1
Exhibit 4.11
AES EASTERN ENERGY, L.P.
REGISTRATION RIGHTS AGREEMENT
May 11, 1999
Xxxxxx Xxxxxxx & Co. Incorporated
Credit Suisse First Boston Corporation
CIBC World Markets Corp.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Dear Sirs and Mesdames:
AES Eastern Energy, L.P., a Delaware limited partnership (the
"Company"), proposes to issue and sell jointly and severally to Xxxxxx Xxxxxxx &
Co. Incorporated, Credit Suisse First Boston Corporation and CIBC World Markets
Corp. (collectively, the "Initial Purchasers"), on the terms set forth in a
purchase agreement of even date herewith (the "Purchase Agreement"),
$282,000,000 aggregate principal amount of Pass Through Certificates, Series
1999-A and $268,000,000 aggregate principal amount of Pass Through Certificates,
Series 1999-B (collectively, the "Certificates"). The Certificates will be
issued pursuant to two Pass Through Trust Agreements, each dated as of May 1,
1999 (the "Pass Through Trust Agreements") between the Company and Bankers Trust
Company, a New York banking corporation, as Pass Through Trustee (the
"Trustee").
As an inducement to the Initial Purchasers to enter into the Purchase
Agreement and in satisfaction of a condition to the Initial Purchasers'
obligations thereunder, the Company agrees with the Initial Purchasers, for the
benefit of the registered holders of the Certificates (including, without
limitation, the Initial Purchasers) and the Exchange Certificates (as defined
below) (collectively, the "Holders"), as follows:
Registered Exchange Offer. The Company shall prepare and file
with the Securities and Exchange Commission (the "Commission") a registration
statement (the "Exchange Offer Registration Statement") on an appropriate form
under the Securities Act of 1933, as amended (the "Securities Act"), with
respect to an offer (the "Registered Exchange Offer") to the Holders of Transfer
Restricted Certificates (as defined in Section 6(d) hereof), who are not
prohibited by any law or policy of the Commission from participating in the
Registered Exchange Offer, to issue and deliver to such Holders, in exchange for
the Certificates of each series, a like aggregate principal amount of pass
through trust certificates (the "Exchange Certificates") of the Company issued
under the Pass Through Trust Agreements and identical in all material respects
to the Certificates of that series and that will be registered under the
Securities Act. The Company shall use its best efforts to cause the Exchange
Offer Registration Statement to become effective under the Securities Act within
150 days after the date of original issue of the Certificates and shall keep the
Exchange Offer Registration Statement effective for not less than 30 days (or
longer, if required by applicable law) after the date on which notice of
2
the Registered Exchange Offer is mailed to the Holders (that period being called
the "Exchange Offer Registration Period").
If the Company effects the Registered Exchange Offer, the Company will
be entitled to close the Registered Exchange Offer at the close of business on
the 30th day after the commencement thereof if the Company has accepted all the
Certificates validly tendered by such 30th day in accordance with the terms of
the Registered Exchange Offer.
Following the declaration of the effectiveness of the Exchange Offer
Registration Statement, the Company shall promptly commence the Registered
Exchange Offer, it being the objective of the Registered Exchange Offer to
enable each Holder of Transfer Restricted Certificates electing to exchange
those Transfer Restricted Certificates for Exchange Certificates (assuming that
Holder is not an affiliate of the Company within the meaning of the Securities
Act, acquires the Exchange Certificates in the ordinary course of that Holder's
business and has no arrangement with any person to participate in the
distribution of the Exchange Certificates, and is not prohibited by any law or
policy of the Commission from participating in the Registered Exchange Offer) to
trade those Exchange Certificates from and after their receipt without any
limitations or restrictions under the Securities Act and without material
restrictions under the securities laws of the several states of the United
States. In connection with the Registered Exchange Offer, the Company shall use
its best efforts to consummate the Registered Exchange Offer and shall comply
with the applicable requirements of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and other applicable laws and regulations in
connection with the Registered Exchange Offer; provided, however, that if there
are fewer than 300 holders of record of the Certificates at the beginning of the
calendar year 2000, the Company currently contemplates suspending its Exchange
Act reporting obligations early in calendar year 2000 (if such condition is not
met at the beginning of calendar year 2000, the Company would suspend its
reporting obligations at the beginning of the first year in which such condition
is met).
The Company acknowledges that, pursuant to current interpretations by
the Commission's staff of Section 5 of the Securities Act, in the absence of an
applicable exemption therefrom, (a) each Holder that is a broker-dealer electing
to exchange Certificates, acquired for its own account as a result of
market-making activities or other trading activities, for Exchange Certificates
(an "Exchanging Dealer"), is required to deliver a prospectus containing the
information set forth in Annex A hereto on the cover, in Annex B hereto in the
"Exchange Offer Procedures" section and the "Purpose of the Exchange Offer"
section, and in Annex C hereto in the "Plan of Distribution" section, in
connection with a sale of any such Exchange Certificates received by that
Exchanging Dealer pursuant to the Registered Exchange Offer, and (b) if the
Initial Purchasers are permitted to and elect to sell Exchange Certificates
acquired in exchange for Certificates constituting any portion of an unsold
allotment, they are required to deliver a prospectus containing the information
required by Item 507 or 508 of Regulation S-K under the Securities Act, as
applicable, in connection with that sale.
The Company shall include in the prospectus contained in the Exchange
Offer Registration Statement a section titled "Plan of Distribution," reasonably
acceptable to the Initial Purchasers, that contains a summary statement of the
positions taken or policies made by the staff of the Commission with respect to
the potential "underwriter" status of any broker-dealer that is
2
3
the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of
Exchange Certificates received by that broker-dealer in the Registered Exchange
Offer (a "Participating Broker-Dealer"), whether those positions or policies
have been publicly disseminated by the staff of the Commission or, in the
reasonable judgment of the Initial Purchasers based on advice of counsel (which
may be in-house counsel), represent the prevailing views of the staff of the
Commission.
