As filed with the Securities and Exchange Commission on November 4, 1996
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
The AES Corporation Delaware 54-1163725
AES Trust I Delaware application pending
AES Trust II Delaware application pending
(Exact name of Registrant (State or other (I.R.S. employer
as specified in jurisdiction identification number)
its charter) of incorporation
or organization)
1001 North 19th Street
Arlington, Virginia 22209
(703) 522-1315
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
Barry J. Sharp
1001 North 19th Street
Arlington, Virginia 22209
(703) 522-1315
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Richard D. Truesdell, Jr.
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
(212) 450-4000
Approximate date of commencement of proposed sale to the public: From
time to time after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities being offered only in connection with dividend or
interest reinvestment plans, please check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Title of Each Class of Proposed Maximum Aggregate
Securities to be Registered Offering Price (1)(2)(3) Amount of Registration Fee
--------------------------- -------------------------- --------------------------
<S> <C> <C>
Senior Debt Securities, Senior Subordinated Debt
Securities and Junior Subordinated........................
Debt Securities (collectively, '"Debt Securities") of The
AES Corporation...........................................
Preferred Stock of The AES Corporation ("Preferred Stock")..
Common Stock of The AES Corporation ("Common Stock")........
Junior Subordinated Debt Securities of The AES Corporation
for issuance directly or to AES Trust I and AES Trust II
("Junior Subordinated Debt Trust Securities")............. $750,000,000 $227,273
Preferred Securities of AES Trust I and AES Trust II,
severally ("Preferred Securities")........................
Guarantees of Preferred Securities of AES Trust I and AES
Trust II by The AES Corporation(4)........................
Stock Purchase Contracts to purchase Common Stock ("Stock
Purchase Contracts").......................................
Stock Purchase Units, each representing ownership of a Stock
Purchase Contract and Debt Securities or debt obligations
of third parties ("Stock Purchase Units")..................
</TABLE>
(footnotes on following page)
(1) Such indeterminate number or amount of Debt Securities, Junior
Subordinated Debt Trust Securities, Preferred Stock, Common Stock, Stock
Purchase Contracts and Stock Purchase Units of The AES Corporation and
Preferred Securities of AES Trust I and AES Trust II as may from time
to time be issued at indeterminate prices. Junior Subordinated Debt
Trust Securities may be issued and sold to AES Trust I and AES Trust
II, in which event such Junior Subordinated Debt Trust Securities may
later be distributed to the holders of Preferred Securities upon a
dissolution of AES Trust I and AES Trust II and the distribution of the
assets thereof.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) and exclusive of accrued interest and dividends,
if any.
(3) The AES Corporation is also registering under this Registration Statement
all other obligations that it may have with respect to Preferred
Securities issued by AES Trust I or AES Trust II. No separate
consideration will be received for any Guarantee or any other such
obligations.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states
that this Registration Statement shall thereafter become effective in
accordance with section 8(a) of the Securities Act of 1933 or until the
Registration Statement shall become effective on such date as the
Commission, acting pursuant to said section 8(a), may determine.
EXPLANATORY NOTE
This Registration Statement contains two forms of prospectuses to be used
in connection with offerings of the following securities:
(1) Debt Securities (consisting of Senior Debt Securities, Senior
Subordinated Debt Securities and Junior Subordinated Debt
Securities), Preferred Stock, Common Stock, Stock Purchase
Contracts and Stock Purchase Units of The AES Corporation.
(2) Preferred Securities of AES Trust I or AES Trust II, severally,
Junior Subordinated Debt Trust Securities of The AES Corporation
and Guarantees by The AES Corporation of Preferred Securities
issued by AES Trust I or AES Trust II.
Each offering of securities made under this Registration Statement will be
made pursuant to one of these Prospectuses, with the specific terms of the
securities offered thereby set forth in an accompanying Prospectus Supplement.
SUBJECT TO COMPLETION, DATED NOVEMBER 4, 1996
PROSPECTUS
[LOGO]
The AES Corporation
$750,000,000
Common Stock, Preferred Stock, Debt Securities, Stock Purchase Contracts and
Stock Purchase Units
The AES Corporation (the "Company" or "AES") may from time to time offer,
together or separately, (i) shares of its common stock, par value $.01 per
share (the "Common Stock"); (ii) shares of its preferred stock, no par value
(the "Preferred Stock"); (iii) unsecured senior debt securities (the "Senior
Debt Securities"); (iv) unsecured senior subordinated debt securities (the
"Senior Subordinated Debt Securities"), (v) unsecured junior subordinated
securities (the "Junior Subordinated Debt Securities"), (vi) Stock Purchase
Contracts to purchase Common Stock ("Stock Purchase Contracts") and (vii)
Stock Purchase Units ("Stock Purchase Units"), each representing ownership of
a Stock Purchase Contract and Debt Securities or debt obligations of third
parties, including U.S. Treasury securities, securing the holder's obligation
to purchase Common Stock under the Stock Purchase Contract, in each case in
one or more series and in amounts, at prices and on terms to be determined
at or prior to the time of sale. The Senior Debt Securities, Senior
Subordinated Debt Securities and Junior Subordinated Securities are
collectively referred to herein as the "Debt Securities." The Debt
Securities, Common Stock, Preferred Stock, Stock Purchase Contracts and
Stock Purchase Units are collectively referred to herein as the
"Securities."
See "Risk Factors" Beginning On Page 4 For A Discussion of
Certain Factors That Should Be Considered By Prospective Investors.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
The Common Stock and Preferred Stock offered pursuant to this Prospectus
may be issued in one or more series or issuances in U.S. dollars or in one
or more foreign currencies, currency units or composite securities to be
determined at or prior to the time of any offering. The Stock Purchase
Contracts and the Stock Purchase Units offered pursuant to this Prospectus
may be issued in one or more series and amounts, at prices and on terms to
be determined at or prior to the time of any such offering. The Debt
Securities offered pursuant to this Prospectus may consist of debentures,
notes or other evidences of indebtedness in one or more series and in
amounts, at prices and on terms to be determined at or prior to the time of
any such offering. The Company's obligations under the Senior Debt
Securities will rank pari passu with all unsecured and unsubordinated Debt
(as defined herein) of the Company. The Company's obligations under the
Senior Subordinated Debt Securities will be subordinated in right of
payment to the prior payment in full of all Senior Debt (as defined
herein). The Company's obligations under the Junior Subordinated Debt
Securities will be subordinated in right of payment to the prior payment in
full of all Senior Indebtedness (as defined herein) of the Company. See
"Description of Debt Securities."
By separate prospectus, the form of which is included in the Registration
Statement of which this Prospectus forms a part, two Delaware statutory
business trusts (the "AES Trusts"), which are wholly owned subsidiaries of the
Company, may from time to time severally offer preferred securities guaranteed
by the Company to the extent set forth therein and the Company may offer from
time to time junior subordinated debt securities either directly or to an AES
Trust. The aggregate public offering price of the securities to be offered by
the Prospectus and such other prospectus shall not exceed $750,000,000 (or its
equivalent in one or more foreign currencies, currency units or composite
currencies).
Specific terms of the Securities in respect of which this Prospectus is
being delivered (the "Offered Securities") will be set forth in a Prospectus
Supplement with respect to such Offered Securities, which Prospectus
Supplement will describe, without limitation and where applicable, the
following: (i) in the case of Common Stock, the specific designation, number
of shares, purchase price and the rights and privileges thereof, together with
any qualifications or restrictions thereon and any listing on a securities
exchange; (ii) in the case of Preferred Stock, the specific designation,
number of shares, purchase price and the rights, preferences and privileges
thereof and any qualifications or restrictions thereon (including dividends,
liquidation value, voting rights, terms for the redemption, conversion or
exchange thereof and any other specific terms of the Preferred Stock) and any
listing on a securities exchange; (iii) in the case of Debt Securities, the
specific designation, aggregate principal amount, authorized denomination,
maturity, premium, if any, exchangeability, redemption, conversion, prepayment
or sinking fund provisions, if any, interest rate (which may be fixed or
variable), if any, method, if any, of calculating interest payments and dates
for payment thereof, dates on which premium, if any, will be payable, the
right of the Company, if any, to defer payment of interest on the Debt
Securities and the maximum length of such deferral period, the initial public
offering price, any listing on a securities exchange and other specific terms
of the offering; (iv) in the case of Stock Purchase Contracts, the designation
and number of shares of Common Stock issuable thereunder, the purchase price
of the Common Stock, the date or dates on which the Common Stock is required
to be purchased by the holders of the Stock Purchase Contracts, any periodic
payments required to be made by the Company to the holders of the Stock
Purchase Contract or vice versa, and the terms of the offering and sale
thereof, and (v) in the case of Stock Purchase Units, the specific terms of
the Stock Purchase Contracts and any Debt Securities or debt obligations of
third parties securing the holder's obligation to purchase the Common Stock
under the Stock Purchase Contracts, and the terms of the offering and sale
thereof. Unless otherwise indicated in the Prospectus Supplement, the Company
does not intend to list any of the Securities other than the Common Stock and
the Preferred Stock on a national securities exchange. Any Prospectus
Supplement relating to any series of Offered Securities will contain
information concerning certain United States federal income tax
considerations, if applicable, to the Offered Securities.
The Offered Securities may be offered directly, through agents designated
from time to time, through dealers or through underwriters. Such agents or
underwriters may act alone or with other agents or underwriters. See "Plan
of Distribution." Any such agents, dealers or underwriters will be set forth
in a Prospectus Supplement. If an agent of the Company, or a dealer or
underwriter is involved in the offering of the Offered Securities, the agent's
commission, dealer's purchase price, underwriter's discount and net proceeds
to the Company, as the case may be, will be set forth in, or may be calculated
from, the Prospectus Supplement. Any underwriters, dealers or agents
participating in the offering may be deemed "underwriters" within the meaning
of the Securities Act of 1933.
This Prospectus may not be used to consummate sales of Offered Securities
unless accompanied by a Prospectus Supplement.
The date of this Prospectus is , 1996.
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OF
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
AVAILABLE INFORMATION
AES is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy and information statements and other
information with the Securities and Exchange Commission (the "Commission").
These reports, proxy and information statements and other information may be
inspected without charge and copied at the public reference facilities
maintained by the Commission at its principal offices at Judiciary Plaza, 450
Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's regional
offices located at Citicorp Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661, and 7 World Trade Center, Suite 1300, New York, New
York 10048. Copies of such materials also can be obtained at prescribed rates
from the Public Reference Section of the Commission at the principal offices
of the Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C.
20549. Such material may also be inspected at the offices of the National
Association of Securities Dealers, Inc., 1735 K Street, N.W., Washington, D.C.
20006. Such material may also be accessed electronically by means of the
Commission's home page on the Internet at http://www.sec.gov.
The Company has filed with the Commission a Registration
Statement on Form S-3 under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to the Securities offered hereby (including
all amendments and supplements thereto, the "Registration Statement"). This
Prospectus, which forms a part of the Registration Statement, does not contain
all the information set forth in the Registration Statement and the exhibits
filed thereto, certain parts of which have been omitted in accordance with the
rules and regulations of the Commission. Statements contained herein
concerning the provisions of any documents are not necessarily complete and,
in each instance, reference is made to the copy of such document filed as an
exhibit to the Registration Statement or otherwise filed with the Commission.
Each such statement is qualified in its entirety by such reference. The
Registration Statement and the exhibits thereto can be inspected and copied at
the public reference facilities and regional and other offices referred to
above.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates in this Prospectus by reference
thereto and makes a part hereof the following documents, heretofore filed with
the Commission pursuant to the Exchange Act: (i) the Company's Annual Report
on Form 10-K for the year ended December 31, 1995; (ii) the Company's
Quarterly Report on Form 10-Q for the quarters ended September 30, 1996, June
30, 1996 and March 31, 1996; (iii) the Company's Current Reports on Form 8-K
filed on July 1, 1996, June 12, 1996, May 30, 1996, February 26, 1996 and
February 6, 1996 and (iv) the Company's Registration Statement on Form S-3
filed on June 12, 1996.
All documents filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to termination of the offering being made hereby shall be
deemed to be incorporated in this Prospectus by reference and to be a part
hereof from the respective dates of the filing of such documents. Any
statement contained herein or in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus and the Registration Statement of which it is
a part to the extent that a statement contained herein or in any subsequently
filed document which also is, or is deemed to be, incorporated by reference
herein, modifies or supersedes such earlier statement. Any statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus or such Registration
Statement.
The Company hereby undertakes to provide without charge to each
person to whom a copy of this Prospectus has been delivered, upon written or
oral request of any such person, a copy of any and all of the documents
referred to above which have been or may be incorporated in this Prospectus by
reference, other than exhibits to such documents which are not specifically
incorporated by reference into such documents. Requests for such copies
should be directed to William R. Luraschi, General Counsel and Secretary, The
AES Corporation, 1001 North 19th Street, Arlington, Virginia 22209, telephone
(703) 522-1315.
USE OF PROCEEDS
Unless otherwise set forth in the applicable Prospectus
Supplement, proceeds from the sale of the Offered Securities will be used by
the Company for general corporate purposes and initially may be temporarily
invested in short-term securities.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges.
<TABLE>
<CAPTION>
Nine Months
Ended
Year Ended December 31, September 30,
---------------------------------------------- -------------
1991 1992 1993 1994 1995 1996
---- ---- ---- ---- ---- -------------
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges...... 1.31 1.37 1.63 2.08 2.18 2.04
</TABLE>
For the purpose of computing the ratio of earnings to fixed charges,
earnings consist of income from continuing operations before income taxes
and minority interest, plus fixed charges, less capitalized interest, less
excess of earnings over dividends of less-than-fifty-percent-owned
companies. Fixed charges consist of interest (including capitalized
interest) on all indebtedness, amortization of debt discount and expense
and that portion of rental expense which the Company believes to be
representative of an interest factor. A statement setting forth the
computation of the above ratios is on file as an exhibit to the
Registration Statement of which this Prospectus is a part.
During the period from January 1, 1991 until September 30, 1996, no
shares of Preferred Stock were issued or outstanding, and during that
period the Company did not pay any Preferred Stock dividends.
THE COMPANY
With a presence in over 35 countries, The AES Corporation is a
global power company committed to supplying electricity to customers
world-wide in a socially responsible way. The Company, based in Arlington,
Virginia, markets power principally from electric generating facilities that
it develops, owns and operates. AES was one of the original entrants in the
independent power market and today is one of the world's largest independent
power companies, based on net equity ownership of generating capacity (in
megawatts) in operation or under construction.
Over the last six years, the Company has experienced
significant growth. This growth has resulted primarily from the development
and construction of new plants ("greenfield development") and also from the
acquisition of existing plants, primarily through competitively bid
privatization initiatives outside the United States.
In part, the Company's strategy in helping meet the world's
need for electricity is to participate in competitive power generation markets
as they develop either by greenfield development or by acquiring and operating
existing facilities in these markets.
Other elements of the Company's strategy include:
bullet Supplying energy to customers at the lowest cost possible,
taking into account factors such as reliability and environmental
performance.
bullet Constructing or acquiring projects of a relatively large
size (generally larger than 100 megawatts).
bullet Entering into power sales contracts with electric utilities
or other customers with credit strength.
The Company also strives for operating excellence as a key
element of its strategy, which it believes it accomplishes by minimizing
organizational layers and maximizing company-wide participation in
decision-making. AES has attempted to create an operating environment that
results in safe, clean and reliable electricity generation. Because of this
emphasis, the Company prefers to operate all facilities which it develops or
acquires; however, there can be no assurance that the Company will have
operating control of all of its facilities in the future.
The Company, a corporation organized under the laws of
Delaware, was formed in 1981. The principal office of the Company is located
at 1001 North 19th Street, Arlington, Virginia 22209, and its telephone number
is (703) 522-1315.
RISK FACTORS
Purchasers of the Securities should read this entire Prospectus
carefully. Ownership of the Securities involves certain risks. The following
factors should be considered carefully in evaluating AES and its business
before purchasing the Securities offered by this Prospectus.
Leverage and Subordination. The Company and its subsidiaries
had approximately $2.1 billion of outstanding indebtedness at September 30,
1996. As a result of the Company's level of debt, the Company might be
significantly limited in its ability to meet its debt service obligations, to
finance the acquisition and development of additional projects, to compete
effectively or to operate successfully under adverse economic conditions. As
of September 30, 1996, the Company had a consolidated ratio of total debt to
total book capitalization (including current debt) of approximately 75%.
The Senior Subordinated Debt Securities will be subordinated to
all Senior Debt, including, but not limited to, the amounts outstanding under
the Company's current $425 million credit facility. The Junior Subordinated
Debt Securities will be subordinated to all Senior Indebtedness of the
Company, including, but not limited to, the amounts outstanding under the
Company's current $425 million credit facility. As of September 30, 1996, the
Company had approximately $331 million in aggregate principal amount of Senior
Debt and $656 million in aggregate principal amount of Senior Indebtedness.
Upon any payment or distribution of assets to creditors upon
any liquidation, dissolution, winding up, receivership, reorganization,
assignment for the benefit of creditors, marshaling of assets and liabilities
or any bankruptcy, insolvency or similar proceedings of the Company, the
holders of Senior Debt will first be entitled to receive payment in full of
all amounts due or to become due under all Senior Debt before the holders of
the Senior Subordinated Debt Securities will be entitled to receive any
payment in respect of the principal of, premium, if any, or interest on such
Senior Subordinated Debt Securities and holders of Senior Indebtedness will
first be entitled to receive payment in full of all amounts due or to become
due under all Senior Indebtedness before the holders of the Junior
Subordinated Debt Securities will be entitled to receive any payment in
respect of the principal of, premium, if any, or interest on such Junior
Subordinated Debt Securities. No payments on account of principal, premium,
if any, or interest in respect of the Senior Subordinated Debt Securities or
Junior Subordinated Debt Securities may be made if there shall have occurred
and be continuing a default in any payment under any Senior Debt or Senior
Indebtedness, respectively, or during certain periods when an event of default
under certain Senior Debt or Senior Indebtedness, respectively, permits the
respective lenders thereunder to accelerate the maturity thereof. See
"Description of Debt Securities--Subordination of Senior Subordinated Debt
Securities" and "Description of Debt Securities--Subordination of Junior
Subordinated Debt Securities."
The Debt Securities will be effectively subordinated to the
indebtedness and other obligations (including trade payables) of the Company's
subsidiaries. At September 30, 1996, the indebtedness and obligations of the
Company's subsidiaries, aggregated approximately $1.5 billion. The ability of
the Company to pay principal of, premium, if any, and interest on the Debt
Securities will be dependent upon the receipt of funds from its subsidiaries
by way of dividends, fees, interest, loans or otherwise. Most of the
Company's subsidiaries with interests in power generation facilities currently
have in place, and the Indentures for the Debt Securities will, under certain
circumstances, permit the Company's subsidiaries to enter into, arrangements
that restrict their ability to make distributions to the Company by way of
dividends, fees, interest, loans or otherwise. The Company's subsidiaries are
separate and distinct legal entities and have no obligation, contingent or
otherwise, to pay any amounts due pursuant to the Debt Securities or to make
any funds available therefor, whether by dividends, loans or other payments,
and do not guarantee the payment of interest on or principal of the Debt
Securities. Any right of the Company to receive any assets of any of its
subsidiaries upon any liquidation, dissolution, winding up, receivership,
reorganization, assignment for the benefit of creditors, marshaling of assets
and liabilities or any bankruptcy, insolvency or similar proceedings of the
Company (and the consequent right of the holders of the Debt Securities to
participate in the distribution of, or to realize proceeds from, those assets)
will be effectively subordinated to the claims of any such subsidiary's
creditors (including trade creditors and holders of debt issued by such
subsidiary). The Company currently conducts substantially all of its
operations through its subsidiaries.
Doing Business Outside the United States. The Company's
involvement in the development of new projects and the acquisition of existing
plants in locations outside the United States is increasing and most of the
Company's current development and acquisition activities are for projects and
plants outside the United States. The Company, through subsidiaries,
affiliates and joint ventures, has ownership interests in 27 power plants
outside the United States in operation or under construction. Five of such
power plants are located in Argentina; four in Brazil; two in England; two in
Northern Ireland; two in Pakistan; eight in the People's Republic of China;
three in Hungary; and one in Kazakhstan.
The financing, development and operation of projects outside
the United States entail significant political and financial uncertainties
(including, without limitation, uncertainties associated with first-time
privatization efforts in the countries involved, currency exchange rate
fluctuations, currency repatriation restrictions, currency inconvertibility,
political instability, civil unrest, and expropriation) and other structuring
issues that have the potential to cause substantial delays in respect of or
material impairment of the value of the project being developed or operated,
which AES may not be capable of fully insuring or hedging against. The
ability to obtain financing on a commercially acceptable non-recourse basis in
developing nations may also require higher investments by the Company than
historically have been the case. In addition, financing in countries with
less than investment grade sovereign credit ratings may also require
substantial participation by multilateral financing agencies. There can be
no assurance that such financing can be obtained when needed.
The uncertainty of the legal environment in certain countries
in which the Company, its subsidiaries and its affiliates are or in the future
may be developing, constructing or operating could make it more difficult for
the Company to enforce its respective rights under agreements relating to such
projects. In addition, the laws and regulations of certain countries may
limit the Company's ability to hold a majority interest in some of the
projects that it may develop or acquire. International projects owned by
the Company may, in certain cases, be expropriated by applicable
governments. Although AES may have legal recourse in enforcing its rights
under agreements and recovering damages for breaches thereof, there can be
no assurance that any such legal proceedings will be successful.
Competition. The global power production market is
characterized by numerous strong and capable competitors, many of whom may
have extensive and diversified developmental or operating experience
(including both domestic and international experience) and financial resources
similar to or greater than the Company. Further, in recent years, the power
production industry has been characterized by strong and increasing
competition with respect to both obtaining power sales agreements and
acquiring existing power generation assets. In certain markets, these factors
have caused reductions in prices contained in new power sales agreements and,
in many cases, have caused higher acquisition prices for existing assets
through competitive bidding practices. The evolution of competitive
electricity markets and the development of highly efficient gas-fired power
plants have also caused, or are anticipated to cause, price pressure in
certain power markets where the Company sells or intends to sell power. There
can be no assurance that the foregoing competitive factors will not have a
material adverse effect on the Company.
Development Uncertainties. The majority of the projects that
AES develops are large and complex and the completion of any such project is
subject to substantial risks. Development can require the Company to expend
significant sums for preliminary engineering, permitting, legal and other
expenses in preparation for competitive bids which the Company may not win or
before it can be determined whether a project is feasible, economically
attractive or capable of being financed. Successful development and
construction is contingent upon, among other things, negotiation on terms
satisfactory to the Company of engineering, construction, fuel supply and
power sales contracts with other project participants, receipt of required
governmental permits and consents and timely implementation and satisfactory
completion of construction. There can be no assurance that AES will be able
to obtain new power sales contracts, overcome local opposition, if any, obtain
the necessary site agreements, fuel supply and ash disposal agreements,
construction contracts, steam sales contracts, licenses and certifications,
environmental and other permits and financing commitments necessary for the
successful development of its projects. There can be no assurance that
development efforts on any particular project, or the Company's efforts
generally, will be successful. If these development efforts are not
successful, the Company may abandon a project under development. At the time
of abandonment, the Company would expense all capitalized development costs
incurred in connection therewith and could incur additional losses associated
with any related contingent liabilities. The future growth of the Company is
dependent, in part, upon the demand for significant amounts of additional
electrical generating capacity and its ability to obtain contracts to supply
portions of this capacity. Any material unremedied delay in, or
unsatisfactory completion of, construction of the Company's projects could,
under certain circumstances, have an adverse effect on the Company's
ability to meet its obligations, including the payment of principal of,
premium, if any and interest on Debt Securities. The Company also is faced
with certain development uncertainties arising out of doing business
outside of the United States. See "--Doing Business Outside the United
States."
Uncertainty of Access to Capital for Future Projects. Each of
AES's projects under development and those independent power facilities it may
seek to acquire may require substantial capital investment. Continued access
to capital with acceptable terms is necessary to assure the success of future
projects and acquisitions. AES has substantially utilized project financing
loans to fund the capital expenditures associated with constructing and
acquiring its electric power plants and related assets. Project financing
borrowings have been substantially non- recourse to other subsidiaries and
affiliates and to AES as the parent company and are generally secured by the
capital stock, physical assets, contracts and cash flow of the related project
subsidiary or affiliate. The Company intends to continue to seek, where
possible, such non-recourse project financing in connection with the assets
which the Company or its affiliates may develop, construct or acquire.
However, depending on market conditions and the unique characteristics of
individual projects, such financing may not be available or the Company's
traditional providers of project financing, particularly multinational
commercial banks, may seek higher borrowing spreads and increased equity
contributions.
Furthermore, because of the reluctance of commercial lending
institutions to provide non-recourse project financing (including financial
guarantees) in certain less developed economies, the Company, in such
locations, has and will continue to seek direct or indirect (through credit
support or guarantees) project financing from a limited number of multilateral
or bilateral international financial institutions or agencies. As a
precondition to making such project financing available, these institutions
may also require governmental guarantees of certain project and sovereign
related risks. Depending on the policies of specific governments, such
guarantees may not be offered and as a result, AES may determine that
sufficient financing will ultimately not be available to fund the related
project.
In addition to the project financing loans, if available, AES
provides a portion, or in certain instances all, of the remaining long-term
financing required to fund development, construction, or acquisition. These
investments have generally taken the form of equity investments or loans,
which are subordinated to the project financing loans. The funds for these
investments have been provided by cash flows from operations and by the
proceeds from borrowings under the short-term credit facilities and issuances
of senior subordinated notes, convertible debentures and common stock of the
Company.
The Company's ability to arrange for financing on either a
fully recourse or a substantially non-recourse basis and the costs of such
capital are dependent on numerous factors, including general economic and
capital market conditions, the availability of bank credit, investor
confidence in the Company, the continued success of current projects and
provisions of tax and securities laws which are conducive to raising capital
in this manner. Should future access to capital not be available, AES may
decide not to build new plants or acquire existing facilities. While a
decision not to build new plants or acquire existing facilities would not
affect the results of operations of AES on its currently operating facilities
or facilities under construction, such a decision would affect the future
growth of AES.
Dependence on Utility Customers and Certain Projects. The
nature of most of AES's power projects is such that each facility generally
relies on one power sales contract with a single customer for the majority, if
not all, of its revenues over the life of the power sales contract. During
1995, four customers, including Connecticut Light & Power Company, a
subsidiary of Northeast Utilities, accounted for 73% of the Company's
revenues. The prolonged failure of any one utility customer to fulfill its
contractual obligations could have a substantial negative impact on AES's
primary source of revenues. AES has sought to reduce this risk in part by
entering into power sales contracts with utilities or other customers of
strong credit quality and by locating its plants in different geographic areas
in order to mitigate the effects of regional economic downturns.
Four of the Company's plants collectively represented
approximately 61% of AES's consolidated total assets at December 31, 1995 and
generated approximately 80% of AES's consolidated total revenues for the year
ended December 31, 1995.
In October 1996, Moody's Investor Service and Standard & Poor's
revised their ratings of the senior unsecured long-term debt of Connecticut
Light & Power Company from Baa3/BBB- to Ba1/BB+.
Regulatory Uncertainty. AES's cogeneration operations in the
United States are subject to the provisions of various laws and regulations,
including the Public Utility Regulatory Policies Act of 1978, as amended
("PURPA") and the Public Utility Holding Company Act, as amended ("PUHCA").
PURPA provides to qualifying facilities ("QFs") certain exemptions from
substantial federal and state legislation, including regulation as public
utilities. PUHCA regulates public utility holding companies and their
subsidiaries. AES is not and will not be subject to regulation as a holding
company under PUHCA as long as the domestic power plants it owns are QFs under
PURPA. QF status is conditioned on meeting certain criteria, and would be
jeopardized, for example, by the loss of a steam customer. The Company
believes that, upon the occurrence of an event that would threaten the QF
status of one of its domestic plants, it would be able to react in a manner
that would avoid the loss of QF status (such as by replacing the steam
customer). In the event the Company were unable to avoid the loss of such
status for one of its plants, to avoid public utility holding company status,
AES could apply to the Federal Energy Regulatory Commission ("FERC") to obtain
status as an Exempt Wholesale Generator ("EWG"), or could restructure the
ownership of the project subsidiary. EWGs, however, are subject to broader
regulation by FERC and may be subject to state public utility commissions
regulation regarding non-rate matters. In addition, any restructuring of a
project subsidiary could result in, among other things, a reduced financial
interest in such subsidiary, which could result in a gain or loss on the sale
of the interest in such subsidiary, the removal of such subsidiary from the
consolidated income tax group or the consolidated financial statements of the
Company, or an increase or decrease in the results of operations of the
Company.
The United States Congress is considering proposed legislation
which would repeal PURPA entirely, or at least repeal the obligation of
utilities to purchase from QFs. There is strong support for grandfathering
existing QF contracts if such legislation is passed, and also support for
requiring utilities to conduct competitive bidding for new electric generation
if the PURPA purchase obligation is eliminated. Various bills have also
proposed repeal of PUHCA. Repeal of PUHCA would allow both independents and
vertically integrated utilities to acquire retail utilities in the United
States that are geographically widespread, as opposed to the current
limitations of PUHCA which require that retail electric systems be capable of
physical integration. In addition, registered holding companies would be free
to acquire non-utility businesses, which they may not do now, with certain
limited exceptions. In the event of a PUHCA repeal, competition for
independent power generators from vertically integrated utilities would likely
increase. Repeal of PURPA and/or PUHCA may or may not be part of
comprehensive legislation to restructure the electric utility industry, allow
retail competition, and deregulate most electric rates. The effect of any such
repeal cannot be predicted, although any such repeal could have a material
adverse effect on the Company.
Electric Utility Industry Restructuring Proposals. The FERC
and many state utility commissions are currently studying a number of
proposals to restructure the electric utility industry in the United States.
Such restructuring would permit utility customers to choose their utility
supplier in a competitive electric energy market. The FERC issued a final rule
in April 1996 which requires utilities to offer wholesale customers and
suppliers open access on utility transmission lines, on a comparable basis to
the utilities' own use of the lines. The final rule is subject to rehearing
and may become the subject of court litigation. Many utilities have already
filed "open access" tariffs. The utilities contend that they should recover
from departing customers their fixed costs that will be "stranded" by the
ability of their wholesale customers (and perhaps eventually, their retail
customers) to choose new electric power suppliers. The FERC final rule
endorses the recovery of legitimate and verifiable "stranded costs." These
may include the costs utilities are required to pay under many QF contracts
which the utilities view as excessive when compared with current market
prices. Many utilities are therefore seeking ways to lower these contract
prices or rescind the contracts altogether, out of concern that their
shareholders will be required to bear all or part of such "stranded" costs.
Some utilities have engaged in litigation against QFs to achieve these
ends.
In addition, future United States electric rates may be
deregulated in a restructured United States electric utility industry and
increased competition may result in lower rates and less profit for United
States electricity sellers. Falling electricity prices and uncertainty as to
the future structure of the industry is inhibiting United States utilities
from entering into long-term power purchase contracts. The effect of any such
restructuring on the Company cannot be predicted, although any such
restructuring could have a material adverse effect on the Company.
Litigation and Regulatory Proceedings. From time to time,
the Company and its affiliates are parties to litigation and
regulatory proceedings. Investors should review the descriptions of
such matters contained in the Company's Annual, Quarterly and Current
Reports filed with the Commission and incorporated by reference herein.
There can be no assurances that the outcome of such matters will not have a
material adverse effect on the Company's consolidated financial position.
Business Subject to Stringent Environmental Regulations. AES's
activities are subject to stringent environmental regulation by federal,
state, local and foreign governmental authorities. For example, the Clean Air
Act Amendments of 1990 impose more stringent standards than those previously
in effect, and require states to impose permit fees on certain emissions.
Congress and other foreign governmental authorities also may consider
proposals to restrict or tax certain emissions. These proposals, if adopted,
could impose additional costs on the operation of AES's power plants. There
can be no assurance that AES would be able to recover all or any increased
costs from its customers or that its business, financial condition or results
of operations would not be materially and adversely affected by future changes
in domestic or foreign environmental laws and regulations. The Company has
made and will continue to make capital and other expenditures to comply with
environmental laws and regulations. There can be no assurance that such
expenditures will not have a material adverse effect on the Company's
financial condition or results of operations.
Control by Existing Stockholders. As of September 30, 1996,
AES's two founders, Roger W. Sant and Dennis W. Bakke, and their immediate
families together owned beneficially approximately 26% of AES's outstanding
Common Stock. As a result of their ownership interests, Messrs. Sant and
Bakke may be able to significantly influence or exert control over the affairs
of AES, including the election of the Company's directors. As of September
30, 1996, all of AES's officers and directors and their immediate families
together owned beneficially approximately 35% of AES's outstanding Common
Stock. To the extent that they decide to vote together, these stockholders
would be able to significantly influence or control the election of AES's
directors, the management and policies of AES and any action requiring
stockholder approval, including significant corporate transactions.
Adherence to AES's Principles--Possible Impact on Results of
Operations. A core part of AES's corporate culture is a commitment to "shared
principles": to act with integrity, to be fair, to have fun and to be socially
responsible. The Company seeks to adhere to these principles not as a means
to achieve economic success, but because adherence is a worthwhile goal in and
of itself. However, if the Company perceives a conflict between these
principles and profits, the Company will try to adhere to its principles--even
though doing so might result in diminished or foregone opportunities or
financial benefits.
No Prior Public Market--Possible Price Volatility of Debt
Securities and Preferred Stock. Prior to the offering, there has been no
public market for the Senior Debt Securities, the Junior Subordinated Debt
Securities or the Preferred Stock. There can be no assurance that an active
trading market for the Senior Debt Securities, the Junior Subordinated Debt
Securities or the Preferred Stock will develop or be sustained. If such a
market were to develop, the Senior Debt Securities, the Junior Subordinated
Debt Securities or the Preferred Stock could trade at prices that may be
higher or lower than their initial offering price depending upon many factors,
including prevailing interest rates, the Company's operating results and the
markets for similar securities. Historically, the market for non-investment
grade debt has demonstrated substantial volatility in the prices of securities
similar to the Debt Securities. There can be no assurance that the future
market for the Debt Securities will not be subject to similar volatility.
DESCRIPTION OF CAPITAL STOCK
Under the Amended and Restated Certificate of Incorporation of
the Company (the "Certificate of Incorporation"), the authorized capital stock
of the Company consists of 100,000,000 shares of Common Stock, par value $.01
per share, and 1,000,000 shares of Preferred Stock, no par value.
The following summary contains a description of certain general
terms of the Common Stock and the Preferred Stock to which any Prospectus
Supplement may relate. Certain terms of any series of Preferred Stock offered
by a Prospectus Supplement will be described in the Prospectus Supplement
relating thereto. If so indicated in the Prospectus Supplement, the terms of
any series may differ from the terms set forth below. The description of
certain material provisions of the Common Stock and the Preferred Stock is
subject to and qualified in its entirety by reference to the provisions of the
Company's Certificate of Incorporation, and, in the case of the Preferred
Stock, to the Certificate of Designation (the "Certificate of Designation")
relating to each particular series of Preferred Stock which will be filed or
incorporated by reference, as the case may be, as an exhibit to the
Registration Statement of which this Prospectus is a part at or prior to the
time of the issuance of such Preferred Stock.
Common Stock
As of September 30, 1996, there were 77,099,303 shares of
Common Stock outstanding.
The holders of Common Stock are entitled to one vote per share
on all matters to be voted upon by the stockholders. Subject to preferences
that may be applicable to any outstanding Preferred Stock, the holders of
Common Stock are entitled to receive ratably such dividends, if any, as may be
declared from time to time by the Board of Directors of the Company (the
"Board of Directors") out of funds legally available therefor. In the event
of the liquidation, dissolution or winding up of the Company, the holders of
Common Stock are entitled to share ratably in all assets remaining after
payment of liabilities, subject to prior distribution rights of the Preferred
Stock, if any, then outstanding. The Common Stock has no preemptive or
conversion rights or other subscription rights. There are no redemption or
sinking fund provisions applicable to the Common Stock. All outstanding
shares of Common Stock are fully paid and non-assessable, and any shares of
Common Stock in respect of which this Prospectus is being delivered will be
fully paid and non-assessable.
The transfer agent for the Company's Common Stock is First
Chicago Trust Company.
Price Range of AES Common Stock and Common Stock Dividends
AES Common Stock began trading on the New York Stock Exchange
on October 16, 1996 under the symbol "AES." Prior to that date, Common Stock
had been quoted on the NASDAQ National Market System ("NASDAQ/NMS") under the
symbol "AESC." The following table sets forth for the periods indicated the
high and low sale prices for the Common Stock as reported by NASDAQ/NMS.
1994 High Low
- ---- -------- -------
First Quarter....... 24 1/2 19 1/2
Second Quarter...... 21 1/2 16
Third Quarter....... 20 1/8 15 3/4
Fourth Quarter...... 21 3/4 17 1/2
1995
- ----
First Quarter....... 19 3/4 16
Second Quarter...... 19 1/4 16
Third Quarter....... 21 5/8 18 1/2
Fourth Quarter...... 24 18 3/4
1996
- ----
First Quarter....... 25 1/4 21
Second Quarter...... 29 5/8 22 1/4
Third Quarter....... 40 1/2 27 7/8
On December 7, 1993, the Board of Directors authorized a three-for-two
stock split, effected in the form of a stock dividend, payable to
stockholders of record on January 15, 1994. Additionally, on February 17,
1994, the Company declared a 3% stock dividend, payable to stockholders of
record on March 10, 1994. No cash dividends have been paid on Common Stock
since December 22, 1993 in order to provide capital for the Company's
equity investments in projects.
The Company's ability to declare and pay dividends is dependent,
among other things, on the ability of its project subsidiaries to declare
and pay dividends (and otherwise distribute cash) to it, the Company's
ability to service its parent company debt and the Company's ability to
meet certain criteria for paying dividends under its corporate credit
facility and under existing indentures of Debt Securities.
The ability of the Company's subsidiaries to declare and pay dividends
and otherwise distribute cash to the Company is subject to certain
limitations in the project loans and other documents entered into by such
project subsidiaries. Such limitations permit the payment of dividends out
of current cash flow for quarterly, semi-annual or annual periods only at
the end of such periods and only after payment of principal and interest on
project loans due at the end of such periods.
Cash dividend payments on Common Stock are limited to a certain
percentage of cash flow under the Company's corporate credit agreement.
The indentures relating to the Company's existing senior subordinated notes
preclude the payment of cash dividends if at the time of such payment or
after giving effect thereto an event of default (as defined) or an event
that, after the giving of notice or lapse of time or both, would become an
event of default, shall have occurred and be continuing, if certain fixed
charge coverage ratios are not met or if the payment of such dividends,
together with other restricted payments, would exceed certain limits.
Preferred Stock
As of September 30, 1996, there were no shares of Preferred
Stock outstanding.
The Board of Directors has the authority to issue Preferred
Stock in one or more classes or series and to fix, by resolution, the rights,
preferences, privileges and restrictions thereof, including dividend rights,
dividend rates, conversion rights, exchange rights, voting rights, terms of
redemption, redemption prices, liquidation preferences and the number of
shares constituting any class or series or the designation of such class or
series, without any further action or vote by the stockholders. Preferred
Stock, if issued, will not be entitled to any preemptive or similar rights.
The applicable Prospectus Supplement will describe the following terms of any
Preferred Stock in respect of which the Prospectus is being delivered (to the
extent applicable to such Preferred Stock): (i) the specific designation,
number of shares, seniority and purchase price; (ii) any liquidation
preference per share; (iii) any date of maturity; (iv) any redemption,
repayment or sinking fund provisions; (v) any dividend rate or rates and the
dates on which any such dividends will be payable (or the method by which such
rates or dates will be determined); (vi) any voting rights; (vii) if other
than the currency of the United States, the currency or currencies including
composite currencies in which such Preferred Stock is denominated and/or in
which payments will or may be payable; (viii) the method by which amounts in
respect of such Preferred Stock may be calculated and any commodities,
currencies or indices, or value, rate or price, relevant to such calculation;
(ix) whether such Preferred Stock is convertible or exchangeable and, if so,
the securities or rights into which such Preferred Stock is convertible or
exchangeable, and the terms and conditions upon which such conversions or
exchanges will be effected including conversion or exchange prices or rates,
the conversion or exchange period and any other related provisions; (x) the
place or places where dividends and other payments on the Preferred Stock will
be payable; and (xi) any additional voting, dividend, liquidation, redemption
and other rights, preferences, privileges, limitations and restrictions.
All shares of Preferred Stock offered hereby, or issuable upon
conversion, exchange or exercise of Securities, will, when issued, be fully
paid and non-assessable. Any shares of Preferred Stock that are issued would
have priority over the Common Stock with respect to dividend or liquidation
rights or both.
The transfer agent for each series of Preferred Stock will be
described in the applicable Prospectus Supplement.
Description of Certain Provisions of Certificate of Incorporation and By-Laws
The Certificate of Incorporation and By-Laws of AES contain
several provisions that may make the acquisition of control of AES by means of
a tender offer, open market purchases, a proxy fight or otherwise more
difficult. Set forth below is a description of certain of these provisions in
the Certificate of Incorporation and By-Laws.
Special Meetings of Stockholders. AES's By-Laws provide that,
unless otherwise prescribed by law, special meetings of stockholders may be
called by a resolution adopted by a majority of the entire Board of Directors,
by the Chairman of the Board or by the President and shall be called by the
Chairman of the Board or by the President upon written request of stockholders
owning at least 10% of stock entitled to vote. Only such business as shall be
specified in the notice of stockholders of the special meeting shall be
considered.
Stockholder Nomination of Directors. AES's By-Laws contain a
procedure for stockholder nomination of directors. The By-Laws provide that
any record owner of stock entitled to be voted generally in the election of
directors may nominate one or more persons for election as a director at a
stockholders meeting only if written notice is given to the Secretary of AES
of the intent to make such nomination. The notice must be given, with respect
to an annual meeting, not later than 90 days in advance of such annual meeting
and with respect to a special meeting, not later than the close of business on
the seventh day following the earlier of (a) the date on which notice of such
special meeting is first given to stockholders and (b) the date on which a
public announcement of such meeting is first made. Each notice must include
(i) the name and address of each stockholder who intends to appear in person
or by proxy to make the nomination and of the person or persons to be
nominated; (ii) a description of all arrangements or understandings between
the stockholder and each nominee and any other person or persons (naming them)
pursuant to which the nomination is to be made by the stockholder; (iii) such
other information regarding each nominee proposed by such stockholder as would
have been included in a proxy statement filed pursuant to Rule 14a-8 under the
Exchange Act; and (iv) the consent of each nominee to serve if elected. The
presiding officer of the meeting may refuse to acknowledge the nomination of
any person not made in compliance with this procedure.
The procedure for stockholder nomination of directors described
above may have the effect of precluding a nomination for election of directors
at a particular meeting if the required procedure is not followed.
Elimination of Liability; Indemnification. Except as set forth
below, the Certificate of Incorporation eliminates the liability of AES's
directors to AES or its stockholders for monetary damages resulting from
breaches of their fiduciary duties as directors. Directors remain liable for
breaches of their duty of loyalty to the Company or its stockholders, as well
as for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law and transactions from which a
director derives improper personal benefit. The Certificate of Incorporation
also does not absolve directors of liability under Section 174 of the Delaware
General Corporation Law (the "GCL"), which makes directors personally liable
for unlawful dividends or unlawful stock repurchases or redemptions if the
unlawful conduct is willful or results from negligence.
Under AES's By-Laws, and in accordance with Section 145 of the
GCL, AES shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other
than any action or suit by or in the right of the Company to procure a
judgment in its favor, a "derivative action") by reason of the fact that such
person is or was a director or officer of or employed by AES, or is or was
serving in such capacity or as an agent at the request of the Company for
another entity, to the full extent authorized by Delaware law, against
expenses (including, but not limited to, attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred in connection
with the defense or settlement of such action, suit or proceeding if such
person acted in good faith and in a manner the person reasonably believed to
be in or not opposed to the best interests of AES, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe was
unlawful. AES shall indemnify persons in a derivative action under the same
conditions, except that no indemnification is permitted without judicial
approval if the person is adjudged to be liable to the Company in the
performance of his or her duty. Agents of the Company may be similarly
indemnified at the discretion of the Board of Directors.
Under Section 145 of the GCL, a similar of care is applicable
in the case of derivative actions, except that indemnification only extends to
expenses (including attorneys' fees) incurred in connection with the defense or
settlement of such an action and then, where the person is adjudged to be
liable to AES, only if and to the extent that the Court of Chancery of the
State of Delaware or the court in which such action was brought determines
that such person is fairly and reasonably entitled to such indemnity and only
for such expenses as the court shall deem proper.
Pursuant to AES's By-Laws, a person eligible for
indemnification may have the expenses incurred in connection with any matter
described above paid in advance of a final disposition by AES. However, such
advances will only be made upon the delivery of an undertaking by or on
behalf of the indemnified person to repay all amounts so advanced if it is
ultimately determined that such person is not entitled to indemnification.
