii) use their reasonable
best efforts to have their officers, directors,
employees, accountants and counsel supply all
relevant information reasonably requested by such
representative, Special Counsel or any such
underwriter (an "Inspector") in connection with such
Shelf Registration Statement; provided, however, that
any information that is designated in writing by the
Issuer, in good faith, as confidential at the time of
delivery of such information shall be kept
confidential by the Holders or any such Inspector.
(r) In the case of a Shelf Registration Statement, the
Registrants shall, if requested by Holders of a
majority in aggregate principal amount of the Bonds,
Exchange Bonds and Private Exchange Bonds being sold
pursuant to such Shelf Registration Statement, their
Special Counsel or the managing underwriters (if any)
in connection with such Shelf Registration Statement,
use their reasonable best efforts to cause (i) their
counsel to deliver an opinion relating to the Shelf
Registration Statement and the Bonds, Exchange Bonds
or Private Exchange Bonds being registered, as
applicable, in customary form, (ii) their officers to
execute and deliver all customary documents and
certificates reasonably
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requested by Holders of a majority in aggregate
principal amount of the Bonds, Exchange Bonds
and Private Exchange Bonds being sold pursuant
to such Shelf Registration Statement, their
Special Counsel or the managing underwriters
(if any) and (iii) their independent public
accountants to provide a comfort letter or
letters in customary form, subject to receipt
of appropriate documentation as contemplated,
and only if permitted, by Statement of Auditing
Standards No. 72.
5. Registration Expenses. The Registrants will bear all
expenses incurred in connection with the performance
of their obligations under Sections 1, 2, 3 and 4 and
the Registrants will reimburse the Initial Purchasers
and the Holders for the reasonable fees and
disbursements of one firm of attorneys chosen by the
Holders of a majority in aggregate principal amount
of the Bonds, the Exchange Bonds and the Private
Exchange Bonds to be sold pursuant to a Shelf
Registration Statement (the "Special Counsel") acting
for the Initial Purchasers or Holders in connection
therewith.
6. Indemnification. (a) In the event of a Shelf
Registration Statement or in connection with any
prospectus delivery pursuant to an Exchange Offer
Registration Statement by an Initial Purchaser or
Exchanging Dealer, as applicable, the Registrants
shall indemnify and hold harmless each Holder
(including, without limitation, any such Initial
Purchaser or Exchanging Dealer), its affiliates,
their respective officers, directors, employees,
representatives and agents, and each person, if any,
who controls such Holder within the meaning of the
Securities Act or the Exchange Act (collectively
referred to for purposes of this Section 6 and
Section 7 as a Holder) from and against any loss,
claim, damage or liability, joint or several, or any
action in respect thereof (including, without
limitation, any loss, claim, damage, liability or
action relating to purchases and sales of Bonds,
Exchange Bonds or Private Exchange Bonds), to which
that Holder may become subject, whether commenced or
threatened, under the Securities Act, the Exchange
Act, any other federal or state statutory law or
regulation, at common law or otherwise, insofar as
such loss, claim, damage, liability or action arises
out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained
in any such Registration Statement or any prospectus
forming part thereof or in any amendment or
supplement thereto or (ii) the omission or alleged
omission to state therein a material fact required to
be stated therein or necessary in order to make the
statements therein, in the light of the circumstances
under which they were made, not misleading, and shall
reimburse each Holder promptly upon demand for any
legal or other expenses reasonably incurred by that
Holder in connection with investigating or defending
or preparing to defend against or appearing as a
third party witness in connection with any such loss,
claim, damage,
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liability or action as such expenses are incurred;
provided, however, that the Registrants shall not be
liable in any such case to the extent that any such
loss, claim, damage, liability or action arises out
of, or is based upon, an untrue statement or alleged
untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in
conformity with any Holders' Information; and
provided, further, that with respect to any such
untrue statement in or omission from any related
prospectus, the indemnity agreement contained in this
Section 6(a) shall not inure to the benefit of any
Holder from whom the person asserting any such loss,
claim, damage, liability or action received Bonds,
Exchange Bonds or Private Exchange Bonds to the
extent that such loss, claim, damage, liability or
action of or with respect to such Holder results from
the fact that both (A) a copy of the final prospectus
or any amendment or supplement thereto was not sent
or given to such person at or prior to the written
confirmation of the sale of such Bonds, Exchange
Bonds or Private Exchange Bonds to such person and
(B) the untrue statement in or omission from the
related prospectus was corrected in such final
prospectus as so amended or supplemented unless, in
either case, such failure to deliver such final
prospectus as so amended of supplemented was a result
of non-compliance by the Registrants with Section
4(e) or 4(g).