The Company shall use its best efforts to keep the Exchange Offer
Registration Statement effective and to amend and supplement the prospectus
contained therein, in order to permit that prospectus to be lawfully delivered
by the Initial Purchasers and all Exchanging Dealers subject to the prospectus
delivery requirements of the Securities Act, and shall make that prospectus
available to the Initial Purchasers and those Exchanging Dealers for such period
of time after the consummation of the Registered Exchange Offer as those persons
must comply with those requirements in order to resell the Exchange
Certificates; however, that period shall not exceed 120 days (unless extended
pursuant to Section 3(j) below), and those persons are not authorized by the
Company to deliver and shall not deliver any such prospectus after the
expiration of that period in connection with the resales contemplated by this
paragraph.
The Company shall make available for a period of 120 days after the
consummation of the Registered Exchange Offer a copy of the prospectus, and any
amendment or supplement thereto, forming part of the Exchange Offer Registration
Statement, to any broker-dealer for use in connection with any resale of any
Exchange Certificates. The Certificates and the Exchange Certificates are herein
collectively called the "Securities."
In connection with the Registered Exchange Offer, the Company shall:
mail to each Holder a copy of the prospectus forming
part of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
keep the Registered Exchange Offer open for not less
than 30 days (or longer, if required by applicable law) after the date
notice thereof is mailed to the Holders;
utilize the services of a depositary for the
Registered Exchange Offer with an address in the Borough of Manhattan,
The City of New York, which may be the Trustee or an affiliate of the
Trustee;
permit Holders to withdraw tendered Certificates at
any time prior to the close of business, New York time, on the last
business day on which the Registered Exchange Offer remains open; and
otherwise comply in all material respects with all
applicable laws.
As soon as practicable after the close of the Registered
Exchange Offer, the Company shall:
3
4
accept for exchange all the Certificates validly
tendered and not withdrawn pursuant to the Registered Exchange Offer;
deliver, or cause to be delivered, to the Trustee for
cancellation all the Certificates so accepted for exchange; and
issue, and cause the Trustee to authenticate and
deliver promptly to each Holder of the Certificates of either series,
Exchange Certificates of the same series, equal in principal amount to
the Certificates of that series of that Holder so accepted for
exchange.
The Pass Through Trust Agreements will provide that the Exchange
Certificates will not be subject to the transfer restrictions set forth in the
Pass Through Trust Agreements and that the Certificates and the Exchange
Certificates will vote and consent together on all matters as one class and not
as separate classes on any matter.
Interest on each Exchange Certificate issued pursuant to the Registered
Exchange Offer will accrue from the last interest payment date on which interest
was paid on the Certificates surrendered in exchange therefor or, if no interest
has been paid on those Certificates, from the date of original issue of those
Certificates.
Each Holder participating in the Registered Exchange Offer will be
required to represent to the Company at the time of the consummation of the
Registered Exchange Offer:
(a) that any Exchange Certificate received by that Holder will
be acquired in the ordinary course of business;
(b) that the Holder will have no arrangement or understanding
with any person to participate in the distribution of the Certificates
or the Exchange Certificates within the meaning of the Securities Act;
(c) that the Holder is not an "affiliate," as defined in Rule
405 of the Securities Act, of the Company or if it is an affiliate,
that Holder will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable;
(d) if that Holder is not a broker-dealer, that it is not
engaged in, and does not intend to engage in, any distribution of the
Exchange Certificates; and
(e) if that Holder is a broker-dealer, that it will receive
Exchange Certificates for its own account in exchange for Certificates
that were acquired as a result of market-making activities or other
trading activities and that it will deliver a prospectus in connection
with any resale of those Exchange Certificates.
Notwithstanding any other provision hereof, the Company will ensure
that (a) any Exchange Offer Registration Statement and any amendment thereto and
any prospectus forming part thereof and any supplement thereto complies in all
material respects with the Securities Act
4
5
and the rules and regulations thereunder, (b) any Exchange Offer Registration
Statement and any amendment thereto will not, when it becomes effective, contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, and (c) any
prospectus forming part of any Exchange Offer Registration Statement, and any
supplement to that prospectus, at the time of issuance will not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading; provided,
however, that with respect to clauses (b) and (c), the Company will not be
liable for written information relating to any Holder or Initial Purchaser
furnished to the Company by or on behalf of such Holder or Initial Purchaser
specifically for inclusion therein.