In addition, under AES's By-Laws, the Company may purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of AES or of another corporation against any liability
asserted against and incurred by such person in such capacity, or arising out
of the person's status as such whether or not AES would have the power or the
obligation to indemnify such person against such liability under the
provisions of AES's By-Laws. The Company maintains directors' and officers'
insurance.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities may consist of Senior Debt Securities,
Subordinated Debt Securities or Junior Subordinated Debt Securities. The
Senior Debt Securities will be issued under an indenture (the "Senior Debt
Indenture") between The AES Corporation, as issuer, and The First National
Bank of Chicago, as trustee. The Senior Subordinated Debt Securities will be
issued under an indenture (the "Senior Subordinated Debt Indenture") between
The AES Corporation, as issuer, and The First National Bank of Chicago, as
trustee. The Junior Subordinated Debt Securities will be issued under an
indenture (the "Junior Subordinated Debt Indenture") between The AES
Corporation, as issuer, and The First National Bank of Chicago, as trustee.
The First National Bank of Chicago, in its capacity as trustee under each of
the Indentures, is referred to herein as the "Trustee."
Copies of the Indentures (or the forms thereof) have been
incorporated by reference or included herein as exhibits to the Registration
Statement of which this Prospectus is a part and are also available for
inspection at the office of the Trustee. The Indentures are subject to and
governed by the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"). Section references contained herein are applicable to each of the
Indentures. The following summaries of certain provisions of the Indentures
do not purport to be complete, and where reference is made to particular
provisions of the Indentures, such provisions, including definitions of
certain terms, are incorporated by reference as a part of such summaries or
terms, which are qualified in their entirety by such reference. The
Indentures are substantially identical except for provisions relating to
subordination.
General
None of the Indentures limits the amount of Debt Securities
which may be issued thereunder. Each Indenture provides that Debt Securities
issuable thereunder may be issued up to the aggregate principal amount which
may be authorized from time to time by the Company. Reference is made to the
Prospectus Supplement for the following terms of the Debt Securities (to the
extent such terms are applicable to such Debt Securities) in respect of which
this Prospectus is being delivered (the "Offered Debt Securities"): (i) the
designation, aggregate principal amount and authorized denominations of the
Offered Debt Securities; (ii) the date or dates on which the Offered Debt
Securities will mature; (iii) the rate or rates per annum at which the Offered
Debt Securities will bear interest and the method of calculating such rates,
if any; (iv) the dates on which any such interest will be payable and the
record dates for any such interest payments; (v) any mandatory or optional
redemption terms or prepayment, conversion, sinking fund or exchangeability
provisions; (vi) the place where the principal of and interest on the Offered
Debt Securities will be payable; (vii) if other than denominations of $1,000
or multiples thereof, the denominations in which the Offered Debt Securities
will be issuable; (viii) whether the Offered Debt Securities shall be issued
in the form of Global Securities (as defined below) or certificates; (ix)
additional provisions, if any, relating to the defeasance of the Offered Debt
Securities; (x) the currency or currencies, if other than the currency of the
United States, in which payment of the principal of and interest on the
Offered Debt Securities will be payable; (xi) whether the Offered Debt
Securities will be issuable in registered form or bearer form ("Bearer
Securities") or both and, if Bearer Securities are issuable, any restrictions
applicable to the exchange of one form for another and the offer, sale and
delivery of Bearer Securities; (xii) any applicable United States federal
income tax consequences, including whether and under what circumstances the
Company will pay additional amounts on Offered Debt Securities held by a
person who is not a U.S. Person (as defined in each Prospectus Supplement
relating to any particular series of Debt Securities offered thereby) in
respect of any tax, assessment or governmental charge withheld or deducted
and, if so, whether the Company will have the option to redeem such Offered
Debt Securities rather than pay such additional amounts; (xiii) the dates on
which premium, if any, will be payable; (xiv) the right of the Company, if
any, to defer payment of interest and the maximum length of such deferral
period; (xv) any listing on a securities exchange; (xvi) the initial public
offering price; and (xvii) other specific terms, including any additional
events of default or covenants provided for with respect to the Offered Debt
Securities.
As described in each Prospectus Supplement relating to any
particular series of Debt Securities offered thereby, the Indenture under
which such Debt Securities are issued may contain covenants limiting: (i) the
incurrence of debt by the Company; (ii) the incurrence of debt by subsidiaries
of the Company; (iii) the making of certain payments by the Company and its
subsidiaries; (iv) subsidiary mergers; (v) business activities of the Company
and its subsidiaries; (vi) the issuance of preferred stock of subsidiaries;
(vii) asset dispositions; (viii) transactions with affiliates; (ix) liens; and
(x) mergers and consolidations involving the Company.
Book-Entry System
If so specified in any accompanying Prospectus Supplement
relating to Debt Securities, Debt Securities of any series may be issued under
a book-entry system in the form of one or more global securities (each, a
"Global Security"). Each Global Security will be deposited with, or on behalf
of, a depositary, which, unless otherwise specified in the accompanying
Prospectus Supplement, will be The Depository Trust Company, New York, New
York (the "Depositary"). The Global Securities will be registered in the name
of the Depositary or its nominee.
The Depositary has advised the Company that the Depositary is a
limited purpose trust company organized under the laws of the State of New
York, a "banking organization" within the meaning of the New York banking law,
a member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. The
Depositary was created to hold securities of its participants and to
facilitate the clearance and settlement of securities transactions among its
participants through electronic book-entry changes in accounts of the
participants, thereby eliminating the need for physical movement of securities
certificates. The Depositary's participants include securities brokers and
dealers, banks, trust companies, clearing corporations, and certain other
organizations, some of which (and/or their representatives) own the
Depositary. Access to the Depositary's book-entry system is also available to
others, such as banks, brokers, dealers, and trust companies that clear
through or maintain a custodial relationship with a participant, either
directly or indirectly.
Upon the issuance of a Global Security in registered form, the
Depositary will credit, on its book-entry registration and transfer system,
the respective principal amounts of the Debt Securities represented by such
Global Security to the accounts of participants. The accounts to be credited
will be designated by the underwriters, dealers, or agents, if any, or by the
Company, if such Debt Securities are offered and sold directly by the Company.
Ownership of beneficial interests in the Global Security will be limited to
participants or persons that may hold interests through participants.
Ownership of beneficial interests by participants in the Global Security will
be shown on, and the transfer of that ownership interest will be effected only
through, records maintained by such participants. The laws of some
jurisdictions may require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such laws may impair the
ability to transfer beneficial interests in a Global Security.
So long as the Depositary or its nominee is the owner of record
of a Global Security, the Depositary or such nominee, as the case may be, will
be considered the sole owner or holder of the Debt Securities represented by
such Global Security for all purposes under the Indenture under which such
Debt Securities are issued. Except as set forth below, owners of beneficial
interests in a Global Security will not be entitled to have the Debt Security
represented by such Global Security registered in their names, and will not
receive or be entitled to receive physical delivery of such Debt Securities in
definitive form and will not be considered the owners or holders thereof under
the Indenture under which such Debt Securities are issued. Accordingly, each
person owning a beneficial interest in a Global Security must rely on the
procedures of the Depositary and, if such person is not a participant, on the
procedures of the participant through which such person owns its interest, to
exercise any rights of a holder of record under the applicable Indenture
pursuant to which the Debt Securities relating to such Global Security are
issued. The Company understands that under existing industry practices, if
the Company requests any action of holders or if any owner of a beneficial
interest in a Global Security desires to give or take any action which a
holder is entitled to give or take under the applicable Indenture, the
Depositary would authorize the participants holding the relevant beneficial
interests to give or take such action, and such participants would authorize
beneficial owners owning through such participants to give or take such action
or would otherwise act upon the instruction of beneficial owners holding
through them.
Payments of principal of, premium, if any, and interest on Debt
Securities represented by a Global Security registered in the name of the
Depositary or its nominee will be made to such Depositary or such nominee, as
the case may be, as the registered owner of such Global Security. None of the
Company, the Trustee or any other agent of the Company or agent of the Trustee
will have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests in
such Global Security or for maintaining, supervising, or reviewing any records
relating to such beneficial ownership interests.
The Company has been advised by the Depositary that the
Depositary will credit participants, accounts with payments of principal,
premium, if any, or interest on the payment date thereof in amounts
proportionate to their respective beneficial interests in the principal amount
of the Global Security as shown on the records of the Depositary. The Company
expects that payments by participants to owners of beneficial interests in the
Global Security held through such participants will be governed by standing
instructions and customary practices, as is now the case with securities held
for the accounts of customers registered in "street name," and will be the
responsibility of such participants.
A Global Security may not be transferred except as a whole by
the Depositary to a nominee or successor of the Depositary or by a nominee of
the Depositary to another nominee of the Depositary. A Global Security
representing all but not part of an offering of Offered Debt Securities hereby
is exchangeable for Debt Securities in definitive form of like tenor and terms
if (i) the Depositary notifies the Company that it is unwilling or unable to
continue as depositary for such Global Security or if at any time the
Depositary is no longer eligible to be or in good standing as a clearing
agency registered under the Exchange Act, and in either case, a successor
depositary is not appointed by the Company within 90 days of receipt by the
Company of such notice or of the Company becoming aware of such ineligibility,
or (ii) the Company in its sole discretion at any time determines not to have
all of the Debt Securities represented in an offering of Offered Debt
Securities by a Global Security and notifies the Trustee thereof. A Global
Security exchangeable pursuant to the preceding sentence shall be exchangeable
for Debt Securities registered in such names and in such authorized
denominations as the Depositary for such Global Security shall direct. The
Debt Securities of a series may also be issued in the form of one or more
bearer global Debt Securities (a "Bearer Global Security") that will be
deposited with a common depositary for Euro-clear and CEDEL, or with a nominee
for such depositary identified in the Prospectus Supplement relating to such
series. The specific terms and procedures, including the specific terms of
the depositary arrangement, with respect to any portion of a series of Debt
Securities to be represented by a Bearer Global Security will be described in
the Prospectus Supplement relating to such series.
Senior Debt Securities
The payment of principal of, premium, if any, and interest on
the Senior Debt Securities will, to the extent and in the manner set forth in
the Senior Debt Indenture, rank pari passu with all unsecured and
unsubordinated Debt of the Company.
"Debt" is defined to mean, with respect to any person at any
date of determination (without duplication), (i) all indebtedness of such
person for borrowed money, (ii) all obligations of such person evidenced by
bonds, debentures, notes or other similar instruments, (iii) all obligations
of such person in respect of letters of credit or bankers' acceptance or other
similar instruments (or reimbursement obligations with respect thereto), (iv)
all obligations of such person to pay the deferred purchase price of property
or services, except trade payables, (v) all obligations of such person as
lessee under capitalized leases, (vi) all Debt of others secured by a lien on
any asset of such person, whether or not such Debt is assumed by such person;
provided that, for purposes of determining the amount of any Debt of the type
described in this clause, if recourse with respect to such Debt is limited to
such asset, the amount of such Debt shall be limited to the lesser of the fair
market value of such asset or the amount of such Debt, (vii) all Debt of
others guaranteed by such person to the extent such Debt is guaranteed by such
person, (viii) all redeemable stock valued at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends and (ix)
to the extent not otherwise included in this definition, all obligations of
such person under currency agreements and interest rate agreements.
Subordination of Senior Subordinated Debt Securities
The payment of principal of, premium, if any, and interest on
the Senior Subordinated Debt Securities will, to the extent and in the manner
set forth in the Senior Subordinated Debt Indenture, be subordinated in right
of payment to the prior payment in full, in cash equivalents, of all Senior
Debt.
Upon any payment or distribution of assets to creditors upon
any liquidation, dissolution, winding up, receivership, reorganization,
assignment for the benefit of creditors, marshaling of assets and liabilities
or any bankruptcy, insolvency or similar proceedings of the Company, the
holders of all Senior Debt will first be entitled to receive payment in full
of all amounts due or to become due thereon before the holders of the Senior
Subordinated Debt Securities will be entitled to receive any payment in
respect of the principal of, premium, if any, or interest on the Senior
Subordinated Debt Securities.
No payments on account of principal, premium, if any, or
interest in respect of the Senior Subordinated Debt Securities may be made by
the Company if there shall have occurred and be continuing a default in any
payment with respect to Senior Debt. In addition, during the continuance of
any other event of default (other than a payment default) with respect to
Designated Senior Debt pursuant to which the maturity thereof may be
accelerated, from and after the date of receipt by the Trustee of written
notice from the holders of such Designated Senior Debt or from an agent of
such holders, no payments on account of principal, premium, if any, or
interest in respect of the Senior Subordinated Debt Securities may be made by
the Company for a period (the "Payment Blockage Period") commencing on the
date of delivery of such notice and ending 179 days thereafter (unless such
Payment Blockage Period shall be terminated by written notice to the Trustee
from the holders of such Designated Senior Debt or from an agent of such
holders, or such event of default has been cured or waived or has ceased to
exist). Only one Payment Blockage Period may be commenced with respect to the
Senior Subordinated Debt Securities during any period of 360 consecutive days.
No event of default which existed or was continuing on the date of the
commencement of any Payment Blockage Period with respect to the Designated
Senior Debt initiating such Payment Blockage Period shall be or be made the
basis for the commencement of any subsequent Payment Blockage Period by the
holders of such Designated Senior Debt, unless such event of default shall
have been cured or waived for a period of not less than 90 consecutive days.
By reason of such subordination, in the event of insolvency,
funds that would otherwise be payable to holders will be paid to the holders
of Senior Debt to the extent necessary to pay the Senior Debt in full, and the
Company may be unable to meet fully its obligations with respect to the Senior
Subordinated Debt Securities.
"Designated Senior Debt" is defined to mean (i) Debt under the
Credit Agreement dated as of August 2, 1996 (the "Credit Agreement") among the
Company, the Banks named on the signature pages thereof and the Morgan
Guaranty Trust Company of New York, as agent for the banks, as such Credit
Agreement has been and may be amended, restated, supplemented or otherwise
modified from time to time and (ii) Debt constituting Senior Debt which, at
the time of its determination, (A) has an aggregate principal amount of at
least $30 million and (B) is specifically designated in the instrument
evidencing such Senior Debt as "Designated Senior Debt" by the Company.
"Senior Debt" is defined to mean the principal of (and premium,
if any) and interest on all Debt of the Company whether created, incurred or
assumed before, on or after the date of the Senior Subordinated Debt
Indenture; provided that Senior Debt shall not include (i) the Company's 9
3/4% Senior Subordinated Notes Due 2000 and the Company's 10 1/4% Senior
Subordinated Notes due 2006 which rank pari passu with the Senior Subordinated
Debt Securities, (ii) Debt of the Company to any affiliate, (iii) Debt of the
Company that, when incurred, and without respect to any election under Section
1111(b) of Title 11, U.S. Code, was without recourse, (iv) any other Debt of
the Company which by the terms of the instrument creating or evidencing the
same are specifically designated as not being senior in right of payment to
the Senior Subordinated Debt Securities and (v) redeemable stock of the
Company.
Subordination of Junior Subordinated Debt Securities
The payment of principal of, premium, if any, and interest on
the Junior Subordinated Debt Securities will, to the extent and in the manner
set forth in the Junior Subordinated Debt Indenture, be subordinated in right
of payment to the prior payment in full, in cash or cash equivalents, of all
Senior Indebtedness of the Company.
Upon any payment or distribution of assets to creditors upon
any liquidation, dissolution, winding up, receivership, reorganization,
assignment for the benefit of creditors, marshaling of assets and liabilities
or any bankruptcy, insolvency or similar proceedings of the Company, the
holders of all Senior Indebtedness will first be entitled to receive payment
in full of all amounts due or to become due thereon before the holders of the
Junior Subordinated Debt Securities will be entitled to receive any payment in
respect of the principal of, premium, if any, or interest on the Junior
Subordinated Debt Securities.
No payments on account of principal, premium, if any, or
interest in respect of the Junior Subordinated Debt Securities may be made by
the Company if there shall have occurred and be continuing a default in any
payment with respect to Senior Indebtedness. In addition, during the
continuance of any other event of default (other than a payment default) with
respect to Designated Senior Indebtedness pursuant to which the maturity
thereof may be accelerated, from and after the date of receipt by the Trustee
of written notice from holders of such Designated Senior Indebtedness or from
an agent of such holders, no payments on account of principal, premium, if
any, or interest may be made by the Company during a Payment Blockage Period
in respect of such Junior Subordinated Debt Securities (unless such Payment
Blockage Period shall be terminated by written notice to the Trustee from the
holders of such Designated Senior Indebtedness or from an agent of such
holders, or such event of default has been cured or waived or has ceased to
exist). Only one Payment Blockage Period may be commenced with respect to the
Junior Subordinated Debt Securities during any period of 360 consecutive days.
No event of default which existed or was continuing on the date of the
commencement of any Payment Blockage Period with respect to the Designated
Senior Indebtedness initiating such Payment Blockage Period shall be or be
made the basis for the commencement of any subsequent Payment Blockage Period
by the holders of such Designated Senior Indebtedness, unless such event of
default shall have been cured or waived for a period of not less than 90
consecutive days.
By reason of such subordination, in the event of insolvency,
funds that would otherwise be payable to holders of Junior Subordinated Debt
Securities will be paid to the holders of Senior Indebtedness of the Company
to the extent necessary to pay such Debt in full, and the Company may be
unable to meet fully its obligations with respect to the Junior Subordinated
Debt Securities.
"Designated Senior Indebtedness" is defined to mean (i) Debt
under the Credit Agreement and (ii) Debt constituting Senior Indebtedness
which, at the time of its determination, (A) has an aggregate principal amount
of at least $30 million and (B) is specifically designated in the instrument
evidencing such Senior Indebtedness as "Designated Senior Indebtedness" by the
Company.
"Senior Indebtedness" is defined to mean the principal of (and
premium, if any) and interest on all Debt of the Company whether created,
incurred or assumed before, on or after the date of the Junior Subordinated
Debt Indenture; provided that such Senior Indebtedness shall not include (i)
Debt of the Company that, when incurred and without respect to any election
under Section 1111(b) of Title 11, U.S. Code, was without recourse, (ii) any
other Debt of the Company which by the terms of the instrument creating or
evidencing the same are specifically designated as not being senior in right
of payment to the Junior Subordinated Debt Securities, and in particular the
Junior Subordinated Debt Securities shall rank pari passu with all other debt
securities and guarantees issued to an AES Trust or any other trust,
partnership or other entity affiliated with the Company which is a financing
vehicle of the Company in connection with an issuance of preferred securities
by such financing entity, and (iii) redeemable stock of the Company.
Events of Default
An Event of Default, as defined in each of the Indentures and
applicable to Debt Securities issued under such Indenture, will occur with
respect to the Debt Securities of any series issued under such Indenture if:
(i) the Company defaults in the payment of principal of (or premium, if any,
on) any Debt Security of such series issued under such Indenture when the same
becomes due and payable at maturity, upon acceleration, redemption, mandatory
repurchase, or otherwise; (ii) the Company defaults in the payment of interest
on any Debt Security of such series issued under such Indenture when the same
becomes due and payable, and such default continues for a period of 30 days;
(iii) the Company defaults in the performance of or breaches any other
covenant or agreement of the Company in such Indenture with respect to the
Debt Securities of any series issued under such Indenture and such default or
breach continues for a period of 30 consecutive days after written notice by
the Trustee or by the holders (as defined in the Indenture) of 25% or more in
aggregate principal amount of the Debt Securities of all series issued under
such Indenture; (iv) a court having jurisdiction in the premises enters a
decree or order for (A) relief in respect of the Company or any of its
subsidiaries in an involuntary case under any applicable bankruptcy,
insolvency, or other similar law now or hereafter in effect, (B) appointment
of a receiver, liquidator, assignee, custodian, trustee, sequestrator, or
similar official of the Company or any of its subsidiaries or for all or
substantially all of the property and assets of the Company or any of its
subsidiaries or (C) the winding up or liquidation of the affairs of the
Company or any of its subsidiaries and, in each case, such decree or order
shall remain unstayed and in effect for a period of 60 consecutive days; (v)
the Company or any of its subsidiaries (A) commences a voluntary case under
any applicable bankruptcy, insolvency, or other similar law now or
hereafter in effect, or consents to the entry of an order for relief in an
involuntary case under any such law, (B) consents to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator, or similar official of the Company or any of its subsidiaries
or for all or substantially all of the property and assets of the Company
or any of its subsidiaries or (C) effects any general assignment for the
benefit of creditors; and (vi) any other Events of Default set forth in the
applicable Prospectus Supplement occur.
If an Event of Default (other than an Event of Default
specified in clause (iv) or (v) above that occurs with respect to the Company)
occurs with respect to the Debt Securities of any series issued under an
Indenture, and if such Event of Default is continuing under such Indenture,
then, and in each and every such case, except for any series of Debt
Securities issued under such Indenture the principal of which shall have
already become due and payable, either the Trustee or the holders of not less
than 25% in aggregate principal amount of the Debt Securities of any such
series issued under such Indenture (each such series voting as a separate
class) by written notice to the Company (and to the Trustee if such notice is
given by the holders (the "Acceleration Notice")), may, and the Trustee at the
request of such holders shall, declare the principal of, premium, if any, and
accrued interest on the Debt Securities of such series to be immediately due
and payable. Upon a declaration of acceleration, such principal of, premium,
if any, and accrued interest shall be immediately due and payable. If an
Event of Default specified in clause (iv) or (v) above occurs with respect to
the Company, the principal of, premium, if any, and accrued interest on the
Debt Securities then outstanding under each of the Indentures shall ipso facto
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any holder. The holders of at least a majority
in principal amount of the outstanding Debt Securities of any series under an
Indenture may, by written notice to the Company and to the Trustee, waive all
past defaults with respect to Debt Securities of such series and rescind and
annul a declaration of acceleration with respect to Debt Securities of such
series and its consequences if (i) all existing Events of Default applicable
to Debt Securities of such series, other than the nonpayment of the principal
of, premium, if any, and interest on the Debt Securities that have become due
solely by such declaration of acceleration, have been cured or waived and (ii)
the rescission would not conflict with any judgment or decree of a court of
competent jurisdiction. For information as to the waiver of defaults, see
"--Modification and Waiver."
The holders of at least a majority in aggregate principal
amount of the outstanding Debt Securities of any series under an Indenture may
direct the time, method, and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee. However, the Trustee may refuse to follow any direction that
conflicts with law or the applicable Indenture, that may involve the Trustee
in personal liability, or that the Trustee determines in good faith may be
unduly prejudicial to the rights of holders of such series of Debt Securities
not joining in the giving of such direction and may take any other action it
deems proper that is not inconsistent with any such direction received from
holders of Debt Securities of such series. A holder may not pursue any remedy
with respect to the applicable Indenture or the Debt Securities of any series
issued under such Indenture unless: (i) the holder gives the Trustee written
notice of a continuing Event of Default; (ii) the holders of at least 25% in
aggregate principal amount of outstanding Debt Securities of such series make
a written request to the Trustee to pursue the remedy; (iii) such holder or
holders offer the Trustee indemnity satisfactory to the Trustee against any
costs, liability or expense; (iv) the Trustee does not comply with the request
within 60 days after receipt of the request and the offer of indemnity; and
(v) during such 60-day period, the holders of a majority in aggregate
principal amount of the outstanding Debt Securities of such series do not give
the Trustee a direction that is inconsistent with the request. However, such
limitations do not apply to the right of any holder of a Debt Security to
receive payment of the principal of, premium, if any, or interest on, such
Debt Security or to bring suit for the enforcement of any such payment, on or
after the due date expressed in the Debt Securities, which right shall not be
impaired or affected without the consent of the holder.
Each of the Indentures requires that certain officers of the
Company certify, on or before a date not more than four months after the end
of each fiscal year, that to the best of such officers, knowledge, the Company
has fulfilled all its obligations under such Indenture. The Company is also
obligated to notify the Trustee of any default or defaults in the performance
of any covenants or agreements under any of the Indentures.
Modification and Waiver
Each of the Indentures provides that the Company and the
Trustee may amend or supplement such Indenture or the Debt Securities of any
series issued under such Indenture without notice to or the consent of any
holder: (i) to cure any ambiguity, defect, or inconsistency in such Indenture;
provided that such amendments or supplements shall not adversely affect the
interests of the holders in any material respect; (ii) to comply with Article
5 of such Indenture; (iii) to comply with any requirements of the Commission
in connection with the qualification of such Indenture under the Trust
Indenture Act of 1939, as amended; (iv) to evidence and provide for the
acceptance of appointment with respect to the Debt Securities of any or all
series issued under such Indenture by a successor Trustee; (v) to establish
the form or forms of Debt Securities of any series issued under such Indenture
or of the coupons pertaining to such Debt Securities as permitted by such
Indenture; (vi) to provide for uncertificated Debt Securities and to make all
appropriate changes for such purpose; and (vii) to make any change that does
not materially and adversely affect the rights of any holder.
Each of the Indentures also provides that modifications and
amendments of such Indenture may be made by the Company and the Trustee with
the consent of the holders of not less than a majority in aggregate principal
amount of the outstanding Debt Securities of each series issued under such
Indenture affected thereby (each series voting as a separate class); provided,
however, that no such modification or amendment may, without the consent of
each holder affected thereby, (i) change the stated maturity of the principal
of, or any sinking fund obligation or any installment of interest on, any Debt
Security issued under such Indenture, (ii) reduce the principal amount of, or
premium, if any, or interest on, any Debt Security issued under such
Indenture, (iii) reduce the above-stated percentage of outstanding Debt
Securities issued under such Indenture the consent of whose holders is
necessary to modify or amend such Indenture with respect to the Debt
Securities of any series issued under such Indenture, (iv) reduce the
percentage or aggregate principal amount of outstanding Debt Securities of any
series issued under the Indenture the consent of whose holders is necessary
for waiver of compliance with certain provisions of such Indenture or for
waiver of certain defaults. A supplemental indenture which changes or
eliminates any covenant or other provision of an Indenture which has expressly
been included solely for the benefit of one or more particular series of Debt
Securities issued under such Indenture, or which modifies the rights of
holders of Debt Securities of such series with respect to such covenant or
provision, shall be deemed not to affect the rights under the applicable
Indenture of the holders of Debt Securities of any other series issued under
such Indenture or of the coupons appertaining to such Debt Securities. It
shall not be necessary for the consent of the holders under this section of an
Indenture to approve the particular form of any proposed amendment,
supplement, or waiver, but it shall be sufficient if such consent approves the
substance thereof. After an amendment, supplement, or waiver under this
section of an Indenture becomes effective, the Company shall give to the
holders affected thereby a notice briefly describing the amendment,
supplement, or waiver. The Company will mail supplemental indentures to
holders upon request. Any failure of the Company to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity
of any such supplemental indenture or waiver.
Restriction on Mergers, Consolidations and Sales of Assets
Pursuant to the Indentures, the Company may not consolidate
with, merge with or into, or transfer all or substantially all of its assets
(as an entirety or substantially an entirety in one transaction or a series of
related transactions), to any Person (as defined in the Indentures) unless:
(i) the Company shall be the continuing Person, or the Person (if other than
the Company) formed by such consolidation or into which the Company is merged
or to which properties and assets of the Company are transferred shall be a
solvent corporation organized and existing under the laws of the United States
or any State thereof or the District of Columbia and shall expressly assume in
writing all the obligations of the Company under the Notes, (ii) immediately
after giving effect to such transaction no Event of Default or event or
condition which through the giving of notice or lapse of time or both would
become an Event of Default shall have occurred and be continuing and (iii)
such other conditions as may be established in connection with the issuance of
the applicable Debt Securities.
Defeasance and Discharge
Each of the Indentures provides that the Company shall be
deemed to have paid and shall be discharged from any and all obligations in
respect of the Debt Securities of any series issued under such Indenture on
the 123rd day after the deposit referred to below has been made, and the
provisions of such Indenture will no longer be in effect with respect to the
Debt Securities of such series issued thereunder (except for, among other
matters, certain obligations to register the transfer or exchange of the Debt
Securities of such series, to replace stolen, lost or mutilated Debt
Securities of such series, to maintain paying agencies and to hold monies for
payment in trust) if, among other things, (A) the Company has deposited with
the Trustee, in trust, money and/or U.S. Government Obligations that through
the payment of interest and principal in respect thereof, in accordance with
their terms will provide money in an amount sufficient to pay the principal
of, premium, if any, and accrued interest on the applicable Debt Securities,
on the due date thereof or earlier redemption (irrevocably provided for under
arrangements satisfactory to the Trustee), as the case may be, in accordance
with the terms of such Indenture and the applicable Debt Securities, (B) the
Company has delivered to the Trustee (i) either (x) an opinion of counsel to
the effect that holders will not recognize income, gain or loss for federal
income tax purposes as a result of the Company's exercise of its option under
this "Defeasance" provision and will be subject to federal income tax on the
same amount and in the same manner and at the same times as would have been
the case if such deposit, defeasance and discharge had not occurred, which
opinion of counsel must be based upon a ruling of the Internal Revenue Service
to the same effect unless there has been a change in applicable federal income
tax law or related treasury regulations after the date of such Indenture that
a ruling is no longer required or (y) a ruling directed to the Trustee
received from the Internal Revenue Service to the same effect as the
aforementioned opinion of counsel and (ii) an opinion of counsel to the effect
that the creation of the defeasance trust does not violate the Investment
Company Act of 1940 and after the passage of 123 days following the deposit,
the trust fund will not be subject to the effect of Section 547 of the U.S.
Bankruptcy Code or Section 15 of the New York Debtor and Creditor Law, (C)
immediately after giving effect to such deposit on a pro forma basis, no Event
of Default, or event that after the giving of notice or lapse of time or both
would become an Event of Default, shall have occurred and be continuing on the
date of such deposit or during the period ending on the 123rd day after the
date of such deposit, and such deposit shall not result in a breach or
violation of, or constitute a default under, any other agreement or instrument
to which the Company is a party or by which the Company is bound, (D) the
Company is not prohibited from making payments in respect of the applicable
Debt Securities by the subordination provisions contained in such Indenture
and (E) if at such time the applicable Debt Securities are listed on a
national securities exchange, the Company has delivered to the Trustee an
opinion of counsel to the effect that such Debt Securities will not be
delisted as a result of such deposit, defeasance and discharge.
As more fully described in the Prospectus Supplement, each of
the Indentures also provides for defeasance of certain covenants.
DESCRIPTION OF STOCK PURCHASE CONTRACTS
AND STOCK PURCHASE UNITS
AES may issue Stock Purchase Contracts, representing contracts obligating
holders to purchase from the Company, and the Company to sell to the holders,
a specified number of shares of Common Stock at a future date or dates. The
price per share of Common Stock may be fixed at the time the Stock Purchase
Contracts are issued or may be determined by reference to a specific formula
set forth in the Stock Purchase Contracts. The Stock Purchase Contracts may
be issued separately or as a part of units ("Stock Purchase Units") consisting
of a Stock Purchase Contract and Debt Securities or debt obligations of third
parties, including U.S. Treasury securities, securing the holders' obligations
to purchase the Common Stock under the Stock Purchase Contracts. The Stock
Purchase Contracts may require AES to make periodic payments to the holders of
the Stock Purchase Units or vice versa, and such payments may be unsecured or
prefunded on some basis. The Stock Purchase Contracts may require holders to
secure their obligations thereunder in a specified manner.
The applicable Prospectus Supplement will describe the terms of any Stock
Purchase Contracts or Stock Purchase Units. The description in the Prospectus
Supplement will not purport to be complete and will be qualified in its
entirety by reference to the Stock Purchase Contracts, and, if applicable,
collateral arrangements and depositary arrangements, relating to such Stock
Purchase Contracts or Stock Purchase Units.
PLAN OF DISTRIBUTION
The Company may sell the Offered Securities in any of three
ways (or in any combination thereof): (i) through underwriters or dealers;
(ii) directly to a limited number of purchasers or to a single purchaser; or
(iii) through agents. The Prospectus Supplement with respect to any Offered
Securities will set forth the terms of the offering of such Offered
Securities, including the name or names of any underwriters, dealers or agents
and the respective amounts of such Offered Securities underwritten or
purchased by each of them, the initial public offering price of such Offered
Securities and the proceeds to the Company from such sale, any discounts,
commissions or other items constituting compensation from the Company and any
discounts, commissions or concessions allowed or reallowed or paid to dealers
and any securities exchanges on which such Offered Securities may be listed.
Any initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
If underwriters are used in the sale of any Offered Securities,
such Offered Securities will be acquired by the underwriters for their own
account and may be resold from time to time in one or more transactions,
including negotiated transactions, at a fixed public offering price or at
varying prices determined at the time of sale. Such Offered Securities may be
either offered to the public through underwriting syndicates represented by
managing underwriters, or directly by underwriters. Unless otherwise set
forth in the Prospectus Supplement, the obligations of the underwriters to
purchase such Offered Securities will be subject to certain conditions
precedent and the underwriters will be obligated to purchase all of such
Offered Securities if any are purchased.
Offered Securities may be sold directly by the Company or
through agents designated by the Company from time to time. Any agent
involved in the offer or sale of Offered Securities in respect of which this
Prospectus is delivered will be named, and any commissions payable by the
Company to such agent will be set forth, in the Prospectus Supplement. Unless
otherwise indicated in the Prospectus Supplement, any such agent will be
acting on a best efforts basis for the period of its appointment.
If so indicated in the Prospectus Supplement, the Company will
authorize underwriters, dealers or agents to solicit offers by certain
purchasers to purchase Offered Securities from the Company at the public
offering price set forth in the Prospectus Supplement pursuant to delayed
delivery contracts providing for payment and delivery on a specified date in
the future. Such contracts will be subject only to those conditions set forth
in the Prospectus Supplement, and the Prospectus Supplement will set forth the
commission payable for solicitation of such contracts.
Agents and underwriters may be entitled under agreements
entered into with the Company to indemnification by the Company against
certain civil liabilities, including liabilities under the Securities Act, or
to contribution with respect to payments which the agents or underwriters may
be required to make in respect thereof. Agents and underwriters may be
customers of, engage in transactions with, or perform services for the Company
in the ordinary course of business.
LEGAL MATTERS
The legality of the Securities offered hereby will be passed
upon for the Company by Davis Polk & Wardwell.
EXPERTS
The consolidated financial statements incorporated in this
Prospectus by reference from the Company's Registration Statement on Form S-3
filed on June 12, 1996, and the consolidated financial statement schedules
incorporated in this Prospectus by reference from the Company's Annual Report
on Form 10-K for the year ended December 31, 1995 have been audited by
Deloitte & Touche LLP, independent auditors, as stated in their reports, which
are incorporated by reference herein, and such consolidated financial
statements and consolidated financial statement schedules have been so
incorporated in reliance upon the reports of such firm given upon their
authority as experts in accounting and auditing.
The financial statements of Light Servicos de Electricidade S.A.
incorporated in this Prospectus by reference, from the Form 8-K of the AES
Corporation dated May 30, 1996, for the years ended December 31, 1995 and
1994 have been audited by Deloitte Touche Tohmatsu, Rio de Janeiro, Brazil,
independent auditors, as stated in their reports, which are incorporated
herein by reference, and have been so incorporated in reliance upon the
reports of such firm given upon their authority as experts in accounting
and auditing.
======================================== ====================================
No person has been authorized to give
any information or to make any
representations,other than those $750,000,000
contained or incorporated by reference
in this Prospectus or any Prospectus
Supplement, in connection with any
offering contemplated hereby, and, if The AES Corporation
given or made, such information or
representations must not be relied upon Debt Securities
as having been authorized by the company, Common Stock
any underwriter, agent or dealer. Preferred Stock
Neither the delivery of this Prospectus Stock Purchase Contracts
or any Prospectus Supplement nor any Stock Purchase Units
sale made hereunder or thereunder
shall under any circumstances create
any implication that there has been no
change in the affairs of the Company
since the date hereof or thereof.
Neither this Prospectus nor any __________
Prospectus Supplement shall constitute PROSPECTUS
an offer to sell or a solicitation of an __________
offer to buy any securities by
anyone in any jurisdiction in which
such offer or solicitation is not
authorized or in which the person
making such offer or solicitation is not
qualified to do so or to any person
to whom it is unlawful to make such
offer or solicitation.
Table of Contents
Page
----
Available Information............... 1
Incorporation of Certain Information
by Reference...................... 1
Use of Proceeds..................... 2
Ratios of Earnings to Fixed Charges. 2
The Company......................... 3
Risk Factors........................ 4
Description of Capital Stock........ 10
Description of Debt Securities...... 14
Description of Stock Purchase
Contracts and Stock Purchase
Units.............................. 22
Plan of Distribution................. 23
Legal Matters........................ 23
Experts.............................. 23 , 1996
======================================== ====================================
SUBJECT TO COMPLETION, DATED NOVEMBER 4, 1996
PROSPECTUS
[LOGO]
The AES Corporation
$750,000,000
Junior Subordinated Debt Securities
AES Trust I
AES Trust II
Preferred Trust Securities guaranteed to the extent set forth herein by The
AES Corporation
The AES Corporation (the "Company" or "AES") may from time to time offer,
together or separately unsecured junior subordinated securities (the "Junior
Subordinated Debt Trust Securities") consisting of debentures, notes or other
evidences of indebtedness in one or more series and in amounts, at prices and
on terms to be determined at or prior to the time of any such offering. The
Junior Subordinated Debt Trust Securities when issued will be unsecured
obligations of the Company. The Company's obligations under the Junior
Subordinated Debt Trust Securities will be subordinate and junior in right of
payment to all Senior Indebtedness (as defined herein) of the Company.
See "Risk Factors" Beginning On Page 4 For A Discussion of Certain
Factors That Should Be Considered By Prospective Investors.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
AES Trust I and AES Trust II (collectively, the "AES Trusts"), each a
statutory business trust formed under the laws of the State of Delaware, may
offer and sell, from time to time, preferred trust securities representing
undivided beneficial interests in the assets of the respective AES Trust (the
"Preferred Securities" and, together with the Junior Subordinated Debt Trust
Securities, the "Securities"). The Preferred Securities may be offered in
amounts, at prices and on terms to be determined at or prior to the time of
any such offering. The payment of periodic cash distributions
("distributions") with respect to Preferred Securities of each of the AES
Trusts out of moneys held by the Property Trustee (as defined herein) of each
of the AES Trusts, and payments on liquidation of each AES Trust and on
redemption of Preferred Securities of such AES Trust, will be guaranteed by
the Company as and to the extent described herein (each such guarantee, a
"Preferred Securities Guarantee"). See "Description of the Preferred
Securities Guarantees." The Company's obligation under each Preferred
Securities Guarantee is an unsecured obligation of the Company and will rank
(i) subordinate and junior in right of payment to all other liabilities of the
Company, including the Junior Subordinated Debt Trust Securities, except those
made pari passu or subordinate by their terms, and (ii) senior to all capital
stock now or hereafter issued by the Company and to any guarantee now or
hereafter entered into by the Company in respect of any of its capital stock.
Junior Subordinated Debt Trust Securities may be issued and sold from time to
time in one or more series by the Company to an AES Trust, or a trustee of such
trust, in connection with the investment of the proceeds from the offering of
Preferred Securities and Common Securities (as defined herein) of such AES
Trust. The Junior Subordinated Debt Trust Securities purchased by an AES
Trust may be subsequently distributed pro rata to holders of Preferred
Securities and Common Securities in connection with the dissolution of such
AES Trust, upon the occurrence of certain events as may be described in an
accompanying Prospectus Supplement.
Specific terms of the Junior Subordinated Debt Trust Securities and
Preferred Securities in respect of which this Prospectus is being delivered
(the "Offered Securities") will be set forth in a Prospectus Supplement
with respect to such Offered Securities, which will describe, without
limitation and where applicable, the following: (i) in the case of Junior
Subordinated Debt Trust Securities, the specific designation, aggregate
principal amount, authorized denomination, maturity, premium, if any,
exchangeability, redemption, conversion, prepayment or sinking fund
provisions, if any, interest rate (which may be fixed or variable), if any,
method, if any, of calculating interest payments, and dates for payment
thereof, dates on which premium, if any, will be payable, the right of the
Company, if any, to defer payment of interest on the Junior Subordinated
Debt Trust Securities and the maximum length of such deferral period, the
public offering price, any listing on a securities exchange and other
specific terms of the offering; and (ii) in the case of Preferred
Securities, the specific designation, number of securities, liquidation
amount per security, initial public offering price, and any listing on a
securities exchange, distribution rate (or method of calculation thereof),
dates on which distributions shall be payable and dates from which
distributions shall accrue, voting rights (if any), terms for any
conversion or exchange into other securities, any redemption or sinking
fund provisions, any other rights, preferences, privileges, limitations or
restrictions relating to the Preferred Securities and the terms upon which
the proceeds of the sale of the Preferred Securities shall be used to
purchase a specific series of Junior Subordinated Debt Trust Securities of
the Company. Unless otherwise indicated in the Prospectus Supplement, the
Company does not intend to list any of the Offered Securities on a national
securities exchange.
Any Prospectus Supplement relating to any series of Offered Securities
will contain information concerning certain United States federal income tax
considerations, if applicable, to the Offered Securities. By separate
prospectus, the form of which is included in the Registration Statement of
which this Prospectus is a part, the Company may offer from time to time debt
securities or preferred stock. The aggregate initial public offering price of
the securities to be offered by this Prospectus and such other prospectus
shall not exceed $750,000,000.
The Offered Securities may be offered directly, through agents designated
from time to time, through dealers or through underwriters. Such agents or
underwriters may act alone or with other agents or underwriters. See "Plan
of Distribution." Any such agents, dealers or underwriters will be set forth
in a Prospectus Supplement. If an agent of the Company and/or any AES Trust,
or a dealer or underwriter is involved in the offering of the Offered
Securities, the agent's commission, dealer's purchase price, underwriter's
discount and net proceeds to the Company, as the case may be, will be set
forth in, or may be calculated from, the Prospectus Supplement. Any
underwriters, dealers or agents participating in the offering may be deemed
"underwriters" within the meaning of the Securities Act of 1933.
This Prospectus may not be used to consummate sales of Offered Securities
unless accompanied by a Prospectus Supplement.
The date of this Prospectus is November , 1996.
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OF
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
AVAILABLE INFORMATION
The AES Corporation is subject to the informational
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and in accordance therewith files reports, proxy and information
statements and other information with the Securities and Exchange Commission
(the "Commission"). These reports, proxy and information statements and other
information may be inspected without charge and copied at the public reference
facilities maintained by the Commission at its principal offices at Judiciary
Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's
regional offices located at Citicorp Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661, and 7 World Trade Center, Suite 1300, New York,
New York 10048. Copies of such materials also can be obtained at prescribed
rates from the Public Reference Section of the Commission at the principal
offices of the Commission at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549. Such material may also be inspected at the offices of
the National Association of Securities Dealers, Inc., 1735 K Street, N.W.,
Washington, D.C. 20006. Such material may also be accessed electronically by
means of the Commission's home page on the Internet at http://www.sec.gov.
The Company has filed with the Commission a Registration
Statement on Form S-3 under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to the Securities offered hereby (including
all amendments and supplements thereto, the "Registration Statement"). This
Prospectus, which forms a part of the Registration Statement, does not contain
all the information set forth in the Registration Statement and the exhibits
filed thereto, certain parts of which have been omitted in accordance with the
rules and regulations of the Commission. Statements contained herein
concerning the provisions of any documents are not necessarily complete and,
in each instance, reference is made to the copy of such document filed as an
exhibit to the Registration Statement or otherwise filed with the Commission.
Each such statement is qualified in its entirety by such reference. The
Registration Statement and the exhibits thereto can be inspected and copied at
the public reference facilities and regional and other offices referred to
above.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates in this Prospectus by reference
thereto and makes a part hereof the following documents, heretofore filed with
the Commission pursuant to the Exchange Act: (i) the Company's Annual Report
on Form 10-K for the year ended December 31, 1995; (ii) the Company's
Quarterly Report on Form 10-Q for the quarters ended September 30, 1996, June
30, 1996 and March 31, 1996, (iii) the Company's Current Reports on Form
8-K filed on July 1, 1996, June 12, 1996, May 30, 1996, February 26, 1996 and
February 6, 1996 and (iv) the Company's Registration Statement on Form S-3
filed on June 12, 1996.
All documents filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to termination of the offering being made hereby shall be
deemed to be incorporated in this Prospectus by reference and to be a part
hereof from the respective dates of the filing of such documents. Any
statement contained herein or in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus and the Registration Statement of which it is
a part to the extent that a statement contained herein or in any subsequently
filed document which also is, or is deemed to be, incorporated by reference
herein, modifies or supersedes such earlier statement. Any statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus or such Registration
Statement.
The Company hereby undertakes to provide without charge to each
person to whom a copy of this Prospectus has been delivered, upon written or
oral request of any such person, a copy of any and all of the documents
referred to above which have been or may be incorporated in this Prospectus by
reference, other than exhibits to such documents which are not specifically
incorporated by reference into such documents. Requests for such copies
should be directed to William R. Luraschi, General Counsel and Secretary, The
AES Corporation, 1001 North 19th Street, Arlington, Virginia 22209, telephone
(703) 522-1315.
USE OF PROCEEDS
Unless otherwise set forth in the applicable Prospectus
Supplement, proceeds from the sale of the Junior Subordinated Debt Trust
Securities will be used by the Company for general corporate purposes and
initially may be temporarily invested in short-term securities.