(b) In the event of a Shelf Registration
Statement or in connection with any
prospectus delivered pursuant to an Exchange
Offer Registration Statement by an Initial
Purchaser of an Exchanging Dealer, each
Holder or such Initial Purchaser or
Exchanging Dealer shall indemnify and hold
harmless the Registrants, their affiliates,
their respective officers, directors,
employees, representatives and agents, and
each person, if any, who controls the
Registrants within the meaning of the
Securities Act or the Exchange Act
(collectively referred to for purposes of
this Section 6(b) and Section 7 as the
Issuer), from and against any loss, claim,
damage or liability, joint or several, or
any action in respect thereof, to which the
Registrants may become subject, whether
commenced or threatened, under the
Securities Act, the Exchange Act, any other
federal or state statutory law or
regulation, at common law or otherwise,
insofar as such loss, claim, damage,
liability or action arises out of, or is
based upon, (i) any untrue statement or
alleged untrue statement of a material fact
contained in any such Registration Statement
or any prospectus forming part thereof or in
any amendment or supplement thereto or (ii)
the omission or alleged omission to state
therein a material fact required to be
stated therein or necessary in order to make
the statements therein, in the light of the
circumstances under which they were made,
not misleading, but in each case only to the
extent
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that the untrue statement or alleged untrue
statement or omission or alleged omission
was made in reliance upon and in conformity
with, in the case of any Holder, any
Holders' Information furnished to the
Registrants by such Holder and, in the case
of an Initial Purchaser or Exchanging
Dealer, any information furnished to the
Registrants by any Initial Purchaser or
Exchanging Dealer for use in the Exchange
Offer Registration Statement, and shall
reimburse the Registrants for any legal or
other expenses reasonably incurred by the
Registrants in connection with investigating
or defending or preparing to defend against
or appearing as a third party witness in
connection with any such loss, claim,
damage, liability or action as such expenses
are incurred; provided, however, that no
such Holder shall be liable for any
indemnity claims hereunder in excess of the
amount of net proceeds received by such
Holder from the sale of Bonds, Exchange
Bonds or Private Exchange Bonds pursuant to
such Shelf Registration Statement.
(c) Promptly after receipt by an indemnified
party under this Section 6 of notice of any
claim or the commencement of any action, the
indemnified party shall, if a claim in
respect thereof is to be made against the
indemnifying party pursuant to Section 6(a)
or 6(b), notify the indemnifying party in
writing of the claim or the commencement of
that action; provided, however, that the
failure to notify the indemnifying party
shall not relieve it from any liability
which it may have under this Section 6
except to the extent that it has been
materially prejudiced (through the
forfeiture of substantive rights or
defenses) by such failure; and provided,
further, that the failure to notify the
indemnifying party shall not relieve it from
any liability which it may have to an
indemnified party otherwise than under this
Section 6. If any such claim or action shall
be brought against an indemnified party, and
it shall notify the indemnifying party
thereof, the indemnifying party shall be
entitled to participate therein and, to the
extent that it wishes, jointly with any
other similarly notified indemnifying party,
to assume the defense thereof with counsel
reasonably satisfactory to the indemnified
party. After notice from the indemnifying
party to the indemnified party of its
election to assume the defense of such claim
or action, the indemnifying party shall not
be liable to the indemnified party under
this Section 6 for any legal or other
expenses subsequently incurred by the
indemnified party in connection with the
defense thereof other than the reasonable
costs of investigation; provided, however,
that an indemnified party shall have the
right to employ its own counsel in any such
action, but the fees, expenses and other
charges of such counsel for the indemnified
party will be at the expense of such
indemnified party
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unless (1) the employment of counsel by the
indemnified party has been authorized in
writing by the indemnifying party, (2) the
indemnified party has reasonably concluded
(based upon advice of counsel to the
indemnified party) that there may be legal
defenses available to it or other
indemnified parties that are different from
or in addition to those available to the
indemnifying party, (3) a conflict or
potential conflict exists (based upon advice
of counsel to the indemnified party) between
the indemnified party and the indemnifying