Shelf Registration. If (a) the Company determines that a
Registered Exchange Offer, as contemplated by Section 1 hereof, is not available
or may not be consummated as soon as practicable after the last date the
Registered Exchange Offer is open because it would violate applicable law or the
applicable interpretations of the staff of the Commission, (b) the Registered
Exchange Offer is not consummated within 180 days after the date of original
issue of the Transfer Restricted Certificates, (c) the Initial Purchasers of the
Transfer Restricted Certificates so request with respect to the securities not
eligible to be exchanged for Exchange Certificates in the Registered Exchange
Offer and held by them following consummation of the Registered Exchange Offer,
or (d) any Holder (other than an Exchanging Dealer) is not eligible to
participate in the Registered Exchange Offer, or any Holder (other than an
Exchanging Dealer) that participates in the Registered Exchange Offer does not
receive freely tradeable Exchange Certificates on the date of the exchange for
validly tendered (and not withdrawn) Transfer Restricted Certificates:
The Company shall use its reasonable best efforts
to prepare and file, as promptly as practicable, with the Commission
and thereafter to cause to be declared effective a registration
statement (the "Shelf Registration Statement" and, together with the
Exchange Offer Registration Statement, a "Registration Statement") on
an appropriate form under the Securities Act relating to the offer and
sale of the Transfer Restricted Certificates, by the Holders thereof
from time to time in accordance with the methods of distribution set
forth in the Shelf Registration Statement and Rule 415 under the
Securities Act (hereinafter, the "Shelf Registration"), but no Holder
(other than the Initial Purchasers) is entitled to have any Transfer
Restricted Certificates held by it covered by that Shelf Registration
Statement unless that Holder agrees in writing to be bound by all the
provisions of this Agreement applicable to that Holder; and provided,
however, that with respect to Exchange Certificates which are
attributable to Certificates constituting any portion of an unsold
allotment held by an Initial Purchaser, the Company may, if permitted
by current interpretations of the Commission's staff and, in the
opinion of the Company's counsel, sufficient to cause the Exchange
Certificates to be freely tradeable by such Initial Purchaser, file a
post-effective amendment to the Exchange Offer Registration Statement
containing the information required by Items 507 and 508 of Regulation
S-K, as applicable, in satisfaction of its obligations under this
subsection with respect thereto, and any such Exchange Offer
Registration Statement, as so amended,
5
6
shall be referred to herein as, and governed by the provisions herein
applicable to, a Shelf Registration Statement.
The Company shall use all reasonable efforts to
keep the Shelf Registration Statement continuously effective in order
to permit the prospectus included therein to be lawfully delivered by
the Holders of the relevant Securities, until the earlier of (A) the
end of the period referred to in Rule 144(k) under the Securities Act
after the original issue date of the Certificates expires (or the end
of such longer period as may result from an extension pursuant to
Section 3(j) below), provided that, if this clause (A) is relied upon,
counsel to the Company shall have delivered to Xxxxxx Xxxxxxx and Co.
Incorporated, an opinion to the effect that the Certificates included
in such Shelf Registration Statement will thereafter be freely
tradeable by the Holders thereof without restriction, and (B) the date
on which all the Securities covered by the Shelf Registration Statement
have been sold pursuant thereto. Such period is hereinafter referred to
as the "Shelf Registration Period."
Notwithstanding any provision of this Agreement to
the contrary, the Company shall cause the Shelf Registration Statement
and the related prospectus and any amendment or supplement thereto, as
of the effective date of the Shelf Registration Statement, amendment or
supplement, (A) to comply in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of the
Commission and (B) not to contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided,
however, that with respect to clause (B), the Company will not be
liable for written information relating to any Holder or Initial
Purchaser furnished to the Company by or on behalf of such Holder or
Initial Purchaser specifically for inclusion therein.
Registration Procedures. In connection with any Shelf
Registration contemplated by Section 2 hereof and, to the extent applicable, any
Registered Exchange Offer contemplated by Section 1 hereof, the following
provisions shall apply:
The Company shall (i) furnish to the Initial Purchasers, prior
to the filing thereof with the Commission, a copy of the Registration Statement
and each amendment thereof and each supplement, if any, to the prospectus
included therein and shall not file any such Registration Statement or amendment
thereto or any prospectus or any supplement thereto (including any document
that, upon filing, would be incorporated or deemed to be incorporated by
reference therein and any amendment to any such document other than documents
required to be filed pursuant to the Exchange Act) to which the Initial
Purchasers shall reasonably object, except for any Registration Statement or
amendment thereto or prospectus or supplement thereto (a copy of which has been
previously furnished to the Initial Purchasers and their counsel (and, in the
case of a Shelf Registration Statement, the Holders and their counsel)) which
counsel to the Company has advised the Company in writing is required to be
filed, notwithstanding any such objection, in order to comply with applicable
law, (ii) include information substantially to the effect set forth (A) in Annex
A hereto on the cover, (B) in Annex B hereto in the "Exchange Offer Procedures"
section and the "Purpose of the Exchange Offer" section, (C) in Annex C
6
7
hereto in the "Plan of Distribution" section, of the prospectus forming a part
of the Exchange Offer Registration Statement, and (D) include the information
set forth in Annex D hereto in the Letter of Transmittal delivered in connection
with the Registered Exchange Offer, (iii) to the extent required by law or
interpretation of the staff of the Commission, if requested by the Initial
Purchasers, include the information required by Item 507 or 508 of Regulation
S-K under the Securities Act, as applicable, in the prospectus forming a part of
the Exchange Offer Registration Statement, and (iv) to the extent required by
law or interpretation of the staff of the Commission, in the case of a Shelf
Registration Statement, include the names of the Holders who propose to sell
Securities pursuant to the Shelf Registration Statement as selling
securityholders.
The Company shall notify promptly the Initial Purchasers, the
Holders and any Participating Broker-Dealer from whom the Company has received
prior written notice stating that it will be a Participating Broker-Dealer in
the Registered Exchange Offer (which notice pursuant to clauses (ii) through (v)
hereof shall be accompanied by an instruction to suspend the use of the
prospectus until the requisite changes have been made) and, if requested by the
Initial Purchasers, the Holders or any such Participating Broker-Dealer, confirm
such notice in writing:
when the Registration Statement or any amendment
thereto has been filed with the Commission and when the Registration
Statement or any post-effective amendment thereto has become effective;
of any request by the Commission for an amendment
or supplement to the Registration Statement or the prospectus included
therein or for additional information;
of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceeding for that purpose;
of the receipt by the Company or its legal counsel
of any notification with respect to the suspension of the qualification
of the Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for that purpose;
of the happening of any event that requires the
Company to make changes in the Registration Statement or the prospectus
in order that the Registration Statement or the prospectus does not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; and
of any determination by the Company that a
post-effective amendment to a Registration Statement would be
appropriate.