Each AES Trust will use all proceeds received from the sale of
its Trust Securities to purchase Junior Subordinated Debt Trust Securities
from the Company.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges.
<TABLE>
<CAPTION>
Nine Months
Ended
Year Ended December 31, September 30,
------------------------------------------------------ -------------
1991 1992 1993 1994 1995 1996
---- ---- ---- ---- ---- -------------
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges .. 1.31 1.37 1.63 2.08 2.18 2.04
</TABLE>
For the purpose of computing the ratio of earnings to fixed charges,
earnings consist of income from continuing operations before income taxes
and minority interest, plus fixed charges, less capitalized interest, less
excess of earnings over dividends of less-than-fifty-percent-owned
companies. Fixed charges consist of interest (including capitalized
interest) on all indebtedness, amortization of debt discount and expense
and that portion of rental expense which the Company believes to be
representative of an interest factor. A statement setting forth the
computation of the above ratios of earnings to fixed charges is on file as
an exhibit to the Registration Statement of which this Prospectus is a
part.
During the period from January 1, 1991 until September 30, 1996, no
shares of Preferred Stock were issued or outstanding, and during that
period the Company did not pay any Preferred Stock dividends.
THE COMPANY
With a presence in over 35 countries, The AES Corporation is a
global power company committed to supplying electricity to customers
world-wide in a socially responsible way. The Company, based in Arlington,
Virginia, markets power principally from electric generating facilities that
it develops, owns and operates. AES was one of the original entrants in the
independent power market and today is one of the world's largest independent
power companies, based on net equity ownership of generating capacity (in
megawatts) in operation or under construction.
Over the last six years, the Company has experienced
significant growth. This growth has resulted primarily from the development
and construction of new plants ("greenfield development") and also from the
acquisition of existing plants, primarily through competitively bid
privatization initiatives outside the United States.
In part, the Company's strategy in helping meet the world's
need for electricity is to participate in competitive power generation markets
as they develop either by greenfield development or by acquiring and operating
existing facilities in these markets.
Other elements of the Company's strategy include:
bullet Supplying energy to customers at the lowest cost possible,
taking into account factors such as reliability and environmental
performance.
bullet Constructing or acquiring projects of a relatively large
size (generally larger than 100 megawatts).
bullet Entering into power sales contracts with electric utilities
or other customers with credit strength.
The Company also strives for operating excellence as a key
element of its strategy, which it believes it accomplishes by minimizing
organizational layers and maximizing company-wide participation in
decision-making. AES has attempted to create an operating environment that
results in safe, clean and reliable electricity generation. Because of this
emphasis, the Company prefers to operate all facilities which it develops or
acquires; however, there can be no assurance that the Company will have
operating control of all of its facilities in the future.
The Company, a corporation organized under the laws of
Delaware, was formed in 1981. The principal office of the Company is located
at 1001 North 19th Street, Arlington, Virginia 22209, and its telephone number
is (703) 522-1315.
RISK FACTORS
Purchasers of the Securities should read this entire Prospectus
carefully. Ownership of the Securities involves certain risks. The following
factors should be considered carefully in evaluating AES and its business
before purchasing the Securities offered by this Prospectus.
Leverage and Subordination. The Company and its subsidiaries
had approximately $2.1 billion of outstanding indebtedness at September 30,
1996. As a result of the Company's level of debt, the Company might be
significantly limited in its ability to meet its debt service obligations, to
finance the acquisition and development of additional projects, to compete
effectively or to operate successfully under adverse economic conditions. As
of September 30, 1996, the Company had a consolidated ratio of total debt to
total book capitalization (including current debt) of approximately 75%.
The Junior Subordinated Debt Trust Securities will be
subordinated to all Senior Indebtedness including, but not limited to, the
Company's current $425 million credit facility debt. As of September 30,
1996, the Company had approximately $656 million in aggregate principal amount
of Senior Indebtedness.
Upon any payment or distribution of assets to creditors upon
any liquidation, dissolution, winding up, receivership, reorganization,
assignment for the benefit of creditors, marshaling of assets and liabilities
or any bankruptcy, insolvency or similar proceedings of the Company, the
holders of Senior Indebtedness will first be entitled to receive payment in
full of all amounts due or to become due under all Senior Indebtedness before
the holders of the Junior Subordinated Debt Trust Securities will be entitled
to receive any payment in respect of the principal of, premium, if any, or
interest on such Junior Subordinated Debt Trust Securities. No payments on
account of principal, premium, if any, or interest in respect of the Junior
Subordinated Debt Trust Securities may be made if there shall have occurred
and be continuing a default in any payment under any Senior Indebtedness or
during certain periods when an event of default under certain Senior
Indebtedness permits the lenders thereunder to accelerate the maturing of such
Senior Indebtedness. See "Description of Junior Subordinated Debt Trust
Securities--Subordination." The Preferred Securities will rank subordinate and
junior in right of payment to all other liabilities of the Company, including
the Junior Subordinated Debt Trust Securities, except those made pari passu
by their terms and (ii) senior to all capital stock now or hereafter issued by
the Company and to any guarantee now or hereafter entered into by the Company
in respect of any of its capital stock. See "Description of the Preferred
Securities Guarantees--Status of the Preferred Securities Guarantees."
The Junior Subordinated Debt Trust Securities will be
effectively subordinated to the indebtedness and other obligations (including
trade payables) of the Company's subsidiaries. At September 30, 1996, the
indebtedness and obligations of the Company's subsidiaries, aggregated
approximately $1.5 billion. The ability of the Company to pay principal of,
premium, if any, and interest on the Junior Subordinated Debt Trust Securities
will be dependent upon the receipt of funds from its subsidiaries by way of
dividends, fees, interest, loans or otherwise. There are no terms in the
Junior Subordinated Debt Trust Securities, the Preferred Securities or the
Preferred Securities Guarantee that limit the Company's or its subsidiaries'
ability to incur additional indebtedness. Most of the Company's subsidiaries
with interests in power generation facilities currently have in place
arrangements that restrict their ability to make distributions to the Company
by way of dividends, fees, interest, loans or otherwise. The Company's
subsidiaries are separate and distinct legal entities and have no obligation,
contingent or otherwise, to pay any amounts due pursuant to the Junior
Subordinated Debt Trust Securities or the Preferred Securities or to make any
funds available therefor, whether by dividends, loans or other payments, and
do not guarantee the payment of interest on or principal of the Junior
Subordinated Debt Trust Securities or the Preferred Securities. Any right of
the Company to receive any assets of any of its subsidiaries upon any
liquidation, dissolution, winding up, receivership, reorganization, assignment
for the benefit of creditors, marshaling of assets and liabilities or any
bankruptcy, insolvency or similar proceedings of the Company (and the
consequent right of the holders of the Junior Subordinated Debt Trust
Securities and the Preferred Securities to participate in the distribution of,
or to realize proceeds from, those assets) will be effectively subordinated to
the claims of any such subsidiary's creditors (including trade creditors and
holders of debt issued by such subsidiary). The Company currently conducts
substantially all of its operations through its subsidiaries. See
"Description of the Preferred Securities Guarantees--Status of the Preferred
Securities Guarantees" and "Description of the Junior Subordinated Debt
Securities--Subordination."
Ability of AES to Make Distributions. The ability of the AES
Trusts to make distributions and other payments on the Preferred Securities is
solely dependent upon the Company making interest and other payments on the
Junior Subordinated Debt Trust Securities deposited as trust assets as and
when required. If the Company were not to make distributions or other
payments on the Junior Subordinated Debt Trust Securities for any reason,
including as a result of the Company's election to defer the payment of
interest on the Junior Subordinated Debt Trust Securities by extending the
interest period on the Junior Subordinated Debt Trust Securities, the AES
Trusts will not make payments on the Trust Securities (as defined herein). In
such an event, holders of the Preferred Securities would not be able to rely
on the Preferred Securities Guarantee since distributions and other payments
on the Preferred Securities are subject to such Guarantee only if and to the
extent that the Company has made a payment to the Property Trustee (as defined
herein) of interest or principal on the Junior Subordinated Debt Trust
Securities deposited in the Trust as trust assets. Instead, holders of
Preferred Securities would rely on the enforcement by the Property Trustee of
its rights as registered holder of the Junior Subordinated Debt Trust
Securities against the Company pursuant to the terms of the Indenture (as
defined herein). However, if the Trust's failure to make distributions on the
Preferred Securities is a consequence of the Company's exercise of its right
to extend the interest payment period for the Junior Subordinated Debt Trust
Securities, the Property Trustee will have no right to enforce the payment of
distributions on the Preferred Securities until an Event of Default (as
defined herein) under the Declaration (as defined herein) shall have occurred.
The Declaration provides that the Company shall pay for all
debts and obligations (other than with respect to the Trust Securities) and
all costs and expenses of the AES Trusts, including any taxes and all costs
and expenses with respect thereto, to which the AES Trusts may become subject,
except for United States withholding taxes. No assurance can be given that
the Company will have sufficient resources to enable it to pay such debts,
obligations, costs and expenses on behalf of the AES Trusts.
Option to Extend Interest Payment Period; Tax Impact of
Extension. So long as the Company shall not be in default in the payment of
interest on the Junior Subordinated Debt Trust Securities, the Company has the
right under the Indenture to defer payments of interest on the Junior
Subordinated Debt Trust Securities by extending the interest payment period
from time to time on the Junior Subordinated Debt Trust Securities for an
extension period not exceeding 20 consecutive quarterly interest periods (an
"Extension Period"), during which no interest shall be due and payable. In
such an event, quarterly distributions on the Preferred Securities would not
be made by the applicable AES Trust during any such Extension Period. If the
Company exercises the right to extend an interest payment period, the Company
may not during such Extension Period declare or pay dividends on, or redeem,
purchase, acquire or make a distribution or liquidation payment with respect
to, any of its common stock or preferred stock; provided that (i) the Company
will be permitted to pay accrued dividends upon the exchange or redemption of
any series of preferred stock of the Company as may be outstanding from time
to time, in accordance with the terms of such stock and (ii) the foregoing
will not apply to stock dividends paid by the Company. Under the Amended and
Restated Certificate of Incorporation the Company is authorized to issue up to
1,000,000 shares of preferred stock. As of September 30, 1996, no shares of
the Company's preferred stock were outstanding. The Company may from time to
time offer shares of its preferred stock to the public.
Prior to the termination of any Extension Period, the Company
may further extend such Extension Period; provided that such Extension Period
together with all such previous and further extensions thereof may not exceed
20 consecutive quarterly interest periods. Upon the termination of any
Extension Period and the payment of all amounts then due, the Company may
commence a new Extension Period, subject to the above requirements. The
Company may also prepay at any time all or any portion of the interest accrued
during an Extension Period. Consequently, there could be multiple Extension
Periods of varying lengths throughout the term of the Junior Subordinated Debt
Trust Securities, not to exceed 20 consecutive quarters or to cause any
extension beyond the maturity of the Junior Subordinated Debt Trust
Securities. See any accompanying Prospectus Supplement relating to Junior
Subordinated Debt Trust Securities.
Because the Company has the right to extend the interest
payment period for an Extension Period of up to 20 consecutive quarterly
interest periods on various occasions, the Junior Subordinated Debt Trust
Securities will be treated as issued with "original issue discount" for United
States federal income tax purposes. As a result, holders of Preferred
Securities will be required to include their pro rata share of original issue
discount in gross income as it accrues for United States federal income tax
purposes in advance of the receipt of cash. Generally, all of a
securityholder's taxable interest income with respect to the Junior
Subordinated Debt Trust Securities will be accounted for as "original issue
discount" and actual distributions of stated interest will not be separately
reported as taxable income. See any accompanying Prospectus Supplement
relating to Junior Subordinated Debt Trust Securities.
Special Event Redemption or Distribution. Upon the occurrence
and during the continuation of a Tax Event or Investment Company Event (each
as defined herein), which may occur at any time, the applicable AES Trust
shall, unless the Junior Subordinated Debt Trust Securities are redeemed in
the limited circumstances described below, be dissolved with the result that
Junior Subordinated Debt Trust Securities having an aggregate principal amount
equal to the aggregate stated liquidation amount of, and bearing accrued and
unpaid distributions on, the Preferred Securities and Common Securities would
be distributed on a Pro Rata Basis (as defined herein under "The AES Trusts")
to the holders of the Preferred Securities and Common Securities in
liquidation of such Trust. In the case of a Tax Event, in certain
circumstances, the Company shall have the right to redeem at any time the
Junior Subordinated Debt Trust Securities in whole or in part, in which event
the applicable AES Trust will redeem Preferred Securities and Common
Securities on a Pro Rata Basis to the same extent as the Junior Subordinated
Debt Trust Securities are redeemed. There can be no assurance as to the
market prices for Preferred Securities or the Junior Subordinated Debt Trust
Securities which may be distributed in exchange for Preferred Securities if a
dissolution and liquidation of the applicable AES Trust were to occur.
Accordingly, the Preferred Securities that an investor may purchase, or the
Junior Subordinated Debt Trust Securities that the investor may receive on
dissolution and liquidation of the applicable AES Trust, may trade at a
discount to the price that the investor paid to purchase the Preferred
Securities offered hereby. Because holders of Preferred Securities may
receive Junior Subordinated Debt Trust Securities upon the occurrence of a
Special Event (as defined herein), prospective purchasers of Preferred
Securities are also making an investment decision with regard to the Junior
Subordinated Debt Trust Securities and should carefully review all the
information regarding the Junior Subordinated Debt Trust Securities contained
in any accompanying Prospectus Supplement relating to Junior Subordinated Debt
Trust Securities.
If enacted in their present form, certain legislative proposals
in the Revenue Reconciliation Bill of 1996 (the "Bill") would prevent the
Company from deducting interest on the Junior Subordinated Debt Trust
Securities. The Bill as proposed would be effective generally for instruments
issued on or after December 7, 1995. However, on March 29, 1996, the Chairmen
of the Senate Finance and House Ways and Means Committees issued a joint
statement to the effect that it was their intention that the effective date of
the President's legislative proposals, if adopted, will be no earlier than the
date of appropriate Congressional action.
There can be no assurance, however, that current or future
federal legislative proposals if enacted would not prevent the Company from
deducting interest on the Junior Subordinated Debt Trust Securities. This
would constitute a Tax Event and could result in the distribution of any
Junior Subordinated Debt Trust Securities to holders of the Preferred
Securities or, in certain circumstances, the redemption of such securities by
the Company and the distribution of the resulting cash in redemption of the
Preferred Securities. See any accompanying Prospectus Supplement relating to
Junior Subordinated Debt Trust Securities.
"Tax Event" means that the Regular Trustees (as defined herein)
shall have obtained an opinion of a nationally recognized independent tax
counsel experienced in such matters (a "Dissolution Tax Opinion") to the
effect that on or after the date of any accompanying Prospectus Supplement
relating to Junior Subordinated Debt Trust Securities as a result of (a) any
amendment to, or change in, the laws (or any regulations thereunder) of the
United States or any political subdivision or taxing authority thereof or
therein, (b) any amendment to, or change in, an interpretation or application
of any such laws or regulations by any legislative body, court, governmental
agency or regulatory authority (including the enactment of any legislation and
the publication of any judicial decision or regulatory determination), (c) any
interpretation or pronouncement that provides for a position with respect to
such laws or regulations that differs from the theretofore generally accepted
position or (d) any action taken by any governmental agency or regulatory
authority, which amendment or change is enacted, promulgated, issued or
effective or which interpretation or pronouncement is issued or announced or
which action is taken, in each case on or after the date of such Prospectus
Supplement, there is more than an insubstantial risk that (i) the applicable
AES Trust is, or will be within 90 days of the date thereof, subject to United
States federal income tax with respect to income accrued or received on the
Junior Subordinated Debt Trust Securities, (ii) the applicable AES Trust is,
or will be within 90 days of the date thereof, subject to more than a de
minimis amount of other taxes, duties or other governmental charges or (iii)
interest payable by the Company to the applicable AES Trust on the Junior
Subordinated Debt Trust Securities is not, or within 90 days of the date
thereof will not be, deductible by the Company for United States federal income
tax purposes.
"Investment Company Event" means that the Regular Trustees
shall have received an opinion of nationally recognized independent counsel
experienced in practice under the Investment Company Act of 1940, as amended
(the "1940 Act"), that as a result of the occurrence of a change in law or
regulation or a change in interpretation or application of law or regulation
by any legislative body, court, governmental agency or regulatory authority (a
"Change in 1940 Act Law"), there is more than an insubstantial risk that an
AES Trust is or will be considered an "investment company" which is required
to be registered under the 1940 Act, which Change in 1940 Act Law becomes
effective on or after the date of any accompanying Prospectus Supplement
relating to Junior Subordinated Debt Trust Securities.
"Special Event" means a Tax Event or an Investment Company
Event.
Limiting Voting Rights. Holders of Preferred Securities will
have limited voting rights, but will not be able to appoint, remove or
replace, or to increase or decrease the number of, Trustees, which rights are
vested exclusively in the Common Securities (as defined herein under "The AES
Trusts").
Trading Prices of Preferred Securities. The Preferred
Securities constitute a new issue of securities with no established trading
market. The Preferred Securities may trade at a price that does not fully
reflect the value of accrued but unpaid interest with respect to the
underlying Junior Subordinated Debt Trust Securities. A holder who disposes
of his Preferred Securities between record dates for payments of distributions
thereon will be required to include accrued but unpaid interest on the Junior
Subordinated Debt Trust Securities through the date of disposition in income
as ordinary income, and to add such amount to his adjusted tax basis in his
pro rata share of the underlying Junior Subordinated Debt Trust Securities
deemed disposed of. Accordingly, such a holder will recognize a capital loss
to the extent the selling price (which may not fully reflect the value of
accrued but unpaid interest) is less than the holders adjusted tax basis
(which will include accrued but unpaid interest). Subject to certain limited
exceptions, capital losses cannot be applied to offset ordinary income for
United States federal income tax purposes. See any accompanying Prospectus
Supplement relating to Junior Subordinated Debt Trust Securities.
Potential Market Volatility During Extension Period. As
described above, the Company has the right to extend an interest payment
period on the Junior Subordinated Debt Trust Securities from time to time
for a period not exceeding 20 consecutive quarterly interest periods. If
the Company determines to extend an interest payment period, or if the
Company thereafter extends an Extension Period or prepays interest accrued
during an Extension Period as described above, the market price of the
Preferred Securities is likely to be affected. In addition, as a result of
such rights, the market price of the Preferred Securities (which represent
an undivided interest in Junior Subordinated Debt Trust Securities) may be
more volatile than other securities on which original issue discount
accrues that do not have such rights. A holder that disposes of its
Preferred Securities during an Extension Period, therefore, may not receive
the same return on its investment as a holder that continues to hold its
Preferred Securities. See any accompanying Prospectus Supplement relating
to Junior Subordinated Debt Trust Securities.
No Prior Public Market--Possible Price Volatility of the
Securities. Prior to the offering, there has been no public market for the
Securities. There can be no assurance that an active trading market for the
Securities will develop or be sustained. If such a market were to develop,
the Securities, could trade at prices that may be higher or lower than their
offering price depending upon many factors, including prevailing interest
rates, the Company's operating results and the markets for similar securities.
Historically, the market for non-investment grade debt has demonstrated
substantial volatility in the prices of securities similar to the Securities.
There can be no assurance that the future market for the Securities will not
be subject to similar volatility. Accordingly, no assurance can be given as
to the liquidity of the Securities.
Doing Business Outside the United States. The Company's
involvement in the development of new projects and the acquisition of existing
plants in locations outside the United States is increasing and most of the
Company's current development and acquisition activities are for projects and
plants outside the United States. The Company, through subsidiaries and joint
ventures, has ownership interests in 27 power plants outside the United States
in operation or under construction. Five of such power plants are located in
Argentina; four in Brazil; two in England; two in Northern Ireland; two in
Pakistan; eight in the People's Republic of China; three in Hungary; and one
in Kazakhstan.
The financing, development and operation of projects outside
the United States entail significant political and financial uncertainties
(including, without limitation, uncertainties associated with first-time
privatization efforts in the countries involved, currency exchange rate
fluctuations, currency repatriation restrictions, currency convertibility,
political instability, civil unrest, and expropriation) and other structuring
issues that have the potential to cause substantial delays in respect of or
material impairment of the value of the project being developed or operated,
which AES may not be capable of fully insuring or hedging against. The
ability to obtain financing on a commercially acceptable non-recourse basis in
developing nations may also require higher investments by the Company than
historically have been the case. In addition, financing in countries with
less than investment grade sovereign credit ratings may also require
substantial participation by multilateral financing agencies. There can be no
assurance that such financing can be obtained when needed.
The uncertainty of the legal environment in certain countries
in which the Company, its subsidiaries and its affiliates are or in the future
may be developing, constructing or operating could make it more difficult for
the Company to enforce its respective rights under agreements relating to such
projects. In addition, the laws and regulations of certain countries may
limit the Company's ability to hold a majority interest in some of the projects
that it may develop or acquire. International projects owned by the Company
may, in certain cases, be expropriated by applicable governments. Although
AES may have legal recourse in enforcing its rights under agreements and
recovering damages for breaches thereof, there can be no assurance that any
such legal proceedings will be successful.
Competition. The global power production market is
characterized by numerous strong and capable competitors, many of whom may
have extensive and diversified developmental or operating experience
(including both domestic and international experience) and financial resources
similar to or greater than the Company. Further, in recent years, the power
production industry has been characterized by strong and increasing
competition with respect to both obtaining power sales agreements and
acquiring existing power generation assets. In certain markets, these factors
have caused reductions in prices contained in new power sales agreements and,
in many cases, have caused higher acquisition prices for existing assets
through competitive bidding practices. The evolution of competitive
electricity markets and the development of highly efficient gas-fired power
plants have also caused, or are anticipated to cause, price pressure in
certain power markets where the Company sells or intends to sell power. There
can be no assurance that the foregoing competitive factors will not have a
material adverse effect on the Company.
Development Uncertainties. The majority of the projects that
AES develops are large and complex and the completion of any such project is
subject to substantial risks. Development can require the Company to expend
significant sums for preliminary engineering, permitting, legal and other
expenses in preparation for competitive bids which the Company may not win or
before it can be determined whether a project is feasible, economically
attractive or capable of being financed. Successful development and
construction is contingent upon, among other things, negotiation on terms
satisfactory to the Company of engineering, construction, fuel supply and
power sales contracts with other project participants, receipt of required
governmental permits and consents and timely implementation and satisfactory
completion of construction. There can be no assurance that AES will be able
to obtain new power sales contracts, overcome local opposition, if any, obtain
the necessary site agreements, fuel supply and ash disposal agreements,
construction contracts, steam sales contracts, licenses and certifications,
environmental and other permits and financing commitments necessary for the
successful development of its projects. There can be no assurance that
development efforts on any particular project, or the Company's efforts
generally, will be successful. If these development efforts are not
successful, the Company may abandon a project under development. At the time
of abandonment, the Company would expense all capitalized development costs
incurred in connection therewith and could incur additional losses associated
with any related contingent liabilities. The future growth of the Company is
dependent, in part, upon the demand for significant amounts of additional
electrical generating capacity and its ability to obtain contracts to supply
portions of this capacity. Any material unremedied delay in, or
unsatisfactory completion of, construction of the Company's projects could,
under certain circumstances, have an adverse effect on the Company's
ability to meet its obligations, including the payment of principal of,
premium, if any and interest on Debt Securities. The Company also is faced
with certain development uncertainties arising out of doing business
outside of the United States. See "--Doing Business Outside the United
States."
Uncertainty of Access to Capital for Future Projects. Each of
AES's projects under development and those independent power facilities it may
seek to acquire may require substantial capital investment. Continued access
to capital with acceptable terms is necessary to assure the success of future
projects and acquisitions. AES has primarily utilized project financing loans
to fund the capital expenditures associated with constructing and acquiring
its electric power plants and related assets. Project financing borrowings
have been substantially non-recourse to other subsidiaries and affiliates and
to AES as the parent company and are generally secured by the capital stock,
physical assets, contracts and cash flow of the related project subsidiary or
affiliate. The Company intends to continue to seek, where possible, such
non-recourse project financing in connection with the assets which the Company
or its affiliates may develop, construct or acquire. However, depending on
market conditions and the unique characteristics of individual projects, the
Company's traditional providers of project financing, particularly
multinational commercial banks, may seek higher borrowing spreads and
increased equity contributions.
Furthermore, because of the reluctance of commercial lending
institutions to provide non-recourse project financing (including financial
guarantees) in certain less developed economies, the Company, in such
locations, has and will continue to seek direct or indirect (through credit
support or guarantees) project financing from a limited number of multilateral
or bilateral international financial institutions or agencies. As a
precondition to making such project financing available, these institutions
may also require governmental guarantees of certain project and sovereign
related risks. Depending on the policies of specific governments, such
guarantees may not be offered and as a result, AES may determine that
sufficient financing will ultimately not be available to fund the related
project.
In addition to the project financing loans, if available, AES
provides a portion, or in certain instances all, of the remaining long-term
financing required to fund development, construction, or acquisition. These
investments have generally taken the form of equity investments or loans,
which are subordinated to the project financing loans. The funds for these
investments have been provided by cash flows from operations and by the
proceeds from borrowings under short-term credit facilities, and issuances of
senior subordinated notes, convertible debentures and common stock of the
Company.
The Company's ability to arrange for financing on either a
fully recourse or a substantially non-recourse basis and the costs of such
capital are dependent on numerous factors, including general economic and
capital market conditions, the availability of bank credit, investor
confidence in the Company, the continued success of current projects and
provisions of tax and securities laws which are conducive to raising capital
in this manner. Should future access to capital not be available, AES may
decide not to build new plants or acquire existing facilities. While a
decision not to build new plants or acquire existing facilities would not
affect the results of operations of AES on its currently operating facilities
or facilities under construction, such a decision would affect the future
growth of AES.
Dependence on Utility Customers and Certain Projects. The
nature of most of AES's power projects is such that each facility generally
relies on one power sales contract with a single customer for the majority, if
not all, of its revenues over the life of the power sales contract. During
1995, four customers, including Connecticut Light & Power Company, a
subsidiary of Northeast Utilities, accounted for 73% of the Company's
revenues. The prolonged failure of any one utility customer to fulfill its
contractual obligations could have a substantial negative impact on AES's
primary source of revenues. AES has sought to reduce this risk in part by
entering into power sales contracts with utilities or other customers of
strong credit quality and by locating its plants in different geographic areas
in order to mitigate the effects of regional economic downturns.
Four of the Company's plants collectively represented
approximately 61% of AES's consolidated total assets at December 31, 1995 and
generated approximately 80% of AES's consolidated total revenues for the year
ended December 31, 1995.
In October 1996, Moody's Investor Service and Standard & Poor's
revised their ratings of the senior unsecured long-term debt of Connecticut
Light & Power Company from Baa3/BBB- to Ba1/BB+.
Regulatory Uncertainty. AES's cogeneration operations are
subject to the provisions of various laws and regulations, including the
Public Utility Regulatory Policies Act of 1978, as amended ("PURPA") and the
Public Utility Holding Company Act, as amended ("PUHCA"). PURPA provides to
qualifying facilities ("QFs") certain exemptions from substantial federal and
state legislation, including regulation as public utilities. PUHCA regulates
public utility holding companies and their subsidiaries. AES is not and will
not be subject to regulation as a holding company under PUHCA as long as the
domestic power plants it owns are QFs under PURPA. QF status is conditioned
on meeting certain criteria, and would be jeopardized, for example, by the
loss of a steam customer. The Company believes that, upon the occurrence of
an event that would threaten the QF status of one of its domestic plants, it
would be able to react in a manner that would avoid the loss of QF status
(such as by replacing the steam customer). In the event the Company were
unable to avoid the loss of such status for one of its plants, to avoid public
utility holding company status, AES could apply to the Federal Energy
Regulatory Commission ("FERC") to obtain status as an Exempt Wholesale
Generator ("EWG"), or could restructure the ownership of the project
subsidiary. EWGs, however, are subject to broader regulation by FERC and may
be subject to state public utility commissions regulation regarding non-rate
matters. In addition, any restructuring of a project subsidiary could result
in, among other things, a reduced financial interest in such subsidiary, which
could result in a gain or loss on the sale of the interest in such subsidiary,
the removal of such subsidiary from the consolidated income tax group or the
consolidated financial statements of the Company, or an increase or decrease
in the results of operations of the Company.
The United States Congress is considering proposed legislation
which would repeal PURPA entirely, or at least repeal the obligation of
utilities to purchase from QFs. There is strong support for grandfathering
existing QF contracts if such legislation is passed, and also support for
requiring utilities to conduct competitive bidding for new electric generation
if the PURPA purchase obligation is eliminated. Various bills have also
proposed repeal of PUHCA. Repeal of PUHCA would allow both independents and
vertically integrated utilities to acquire retail utilities in the United
States that are geographically widespread, as opposed to the current
limitations of PUHCA which require that retail electric systems be capable of
physical integration. In addition, registered holding companies would be free
to acquire non-utility businesses, which they may not do now, with certain
limited exceptions. In the event of a PUHCA repeal, competition for
independent power generators from vertically integrated utilities would likely
increase. Repeal of PURPA and/or PUHCA may or may not be part of
comprehensive legislation to restructure the electric utility industry, allow
retail competition, and deregulate most electric rates. The effect of any such
repeal cannot be predicted, although any such repeal could have a material
adverse effect on the Company.
Electric Utility Industry Restructuring Proposals. The FERC
and many state utility commissions are currently studying a number of
proposals to restructure the electric utility industry in the United States.
Such restructuring would permit utility customers to choose their utility
supplier in a competitive electric energy market. The FERC issued a final rule
in April 1996 which requires utilities to offer wholesale customers and
suppliers open access on utility transmission lines, on a comparable basis to
the utilities' own use of the lines. The final rule is subject to rehearing
and may become the subject of court litigation. Many utilities have already
filed "open access" tariffs. The utilities contend that they should recover
from departing customers their fixed costs that will be "stranded" by the
ability of their wholesale customers (and perhaps eventually, their retail
customers) to choose new electric power suppliers. The FERC final rule
endorses the recovery of legitimate and verifiable "stranded costs." These may
include the costs utilities are required to pay under many QF contracts which
the utilities view as excessive when compared with current market prices.
Many utilities are therefore seeking ways to lower these contract prices or
rescind the contracts altogether, out of concern that their shareholders will
be required to bear all or part of such "stranded" costs. Some utilities have
engaged in litigation against QFs to achieve these ends.
In addition, future United States electric rates may be
deregulated in a restructured United States electric utility industry and
increased competition may result in lower rates and less profit for United
States electricity sellers. Falling electricity prices and uncertainty as to
the future structure of the industry is inhibiting United States utilities
from entering into long-term power purchase contracts. The effect of any such
restructuring on the Company cannot be predicted, although any such
restructuring could have a material adverse effect on the Company.
Litigation and Regulatory Proceedings. From time to time,
the Company and its affiliates are parties to litigation and
regulatory proceedings. Investors should review the descriptions of
such matters contained in the Company's Annual, Quarterly and Current
Reports filed with the Commission and incorporated by reference herein.
There can be no assurances that the outcome of such matters will not have a
material adverse effect on the Company's consolidated financial position.
Business Subject to Stringent Environmental Regulations. AES's
activities are subject to stringent environmental regulation by federal,
state, local and foreign governmental authorities. For example, the Clean Air
Act Amendments of 1990 impose more stringent standards than those previously
in effect, and require states to impose permit fees on certain emissions.
Congress and other foreign governmental authorities also may consider
proposals to restrict or tax certain emissions. These proposals, if adopted,
could impose additional costs on the operation of AES's power plants. There
can be no assurance that AES would be able to recover all or any increased
costs from its customers or that its business, financial condition or results
of operations would not be materially and adversely affected by future changes
in domestic or foreign environmental laws and regulations. The Company has
made and will continue to make capital and other expenditures to comply with
environmental laws and regulations. There can be no assurance that such
expenditures will not have a material adverse effect on the Company's
financial condition or results of operations.
Control by Existing Stockholders. As of September 30, 1996,
AES's two founders, Roger W. Sant and Dennis W. Bakke, and their immediate
families together owned beneficially approximately 26% of AES's outstanding
Common Stock. As a result of their ownership interests, Messrs. Sant and
Bakke may be able to significantly influence or exert control over the affairs
of AES, including the election of the Company's directors. As of September
30, 1996, all of AES's officers and directors and their immediate families
together owned beneficially approximately 35% of AES's outstanding Common
Stock. To the extent that they decide to vote together, these stockholders
would be able to significantly influence or control the election of AES's
directors, the management and policies of AES and any action requiring
stockholder approval, including significant corporate transactions.
Adherence to AES's Principles--Possible Impact on Results of
Operations. A core part of AES's corporate culture is a commitment to "shared
principles": to act with integrity, to be fair, to have fun and to be socially
responsible. The Company seeks to adhere to these principles not as a means
to achieve economic success, but because adherence is a worthwhile goal in and
of itself. However, if the Company perceives a conflict between these
principles and profits, the Company will try to adhere to its principles--even
though doing so might result in diminished or foregone opportunities or
financial benefits.
THE AES TRUSTS
Each of the AES Trust I and AES Trust II is a statutory
business trust formed on November 1, 1996 under the Delaware Business Trust
Act (the "Business Trust Act") pursuant to a separate declaration of trust
among the Trustees (as defined herein) of such AES Trust and the Company and
the filing of a certificate of trust with the Secretary of State of the State
of Delaware. Such declaration will be amended and restated in its entirety
(as so amended and restated, the "Declaration") substantially in the form
filed as an exhibit to the Registration Statement of which this Prospectus
forms a part, as of the date the Preferred Securities of such AES Trust are
initially issued. Each Declaration will be qualified under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act").
This description summarizes the material terms of the
Declarations and is qualified in its entirety by reference to the form of
Declaration, which has been filed as an exhibit to the Registration Statement
of which this Prospectus is a part, and the Trust Indenture Act.
Trust Securities
Upon issuance of any Preferred Securities by an AES Trust, the
holders thereof will own all of the issued and outstanding Preferred
Securities of such AES Trust. The Company will acquire securities
representing common undivided beneficial interests in the assets of each AES
Trust (the "Common Securities" and, together with the Preferred Securities,
the "Trust Securities") in an amount equal to at least 3% of the total capital
of such AES Trust and will own, directly or indirectly, all of the issued and
outstanding Common Securities of each AES Trust. The Preferred Securities and
the Common Securities will rank pari passu with each other and will have
equivalent terms; provided that (i) if a Declaration Event of Default (as
defined herein under "--Events of Default") under the Declaration of an AES
Trust occurs and is continuing, the holders of Preferred Securities of such
AES Trust will have a priority over holders of the Common Securities of such
AES Trust with respect to payments in respect of distributions and payments
upon liquidation, redemption and maturity and (ii) holders of Common
Securities have the exclusive right (subject to the terms of the Declaration)
to appoint, remove or replace the Trustee and to increase or decrease the
number of Trustees. Each AES Trust exists for the purpose of (a) issuing its
Preferred Securities, (b) issuing its Common Securities to the Company, (c)
investing the gross proceeds from the sale of the Trust Securities in Junior
Subordinated Debt Trust Securities of the Company and (d) engaging in only
such other activities as are necessary, convenient or incidental thereto. The
rights of the holders of the Preferred Securities, including economic rights,
rights to information and voting rights, are set forth in the applicable
Declaration, the Business Trust Act and the Trust Indenture Act.
Powers and Duties of Trustees
The number of trustees (the "Trustees") of each AES Trust shall
initially be five. Three of such Trustees (the "Regulator Trustees") are
individuals who are employees or officers of the Company. The fourth such
trustee will be The First National Bank of Chicago, which is unaffiliated with
the Company and which will serve as the property trustee (the "Property
Trustee") and act as the indenture trustee for purposes of the Trust Indenture
Act. The fifth such trustee is First Chicago Delaware Inc. that has its
principal place of business in the State of Delaware (the "Delaware Trustee").
Pursuant to each Declaration, legal title to the Junior Subordinated Debt
Trust Securities purchased by an AES Trust will be held by the Property
Trustee for the benefit of the holders of the Trust Securities of such AES
Trust, and the Property Trustee will have the power to exercise all rights,
powers and privileges under the Indenture (as defined under "Description of
the Junior Subordinated Debt Trust Securities") with respect to the Junior
Subordinated Debt Trust Securities. In addition, the Property Trustee will
maintain exclusive control of a segregated non-interest bearing bank account
(the "Property Account") to hold all payments in respect of the Junior
Subordinated Debt Trust Securities purchased by an AES Trust for the benefit
of the holders of Trust Securities. The Property Trustee will promptly make
distributions to the holders of the Trust Securities out of funds from the
Property Account. The Preferred Securities Guarantees are separately
qualified under the Trust Indenture Act and will be held by The First National
Bank of Chicago, acting in its capacity as indenture trustee with respect
thereto, for the benefit of the holders of the applicable Preferred
Securities. As used in this Prospectus and any accompanying Prospectus
Supplement, the term "Property Trustee" with respect to an AES Trust refers to
The First National Bank of Chicago acting either in its capacity as a Trustee
under the relevant Declaration and the holder of legal title to the Junior
Subordinated Debt Trust Securities purchased by that Trust or in its capacity
as indenture trustee under, and the holder of, the applicable Preferred
Securities Guarantee, as the context may require. The Company, as the direct
or indirect owner of all of the Common Securities of each AES Trust, will have
the exclusive right (subject to the terms of the related Declaration) to
appoint, remove or replace Trustees and to increase or decrease the number of
Trustees, provided that the number of Trustees shall be at least five and the
majority of Trustees shall be Regular Trustees. The term of an AES Trust will
be set forth in the Prospectus Supplement, but may terminate earlier as
provided in such Declaration.
The duties and obligations of the Trustees of an AES Trust
shall be governed by the Declaration of such AES Trust. Under its
Declaration, each AES Trust shall not, and the Trustees shall cause such
AES Trust not to, engage in any activity other than in connection with the
purposes of such AES Trust or other than as required or authorized by the
related Declaration. In particular, each AES Trust shall not and the
Trustees shall cause each AES Trust not to (a) invest any proceeds received
by such AES Trust from holding the Junior Subordinated Debt Trust
Securities purchased by such AES Trust but shall promptly distribute from
the Property Account all such proceeds to holders of Trust Securities
pursuant to the terms of the related Declaration and of the Trust
Securities; (b) acquire any assets other than as expressly provided in the
related Declaration; (c) possess Trust property for other than a Trust
purpose; (d) make any loans, other than loans represented by the Junior
Subordinated Debt Trust Securities; (e) possess any power or otherwise act
in such a way as to vary the assets of such AES Trust or the terms of its
Trust Securities in any way whatsoever; (f) issue any securities or other
evidences of beneficial ownership of, or beneficial interests in, such AES
Trust other than its Trust Securities; (g) incur any indebtedness for
borrowed money or (h)(i) direct the time, method and place of exercising
any trust or power conferred upon the Indenture Trustee (as defined under
"Description of the Junior Subordinated Debt Trust Securities") with
respect to the Junior Subordinated Debt Trust Securities deposited in that
AES Trust as trust assets or upon the Property Trustee of that AES Trust
with respect to its Preferred Securities, (ii) waive any past default that
is waivable under the Indenture or the Declaration, (iii) exercise any
right to rescind or annul any declaration that the principal of all of the
Junior Subordinated Debt Trust Securities deposited in that AES Trust as
trust assets shall be due and payable or (iv) consent to any amendment,
modification or termination of the Indenture or such Junior Subordinated
Debt Trust Securities or the Declaration, in each case where such consent
shall be required, unless in the case of this clause (h) the Property
Trustee shall have received an unqualified opinion of nationally recognized
independent tax counsel recognized as expert in such matters to the effect
that such action will not cause such AES Trust to be classified for United
States federal income tax purposes as an association taxable as a
corporation or a partnership and that such AES Trust will continue to be
classified as a grantor trust for United States federal income tax
purposes.
Books and Records
The books and records of each AES Trust will be maintained at
the principal office of such AES Trust and will be open for inspection by a
holder of Preferred Securities of such AES Trust or his representative for any
purpose reasonably related to his interest in such AES Trust during normal
business hours. Each holder of Preferred Securities will be furnished
annually with unaudited financial statements of the applicable AES Trust as
soon as available after the end of such AES Trust's fiscal year.
Voting
Holders of Preferred Securities will have limited voting
rights, but will not be able to appoint, remove or replace, or to increase or
decrease the number of, Trustees, which rights are vested exclusively in the
Common Securities.
The Property Trustee
The Property Trustee, for the benefit of the holders of the
Trust Securities of an AES Trust, is authorized under each Declaration to
exercise all rights under the Indenture with respect to the Junior
Subordinated Debt Trust Securities deposited in such AES Trust as trust
assets, including its rights as the holder of such Junior Subordinated Debt
Trust Securities to enforce the Company's obligations under such Junior
Subordinated Debt Trust Securities upon the occurrence of an Indenture Event
of Default (as defined herein under "Description of the Junior Subordinated
Debt Trust Securities--Indenture Events of Default"). The Property Trustee
shall also be authorized to enforce the rights of holders of Preferred
Securities of an AES Trust under the related Preferred Securities Guarantee.
If any AES Trust's failure to make distributions on the Preferred Securities
of an AES Trust is a consequence of the Company's exercise of any right under
the terms of the Junior Subordinated Debt Trust Securities deposited in such
AES Trust as trust assets to extend the interest payment period for such
Junior Subordinated Debt Trust Securities, the Property Trustee will have no
right to enforce the payment of distributions on such Preferred Securities
until a Declaration Event of Default shall have occurred. Holders of at least
a majority in liquidation amount of the Preferred Securities held by an AES
Trust will have the right to direct the Property Trustee for that AES Trust
with respect to certain matters under the Declaration for that AES Trust and
the related preferred Securities Guarantee. If the Property Trustee fails to
enforce its rights under the Indenture or fails to enforce the Preferred
Securities Guarantee, to the extent permitted by applicable law, any holder of
Preferred Securities may institute a legal proceeding against the Company to
enforce such rights or the Preferred Securities Guarantee, as the case may be.
In addition, the holders of at least 25% in aggregate liquidation preference
of the outstanding Preferred Securities would have the right to directly
institute proceedings for enforcement of payments to such holders of principal
of, or premium, if any, or interest on the Junior Subordinated Debt Trust
Securities having a principal amount equal to the aggregate liquidation
preference of the Preferred Securities of such holders (a "Direct Action").
In connection with such Direct Action, the Company will be subrogated to the
rights of such holder of Preferred Securities under the Declaration to the
extent of any payment made by the Company to such holders of Preferred
Securities in such Direct Action.
Distributions
Pursuant to each Declaration, distributions on the Preferred
Securities of an AES Trust must be paid on the dates payable to the extent
that the Property Trustee for that AES Trust has cash on hand in the
applicable Property Account to permit such payment. The funds available for
distribution to the holders of the Preferred Securities of an AES Trust will
be limited to payments received by the Property Trustee in respect of the
Junior Subordinated Debt Trust Securities that are deposited in the AES Trust
as trust assets. If the Company does not make interest payments on the Junior
Subordinated Debt Trust Securities deposited in an AES Trust as trust assets,
the Property Trustee will not make distributions on the Preferred Securities
of such AES Trust. Under the Declaration, if and to the extent the Company
does make interest payments on the Junior Subordinated Debt Trust Securities
deposited in an AES Trust as trust assets, the Property Trustee is obligated
to make distributions on the Trust Securities of such AES Trust on a Pro Rata
Basis (as defined below). The payment of distributions on the Preferred
Securities of an AES Trust is guaranteed by AES on a subordinated basis as and
to the extent set forth under "Description of the Preferred Securities
Guarantee." A Preferred Securities Guarantee is a full and unconditional
guarantee from the time of issuance of the applicable Preferred Securities,
but the Preferred Securities Guarantee covers distributions and other payments
on the applicable Preferred Securities only if and to the extent that the
Company has made a payment to the Property Trustee of interest or principal on
the Junior Subordinated Debt Trust Securities deposited in the AES Trust as
trust assets. As used in this Prospectus, the term "Pro Rata Basis" shall
mean pro rata to each holder of Trust Securities of an AES Trust according to
the aggregate liquidation amount of the Trust Securities of such AES Trust
held by the relevant holder in relation to the aggregate liquidation amount of
all Trust Securities of such AES Trust outstanding unless, in relation to a
payment, a Declaration Event of Default under the Declaration has occurred and
is continuing, in which case any funds available to make such payment shall be
paid first to each holder of the Preferred Securities of such AES Trust pro
rata according to the aggregate liquidation amount of the Preferred Securities
held by the relevant holder in relation to the aggregate liquidation amount of
all the Preferred Securities of such AES Trust outstanding, and only after
satisfaction of all amounts owed to the holders of such Preferred Securities,
to each holder of Common Securities of such AES Trust pro rata according to
the aggregate liquidation amount of such Common Securities held by the
relevant holder in relation to the aggregate liquidation amount of all Common
Securities of such AES Trust outstanding.
