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EXHIBIT 1.1
AES CHINA GENERATING CO. LTD.
$180,000,000
_____% NOTES DUE 2006
UNDERWRITING AGREEMENT
December __, 1996
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December __, 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 _____% 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." 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
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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 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
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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 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
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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; 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.
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(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 Prospect 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'
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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, or in any material respect, any provision of applicable law
or any regulation 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,
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the applicable AES Group Company and 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.
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(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.
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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
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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.
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(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
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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
_____% of their principal amount (the "Purchase Price") plus accrued interest,
if any, from ___________, 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
____% of their principal amount (the "Public Offering Price") plus accrued
interest, if any, from __________________, 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 ____% 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 ____% 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$_____ reimbursement of certain of the Underwriters' expenses reimbursable
pursuant to Section hereof at the office of Davis Polk & Wardwell at 10:00
A.M., New York time, on ____________, 1996, or at such other time on the same
or such other date, not later than _________, 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:
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(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 (International), 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 (International) 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.
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(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 [NAME OF BVI COUNSEL], 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 [NAME OF CAYMAN ISLANDS COUNSEL], 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 [NAME OF LABUAN COUNSEL], 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.
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(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 shall have accepted its appointment by the Company
as authorized agent pursuant to Section , 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
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
(International); Conyers, Dill & Pearman; Commerce & Finance Law Office;
[NAME OF BVI COUNSEL]; [NAME OF CAYMAN ISLANDS COUNSEL] AND [NAME OF LABUAN
COUNSEL] 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.
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(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.
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(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 , 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; and (xi)
any tax, imposts or duties described in paragraph (u) of Section hereof.
(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.
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(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 , 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
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(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 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 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 were
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or
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by any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (d) of this Section .
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 , 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 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 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
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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 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
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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
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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.
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Very truly yours,
AES CHINA GENERATING CO. LTD.
By
------------------------------
Name:
Title:
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
-------------------------
Name:
Title:
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SCHEDULE I
Principal Amount
of Notes
Underwriter To Be Purchased
- ----------- ---------------
Morgan Stanley & Co. Incorporated
Donaldson, Lufkin & Jenrette
Securities Corporation
-----------
Total ........ 180,000,000
===========
27
Schedule II
[Project Documents (By Joint Venture Company)]
[to be provided by the Company and Commerce & Finance]
28
Schedule III
[Joint Venture Documents (By Joint Venture Company)]
[to be provided by the Company and Commerce & Finance]
29
Schedule IV
[Consents, Approvals etc. (By Joint Venture Company)]
[to be provided by the Company and Commerce & Finance]
30
Exhibit A
[Opinion of Skadden, Arps, Slate, Meagher & Flom]
(1) 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.
(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 of the applicable laws set
forth on Exhibit B hereto ("Applicable Laws") or (iii) contravene any
applicable judgment, order or decree set forth on Exhibit C hereto
("Applicable Orders").
(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
sale of the Notes or (ii) the registration of the Notes under the
Securities Act
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(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
"subsidiary company of 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 {certain captions} 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
A-2
32
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.
(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 (except for financial
statements and schedules as to which such counsel need not express any
belief and except for that part of the Registration Statement that
constitutes the Form T-1 heretofore referred to) 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 (except for financial statements and
schedules as to which such counsel need not express any belief) 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.
(14) [Opinion with respect to perfection of security interests in Collateral.]
A-3
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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 power and authority (corporate and other) 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.
(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 [describe any relevant 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 under all applicable laws,
rules, regulations or guidelines or 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.
(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 will not contravene any
provision of 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, and no consent, approval,
authorization or order of, or qualification with, any
B-1
34
governmental body or agency is required for the performance by the
Company of its obligations under the Underwriting Agreement, the
Indenture, the Security Agreement or the Notes.