The Company shall make every reasonable effort to
prevent the issuance, and if issued to obtain the withdrawal at the earliest
possible time, of any order suspending the
7
8
effectiveness of the Registration Statement and shall provide prompt written
notice to the Initial Purchasers and each Holder of the withdrawal of any such
order.
The Company shall furnish to each Holder of Securities
included in the Shelf Registration, without charge, at least one conformed copy
of the Shelf Registration Statement and any post-effective amendment thereto,
including financial statements and schedules (without documents incorporated
therein by reference or exhibits thereto, unless a Holder so requests in
writing).
The Company shall deliver to the Initial Purchasers, and
to any other Holder that so requests, without charge, at least one conformed
copy of the Exchange Offer Registration Statement and any post-effective
amendment thereto, including financial statements and schedules (without
documents incorporated therein by reference or exhibits thereto, unless any such
Holder or the Initial Purchasers so request in writing).
The Company shall deliver to each Holder of Securities
included in the Shelf Registration, without charge, as many copies of the
prospectus (including each preliminary prospectus) included in the Shelf
Registration Statement and any amendment or supplement thereto as that Holder
may reasonably request during the Shelf Registration Period. The Company
consents, subject to the provisions of this Agreement, to the use of the
prospectus or any amendment or supplement thereto by each of the selling Holders
of the Securities in connection with the offering and sale of the Securities
covered by, and as contemplated by, the prospectus, or any amendment or
supplement thereto, included in the Shelf Registration Statement.
The Company shall deliver to each Initial Purchaser, any
Participating Broker-Dealer and any Exchanging Dealer, without charge, as many
copies of the final prospectus included in the Exchange Offer Registration
Statement and any amendment or supplement thereto as that person or entity may
reasonably request, during a period not exceeding 120 days following the
consummation of the Registered Exchange Offer. The Company consents, subject to
the provisions of this Agreement, to the use of the prospectus or any amendment
or supplement thereto by the Initial Purchasers, if necessary, any Participating
Broker-Dealer and any Exchanging Dealer and such other persons as may be
required to deliver a prospectus following the Registered Exchange Offer in
connection with the offering and sale of the Exchange Certificates covered by
the prospectus, or any amendment or supplement thereto, included in the Exchange
Offer Registration Statement, but no such person or entity is authorized by the
Company to deliver and no such person or entity shall deliver any such
prospectus after the expiration of the period referred to in the immediately
preceding sentence, in connection with any resale contemplated by this
paragraph.
Prior to any public offering of Securities pursuant to
any Registration Statement, the Company shall use its reasonable best efforts to
register or qualify or cooperate with the Holders of the Securities included
therein and their respective counsel in connection with the registration or
qualification of the Securities for offer and sale under the securities or Blue
Sky laws of such states of the United States as any Holder of the Securities
reasonably requests in writing and shall do any and all other acts or things
necessary or advisable to enable
8
9
that Holder to offer and sell in such jurisdictions the Securities covered by
that Registration Statement owned by that Holder, but the Company is not
required to (i) qualify generally or as a foreign corporation to do business in
any jurisdiction where it is not then so qualified or (ii) take any action which
would subject it to general service of process or to taxation in any
jurisdiction where it is not then so subject.
The Company shall cooperate with the Holders of the
Securities to facilitate the timely preparation and delivery of certificates
representing the Securities to be sold pursuant to any Shelf Registration
Statement free of any restrictive legend and in such denominations (consistent
with the provisions of the Pass Through Trust Agreements) and registered in such
names as the Holders may request at least two business days prior to closing of
any sale of the Securities pursuant to such Shelf Registration Statement.
If any event contemplated by paragraphs (ii) through
(vi) of Section 3(b) above occurs during the period in which the Company is
required to maintain an effective Registration Statement, the Company shall
promptly prepare and file a post-effective amendment to the Registration
Statement or a supplement to the related prospectus and any other required
document so that, as thereafter delivered to Holders of the Certificates or
purchasers of Securities, the prospectus will not contain an untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. If the Company notifies the Initial
Purchasers, the Holders of the Securities and any known Participating
Broker-Dealer in accordance with paragraphs (ii) through (vi) of Section 3(b)
above to suspend the use of the prospectus until the requisite changes to the
prospectus have been made, then the Initial Purchasers, the Holders of the
Securities and any such Participating Broker-Dealer shall suspend use of that
prospectus until the Company has amended or supplemented the prospectus to
correct that misstatement or omission, and the period of effectiveness of the
Shelf Registration Statement provided for in Section 2(b) above and the Exchange
Offer Registration Statement provided for in Section 1 above shall each be
extended by the number of days from and including the date of the giving of that
notice to and including the date when the Initial Purchasers, the Holders of the
Securities and any known Participating Broker-Dealer shall have received that
amended or supplemented prospectus pursuant to this Section 3(j), but the
minimum time period before the Company is entitled to close the Registered
Exchange Offer will be extended only to the extent required by the Commission.
Each Initial Purchaser, Holder and Participating Broker-Dealer agrees that on
receipt of any such notice from the Company it will not distribute copies of the
prospectus that are the subject of that notice and will retain those copies in
its files.
Not later than the effective date of the applicable
Registration Statement, the Company will obtain a CUSIP number for each series
of the Transfer Restricted Certificates or the Exchange Certificates, as the
case may be, and provide the Trustee with printed certificates for the
Certificates or the Exchange Certificates, as the case may be, in a form
eligible for deposit with The Depository Trust Company.