Events of Default
If an Indenture Event of Default occurs and is continuing with
respect to Junior Subordinated Debt Trust Securities deposited in an AES Trust
as trust assets, an Event of Default under the Declaration (a "Declaration
Event of Default") of such AES Trust will occur and be continuing with respect
to any outstanding Trust Securities of such AES Trust. In such event, each
Declaration provides that the holders of Common Securities of such AES Trust
will be deemed to have waived any such Declaration Event of Default with
respect to the Common Securities until all Declaration Events of Default with
respect to the Preferred Securities of such AES Trust have been cured or
waived. Until all such Declaration Events of Default with respect to the
Preferred Securities of such AES Trust have been so cured or waived, the
Property Trustee will be deemed to be acting solely on behalf of the holders
of the Preferred Securities of such AES Trust and only the holders of such
Preferred Securities will have the right to direct the Property Trustee with
respect to certain matters under such Declaration and consequently under the
Indenture. In the event that any Declaration Event of Default with respect to
the Preferred Securities of such AES Trust is waived by the holders of the
Preferred Securities of such AES Trust as provided in the Declaration, the
holders of Common Securities pursuant to such Declaration have agreed that
such waiver also constitutes a waiver of such Declaration Event of Default
with respect to the Common Securities for all purposes under the Declaration
without any further act, vote or consent of the holders of the Common
Securities
Record Holders
Each Declaration provides that the Trustees of such AES Trust
may treat the person in whose name a Certificate representing its Preferred
Securities is registered on the books and records of such AES Trust as the
sole holder thereof and of the Preferred Securities represented thereby for
purposes of receiving distributions and for all other purposes and,
accordingly, shall not be bound to recognize any equitable or other claim to
or interest in such certificate or in the Preferred Securities represented
thereby on the part of any person, whether or not such AES Trust shall have
actual or other notice thereof. Preferred Securities will be issued in fully
registered form. Unless otherwise specified in a Prospectus Supplement,
Preferred Securities will be represented by a global certificate registered on
the books and records of such AES Trust in the name of a depositary (the
"Depositary") named in an accompanying Prospectus Supplement or its nominee.
Under each Declaration:
(i)such AES Trust and the Trustees thereof shall be entitled to
deal with the Depositary (or any successor depositary) for all purposes,
including the payment of distributions and receiving approvals, votes or
consents under the related Declaration, and except as set forth in the related
Declaration with respect to the Property Trustee, shall have no obligation to
persons owning a beneficial interest in Preferred Securities ("Preferred
Security Beneficial Owners") registered in the name of and held by the
Depositary or its nominee; and
(ii)the rights of Preferred Security Beneficial Owners shall be
exercised only through the Depositary (or any successor depositary) and shall
be limited to those established by law and agreements between such Preferred
Security Beneficial Owners and the Depositary and/or its participants. With
respect to Preferred Securities registered in the name of and held by the
Depositary or its nominee, all notices and other communications required under
each Declaration shall be given to, and all distributions on such Preferred
Securities shall be given or made to, the Depositary (or its successor).
The specific terms of the depositary arrangement with respect
to the Preferred Securities will be disclosed in the applicable Prospectus
Supplement.
Debts and Obligations
In each Declaration, the Company has agreed to pay for all
debts and obligations (other than with respect to the Trust Securities) and
all costs and expenses of the applicable AES Trust, including the fees and
expenses of its Trustees and any taxes and all costs and expenses with respect
thereto, to which such AES Trust may become subject, except for United States
withholding taxes. The foregoing obligations of the Company under each
Declaration are for the benefit of, and shall be enforceable by, any person to
whom any such debts, obligations, costs, expenses and taxes are owed (a
"Creditor") whether or not such Creditor has received notice thereof. Any
such Creditor may enforce such obligations of the Company directly against the
Company and the Company has irrevocably waived any right or remedy to require
that any such Creditor take any action against any AES Trust or any other
person before proceeding against the Company. The Company has agreed in each
Declaration to execute such additional agreements as may be necessary or
desirable in order to give full effect to the foregoing.
DESCRIPTION OF THE PREFERRED SECURITIES
Each AES Trust may issue, from time to time, only one series of
Preferred Securities having terms described in the Prospectus Supplement
relating thereto. The Declaration of each AES Trust authorizes the Regular
Trustees of such AES Trust to issue on behalf of such AES Trust one series of
Preferred Securities. Each Declaration will be qualified as an indenture
under the Trust Indenture Act. The Preferred Securities will have such terms,
including distributions, redemption, voting, liquidation rights and such other
preferred, deferred or other special rights or such restrictions as shall be
set forth in the related Declaration or made part of such Declaration by the
Trust Indenture Act. Reference is made to the Prospectus Supplement relating
to the Preferred Securities of an AES Trust for specific terms, including (i)
the specific designation of such Preferred Securities, (ii) the number of
Preferred Securities issued by such AES Trust, (iii) the annual distribution
rate (or method of calculation thereof) for Preferred Securities issued by
such AES Trust, the date or dates upon which such distributions shall be
payable and the record date or dates for the payment of such distributions,
(iv) whether distributions on Preferred Securities issued by such AES Trust
shall be cumulative, and, in the case of Preferred Securities having such
cumulative distribution rights, the date or dates or method of determining the
date or dates from which distribution on Preferred Securities issued by such
AES Trust shall be cumulative, (v) the amount or amounts which shall be paid
out of the assets of such AES Trust to the holders of Preferred Securities of
such AES Trust upon voluntary or involuntary dissolution, winding-up or
termination of such AES Trust, (vi) the obligation or right, if any, of such
AES Trust to purchase or redeem Preferred Securities issued by such AES Trust
and the price or prices at which, the period or periods within which and the
terms and conditions upon which Preferred Securities issued by such AES Trust
shall or may be purchased or redeemed, in whole or in part, pursuant to such
obligation or right, (vii) the voting rights, if any, of Preferred Securities
issued by such AES Trust in addition to those required by law, including the
number of votes per Preferred Security and any requirement for the approval by
the holders of Preferred Securities, or of Preferred Securities issued by one
or more AES Trusts, or of both, as a condition to specified actions or
amendments to the Declaration of such AES Trust, (viii) terms for any
conversion or exchange into other securities and (ix) any other relevant
rights, preferences, privileges, limitations or restrictions of Preferred
Securities issued by such AES Trust consistent with the Declaration of such
AES Trust or with applicable law. All Preferred Securities offered hereby
will be guaranteed by the Company as and to the extent set forth below under
"Description of the Preferred Securities Guarantees." Certain United States
federal income tax considerations applicable to any offering of Preferred
Securities will be described in the Prospectus Supplement relating thereto.
In connection with the issuance of Preferred Securities, each
AES Trust will issue one series of Common Securities. The Declaration of each
AES Trust authorizes the Regular Trustees of such trust to issue on behalf of
such AES Trust one series of Common Securities having such terms including
distributions, redemption, voting, liquidation rights or such restrictions as
shall be set forth therein. The terms of the Common Securities issued by an
AES Trust will be substantially identical to the terms of the Preferred
Securities issued by such AES Trust and the Common Securities will rank pari
passu, and payments will be made thereon on a Pro Rata Basis with the
Preferred Securities except that if a Declaration Event of Default occurs
and is continuing, the rights of the holders of such Common Securities to
payment in respect of distributions and payments upon liquidation,
redemption and maturity will be subordinated to the rights of the holders
of such Preferred Securities. Except in certain limited circumstances, the
Common Securities issued by an AES Trust will also carry the right to vote
and to appoint, remove or replace any of the Trustees of that AES Trust.
All of the Common Securities of an AES Trust will be directly or indirectly
owned by the Company.
DESCRIPTION OF THE PREFERRED SECURITIES GUARANTEES
Set forth below is a summary of information concerning the
Preferred Securities Guarantees that will be executed and delivered by the
Company for the benefit of the holders from time to time of Preferred
Securities. Each Preferred Security Guarantee will be separately qualified
under the Trust Indenture Act and will be held by The First National Bank of
Chicago, acting in its capacity as indenture trustee with respect thereto, for
the benefit of holders of the Preferred Securities of the applicable AES
Trust. The terms of each Preferred Securities Guarantee will be those set
forth in such Preferred Securities Guarantee and those made part of such
Guarantee by the Trust Indenture Act. This description summarizes the
material terms of the Preferred Securities Guarantees and is qualified in its
entirety by reference to the form of Preferred Securities Guarantee, which is
filed as an exhibit to the Registration Statement of which this Prospectus
forms a part, and the Trust Indenture Act. Section and Article references used
herein are references to the provisions of the form of Preferred Securities
Guarantee.
General
Pursuant to each Preferred Securities Guarantee, the Company
will irrevocably and unconditionally agree, to the extent set forth therein,
to pay in full, to the holders of the Preferred Securities issued by an AES
Trust, the Guarantee Payments (as defined herein) (without duplication of
amounts theretofore paid by such AES Trust), to the extent not paid by such
AES Trust, regardless of any defense, right of set-off or counterclaim that
such AES Trust may have or assert. The following payments or distributions
with respect to Preferred Securities issued by an AES Trust to the extent not
paid or made by such AES Trust (the "Guarantee Payments"), will be subject to
the Preferred Securities Guarantee (without duplication): (i) any accrued and
unpaid distributions on such Preferred Securities, and the redemption price,
including all accrued and unpaid distributions to the date of redemption, with
respect to any Preferred Securities called for redemption by such AES Trust
but if and only to the extent that in each case the Company has made a payment
to the related Property Trustee of interest or principal on the Junior
Subordinated Debt Trust Securities deposited in such AES Trust as trust assets
and (ii) upon a voluntary or involuntary dissolution, winding-up or
termination of such AES Trust (other than in connection with the distribution
of such Junior Subordinated Debt Trust Securities to the holders of Preferred
Securities or the redemption of all of the Preferred Securities upon the
maturity or redemption of such Junior Subordinated Debt Trust Securities) the
lesser of (a) the aggregate of the liquidation amount and all accrued and
unpaid distributions on such Preferred Securities to the date of payment, to
the extent such AES Trust has funds available therefor or (b) the amount of
assets of such AES Trust remaining available for distribution to holders of
such Preferred Securities in liquidation of such AES Trust. The Company's
obligation to make a Guarantee Payment may be satisfied by direct payment of
the required amounts by the Company to the holders of Preferred Securities or
by causing the applicable AES Trust to pay such amounts to such holders.
The Preferred Securities Guarantee is a full and unconditional
guarantee from the time of issuance of the applicable Preferred Securities,
but the Preferred Securities Guarantee covers distributions and other payments
on such Preferred Securities only if and to the extent that the Company has
made a payment to the Property Trustee of interest or principal on the Junior
Subordinated Debt Trust Securities deposited in the applicable AES Trust as
trust assets. If the Company does not make interest or principal payments on
the Junior Subordinated Debt Trust Securities deposited in the applicable AES
Trust as trust assets, the Property Trustee will not make distributions of the
Preferred Securities of such AES Trust and the AES Trust will not have funds
available therefor.
The Company's obligations under the Declaration for each Trust,
the Preferred Securities Guarantee issued with respect to Preferred Securities
issued by that Trust, the Junior Subordinated Debt Trust Securities purchased
by that Trust and the related Indenture (as defined below) in the aggregate
will provide a full and unconditional guarantee on a subordinated basis by the
Company of payments due on the Preferred Securities issued by that Trust.
Certain Covenants of the Company
In each Preferred Securities Guarantee, the Company will
covenant that, so long as any Preferred Securities issued by the applicable
AES Trust remain outstanding, the Company will not (A) declare or pay any
dividends on, or redeem, purchase, acquire or make a distribution or
liquidation payment with respect to, any of its common stock or preferred
stock or make any guarantee payment with respect thereto or (B) make any
payment of interest, premium (if any) or principal on any debt securities
issued by the Company which rank pari passu with or junior to the Junior
Subordinated Debt Trust Securities, if at such time (i) the Company shall be
in default with respect to its Guarantee Payments or other payment obligations
under the Preferred Securities Guarantee, (ii) there shall have occurred any
Declaration Event of Default under the related Declaration or (iii) in the
event that Junior Subordinated Debt Trust Securities are issued to an AES
Trust in connection with the issuance of Trust Securities by such AES Trust,
the Company shall have given notice of its election to defer payments of
interest on such Junior Subordinated Debt Trust Securities by extending the
interest payment period as provided in the terms of the Junior Subordinated
Debt Trust Securities and such period, or any extension thereof, is
continuing: provided that (a) the Company will be permitted to pay accrued
dividends (and cash in lieu of fractional shares) upon the conversion of
Preferred Stock of the Company as may be outstanding from time to time, in
each case in accordance with the terms of such stock and (ii) the foregoing
will not apply to stock dividends paid by the Company. In addition, so long
as any Preferred Securities remain outstanding, the Company has agreed (i) to
remain the sole direct or indirect owner of all of the outstanding Common
Securities issued by the applicable AES Trust and shall not cause or permit
the Common Securities to be transferred except to the extent permitted by the
related Declaration; provided that any permitted successor of the Company
under the Indenture may succeed to the Company's ownership of the Common
Securities issued by the applicable AES Trust and (ii) to use reasonable
efforts to cause such AES Trust to continue to be treated as a grantor trust
for United States federal income tax purposes except in connection with a
distribution of Junior Subordinated Debt Trust Securities.
Amendments and Assignment
Except with respect to any changes that do not adversely affect
the rights of holders of Preferred Securities (in which case no consent will
be required), each Preferred Securities Guarantee may be amended only with the
prior approval of the holders of not less than 66 2/3% in liquidation amount
of the outstanding Preferred Securities issued by the applicable AES Trust.
The manner of obtaining any such approval of holders of such Preferred
Securities will be set forth in an accompanying Prospectus Supplement. All
guarantees and agreements contained in a Preferred Securities Guarantee shall
bind the successors, assignees, receivers, trustees and representatives of the
Company and shall inure to the benefit of the holders of the Preferred
Securities of the applicable AES Trust then outstanding. Except in connection
with a consolidation, merger or sale involving the Company that is permitted
under the Indenture, the Company may not assign its obligations under any
Preferred Securities Guarantee.
Termination of the Preferred Securities Guarantees
Each Preferred Securities Guarantee will terminate and be of no
further force and effect as to the Preferred Securities issued by the
applicable AES Trust upon full payment of the redemption price of all
Preferred Securities of such AES Trust, or upon distribution of the Junior
Subordinated Debt Trust Securities to the holders of the Preferred Securities
of such AES Trust in exchange for all of the Preferred Securities issued by
such AES Trust, or upon full payment of the amounts payable upon liquidation
of such AES Trust. Notwithstanding the foregoing, each Preferred Securities
Guarantee will continue to be effective or will be reinstated, as the case may
be, if at any time any holder of Preferred Securities issued by the applicable
AES Trust must restore payment of any sums paid under such Preferred
Securities or such Guarantee.
Status of the Preferred Securities Guarantees
The Company's obligations under each Preferred Securities
Guarantee to make the Guarantee Payments will constitute an unsecured
obligation of the Company and will rank (i) subordinate and junior in right of
payment to all other liabilities of the Company, including the Junior
Subordinated Debt Trust Securities, except those made pari passu or
subordinate by their terms, and (ii) senior to all capital stock now or
hereafter issued by the Company and to any guarantee nor or hereafter entered
into by the Company in respect of any of its capital stock. The Company's
obligations under each Preferred Securities Guarantee will rank pari passu
with each other Preferred Securities Guarantee. Because the Company is a
holding company, the Company's obligations under each Preferred Securities
Guarantee are also effectively subordinated to all existing and future
liabilities, including trade payables, of the Company's subsidiaries, except
to the extent that the Company is a creditor of the subsidiaries recognized as
such. Each Declaration provides that each holder of Preferred Securities
issued by the applicable AES Trust by acceptance thereof agrees to the
subordination provisions and other terms of the related Preferred Securities
Guarantee.
Each Preferred Securities Guarantee will constitute a guarantee
of payment and not of collection (that is, the guaranteed party may institute
a legal proceeding directly against the guarantor to enforce its rights under
the guarantee without first instituting a legal proceeding against any other
person or entity). Each Preferred Securities Guarantee will be deposited with
The First National Bank of Chicago, as indenture trustee, to be held for the
benefit of the holders of the Preferred Securities issued by the applicable
AES Trust. The First National Bank of Chicago shall enforce the Preferred
Securities Guarantee on behalf of the holders of the Preferred Securities
issued by the applicable AES Trust. The holders of not less than a majority
in aggregate liquidation amount of the Preferred Securities issued by the
applicable AES Trust have the right to direct the time, method and place of
conducting any proceeding for any remedy available in respect of the related
Preferred Securities Guarantee, including the giving of directions to The
First National Bank of Chicago . If The First National Bank of Chicago fails
to enforce such Preferred Securities Guarantee as above provided, any holder
of Preferred Securities issued by the applicable AES Trust may institute a
legal proceeding directly against the Company to enforce its rights under such
Preferred Securities Guarantee, without first instituting a legal proceeding
against the applicable AES Trust or any other person or entity.
Miscellaneous
The Company will be required to provide annually to The First
National Bank of Chicago a statement as to the performance by the Company of
certain of its obligations under the Preferred Securities Guarantees and as to
any default in such performance. The Company is required to file annually
with The First National Bank of Chicago an officer's certificate as to the
Company's compliance with all conditions under Preferred Securities
Guarantees.
The First National Bank of Chicago, prior to the occurrence of
a default, undertakes to perform only such duties as are specifically set
forth in the applicable Preferred Securities Guarantee and, after default with
respect to a Preferred Securities Guarantee, shall exercise the same degree of
care as a prudent individual would exercise in the conduct of his or her own
affairs. Subject to such provision, The First National Bank of Chicago is
under no obligation to exercise any of the powers vested in it by a Preferred
Securities Guarantee at the request of any holder of Preferred Securities
unless it is offered reasonable indemnity against the costs, expenses and
liabilities that might be incurred thereby.
Governing Law
The Guarantees will be governed by, and construed in accordance
with, the laws of the State of New York.
DESCRIPTION OF THE JUNIOR SUBORDINATED DEBT TRUST SECURITIES
Junior Subordinated Debt Trust Securities may be issued from
time to time in one or more series under an Indenture (the "Indenture")
between the Company and The First National Bank of Chicago, as trustee (the
"Indenture Trustee"). The form of Junior Subordinated Debt Trust Securities
Indenture has been filed as an exhibit to the Registration Statement of which
this Prospectus forms a part. The following description summarizes the
material terms of the Indenture, and is qualified in its entirety by reference
to the Indenture and the Trust Indenture Act. Whenever particular provisions
or defined terms in the Indenture are referred to herein, such provisions or
defined terms are incorporated by reference herein. Section and article
references used herein are references to provisions of the Indenture.
General
The Junior Subordinated Debt Trust Securities will be
unsecured, junior subordinated obligation of the Company. The Indenture does
not limit the amount of additional indebtedness the Company or any of its
subsidiaries may incur. Since the Company is a holding company, the Company's
rights and the rights of its creditors, including the holders of Junior
Subordinated Debt Securities, to participate in the assets of any subsidiary
upon the latter's liquidation or recapitalization will be subject to the prior
claims of the subsidiary's creditors, except to the extent that the Company
may itself be a creditor with recognized claims against the subsidiary.
The Indenture does not limit the aggregate principal amount of
indebtedness which may be issued thereunder and provides that Junior
Subordinated Debt Trust Securities may be issued thereunder from time to time
in one or more series. The Junior Subordinated Debt Trust Securities are
issuable in one or more series pursuant to an indenture supplemental to the
Indenture.
In the event Junior Subordinated Debt Trust Securities are
issued to an AES Trust or a Trustee of such trust in connection with the
issuance of Trust Securities by such AES Trust, such Junior Subordinated Debt
Trust Securities subsequently may be distributed pro rata to the holders of
such Trust Securities in connection with the dissolution of such AES Trust
upon the occurrence of certain events described in the Prospectus Supplement
relating to such Trust Securities. Only one series of Junior Subordinated
Debt Trust Securities will be issued to an AES Trust or a trustee of such
trust in connection with the issuance of Trust Securities by such AES Trust.
Reference is made to the Prospectus Supplement which will
accompany this Prospectus for the following terms of the series of Junior
Subordinated Debt Trust Securities being offered thereby (to the extent such
terms are applicable to the Junior Subordinated Debt Trust Securities): (i)
the specific designation of such Junior Subordinated Debt Trust Securities,
aggregate principal amount, purchase price and premium, if any; (ii) any limit
on the aggregate principal amount of such Junior Subordinated Debt Trust
Securities; (iii) the date or dates on which the principal of such Junior
Subordinated Debt Trust Securities is payable and the right, to extend or
defer such date or dates; (iv) the rate or rates at which such Junior
Subordinated Debt Trust Securities will bear interest or the method of
calculating such rate or rates, if any; (v) the date or dates from which such
interest shall accrue, the interest payment dates on which such interest will
be payable or the manner of determination of such interest payment dates and
the record dates for the determination of holders to whom interest is payable
on any such interest payment dates; (vi) the right, if any, to extend the
interest payment periods and the duration of such extension; (vii) the period
or periods within which, the price or prices at which, and the terms and
conditions upon which, such Junior Subordinated Debt Trust Securities may be
redeemed, in whole or in part, at the option of the Company; (viii) the
obligation, if any of the Company to redeem or purchase such Junior
Subordinated Debt Trust Securities pursuant to any sinking fund or analogous
provisions or at the option of the holder thereof and the period or periods
for which, the price or prices at which, and the terms and conditions upon
which, such Junior Subordinated Debt Trust Securities shall be redeemed or
purchased, in whole or part, pursuant to such obligation; (ix) any
exchangeability, conversion or prepayment provisions of the Junior
Subordinated Debt Trust Securities; (x) any applicable United States federal
income tax consequences, including whether and under what circumstances the
Company will pay additional amounts on the Junior Subordinated Debt Trust
Securities held by a person who is not a U.S. person in respect of any tax,
assessment or governmental charge withheld or deducted and, if so, whether the
Company will have the option to redeem such Junior Subordinated Debt Trust
Securities rather than pay such additional amounts; (xi) the form of such
Junior Subordinated Debt Trust Securities; (xii) if other than denominations
of $25 or any integral multiple thereof, the denominations in which such
Junior Subordinated Debt Trust Securities shall be issuable; (xiii) any and
all other terms with respect to such series, including any modification of or
additions to the events of default or covenants provided for with respect to
such series, including any modification of or additions to the events of
default or covenants provided for with respect to the Junior Subordinated Debt
Trust Securities, and any terms which may be required by or advisable under
applicable laws or regulations not inconsistent with the Indenture; and (xiv)
whether such Junior Subordinated Debt Trust Securities are issuable as a
global security, and in such case, the identity of the depositary. (Section
2.01)
Unless otherwise indicated in the Prospectus Supplement
relating thereto, the Junior Subordinated Debt Trust Securities will be issued
in United States dollars in fully registered form without coupons in
denominations of $25 or integral multiples thereof. Junior Subordinated Debt
Trust Securities may be presented for exchange and Junior Subordinated Debt
Trust Securities in registered form may be presented for transfer in the
manner, at the places and subject to the restrictions set forth in the Junior
Subordinated Debt Trust Securities and the Prospectus Supplement. Such
services will be provided without charge, other than any tax or other
governmental charge payable in connection therewith, but subject to the
limitations provided in the Junior Subordinated Debt Trust Securities. Junior
Subordinated Debt Trust Securities in bearer form and the coupons, if any,
appertaining thereto will be transferable by delivery.
Junior Subordinated Debt Trust Securities may bear interest at
a fixed rate or a floating rate. Junior Subordinated Debt Trust Securities
bearing no interest or interest at a rate that at the time of issuance is
below the prevailing market rate will be sold at a discount below their stated
principal amount. Special United States federal income tax considerations
applicable to any such discounted Junior Subordinated Debt Trust Securities or
to certain Junior Subordinated Debt Trust Securities issued at par which are
treated as having been issued at a discount for United States federal income
tax purposes will be described in the relevant Prospectus Supplement.
Certain Covenants of the Company Applicable to the Junior Subordinated Debt
Securities
If Junior Subordinated Debt Trust Securities are issued to an
AES Trust in connection with the issuance of Trust Securities by such AES
Trust, the Company will covenant in the Indenture that, so long as the
Preferred Securities issued by the applicable AES Trust remain outstanding,
the Company will not declare or pay any dividends on, or redeem, purchase,
acquire or make a distribution or liquidation payment with respect to, any of
its common stock or preferred stock or make any guarantee payment with respect
to, any of its common stock or preferred stock or make any guarantee payment
with respect thereto if at such time (i) the Company shall be in default with
respect to its Guarantee Payments or other payment obligations under the
related Preferred Securities Guarantee, (ii) there shall have occurred any
Indenture Event of Default with respect to the Junior Subordinated Debt Trust
Securities or (iii) in the event that Junior Subordinated Debt Trust
Securities are issued to an AES Trust in connection with the issuance of Trust
Securities by such AES Trust, the Company shall have given notice of its
election to defer payments of interest on such Junior Subordinated Debt Trust
Securities by extending the interest payment period as provided in the terms
of such Junior Subordinated Debt Trust Securities and such period, or any
extension thereof, is continuing; provided that (x) the Company will be
permitted to pay accrued dividends (and cash in lieu of fractional shares)
upon the conversion of any Preferred Stock of the Company as may be
outstanding from time to time, in each case in accordance with the terms of
such stock and (y) the foregoing will not apply to any stock dividends paid
by the Company. In addition, if Junior Subordinated Debt Trust Securities
are issued to an AES Trust in connection with the issuance of Trust
Securities by such AES Trust, for so long as the Preferred Securities
issued by the applicable AES Trust remain outstanding, the Company has
agreed (i) to remain the sole direct or indirect owner of all of the
outstanding Common Securities issued by the applicable AES Trust and not to
cause or permit the Common Securities to be transferred except to the
extent permitted by the related Declaration; provided that any permitted
successor of the Company under the Indenture may succeed to the Company's
ownership of the Common Securities issued by the applicable AES Trust, (ii)
to comply fully with all of its obligations and agreements contained in the
related Declaration and (iii) not to take any action which would cause the
applicable AES Trust to cease to be treated as a grantor trust for United
States federal income tax purposes, except in connection with a
distribution of Junior Subordinated Debt Trust Securities.
Subordination
The payment of principal of, premium, if any, and interest on
the Junior Subordinated Trust Securities will, to the extent and in the manner
set forth in the Indenture, be subordinated in right of payment to the prior
payment in full, in cash or cash equivalents, of all Senior Indebtedness of
the Company.
Upon any payment or distribution of assets to creditors upon
any liquidation, dissolution, winding up, receivership, reorganization,
assignment for the benefit of creditors, marshalling of assets and liabilities
or any bankruptcy, insolvency or similar proceedings of the Company, the
holders of all Senior Indebtedness will first be entitled to receive payment
in full of all amounts due or to become due thereon before the holders of the
Junior Subordinated Debt Trust Securities will be entitled to receive any
payment in respect of the principal of, premium, if any, or interest on the
Junior Subordinated Debt Trust Securities.
No payments on account of principal, premium, if any, or
interest in respect of the Junior Subordinated Debt Trust Securities may be
made by the Company if there shall have occurred and be continuing a default
in any payment with respect to Senior Indebtedness or during certain periods
when an event of default under certain Senior Indebtedness permits the lenders
thereunder to accelerate the maturity of such Senior Indebtedness. In
addition, during the continuance of any other event of default (other than a
payment default) with respect to Designated Senior Indebtedness pursuant to
which the maturity thereof may be accelerated, from and after the date of
receipt by the Trustee of written notice from holders of such Designated
Senior Indebtedness or from an agent of such holders, no payments on account
of principal, premium, if any, or interest in respect of the Junior
Subordinated Debt Trust Securities may be made by the Company during a period
(the "Payment Blockage Period") commencing on the date of delivery of such
notice and ending 179 days thereafter (unless such Payment Blockage Period
shall be terminated by written notice to the Trustee from the holders of such
Designated Senior Indebtedness or from an agent of such holders, or such event
of default has been cured or waived or has ceased to exist). Only one Payment
Blockage Period may be commenced with respect to the Junior Subordinated Debt
Trust Securities during any period of 360 consecutive days. No event of
default which existed or was continuing on the date of the commencement of any
Payment Blockage Period with respect to the Designated Senior Indebtedness
initiating such Payment Blockage Period shall be or be made the basis for the
commencement of any subsequent Payment Blockage Period by the holders of such
Designated Senior Indebtedness, unless such event of default shall have been
cured or waived for a period of not less than 90 consecutive days.
By reason of such subordination, in the event of insolvency,
funds that would otherwise be payable to holders of Junior Subordinated Debt
Trust Securities will be paid to the holders of Senior Indebtedness of the
Company to the extent necessary to pay such Debt in full, and the Company may
be unable to meet fully its obligations with respect to the Junior
Subordinated Debt Trust Securities.
"Debt" is defined to mean, with respect to any person at any
date of determination (without duplication), (i) all indebtedness of such
person for borrowed money, (ii) all obligations of such person evidenced by
bonds, debentures, notes or other similar instruments, (iii) all obligations
of such person in respect of letters of credit or bankers' acceptance or other
similar instruments (or reimbursement obligations with respect thereto), (iv)
all obligations of such person to pay the deferred purchase price of property
or services, except trade payables, (v) all obligations of such person as
lessee under capitalized leases, (vi) all Debt of others secured by a lien on
any asset of such person, whether or not such Debt is assumed by such person;
provided that, for purposes of determining the amount of any Debt of the type
described in this clause, if recourse with respect to such Debt is limited to
such asset, the amount of such Debt shall be limited to the lesser of the fair
market value of such asset or the amount of such Debt, (vii) all Debt of
others guaranteed by such person to the extent such Debt is guaranteed by such
person, (viii) all redeemable stock valued at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends and (ix)
to the extent not otherwise included in this definition, all obligations of
such person under currency agreements and interest rate agreements.
"Designated Senior Indebtedness" is defined to mean (i) Debt
under the Credit Agreement dated as of May 20, 1996 (the "Credit Agreement")
among the Company, the Banks named on the signature pages thereof and the
Morgan Guaranty Trust Company of New York, as agent for the banks, as such
Credit Agreement has been and may be amended, restated, supplemented or
otherwise modified from time to time and (ii) Debt constituting Senior
Indebtedness which, at the time of its determination, (A) has an aggregate
principal amount of at least $30 million and (B) is specifically designated in
the instrument evidencing such Senior Indebtedness as "Designated Senior
Indebtedness" by the Company.
"Senior Indebtedness" is defined to mean the principal of (and
premium, if any) and interest on all Debt of the Company whether created,
incurred or assumed before, on or after the date of the Indenture; provided
that such Senior Indebtedness shall not include (i) Debt of the Company that,
when incurred and without respect to any election under Section 1111(b) of
Title 11, U.S. Code, was without recourse, (ii) any other Debt of the Company
which by the terms of the instrument creating or evidencing the same are
specifically designated as not being senior in right of payment to the Junior
Subordinated Debt Trust Securities, and in particular the Junior Subordinated
Debt Trust Securities shall rank pari passu with all other debt securities and
guarantees issued to any trust, partnership or other entity affiliated with
the Company which is a financing vehicle of the Company in connection with an
issuance of preferred securities by such financing entity, and (iii)
redeemable stock of the Company.
Indenture Events of Default
The Indenture provides that any one or more of the following
described events, which has occurred and is continuing, constitutes an
"Indenture Event of Default" with respect to each series of Junior
Subordinated Debt Securities:
(a) failure for 30 days to pay interest on the Junior
Subordinated Debt Trust Securities of such series when due; provided that a
valid extension of the interest payment period by the Company shall not
constitute a default in the payment of interest for this purpose;
(b) failure to pay principal of or premium, if any, on the Junior
Subordinated Debt Trust Securities of such series when due whether at
maturity, upon redemption, by declaration or otherwise;
(c) failure to observe or perform any other covenant contained in
the Indenture with respect to such series for 90 days after written notice to
the Company from the Indenture Trustee or the holders of at least 25% in
principal amount of the outstanding Junior Subordinated Debt Trust Securities
of such series; or
(d) certain events in bankruptcy, insolvency or reorganization of
the Company.
In each and every such case, unless the principal of all the
Junior Subordinated Debt Trust Securities of that series shall have already
become due and payable, either the Indenture Trustee or the holders of not
less than 25% in aggregate principal amount of the Junior Subordinated Debt
Trust Securities of that series then outstanding, by notice in writing to the
Company (and to the Indenture Trustee if given by such holders), may declare
the principal of all the Junior Subordinated Debt Trust Securities of that
series to be due and payable immediately, and upon any such declaration the
same shall become and shall be immediately due and payable. (Section 6.01)
The holders of a majority in aggregate outstanding principal
amount of the Junior Subordinated Debt Trust Securities of that series have
the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Indenture Trustee. (Section 6.06) The
Indenture Trustee or the holders of not less than 25% in aggregate outstanding
principal amount of the Junior Subordinated Debt Trust Securities of that
series may declare the principal due and payable immediately upon an Indenture
Event of Default with respect to such series, but the holders of a majority in
aggregate outstanding principal amount of Junior Subordinated Debt Trust
Securities of such series may annul such declaration and waive the default if
the default has been cured and a sum sufficient to pay all matured
installments of interest and principal otherwise than by acceleration and any
premium has been deposited with the Indenture Trustee. (Sections 6.01 and
6.06)
The holders of a majority in aggregate outstanding principal
amount of the Junior Subordinated Debt Trust Securities of that series may, on
behalf of the holders of all the Junior Subordinated Debt Trust Securities of
that series, waive any past default, except a default in the payment of
principal, premium, if any, or interest (unless such default has been cured
and a sum sufficient to pay all matured installments of interest and principal
otherwise than by acceleration and any premium has been deposited with the
Indenture Trustee) or a call for redemption of Junior Subordinated Debt Trust
Securities. (Section 6.06) The Company is required to file annually with the
Indenture Trustee a certificate as to whether or not the Company is in
compliance with all the conditions and covenants under the Indenture. (Section
5.03)
If Junior Subordinated Debt Trust Securities are issued to an
AES Trust in connection with the issuance of Trust Securities of such AES
Trust, then under the applicable Declaration an Indenture Event of Default
with respect to such series of Junior Subordinated Debt Trust Securities will
constitute a Declaration Event of Default.
Modification of the Indenture
The Indenture contains provisions permitting the Company and
the Indenture Trustee, with the consent of the holders of not less than a
majority in principal amount of the outstanding Junior Subordinated Debt Trust
Securities of each series affected, to modify the Indenture or any
supplemental indenture affecting the rights of the holders of such Junior
Subordinated Debt Securities; provided that no such modification may, without
the consent of the holder of each outstanding Junior Subordinated Debt Trust
Security affected thereby, (i) extend the fixed maturity of any Junior
Subordinated Debt Trust Securities of any series, reduce the principal amount
thereof, reduce the rate or extent the time of payment of interest thereon,
reduce any premium payable upon the redemption thereof, without the consent of
the holder of each Junior Subordinated Debt Trust Security so affected or (ii)
reduce the percentage of Junior Subordinated Debt Trust Securities, the
holders of which are required to consent to any such modification, without the
consent of the holders of each Junior Subordinated Debt Trust Security then
outstanding and affected thereby. (Section 9.02)
Book-Entry and Settlement
If any Junior Subordinated Debt Trust Securities of a series
are represented by one or more global securities (each, a "Global Security"),
the applicable Prospectus Supplement will describe the circumstances, if any,
under which beneficial owners of interests in any such Global Security may
exchange such interests for Junior Subordinated Debt Trust Securities of such
series and of like tenor and principal amount in any authorized form and
denomination. Principal of and any premium and interest on a Global Security
will be payable in the manner described in the applicable Prospectus
Supplement.
The specific terms of the depositary arrangement with respect
to any portion of a series of Junior Subordinated Debt Trust Securities to be
represented by a Global Security will be described in the applicable Prospectus
Supplement.
Consolidation, Merger and Sale
The Indenture will provide that the Company may not consolidate
with or merge into any other person or transfer or lease its properties and
assets substantially as an entirety to any person and may not permit any person
to merge into or consolidate with the Company unless (i) either the Company
will be the resulting or surviving entity or any successor or purchaser is a
corporation organized under the laws of the United States of America, any State
or the District of Columbia, and any such successor or purchaser expressly
assumes the Company's obligations under the Indenture and (ii) immediately
after giving effect to the transaction no Event of Default shall have occurred
and be continuing. (Section 10.01)
Defeasance and Discharge
Under the terms of the Indenture, the Company will be
discharged from any and all obligations in respect of the Junior Subordinated
Debt Trust Securities of a series (except in each case for certain obligations
to register the transfer or exchange of such Junior Subordinated Debt Trust
Securities, replace stolen, lost or mutilated Junior Subordinated Debt Trust
Securities of that series, maintain paying agencies and hold moneys for
payment in trust) if (i) the Company irrevocably deposits with the Indenture
Trustee cash or U.S. Government Obligations, as trust funds in an amount
certified to be sufficient to pay at maturity (or upon redemption) the
principal of, premium, if any, and interest on all outstanding Junior
Subordinated Debt Trust Securities of such series; (ii) such deposit will not
result in a breach or violation of, or constitute a default under, any
agreement or instrument to which the Company is a party or by which it is
bound; (iii) the Company delivers to the Indenture Trustee an opinion of
counsel to the effect that the holders of the Junior Subordinated Debt Trust
Securities of such series will not recognize income, gain or loss for United
States federal income tax purposes as a result of such defeasance and that
defeasance will not otherwise alter holders' United States federal income tax
treatment of principal, premium and interest payments on such Junior
Subordinated Debt Trust Securities of such series (such opinion must be based
on a ruling of the Internal Revenue Service or a change in United States
federal income tax law occurring after the date of such Junior Subordinated
Debt Trust Securities Indenture, since such a result would not occur under
current tax law); (iv) the Company has delivered to the Indenture Trustee an
Officer's Certificate and an opinion of counsel, each stating that all
conditions precedent provided for relating to the defeasance contemplated by
such provision have been complied with; and (v) no event or condition shall
exist that, pursuant to the subordination provisions applicable to such
series, would prevent the Company from making payments of principal of,
premium, if any, and interest on the Junior Subordinated Debt Trust Securities
of such series at the date of the irrevocable deposit referred to above.
(Section 11.01)
Governing Law
The Indenture and the Junior Subordinated Debt Trust Securities
will be governed by the laws of the State of New York. (Section 13.05)
Information Concerning the Indenture Trustee
The Indenture Trustee, prior to default, undertakes to perform
only such duties as are specifically set forth in the Indenture and, after
default, shall exercise the same degree of care as a prudent individual would
exercise in the conduct of his or her own affairs. (Section 7.01) Subject to
such provision, the Indenture Trustee is under no obligation to exercise any
of the powers vested in it by the Junior Subordinated Debt Trust Securities
Indenture at the request of any holder of Junior Subordinated Debt Trust
Securities, unless offered reasonable indemnity by such holder against the
costs, expenses and liabilities that might be incurred thereby. (Section
7.02) The Indenture Trustee is not required to expend or risk its own funds
or otherwise incur personal financial liability in the performance of its
duties if the Trustee reasonably believes that repayment or adequate indemnity
is not reasonably assured to it. (Section 7.01)
The Company and its subsidiaries maintain ordinary banking and
trust relationships with The First National Bank of Chicago and its affiliates.
Miscellaneous
The Company will have the right at all times to assign any of
its rights or obligations under the Indenture to a direct or indirect
wholly-owned subsidiary of the Company; provided that, in the event of any
such assignment, the Company will remain jointly and severally liable for all
such obligations. Subject to the foregoing, the Indenture will be binding
upon and inure to the benefit of the parties thereto and their respective
successors and assigns. The Indenture provides that it may not otherwise be
assigned by the parties thereto other than by the Company to a successor or
purchaser pursuant to a consolidation, merger or sale permitted by the
Indenture. (Section 13.11)
PLAN OF DISTRIBUTION
The Company may sell any series of Junior Subordinated Debt
Trust Securities and the AES Trusts may sell the Preferred Securities being
offered hereby in any of three ways (or in any combination thereof): (i)
through underwriters or dealers; (ii) directly to a limited number of
purchasers or to a single purchaser; or (iii) through agents. The Prospectus
Supplement with respect to any Offered Securities will set forth the terms of
the offering of such Offered Securities, including the name or names of any
underwriters, dealers or agents and the respective amounts of such Offered
Securities underwritten or purchased by each of them, the initial public
offering price of such Offered Securities and the proceeds to the Company from
such sale, any discounts, commissions or other items constituting compensation
from the Company and any discounts, commissions or concessions allowed or
reallowed or paid to dealers and any securities exchanges on which such
Offered Securities may be listed. Any public offering price and any discounts
or concessions allowed or reallowed or paid to dealers may be changed from
time to time.
If underwriters are used in the sale of any Offered Securities,
such Offered Securities will be acquired by the underwriters for their own
account and may be resold from time to time in one or more transactions,
including negotiated transactions, at a fixed public offering price or at
varying prices determined at the time of sale. Such Offered Securities may be
either offered to the public through underwriting syndicates represented by
managing underwriters, or directly by underwriters. Unless otherwise set
forth in the Prospectus Supplement, the obligations of the underwriters to
purchase such Offered Securities will be subject to certain conditions
precedent and the underwriters will be obligated to purchase all of such
Offered Securities if any are purchased.
Offered Securities may be sold directly by the Company or
through agents designated by the Company from time to time. Any agent
involved in the offer or sale of Offered Securities in respect of which this
Prospectus is delivered will be named, and any commissions payable by the
Company to such agent will be set forth, in the Prospectus Supplement. Unless
otherwise indicated in the Prospectus Supplement, any such agent will be
acting on a best efforts basis for the period of its appointment.
If so indicated in the Prospectus Supplement, the Company will
authorize underwriters, dealers or agents to solicit offers by certain
purchasers to purchase Offered Securities from the Company at the public
offering price set forth in the Prospectus Supplement pursuant to delayed
delivery contracts providing for payment and delivery on a specified date in
the future. Such contracts will be subject only to those conditions set forth
in the Prospectus Supplement, and the Prospectus Supplement will set forth the
commission payable for solicitation of such contracts.
Agents and underwriters may be entitled under agreements
entered into with the Company to indemnification by the Company against
certain civil liabilities, including liabilities under the Securities Act, or
to contribution with respect to payments which the agents or underwriters may
be required to make in respect thereof. Agents and underwriters may be
customers of, engage in transactions with, or perform services for the Company
in the ordinary course of business.
LEGAL MATTERS
The legality of the Junior Subordinated Debt Trust Securities
and the Preferred Securities offered hereby will be passed upon for the
Company by Davis Polk & Wardwell.
EXPERTS
The consolidated financial statements incorporated in this
Prospectus by reference from the Company's Registration Statement on Form S-3
filed on June 12, 1996, and the consolidated financial statement schedules
incorporated in this Prospectus by reference from the Company's Annual Report
on Form 10-K for the year ended December 31, 1995 have been audited by
Deloitte & Touche LLP, independent auditors, as stated in their reports, which
are incorporated by reference herein and such consolidated financial
statements and consolidated financial statement schedules have been so
incorporated in reliance upon the reports of such firm given upon their
authority as experts in accounting and auditing.
The financial statements of Light Servicos de Electicidade
S.A., from Form 8-K of the AES Corporation dated May 30, 1996, incorporated
in this Prospectus by reference, for the years ended December 31, 1995 and
1994 have been audited by Deloitte Touche Tohmatsu, Rio de Janeiro, Brazil,
independent auditors, as stated in their reports, which are incorporated
herein by reference, and have been so incorporated in reliance upon the
reports of such firm given upon their authority as experts in accounting
and auditing.
======================================== ====================================
No person has been authorized to give any
information or to make any representations,
other than those contained or incorporated by
reference in this Prospectus or any Prospectus $750,000,000
Supplement, in connection with any offering
contemplated hereby, and, if given or made, The AES Corporation
such information or representations must not be
relied upon as having been authorized by the Junior Subordinated
company, any underwriter, agent or dealer. Debt Securities
Neither the delivery of this Prospectus or any
Prospectus Supplement nor any sale made AES TRUST I
hereunder or thereunder shall under any AES TRUST II
circumstances create any implication that there
has been no change in the affairs of the Preferred Securities
Company since the date hereof or thereof.
Neither this Prospectus nor any Prospectus ----------
Supplement shall constitute an offer to PROSPECTUS
sell or a solicitation of an offer to ----------
buy any securities by anyone in any
jurisdiction in which such offer
or solicitation is not authorized or in
which the person making such offer or
solicitation is not qualified to do so
or to any person to whom it is
unlawful to make such offer or
solicitation.
Table of Contents
Page
----
Available Information................. 1
Incorporation of Certain Information
by Reference....................... 1
Use of Proceeds...................... 2
Ratios of Earnings to Fixed Charges.. 2
The Company.......................... 3
Risk Factors......................... 4
The AES Trusts....................... 13
Description of Preferred Securities.. 18
Description of Preferred Securities
Guarantees......................... 19
Description of Junior Subordinated
Debt Trust Securities.............. 22
Plan of Distribution................. 28
Legal Matters........................ 28
Experts.............................. 28 , 1996
======================================== ====================================
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the expenses in connection with
the issuance and distribution of the securities being registered, other than
underwriting discounts and commissions. All of the amounts shown are
estimates, except the SEC registration fee.