party (in which case the indemnifying party
will not have the right to direct the
defense of such action on behalf of the
indemnified party) or (4) the indemnifying
party has not in fact employed counsel
reasonably satisfactory to the indemnified
party to assume the defense of such action
within a reasonable time after receiving
notice of the commencement of the action, in
each of which cases the reasonable fees,
disbursements and other charges of counsel
will be at the expense of the indemnifying
party or parties. It is understood that the
indemnifying party or parties shall not, in
connection with any proceeding or related
proceedings in the same jurisdiction, be
liable for the reasonable fees,
disbursements and other charges of more than
one separate firm of attorneys (in addition
to any local counsel) at any one time for
all such indemnified party or parties. Each
indemnified party, as a condition of the
indemnity agreements contained in Sections
6(a) and 6(b), shall use all reasonable
efforts to cooperate with the indemnifying
party in the defense of any such action or
claim. No indemnifying party shall be liable
for any settlement of any such action
effected without its written consent, but if
settled with its written consent or if there
be a final judgment for the plaintiff in any
such action, the indemnifying party agrees
to indemnify and hold harmless any
indemnified party from and against any loss
or liability by reason of such settlement or
judgment. No indemnifying party shall,
without the prior written consent of the
indemnified party (which consent shall not
be unreasonably withheld), 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.
7. Contribution. If the indemnification provided for in
Section 6 is unavailable or insufficient to hold
harmless an indemnified party under Section 6(a) or
6(b), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to
the amount paid or payable by such indemnified party
as a result of such loss, claim, damage
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or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect
the relative benefits received by the Registrants
from the offering and sale of the Bonds, on the one
hand, and a Holder, Initial Purchaser or Exchange
Dealer with respect to the sale by such Holder,
Initial Purchaser or Exchange Dealer of Bonds,
Exchange Bonds or Private Exchange Bonds, on the
other, 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 Registrants on the one
hand and such Holder, Initial Purchaser or Exchange
Dealer on the other with respect to the statements or
omissions that resulted in such loss, claim, damage
or liability, or action in respect thereof, as well
as any other relevant equitable considerations. The
relative benefits received by the Registrants on the
one hand and a Holder on the other with respect to
such offering and such sale shall be deemed to be in
the same proportion as the total net proceeds from
the offering of the Bonds (before deducting expenses)
received by or on behalf of the Registrants, on the
one hand, bear to the total proceeds received by such
Holder, Initial Purchaser or Exchange Dealer with
respect to its sale of Bonds, Exchange Bonds or
Private Exchange Bonds on the other. The relative
fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue
statement of a material fact or the omission or
alleged omission to state a material fact relates to
the Registrants or information supplied by the
Registrants on the one hand or to any Holders'
Information supplied by such Holder or information
furnished by such Initial Purchaser or Exchange
Dealer, on the other, the intent of the parties and
their relative knowledge, access to information and
opportunity to correct or prevent such untrue
statement or omission. The parties hereto agree that
it would not be just and equitable if contributions
pursuant to this Section 7 were to be determined by
pro rata allocation or by any other method of
allocation that does not take into account the
equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this
Section 7 shall be deemed to include, for purposes of
this Section 7, subject to the limitations set forth
above, any legal or other expenses reasonably
incurred by such indemnified party in connection with
investigating or defending or preparing to defend or
appearing as a third party witness in connection with
any such action or claim. Notwithstanding the
provisions of this Section 7, an indemnifying party
that is a Holder of Bonds, Exchange Bonds or Private
Exchange Bonds shall not be required to contribute
any amount in excess of the amount by which the total
price at which the Bonds, Exchange Bonds or Private
Exchange Bonds sold by such indemnifying party to any
purchaser exceeds the amount of any damages which
such indemnifying party has otherwise paid or become
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liable to pay by reason of any 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.