The Company will comply with all rules and regulations
of the Commission to the extent and so long as they are applicable to the
Registered Exchange Offer or the Shelf Registration and will make generally
available to its security holders (or otherwise provide in
9
10
accordance with Section 11(a) of the Securities Act) an earnings statement
satisfying the provisions of Section 11(a) of the Securities Act, no later than
45 days after the end of the 12-month period (or 90 days, if that period is a
fiscal year) that begins with the first month of the Company's first fiscal
quarter commencing after the effective date of the Registration Statement, which
statement will cover that 12-month period.
The Company shall cause the Pass Through Trust
Agreements (and, if necessary, the Lease Indentures (as defined pursuant to
Section 1.1 of the Pass Through Trust Agreements)) to be qualified under the
Trust Indenture Act of 1939, as amended, in a timely manner and to contain any
changes that are necessary for that qualification. If that qualification would
require the appointment of a new trustee under either Pass Through Trust
Agreement or any of the Lease Indentures, the Company shall appoint a new
trustee thereunder pursuant to the applicable provisions thereof. If required by
the Commission, the Company will also register the Lessor Notes issued pursuant
to the Lease Indentures.
The Company will require each Holder of Securities to be
sold pursuant to any Shelf Registration Statement to furnish to the Company such
information regarding that Holder and the distribution of the Securities as the
Company may from time to time reasonably request for inclusion in the Shelf
Registration Statement, and to provide comments on the Shelf Registration
Statement, and the Company may exclude from that registration the Securities of
any Holder that unreasonably fails to furnish that information and those
comments within a reasonable time after receiving that request.
In the case of any Shelf Registration, the Company shall
enter into such customary agreements (including, if requested, an underwriting
agreement in customary form) and take all such other action, if any, as the
Holders of a majority of the Securities being sold shall reasonably request in
order to facilitate the disposition of the Securities pursuant to that Shelf
Registration.
In the case of any Shelf Registration, the Company shall
make available for inspection by a representative of the Holders of Securities
being sold, their counsel and an accountant retained by those Holders, in a
manner designed to permit underwriters to satisfy their due diligence
investigation under the Securities Act, all financial and other records,
pertinent corporate documents and properties of the Company customarily
inspected by underwriters in primary underwritten offerings and shall cause the
officers, directors and employees of the Company and its subsidiaries to supply
all information reasonably requested by, and customarily supplied in connection
with primary underwritten offerings to, any such representative, attorney or
accountant in connection with that registration, but any records, information or
documents that are designated by the Company as confidential at the time of
delivery thereof shall be kept confidential by those persons, unless (i) those
records, information or documents are in the public domain or otherwise publicly
available, (ii) disclosure of those records, information or documents is
required by a court or administrative order or (iii) disclosure of those
records, information or documents, in the written opinion of counsel to those
persons, is otherwise required by law (including, without limitation, pursuant
to the Securities Act).
10
11
In the case of any Shelf Registration, the Company, if
requested by any Holder of Securities covered thereby, shall: (i) cause its
counsel to deliver an opinion and updates thereof relating to the Securities in
customary form addressed to the selling Holder and the managing underwriters, if
any, covering matters customarily covered in opinions requested in underwritten
offerings; (ii) cause its officers to execute and deliver such documents and
certificates and updates thereof as may be reasonably requested by any
underwriter of the applicable Securities, and which are customarily delivered in
underwritten offerings, to evidence the continued validity of the
representations and warranties of the Company made pursuant to, and to evidence
compliance with any customary conditions contained in, an underwriting
agreement; and (iii) cause its independent public accountants to provide to the
selling Holders of the applicable Securities (and any underwriter therefor) a
comfort letter in customary form and covering matters of the type customarily
covered in comfort letters in connection with primary underwritten offerings,
subject to receipt of appropriate documentation as contemplated, and only if
permitted, by Statement of Auditing Standards No. 72.
If a Registered Exchange Offer is to be consummated,
upon delivery of the Certificates by Holders to the Company (or to any other
Person designated by the Company) in exchange for the Exchange Certificates, the
Company shall xxxx, or caused to be marked, on the Certificates so exchanged
that those Certificates are being canceled in exchange for the Exchange
Certificates, and in no event shall the Certificates be marked as paid or
otherwise satisfied.
If any broker-dealer registered under the Exchange Act
underwrites any Securities or participates as a member of an underwriting
syndicate or selling group or "assists in the distribution" (within the meaning
of the Conduct Rules of the National Association of Securities Dealers, Inc.
("NASD")) thereof, whether as a Holder of those Securities or as an underwriter,
a placement or sales agent or a broker or dealer in respect thereof, or
otherwise, the Company shall assist such broker-dealer in complying with the
requirements of those Rules and By-Laws, including by (i) if those Rules,
including Rule 2720, shall so require, engaging a "qualified independent
underwriter" (as defined in Rule 2720) to participate in the preparation of the
Registration Statement relating to those Securities, to exercise usual standards
of due diligence in respect thereto and, if any portion of the offering
contemplated by that Registration Statement is an underwritten offering or is
made through a placement or sales agent, to recommend the yield of such
Securities, (ii) indemnifying any such qualified independent underwriter to the
extent of the indemnification of underwriters provided in Section 5 hereof, and
(iii) providing such information to that broker-dealer as may be required in
order for that broker-dealer to comply with the requirements of the Conduct
Rules of the NASD.