SEC Registration filing fee..................... $225,273
Printing and engraving expenses................. $ 75,000
Blue sky fees and expenses (including counsel).. $ 7,500
Legal fees and expenses......................... $125,000
Fees of accountants............................. $ 75,000
Fees of trustee................................. $ 10,000
________
Total.......................................... $517,773
========
Item 15. Indemnification of Directors and Officers
Under the Company's By-Laws, and in accordance with Section 145
of the Delaware General Corporation Law ("GCL"), the Company shall indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than any action or suit by or
in the right of the Company to procure a judgment in its favor, which is
hereinafter referred to as a "derivative action") by reason of the fact that
such person is or was a director, officer or employee of the Company, or is or
was serving in such capacity or as an agent at the request of the Company for
another entity, to the full extent authorized by Delaware law, against
expenses (including, but not limited to, attorneys' fees), judgments, fines
and amounts actually and reasonably incurred in connection with the defense or
settlement of such action, suit or proceeding if such person acted in good
faith and in a manner the person reasonably believed to be in or not opposed
to the best interests of the Company, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe was unlawful. Agents of the
Company may be similarly indemnified, at the discretion of the Board of
Directors.
Under Section 145 of the GCL, a similar standard of care is
applicable in the case of derivative actions, except that indemnification only
extends to expenses (including attorneys' fees) incurred in connection with
the defense or settlement of such an action and then, where the person is
adjudged to be liable to the Company, only if and to the extent that the Court
of Chancery of the State of Delaware or the court in which such action was
brought determines that such person is fairly and reasonably entitled to such
indemnity and only for such expenses as the court shall deem proper.
Pursuant to Company's By-Laws, a person eligible for
indemnification may have the expenses incurred in connection with any matter
described above paid in advance of a final disposition by the Company.
However, such advances will only be made upon the delivery of an undertaking
by or on behalf of the indemnified person to repay all amounts so advanced if
it is ultimately determined that such person is not entitled to
indemnification.
In addition, under the Company's By-Laws, the Company may
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the Company or of another corporation
against any liability asserted against and incurred by such person in such
capacity, or arising out of the person's status as such whether or not the
Company would have the power or the obligation to indemnify such person
against such liability under the provisions of the Company's By-Laws.
Item 16. Exhibits.
Exhibits Description of Exhibit
- -------- ----------------------
1.1 Form of Underwriting Agreement (Debt Securities)+
1.2 Form of Underwriting Agreement (Common Stock and Preferred Stock)+
1.3 Form of Underwriting Agreement (Stock Purchase Contracts and Stock
Purchase Units)+
1.4 Form of Underwriting Agreement (Preferred Securities)+
4.1 Form of Senior Debt Securities Indenture between the Company and
The First National Bank of Chicago
4.2 Senior Subordinated Debt Securities Indenture dated as of
July 1, 1996 between the Company and
The First National Bank of Chicago
4.3 Form of Junior Subordinated Debt Securities Indenture between the
Company and The First National Bank of Chicago
4.4 Form of Junior Subordinated Debt Trust Securities Indenture
between the Company and The First National Bank of Chicago
4.5 Declaration of Trust of AES Trust I
4.6 Certificate of Trust of AES Trust I
4.7 Declaration of Trust of AES Trust II
4.8 Certificate of Trust of AES Trust II
4.9 Form of Amended and Restated Declaration of Trust for each of AES
Trust I and AES Trust II
4.10 Form of Preferred Security (included in Exhibit 4.9)
4.11 Form of Supplemental Indenture to be used in connection with
issuance of Junior Subordinated Debt Trust Securities and
Preferred Securities
4.12 Form of Junior Subordinated Debt Trust Security (included in
Exhibit 4.11)
4.13 Form of Preferred Securities Guarantee with respect to Preferred
Securities
5.1 Opinion of Davis Polk & Wardwell+
5.2 Opinion of Delaware counsel+
12.1 Statement re: Computation of ratio of earnings to fixed charges
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Deloitte Touche Tohmatsu
23.3 Consent of Davis Polk & Wardwell (included in Exhibit 5.1)+
23.4 Consent of Delaware counsel (included in Exhibit 5.2)+
24.1 Powers of Attorney for the Company (included in signature page)
24.2 Powers of Attorney for the Company as sponsor, to sign the
Registration Statement on behalf of AES Trust I and AES Trust II
(included in Exhibits 4.5 and 4.7)
25.1 Statement of Eligibility under the Trust Indenture Act of 1939, as
amended, of The First National Bank of Chicago, as Trustee,
under the Senior Debt Securities Indenture
25.2 Statement of Eligibility under the Trust Indenture Act of 1939, as
amended, of The First National Bank of Chicago, as Trustee,
under the Senior Subordinated Debt Securities Indenture
25.3 Statement of Eligibility under the Trust Indenture Act of 1939,
as amended, of The First National Bank of Chicago, as Trustee,
under the Junior Subordinated Debt Securities Indenture
25.4 Statement of Eligibility under the Trust Indenture Act of 1939, as
amended, of The First National Bank of Chicago, as Trustee, with
respect to the Junior Subordinated Debt Trust Securities
Indenture
25.5 Statement of Eligibility under the Trust Indenture Act of 1939, as
amended, of The First National Bank of Chicago, as Trustee, with
respect to the Preferred Securities of AES Trust I
25.6 Statement of Eligibility under The Trust Indenture Act of 1939, as
amended, of The First National Bank of Chicago, as Trustee, with
respect to the Preferred Securities of AES Trust II
25.7 Statement of Eligibility under the Trust Indenture Act of 1939, as
amended, of The First National Bank of Chicago, as Trustee,
under the Preferred Securities Guarantee of the Company with
respect to the Preferred Securities of AES Trust I
25.8 Statement of Eligibility under the Trust Indenture Act of 1939, as
amended, of The First National Bank of Chicago, as Trustee, with
respect to the Preferred Securities Guarantee of the Company
with respect to the Preferred Securities of AES Trust II
___________
+ To be filed by amendment.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made of the securities registered hereby, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement; provided, however, that the undertakings set
forth in paragraphs (1)(i) and (1)(ii) above do not apply if the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") that are incorporated by reference in this
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be
a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions described under Item 15
above, or otherwise, the registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the registrar of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of
any action, suit or proceeding is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by against public policy as expressed in the Securities Act and will
be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that is has reasonable grounds to believe that it meets
all of the requirements for filing on Forms S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Arlington, State of Virginia on
November 4, 1996.
THE AES CORPORATION
By: /s/ Dennis W. Bakke
-----------------------------
Dennis W. Bakke
President and Chief Executive Officer
The registrant and each person whose signature appears below
constitutes and appoints Dennis W. Bakke and any agent for service named
in this Registration Statement and each of them, his, her or its true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him, her or it and in his, her, or its name, place and
stead, in any and all capacities, to sign and file (i) any and all
amendments (including post-effective amendments) to this Registration
Statement, with all exhibits thereto, relating to the offering covered
hereby filed pursuant to Rule 462(b) under the Securities Act of 1933, with
the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite or necessary to be
done in and about the premises, as fully to all intents and purposes as he,
she, or it might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents or any of them, or their or his
substitutes or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in
the capacities indicated on November 4, 1996.
Signature Title Date
--------- ----- ----
* Chairman of the Board November 4, 1996
- ------------------------------
Roger W. Sant
/s/ Dennis W. Bakke President, Chief November 4, 1996
- ------------------------------ Executive Officer and
Dennis W. Bakke Director (Principal
Executive Officer)
* Director November 4, 1996
- ------------------------------
Vicki-Ann Assevero
* Director November 4, 1996
- ------------------------------
Dr. Alice F. Emerson
* Director November 4, 1996
- ------------------------------
Robert F. Hemphill, Jr.
* Director November 4, 1996
- ------------------------------
Frank Jungers
* Director November 4, 1996
- ------------------------------
Dr. Henry R. Linden
* Director November 4, 1996
- ------------------------------
Russell E. Train
* Director November 4, 1996
- ------------------------------
Thomas I. Unterberg
* Director November 4, 1996
- ------------------------------
Robert H. Waterman, Jr.
/s/ Barry J. Sharp Vice President and November 4, 1996
- ------------------------------ Chief Financial
Barry J. Sharp Officer (Principal
Financial and
Accounting Officer)
*By: /s/ Barry J. Sharp November 4, 1996
---------------------------
Barry J. Sharp
Attorney-in-Fact
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, AES
Trust I and AES Trust II each certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Forms S-3 and
has duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Arlington, State
of Virginia on November 4, 1996.
AES TRUST I
By: The AES Corporation, as Sponsor
By: /s/ William R. Luraschi
------------------------------
Name: William R. Luraschi
Title: General Counsel and Secretary
AES TRUST II
By: The AES Corporation, as Sponsor
By: /s/ William R. Luraschi
------------------------------
Name: William R. Luraschi
Title: General Counsel and Secretary
EXHIBIT INDEX
Sequentially
Exhibits Description of Exhibit Numbered Page
- -------- ---------------------- -------------
1.1 Form of Underwriting Agreement (Debt Securities)+
1.2 Form of Underwriting Agreement (Common Stock and
Preferred Stock)+
1.3 Form of Underwriting Agreement (Stock Purchase
Contracts and Stock Purchase Units)+
1.4 Form of Underwriting Agreement (Preferred Securities)+
4.1 Form of Senior Debt Securities Indenture between the
Company and The First National Bank of Chicago
4.2 Senior Subordinated Debt Securities Indenture dated
as of July 1, 1996 between the Company and The First
National Bank of Chicago
4.3 Form of Junior Subordinated Debt Securities Indenture
between the Company and The First National Bank
of Chicago
4.4 Form of Junior Subordinated Debt Trust Securities
Indenture between the Company and The First National
Bank of Chicago
4.5 Declaration of Trust of AES Trust I
4.6 Certificate of Trust of AES Trust I
4.7 Declaration of Trust of AES Trust II
4.8 Certificate of Trust of AES Trust II
4.9 Form of Amended and Restated Declaration of Trust for
each of AES Trust I and AES Trust II
4.10 Form of Preferred Security (included in Exhibit 4.9)
4.11 Form of Supplemental Indenture to be used in
connection with issuance of Junior Subordinated
Debt Trust Securities and Preferred Securities
4.12 Form of Junior Subordinated Debt Trust Security
(included in Exhibit 4.11)
4.13 Form of Preferred Securities Guarrantee with respect
to Preferred Securities
5.1 Opinion of Davis Polk & Wardwell+
5.2 Opinion of Delaware counsel+
12.1 Statement re: Computation of ratio of earnings to
fixed charges
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Deloitte Touche Tohmatsu
23.3 Consent of Davis Polk & Wardwell (included in
Exhibit 5.1)+
23.4 Consent of Delaware counsel (included in
Exhibit 5.2)+
24.1 Powers of Attorney for the Company
24.2 Powers of Attorney for the Company as sponsor, to
sign the Registration Statement on behalf of AES
Trust I and AES Trust II (included in Exhibits
4.5 and 4.7)
25.1 Statement of Eligibility under the Trust Indenture Act of 1939, as
amended, of The First National Bank of Chicago, as Trustee,
under the Senior Debt Securities Indenture
25.2 Statement of Eligibility under the Trust Indenture Act of 1939, as
amended, of The First National Bank of Chicago, as Trustee,
under the Senior Subordinated Debt Securities Indenture
25.3 Statement of Eligibility under the Trust Indenture Act of 1939,
as amended, of The First National Bank of Chicago, as Trustee,
under the Junior Subordinated Debt Securities Indenture
25.4 Statement of Eligibility under the Trust Indenture Act of 1939, as
amended, of The First National Bank of Chicago, as Trustee, with
respect to the Junior Subordinated Debt Trust Securities
Indenture
25.5 Statement of Eligibility under the Trust Indenture Act of 1939, as
amended, of The First National Bank of Chicago, as Trustee, with
respect to the Preferred Securities of AES Trust I
25.6 Statement of Eligibility under The Trust Indenture Act of 1939, as
amended, of The First National Bank of Chicago, as Trustee, with
respect to the Preferred Securities of AES Trust II
25.7 Statement of Eligibility under the Trust Indenture Act of 1939, as
amended, of The First National Bank of Chicago, as Trustee,
under the Preferred Securities Guarantee of the Company with
respect to the Preferred Securities of AES Trust I
25.8 Statement of Eligibility under the Trust Indenture Act of 1939, as
amended, of The First National Bank of Chicago, as Trustee, with
respect to the Preferred Securities Guarantee of the Company
with respect to the Preferred Securities of AES Trust II
_____________
+ To be filed by amendment.
Exhibit 4.1
THE AES CORPORATION
as the Company
and
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
___________________________________
Senior Indenture
Dated as of ______ __, 199__
___________________________________
TABLE OF CONTENTS(*)
Page
----
RECITALS OF THE COMPANY
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
(*) Note: The Table of Contents shall not for any purposes be deemed to
be a part of the
Indenture.
SECTION 1.1 Definitions................................................. 1
SECTION 1.2 Other Definitions........................................... 8
SECTION 1.3 Incorporation by Reference of Trust Indenture Act........... 9
SECTION 1.4 Rules of Construction....................................... 9
ARTICLE 2
THE SECURITIES
SECTION 2.1 Form and Dating............................................. 10
SECTION 2.2 Execution and Authentication................................ 10
SECTION 2.3 Amount Unlimited; Issuable in Series........................ 12
SECTION 2.4 Denomination and Date of Securities; Payments of Interest... 15
SECTION 2.5 Registrar and Paying Agent; Agents Generally................ 16
SECTION 2.6 Paying Agent to Hold Money in Trust......................... 17
SECTION 2.7 Transfer and Exchange....................................... 17
SECTION 2.8 Replacement Securities...................................... 21
SECTION 2.9 Outstanding Securities...................................... 21
SECTION 2.10 Temporary Securities........................................ 22
SECTION 2.11 Cancellation................................................ 23
SECTION 2.12 CUSIP Numbers............................................... 23
SECTION 2.13 Defaulted Interest.......................................... 23
SECTION 2.14 Series May Include Tranches................................. 24
ARTICLE 3
REDEMPTION
SECTION 3.1 Applicability of Article.................................... 24
SECTION 3.2 Notice of Redemption; Partial Redemptions................... 24
SECTION 3.3 Payment of Securities Called for Redemption................. 27
SECTION 3.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption.................................... 28
SECTION 3.5 Mandatory and Optional Sinking Funds........................ 28
ARTICLE 4
COVENANTS
SECTION 4.1 Payment of Securities....................................... 31
SECTION 4.2 Maintenance of Office or Agency............................. 32
SECTION 4.3 Securityholders' Lists...................................... 33
SECTION 4.4 Certificate to Trustee...................................... 34
SECTION 4.5 Reports by the Company...................................... 34
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.1 When Company May Merge, Etc................................. 34
SECTION 5.2 Successor Substituted....................................... 35
ARTICLE 6
DEFAULT AND REMEDIES
SECTION 6.1 Events of Default........................................... 35
SECTION 6.2 Acceleration................................................ 36
SECTION 6.3 Other Remedies.............................................. 38
SECTION 6.4 Waiver of Past Defaults..................................... 38
SECTION 6.5 Control by Majority......................................... 39
SECTION 6.6 Limitation on Suits......................................... 39
SECTION 6.7 Rights of Holders to Receive Payment........................ 40
SECTION 6.8 Collection Suit by Trustee.................................. 40
SECTION 6.9 Trustee May File Proofs of Claim............................ 40
SECTION 6.10 Application of Proceeds..................................... 41
SECTION 6.11 Restoration of Rights and Remedies.......................... 42
SECTION 6.12 Undertaking for Costs....................................... 42
SECTION 6.13 Rights and Remedies Cumulative.............................. 42
SECTION 6.14 Delay or Omission Not Waiver................................ 43
ARTICLE 7
TRUSTEE
SECTION 7.1 General..................................................... 43
SECTION 7.2 Certain Rights of Trustee................................... 43
SECTION 7.3 Individual Rights of Trustee................................ 45
SECTION 7.4 Trustee's Disclaimer........................................ 46
SECTION 7.5 Notice of Default........................................... 46
SECTION 7.6 Reports by Trustee to Holders............................... 46
SECTION 7.7 Compensation and Indemnity.................................. 47
SECTION 7.8 Replacement of Trustee...................................... 48
SECTION 7.9 Successor Trustee by Merger, Etc............................ 49
SECTION 7.10 Eligibility................................................. 49
SECTION 7.11 Money Held in Trust......................................... 49
ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 8.1 Satisfaction and Discharge of Indenture..................... 50
SECTION 8.2 Application by Trustee of Funds Deposited for Payment of
Securities.................................................. 51
SECTION 8.3 Repayment of Moneys Held by Paying Agent.................... 51
SECTION 8.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed
for Two Years............................................... 51
SECTION 8.5 Defeasance and Discharge of Indenture....................... 52
SECTION 8.6 Defeasance of Certain Obligations........................... 54
SECTION 8.7 Reinstatement............................................... 55
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 Without Consent of Holders.................................. 56
SECTION 9.2 With Consent of Holders..................................... 57
SECTION 9.3 Revocation and Effect of Consent............................ 58
SECTION 9.4 Notation on or Exchange of Securities....................... 59
SECTION 9.5 Trustee to Sign Amendments, Etc............................. 59
SECTION 9.6 Conformity with Trust Indenture Act......................... 59
ARTICLE 10
MISCELLANEOUS
SECTION 10.1 Trust Indenture Act of 1939................................ 60
SECTION 10.2 Notices.................................................... 60
SECTION 10.3 Certificate and Opinion as to Conditions Precedent......... 61
SECTION 10.4 Statements Required in Certificate or Opinion.............. 61
SECTION 10.5 Evidence of Ownership...................................... 62
SECTION 10.6 Rules by Trustee, Paying Agent or Registrar................ 63
SECTION 10.7 Payment Date Other Than a Business Day..................... 63
SECTION 10.8 Governing Law.............................................. 63
SECTION 10.9 No Adverse Interpretation of Other Agreements.............. 63
SECTION 10.10 Successors................................................. 63
SECTION 10.11 Duplicate Originals........................................ 64
SECTION 10.12 Separability............................................... 64
SECTION 10.13 Table of Contents, Headings, Etc........................... 64
SECTION 10.14 Incorporators, Stockholders, Officers and Directors of
Company Exempt from Individual Liability................... 64
SECTION 10.15 Judgment Currency.......................................... 64
SIGNATURES
INDENTURE, dated as of ______ __, 199__, between The AES
Corporation., a Delaware corporation, as the Company, and The First National
Bank of Chicago, a national banking association, as Trustee.
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the issue from time to
time of its debentures, notes or other evidences of indebtedness to be issued
in one or more series (the "Securities") up to such principal amount or
amounts as may from time to time be authorized in accordance with the terms of
this Indenture and to provide, among other things, for the authentication,
delivery and administration thereof, the Company has duly authorized the
execution and delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Securities by the holders thereof, the Company and the Trustee mutually
covenant and agree for the equal and proportionate benefit of the respective
holders from time to time of the Securities or of any and all series thereof
and of the coupons, if any, appertaining thereto as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions.
"Affiliate" of any Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such Person. For the purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling", "controlled
by" and "under common control with") when used with respect to any Person
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such Person, whether through
the ownership of voting securities, by contract or otherwise.
"Agent" means any Registrar, Paying Agent, transfer agent or
Authenticating Agent.
"Authorized Newspaper" means a newspaper (which, in the case of
The City of New York, will, if practicable, be The Wall Street Journal
(Eastern Edition) and in the case of London, will, if practicable, be the
Financial Times (London Edition) and published in an official language of the
country of publication customarily published at least once a day for at least
five days in each calendar week and of general circulation in The City of New
York or London, as applicable. If it shall be impractical in the opinion of
the Trustee to make any publication of any notice required hereby in an
Authorized Newspaper, any publication or other notice in lieu thereof which is
made or given with the approval of the Trustee shall constitute a sufficient
publication of such notice.
"Board Resolution" means one or more resolutions of the board
of directors of the Company or any authorized committee thereof, certified by
the secretary or an assistant secretary to have been duly adopted and to be in
full force and effect on the date of certification, and delivered to the
Trustee.
"Business Day" means any day, other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which banking institutions are
authorized or required by law or regulation to close in The City of New York,
with respect to any Security the interest on which is based on the offered
quotations in the interbank Eurodollar market for dollar deposits in London,
or with respect to Securities denominated in a specified currency other than
United States dollars, in the principal financial center of the country of the
specified currency.
"Change of Control" means the occurrence of one or more of the
following events: (i) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all, or substantially all,
of the assets of the Company to any Person or group (as that term is used in
Section 13(d)(3) of the Securities Exchange Act of 1934) of Persons, (ii) a
Person or group (as so defined) of Persons (other than management of the
Company on the date of this Indenture or their Affiliates) shall have become
the beneficial owner of more than 35% of the outstanding voting stock of the
Company, or (iii) during any one-year period, individuals who at the beginning
of such period constitute the Board of Directors (together with any new
director whose election or nomination was approved by a majority of the
directors then in office who were either directors at the beginning of such
period or who were previously so approved) cease to constitute a majority of
the Board of Directors.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act or, if at any
time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act,
then the body performing such duties at such time.
"Company" means the party named as such in the first paragraph
of this Indenture until a successor replaces it pursuant to Article 5 of this
Indenture and thereafter means the successor.
"Corporate Trust Office" means the office of the Trustee at
which the corporate trust business of the Trustee shall, at any particular
time, be principally administered, which office is, at the date of this
Indenture, located at 14 Wall Street, 8th Floor, Window 2, New York, New York
10005 Attention: Corporate Trust Administration.
"Currency Agreement" means, with respect to any Person, any
foreign exchange contract, currency swap agreement or other similar agreement
or arrangement designed to protect such Person or any of its Subsidiaries
against fluctuations in currency values to or under which such Person or any
of its Subsidiaries is a party or a beneficiary on the date hereof or becomes
a party or a beneficiary thereafter.
"Debt" means, with respect to any Person at any date of
determination (without duplication), (i) all indebtedness of such Person for
borrowed money, (ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (iii) all obligations of such
Person in respect of letters of credit or bankers' acceptance or other similar
instruments (or reimbursement obligations with respect thereto), (iv) all
obligations of such Person to pay the deferred purchase price of property or
services, except Trade Payables, (v) all obligations of such Person as lessee
under Capitalized Leases, (vi) all Debt of others secured by a Lien on any
asset of such Person, whether or not such Debt is assumed by such Person;
provided that, for purposes of determining the amount of any Debt of the type
described in this clause, if recourse with respect to such Debt is limited to
such asset, the amount of such Debt shall be limited to the lesser of the fair
market value of such asset or the amount of such Debt, (vii) all Debt of
others Guaranteed by such Person to the extent such Debt is Guaranteed by such
Person, (viii) all redeemable stock valued at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends and (ix)
to the extent not otherwise included in this definition, all obligations of
such Person under Currency Agreements and Interest Rate Agreements.
"Default" means any Event of Default as defined in Section 6.1
and any event that is, or after notice or passage of time or both would be, an
Event of Default.
"Depositary" means, with respect to the Securities of any
series issuable or issued in the form of one or more Registered Global
Securities, the Person designated as Depositary by the Company pursuant to
Section 2.3 until a successor Depositary shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Depositary" shall
mean or include each Person who is then a Depositary hereunder, and if at any
time there is more than one such Person, "Depositary" as used with respect to
the Securities of any such series shall mean the Depositary with respect to
the Registered Global Securities of that series.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"GAAP" means generally accepted accounting principles in the
U.S. as in effect as of the Closing Date applied on a basis consistent with
the principles, methods, procedures and practices employed in the preparation
of the Company's audited financial statements, including, without limitation,
those set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or
in such other statements by such other entity as is approved by a significant
segment of the accounting profession.
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Debt or other obligation of
any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of)
such Debt or other obligation of such other Person (whether arising by virtue
of partnership arrangements, or by agreement to keepwell, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (ii) entered into for purposes of
assuring in any other manner the obligee of such Debt or other obligation of
the payment thereof or to protect such obligee against loss in respect thereof
(in whole or in part); provided that the term "Guarantee" shall not include
endorsements for collection or deposit in the ordinary course of business.
The term "Guarantee" used as a verb has a corresponding meaning.
"Holder" or "Securityholder" means the registered holder of any
Security with respect to Registered Securities and the bearer of any
Unregistered Security or any coupon appertaining thereto, as the case may be.
"Indenture" means this Indenture as originally executed and
delivered or as it may be amended or supplemented from time to time by one or
more indentures supplemental to this Indenture entered into pursuant to the
applicable provisions of this Indenture and shall include the forms and terms
of the Securities of each series established as contemplated pursuant to
Sections 2.1 and 2.3.
"Interest Rate Agreement" means, with respect to any Person,
any interest rate protection agreement, interest rate future agreement,
interest rate option agreement, interest rate swap agreement, interest rate
cap agreement, interest rate collar agreement, interest rate hedge agreement
or other similar agreement or arrangement designed to protect such Person or
any of its Subsidiaries against fluctuations in interest rates to or under
which such Person or any of its Subsidiaries is a party or a beneficiary on
the date hereof or becomes a party or a beneficiary thereafter.
"Lien" means, with respect to any Property, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of
such Property. For purposes of this Indenture, the Company shall be deemed to
own subject to a Lien any Property which it has acquired or holds subject to
the interest of a vendor or lessor under any conditional sale agreement,
capital lease or other title retention agreement relating to such Property.
"Officer" means, with respect to the Company, the chairman of
the board of directors, the president or chief executive officer, any vice
president, the chief financial officer, the treasurer or any assistant
treasurer, or the secretary or any assistant secretary.
"Officers' Certificate" means a certificate signed in the name
of the Company (i) by the chairman of the board of directors, the president or
chief executive officer or a vice president and (ii) by the chief financial
officer, the treasurer or any assistant treasurer, or the secretary or any
assistant secretary, complying with Section 10.4 and delivered to the Trustee.
Each such certificate shall comply with Section 314 of the Trust Indenture Act
and include (except as otherwise expressly provided in this Indenture) the
statements provided in Section 10.4.
"Opinion of Counsel" means a written opinion signed by legal
counsel, who may be an employee of or counsel to the Company, satisfactory to
the Trustee and complying with Section 10.4. Each such opinion shall comply
with Section 314 of the Trust Indenture Act and include the statements
provided in Section 10.4, if and to the extent required thereby.
"original issue date" of any Security (or portion thereof)
means the earlier of (a) the date of authentication of such Security or (b)
the date of any Security (or portion thereof) for which such Security was
issued (directly or indirectly) on registration of transfer, exchange or
substitution.
"Original Issue Discount Security" means any Security that
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant to
Section 6.2.
"Periodic Offering" means an offering of Securities of a series
from time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the stated
maturity or maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by the Company or its agents upon the
issuance of such Securities.
"Person" means an individual, a corporation, a partnership, a
limited liability company, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"Principal" of a Security means the principal amount of, and,
unless the context indicates otherwise, includes any premium payable on, the
Security.
"Registered Global Security" means a Security evidencing all or
a part of a series of Registered Securities, issued to the Depositary for such
series in accordance with Section 2.2, and bearing the legend prescribed in
Section 2.2.
"Registered Security" means any Security registered on the
Security Register (as defined in Section 2.5).
"Responsible Officer" means, when used with respect to the
Trustee, any senior trust officer, any vice president, any trust officer, any
assistant trust officer, or any other officer or assistant officer of the
Trustee customarily performing functions similar to those performed by the
persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his knowledge of and familiarity
with the particular subject.
"Securities" means any of the securities, as defined in the
first paragraph of the recitals hereof, that are authenticated and delivered
under this Indenture and, unless the context indicates otherwise, shall
include any coupon appertaining thereto.
"Securities Act" means the Securities Act of 1933, as amended.
"Subsidiary" means, with respect to any Person, any
corporation, association or other business entity of which a majority of the
capital stock or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned by such Person.
"Trade Payables" means, with respect to any Person, any
accounts payable or any other indebtedness or monetary obligation to trade
creditors created, assumed or Guaranteed by such Person or any of its
Subsidiaries arising in the ordinary course of business in connection with the
acquisition of goods or services.
"Trustee" means the party named as such in the first paragraph
of this Indenture until a successor replaces it in accordance with the
provisions of Article 7 and thereafter means such successor.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended (15 U.S. Code Section Section 77aaa-77bbbb), as it may be amended
from time to time.
"Unregistered Security" means any Security other than a
Registered Security.
"U.S. Government Obligations" means securities that are (i)
direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (ii) obligations of an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, and shall also include a depository receipt issued by a
bank or trust company as custodian with respect to any such U.S. Government
Obligation or a specific payment of interest on or principal of any such U.S.
Government Obligation held by such custodian for the account of the holder of
a depository receipt; provided that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the holder
of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of interest
on or principal of the U.S. Government Obligation evidenced by such depository
receipt.
"Yield to Maturity" means, as the context may require, the
yield to maturity (i) on a series of Securities or (ii) if the Securities of a
series are issuable from time to time, on a Security of such series,
calculated at the time of issuance of such series in the case of clause (i) or
at the time of issuance of such Security of such series in the case of clause
(ii), or, if applicable, at the most recent redetermination of interest on
such series or on such Security, and calculated in accordance with the
constant interest method or such other accepted financial practice as is
specified in the terms of such Security.
SECTION 1.2 Other Definitions. Each of the following
terms is defined in the section set forth opposite such term:
Term Section
---- -------
Authenticating Agent 2.2
cash transaction 7.3
Dollars 4.2
Event of Default 6.1
Judgment Currency 10.15
mandatory sinking fund payment 3.5
optional sinking fund payment 3.5
Paying Agent 2.5
Payment Blockage Period 11.2
record date 2.4
Registrar 2.5
Required Currency 10.15
Security Register 2.5
self-liquidating paper 7.3
sinking fund payment date 3.5
tranche 2.14
SECTION 1.3 Incorporation by Reference of Trust Indenture
Act. Whenever this Indenture refers to a provision of the Trust Indenture
Act, the provision is incorporated by reference in and made a part of this
Indenture. The following terms used in this Indenture that are defined by the
Trust Indenture Act have the following meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Holder or a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the indenture securities means the Company or any
other obligor on the Securities.
All other terms used in this Indenture that are defined by the
Trust Indenture Act, defined by reference in the Trust Indenture Act to
another statute or defined by a rule of the Commission and not otherwise
defined herein have the meanings assigned to them therein.
SECTION 1.4 Rules of Construction. Unless the context
otherwise requires:
(i) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(ii) words in the singular include the plural, and words in
the plural include the singular;
(iii) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision;
(iv) all references to Sections or Articles refer to Sections
or Articles of this Indenture unless otherwise indicated; and
(v) use of masculine, feminine or neuter pronouns should not
be deemed a limitation, and the use of any such pronouns should be
construed to include, where appropriate, the other pronouns.
ARTICLE 2
THE SECURITIES
SECTION 2.1 Form and Dating. The Securities of each
series shall be substantially in such form or forms (not inconsistent with
this Indenture) as shall be established by or pursuant to one or more Board
Resolutions or in one or more indentures supplemental hereto, in each case
with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture and may have
imprinted or otherwise reproduced thereon such legend or legends or
endorsements, not inconsistent with the provisions of this Indenture, as may
be required to comply with any law, or with any rules of any securities
exchange or usage, all as may be determined by the officers executing such
Securities as evidenced by their execution of the Securities. Unless
otherwise so established, Unregistered Securities shall have coupons attached.
SECTION 2.2 Execution and Authentication. Two Officers
shall execute the Securities (other than coupons) for the Company by facsimile
or manual signature in the name and on behalf of the Company. The seal of the
Company, if any, shall be reproduced on the Securities. If an Officer whose
signature is on a Security no longer holds that office at the time the
Security is authenticated, the Security shall nevertheless be valid.
The Trustee, at the expense of the Company, may appoint an
authenticating agent (the "Authenticating Agent") to authenticate Securities
(other than coupons). The Authenticating Agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such Authenticating
Agent.
A Security (other than coupons) shall not be valid until the
Trustee or Authenticating Agent manually signs the certificate of
authentication on the Security. The signature shall be conclusive evidence
that the Security has been authenticated under this Indenture.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
having attached thereto appropriate coupons, if any, executed by the Company
to the Trustee for authentication together with the applicable documents
referred to below in this Section, and the Trustee shall thereupon
authenticate and deliver such Securities to or upon the written order of the
Company. In authenticating any Securities of a series, the Trustee shall be
entitled to receive prior to the first authentication of any Securities of
such series, and (subject to Article 7) shall be fully protected in relying
upon, unless and until such documents have been superseded or revoked:
(1) any Board Resolution and/or executed supplemental
indenture referred to in Sections 2.1 and 2.3 by or pursuant to which
the forms and terms of the Securities of that series were established;
(2) an Officers' Certificate setting forth the form or forms
and terms of the Securities, stating that the form or forms and terms
of the Securities of such series have been, or will be when
established in accordance with such procedures as shall be referred
to therein, established in compliance with this Indenture; and
(3) an Opinion of Counsel substantially to the effect that the
form or forms and terms of the Securities of such series have been,
or will be when established in accordance with such procedures as
shall be referred to therein, established in compliance with this
Indenture and that the supplemental indenture, to the extent
applicable, and Securities have been duly authorized and, if executed
and authenticated in accordance with the provisions of the Indenture
and delivered to and duly paid for by the purchasers thereof on the
date of such opinion, would be entitled to the benefits of the
Indenture and would be valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective
terms, subject to bankruptcy, insolvency, reorganization,
receivership, moratorium and other similar laws affecting creditors'
rights generally, general principles of equity, and such other
matters as shall be specified therein.
If the Company shall establish pursuant to Section 2.3 that the
Securities of a series or a portion thereof are to be issued in the form of
one or more Registered Global Securities, then the Company shall execute and
the Trustee shall authenticate and deliver one or more Registered Global
Securities that (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of all of the Securities of such
series issued in such form and not yet cancelled, (ii) shall be registered in
the name of the Depositary for such Registered Global Security or Securities
or the nominee of such Depositary, (iii) shall be delivered by the Trustee to
such Depositary or its custodian or pursuant to such Depositary's instructions
and (iv) shall bear a legend substantially to the following effect: "Unless
and until it is exchanged in whole or in part for Securities in definitive
registered form, this Security may not be transferred except as a whole by the
Depositary to the nominee of the Depositary or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary or by the Depositary or
any such nominee to a successor Depositary or a nominee of such successor
Depositary."
SECTION 2.3 Amount Unlimited; Issuable in Series. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
There shall be established in or pursuant to Board Resolution or one
or more indentures supplemental hereto, prior to the initial issuance of
Securities of any series, subject to the last sentence of this Section 2.3,
(1) the designation of the Securities of the series, which
shall distinguish the Securities of the series from the Securities of
all other series;
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered
under this Indenture and any limitation on the ability of the Company
to increase such aggregate principal amount after the initial
issuance of the Securities of that series (except for Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, or upon redemption of, other Securities
of the series pursuant hereto);
(3) the date or dates on which the principal of the Securities
of the series is payable (which date or dates may be fixed or
extendible);
(4) the rate or rates (which may be fixed or variable) per
annum at which the Securities of the series shall bear interest, if
any, the date or dates from which such interest shall accrue, on
which such interest shall be payable and (in the case of Registered
Securities) on which a record shall be taken for the determination of
Holders to whom interest is payable and/or the method by which such
rate or rates or date or dates shall be determined;
(5) if other than as provided in Section 4.2, the place or
places where the principal of and any interest on Securities of the
series shall be payable, any Registered Securities of the series may
be surrendered for exchange, notices, demands to or upon the Company
in respect of the Securities of the series and this Indenture may be
served and notice to Holders may be published;
(6) the right, if any, of the Company to redeem Securities of
the series, in whole or in part, at its option and the period or
periods within which, the price or prices at which and any terms and
conditions upon which Securities of the series may be so redeemed,
pursuant to any sinking fund or otherwise;
(7) the obligation, if any, of the Company to redeem, purchase
or repay Securities of the series pursuant to any mandatory
redemption, sinking fund or analogous provisions or at the option of
a Holder thereof and the price or prices at which and the period or
periods within which and any of the terms and conditions upon which
Securities of the series shall be redeemed, purchased or repaid, in
whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(9) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the maturity thereof;
(10) if other than the coin or currency in which the Securities
of the series are denominated, the coin or currency in which payment
of the principal of or interest on the Securities of the series shall
be payable or if the amount of payments of principal of and/or
interest on the Securities of the series may be determined with
reference to an index based on a coin or currency other than that in
which the Securities of the series are denominated, the manner in
which such amounts shall be determined;
(11) if other than the currency of the United States of
America, the currency or currencies, including composite currencies,
in which payment of the Principal of and interest on the Securities
of the series shall be payable, and the manner in which any such
currencies shall be valued against other currencies in which any
other Securities shall be payable;
(12) whether the Securities of the series or any portion thereof
will be issuable as Registered Securities (and if so, whether such
Securities will be issuable as Registered Global Securities) or
Unregistered Securities (with or without coupons), or any combination
of the foregoing, any restrictions applicable to the offer, sale or
delivery of Unregistered Securities or the payment of interest
thereon and, if other than as provided herein, the terms upon which
Unregistered Securities of any series may be exchanged for Registered
Securities of such series and vice versa;
(13) whether and under what circumstances the Company will pay
additional amounts on the Securities of the series held by a person
who is not a U.S. person in respect of any tax, assessment or
governmental charge withheld or deducted and, if so, whether the
Company will have the option to redeem such Securities rather than
pay such additional amounts;
(14) if the Securities of the series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
the form and terms of such certificates, documents or conditions;
(15) any trustees, depositaries, authenticating or paying
agents, transfer agents or the registrar or any other agents with
respect to the Securities of the series;
(16) provisions, if any, for the defeasance of the Securities of
the series (including provisions permitting defeasance of less than
all Securities of the series), which provisions may be in addition
to, in substitution for, or in modification of (or any combination of
the foregoing) the provisions of Article 8;
(17) if the Securities of the series are issuable in whole or in
part as one or more Registered Global Securities, the identity of the
Depositary for such Registered Global Security or Securities;
(18) any other events of default or covenants with respect to
the Securities of the series; and
(19) any other terms of the Securities of the series (which
terms shall not be inconsistent with the provisions of this
Indenture).
All Securities of any one series and coupons, if any,
appertaining thereto shall be substantially identical, except in the case of
Registered Securities as to date and denomination, except in the case of any
Periodic Offering and except as may otherwise be provided by or pursuant to
the Board Resolution referred to above or as set forth in any such indenture
supplemental hereto. All Securities of any one series need not be issued at
the same time and may be issued from time to time, consistent with the terms of
this Indenture, if so provided by or pursuant to such Board Resolution or in
any such indenture supplemental hereto and any forms and terms of Securities
to be issued from time to time may be completed and established from time to
time prior to the issuance thereof by procedures described in such Board
Resolution or supplemental indenture.
SECTION 2.4 Denomination and Date of Securities; Payments
of Interest. The Securities of each series shall be issuable as Registered
Securities or Unregistered Securities in denominations established as
contemplated by Section 2.3 or, if not so established with respect to
Securities of any series, in denominations of $1,000 and any integral multiple
thereof. The Securities of each series shall be numbered, lettered or
otherwise distinguished in such manner or in accordance with such plan as the
Officers of the Company executing the same may determine, as evidenced by
their execution thereof.
Each Security shall be dated the date of its authentication.
The Securities of each series shall bear interest, if any, from the date, and
such interest and shall be payable on the dates, established as contemplated by
Section 2.3.
The person in whose name any Registered Security of any series
is registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest payment
date, except if and to the extent the Company shall default in the payment of
the interest due on such interest payment date for such series, in which case
the provisions of Section 2.13 shall apply. The term "record date" as used
with respect to any interest payment date (except a date for payment of
defaulted interest) for the Securities of any series shall mean the date
specified as such in the terms of the Registered Securities of such series
established as contemplated by Section 2.3, or, if no such date is so
established, the fifteenth day next preceding such interest payment date,
whether or not such record date is a Business Day.
SECTION 2.5 Registrar and Paying Agent; Agents Generally.
The Company shall maintain an office or agency where Securities may be
presented for registration, registration of transfer or for exchange (the
"Registrar") and an office or agency where Securities may be presented for
payment (the "Paying Agent"), which shall be in the Borough of Manhattan, The
City of New York. The Company shall cause the Registrar to keep a register of
the Registered Securities and of their registration, transfer and exchange (the
"Security Register"). The Company may have one or more additional Paying
Agents or transfer agents with respect to any series.
The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture. The agreement shall implement
the provisions of this Indenture and the Trust Indenture Act that relate to
such Agent. The Company shall give prompt written notice to the Trustee of
the name and address of any Agent and any change in the name or address of an
Agent. If the Company fails to maintain a Registrar or Paying Agent, the
Trustee shall act as such. The Company may remove any Agent upon written
notice to such Agent and the Trustee; provided that no such removal shall
become effective until (i) the acceptance of an appointment by a successor
Agent to such Agent as evidenced by an appropriate agency agreement entered
into by the Company and such successor Agent and delivered to the Trustee or
(ii) notification to the Trustee that the Trustee shall serve as such Agent
until the appointment of a successor Agent in accordance with clause (i) of
this proviso. The Company or any affiliate of the Company may act as Paying
Agent or Registrar; provided that neither the Company nor an affiliate of the
Company shall act as Paying Agent in connection with the defeasance of the
Securities or the discharge of this Indenture under Article 8.
The Company initially appoints the Trustee as Registrar, Paying
Agent and Authenticating Agent. If, at any time, the Trustee is not the
Registrar, the Registrar shall make available to the Trustee ten days prior to
each interest payment date and at such other times as the Trustee may
reasonably request the names and addresses of the Holders as they appear in
the Security Register.
SECTION 2.6 Paying Agent to Hold Money in Trust. Not
later than 10:00 a.m. New York City time on each due date of any Principal or
interest on any Securities, the Company shall deposit with the Paying Agent
money in immediately available funds sufficient to pay such Principal or
interest. The Company shall require each Paying Agent other than the Trustee
to agree in writing that such Paying Agent shall hold in trust for the benefit
of the Holders of such Securities or the Trustee all money held by the Paying
Agent for the payment of Principal of and interest on such Securities and
shall promptly notify the Trustee of any default by the Company in making any
such payment. The Company at any time may require a Paying Agent to pay all
money held by it to the Trustee and account for any funds disbursed, and the
Trustee may at any time during the continuance of any payment default, upon
written request to a Paying Agent, require such Paying Agent to pay all money
held by it to the Trustee and to account for any funds disbursed. Upon doing
so, the Paying Agent shall have no further liability for the money so paid
over to the Trustee. If the Company or any affiliate of the Company acts as
Paying Agent, it will, on or before each due date of any Principal of or
interest on any Securities, segregate and hold in a separate trust fund for
the benefit of the Holders thereof a sum of money sufficient to pay such
Principal or interest so becoming due until such sum of money shall be paid to
such Holders or otherwise disposed of as provided in this Indenture, and will
promptly notify the Trustee in writing of its action or failure to act as
required by this Section.
SECTION 2.7 Transfer and Exchange. Unregistered
Securities (except for any temporary global Unregistered Securities) and
coupons (except for coupons attached to any temporary global Unregistered
Securities) shall be transferable by delivery.
At the option of the Holder thereof, Registered Securities of
any series (other than a Registered Global Security, except as set forth
below) may be exchanged for a Registered Security or Registered Securities of
such series and tenor having authorized denominations and an equal aggregate
principal amount, upon surrender of such Registered Securities to be exchanged
at the agency of the Company that shall be maintained for such purpose in
accordance with Section 2.5 and upon payment, if the Company shall so require,
of the charges hereinafter provided. If the Securities of any series are
issued in both registered and unregistered form, except as otherwise
established pursuant to Section 2.3, at the option of the Holder thereof,
Unregistered Securities of any series may be exchanged for Registered
Securities of such series and tenor having authorized denominations and an
equal aggregate principal amount, upon surrender of such Unregistered
Securities to be exchanged at the agency of the Company that shall be
maintained for such purpose in accordance with Section 4.2, with, in the case
of Unregistered Securities that have coupons attached, all unmatured coupons
and all matured coupons in default thereto appertaining, and upon payment, if
the Company shall so require, of the charges hereinafter provided. At the
option of the Holder thereof, if Unregistered Securities of any series,
maturity date, interest rate and original issue date are issued in more than
one authorized denomination, except as otherwise established pursuant to
Section 2.3, such Unregistered Securities may be exchanged for Unregistered
Securities of such series and tenor having authorized denominations and an
equal aggregate principal amount, upon surrender of such Unregistered
Securities to be exchanged at the agency of the Company that shall be
maintained for such purpose in accordance with Section 4.2, with, in the case
of Unregistered Securities that have coupons attached, all unmatured coupons
and all matured coupons in default thereto appertaining, and upon payment, if
the Company shall so require, of the charges hereinafter provided. Registered
Securities of any series may not be exchanged for Unregistered Securities of
such series. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Registered Securities presented for registration of
transfer, exchange, redemption or payment shall be duly endorsed by, or be
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company and the Trustee duly executed by, the holder or
his attorney duly authorized in writing.
The Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with
any exchange or registration of transfer of Securities. No service charge
shall be made for any such transaction.
Notwithstanding any other provision of this Section 2.7, unless
and until it is exchanged in whole or in part for Securities in definitive
registered form, a Registered Global Security representing all or a portion of
the Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series
or a nominee of such successor Depositary.