8. Rules 144 and 144A. The Registrants shall use their
reasonable best efforts to file the reports required
to be filed by it under the Securities Act and the
Exchange Act in a timely manner and, if at any time
the Registrants are not required to file such
reports, they will, upon the written request of any
Holder of Transfer Restricted Bonds, make available
to such Holder information that is necessary to
permit sales of such Holder's securities pursuant to
Rules 144 and 144A. The Registrants covenant that
they will use their reasonable best efforts to take
such further action as any Holder of Transfer
Restricted Bonds may reasonably request, all to the
extent required from time to time to enable such
Holder to sell Transfer Restricted Bonds without
registration under the Securities Act within the
limitation of the exemptions provided by Rules 144
and 144A (including, without limitation, the
requirements of Rule 144A(d)(4)). Upon the written
request of any Holder of Transfer Restricted Bonds,
the Registrants shall deliver to such Holder a
written statement as to whether it has complied with
such requirements. Notwithstanding the foregoing,
nothing in this Section 8 shall be deemed to require
the Registrants to register any of their securities
pursuant to the Exchange Act.
9. Underwritten Registrations. If any of the Transfer
Restricted Bonds covered by any Shelf Registration
Statement are to be sold in an underwritten offering,
the investment banker or investment bankers and
manager or managers that will administer the offering
will be selected by the Holders of a majority in
aggregate principal amount of such Transfer
Restricted Bonds included in such offering, subject
to the consent of the Registrants, and such Holders
shall be responsible for all underwriting commissions
and discounts in connection therewith.
No person may participate in any underwritten registration
hereunder unless such person (i) agrees to sell such person's Transfer
Restricted Bonds on the basis reasonably provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
10. Miscellaneous. (a) Amendments and Waivers. The
provisions of this Agreement may not be amended,
modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be
given, unless the Registrants have obtained the
written consent of Holders of a
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majority in aggregate principal amount of the Bonds,
the Exchange Bonds and the Private Exchange Bonds,
taken as a single class. Notwithstanding the
foregoing, a waiver or consent to depart from the
provisions hereof with respect to a matter that
relates exclusively to the rights of Holders whose
Bonds, Exchange Bonds or Private Exchange Bonds are
being sold pursuant to a Registration Statement or to
Holders of Transfer Restricted Bonds and that does
not directly or indirectly affect the rights of other
Holders may be given by Holders of a majority in
aggregate principal amount of the Bonds, the Exchange
Bonds and the Private Exchange Bonds being sold by
such Holders pursuant to such Registration Statement
or Holders of Transfer Restricted Bonds, as the case
may be.
(b) Notices. All notices and other
communications provided for or permitted
hereunder shall be made in writing by hand
delivery, first class mail, telecopier or
air courier guaranteeing next-day delivery:
(1) if to a Holder, at the most current
address given by such Holder to the
Registrants in accordance with the
provisions of this Section 10(b),
which address initially is, with
respect to each Holder, the address
of such Holder maintained by the
Registrar under the Indenture, with
a copy in like manner to Chase
Securities Inc. and Lehman Brothers
Inc.;
(2) if to an Initial Purchaser,
initially at its address set forth
in the Purchase Agreement; and
(3) if to the Registrants, initially at
the addresses of each Registrant
set forth in the Purchase
Agreement.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; one business
day after being delivered to a next day air courier; five business days after
being deposited in the mail; and when receipt is acknowledged by the
recipient's telecopier machine, if sent by telecopier.
(c) Successors And Assigns. This Agreement shall
be binding upon the Registrants and its
successors and assigns.