Registration Expenses. The Company shall pay all fees
and expenses incident to the performance of or compliance with this Agreement by
the Company including, without limitation: (a) all Commission, stock exchange or
NASD registration and filing fees; (b) all fees and expenses incurred in
connection with compliance with state securities or Blue Sky laws (including
reasonable fees and disbursements of counsel for any underwriters or holders in
connection with Blue Sky qualification of any of the Securities); (c) all out of
pocket expenses of any persons in preparing or assisting in preparing, word
processing, printing and distributing any Registration Statement, any
prospectus, any amendment or supplement to either thereof, any underwriting
agreement, securities sales agreement or other document relating to the
11
12
performance of and compliance with this Agreement; (d) all rating agency fees;
and (e) the fees and disbursements of counsel for the Company and, in the event
of a Shelf Registration, the reasonable fees and disbursements of one firm of
counsel designated by the Holders of a majority in principal amount of the
Securities covered thereby and of the independent public accountants of the
Company, including the expense of any special audit or "cold comfort" letter
required by or incident to that performance and compliance, but excluding fees
and expenses of counsel to the underwriters and underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of
Securities by a Holder.
Indemnification. The Company agrees to indemnify and hold
harmless each Holder of Securities, any Participating Broker-Dealer, and each
person, if any, who controls that Holder or Participating Broker-Dealer within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, or is under common control with, or is controlled by, that Holder
or Participating Broker-Dealer, from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred 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 a Registration Statement or the related
prospectus (as amended or supplemented if the Company shall have furnished any
amendment or supplement 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, in light of the circumstances under which they were
made, 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 on information relating to that Holder or
Participating Broker-Dealer furnished to the Company in writing by that Holder
or Participating Broker-Dealer expressly for use therein, but the foregoing
indemnity in respect of any prospectus will not inure to the benefit of any
Holder or Participating Broker-Dealer from whom the person asserting any such
losses, claims, damages or liabilities purchased Securities, or any person
controlling or affiliated with that Holder or Participating Broker-Dealer, if a
copy of an amendment or supplement to the prospectus (furnished by the Company
on a timely basis) was not sent or given by or on behalf of that Holder or
Participating Broker-Dealer to that person, if required by law so to have been
delivered, at or prior to the written confirmation of the sale of the Securities
to that person, and if such amendment or supplement would have cured the defect
giving rise to that loss, claim, damage or liability.
Each Participating Broker-Dealer and Holder of
Securities, severally and not jointly, agrees to indemnify and hold harmless the
Company, other selling Holders and Participating Broker-Dealers, directors of
the Company, the officers of the Company who sign a Registration Statement and
each person, if any, who controls the Company or any selling Holder or
Participating Broker-Dealer, 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 that Holder or Participating
Broker-Dealer, but only with reference to information relating to that Holder
furnished to the Company in writing by that Holder or Participating
Broker-Dealer expressly for use in a Registration Statement, any preliminary
prospectus, prospectus or any amendment or supplement to any thereof.
12
13
If any proceeding (including any governmental
investigation) is instituted involving any person in respect of which indemnity
may be sought pursuant to either paragraph (a) or (b) above, that person (the
"indemnified party") shall promptly notify the person against whom that
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 that proceeding and
shall pay the fees and expenses of that counsel related to that proceeding. In
any such proceeding, any indemnified party may retain its own counsel, but the
fees and expenses of that counsel will be at the expense of that indemnified
party unless (i) the indemnifying party and the indemnified party shall have
mutually agreed to the retention of that 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 because of 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. If an indemnified party
includes (x) the Initial Purchasers or such controlling persons of the Initial
Purchasers, that firm will be designated in writing by Xxxxxx Xxxxxxx & Co.
Incorporated; or (y) Holders of Securities (other than the Initial Purchasers)
or controlling persons of those Holders, that firm will be designated in writing
by the Holders of a majority in aggregate principal amount of those Securities.
In all other cases, the Company will designate that firm. The indemnifying party
will not be liable for any settlement of any proceeding effected without its
written consent, but if settled with that 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 that
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party has 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
will be liable for any settlement of any proceeding effected without its written
consent if (i) that settlement is entered into more than 45 days after receipt
by the indemnifying party of the aforesaid request and (ii) the indemnifying
party shall not have reimbursed the indemnified party in accordance with that
request prior to the date of that settlement. No indemnifying party may, 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 that
indemnified party, unless that settlement includes an unconditional release of
that indemnified party from all liability on claims that are the subject matter
of that proceeding.
To the extent the indemnification provided for in
paragraph (a) or (b) of this Section 5 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 that paragraph, in lieu of
indemnifying that indemnified party thereunder, shall contribute to the amount
paid or payable by that indemnified party as a result of those losses, claims,
damages or liabilities in such proportion as is appropriate to reflect the
relative fault of the indemnifying party or parties, on the
13
14
one hand, and the indemnified party or parties, on the other hand, in connection
with the statements or omissions that resulted in those losses, claims, damages
or liabilities, as well as any other relevant equitable considerations. The
relative fault of the parties 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 that Holder, Participating Broker-Dealer or other
party and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent that statement or omission. The Holders' and
Participating Broker-Dealers' respective obligations to contribute pursuant to
this Section 5 are several in proportion to the respective amount of
Certificates they have purchased, not joint.
The Company, each Participating Broker-Dealer and each
Holder agree that it would not be just or equitable if contribution pursuant to
this Section 5 were determined by pro rata allocation or by any other method of
allocation that does not take account of the equitable considerations referred
to in subsection (d) of this Section 5. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in subsection (d) above is deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
that indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 5, no Holder of
Securities is required to contribute any amount in excess of the amount by which
the total price at which the Securities sold by that Holder pursuant to a
Registration Statement were sold exceeds the amount of any damages that Holder
has otherwise been required to pay by reason of that 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) is
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
The indemnity and contribution provisions contained in
this Section 5 will 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 Holder or Participating Broker-Dealer or any person controlling
that Holder or Participating Broker-Dealer or by or on behalf of the Company,
its officers or directors or any person controlling the Company, and (iii) the
sale of the Securities. The remedies provided for in this Section 5 are not
exclusive and do not limit any rights or remedies that may otherwise be
available to any indemnified party at law or in equity.