If at any time the Depositary for any Registered Global
Securities of any series notifies the Company that it is unwilling or unable
to continue as Depositary for such Registered Global Securities or if at any
time the Depositary for such Registered Global Securities shall no longer be
eligible under applicable law, the Company shall appoint a successor
Depositary eligible under applicable law with respect to such Registered
Global Securities. If a successor Depositary eligible under applicable law
for such Registered Global Securities is not appointed by the Company within
90 days after the Company receives such notice or becomes aware of such
ineligibility, the Company will execute, and the Trustee, upon receipt of the
Company's order for the authentication and delivery of definitive Registered
Securities of such series and tenor, will authenticate and deliver Registered
Securities of such series and tenor, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of such Registered
Global Securities, in exchange for such Registered Global Securities.
The Company may at any time and in its sole discretion
determine that any Registered Global Securities of any series shall no longer
be maintained in global form. In such event the Company will execute, and the
Trustee, upon receipt of the Company's order for the authentication and
delivery of definitive Registered Securities of such series and tenor, will
authenticate and deliver, Registered Securities of such series and tenor in
any authorized denominations, in an aggregate principal amount equal to the
principal amount of such Registered Global Securities, in exchange for such
Registered Global Securities.
Any time the Registered Securities of any series are not in the
form of Registered Global Securities pursuant to the preceding two paragraphs,
the Company agrees to supply the Trustee with a reasonable supply of
certificated Registered Securities without the legend required by Section 2.2
and the Trustee agrees to hold such Registered Securities in safekeeping until
authenticated and delivered pursuant to the terms of this Indenture.
If established by the Company pursuant to Section 2.3 with
respect to any Registered Global Security, the Depositary for such Registered
Global Security may surrender such Registered Global Security in exchange in
whole or in part for Registered Securities of the same series and tenor in
definitive registered form on such terms as are acceptable to the Company and
such Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary new Registered
Securities of the same series and tenor, of any authorized
denominations as requested by such Person, in an aggregate principal
amount equal to and in exchange for such Person's beneficial interest
in the Registered Global Security; and
(ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Registered Global Security and the
aggregate principal amount of Registered Securities authenticated and
delivered pursuant to clause (i) above.
Registered Securities issued in exchange for a Registered
Global Security pursuant to this Section 2.7 shall be registered in such names
and in such authorized denominations as the Depositary for such Registered
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee or an agent of the
Company or the Trustee. The Trustee or such agent shall deliver such
Securities to or as directed by the Persons in whose names such Securities are
so registered.
All Securities issued upon any transfer or exchange of
Securities shall be valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the forms or terms of any
Securities to the contrary, none of the Company, the Trustee or any agent of
the Company or the Trustee shall be required to exchange any Unregistered
Security for a Registered Security if such exchange would result in adverse
Federal income tax consequences to the Company (such as, for example, the
inability of the Company to deduct from its income, as computed for Federal
income tax purposes, the interest payable on the Unregistered Securities)
under then applicable United States Federal income tax laws. The Trustee and
any such agent shall be entitled to rely on an Officers' Certificate or an
Opinion of Counsel in determining such result.
The Registrar shall not be required (i) to issue, authenticate,
register the transfer of or exchange Securities of any series for a period of
15 days before a selection of such Securities to be redeemed or (ii) to
register the transfer of or exchange any Security selected for redemption in
whole or in part.
SECTION 2.8 Replacement Securities. If a defaced or
mutilated Security of any series is surrendered to the Trustee or if a Holder
claims that its Security of any series has been lost, destroyed or wrongfully
taken, the Company shall issue and the Trustee shall authenticate a
replacement Security of such series and tenor and principal amount bearing a
number not contemporaneously outstanding. If required by the Trustee or the
Company, an indemnity bond must be furnished that is sufficient in the
judgment of both the Trustee and the Company to protect the Company, the
Trustee and any Agent from any loss that any of them may suffer if a Security
is replaced. The Company may charge such Holder for its expenses and the
expenses of the Trustee (including without limitation attorneys' fees and
expenses) in replacing a Security. In case any such mutilated, defaced, lost,
destroyed or wrongfully taken Security has become or is about to become due
and payable, the Company in its discretion may pay such Security instead of
issuing a new Security in replacement thereof.
Every replacement Security is an additional obligation of the
Company and shall be entitled to the benefits of this Indenture.
To the extent permitted by law, the foregoing provisions of
this Section are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or wrongfully taken Securities.
SECTION 2.9 Outstanding Securities. Securities outstanding
at any time are all Securities that have been authenticated by the Trustee
except for those cancelled by it, those delivered to it for cancellation
and those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.8, it ceases to
be outstanding unless and until the Trustee and the Company receive proof
satisfactory to them that the replaced Security is held by a holder in due
course.
If the Paying Agent (other than the Company or an affiliate of
the Company) holds on the maturity date or any redemption date or date for
repurchase of the Securities money sufficient to pay Securities payable or to
be redeemed or repurchased on that date, then on and after that date such
Securities cease to be outstanding and interest on them shall cease to accrue.
A Security does not cease to be outstanding because the Company
or one of its affiliates holds such Security, provided, however, that, in
determining whether the Holders of the requisite principal amount of the
outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Securities owned by the
Company or any affiliate of the Company shall be disregarded and deemed not to
be outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities as to which a Responsible Officer
of the Trustee has received written notice to be so owned shall be so
disregarded. Any Securities so owned which are pledged by the Company, or by
any affiliate of the Company, as security for loans or other obligations,
otherwise than to another such affiliate of the Company, shall be deemed to be
outstanding, if the pledgee is entitled pursuant to the terms of its pledge
agreement and is free to exercise in its or his discretion the right to vote
such securities, uncontrolled by the Company or by any such affiliate.
SECTION 2.10 Temporary Securities. Until definitive
Securities of any series are ready for delivery, the Company may prepare and
the Trustee shall authenticate temporary Securities of such series. Temporary
Securities of any series shall be substantially in the form of definitive
Securities of such series but may have insertions, substitutions, omissions
and other variations determined to be appropriate by the Officers executing
the temporary Securities, as evidenced by their execution of such temporary
Securities. If temporary Securities of any series are issued, the Company
will cause definitive Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Securities of any
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series and tenor upon surrender of such
temporary Securities at the office or agency of the Company designated for
such purpose pursuant to Section 4.2, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any
series the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive
Securities of such series and tenor and authorized denominations. Until so
exchanged, the temporary Securities of any series shall be entitled to the
same benefits under this Indenture as definitive Securities of such series.
SECTION 2.11 Cancellation. The Company at any time may
deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in
any manner whatsoever, and may deliver to the Trustee for cancellation any
Securities previously authenticated hereunder which the Company has not issued
and sold. The Registrar, any transfer agent and the Paying Agent shall
forward to the Trustee any Securities surrendered to them for transfer,
exchange or payment. The Trustee shall cancel and destroy all Securities
surrendered for transfer, exchange, payment or cancellation and shall deliver
a certificate of destruction to the Company. The Company may not issue new
Securities to replace Securities it has paid in full or delivered to the
Trustee for cancellation.
SECTION 2.12 CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" and "CINS" numbers (if then generally in use), and
the Trustee shall use CUSIP numbers or CINS numbers, as the case may be, in
notices of redemption or exchange as a convenience to Holders and no
representation shall be made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of redemption or
exchange.
SECTION 2.13 Defaulted Interest. If the Company
defaults in a payment of interest on the Securities, it shall pay, or shall
deposit with the Paying Agent money in immediately available funds sufficient
to pay, the defaulted interest plus (to the extent lawful) any interest
payable on the defaulted interest (as may be specified in the terms thereof,
established pursuant to Section 2.3) to the Persons who are Holders on a
subsequent special record date, which shall mean the 15th day next preceding
the date fixed by the Company for the payment of defaulted interest, whether
or not such day is a Business Day. At least 15 days before such special
record date, the Company shall mail to each Holder and to the Trustee a notice
that states the special record date, the payment date and the amount of
defaulted interest to be paid.
SECTION 2.14 Series May Include Tranches. A series of
Securities may include one or more tranches (each a "tranche") of Securities,
including Securities issued in a Periodic Offering. The Securities of
different tranches may have one or more different terms, including
authentication dates and public offering prices, but all the Securities within
each such tranche shall have identical terms, including authentication date
and public offering price. Notwithstanding any other provision of this
Indenture, with respect to Sections 2.2 (other than the fourth paragraph
thereof) through 2.4, 2.7, 2.8, 2.10, 3.1 through 3.5, 4.2, 6.1 through 6.14,
8.1 through 8.7 and 9.2, if any series of Securities includes more than one
tranche, all provisions of such sections applicable to any series of
Securities shall be deemed equally applicable to each tranche of any series
of Securities in the same manner as though originally designated a series
unless otherwise provided with respect to such series or tranche pursuant to
Section 2.3. In particular, and without limiting the scope of the next
preceding sentence, any of the provisions of such sections which provide for
or permit action to be taken with respect to a series of Securities shall also
be deemed to provide for and permit such action to be taken instead only with
respect to Securities of one or more tranches within that series (and such
provisions shall be deemed satisfied thereby), even if no comparable action is
taken with respect to Securities in the remaining tranches of that series.
ARTICLE 3
REDEMPTION
SECTION 3.1 Applicability of Article. The provisions of
this Article shall be applicable to the Securities of any series which are
redeemable before their maturity or to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by
Section 2.3 for Securities of such series.
SECTION 3.2 Notice of Redemption; Partial Redemptions.
Notice of redemption to the Holders of Registered Securities of any series to
be redeemed as a whole or in part at the option of the Company shall be given
by mailing notice of such redemption by first class mail, postage prepaid, at
least 30 days and not more than 60 days prior to the date fixed for redemption
to such Holders of Registered Securities of such series at their last
addresses as they shall appear upon the registry books. Notice of
redemption to the Holders of Unregistered Securities of any series to be
redeemed as a whole or in part who have filed their names and addresses
with the Trustee pursuant to Section 313(c)(2) of the Trust Indenture Act,
shall be given by mailing notice of such redemption, by first class mail,
postage prepaid, at least 30 days and not more than 60 days prior to the
date fixed for redemption, to such Holders at such addresses as were so
furnished to the Trustee (and, in the case of any such notice given by the
Company, the Trustee shall make such information available to the Company
for such purpose). Notice of redemption to all other Holders of
Unregistered Securities of any series to be redeemed as a whole or in part
shall be published in an Authorized Newspaper in The City of New York or
with respect to any Security the interest on which is based on the offered
quotations in the interbank Eurodollar market for dollar deposits in an
Authorized Newspaper in London, in each case, once in each of three
successive calendar weeks, the first publication to be not less than 30
days nor more than 60 days prior to the date fixed for redemption. Any
notice which is mailed or published in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
receives the notice. Failure to give notice by mail, or any defect in the
notice to the Holder of any Security of a series designated for redemption
as a whole or in part shall not affect the validity of the proceedings for
the redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the CUSIP numbers of the Securities to be redeemed, the date fixed
for redemption, the redemption price, the place or places of payment, that
payment will be made upon presentation and surrender of such Securities and,
in the case of Securities with coupons attached thereto, of all coupons
appertaining thereto maturing after the date fixed for redemption, that such
redemption is pursuant to the mandatory or optional sinking fund, or both, if
such be the case, that interest accrued to the date fixed for redemption will
be paid as specified in such notice and that on and after said date interest
thereon or on the portions thereof to be redeemed will cease to accrue. In
case any Security of a series is to be redeemed in part only, the notice of
redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for redemption, upon
surrender of such Security, a new Security or Securities of such series and
tenor in principal amount equal to the unredeemed portion thereof will be
issued.
The notice of redemption of Securities of any series to be
redeemed at the option of the Company shall be given by the Company or, at the
Company's request, by the Trustee in the name and at the expense of the
Company.
On or before 10:00 a.m. New York City time on the redemption
date specified in the notice of redemption given as provided in this Section,
the Company will deposit with the Trustee or with one or more Paying Agents
(or, if the Company is acting as its own Paying Agent, set aside, segregate
and hold in trust as provided in Section 2.6) an amount of money sufficient to
redeem on the redemption date all the Securities of such series so called for
redemption at the appropriate redemption price, together with accrued interest
to the date fixed for redemption. If all of the outstanding Securities of a
series are to be redeemed, the Company will deliver to the Trustee at least 10
days prior to the last date on which notice of redemption may be given to
Holders pursuant to the first paragraph of this Section 3.2 (or such shorter
period as shall be acceptable to the Trustee) an Officers' Certificate stating
that all such Securities are to be redeemed. If less than all the outstanding
Securities of a series are to be redeemed, the Company will deliver to the
Trustee at least 15 days prior to the last date on which notice of redemption
may be given to Holders pursuant to the first paragraph of this Section 3.2
(or such shorter period as shall be acceptable to the Trustee) an Officers'
Certificate stating the aggregate principal amount of such Securities to be
redeemed. In case of a redemption at the election of the Company prior to the
expiration of any restriction on such redemption, the Company shall deliver to
the Trustee, prior to the giving of any notice of redemption to Holders
pursuant to this Section, an Officers' Certificate stating that such
redemption is not prohibited by such restriction.
If less than all the Securities of a series are to be redeemed,
the Trustee shall select, pro rata, by lot or in such manner as it shall deem
appropriate and fair, Securities of such series to be redeemed in whole or in
part. Securities may be redeemed in part in multiples equal to the minimum
authorized denomination for Securities of such series or any multiple thereof.
The Trustee shall promptly notify the Company in writing of the Securities of
such series selected for redemption and, in the case of any Securities of such
series selected for partial redemption, the principal amount thereof to be
redeemed. For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part,
to the portion of the principal amount of such Security which has been or is
to be redeemed.
SECTION 3.3 Payment of Securities Called for Redemption.
If notice of redemption has been given as above provided, the Securities or
portions of Securities specified in such notice shall become due and payable
on the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for
redemption, and on and after such date (unless the Company shall default in
the payment of such Securities at the redemption price, together with interest
accrued to such date) interest on the Securities or portions of Securities so
called for redemption shall cease to accrue, and the unmatured coupons, if
any, appertaining thereto shall be void and, except as provided in Sections
7.11 and 8.2, such Securities shall cease from and after the date fixed for
redemption to be entitled to any benefit under this Indenture, and the Holders
thereof shall have no right in respect of such Securities except the right to
receive the redemption price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Securities at a place of
payment specified in said notice, together with all coupons, if any,
appertaining thereto maturing after the date fixed for redemption, said
Securities or the specified portions thereof shall be paid and redeemed by the
Company at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided that payment of interest
becoming due on or prior to the date fixed for redemption shall be payable in
the case of Securities with coupons attached thereto, to the Holders of the
coupons for such interest upon surrender thereof, and in the case of
Registered Securities, to the Holders of such Registered Securities registered
as such on the relevant record date subject to the terms and provisions of
Sections 2.4 and 2.13 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
If any Security with coupons attached thereto is surrendered
for redemption and is not accompanied by all appurtenant coupons maturing
after the date fixed for redemption, the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee, if there be furnished to
each of them such security or indemnity as they may require to save each of
them harmless.
Upon presentation of any Security of any series redeemed in
part only, the Company shall execute and the Trustee shall authenticate and
deliver to or on the order of the Holder thereof, at the expense of the
Company, a new Security or Securities of such series and tenor (with any
unmatured coupons attached), of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
SECTION 3.4 Exclusion of Certain Securities from Eligibility
for Selection for Redemption. Securities shall be excluded from eligibility
for selection for redemption if they are identified by registration and
certificate number in a written statement signed by an authorized officer of
the Company and delivered to the Trustee at least 40 days prior to the last
date on which notice of redemption may be given as being owned of record and
beneficially by, and not pledged or hypothecated by, either (a) the Company
or (b) an entity specifically identified in such written statement as
directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company.
SECTION 3.5 Mandatory and Optional Sinking Funds. The
minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of the Securities of any series is herein referred to as an "optional
sinking fund payment". The date on which a sinking fund payment is to be made
is herein referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Company may at
its option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except through a mandatory sinking fund
payment) by the Company or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Company and delivered to the Trustee for cancellation
pursuant to Section 2.11, (b) receive credit for optional sinking fund
payments (not previously so credited) made pursuant to this Section, or (c)
receive credit for Securities of such series (not previously so credited)
redeemed by the Company through any optional sinking fund payment. Securities
so delivered or credited shall be received or credited by the Trustee at the
sinking fund redemption price specified in such Securities.
On or before the sixtieth day next preceding each sinking fund
payment date for any series, or such shorter period as shall be acceptable to
the Trustee, the Company will deliver to the Trustee an Officers' Certificate
(a) specifying the portion of the mandatory sinking fund payment to be
satisfied by payment of cash and the portion to be satisfied by credit of
specified Securities of such series and the basis for such credit, (b) stating
that none of the specified Securities of such series has theretofore been so
credited, (c) stating that no defaults in the payment of interest or Events of
Default with respect to such series have occurred (which have not been waived
or cured) and are continuing and (d) stating whether or not the Company
intends to exercise its right to make an optional sinking fund payment with
respect to such series and, if so, specifying the amount of such optional
sinking fund payment which the Company intends to pay on or before the next
succeeding sinking fund payment date. Any Securities of such series to be
credited and required to be delivered to the Trustee in order for the Company
to be entitled to credit therefor as aforesaid which have not theretofore been
delivered to the Trustee shall be delivered for cancellation pursuant to
Section 2.11 to the Trustee with such Officers' Certificate (or reasonably
promptly thereafter if acceptable to the Trustee). Such Officers' Certificate
shall be irrevocable and upon its receipt by the Trustee the Company shall
become unconditionally obligated to make all the cash payments or delivery of
securities therein referred to, if any, on or before the next succeeding
sinking fund payment date. Failure of the Company, on or before any such
sixtieth day, to deliver such Officer's Certificate and Securities specified
in this paragraph, if any, shall not constitute a default but shall
constitute, on and as of such date, the irrevocable election of the Company
(i) that the mandatory sinking fund payment for such series due on the next
succeeding sinking fund payment date shall be paid entirely in cash without
the option to deliver or credit Securities of such series in respect thereof
and (ii) that the Company will make no optional sinking fund payment with
respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional
or both) to be made in cash on the next succeeding sinking fund payment date
plus any unused balance of any preceding sinking fund payments made in cash
shall exceed $50,000 (or a lesser sum if the Company shall so request with
respect to the Securities of any series), such cash shall be applied on the
next succeeding sinking fund payment date to the redemption of Securities of
such series at the sinking fund redemption price thereof together with accrued
interest thereon to the date fixed for redemption. If such amount shall be
$50,000 (or such lesser sum) or less and the Company makes no such request
then it shall be carried over until a sum in excess of $50,000 (or such lesser
sum) is available. The Trustee shall select, in the manner provided in
Section 3.2, for redemption on such sinking fund payment date a sufficient
principal amount of Securities of such series to absorb said cash, as
nearly as may be, and shall (if requested in writing by the Company) inform
the Company of the serial numbers of the Securities of such series (or
portions thereof) so selected. Securities shall be excluded from
eligibility for redemption under this Section if they are identified by
registration and certificate number in an Officers' Certificate delivered
to the Trustee at least 60 days prior to the sinking fund payment date as
being owned of record and beneficially by, and not pledged or hypothecated
by either (a) the Company or (b) an entity specifically identified in such
Officers' Certificate as directly or indirectly controlling or controlled
by or under direct or indirect common control with the Company. The
Trustee, in the name and at the expense of the Company (or the Company, if
it shall so request the Trustee in writing) shall cause notice of
redemption of the Securities of such series to be given in substantially
the manner provided in Section 3.2 (and with the effect provided in Section
3.3) for the redemption of Securities of such series in part at the option
of the Company. The amount of any sinking fund payments not so applied or
allocated to the redemption of Securities of such series shall be added to
the next cash sinking fund payment for such series and, together with such
payment, shall be applied in accordance with the provisions of this
Section. Any and all sinking fund moneys held on the stated maturity date
of the Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of
particular Securities of such series shall be applied, together with other
moneys, if necessary, sufficient for the purpose, to the payment of the
Principal of, and interest on, the Securities of such series at maturity.
On or before 10:00 a.m. New York City time on each sinking fund
payment date, the Company shall pay to the Trustee in cash or shall otherwise
provide for the payment of all interest accrued to the date fixed for
redemption on Securities to be redeemed on the next following sinking fund
payment date.
The Trustee shall not redeem or cause to be redeemed any
Securities of a series with sinking fund moneys or mail any notice of
redemption of Securities of such series by operation of the sinking fund
during the continuance of a Default in payment of interest on such Securities
or of any Event of Default except that, where the mailing of notice of
redemption of any Securities shall theretofore have been made, the Trustee
shall redeem or cause to be redeemed such Securities, provided that it shall
have received from the Company a sum sufficient for such redemption. Except
as aforesaid, any moneys in the sinking fund for such series at the time when
any such Default or Event of Default shall occur, and any moneys thereafter
paid into the sinking fund, shall, during the continuance of such default or
Event of Default, be deemed to have been collected under Article 6 and held
for the payment of all such Securities. In case such Event of Default shall
have been waived as provided in Section 6.4 or the Default cured on or before
the sixtieth day preceding the sinking fund payment date in any year, such
moneys shall thereafter be applied on the next succeeding sinking fund payment
date in accordance with this Section to the redemption of such Securities.
ARTICLE 4
COVENANTS
SECTION 4.1 Payment of Securities. The Company shall pay
the Principal of and interest on the Securities on the dates and in the manner
provided in the Securities and this Indenture. The interest on Securities
with coupons attached (together with any additional amounts payable pursuant
to the terms of such Securities) shall be payable only upon presentation and
surrender of the several coupons for such interest installments as are
evidenced thereby as they severally mature. The interest on any temporary
Unregistered Securities (together with any additional amounts payable pursuant
to the terms of such Securities) shall be paid, as to the installments of
interest evidenced by coupons attached thereto, if any, only upon presentation
and surrender thereof, and, as to the other installments of interest, if any,
only upon presentation of such Unregistered Securities for notation thereon of
the payment of such interest. The interest on Registered Securities (together
with any additional amounts payable pursuant to the terms of such Securities)
shall be payable only to the Holders thereof and at the option of the Company
may be paid by mailing checks for such interest payable to or upon the written
order of such Holders at their last addresses as they appear on the Security
Register of the Company.
Notwithstanding any provisions of this Indenture and the
Securities of any series to the contrary, if the Company and a Holder of any
Registered Security so agree, payments of interest on, and any portion of the
Principal of, such Holder's Registered Security (other than interest payable
at maturity or on any redemption or repayment date or the final payment of
Principal on such Security) shall be made by the Paying Agent, upon receipt
from the Company of immediately available funds by 11:00 A.M., New York City
time (or such other time as may be agreed to between the Company and the
Paying Agent), directly to the Holder of such Security (by Federal funds wire
transfer or otherwise) if the Holder has delivered written instructions to the
Trustee 15 days prior to such payment date requesting that such payment will
be so made and designating the bank account to which such payments shall be so
made and in the case of payments of Principal, surrenders the same to the
Trustee in exchange for a Security or Securities aggregating the same
principal amount as the unredeemed principal amount of the Securities
surrendered. The Trustee shall be entitled to rely on the last instruction
delivered by the Holder pursuant to this Section 4.1 unless a new instruction
is delivered 15 days prior to a payment date. The Company will indemnify and
hold each of the Trustee and any Paying Agent harmless against any loss,
liability or expense (including attorneys' fees) resulting from any act or
omission to act on the part of the Company or any such Holder in connection
with any such agreement or from making any payment in accordance with any such
agreement.
The Company shall pay interest on overdue Principal, and
interest on overdue installments of interest, to the extent lawful, at the
rate per annum specified in the Securities.
SECTION 4.2 Maintenance of Office or Agency. The Company
will maintain in the Borough of Manhattan, The City of New York, an office or
agency where Securities may be surrendered for registration of transfer or
exchange or for presentation for payment and where notices and demands to or
upon the Company in respect of the Securities and this Indenture may be
served. The Company hereby initially designates the Corporate Trust Office of
the Trustee, located in the Borough of Manhattan, The City of New York, as
such office or agency of the Company. The Company will give prompt written
notice to the Trustee of the location, and any change in the location, of such
office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be
made or served at the address of the Trustee set forth in Section 10.2.
The Company will maintain one or more agencies in a city or
cities located outside the United States (including any city in which such an
agency is required to be maintained under the rules of any stock exchange on
which the Securities of any series are listed) where the Unregistered
Securities, if any, of each series and coupons, if any, appertaining thereto
may be presented for payment. No payment on any Unregistered Security or
coupon will be made upon presentation of such Unregistered Security or coupon
at an agency of the Company within the United States nor will any payment be
made by transfer to an account in, or by mail to an address in, the United
States unless, pursuant to applicable United States laws and regulations then
in effect, such payment can be made without adverse tax consequences to the
Company. Notwithstanding the foregoing, if full payment in United States
Dollars ("Dollars") at each agency maintained by the Company outside the
United States for payment on such Unregistered Securities or coupons
appertaining thereto is illegal or effectively precluded by exchange controls
or other similar restrictions, payments in Dollars of Unregistered Securities
of any series and coupons appertaining thereto which are payable in Dollars
may be made at an agency of the Company maintained in the Borough of
Manhattan, The City of New York.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of any series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or
agency in the Borough of Manhattan, The City of New York for such purposes.
The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
SECTION 4.3 Securityholders' Lists. The Company will furnish
or cause to be furnished to the Trustee a list in such form as the Trustee
may reasonably require of the names and addresses of the holders of the
Securities pursuant to Section 312 of the Trust Indenture Act of 1939 (a)
semi-annually not more than 15 days after each record date for the payment
of semi-annual interest on the Securities, as hereinabove specified, as of
such record date, and (b) at such other times as the Trustee may request in
writing, within thirty days after receipt by the Company of any such
request as of a date not more than 15 days prior to the time such
information is furnished.
SECTION 4.4 Certificate to Trustee. The Company will furnish
to the Trustee annually, on or before a date not more than four months
after the end of its fiscal year (which, on the date hereof, is a calendar
year), a brief certificate (which need not contain the statements required by
Section 10.4) from its principal executive, financial or accounting officer as
to his or her knowledge of the compliance of the Company with all conditions
and covenants under this Indenture (such compliance to be determined without
regard to any period of grace or requirement of notice provided under this
Indenture) which certificate shall comply with the requirements of the Trust
Indenture Act.
SECTION 4.5 Reports by the Company. The Company covenants
to file with the Trustee, within 15 days after the Company is required to
file the same with the Commission, copies of the annual reports and of the
information, documents, and other reports which the Company may be required
to file with the Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.1 When Company May Merge, Etc. The Company shall
not consolidate with, merge with or into, or sell, convey, transfer,
lease or otherwise dispose of all or substantially all of its property and
assets (as an entirety or substantially as an entirety in one transaction or a
series of related transactions) to, any Person (other than a consolidation
with or merger with or into a Subsidiary or a sale, conveyance, transfer,
lease or other disposition to a Subsidiary) or permit any Person to merge with
or into the Company unless either (x) the Company shall be the continuing
Person or (y) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or to which properties and
assets of the Company shall be a corporation organized and validly existing
under the laws of the United States of America or any jurisdiction thereof and
shall expressly assume, by a supplemental indenture, executed and delivered to
the Trustee, all of the obligations of the Company on all of the Securities
and under this Indenture and the Company shall have delivered to the Trustee
(A) an Opinion of Counsel stating that such consolidation, merger or transfer
and such supplemental indenture complies with this provision and that all
conditions precedent provided for herein relating to such transaction have
been complied with and that such supplemental indenture constitutes the legal,
valid and binding obligation of the Company or such successor enforceable
against such entity in accordance with its terms, subject to customary
exceptions and (B) an Officers' Certificate to the effect that immediately
after giving effect to such transaction, no Default shall have occurred and be
continuing.
SECTION 5.2 Successor Substituted. Upon any consolidation or
merger, or any sale, conveyance, transfer, lease or other disposition of
all or substantially all of the property and assets of the Company in
accordance with Section 5.1 of this Indenture, the successor Person formed
by such consolidation or into which the Company is merged or to which such
sale, conveyance, transfer, lease or other disposition is made shall
succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein.
ARTICLE 6
DEFAULT AND REMEDIES
SECTION 6.1 Events of Default. An "Event of Default" shall
occur with respect to the Securities of any series if:
(a) the Company defaults in the payment of the Principal of
any Security of such series when the same becomes due and payable at
maturity, upon acceleration, redemption or mandatory repurchase,
including as a sinking fund installment, or otherwise;
(b) the Company defaults in the payment of interest on any
Security of such series when the same becomes due and payable, and
such default continues for a period of 30 days;
(c) the Company defaults in the performance of or breaches any
other covenant or agreement of the Company in this Indenture with
respect to any Security of such series or in the Securities of such
series and such default or breach continues for a period of 30
consecutive days after written notice to the Company by the Trustee
or to the Company and the Trustee by the Holders of 25% or more in
aggregate principal amount of the Securities of all series affected
thereby;
(d) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Company in an
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Company or for any substantial part of its property
or ordering the winding up or liquidation of its affairs, and such
decree or order shall remain unstayed and in effect for a period of
60 consecutive days;
(e) the Company (A) commences a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consents to the entry of an order for relief
in an involuntary case under any such law, (B) consents to the
appointment of or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of the
Company or for all or substantially all of the property and assets of
the Company or (C) effects any general assignment for the benefit of
creditors; or
(f) any other Event of Default established pursuant to Section
2.3 with respect to the Securities of such series occurs.
SECTION 6.2 Acceleration. (a) If an Event of Default
other than as described in clauses (d) or (e) of Section 6.1 with respect to
the Securities of any series then outstanding occurs and is continuing, then,
and in each and every such case, except for any series of Securities the
principal of which shall have already become due and payable, either the
Trustee or the Holders of not less than 25% in aggregate principal amount of
the Securities of any such affected series then outstanding hereunder (each
such series treated as a separate class) by notice in writing to the Company
(and to the Trustee if given by Securityholders), may declare the entire
principal (or, if the Securities of any such series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series established pursuant to Section 2.3) of all Securities of
such affected series, and the interest accrued thereon, if any, to be due and
payable immediately, and upon any such declaration the same shall become
immediately due and payable.
(b) If an Event of Default described in clause (d) or (e) of
Section 6.1 occurs and is continuing, then the principal amount (or, if any
Securities are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms thereof established pursuant to
Section 2.3) of all the Securities then outstanding and interest accrued
thereon, if any, shall be and become immediately due and payable, without any
notice or other action by any Holder or the Trustee, to the full extent
permitted by applicable law.
The foregoing provisions, however, are subject to the condition
that if, at any time after the principal (or, if the Securities are Original
Issue Discount Securities, such portion of the principal as may be specified
in the terms thereof established pursuant to Section 2.3) of the Securities of
any series (or of all the Securities, as the case may be) shall have been so
declared due and payable, and before any judgment or decree for the payment of
the moneys due shall have been obtained or entered as hereinafter provided,
the Company shall pay or shall deposit with the Trustee a sum sufficient to
pay all matured installments of interest upon all the Securities of each such
series (or of all the Securities, as the case may be) and the principal of any
and all Securities of each such series (or of all the Securities, as the case
may be) which shall have become due otherwise than by acceleration (with
interest upon such principal and, to the extent that payment of such interest
is enforceable under applicable law, on overdue installments of interest, at
the same rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in the Securities of each such
series to the date of such payment or deposit) and such amount as shall be
sufficient to cover all amounts owing the Trustee under Section 7.7, and if any
and all Events of Default under the Indenture, other than the non-payment of
the principal of Securities which shall have become due by acceleration, shall
have been cured, waived or otherwise remedied as provided herein, then and in
every such case the Holders of a majority in aggregate principal amount of all
the then outstanding Securities of all such series that have been accelerated
(voting as a single class), by written notice to the Company and to the
Trustee, may waive all defaults with respect to all such series (or with
respect to all the Securities, as the case may be) and rescind and annul such
declaration and its consequences, but no such waiver or rescission and
annulment shall extend to or shall affect any subsequent default or shall
impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been
accelerated and declared due and payable pursuant to the provisions hereof,
then, from and after such declaration, unless such declaration has been
rescinded and annulled, the principal amount of such Original Issue Discount
Securities shall be deemed, for all purposes hereunder, to be such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, and payment of such portion of the principal thereof as shall be
due and payable as a result of such acceleration, together with interest, if
any, thereon and all other amounts owing thereunder, shall constitute payment
in full of such Original Issue Discount Securities.
SECTION 6.3 Other Remedies. If a payment default or an
Event of Default with respect to the Securities of any series occurs and is
continuing, the Trustee may pursue, in its own name or as trustee of an
express trust, any available remedy by proceeding at law or in equity to
collect the payment of principal of and interest on the Securities of such
series or to enforce the performance of any provision of the Securities of such
series or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the
proceeding.
SECTION 6.4 Waiver of Past Defaults. Subject to Sections
6.2, 6.7 and 9.2, the Holders of at least a majority in principal amount (or,
if the Securities are Original Issue Discount Securities, such portion of the
principal as is then accelerable under Section 6.2) of the outstanding
Securities of all series affected (voting as a single class), by notice to the
Trustee, may waive an existing Default or Event of Default with respect to the
Securities of such series and its consequences, except a Default in the
payment of Principal of or interest on any Security as specified in clauses
(a) or (b) of Section 6.1 or in respect of a covenant or provision of this
Indenture which cannot be modified or amended without the consent of the
Holder of each outstanding Security affected. Upon any such waiver, such
Default shall cease to exist, and any Event of Default with respect to the
Securities of such series arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right
consequent thereto.
SECTION 6.5 Control by Majority. Subject to Sections 7.1
and 7.2(v), the Holders of at least a majority in aggregate principal amount
(or, if any Securities are Original Issue Discount Securities, such portion of
the principal as is then accelerable under Section 6.2) of the outstanding
Securities of all series affected (voting as a single class) may direct the
time, method and place of conducting any proceeding for any remedy available
to the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Securities of such series by this Indenture; provided, that the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture, that may involve the Trustee in personal liability or that the
Trustee determines in good faith may be unduly prejudicial to the rights of
Holders not joining in the giving of such direction; and provided further,
that the Trustee may take any other action it deems proper that is not
inconsistent with any directions received from Holders of Securities
pursuant to this Section 6.5.
SECTION 6.6 Limitation on Suits. No Holder of any
Security of any series may institute any proceeding, judicial or otherwise,
with respect to this Indenture or the Securities of such series, or for the
appointment of a receiver or trustee, or for any other remedy hereunder,
unless:
(i) such Holder has previously given to the Trustee written
notice of a continuing Event of Default with respect to the
Securities of such series;
(ii) the Holders of at least 25% in aggregate principal amount
of outstanding Securities of all such series affected shall have made
written request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee
indemnity reasonably satisfactory to the Trustee against any costs,
liabilities or expenses to be incurred in compliance with such
request;
(iv) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(v) during such 60-day period, the Holders of a majority in
aggregate principal amount of the outstanding Securities of all such
affected series have not given the Trustee a direction that is
inconsistent with such written request.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over such other Holder.
SECTION 6.7 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
of a Security to receive payment of Principal of or interest, if any, on such
Holder's Security on or after the respective due dates expressed on such
Security, or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent
of such Holder.
SECTION 6.8 Collection Suit by Trustee. If an Event of
Default with respect to the Securities of any series in payment of Principal
or interest specified in clause (a) or (b) of Section 6.1 occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company for the whole amount (or such portion
thereof as specified in the terms established pursuant to Section 2.3 of
Original Issue Discount Securities) of Principal of, and accrued interest
remaining unpaid on, together with interest on overdue Principal of, and, to
the extent that payment of such interest is lawful, interest on overdue
installments of interest on, the Securities of such series, in each case at
the rate or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in such Securities, and such further amount as shall be
sufficient to cover all amounts owing the Trustee under Section 7.7.
SECTION 6.9 Trustee May File Proofs of Claim. The
Trustee may file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including
any claim for amounts due the Trustee under Section 7.7) and the Holders
allowed in any judicial proceedings relative to the Company (or any other
obligor on the Securities), its creditors or its property and shall be
entitled and empowered to collect and receive any moneys, securities or other
property payable or deliverable upon conversion or exchange of the Securities
or upon any such claims and to distribute the same, and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Holder
to make such payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it under Section 7.7. Nothing herein contained
shall be deemed to empower the Trustee to authorize or consent to, or
accept or adopt on behalf of any Holder, any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the
rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 6.10 Application of Proceeds. Any moneys collected
by the Trustee pursuant to this Article in respect of the Securities
of any series shall be applied in the following order at the date or dates
fixed by the Trustee and, in case of the distribution of such moneys on
account of Principal or interest, upon presentation of the several Securities
and coupons appertaining to such Securities in respect of which moneys have
been collected and noting thereon the payment, or issuing Securities of such
series and tenor in reduced principal amounts in exchange for the presented
Securities of such series and tenor if only partially paid, or upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 7.7 applicable to the Securities of such series in respect of
which moneys have been collected;
SECOND: In case the principal of the Securities of such series
in respect of which moneys have been collected shall not have become
and be then due and payable, to the payment of interest on the
Securities of such series in default in the order of the maturity of
the installments of such interest, with interest (to the extent that
such interest has been collected by the Trustee) upon the overdue
installments of interest at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities)
specified in such Securities, such payments to be made ratably to the
persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such series
in respect of which moneys have been collected shall have become and
shall be then due and payable, to the payment of the whole amount
then owing and unpaid upon all the Securities of such series for
Principal and interest, with interest upon the overdue Principal, and
(to the extent that such interest has been collected by the Trustee)
upon overdue installments of interest at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such series; and in case
such moneys shall be insufficient to pay in full the whole amount so
due and unpaid upon the Securities of such series, then to the
payment of such Principal and interest or Yield to Maturity, without
preference or priority of Principal over interest or Yield to
Maturity, or of interest or Yield to Maturity over Principal, or of
any installment of interest over any other installment of interest,
or of any Security of such series over any other Security of such
series, ratably to the aggregate of such Principal and accrued and
unpaid interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the
Company or any other person lawfully entitled thereto.
SECTION 6.11 Restoration of Rights and Remedies. If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then, and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored to
their former positions hereunder and thereafter all rights and remedies of the
Company, Trustee and the Holders shall continue as though no such proceeding
had been instituted.
SECTION 6.12 Undertaking for Costs. In any suit
for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as Trustee, in
either case in respect to the Securities of any series, a court may require any
party litigant in such suit (other than the Trustee) to file an undertaking to
pay the costs of the suit, and the court may assess reasonable costs,
including reasonable attorneys' fees, against any party litigant (other than
the Trustee) in the suit having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.12 does not
apply to a suit by a Holder pursuant to Section 6.7 or a suit by Holders of
more than 10% in principal amount of the outstanding Securities of such
series.
SECTION 6.13 Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or wrongfully taken Securities in Section 2.8, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 6.14 Delay or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article 6 or by law to the Trustee or to
the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
ARTICLE 7
TRUSTEE
SECTION 7.1 General. The duties and responsibilities of
the Trustee shall be as provided by the Trust Indenture Act and as set forth
herein. Notwithstanding the foregoing, no provision of this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, unless it receives indemnity
satisfactory to it against any loss, liability or expense. Whether or not
therein expressly so provided, every provision of this Indenture relating to
the conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Article 7.
SECTION 7.2 Certain Rights of Trustee. Subject to Trust
Indenture Act Sections 315(a) through (d):
(i) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, Officers'
Certificate, Opinion of Counsel (or both), statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper person or persons. The Trustee need not
investigate any fact or matter stated in the document, but the
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit;
(ii) before the Trustee acts or refrains from acting, it may
require an Officers' Certificate and/or an Opinion of Counsel, which
shall conform to Section 10.4. The Trustee shall not be liable for
any action it takes or omits to take in good faith in reliance on
such certificate or opinion. Subject to Sections 7.1 and 7.2,
whenever in the administration of the trusts of this Indenture the
Trustee shall deem it necessary or desirable that a matter be proved
or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or
bad faith on the part of the Trustee, be deemed to be conclusively
proved and established by an Officers' Certificate delivered to the
Trustee, and such certificate, in the absence of negligence or bad
faith on the part of the Trustee, shall be full warrant to the
Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof;
(iii) the Trustee may act through its attorneys and agents not
regularly in its employ and shall not be responsible for the
misconduct or negligence of any agent or attorney appointed with due
care;
(iv) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any Board Resolution may be evidenced
to the Trustee by a copy thereof certified by the Secretary or an
Assistant Secretary of the Company;
(v) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the
request, order or direction of any of the Holders, unless such
Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction;
(vi) the Trustee shall not be liable for any action it takes
or omits to take in good faith that it believes to be authorized or
within its rights or powers or for any action it takes or omits to
take in accordance with the direction of the Holders in accordance
with Section 6.5 relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture;
(vii) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon; and
(viii) prior to the occurrence of an Event of Default hereunder
and after the curing or waiving of all Events of Default, the Trustee
shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, Officers'
Certificate, Opinion of Counsel, Board Resolution, statement,
instrument, opinion, report, notice, request, consent, order,
approval, appraisal, bond, debenture, note, coupon, security, or
other paper or document unless requested in writing so to do by
the Holders of not less than a majority in aggregate principal
amount of the Securities of all series affected then outstanding;
provided that, if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such expenses or
liabilities as a condition to proceeding.
SECTION 7.3 Individual Rights of Trustee. The Trustee,
in its individual or any other capacity, may become the owner or pledgee of
Securities and may otherwise deal with the Company or its Affiliates with the
same rights it would have if it were not the Trustee. Any Agent may do the
same with like rights. However, the Trustee is subject to Trust Indenture Act
Sections 310(b) and 311. For purposes of Trust Indenture Act Section
311(b)(4) and (6), the following terms shall mean:
(a) "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after delivery
of the goods or securities in currency or in checks or other orders drawn upon
banks or bankers and payable upon demand; and
(b) "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase, processing,
manufacturing, shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to, possession of, or a lien
upon, the goods, wares or merchandise or the receivables or proceeds arising
from the sale of the goods, wares or merchandise previously constituting the
security, provided the security is received by the Trustee simultaneously with
the creation of the creditor relationship with the Company arising from the
making, drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation.
SECTION 7.4 Trustee's Disclaimer. The recitals contained
herein and in the Securities (except the Trustee's certificate of
authentication) shall be taken as statements of the Company and not of the
Trustee and the Trustee assumes no responsibility for the correctness of the
same. Neither the Trustee nor any of its agents (i) makes any representation
as to the validity or adequacy of this Indenture or the Securities and (ii)
shall be accountable for the Company's use or application of the proceeds from
the Securities.
SECTION 7.5 Notice of Default. If any Default with
respect to the Securities of any series occurs and is continuing and if such
Default is known to the actual knowledge of a Responsible Officer with the
Corporate Trust Department of the Trustee, the Trustee shall give to each
Holder of Securities of such series notice of such Default within 90 days
after it occurs (i) if any Unregistered Securities of such series are then
outstanding, to the Holders thereof, by publication at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New York and at
least once in an Authorized Newspaper in London and (ii) to all Holders of
Securities of such series in the manner and to the extent provided in Section
313(c) of the Trust Indenture Act, unless such Default shall have been cured
or waived before the mailing or publication of such notice; provided, however,
that, except in the case of a Default in the payment of the Principal of or
interest on any Security, the Trustee shall be protected in withholding such
notice if the Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders.
SECTION 7.6 Reports by Trustee to Holders. Within 60
days after each May 15, beginning with May 15, 1996, the Trustee shall mail to
each Holder as and to the extent provided in Trust Indenture Act Section
313(c) a brief report dated as of such May 15, if required by Trust Indenture
Act Section 313(a).
SECTION 7.7 Compensation and Indemnity. The Company
shall pay to the Trustee such compensation as shall be agreed upon in writing
from time to time for its services. The compensation of the Trustee shall not
be limited by any law on compensation of a Trustee of an express trust. The
Company shall reimburse the Trustee upon request for all reasonable
out-of-pocket expenses, disbursements and advances incurred or made by the
Trustee. Such expenses shall include the reasonable compensation and expenses
of the Trustee's agents, counsel and other persons not regularly in its
employ.
The Company shall indemnify the Trustee for, and hold it
harmless against, any loss or liability or expense incurred by it without
negligence or bad faith on its part arising out of or in connection with the
acceptance or administration of this Indenture and the Securities or the
issuance of the Securities or of series thereof or the trusts hereunder and
the performance of duties under this Indenture and the Securities, including
the costs and expenses of defending itself against or investigating any claim
or liability and of complying with any process served upon it or any of its
officers in connection with the exercise or performance of any of its powers
or duties under this Indenture and the Securities.
To secure the Company's payment obligations in this Section
7.7, the Trustee shall have a lien prior to the Securities on all money or
property held or collected by the Trustee, in its capacity as Trustee, except
money or property held in trust to pay Principal of, and interest on
particular Securities.
The obligations of the Company under this Section to compensate
and indemnify the Trustee and each predecessor Trustee and to pay or reimburse
the Trustee and each predecessor Trustee for expenses, disbursements and
advances shall constitute additional indebtedness hereunder and shall survive
the satisfaction and discharge of this Indenture or the rejection or
termination of this Indenture under bankruptcy law. Such additional
indebtedness shall be a senior claim to that of the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the Holders of particular Securities or coupons,
and the Securities are hereby subordinated to such senior claim. If the
Trustee renders services and incurs expenses following an Event of Default
under Section 6.1(d) or Section 6.1(e) hereof, the parties hereto and the
holders by their acceptance of the Securities hereby agree that such expenses
are intended to constitute expenses of administration under any bankruptcy
law.