(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 (i) any provision of law 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 (i) any
provision of PRC law 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 and belief after due inquiry,
each of the Joint Venture Documents constitutes 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 into account the anticipated total investment in
such Joint Venture Company, (ii) the ownership
B-2
35
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 each
party of its obligations under the Joint Venture Documents to which it is
a party, (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, (vii) the consummation of the transactions
contemplated, and the performance by the Company of its obligations,
under the Indenture, the Security Agreement, and the Underwriting
Agreement and (viii) the exercise by the Trustee of its remedies under
the Indenture, except such as have been obtained or made and are in full
force and effect, and have been listed in Schedule III hereof; 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) 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 do not and will not
contravene any provision of law or, to the best of such counsel's
knowledge after reasonable inquiry, 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,
and no consent, approval, authorization or order of, or qualification
with, any governmental body or agency in or of the PRC is required for
the performance by the Company of its obligations under the Underwriting
Agreement, the Indenture, the Security Agreement or the Notes.
(13) 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 on AES Group Company
(collectively, "Payments") outside the PRC in Unites States dollars.
Each Joint Venture
B-3
36
Company has obtained all approvals required for it to be able to pay,
and, subject to the acquisition of the necessary foreign exchange, each
such Joint Venture Company is entitled to remit outside the PRC and pay,
in United States Dollars, all Payments to the Company or any AES Group
Company.
(14) All Payments by any Joint Venture Company to the Company or any AES Group
Company will not be subject to any tax, duty, withholding or deduction,
except withholding tax payable on payments of interest with respect to
any loans to such Joint Venture Company.
(15) 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 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 have a material adverse effect on such Joint
Venture Company.
(16) Each of the Joint Venture Companies has paid all material taxes which it
is required to have paid, except 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.
(17) 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 properties and assets owned or used by it or
transferred, assigned or otherwise conveyed to it in connection with its
formation or thereafter, 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. All real
property, buildings and equipment held under lease, if any, by each of
the Joint
B-4
37
Venture Companies are held by each of them under valid, binding and
enforceable leases.
(18) 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 Registration
Statement 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.
(19) To the best of our 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.
(20) After due inquiry, such counsel does not know of any legal or
governmental proceedings pending or threatened (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.
(21) The statements in the (i) 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
B-5
38
Regulation," "-- Description of the Current Projects" and "-- Description
of the Potential Projects;" and "Appendix A -- The People's Republic of
China -- Environmental Protection," "-- Foreign Exchange Controls and
Exchange Rate Information" and "-- Legal System," and (ii) in the
Company's most recent Annual Report on Form 10-K under the captions "The
People's Republic of China;" "Joint Venture Companies;" "Government
Approvals;" "Projects in Operation or Under Construction:" "Description
of Potential Projects;" "Potential Projects for Which Joint Venture
Contracts Have Been Initialed or Signed;" "Potential Projects for Which
Preliminary Agreements Have Been Signed;" "Legal Proceedings;" "Certain
Relationships and Related Transactions;" 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
39
Schedule I
[to be filled in by Commerce & Finance]
B-7
40
Schedule II
[to be filled in by Commerce & Finance]
B-8
41
Schedule III
[to be filled in by Commerce & Finance]
B-9
42
Exhibit C
[Opinion of Conyers, Dill & Pearman]
(1) The Bermuda Prospectus together with the required attachments thereto has
been filed with the Registrar of Companies in Bermuda as required by the
Companies Act. [The Bermuda Prospectus complies in all material respects
with the Companies Act and any other applicable statutes, rules and
regulations of Bermuda or any governmental authority therein.]
(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.
(5) The Company has an authorized capitalization as set forth in the
Prospectus.
C-1
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(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 sale of the Notes 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.
(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
C-2
44
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 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.
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(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
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Schedule I
[Bermuda Approvals]
C-5
47
Exhibit D
[Opinion of BVI Counsel for the Company]
(1) Each of AES Yangchun 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
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Exhibit E
[Opinion of Cayman Islands Counsel for the Company]
(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
49
Exhibit F
[Opinion of Labuan Counsel for the Company]
(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