(d) Counterparts. This Agreement may be
executed in any number of counterparts
(which may be delivered in original form or
by telecopier) and by the parties hereto in
separate counterparts, each of which when so
executed shall be deemed to be an original
and all of which taken together shall
constitute one and the same
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agreement.
(e) Definition of Terms. For purposes of this
Agreement, (a) the term "business day" means
any day on which the New York Stock
Exchange, Inc. is open for trading, (b) the
term "subsidiary" has the meaning set forth
in Rule 405 under the Securities Act and (c)
except where otherwise expressly provided,
the term "affiliate" has the meaning set
forth in Rule 405 under the Securities Act.
(f) Headings. The headings in this Agreement are
for convenience of reference only and shall
not limit or otherwise affect the meaning
hereof.
(g) Governing Law. This Agreement shall be
governed by and construed in accordance with
the laws of the State of New York, without
reference to the conflict of law rules
thereof.
(h) Remedies. In the event of a breach by any of
the Registrants or by any Holder of any of
their obligations under this Agreement, each
Holder or each of the Registrants, as the
case may be, in addition to being entitled
to exercise all rights granted by law,
including recovery of damages (other than
the recovery of damages for a breach by the
Registrants of its obligations under
Sections 1 or 2 hereof for which liquidated
damages have been paid pursuant to Section 3
hereof), will be entitled to specific
performance of its rights under this
Agreement. Each Registrant and each Holder
agrees that monetary damages would not be
adequate compensation for any loss incurred
by reason of a breach by it of any of the
provisions of this Agreement and hereby
further agree that, in the event of any
action for specific performance in respect
of such breach, it shall waive the defense
that a remedy at law would be adequate.
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(i) No Inconsistent Agreements. Each Registrant
represents, warrants and agrees that (i) it
has not entered into, shall not, on or after
the date of this Agreement, enter into any
agreement that conflicts with the provisions
hereof, (ii) it has not previously entered
into any agreement which remains in effect
granting any registration rights with
respect to any of its debt securities to any
person and (iii) without limiting the
generality of the foregoing, without the
written consent of the Holders of a majority
in aggregate principal amount of the then
outstanding Transfer Restricted Bonds, it
shall not grant to any person the right to
request the Registrants to register any debt
securities of the Issuer under the
Securities Act unless the rights so granted
are not in conflict or inconsistent with the
provisions of this Agreement.
(j) Severability. The remedies provided herein
are cumulative and not exclusive of any
remedies provided by law. If any term,
provision, covenant or restriction of this
Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or
unenforceable, the remainder of the terms,
provisions, covenants and restrictions set
forth herein shall remain in full force and
effect and shall in no way be affected,
impaired or invalidated, and the parties
hereto shall use their reasonable best
efforts to find and employ an alternative
means to achieve the same or substantially
the same result as that contemplated by such
term, provision, covenant or restriction. It
is hereby stipulated and declared to be the
intention of the parties that they would
have executed the remaining terms,
provisions, covenants and restrictions
without including any of such that may be
hereafter declared invalid, illegal, void or
unenforceable.
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Please confirm that the foregoing correctly sets forth the
agreement among the Registrants and the Initial Purchasers.
Very truly yours,
NRG SOUTH CENTRAL GENERATING LLC
By: /s/ Craig A. Mataczynski
--------------------------------
Name: Craig A. Mataczynski
Title: President
LOUISIANA GENERATING LLC
By: /s/ Craig A. Mataczynski
--------------------------------
Name: Craig A. Mataczynski
Title: Vice President
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Accepted on behalf of each of the Initial Purchasers:
CHASE SECURITIES INC.
By /s/ Christopher Lowe
----------------------------
Authorized Signatory
Christopher Lowe, Vice President
LEHMAN BROTHERS INC.