SECTION 7.8 Replacement of Trustee. A resignation or
removal of the Trustee as Trustee with respect to the Securities of any series
and appointment of a successor Trustee as Trustee with respect to the
Securities of any series shall become effective only upon the successor
Trustee's acceptance of appointment as provided in this Section 7.8.
The Trustee may resign as Trustee with respect to the
Securities of any series at any time by so notifying the Company in writing.
The Holders of a majority in principal amount of the outstanding Securities of
any series may remove the Trustee as Trustee with respect to the Securities
of such series by so notifying the Trustee in writing and may appoint a
successor Trustee with respect thereto with the consent of the Company. The
Company may remove the Trustee as Trustee with respect to the Securities of any
series if: (i) the Trustee is no longer eligible under Section 7.10 of this
Indenture; (ii) the Trustee is adjudged a bankrupt or insolvent; (iii) a
receiver or other public officer takes charge of the Trustee or its property;
or (iv) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed as Trustee with respect to
the Securities of any series, or if a vacancy exists in the office of Trustee
with respect to the Securities of any series for any reason, the Company shall
promptly appoint a successor Trustee with respect thereto. Within one year
after the successor Trustee takes office, the Holders of a majority in
principal amount of the outstanding Securities of such series may appoint a
successor Trustee in respect of such Securities to replace the successor
Trustee appointed by the Company. If the successor Trustee with respect to
the Securities of any series does not deliver its written acceptance required
by the next succeeding paragraph of this Section 7.8 within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of a majority in principal amount of the outstanding Securities of
such series may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect thereto.
A successor Trustee with respect to the Securities of any
series shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Immediately after the delivery of such written
acceptance, subject to the lien provided for in Section 7.7, (i) the retiring
Trustee shall transfer all property held by it as Trustee in respect of the
Securities of such series to the successor Trustee, (ii) the resignation or
removal of the retiring Trustee in respect of the Securities of such series
shall become effective and (iii) the successor Trustee shall have all the
rights, powers and duties of the Trustee in respect of the Securities of such
series under this Indenture. A successor Trustee shall mail notice of its
succession to each Holder of Securities of such series.
Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in the preceding paragraph.
The Company shall give notice of any resignation and any
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee in respect of the Securities of such series
to all Holders of Securities of such series. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
Notwithstanding replacement of the Trustee with respect to the
Securities of any series pursuant to this Section 7.8, the Company's
obligations under Section 7.7 shall continue for the benefit of the retiring
Trustee.
SECTION 7.9 Successor Trustee by Merger, Etc. If the
Trustee consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation or
national banking association, the resulting, surviving or transferee
corporation or national banking association without any further act shall be
the successor Trustee with the same effect as if the successor Trustee had
been named as the Trustee herein.
SECTION 7.10 Eligibility. This Indenture shall always
have a Trustee who satisfies the requirements of Trust Indenture Act Section
310(a). The Trustee shall have a combined capital and surplus of at least
$25,000,000 as set forth in its most recent published annual report of
condition.
SECTION 7.11 Money Held in Trust. The Trustee shall not
be liable for interest on any money received by it except as the Trustee may
agree in writing with the Company. Money held in trust by the Trustee need
not be segregated from other funds except to the extent required by law and
except for money held in trust under Article 8 of this Indenture.
ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS.
SECTION 8.1 Satisfaction and Discharge of Indenture. If
at any time (a) the Company shall have paid or caused to be paid the principal
of and interest on all the Securities of any series outstanding hereunder
(other than Securities of such series which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 2.8) as and
when the same shall have become due and payable, or (b) the Company shall have
delivered to the Trustee for cancellation all securities of any series
theretofore authenticated (other than any Securities of such series which
shall have been destroyed, lost or stolen and which shall have been replaced
or paid as provided in Section 2.8) or (c) (i) all the securities of such
series not theretofore delivered to the Trustee for cancellation shall have
become due and payable, or are by their terms to become due and payable within
one year or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and (ii)
the Company shall have irrevocably deposited or caused to be deposited with
the Trustee as trust funds the entire amount in cash (other than moneys
repaid by the Trustee or any paying agent to the Company in accordance with
Section 8.4) or U.S. Government Obligations, maturing as to principal and
interest in such amounts and at such times as will insure the availability
of cash sufficient to pay at maturity or upon redemption all Securities of
such series (other than any Securities of such series which shall have been
destroyed, lost or stolen and which shall have been replaced or paid as
provided in Section 2.8) not theretofore delivered to the Trustee for
cancellation, including principal and interest due or to become due on or
prior to such date of maturity as the case may be, and if, in any such
case, the Company shall also pay or cause to be paid all other sums payable
hereunder by the Company with respect to Securities of such series, then
this Indenture shall cease to be of further effect with respect to
Securities of such series (except as to (i) rights of registration of
transfer and exchange os securities of such series, and the Company's right
of optional redemption, if any, (ii) substitution of mutilated, defaced,
destroyed, lost or stolen Securities, (iii) rights of holders to receive
payments of principal thereof and interest thereon, upon the original
stated due dates therefor (but not upon acceleration) and remaining rights
of the holders to receive mandatory sinking fund payments, if any, (iv) the
rights, obligations and immunities of the Trustee hereunder and (v) the
rights of the Securityholders of such series as beneficiaries hereof with
respect to the property so deposited with the Trustee payable to all or any
of them), and the Trustee, on demand of the Company accompanied by an
Officers' Certificate and an Opinion of Counsel and at the cost and expense
of the Company, shall execute proper instruments acknowledging such
satisfaction of and discharging this Indenture with respect to such series;
provided, that the rights of Holders of the Securities to receive amounts
in respect of principal of and interest on the Securities held by them
shall not be delayed longer than required by then-applicable mandatory
rules or policies of any securities exchange upon which the Securities are
listed. The Company agrees to reimburse the Trustee for any costs or
expenses thereafter reasonably and properly incurred and to compensate the
Trustee for any services thereafter reasonably and properly rendered by the
Trustee in connection with this Indenture or the Securities of such series.
SECTION 8.2 Application by Trustee of Funds Deposited for
Payment of Securities. Subject to Section 8.4 and to the subordination
provisions of Article 11 hereof, all moneys deposited with the Trustee
pursuant to Section 8.1 shall be held in trust and applied by it to the
payment, either directly or through any paying agent (including the Company
acting as its own paying agent), to the Holders of the particular Securities
of such series for the payment or redemption of which such moneys have been
deposited with the Trustee, of all sums due and to become due thereon for
principal and interest; but such money need not be segregated from other funds
except to the extent required by law.
SECTION 8.3 Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect
to Securities of any series, all moneys then held by any paying agent under
the provisions of this Indenture with respect to such series of Securities
shall, upon demand of the Company, be repaid to it or paid to the Trustee and
thereupon such paying agent shall be released from all further liability with
respect to such moneys.
SECTION 8.4 Return of Moneys Held by Trustee and Paying
Agent Unclaimed for Two Years. Any moneys deposited with or paid to the
Trustee or any paying agent for the payment of the principal of or interest on
any Security of any series and not applied but remaining unclaimed for two
years after the date upon which such principal or interest shall have become
due and payable, shall, upon the written request of the Company and unless
otherwise required by mandatory provisions of applicable escheat or abandoned
or unclaimed property law, be repaid to the Company by the Trustee for such
series or such paying agent, and the Holder of the Security of such series
shall, unless otherwise required by mandatory provisions of applicable escheat
or abandoned or unclaimed property laws, thereafter look only to the Company
for any payment which such Holder may be entitled to collect, and all
liability of the Trustee or any paying agent with respect to such moneys shall
thereupon cease.
SECTION 8.5 Defeasance and Discharge of Indenture. The
Company shall be deemed to have paid and shall be discharged from any and all
obligations in respect of the Securities of any series, on the 123rd day after
the deposit referred to in clause (A) hereof has been made, and the provisions
of this Indenture shall no longer be in effect with respect to the Securities
of such series (and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same), except as to: (a) rights of
registration of transfer and exchange, and the Company's right of optional
redemption, (b) substitution of apparently mutilated, defaced, destroyed, lost
or stolen Securities, (c) rights of holders to receive payments of principal
thereof and interest thereon, upon the original stated due dates therefor (but
not upon acceleration), (d) the rights, obligations and immunities of the
Trustee hereunder and (e) the rights of the Securityholders of such series as
beneficiaries hereof with respect to the property so deposited with the
Trustee payable to all or any of them; provided that the following conditions
shall have been satisfied:
(A) with reference to this provision the Company has deposited
or caused to be irrevocably deposited with the Trustee (or another
trustee satisfying the requirements of Sections 7.8 and 7.10) as
trust funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Securities of
such series, (i) money in an amount, or (ii) U.S. Government
Obligations which through the payment of interest and principal in
respect thereof in accordance with their terms will provide not later
than one day before the due date of any payment referred to in
subclause (x) or (y) of this clause (A) money in an amount, or (iii)
a combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge without consideration of the reinvestment of such interest
and after payment of all federal, state and local taxes or other
charges and assessments in respect thereof payable by the Trustee (x)
the principal of, premium, if any, and each installment of interest
on the outstanding Securities of such series on the due dates thereof
and (y) any mandatory sinking fund payments or analogous payments
applicable to the Securities of such series on the day on which such
payments are due and payable in accordance with the terms of
Securities of such series and the Indenture with respect to the
Securities of such series;
(B) the Company has delivered to the Trustee (i) either (x) an
Opinion of Counsel to the effect that Holders of Securities of such
series will not recognize income, gain or loss for federal income tax
purposes as a result of the Company's exercise of its option under
this Section 8.5 and will be subject to federal income tax on the
same amount and in the same manner and at the same times as would
have been the case if such deposit, defeasance and discharge had not
occurred, which Opinion of Counsel must be based upon a ruling of the
Internal Revenue Service to the same effect or a change in applicable
federal income tax law or related treasury regulations after the date
of this Indenture or (y) a ruling directed to the Trustee received
from the Internal Revenue Service to the same effect as the
aforementioned Opinion of Counsel and (ii) an Opinion of Counsel to
the effect that the creation of the defeasance trust does not violate
the Investment Company Act of 1940 and after the passage of 123 days
following the deposit, the trust fund will not be subject to the
effect of Section 547 of the U.S. Bankruptcy Code or Section 15 of
the New York Debtor and Creditor Law;
(C) immediately after giving effect to such deposit on a pro
forma basis, no Event of Default, or event that after the giving of
notice or lapse of time or both would become an Event of Default,
shall have occurred and be continuing on the date of such deposit or
during the period ending on the 123rd day after the date of such
deposit, and such deposit shall not result in a breach or violation
of, or constitute a default under, any other agreement or instrument
to which the Company is a party or by which the Company is bound;
(D) the Company is not prohibited from making payments in
respect of the Securities by Article 11 hereof; and
(E) if at such time the Securities of such series are listed
on a national securities exchange, the Company has delivered to the
Trustee an Opinion of Counsel to the effect that the Securities of
such series will not be delisted as a result of such deposit,
defeasance and discharge.
SECTION 8.6 Defeasance of Certain Obligations. The
Company may omit to comply with any term, provision or condition set forth in,
and this Indenture will no longer be in effect with respect to, any covenant
in Article 4 or Section 5.1 established pursuant to Section 2.3 in any
indenture supplemental hereto and clause (c) (with respect to any covenants in
Article 4 or Section 5.1 established pursuant to Section 2.3 in any indenture
supplemental hereto) and clause (f) of Section 6.1 shall be deemed not to be
an Event of Default, and the provisions of Article 11 shall not apply with
respect to the Securities of any series, if
(A) with reference to this Section 8.6, the Company has
deposited or caused to be irrevocably deposited with the Trustee (or
another trustee satisfying the requirements of Section 7.8) as trust
funds in trust, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of the Securities of such
series and the Indenture with respect to the Securities of such
series, (i) money in an amount or (ii) U.S. Government Obligations
which through the payment of interest and principal in respect
thereof in accordance with their terms will provide not later than
one day before the due dates thereof or earlier redemption
(irrevocably provided for under agreements satisfactory to the
Trustee), as the case may be, of any payment referred to in subclause
(x) or (y) of this clause (A) money in an amount, or (iii) a
combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge without consideration of the reinvestment of such interest
and after payment of all federal, state and local taxes or other
charges and assessments in respect thereof payable by the Trustee (x)
the principal of, premium, if any, and each installment of interest
on the outstanding Securities on the due date thereof or earlier
redemption (irrevocably provided for under arrangements satisfactory
to the Trustee), as the case may be, and (y) any mandatory sinking
fund payments or analogous payments applicable to the Securities of
such series and the Indenture with respect to the Securities of such
series on the day on which such payments are due and payable in
accordance with the terms of the Indenture and of Securities of such
series and the Indenture with respect to the Securities of such
series;
(B) the Company has delivered to the Trustee (i) an Opinion of
Counsel to the effect that Holders of Securities of such series will
not recognize income, gain or loss for federal income tax purposes as
a result of the Company's exercise of its option under this Section
8.6 and will be subject to federal income tax on the same amount and
in the same manner and at the same times as would have been the case
if such deposit and defeasance had not occurred and (ii) an Opinion
of Counsel to the effect that the creation of the defeasance trust
does not violate the Investment Company Act of 1940 and after the
passage of 123 days following the deposit, the trust fund will not be
subject to the effect of Section 547 of the U.S. Bankruptcy Code or
Section 15 of the New York Debtor and Creditor Law;
(C) immediately after giving effect to such deposit on a pro
forma basis, no Event of Default, or event that after the giving of
notice or lapse of time or both would become an Event of Default,
shall have occurred and be continuing on the date of such deposit or
during the period ending on the 123rd day after the date of such
deposit, and such deposit shall not result in a breach or violation
of, or constitute a default under, any other agreement or instrument
to which the Company is a party or by which the Company is bound;
(D) the Company is not prohibited from making payments in
respect of the Securities by Article 11 hereof; and
(E) if at such time the Securities of such series are listed
on a national securities exchange, the Company has delivered to the
Trustee an Opinion of Counsel to the effect that the Securities of
such series will not be delisted as a result of such deposit,
defeasance and discharge.
SECTION 8.7 Reinstatement. If the Trustee or paying
agent is unable to apply any monies or U.S. Government Obligations in
accordance with Article 8 by reason of any legal proceeding or by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture and the Securities shall be revived and
reinstated as though no deposit had occurred pursuant to this Article until
such time as the Trustee or paying agent is permitted to apply all such monies
or U.S. Government Obligations in accordance with Article 8; provided,
however, that if the Company has made any payment of principal of or interest
on any Securities because of the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Securities to receive
such payment from the monies or U.S. Government Obligations held by the
Trustee or paying agent.
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 Without Consent of Holders. The Company and
the Trustee may amend or supplement this Indenture or the Securities of any
series without notice to or the consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency in this
Indenture; provided that such amendments or supplements shall not
materially and adversely affect the interests of the Holders;
(2) to comply with Article 5;
(3) to comply with any requirements of the Commission in
connection with the qualification of this Indenture under the Trust
Indenture Act;
(4) to evidence and provide for the acceptance of appointment
hereunder with respect to the Securities of any or all series by a
successor Trustee;
(5) to establish the form or forms or terms of Securities of
any series or of the coupons appertaining to such Securities as
permitted by Section 2.3;
(6) to provide for uncertificated or Unregistered Securities
and to make all appropriate changes for such purpose; and
(7) to make any change that does not materially and adversely
affect the rights of any Holder.
SECTION 9.2 With Consent of Holders. Subject to Sections
6.4 and 6.7, without prior notice to any Holders, the Company and the Trustee
may amend this Indenture and the Securities of any series with the written
consent of the Holders of a majority in principal amount of the outstanding
Securities of all series affected by such amendment (all such series voting as
a separate class), and the Holders of a majority in principal amount of the
outstanding Securities of all series affected thereby (all such series voting
as a separate class) by written notice to the Trustee may waive future
compliance by the Company with any provision of this Indenture or the
Securities of such series.
Notwithstanding the provisions of this Section 9.2, without the
consent of each Holder affected thereby, an amendment or waiver, including a
waiver pursuant to Section 6.4, may not:
(i) change the stated maturity of the Principal of, or any
sinking fund obligation or any installment of interest on, such
Holder's Security,
(ii) reduce the Principal amount thereof or the rate of
interest thereon (including any amount in respect of original issue
discount);
(iii) reduce the above stated percentage of outstanding
Securities the consent of whose holders is necessary to modify or
amend the Indenture with respect to the Securities of the relevant
series; and
(iv) reduce the percentage in principal amount of outstanding
Securities of the relevant series the consent of whose Holders is
required for any supplemental indenture, for any waiver of compliance
with certain provisions of this Indenture or certain Defaults and
their consequences provided for in this Indenture.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of Holders of Securities of such
series with respect to such covenant or provision, shall be deemed not to
affect the rights under this Indenture of the Holders of Securities of any
other series or of the coupons appertaining to such Securities.
It shall not be necessary for the consent of any Holder under
this Section 9.2 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.2
becomes effective, the Company shall give to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. The Company
will mail supplemental indentures to Holders upon request. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture or waiver.
SECTION 9.3 Revocation and Effect of Consent. Until an
amendment or waiver becomes effective, a consent to it by a Holder is a
continuing consent by the Holder and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the Security of the
consenting Holder, even if notation of the consent is not made on any
Security. However, any such Holder or subsequent Holder may revoke the
consent as to its Security or portion of its Security. Such revocation shall
be effective only if the Trustee receives the notice of revocation before the
date the amendment, supplement or waiver becomes effective. An amendment,
supplement or waiver shall become effective with respect to any Securities
affected thereby on receipt by the Trustee of written consents from the
requisite Holders of outstanding Securities affected thereby.
The Company may, but shall not be obligated to, fix a record
date (which may be not less than five nor more than 60 days prior to the
solicitation of consents) for the purpose of determining the Holders of the
Securities of any series affected entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then, notwithstanding the
immediately preceding paragraph, those Persons who were such Holders at such
record date (or their duly designated proxies) and only those Persons shall be
entitled to consent to such amendment, supplement or waiver or to revoke any
consent previously given, whether or not such Persons continue to be such
Holders after such record date. No such consent shall be valid or effective
for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective with
respect to the Securities of any series affected thereby, it shall bind every
Holder of such Securities unless it is of the type described in any of clauses
(i) through (iv) of Section 9.2. In case of an amendment or waiver of the
type described in clauses (i) through (iv) of Section 9.2, the amendment or
waiver shall bind each such Holder who has consented to it and every
subsequent Holder of a Security that evidences the same indebtedness as the
Security of the consenting Holder.
SECTION 9.4 Notation on or Exchange of Securities. If an
amendment, supplement or waiver changes the terms of any Security, the Trustee
may require the Holder thereof to deliver it to the Trustee. The Trustee may
place an appropriate notation on the Security about the changed terms and
return it to the Holder and the Trustee may place an appropriate notation on
any Security of such series thereafter authenticated. Alternatively, if the
Company or the Trustee so determines, the Company in exchange for the Security
shall issue and the Trustee shall authenticate a new Security of the same
series and tenor that reflects the changed terms.
SECTION 9.5 Trustee to Sign Amendments, Etc. The Trustee
shall be entitled to receive, and shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of any amendment, supplement or
waiver authorized pursuant to this Article 9 is authorized or permitted by
this Indenture, stating that all requisite consents have been obtained or that
no consents are required and stating that such supplemental indenture
constitutes the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject to
customary exceptions. Subject to the preceding sentence, the Trustee shall
sign such amendment, supplement or waiver if the same does not adversely
affect the rights of the Trustee. The Trustee may, but shall not be
obligated to, execute any such amendment, supplement or waiver that affects
the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 9.6 Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article 9 shall conform to
the requirements of the Trust Indenture Act as then in effect.
ARTICLE 10
MISCELLANEOUS
SECTION 10.1 Trust Indenture Act of 1939. This Indenture
shall incorporate and be governed by the provisions of the Trust Indenture Act
that are required to be part of and to govern indentures qualified under the
Trust Indenture Act.
SECTION 10.2 Notices. Any notice or communication shall
be sufficiently given if written and (a) if delivered in person when received
or (b) if mailed by first class mail 5 days after mailing, or (c) as between
the Company and the Trustee if sent by facsimile transmission, when
transmission is confirmed, in each case addressed as follows:
if to the Company:
The AES Corporation
1001 North 19th Street
Arlington, VA 22209
Telecopy: (703) 528-4510
Attention: General Counsel
if to the Trustee:
The First National Bank of Chicago
One North State Street
Ninth Floor
Chicago, IL 60670-0126
Telecopy: (312) 407-1708
Attention: Richard Manella
Vice President and Trust Counsel
The Company or the Trustee by written notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication shall be sufficiently given to
Holders of any Unregistered Securities, by publication at least once in an
Authorized Newspaper in The City of New York, or with respect to any Security
the interest on which is based on the offered quotations in the interbank
Eurodollar market for dollar deposits at least once in an Authorized Newspaper
in London, and by mailing to the Holders thereof who have filed their names
and addresses with the Trustee pursuant to Section 313(c)(2) of the Trust
Indenture Act at such addresses as were so furnished to the Trustee and to
Holders of Registered Securities by mailing to such Holders at their addresses
as they shall appear on the Security Register. Notice mailed shall be
sufficiently given if so mailed within the time prescribed. Copies of any
such communication or notice to a Holder shall also be mailed to the Trustee
and each Agent at the same time.
Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders.
Except as otherwise provided in this Indenture, if a notice or communication
is mailed in the manner provided in this Section 10.2, it is duly given,
whether or not the addressee receives it.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee,
but such filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
In case it shall be impracticable to give notice as herein
contemplated, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose
hereunder.
SECTION 10.3 Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the
Trustee:
(i) an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with;
and
(ii) an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent have been complied with.
SECTION 10.4 Statements Required in Certificate or
Opinion. Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(i) a statement that each person signing such certificate or
opinion has read such covenant or condition and the definitions
herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statement or opinion
contained in such certificate or opinion is based;
(iii) a statement that, in the opinion of each such person, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(iv) a statement as to whether or not, in the opinion of each
such person, such condition or covenant has been complied with;
provided, however, that, with respect to matters of fact, an Opinion
of Counsel may rely on an Officers' Certificate or certificates of
public officials.
SECTION 10.5 Evidence of Ownership. The Company, the
Trustee and any agent of the Company or the Trustee may deem and treat the
Holder of any Unregistered Security and the Holder of any coupon as the
absolute owner of such Unregistered Security or coupon (whether or not such
Unregistered Security or coupon shall be overdue) for the purpose of receiving
payment thereof or on account thereof and for all other purposes, and neither
the Company, the Trustee, nor any agent of the Company or the Trustee shall
be affected by any notice to the contrary. The fact of the holding by any
Holder of an Unregistered Security, and the identifying number of such
Security and the date of his holding the same, may be proved by the production
of such Security or by a certificate executed by any trust company, bank,
banker or recognized securities dealer wherever situated satisfactory to the
Trustee, if such certificate shall be deemed by the Trustee to be
satisfactory. Each such certificate shall be dated and shall state that on
the date thereof a Security bearing a specified identifying number was
deposited with or exhibited to such trust company, bank, banker or
recognized securities dealer by the person named in such certificate. Any
such certificate may be issued in respect of one or more Unregistered
Securities specified therein. The holding by the person named in any such
certificate of any Unregistered Securities specified therein shall be
presumed to continue for a period of one year from the date of such
certificate unless at the time of any determination of such holding (1)
another certificate bearing a later date issued in respect of the same
Securities shall be produced or (2) the Security specified in such
certificate shall be produced by some other Person, or (3) the Security
specified in such certificate shall have ceased to be outstanding. Subject
to Article 7, the fact and date of the execution of any such instrument and
the amount and numbers of Securities held by the Person so executing such
instrument may also be proven in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in any other manner
which the Trustee may deem sufficient.
The Company, the Trustee and any agent of the Company or the
Trustee may deem and treat the person in whose name any Registered Security
shall be registered upon the Security Register for such series as the absolute
owner of such Registered Security (whether or not such Registered Security
shall be overdue and notwithstanding any notation of ownership or other
writing thereon) for the purpose of receiving payment of or on account of the
Principal of and, subject to the provisions of this Indenture, interest on
such Registered Security and for all other purposes; and neither the Company
nor the Trustee nor any agent of the Company or the Trustee shall be affected
by any notice to the contrary.
SECTION 10.6 Rules by Trustee, Paying Agent or Registrar.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Paying Agent or Registrar may make reasonable rules for its
functions.
SECTION 10.7 Payment Date Other Than a Business Day. If
any date for payment of Principal or interest on any Security shall not be a
Business Day at any place of payment, then payment of Principal of or interest
on such Security, as the case may be, need not be made on such date, but may
be made on the next succeeding Business Day at any place of payment with the
same force and effect as if made on such date and no interest shall accrue in
respect of such payment for the period from and after such date.
SECTION 10.8 Governing Law. The laws of the State of New
York shall govern this Indenture and the Securities.
SECTION 10.9 No Adverse Interpretation of Other
Agreements. This Indenture may not be used to interpret another indenture or
loan or debt agreement of the Company or any Subsidiary of the Company. Any
such indenture or agreement may not be used to interpret this Indenture.
SECTION 10.10 Successors. All agreements of the Company in
this Indenture and the Securities shall bind its successors. All agreements
of the Trustee in this Indenture shall bind its successors.
SECTION 10.11 Duplicate Originals. The parties may sign
any number of copies of this Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement.
SECTION 10.12 Separability. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 10.13 Table of Contents, Headings, Etc. The Table
of Contents and headings of the Articles and Sections of this Indenture have
been inserted for convenience of reference only, are not to be considered a
part hereof and shall in no way modify or restrict any of the terms and
provisions hereof.
SECTION 10.14 Incorporators, Stockholders, Officers and
Directors of Company Exempt from Individual Liability. No recourse under or
upon any obligation, covenant or agreement contained in this Indenture or any
indenture supplemental hereto, or in any Security or any coupons appertaining
thereto, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such or against any past, present or future
stockholder, officer, director or employee, as such, of the Company or of any
successor, either directly or through the Company or any successor, under any
rule of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities and the coupons appertaining thereto by the holders thereof and as
part of the consideration for the issue of the Securities and the coupons
appertaining thereto.
SECTION 10.15 Judgment Currency. The Company agrees, to
the fullest extent that it may effectively do so under applicable law, that
(a) if for the purpose of obtaining judgment in any court it is necessary to
convert the sum due in respect of the Principal of or interest on the
Securities of any series (the "Required Currency") into a currency in which a
judgment will be rendered (the "Judgment Currency"), the rate of exchange used
shall be the rate at which in accordance with normal banking procedures the
Trustee could purchase in The City of New York the Required Currency with the
Judgment Currency on the day on which final unappealable judgment is entered,
unless such day is not a Business Day, then, to the extent permitted by
applicable law, the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the
Business Day preceding the day on which final unappealable judgment is entered
and (b) its obligations under this Indenture to make payments in the Required
Currency (i) shall not be discharged or satisfied by any tender, or any
recovery pursuant to any judgment (whether or not entered in accordance with
subsection (a)), in any currency other than the Required Currency, except to
the extent that such tender or recovery shall result in the actual receipt, by
the payee, of the full amount of the Required Currency expressed to be payable
in respect of such payments, (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the Required
Currency the amount, if any, by which such actual receipt shall fall short of
the full amount of the Required Currency so expressed to be payable and (iii)
shall not be affected by judgment being obtained for any other sum due under
this Indenture.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the date first written above.
(SEAL) THE AES CORPORATION
Attest: as the Company
______________________________
By:______________________________
Name:
Title:
(SEAL)
Attest: THE FIRST NATIONAL BANK OF
CHICAGO
______________________________
By:______________________________
Name:
Title:
STATE OF ________________ )
)
COUNTY OF _______________ )
BEFORE ME, the undersigned authority, on this __ day of
____________, 199__, personally appeared ____________, ____________ of The AES
Corporation, a Delaware corporation, known to me (or proved to me by
introduction upon the oath of a person known to me) to be the person and
officer whose name is subscribed to the foregoing instrument, and acknowledged
to me that he/she executed the same as the act of such corporation for the
purposes and consideration herein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS ____ DAY OF ______, 199__.
(SEAL)
________________________________
NOTARY PUBLIC, STATE OF ________
Print Name:_____________________
Commission Expires:_____________
STATE OF ________________ )
)
COUNTY OF _______________ )
BEFORE ME, the undersigned authority, on this _______ day of
____________, 199__, personally appeared _________________, _______________ of
The First National Bank of Chicago, a national banking association, known to me
(or proved to me by introduction upon the oath of a person known to me) to be
the person and officer whose name is subscribed to the foregoing instrument,
and acknowledged to me that he/she executed the same as the act of such trust
for the purposes and consideration herein expressed and in the capacity
therein stated.
GIVEN UNDER MY HAND AND SEAL THIS _____ DAY OF ______, 199__.
(SEAL)
________________________________
NOTARY PUBLIC, STATE OF ________
Print Name:_____________________
Commission Expires:_____________
EXHIBIT 4.2
THE AES CORPORATION
as the Company
and
FIRST NATIONAL BANK OF CHICAGO
as Trustee
___________________________________
Indenture
Dated as of July 1, 1996
___________________________________
TABLE OF CONTENTS(*)
(*) Note: The Table of Contents shall not for any purposes be deemed
to be a part of the Indenture.
Page
____
RECITALS OF THE COMPANY
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions................................................ 1
SECTION 1.2 Other Definitions.......................................... 7
SECTION 1.3 Incorporation by Reference of Trust Indenture Act.......... 7
SECTION 1.4 Rules of Construction...................................... 8
ARTICLE 2
THE SECURITIES
SECTION 2.1 Form and Dating............................................ 8
SECTION 2.2 Execution and Authentication............................... 8
SECTION 2.3 Amount Unlimited; Issuable in Series....................... 10
SECTION 2.4 Denomination and Date of Securities; Payments of Interest.. 14
SECTION 2.5 Registrar and Paying Agent; Agents Generally............... 14
SECTION 2.6 Paying Agent to Hold Money in Trust........................ 15
SECTION 2.7 Transfer and Exchange...................................... 16
SECTION 2.8 Replacement Securities..................................... 19
SECTION 2.9 Outstanding Securities..................................... 20
SECTION 2.10 Temporary Securities....................................... 21
SECTION 2.11 Cancellation............................................... 21
SECTION 2.12 CUSIP Numbers.............................................. 22
SECTION 2.13 Defaulted Interest......................................... 22
SECTION 2.14 Series May Include Tranches................................ 22
ARTICLE 3
REDEMPTION
SECTION 3.1 Applicability of Article................................... 23
SECTION 3.2 Notice of Redemption; Partial Redemptions.................. 23
SECTION 3.3 Payment of Securities Called for Redemption................ 25
SECTION 3.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption................................... 26
SECTION 3.5 Mandatory and Optional Sinking Funds....................... 27
ARTICLE 4
COVENANTS
SECTION 4.1 Payment of Securities...................................... 30
SECTION 4.2 Maintenance of Office or Agency............................ 31
SECTION 4.3 Securityholders' Lists..................................... 32
SECTION 4.4 Certificate to Trustee..................................... 32
SECTION 4.5 Reports by the Company..................................... 33
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.1 When Company May Merge, Etc................................ 33
SECTION 5.2 Successor Substituted...................................... 34
ARTICLE 6
DEFAULT AND REMEDIES
SECTION 6.1 Events of Default........................................... 34
SECTION 6.2 Acceleration................................................ 35
SECTION 6.3 Other Remedies.............................................. 37
SECTION 6.4 Waiver of Past Defaults..................................... 37
SECTION 6.5 Control by Majority......................................... 38
SECTION 6.6 Limitation on Suits......................................... 38
SECTION 6.7 Rights of Holders to Receive Payment........................ 39
SECTION 6.8 Collection Suit by Trustee.................................. 39
SECTION 6.9 Trustee May File Proofs of Claim............................ 39
SECTION 6.10 Application of Proceeds..................................... 40
SECTION 6.11 Restoration of Rights and Remedies.......................... 41
SECTION 6.12 Undertaking for Costs....................................... 41
SECTION 6.13 Rights and Remedies Cumulative.............................. 42
SECTION 6.14 Delay or Omission Not Waiver................................ 42
ARTICLE 7
TRUSTEE
SECTION 7.1 General.................................................... 42
SECTION 7.2 Certain Rights of Trustee.................................. 42
SECTION 7.3 Individual Rights of Trustee............................... 44
SECTION 7.4 Trustee's Disclaimer....................................... 45
SECTION 7.5 Notice of Default.......................................... 45
SECTION 7.6 Reports by Trustee to Holders.............................. 46
SECTION 7.7 Compensation and Indemnity................................. 46
SECTION 7.8 Replacement of Trustee..................................... 47
SECTION 7.9 Successor Trustee by Merger, Etc........................... 48
SECTION 7.10 Eligibility................................................ 49
SECTION 7.11 Money Held in Trust........................................ 49
ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS.
SECTION 8.1 Satisfaction and Discharge of Indenture.................... 49
SECTION 8.2 Application by Trustee of Funds Deposited for Payment of
Securities................................................. 50
SECTION 8.3 Repayment of Moneys Held by Paying Agent................... 51
SECTION 8.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed
for Two Years.............................................. 51
SECTION 8.6 Defeasance of Certain Obligations.......................... 53
SECTION 8.7 Reinstatement.............................................. 55
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 Without Consent of Holders................................. 55
SECTION 9.2 With Consent of Holders.................................... 56
SECTION 9.3 Revocation and Effect of Consent........................... 57
SECTION 9.4 Notation on or Exchange of Securities...................... 58
SECTION 9.5 Trustee to Sign Amendments, Etc............................ 58
SECTION 9.6 Conformity with Trust Indenture Act........................ 59
ARTICLE 10
MISCELLANEOUS
SECTION 10.1 Trust Indenture Act of 1939................................ 59
SECTION 10.2 Notices.................................................... 59
SECTION 10.3 Certificate and Opinion as to Conditions Precedent......... 61
SECTION 10.4 Statements Required in Certificate or Opinion.............. 61
SECTION 10.5 Evidence of Ownership...................................... 61
SECTION 10.6 Rules by Trustee, Paying Agent or Registrar................ 62
SECTION 10.7 Payment Date Other Than a Business Day..................... 62
SECTION 10.8 Governing Law.............................................. 63
SECTION 10.9 No Adverse Interpretation of Other Agreements.............. 63
SECTION 10.10 Successors................................................. 63
SECTION 10.11 Duplicate Originals........................................ 63
SECTION 10.12 Separability............................................... 63
SECTION 10.13 Table of Contents, Headings, Etc........................... 63
SECTION 10.14 Incorporators, Stockholders, Officers and Directors of
Company Exempt from Individual Liability................... 63
SECTION 10.15 Judgment Currency.......................................... 64
ARTICLE 11
SUBORDINATION OF SECURITIES
SECTION 11.1 Agreement to Subordinate................................... 64
SECTION 11.2 Payments to Securityholders................................ 65
SECTION 11.3 Subrogation of Securities.................................. 67
SECTION 11.4 Authorization by Securityholders........................... 68
SECTION 11.5 Notice to Trustee.......................................... 68
SECTION 11.6 Trustee's Relation to Senior Debt.......................... 70
SECTION 11.7 No Impairment of Subordination............................. 70
SIGNATURES
INDENTURE, dated as of July 1, 1996, between The AES
Corporation, a Delaware corporation, as the Company, and First National Bank
of Chicago, a national association, as Trustee.
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the issue from time to
time of its debentures, notes or other evidences of indebtedness to be issued
in one or more series (the "Securities") up to such principal amount or
amounts as may from time to time be authorized in accordance with the terms of
this Indenture and to provide, among other things, for the authentication,
delivery and administration thereof, the Company has duly authorized the
execution and delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Securities by the holders thereof, the Company and the Trustee mutually
covenant and agree for the equal and proportionate benefit of the respective
holders from time to time of the Securities or of any and all series thereof
and of the coupons, if any, appertaining thereto as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions.
"Affiliate" of any Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such Person. For the purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling", "controlled
by" and "under common control with") when used with respect to any Person
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such Person, whether through
the ownership of voting securities, by contract or otherwise.
"Agent" means any Registrar, Paying Agent, transfer agent or
Authenticating Agent.
"Authorized Newspaper" means a newspaper (which, in the case of
The City of New York, will, if practicable, be The Wall Street Journal
(Eastern Edition) and in the case of London, will, if practicable, be the
Financial Times (London Edition) and published in an official language of the
country of publication customarily published at least once a day for at least
five days in each calendar week and of general circulation in The City of New
York or London, as applicable. If it shall be impractical in the opinion of
the Trustee to make any publication of any notice required hereby in an
Authorized Newspaper, any publication or other notice in lieu thereof which is
made or given with the approval of the Trustee shall constitute a sufficient
publication of such notice.
"Bank Credit Agreement" means the Credit Agreement dated as of
May 20, 1996 among the Company, the Banks named on the signature pages thereof
and Morgan Guaranty Trust Company of New York, as such Agreement has been and
may be amended, restated, supplemented or otherwise modified from time to
time, and includes any agreement extending the maturity of, or restructuring
(including, but not limited to, the inclusion of additional borrowers
thereunder that are Subsidiaries of the Company and whose obligations are
guaranteed by the Company thereunder) all or any portion of, the Debt under
such Agreement or any successor agreements and includes any agreement with one
or more banks or other lending institutions refinancing all or any portion of
the Debt under such Agreement or any successor agreements.
"Board Resolution" means one or more resolutions of the board
of directors of the Company or any authorized committee thereof, certified by
the secretary or an assistant secretary to have been duly adopted and to be in
full force and effect on the date of certification, and delivered to the
Trustee.
"Business Day" means any day, other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which banking institutions are
authorized or required by law or regulation to close in The City of New York,
with respect to any Security the interest on which is based on the offered
quotations in the interbank Eurodollar market for dollar deposits in London,
or with respect to Securities denominated in a specified currency other than
United States dollars in the principal financial center of the country of the
specified currency.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act or, if at any
time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act,
then the body performing such duties at such time.
"Company" means the party named as such in the first paragraph
of this Indenture until a successor replaces it pursuant to Article 5 of this
Indenture and thereafter means the successor.
"Corporate Trust Office" means the office of the Trustee at
which the corporate trust business of the Trustee shall, at any particular
time, be principally administered, which office is, at the date of this
Indenture, located at 120 Wall Street, New York, New York 10043 Attention:
Corporate Trust Administration.
"Default" means any Event of Default as defined in Section 6.1
and any event that is, or after notice or passage of time or both would be, an
Event of Default.
"Depositary" means, with respect to the Securities of any
series issuable or issued in the form of one or more Registered Global
Securities, the Person designated as Depositary by the Company pursuant to
Section 2.3 until a successor Depositary shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Depositary"
shall mean or include each Person who is then a Depositary hereunder, and
if at any time there is more than one such Person, "Depositary" as used
with respect to the Securities of any such series shall mean the Depositary
with respect to the Registered Global Securities of that series.
"Designated Senior Debt" means (i) Debt under the Bank Credit
Agreement and (ii) Debt constituting Senior Debt which, at the time of its
determination, (A) has an aggregate principal amount of at least $30 million
and (B) is specifically designated in the instrument evidencing such Senior
Debt as "Designated Senior Debt" by the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"GAAP" means generally accepted accounting principles in the
United States of America at the date of any computation required or permitted
hereunder.
"Holder" or "Securityholder" means the registered holder of any
Security with respect to Registered Securities and the bearer of any
Unregistered Security or any coupon appertaining thereto, as the case may be.
"Indenture" means this Indenture as originally executed and
delivered or as it may be amended or supplemented from time to time by one
or more indentures supplemental to this Indenture entered into pursuant to
the applicable provisions of this Indenture and shall include the forms and
terms of the Securities of each series established as contemplated pursuant
to Sections 2.1 and 2.3.
"Officer" means, with respect to the Company, the chairman of
the board of directors, the president or chief executive officer, any vice
president, the chief financial officer, the treasurer or any assistant
treasurer, or the secretary or any assistant secretary.
"Officers' Certificate" means a certificate signed in the name
of the Company (i) by the chairman of the board of directors, the president or
chief executive officer or a vice president and (ii) by the chief financial
officer, the treasurer or any assistant treasurer, or the secretary or any
assistant secretary, complying with Section 10.4 and delivered to the Trustee.
Each such certificate shall comply with Section 314 of the Trust Indenture Act
and include (except as otherwise expressly provided in this Indenture) the
statements provided in Section 10.4.
"Opinion of Counsel" means a written opinion signed by legal
counsel, who may be an employee of or counsel to the Company, satisfactory to
the Trustee and complying with Section 10.4. Each such opinion shall comply
with Section 314 of the Trust Indenture Act and include the statements
provided in Section 10.4, if and to the extent required thereby.
"original issue date" of any Security (or portion thereof)
means the earlier of (a) the date of authentication of such Security or (b)
the date of any Security (or portion thereof) for which such Security was
issued (directly or indirectly) on registration of transfer, exchange or
substitution.
"Original Issue Discount Security" means any Security that
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant to
Section 6.2.
"Periodic Offering" means an offering of Securities of a series
from time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the stated
maturity or maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by the Company or its agents upon the
issuance of such Securities.
"Person" means an individual, a corporation, a partnership, a
limited liability company, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"Principal" of a Security means the principal amount of, and,
unless the context indicates otherwise, includes any premium payable on, the
Security.
"Registered Global Security" means a Security evidencing all or
a part of a series of Registered Securities, issued to the Depositary for such
series in accordance with Section 2.2, and bearing the legend prescribed in
Section 2.2.
"Registered Security" means any Security registered on the
Security Register (as defined in Section 2.5).
"Responsible Officer" means, when used with respect to the
Trustee, any senior trust officer, any vice president, any trust officer, any
assistant trust officer, or any other officer or assistant officer of the
Trustee customarily performing functions similar to those performed by the
persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his knowledge of and familiarity
with the particular subject.
"Securities" means any of the securities, as defined in the
first paragraph of the recitals hereof, that are authenticated and delivered
under this Indenture and, unless the context indicates otherwise, shall
include any coupon appertaining thereto.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Debt" means the principal of (and premium, if any) and
interest on all Debt of the Company whether created, incurred or assumed
before, on or after the date of the issuance of the Securities; provided that
Senior Debt shall not include (i) the Company's 6 1/2% Convertible
Subordinated Debentures Due 2002 and 9% Convertible Subordinated Debentures
Due 1993 which rank junior to the Securities, (ii) Debt that, when incurred
and without respect to any election under Section 1111(b) of Title 11, United
States Code, was without recourse to the Company, (iii) Debt of the Company to
any Affiliate, (iv) any other Debt of the Company which by the terms of the
instrument creating or evidencing the same are specifically designated as not
being senior in right of payment to the Securities and (v) redeemable stock of
the Company.
"Subsidiary" means, with respect to any Person, any
corporation, association or other business entity of which a majority of
the capital stock or other ownership interests having ordinary voting power
to elect a majority of the board of directors or other persons performing
similar functions are at the time directly of indirectly owned by such
Person.
"Trustee" means the party named as such in the first paragraph
of this Indenture until a successor replaces it in accordance with the
provisions of Article 7 and thereafter means such successor.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended (15 U.S. Code Section Section 77aaa-77bbbb), as it may be amended
from time to time.
"Unregistered Security" means any Security other than a
Registered Security.
"U.S. Government Obligations" means securities that are (i)
direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (ii) obligations of an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, and shall also include a depository receipt issued by a
bank or trust company as custodian with respect to any such U.S. Government
Obligation or a specific payment of interest on or principal of any such U.S.
Government Obligation held by such custodian for the account of the holder of
a depository receipt; provided that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the holder
of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of interest
on or principal of the U.S. Government Obligation evidenced by such depository
receipt.
"Yield to Maturity" means, as the context may require, the
yield to maturity (i) on a series of Securities or (ii) if the Securities of a
series are issuable from time to time, on a Security of such series,
calculated at the time of issuance of such series in the case of clause (i) or
at the time of issuance of such Security of such series in the case of clause
(ii), or, if applicable, at the most recent redetermination of interest on
such series or on such Security, and calculated in accordance with the constant
interest method or such other accepted financial practice as is specified in
the terms of such Security.
SECTION 1.2 Other Definitions. Each of the following
terms is defined in the section set forth opposite such term:
Term Section
---- -------
Authenticating Agent 2.2
cash transaction 7.3
Dollars 4.2
Event of Default 6.1
Judgment Currency 10.15
mandatory sinking fund payment 3.5
optional sinking fund payment 3.5
Paying Agent 2.5
Payment Blockage Period 11.2
record date 2.4
Registrar 2.5
Required Currency 10.15
Security Register 2.5
self-liquidating paper 7.3
sinking fund payment date 3.5
tranche 2.14
SECTION 1.3 Incorporation by Reference of Trust Indenture
Act. Whenever this Indenture refers to a provision of the Trust Indenture
Act, the provision is incorporated by reference in and made a part of this
Indenture. The following terms used in this Indenture that are defined by the
Trust Indenture Act have the following meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Holder or a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the indenture securities means the Company or any
other obligor on the Securities.