Additional Interest Under Certain Circumstances. Additional
interest (the "Additional Interest") with respect to the Securities will be
assessed as follows if any of the following events occurs (each event identified
in clause (i) or (ii) below, a "Failure to Register"):
(i) If the Registered Exchange Offer is not
consummated or a Shelf Registration Statement is not declared effective
by the Commission on or prior to 180 days after the original issue date
of the Certificates; or
(ii) If, after the 180th day after the Closing Date,
and after any Shelf Registration Statement is declared effective, (A)
such Shelf Registration Statement thereafter ceases to be effective
during the Shelf Registration Period; or (B) such Shelf Registration
Statement or the related prospectus ceases to be usable in connection
with
14
15
resales of Transfer Restricted Notes during the Shelf Registration
Period (except as permitted in paragraph (b) of this Section 6) because
either (1) any event occurs as a result of which the related prospectus
forming part of such Shelf Registration Statement would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or (2) it
shall be necessary to amend such Shelf Registration Statement, or
supplement the related prospectus, to comply with the Securities Act or
the Exchange Act or the respective rules thereunder.
Additional Interest shall accrue on the Transfer Restricted
Certificates of each series over and above the interest set forth in the title
of the Certificates of that series from and including the date on which any such
Failure to Register shall occur to but excluding the date on which all such
Failures to Register have been cured, at a rate of 0.50% per annum.
A Failure to Register referred to in Section 6(a)(ii) is
deemed not to be continuing in relation to a Shelf Registration Statement or the
related prospectus if (i) that Failure to Register has occurred solely as a
result of (x) the filing of a post-effective amendment to such Shelf
Registration Statement to incorporate annual audited financial information with
respect to the Company, when such post-effective amendment is not yet effective
and needs to be declared effective to permit Holders to use the related
prospectus or (y) the occurrence of other material events or developments with
respect to the Company or its Affiliates that would need to be described in such
Shelf Registration Statement or the related prospectus, and (ii) in the case of
clause (y), the Company is proceeding promptly and in good faith to amend or
supplement such Shelf Registration Statement and related prospectus to describe
those events or, in the case of material developments that the Company
determines in good faith must remain confidential for business reasons, the
Company is proceeding promptly and in good faith to take such steps as are
necessary so that those developments need no longer remain confidential, but in
any case, if any Failure to Register (including any referred to in clause (x) or
(y), above) continues for a period in excess of 45 days, Additional Interest
will be payable in accordance with the above paragraph from the day following
the last day of that 45-day period until the date on which that Failure to
Register is cured.
Any Additional Interest payable will be payable on the
regular interest payment dates with respect to the Certificates, in the same
manner as the manner in which regular interest is payable. The amount of
Additional Interest for any period will be determined by multiplying the
applicable Additional Interest rate by the principal amount of the applicable
Certificates, multiplied by a fraction, the numerator of which is the number of
days that Additional Interest rate was applicable during that period (determined
on the basis of a 360-day year comprised of twelve 30-day months), and the
denominator of which is 360.
"Transfer Restricted Certificate" means each Certificate
until: (i) the date on which that Certificate has been exchanged by a person
other than a broker-dealer for a freely transferable Exchange Certificate in the
Registered Exchange Offer; (ii) following the exchange by a broker-dealer in the
Registered Exchange Offer of a Transfer Restricted Certificate for an Exchange
Certificate, the date on which that Exchange Certificate is sold to a purchaser
who receives from that broker-dealer on or prior to the date of that sale a copy
of the prospectus
15
16
constituting part of the Exchange Offer Registration Statement; (iii) the date
on which that Certificate has been effectively registered under the Securities
Act and disposed of in accordance with the Shelf Registration Statement; or (iv)
the date on which that Certificate is distributed to the public pursuant to Rule
144 under the Securities Act or becomes freely tradeable pursuant to Rule 144(k)
under the Securities Act.
Rules 144 and 144A. Subject to the proviso to the last
sentence of the third paragraph of Section 1, the Company shall use its best
efforts to file the reports required to be filed by it under the Securities Act
and the Exchange Act in a timely manner. If at any time the Company is not
required to file those reports, it will, upon the request of any Holder of
Transfer Restricted Certificates, make publicly available other information so
long as is necessary to permit sales of Securities pursuant to Rules 144 and
144A and otherwise as required by the Pass Through Trust Agreements. The Company
covenants that it will take such further action as any Holder of Transfer
Restricted Certificates may reasonably request, all to the extent required from
time to time to enable that Holder to sell Transfer Restricted Certificates
without registration under the Securities Act within the limitation of the
exemptions provided by Rules 144 and 144A (including the requirements of Rule
144A(d)(4)). Upon request by an Initial Purchaser, the Company will provide a
copy of this Agreement to prospective purchasers of Certificates identified to
the Company by that Initial Purchaser. Upon the request of any Holder of
Transfer Restricted Certificates, the Company shall deliver to that Holder a
written statement as to whether it has complied with those requirements.
Notwithstanding the foregoing, nothing in this Section 7 requires the Company to
register any of its securities under the Exchange Act.
Underwritten Registrations. If any of the Transfer Restricted
Certificates covered by any Shelf Registration are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will administer the offering ("Managing Underwriters") will be selected by
the Holders of a majority in aggregate principal amount of the Transfer
Restricted Certificates included in that offering, but the Managing Underwriters
must be reasonably satisfactory to the Company.
No person may participate in any underwritten registration hereunder
unless that person (a) agrees to sell that person's Transfer Restricted
Certificates on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve those arrangements, and
(b) completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of those underwriting arrangements.
Miscellaneous. Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given, except by the Company
and the written consent of the Holders of a majority in principal amount of the
Securities affected thereby.