By /s/ Illegible
---------------------------
Authorized Signatory
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SCHEDULE 1
Principal Amount
Initial Purchasers of Series A Bonds
------------------ -----------------
Chase Securities Inc. $275,000,000
Lehman Brothers Inc. $175,000,000
Credit Suisse First Boston Corporation $ 25,000,000
Salomon Smith Barney Inc. $ 25,000,000
------------
Total $500,000,000
Principal Amount
Initial Purchasers of Series B Bonds
------------------ -----------------
Chase Securities Inc. $165,000,000
Lehman Brothers Inc. $105,000,000
Credit Suisse First Boston Corporation $ 15,000,000
Salomon Smith Barney Inc. $ 15,000,000
------------
Total $300,000,000
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ANNEX A
Each brokerdealer that receives Exchange Bonds for its own
account pursuant to the Registered Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange Bonds. The
Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a brokerdealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. This Prospectus, as it
may be amended or supplemented from time to time, may be used by a
broker-dealer in connection with resales of Exchange Bonds received in exchange
for Bonds where such Bonds were acquired by such brokerdealer as a result of
marketmaking activities or other trading activities. The Registrants have
agreed that, for a period of 90 days after the Expiration Date (as defined
herein), it will make this Prospectus available to any brokerdealer for use in
connection with any such resale. See "Plan of Distribution."
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ANNEX B
Each brokerdealer that receives Exchange Bonds for its own
account in exchange for Bonds, where such Bonds were acquired by such
brokerdealer as a result of marketmaking activities or other trading activities,
must acknowledge that it will deliver a prospectus in connection with any resale
of such Exchange Bonds. See "Plan of Distribution."
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ANNEX C
PLAN OF DISTRIBUTION
Each brokerdealer that receives Exchange Bonds for its own
account pursuant to the Registered Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange Bonds. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a brokerdealer in connection with resales of Exchange Bonds received in
exchange for Bonds where such Bonds were acquired as a result of marketmaking
activities or other trading activities. The Registrants have agreed that, for a
period of 90 days after the Expiration Date, it will make this prospectus, as
amended or supplemented, available to any brokerdealer for use in connection
with any such resale. In addition, until_______________, 2000, all dealers
effecting transactions in the Exchange Bonds may be required to deliver a
prospectus.
The Registrants will not receive any proceeds from any sale of
Exchange Bonds by broker-dealers. Exchange Bonds received by brokerdealers for
their own account pursuant to the Registered Exchange Offer may be sold from
time to time in one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the Exchange Bonds
or a combination of such methods of resale, at market prices prevailing at the
time of resale, at prices related to such prevailing market prices or at
negotiated prices. Any such resale may be made directly to purchasers or to or
through brokers or dealers who may receive compensation in the form of
commissions or concessions from any such brokerdealer or the purchasers of any
such Exchange Bonds. Any broker-dealer that resells Exchange Bonds that were
received by it for its own account pursuant to the Registered Exchange Offer
and any broker or dealer that participates in a distribution of such Exchange
Bonds may be deemed to be an "underwriter" within the meaning of the Securities
Act and any profit on any such resale of Exchange Bonds and any commission or
concessions received by any such persons may be deemed to be underwriting
compensation under the Securities Act. The Letter of Transmittal states that,
by acknowledging that it will deliver and by delivering a prospectus, a
brokerdealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
For a period of 90 days after the Expiration Date the Issuer
will promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any brokerdealer that requests such documents
in the Letter of Transmittal. The Issuer has agreed to pay all expenses
incident to the Registered Exchange Offer (including the expenses of one
counsel for the Holders of the Bonds) other than commissions or concessions of
any brokerdealers and will indemnify the Holders of the Bonds (including any
brokerdealers) against certain liabilities, including liabilities under the
Securities Act.
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ANNEX D
- CHECK HERE IF YOU ARE A BROKERDEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name: _________________________________
Address: ______________________________
______________________________
If the undersigned is not a brokerdealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Bonds. If the undersigned is a brokerdealer that will receive Exchange Bonds for
its own account in exchange for Bonds that were acquired as a result of
marketmaking activities or other trading activities, it acknowledges that it
will deliver a prospectus in connection with any resale of such Exchange Bonds;
however, by so acknowledging and by delivering a prospectus, the undersigned
will not be deemed to admit that it is an "underwriter" within the meaning of
the Securities Act.
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