Notices. All statements, requests, notices and
agreements hereunder shall be made in writing, and:
16
17
if to the Initial Purchasers, shall be delivered or
sent by mail, telex or facsimile transmission to Xxxxxx Xxxxxxx & Co.
Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxx X. X'Xxxxx (Fax: 000-000-0000), with a copy to Winthrop,
Stimson, Xxxxxx & Xxxxxxx, Xxx Xxxxxxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, Attention: Xxxxx X. Xxxxx, Esq. (Fax: 000-000-0000); and
if to the Company, shall be delivered or sent by
mail, telex or facsimile transmission to AES Eastern Energy, L.P., 0000
Xxxxx 00xx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx, XX 00000, Attention: Xxxxxxx
Xxxxxxxx (Fax: 000-000-0000), with a copy to Xxxxxxxxxx & Xxxxx LLP, 00
Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxxx,
Esq. (Fax: 000-000-0000).
All such notices and communications will be deemed to have been duly given: (A)
at the time delivered by hand, if personally delivered; (B) three business days
after being deposited in the mail, postage prepaid, if mailed; (C) when receipt
is acknowledged by the recipient's facsimile machine operator, if sent by
facsimile transmission; or (D) on the day delivered, if sent by overnight air
courier guaranteeing next day delivery.
No Inconsistent Agreements. The Company has not, as of
the date hereof, entered into, nor will it, on or after the date hereof, enter
into, any agreement with respect to the Securities that is inconsistent with the
rights granted to the Holders herein or that otherwise conflicts with this
Agreement.
Successors and Assigns. This Agreement is binding on the
Company and its successors and assigns.
Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed will constitute an original and all of which taken
together will constitute one and the same agreement.
Governing Law. This Agreement is governed by, and is to
be construed in accordance with, the laws of the State of New York without
regard to principles of conflicts of law.
Severability. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein is not affected or impaired thereby.
Securities Held by the Company. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Securities
is required hereunder, Securities held by the Company or its affiliates will not
be counted in determining whether that consent or approval was given by the
Holders of that required percentage.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
17
18
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Initial Purchasers and the Company in accordance with its terms.
Very truly yours,
AES EASTERN ENERGY, L.P.
By: AES NY, LLC
Its General Partner
By:_____________________________
Name:
Title:
Accepted as of the date hereof
Xxxxxx Xxxxxxx & Co. Incorporated
Credit Suisse First Boston Corporation
CIBC World Markets Corp.
By: XXXXXX XXXXXXX & CO. INCORPORATED
By:________________________
Name:
Title:
18
19
ANNEX A
Each broker-dealer that receives Exchange Certificates for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Certificates. The
Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. This Prospectus, as it
may be amended or supplemented from time to time, may be used by a broker-dealer
in connection with resales of Exchange Certificates received in exchange for
Existing Certificates where such Existing Certificates were acquired by such
broker-dealer as a result of market-making activities or other trading
activities. The Company has agreed that, for a period of 120 days after the
consummation of the Exchange Offer, it will make this Prospectus available to
any broker-dealer for use in connection with any such resale. See "Plan of
Distribution".
20
ANNEX B
Each broker-dealer that receives Exchange Certificates for its own
account in exchange for Certificates, that were acquired by that broker-dealer
as a result of market-making activities or other trading activities, must
acknowledge that it will deliver a prospectus in connection with any resale of
those Exchange Certificates. See "Plan of Distribution."
21
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Certificates for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of those Exchange Certificates. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Certificates received
in exchange for Certificates when those Certificates were acquired as a result
of market making activities or other trading activities. The Company has agreed
that, for a period of 120 days after the consummation of the Exchange Offer, it
will make this prospectus, as amended or supplemented, available to any
broker-dealer for use in connection with any such resale. In addition, until
_____________, all dealers effecting transactions in the Exchange Certificates
may be required to deliver a prospectus.(1)
The Company will not receive any proceeds from any sale of Exchange
Certificates by broker-dealers. Exchange Certificates received by any
broker-dealer for its own account pursuant to the Exchange Offer may be sold
from time to time in one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the Exchange
Certificates or a combination of those methods of resale, at market prices
prevailing at the time of resale or at prices related to those prevailing market
prices or negotiated prices. Any such resale may be made directly to purchasers
or to or through brokers or dealers who may receive compensation in the form of
commissions or concessions from any such broker-dealer or the purchasers of any
such Exchange Certificates. Any broker-dealer that resells Exchange Certificates
that were received by it for its own account pursuant to the Exchange Offer and
any broker or dealer that participates in a distribution of those Exchange
Certificates may be deemed to be an "underwriter" within the meaning of the
Securities Act and any profit on any such resale of Exchange Certificates and
any commission or concessions received by any such person may be deemed to be
underwriting compensation under the Securities Act. The Letter of Transmittal
states that, by acknowledging that it will deliver and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
For a period of 120 days after the Expiration Date the Company will
promptly send additional copies of this Prospectus, and any amendment or
supplement to this Prospectus, to any broker-dealer that requests those
documents in the Letter of Transmittal. The Company has agreed to pay all
expenses incident to the Exchange Offer other than commissions or concessions of
any broker or dealer and transfer taxes, if any, and will indemnify the Holders
of the Securities (including any broker-dealer) against certain liabilities,
including liabilities under the Securities Act.
----------
(1) In addition, the legend required by Item 502(b) of Regulation S-K will
appear on the back cover page of the Exchange Offer prospectus.
22
ANNEX D
- CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENT OR SUPPLEMENT THERETO.
Name:
Address:
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Certificates. If the undersigned is a broker-dealer that will receive Exchange
Certificates for its own account in exchange for Certificates that were acquired
as a result of market-making activities or other trading activities, it
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Certificates; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