All other terms used in this Indenture that are defined by the
Trust Indenture Act, defined by reference in the Trust Indenture Act to
another statute or defined by a rule of the Commission and not otherwise
defined herein have the meanings assigned to them therein.
SECTION 1.4 Rules of Construction. Unless the context
otherwise requires:
(i) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(ii) words in the singular include the plural, and words in
the plural include the singular;
(iii) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision;
(iv) all references to Sections or Articles refer to Sections
or Articles of this Indenture unless otherwise indicated; and
(v) use of masculine, feminine or neuter pronouns should not
be deemed a limitation, and the use of any such pronouns should be
construed to include, where appropriate, the other pronouns.
ARTICLE 2
THE SECURITIES
SECTION 2.1 Form and Dating. The Securities of each
series shall be substantially in such form or forms (not inconsistent with
this Indenture) as shall be established by or pursuant to one or more Board
Resolutions or in one or more indentures supplemental hereto, in each case
with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture and may have
imprinted or otherwise reproduced thereon such legend or legends or
endorsements, not inconsistent with the provisions of this Indenture, as may
be required to comply with any law, or with any rules of any securities
exchange or usage, all as may be determined by the officers executing such
Securities as evidenced by their execution of the Securities. Unless
otherwise so established, Unregistered Securities shall have coupons attached.
SECTION 2.2 Execution and Authentication. Two Officers
shall execute the Securities (other than coupons) for the Company by facsimile
or manual signature in the name and on behalf of the Company. The seal of the
Company, if any, shall be reproduced on the Securities. If an Officer whose
signature is on a Security no longer holds that office at the time the
Security is authenticated, the Security shall nevertheless be valid.
The Trustee, at the expense of the Company, may appoint an
authenticating agent (the "Authenticating Agent") to authenticate Securities
(other than coupons). The Authenticating Agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such Authenticating
Agent.
A Security (other than coupons) shall not be valid until the
Trustee or Authenticating Agent manually signs the certificate of
authentication on the Security. The signature shall be conclusive evidence
that the Security has been authenticated under this Indenture.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
having attached thereto appropriate coupons, if any, executed by the Company
to the Trustee for authentication together with the applicable documents
referred to below in this Section, and the Trustee shall thereupon
authenticate and deliver such Securities to or upon the written order of the
Company. In authenticating any Securities of a series, the Trustee shall be
entitled to receive prior to the first authentication of any Securities of
such series, and (subject to Article 7) shall be fully protected in relying
upon, unless and until such documents have been superseded or revoked:
(1) any Board Resolution and/or executed supplemental
indenture referred to in Sections 2.1 and 2.3 by or pursuant to which
the forms and terms of the Securities of that series were established;
(2) an Officers' Certificate setting forth the form or forms
and terms of the Securities, stating that the form or forms and terms
of the Securities of such series have been, or will be when
established in accordance with such procedures as shall be referred
to therein, established in compliance with this Indenture; and
(3) an Opinion of Counsel substantially to the effect that the
form or forms and terms of the Securities of such series have been,
or will be when established in accordance with such procedures as
shall be referred to therein, established in compliance with this
Indenture and that the supplemental indenture, to the extent
applicable, and Securities have been duly authorized and, if executed
and authenticated in accordance with the provisions of the Indenture
and delivered to and duly paid for by the purchasers thereof on the
date of such opinion, would be entitled to the benefits of the
Indenture and would be valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective
terms, subject to bankruptcy, insolvency, reorganization,
receivership, moratorium and other similar laws affecting creditors'
rights generally, general principles of equity, and such other
matters as shall be specified therein.
If the Company shall establish pursuant to Section 2.3 that the
Securities of a series or a portion thereof are to be issued in the form of
one or more Registered Global Securities, then the Company shall execute and
the Trustee shall authenticate and deliver one or more Registered Global
Securities that (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of all of the Securities of such
series issued in such form and not yet cancelled, (ii) shall be registered in
the name of the Depositary for such Registered Global Security or Securities
or the nominee of such Depositary, (iii) shall be delivered by the Trustee to
such Depositary or its custodian or pursuant to such Depositary's instructions
and (iv) shall bear a legend substantially to the following effect: "Unless
and until it is exchanged in whole or in part for Securities in definitive
registered form, this Security may not be transferred except as a whole by the
Depositary to the nominee of the Depositary or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary or by the Depositary or
any such nominee to a successor Depositary or a nominee of such successor
Depositary."
SECTION 2.3 Amount Unlimited; Issuable in Series. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series and shall be
subordinated to the Senior Debt pursuant to the provisions of Article 11
hereof. There shall be established in or pursuant to Board Resolution or one
or more indentures supplemental hereto, prior to the initial issuance of
Securities of any series, subject to the last sentence of this Section 2.3,
(1) the designation of the Securities of the series, which
shall distinguish the Securities of the series from the Securities of
all other series;
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered
under this Indenture and any limitation on the ability of the Company
to increase such aggregate principal amount after the initial
issuance of the Securities of that series (except for Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, or upon redemption of, other Securities
of the series pursuant hereto);
(3) the date or dates on which the principal of the Securities
of the series is payable (which date or dates may be fixed or
extendable);
(4) the rate or rates (which may be fixed or variable) per
annum at which the Securities of the series shall bear interest, if
any, the date or dates from which such interest shall accrue, on
which such interest shall be payable and (in the case of Registered
Securities) on which a record shall be taken for the determination of
Holders to whom interest is payable and/or the method by which such
rate or rates or date or dates shall be determined;
(5) if other than as provided in Section 4.2, the place or
places where the principal of and any interest on Securities of the
series shall be payable, any Registered Securities of the series may
be surrendered for exchange, notices, demands to or upon the Company
in respect of the Securities of the series and this Indenture may be
served and notice to Holders may be published;
(6) the right, if any, of the Company to redeem Securities of
the series, in whole or in part, at its option and the period or
periods within which, the price or prices at which and any terms and
conditions upon which Securities of the series may be so redeemed,
pursuant to any sinking fund or otherwise;
(7) the obligation, if any, of the Company to redeem, purchase
or repay Securities of the series pursuant to any mandatory
redemption, sinking fund or analogous provisions or at the option of
a Holder thereof and the price or prices at which and the period or
periods within which and any of the terms and conditions upon which
Securities of the series shall be redeemed, purchased or repaid, in
whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(9) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the maturity thereof;
(10) if other than the coin or currency in which the Securities
of the series are denominated, the coin or currency in which payment
of the principal of or interest on the Securities of the series shall
be payable or if the amount of payments of Principal of and/or
interest on the Securities of the series may be determined with
reference to an index based on a coin or currency other than that in
which the Securities of the series are denominated, the manner in
which such amounts shall be determined;
(11) if other than the currency of the United States of
America, the currency or currencies, including composite currencies,
in which payment of the Principal of and interest on the Securities
of the series shall be payable, and the manner in which any such
currencies shall be valued against other currencies in which any
other Securities shall be payable;
(12) whether the Securities of the series or any portion thereof
will be issuable as Registered Securities (and if so, whether such
Securities will be issuable as Registered Global Securities) or
Unregistered Securities (with or without coupons), or any combination
of the foregoing, any restrictions applicable to the offer, sale or
delivery of Unregistered Securities or the payment of interest
thereon and, if other than as provided herein, the terms upon which
Unregistered Securities of any series may be exchanged for Registered
Securities of such series and vice versa;
(13) whether and under what circumstances the Company will pay
additional amounts on the Securities of the series held by a person
who is not a U.S. person in respect of any tax, assessment or
governmental charge withheld or deducted and, if so, whether the
Company will have the option to redeem such Securities rather than
pay such additional amounts;
(14) if the Securities of the series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
the form and terms of such certificates, documents or conditions;
(15) any trustees, depositaries, authenticating or paying
agents, transfer agents or the registrar or any other agents with
respect to the Securities of the series;
(16) provisions, if any, for the defeasance of the Securities of
the series (including provisions permitting defeasance of less than
all Securities of the series), which provisions may be in addition
to, in substitution for, or in modification of (or any combination of
the foregoing) the provisions of Article 8;
(17) if the Securities of the series are issuable in whole or in
part as one or more Registered Global Securities, the identity of the
Depositary for such Registered Global Security or Securities;
(18) any other events of default or covenants with respect to
the Securities of the series; and
(19) any other terms of the Securities of the series (which
terms shall not be inconsistent with the provisions of this
Indenture).
All Securities of any one series and coupons, if any,
appertaining thereto shall be substantially identical, except in the case of
Registered Securities as to date and denomination, except in the case of any
Periodic Offering and except as may otherwise be provided by or pursuant to
the Board Resolution referred to above or as set forth in any such indenture
supplemental hereto. All Securities of any one series need not be issued at
the same time and may be issued from time to time, consistent with the terms of
this Indenture, if so provided by or pursuant to such Board Resolution or in
any such indenture supplemental hereto and any forms and terms of Securities
to be issued from time to time may be completed and established from time to
time prior to the issuance thereof by procedures described in such Board
Resolution or supplemental indenture.
SECTION 2.4 Denomination and Date of Securities; Payments
of Interest. The Securities of each series shall be issuable as Registered
Securities or Unregistered Securities in denominations established as
contemplated by Section 2.3 or, if not so established with respect to
Securities of any series, in denominations of $1,000 and any integral multiple
thereof. The Securities of each series shall be numbered, lettered or
otherwise distinguished in such manner or in accordance with such plan as the
Officers of the Company executing the same may determine, as evidenced by
their execution thereof.
Each Security shall be dated the date of its authentication.
The Securities of each series shall bear interest, if any, from the date, and
such interest and shall be payable on the dates, established as
contemplated by Section 2.3.
The person in whose name any Registered Security of any series
is registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest payment
date, except if and to the extent the Company shall default in the payment of
the interest due on such interest payment date for such series, in which case
the provisions of Section 2.13 shall apply. The term "record date" as used
with respect to any interest payment date (except a date for payment of
defaulted interest) for the Securities of any series shall mean the date
specified as such in the terms of the Registered Securities of such series
established as contemplated by Section 2.3, or, if no such date is so
established, the fifteenth day next preceding such interest payment date,
whether or not such record date is a Business Day.
SECTION 2.5 Registrar and Paying Agent; Agents Generally.
The Company shall maintain an office or agency where Securities may be
presented for registration, registration of transfer or for exchange (the
"Registrar") and an office or agency where Securities may be presented for
payment (the "Paying Agent"), which shall be in the Borough of Manhattan, The
City of New York. The Company shall cause the Registrar to keep a register of
the Registered Securities and of their registration, transfer and exchange
(the "Security Register"). The Company may have one or more additional
Paying Agents or transfer agents with respect to any series.
The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture. The agreement shall implement
the provisions of this Indenture and the Trust Indenture Act that relate to
such Agent. The Company shall give prompt written notice to the Trustee of
the name and address of any Agent and any change in the name or address of an
Agent. If the Company fails to maintain a Registrar or Paying Agent, the
Trustee shall act as such. The Company may remove any Agent upon written
notice to such Agent and the Trustee; provided that no such removal shall
become effective until (i) the acceptance of an appointment by a successor
Agent to such Agent as evidenced by an appropriate agency agreement entered
into by the Company and such successor Agent and delivered to the Trustee or
(ii) notification to the Trustee that the Trustee shall serve as such Agent
until the appointment of a successor Agent in accordance with clause (i) of
this proviso. The Company or any affiliate of the Company may act as Paying
Agent or Registrar; provided that neither the Company nor an affiliate of the
Company shall act as Paying Agent in connection with the defeasance of the
Securities or the discharge of this Indenture under Article 8.
The Company initially appoints the Trustee as Registrar, Paying
Agent and Authenticating Agent. If, at any time, the Trustee is not the
Registrar, the Registrar shall make available to the Trustee ten days prior to
each interest payment date and at such other times as the Trustee may
reasonably request the names and addresses of the Holders as they appear in
the Security Register.
SECTION 2.6 Paying Agent to Hold Money in Trust. Not
later than 10:00 a.m. New York City time on each due date of any Principal or
interest on any Securities, the Company shall deposit with the Paying Agent
money in immediately available funds sufficient to pay such Principal or
interest. The Company shall require each Paying Agent other than the Trustee
to agree in writing that such Paying Agent shall hold in trust for the benefit
of the Holders of such Securities or the Trustee all money held by the Paying
Agent for the payment of Principal of and interest on such Securities and
shall promptly notify the Trustee of any default by the Company in making any
such payment. The Company at any time may require a Paying Agent to pay all
money held by it to the Trustee and account for any funds disbursed, and the
Trustee may at any time during the continuance of any payment default, upon
written request to a Paying Agent, require such Paying Agent to pay all money
held by it to the Trustee and to account for any funds disbursed. Upon doing
so, the Paying Agent shall have no further liability for the money so paid
over to the Trustee. If the Company or any affiliate of the Company acts as
Paying Agent, it will, on or before each due date of any Principal of or
interest on any Securities, segregate and hold in a separate trust fund for
the benefit of the Holders thereof a sum of money sufficient to pay such
Principal or interest so becoming due until such sum of money shall be paid to
such Holders or otherwise disposed of as provided in this Indenture, and will
promptly notify the Trustee in writing of any failure to act as
required by this Section.
SECTION 2.7 Transfer and Exchange. Unregistered
Securities (except for any temporary global Unregistered Securities) and
coupons (except for coupons attached to any temporary global Unregistered
Securities) shall be transferable by delivery.
At the option of the Holder thereof, Registered Securities of
any series (other than a Registered Global Security, except as set forth
below) may be exchanged for a Registered Security or Registered Securities of
such series and tenor having authorized denominations and an equal aggregate
principal amount, upon surrender of such Registered Securities to be exchanged
at the agency of the Company that shall be maintained for such purpose in
accordance with Section 2.5 and upon payment, if the Company shall so require,
of the charges hereinafter provided. If the Securities of any series are
issued in both registered and unregistered form, except as otherwise
established pursuant to Section 2.3, at the option of the Holder thereof,
Unregistered Securities of any series may be exchanged for Registered
Securities of such series and tenor having authorized denominations and an
equal aggregate principal amount, upon surrender of such Unregistered
Securities to be exchanged at the agency of the Company that shall be
maintained for such purpose in accordance with Section 4.2, with, in the case
of Unregistered Securities that have coupons attached, all unmatured coupons
and all matured coupons in default thereto appertaining, and upon payment, if
the Company shall so require, of the charges hereinafter provided. At the
option of the Holder thereof, if Unregistered Securities of any series,
maturity date, interest rate and original issue date are issued in more than
one authorized denomination, except as otherwise established pursuant to
Section 2.3, such Unregistered Securities may be exchanged for Unregistered
Securities of such series and tenor having authorized denominations and an
equal aggregate principal amount, upon surrender of such Unregistered
Securities to be exchanged at the agency of the Company that shall be
maintained for such purpose in accordance with Section 4.2, with, in the case
of Unregistered Securities that have coupons attached, all unmatured coupons
and all matured coupons in default thereto appertaining, and upon payment, if
the Company shall so require, of the charges hereinafter provided. Registered
Securities of any series may not be exchanged for Unregistered Securities of
such series. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Registered Securities presented for registration of
transfer, exchange, redemption or payment shall be duly endorsed by, or be
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company and the Trustee duly executed by, the holder or
his attorney duly authorized in writing.
The Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with
any exchange or registration of transfer of Securities. No service charge
shall be made for any such transaction.
Notwithstanding any other provision of this Section 2.7, unless
and until it is exchanged in whole or in part for Securities in definitive
registered form, a Registered Global Security representing all or a portion of
the Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series
or a nominee of such successor Depositary.
If at any time the Depositary for any Registered Global
Securities of any series notifies the Company that it is unwilling or unable
to continue as Depositary for such Registered Global Securities or if at any
time the Depositary for such Registered Global Securities shall no longer be
eligible under applicable law, the Company shall appoint a successor
Depositary eligible under applicable law with respect to such Registered
Global Securities. If a successor Depositary eligible under applicable law
for such Registered Global Securities is not appointed by the Company within
90 days after the Company receives such notice or becomes aware of such
ineligibility, the Company will execute, and the Trustee, upon receipt of the
Company's order for the authentication and delivery of definitive Registered
Securities of such series and tenor, will authenticate and deliver Registered
Securities of such series and tenor, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of such Registered
Global Securities, in exchange for such Registered Global Securities.
The Company may at any time and in its sole discretion
determine that any Registered Global Securities of any series shall no longer
be maintained in global form. In such event the Company will execute, and the
Trustee, upon receipt of the Company's order for the authentication and
delivery of definitive Registered Securities of such series and tenor, will
authenticate and deliver, Registered Securities of such series and tenor in
any authorized denominations, in an aggregate principal amount equal to the
principal amount of such Registered Global Securities, in exchange for such
Registered Global Securities.
Any time the Registered Securities of any series are not in the
form of Registered Global Securities pursuant to the preceding two paragraphs,
the Company agrees to supply the Trustee with a reasonable supply of
certificated Registered Securities without the legend required by Section 2.2
and the Trustee agrees to hold such Registered Securities in safekeeping until
authenticated and delivered pursuant to the terms of this Indenture.
If established by the Company pursuant to Section 2.3 with
respect to any Registered Global Security, the Depositary for such Registered
Global Security may surrender such Registered Global Security in exchange in
whole or in part for Registered Securities of the same series and tenor in
definitive registered form on such terms as are acceptable to the Company and
such Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary new Registered
Securities of the same series and tenor, of any authorized
denominations as requested by such Person, in an aggregate principal
amount equal to and in exchange for such Person's beneficial interest
in the Registered Global Security; and
(ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Registered Global Security and the
aggregate principal amount of Registered Securities authenticated and
delivered pursuant to clause (i) above.
Registered Securities issued in exchange for a Registered
Global Security pursuant to this Section 2.7 shall be registered in such names
and in such authorized denominations as the Depositary for such Registered
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee or an agent of the
Company or the Trustee. The Trustee or such agent shall deliver such
Securities to or as directed by the Persons in whose names such Securities are
so registered.
All Securities issued upon any transfer or exchange of
Securities shall be valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the forms or terms of any
Securities to the contrary, none of the Company, the Trustee or any agent of
the Company or the Trustee shall be required to exchange any Unregistered
Security for a Registered Security if such exchange would result in adverse
Federal income tax consequences to the Company (such as, for example, the
inability of the Company to deduct from its income, as computed for Federal
income tax purposes, the interest payable on the Unregistered Securities)
under then applicable United States Federal income tax laws. The Trustee and
any such agent shall be entitled to rely on an Officers' Certificate or an
Opinion of Counsel in determining such result.
The Registrar shall not be required (i) to issue, authenticate,
register the transfer of or exchange Securities of any series for a period of
15 days before a selection of such Securities to be redeemed or (ii) to
register the transfer of or exchange any Security selected for redemption in
whole or in part.
SECTION 2.8 Replacement Securities. If a defaced or
mutilated Security of any series is surrendered to the Trustee or if a Holder
claims that its Security of any series has been lost, destroyed or wrongfully
taken, the Company shall issue and the Trustee shall authenticate a
replacement Security of such series and tenor and principal amount bearing a
number not contemporaneously outstanding. If required by the Trustee or the
Company, an indemnity bond must be furnished that is sufficient in the
judgment of both the Trustee and the Company to protect the Company, the
Trustee and any Agent from any loss that any of them may suffer if a Security
is replaced. The Company may charge such Holder for its expenses and the
expenses of the Trustee (including without limitation attorneys' fees and
expenses) in replacing a Security. In case any such mutilated, defaced, lost,
destroyed or wrongfully taken Security has become or is about to become due
and payable, the Company in its discretion may pay such Security instead of
issuing a new Security in replacement thereof.
Every replacement Security is an additional obligation of the
Company and shall be entitled to the benefits of this Indenture.
To the extent permitted by law, the foregoing provisions of
this Section are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or wrongfully taken Securities.
SECTION 2.9 Outstanding Securities. Securities
outstanding at any time are all Securities that have been authenticated by the
Trustee except for those cancelled by it, those delivered to it for
cancellation and those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.8, it ceases to
be outstanding unless and until the Trustee and the Company receive proof
satisfactory to them that the replaced Security is held by a holder in due
course.
If the Paying Agent (other than the Company or an affiliate of
the Company) holds on the maturity date or any redemption date or date for
repurchase of the Securities money sufficient to pay Securities payable or to
be redeemed or repurchased on that date, then on and after that date such
Securities cease to be outstanding and interest on them shall cease to accrue.
A Security does not cease to be outstanding because the Company
or one of its affiliates holds such Security, provided, however, that, in
determining whether the Holders of the requisite principal amount of the
outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Securities owned by the
Company or any affiliate of the Company shall be disregarded and deemed not to
be outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities as to which a Responsible Officer
of the Trustee has received written notice to be so owned shall be so
disregarded. Any Securities so owned which are pledged by the Company, or by
any affiliate of the Company, as security for loans or other obligations,
otherwise than to another such affiliate of the Company, shall be deemed to be
outstanding, if the pledgee is entitled pursuant to the terms of its pledge
agreement and is free to exercise in its or his discretion the right to vote
such securities, uncontrolled by the Company or by any such affiliate.
SECTION 2.10 Temporary Securities. Until definitive
Securities of any series are ready for delivery, the Company may prepare and
the Trustee shall authenticate temporary Securities of such series. Temporary
Securities of any series shall be substantially in the form of definitive
Securities of such series but may have insertions, substitutions, omissions
and other variations determined to be appropriate by the Officers executing
the temporary Securities, as evidenced by their execution of such temporary
Securities. If temporary Securities of any series are issued, the Company
will cause definitive Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Securities of any
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series and tenor upon surrender of such
temporary Securities at the office or agency of the Company designated for
such purpose pursuant to Section 4.2, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any
series the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive
Securities of such series and tenor and authorized denominations. Until so
exchanged, the temporary Securities of any series shall be entitled to the
same benefits under this Indenture as definitive Securities of such series.
SECTION 2.11 Cancellation. The Company at any time may
deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in
any manner whatsoever, and may deliver to the Trustee for cancellation any
Securities previously authenticated hereunder which the Company has not issued
and sold. The Registrar, any transfer agent and the Paying Agent shall
forward to the Trustee any Securities surrendered to them for transfer,
exchange or payment. The Trustee shall cancel and destroy all Securities
surrendered for transfer, exchange, payment or cancellation and shall deliver
a certificate of destruction to the Company. The Company may not issue new
Securities to replace Securities it has paid in full or delivered to the
Trustee for cancellation.
SECTION 2.12 CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" and "CINS" numbers (if then generally in use), and
the Trustee shall use CUSIP numbers or CINS numbers, as the case may be, in
notices of redemption or exchange as a convenience to Holders and no
representation shall be made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of redemption or
exchange.
SECTION 2.13 Defaulted Interest. If the Company
defaults in a payment of interest on the Securities, it shall pay, or shall
deposit with the Paying Agent money in immediately available funds sufficient
to pay, the defaulted interest plus (to the extent lawful) any interest
payable on the defaulted interest (as may be specified in the terms thereof,
established pursuant to Section 2.3) to the Persons who are Holders on a
subsequent special record date, which shall mean the 15th day next preceding
the date fixed by the Company for the payment of defaulted interest, whether
or not such day is a Business Day. At least 15 days before such special
record date, the Company shall mail to each Holder and to the Trustee a notice
that states the special record date, the payment date and the amount of
defaulted interest to be paid.
SECTION 2.14 Series May Include Tranches. A series of
Securities may include one or more tranches (each a "tranche") of Securities,
including Securities issued in a Periodic Offering. The Securities of
different tranches may have one or more different terms, including
authentication dates and public offering prices, but all the Securities within
each such tranche shall have identical terms, including authentication date
and public offering price. Notwithstanding any other provision of this
Indenture, with respect to Sections 2.2 (other than the fourth paragraph
thereof) through 2.4, 2.7, 2.8, 2.10, 3.1 through 3.5, 4.2, 6.1 through 6.14,
8.1 through 8.7 and 9.2, if any series of Securities includes more than one
tranche, all provisions of such sections applicable to any series of
Securities shall be deemed equally applicable to each tranche of any series
of Securities in the same manner as though originally designated a series
unless otherwise provided with respect to such series or tranche pursuant to
Section 2.3. In particular, and without limiting the scope of the next
preceding sentence, any of the provisions of such sections which provide for
or permit action to be taken with respect to a series of Securities shall also
be deemed to provide for and permit such action to be taken instead only with
respect to Securities of one or more tranches within that series (and such
provisions shall be deemed satisfied thereby), even if no comparable action is
taken with respect to Securities in the remaining tranches of that series.
ARTICLE 3
REDEMPTION
SECTION 3.1 Applicability of Article. The provisions of
this Article shall be applicable to the Securities of any series which are
redeemable before their maturity or to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by
Section 2.3 for Securities of such series.
SECTION 3.2 Notice of Redemption; Partial Redemptions.
Notice of redemption to the Holders of Registered Securities of any series to
be redeemed as a whole or in part at the option of the Company shall be given
by mailing notice of such redemption by first class mail, postage prepaid, at
least 30 days and not more than 60 days prior to the date fixed for redemption
to such Holders of Registered Securities of such series at their last
addresses as they shall appear upon the registry books. Notice of
redemption to the Holders of Unregistered Securities of any series to be
redeemed as a whole or in part who have filed their names and addresses
with the Trustee pursuant to Section 313(c)(2) of the Trust Indenture Act,
shall be given by mailing notice of such redemption, by first class mail,
postage prepaid, at least 30 days and not more than 60 days prior to the
date fixed for redemption, to such Holders at such addresses as were so
furnished to the Trustee (and, in the case of any such notice given by the
Company, the Trustee shall make such information available to the Company
for such purpose). Notice of redemption to all other Holders of
Unregistered Securities of any series to be redeemed as a whole or in part
shall be published in an Authorized Newspaper in The City of New York or
with respect to any Security the interest on which is based on the offered
quotations in the interbank Eurodollar market for dollar deposits in an
Authorized Newspaper in London, in each case, once in each of three
successive calendar weeks, the first publication to be not less than 30
days nor more than 60 days prior to the date fixed for redemption. Any
notice which is mailed or published in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
receives the notice. Failure to give notice by mail, or any defect in the
notice to the Holder of any Security of a series designated for redemption
as a whole or in part shall not affect the validity of the proceedings for
the redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the CUSIP numbers of the Securities to be redeemed, the date fixed
for redemption, the redemption price, the place or places of payment, that
payment will be made upon presentation and surrender of such Securities and,
in the case of Securities with coupons attached thereto, of all coupons
appertaining thereto maturing after the date fixed for redemption, that such
redemption is pursuant to the mandatory or optional sinking fund, or both, if
such be the case, that interest accrued to the date fixed for redemption will
be paid as specified in such notice and that on and after said date interest
thereon or on the portions thereof to be redeemed will cease to accrue. In
case any Security of a series is to be redeemed in part only, the notice of
redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for redemption, upon
surrender of such Security, a new Security or Securities of such series and
tenor in principal amount equal to the unredeemed portion thereof will be
issued.
The notice of redemption of Securities of any series to be
redeemed at the option of the Company shall be given by the Company or, at the
Company's request, by the Trustee in the name and at the expense of the
Company.
On or before 10:00 a.m. New York City time on the redemption
date specified in the notice of redemption given as provided in this Section,
the Company will deposit with the Trustee or with one or more Paying Agents
(or, if the Company is acting as its own Paying Agent, set aside, segregate
and hold in trust as provided in Section 2.6) an amount of money sufficient to
redeem on the redemption date all the Securities of such series so called for
redemption at the appropriate redemption price, together with accrued interest
to the date fixed for redemption. If all of the outstanding Securities of a
series are to be redeemed, the Company will deliver to the Trustee at least 10
days prior to the last date on which notice of redemption may be given to
Holders pursuant to the first paragraph of this Section 3.2 (or such shorter
period as shall be acceptable to the Trustee) an Officers' Certificate stating
that all such Securities are to be redeemed. If less than all the outstanding
Securities of a series are to be redeemed, the Company will deliver to the
Trustee at least 15 days prior to the last date on which notice of redemption
may be given to Holders pursuant to the first paragraph of this Section 3.2
(or such shorter period as shall be acceptable to the Trustee) an Officers'
Certificate stating the aggregate principal amount of such Securities to be
redeemed. In case of a redemption at the election of the Company prior to the
expiration of any restriction on such redemption, the Company shall deliver to
the Trustee, prior to the giving of any notice of redemption to Holders
pursuant to this Section, an Officers' Certificate stating that such
redemption is not prohibited by such restriction.
If less than all the Securities of a series are to be redeemed,
the Trustee shall select, pro rata, by lot or in such manner as it shall deem
appropriate and fair, Securities of such series to be redeemed in whole or in
part. Securities may be redeemed in part in multiples equal to the minimum
authorized denomination for Securities of such series or any multiple thereof.
The Trustee shall promptly notify the Company in writing of the Securities of
such series selected for redemption and, in the case of any Securities of such
series selected for partial redemption, the principal amount thereof to be
redeemed. For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part,
to the portion of the principal amount of such Security which has been or is
to be redeemed.
SECTION 3.3 Payment of Securities Called for Redemption.
If notice of redemption has been given as above provided, the Securities or
portions of Securities specified in such notice shall become due and payable
on the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for
redemption, and on and after such date (unless the Company shall default in
the payment of such Securities at the redemption price, together with interest
accrued to such date) interest on the Securities or portions of Securities so
called for redemption shall cease to accrue, and the unmatured coupons, if
any, appertaining thereto shall be void and, except as provided in Sections
7.11 and 8.2, such Securities shall cease from and after the date fixed for
redemption to be entitled to any benefit under this Indenture, and the Holders
thereof shall have no right in respect of such Securities except the right to
receive the redemption price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Securities at a place of
payment specified in said notice, together with all coupons, if any,
appertaining thereto maturing after the date fixed for redemption, said
Securities or the specified portions thereof shall be paid and redeemed by the
Company at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided that payment of interest
becoming due on or prior to the date fixed for redemption shall be payable in
the case of Securities with coupons attached thereto, to the Holders of the
coupons for such interest upon surrender thereof, and in the case of
Registered Securities, to the Holders of such Registered Securities registered
as such on the relevant record date subject to the terms and provisions of
Sections 2.4 and 2.13 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
If any Security with coupons attached thereto is surrendered
for redemption and is not accompanied by all appurtenant coupons maturing
after the date fixed for redemption, the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee, if there be furnished to
each of them such security or indemnity as they may require to save and hold
each of them harmless.
Upon presentation of any Security of any series redeemed in
part only, the Company shall execute and the Trustee shall authenticate and
deliver to or on the order of the Holder thereof, at the expense of the
Company, a new Security or Securities of such series and tenor (with any
unmatured coupons attached), of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
SECTION 3.4 Exclusion of Certain Securities from
Eligibility for Selection for Redemption. Securities shall be excluded from
eligibility for selection for redemption if they are identified by
registration and certificate number in a written statement signed by an
authorized Officer of the Company and delivered to the Trustee at least 40
days prior to the last date on which notice of redemption may be given as
being owned of record and beneficially by, and not pledged or hypothecated by,
either (a) the Company or (b) an entity specifically identified in such
written statement as directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company.
SECTION 3.5 Mandatory and Optional Sinking Funds. The
minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of the Securities of any series is herein referred to as an "optional
sinking fund payment". The date on which a sinking fund payment is to be made
is herein referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Company may at
its option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except through a mandatory sinking fund
payment) by the Company or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Company and delivered to the Trustee for cancellation
pursuant to Section 2.11, (b) receive credit for optional sinking fund
payments (not previously so credited) made pursuant to this Section, or (c)
receive credit for Securities of such series (not previously so credited)
redeemed by the Company through any optional sinking fund payment. Securities
so delivered or credited shall be received or credited by the Trustee at the
sinking fund redemption price specified in such Securities.
On or before the sixtieth day next preceding each sinking fund
payment date for any series, or such shorter period as shall be acceptable to
the Trustee, the Company will deliver to the Trustee an Officers' Certificate
(a) specifying the portion of the mandatory sinking fund payment to be
satisfied by payment of cash and the portion to be satisfied by credit of
specified Securities of such series and the basis for such credit, (b) stating
that none of the specified Securities of such series has theretofore been so
credited, (c) stating that no defaults in the payment of interest or Events of
Default with respect to such series have occurred (which have not been waived
or cured) and are continuing and (d) stating whether or not the Company
intends to exercise its right to make an optional sinking fund payment with
respect to such series and, if so, specifying the amount of such optional
sinking fund payment which the Company intends to pay on or before the next
succeeding sinking fund payment date. Any Securities of such series to be
credited and required to be delivered to the Trustee in order for the Company
to be entitled to credit therefor as aforesaid which have not theretofore been
delivered to the Trustee shall be delivered for cancellation pursuant to
Section 2.11 to the Trustee with such Officers' Certificate (or reasonably
promptly thereafter if acceptable to the Trustee). Such Officers' Certificate
shall be irrevocable and upon its receipt by the Trustee the Company shall
become unconditionally obligated to make all the cash payments or delivery of
securities therein referred to, if any, on or before the next succeeding
sinking fund payment date. Failure of the Company, on or before any such
sixtieth day, to deliver such Officer's Certificate and Securities specified
in this paragraph, if any, shall not constitute a default but shall
constitute, on and as of such date, the irrevocable election of the Company
(i) that the mandatory sinking fund payment for such series due on the next
succeeding sinking fund payment date shall be paid entirely in cash without
the option to deliver or credit Securities of such series in respect thereof
and (ii) that the Company will make no optional sinking fund payment with
respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional
or both) to be made in cash on the next succeeding sinking fund payment date
plus any unused balance of any preceding sinking fund payments made in cash
shall exceed $50,000 (or a lesser sum if the Company shall so request with
respect to the Securities of any series), such cash shall be applied on the
next succeeding sinking fund payment date to the redemption of Securities of
such series at the sinking fund redemption price thereof together with accrued
interest thereon to the date fixed for redemption. If such amount shall be
$50,000 (or such lesser sum) or less and the Company makes no such request
then it shall be carried over until a sum in excess of $50,000 (or such lesser
sum) is available. The Trustee shall select, in the manner provided in
Section 3.2, for redemption on such sinking fund payment date a sufficient
principal amount of Securities of such series to absorb said cash, as
nearly as may be, and shall (if requested in writing by the Company) inform
the Company of the serial numbers of the Securities of such series (or
portions thereof) so selected. Securities shall be excluded from
eligibility for redemption under this Section if they are identified by
registration and certificate number in an Officers' Certificate delivered
to the Trustee at least 60 days prior to the sinking fund payment date as
being owned of record and beneficially by, and not pledged or hypothecated
by, either (a) the Company or (b) an entity specifically identified in such
Officers' Certificate as directly or indirectly controlling or controlled
by or under direct or indirect common control with the Company. The
Trustee, in the name and at the expense of the Company (or the Company, if
it shall so request the Trustee in writing) shall cause notice of
redemption of the Securities of such series to be given in substantially
the manner provided in Section 3.2 (and with the effect provided in Section
3.3) for the redemption of Securities of such series in part at the option
of the Company. The amount of any sinking fund payments not so applied or
allocated to the redemption of Securities of such series shall be added to
the next cash sinking fund payment for such series and, together with such
payment, shall be applied in accordance with the provisions of this
Section. Any and all sinking fund moneys held on the stated maturity date
of the Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of
particular Securities of such series shall be applied, together with other
moneys, if necessary, sufficient for the purpose, to the payment of the
Principal of, and interest on, the Securities of such series at maturity.
On or before 10:00 a.m. New York City time on each sinking fund
payment date, the Company shall pay to the Trustee in cash or shall otherwise
provide for the payment of all interest accrued to the date fixed for
redemption on Securities to be redeemed on the next following sinking fund
payment date.
The Trustee shall not redeem or cause to be redeemed any
Securities of a series with sinking fund moneys or mail any notice of
redemption of Securities of such series by operation of the sinking fund
during the continuance of a Default in payment of interest on such Securities
or of any Event of Default except that, where the mailing of notice of
redemption of any Securities shall theretofore have been made, the Trustee
shall redeem or cause to be redeemed such Securities, provided that it shall
have received from the Company a sum sufficient for such redemption. Except
as aforesaid, any moneys in the sinking fund for such series at the time when
any such Default or Event of Default shall occur, and any moneys thereafter
paid into the sinking fund, shall, during the continuance of such default or
Event of Default, be deemed to have been collected under Article 6 and held
for the payment of all such Securities. In case such Event of Default shall
have been waived as provided in Section 6.4 or the Default cured on or before
the sixtieth day preceding the sinking fund payment date in any year, such
moneys shall thereafter be applied on the next succeeding sinking fund payment
date in accordance with this Section to the redemption of such Securities.
ARTICLE 4
COVENANTS
SECTION 4.1 Payment of Securities. The Company shall pay
the Principal of and interest on the Securities on the dates and in the manner
provided in the Securities and this Indenture. The interest on Securities
with coupons attached (together with any additional amounts payable pursuant
to the terms of such Securities) shall be payable only upon presentation and
surrender of the several coupons for such interest installments as are
evidenced thereby as they severally mature. The interest on any temporary
Unregistered Securities (together with any additional amounts payable pursuant
to the terms of such Securities) shall be paid, as to the installments of
interest evidenced by coupons attached thereto, if any, only upon presentation
and surrender thereof, and, as to the other installments of interest, if any,
only upon presentation of such Unregistered Securities for notation thereon of
the payment of such interest. The interest on Registered Securities (together
with any additional amounts payable pursuant to the terms of such Securities)
shall be payable only to the Holders thereof and at the option of the Company
may be paid by mailing checks for such interest payable to or upon the written
order of such Holders at their last addresses as they appear on the Security
Register of the Company.
Notwithstanding any provisions of this Indenture and the
Securities of any series to the contrary, if the Company and a Holder of any
Registered Security so agree, payments of interest on, and any portion of the
Principal of, such Holder's Registered Security (other than interest payable
at maturity or on any redemption or repayment date or the final payment of
Principal on such Security) shall be made by the Paying Agent, upon receipt
from the Company of immediately available funds by 11:00 A.M., New York City
time (or such other time as may be agreed to between the Company and the
Paying Agent), directly to the Holder of such Security (by Federal funds wire
transfer or otherwise) if the Holder has delivered written instructions to the
Trustee 15 days prior to such payment date requesting that such payment will
be so made and designating the bank account to which such payments shall be so
made and in the case of payments of Principal, surrenders the same to the
Trustee in exchange for a Security or Securities aggregating the same
principal amount as the unredeemed principal amount of the Securities
surrendered. The Trustee shall be entitled to rely on the last instruction
delivered by the Holder pursuant to this Section 4.1 unless a new instruction
is delivered 15 days prior to a payment date. The Company will indemnify and
hold each of the Trustee and any Paying Agent harmless against any loss,
liability or expense (including attorneys' fees) resulting from any act or
omission to act on the part of the Company or any such Holder in connection
with any such agreement or from making any payment in accordance with any such
agreement.
The Company shall pay interest on overdue Principal, and
interest on overdue installments of interest, to the extent lawful, at the
rate per annum specified in the Securities.
SECTION 4.2 Maintenance of Office or Agency. The Company
will maintain in the Borough of Manhattan, The City of Chicago, Illinois, an
office or agency where Securities may be surrendered for registration of
transfer or exchange or for presentation for payment and where notices and
demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Company hereby initially designates the
Corporate Trust Services Division of the Trustee, located in the Borough of
Manhattan, The City of Chigago, Illinois as such office or agency of the
Company. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 10.2.
The Company will maintain one or more agencies in a city or
cities located outside the United States (including any city in which such an
agency is required to be maintained under the rules of any stock exchange on
which the Securities of any series are listed) where the Unregistered
Securities, if any, of each series and coupons, if any, appertaining thereto
may be presented for payment. No payment on any Unregistered Security or
coupon will be made upon presentation of such Unregistered Security or coupon
at an agency of the Company within the United States nor will any payment be
made by transfer to an account in, or by mail to an address in, the United
States unless, pursuant to applicable United States laws and regulations then
in effect, such payment can be made without adverse tax consequences to the
Company. Notwithstanding the foregoing, if full payment in United States
Dollars ("Dollars") at each agency maintained by the Company outside the
United States for payment on such Unregistered Securities or coupons
appertaining thereto is illegal or effectively precluded by exchange controls
or other similar restrictions, payments in Dollars of Unregistered Securities
of any series and coupons appertaining thereto which are payable in Dollars
may be made at an agency of the Company maintained in the City of Chicago,
Illinois.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of any series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or
agency in the City of Chicago, Illinois for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or
agency.
SECTION 4.3 Securityholders' Lists. The Company will
furnish or cause to be furnished to the Trustee a list in such form as the
Trustee may reasonably require of the names and addresses of the holders of
the Securities pursuant to Section 312 of the Trust Indenture Act of 1939 (a)
semi-annually not more than 15 days after each record date for the payment of
semi-annual interest on the Securities, as hereinabove specified, as of such
record date, and (b) at such other times as the Trustee may request in
writing, within thirty days after receipt by the Company of any such request
as of a date not more than 15 days prior to the time such information is
furnished.
SECTION 4.4 Certificate to Trustee. The Company will
furnish to the Trustee annually, on or before a date not more than four months
after the end of its fiscal year (which, on the date hereof, is a calendar
year), a brief certificate (which need not contain the statements required by
Section 10.4) from its principal executive, financial or accounting officer as
to his or her knowledge of the compliance of the Company with all conditions
and covenants under this Indenture (such compliance to be determined without
regard to any period of grace or requirement of notice provided under this
Indenture) which certificate shall comply with the requirements of the Trust
Indenture Act.
SECTION 4.5 Reports by the Company. The Company
covenants to file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents, and other reports which the Company may be
required to file with the Commission pursuant to Section 13 or Section 15(d)
of the Exchange Act.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.1 When Company May Merge, Etc. The Company
shall not consolidate with, merge with or into, or all or substantially all
of its property and assets (as an entirety or substantially as an entirety
in one transaction or a series of related transactions) to, any Person
(other than a consolidation with or merger with or into a Subsidiary or a
transfer to a Subsidiary) or permit any Person to merge with or into the
Company unless:
(i) either (x) the Company shall be the continuing Person or
(y) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or to which
properties and assets of the Issuer are transferred shall be a
corporation organized and validly existing under the laws of the
United States of America or any jurisdiction thereof and shall
expressly assume, by a supplemental indenture, executed and
delivered to the Trustee, all of the obligations of the Company on
all of the Securities and under this Indenture and the Company
shall have delivered to the Trustee (A) an Opinion of Counsel
stating that such consolidation, merger or transfer and such
supplemental indenture complies with this provision and that all
conditions precedent provided for herein relating to such
transaction have been complied with and that such supplemental
indenture constitutes the legal, valid and binding obligation of
the Company or such successor enforceable against such entity in
accordance with its terms, subject to customary exceptions and (B)
an Officers' Certificate to the effect that immediately after
giving effect to such transaction, no Default shall have occurred
and be continuing.
SECTION 5.2 Successor Substituted. Upon any consolidation
or merger, or any sale, conveyance, transfer, lease or other disposition of
all or substantially all of the property and assets of the Company in
accordance with Section 5.1 of this Indenture, the successor Person formed
by such consolidation or into which the Company is merged or to which
such sale, conveyance, transfer, lease or other disposition is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein.
ARTICLE 6
DEFAULT AND REMEDIES
SECTION 6.1 Events of Default. An "Event of Default"
shall occur with respect to the Securities of any series if:
(a) the Company defaults in the payment of the Principal of
any Security of such series when the same becomes due and payable at
maturity, upon acceleration, redemption or mandatory repurchase,
including as a sinking fund installment, or otherwise;
(b) the Company defaults in the payment of interest on any
Security of such series when the same becomes due and payable, and
such default continues for a period of 30 days;
(c) the Company defaults in the performance of or breaches any
other covenant or agreement of the Company in this Indenture with
respect to any Security of such series or in the Securities of such
series and such default or breach continues for a period of 30
consecutive days after written notice to the Company by the Trustee
or to the Company and the Trustee by the Holders of 25% or more in
aggregate principal amount of the Securities of all series affected
thereby;
(d) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Company in an
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Company or for any substantial part of its property
or ordering the winding up or liquidation of its affairs, and such
decree or order shall remain unstayed and in effect for a period of
60 consecutive days;
(e) the Company (A) commences a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consents to the entry of an order for relief
in an involuntary case under any such law, (B) consents to the
appointment of or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of the
Company or for all or substantially all of the property and assets of
the Company or (C) effects any general assignment for the benefit of
creditors; or
(f) any other Event of Default established pursuant to Section
2.3 with respect to the Securities of such series occurs.
SECTION 6.2 Acceleration. (a) If an Event of Default
described in clauses (a) or (b) of Section 6.1 with respect to the Securities
of any series then outstanding occurs and is continuing, then, and in each and
every such case, except for any series of Securities the principal of which
shall have already become due and payable, either the Trustee or the Holders
of not less than 25% in aggregate principal amount of the Securities of any
such affected series then outstanding hereunder (each such series treated as a
separate class) by notice in writing to the Company (and to the Trustee if
given by Securityholders), may declare the entire principal (or, if the
Securities of any such series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of such
series established pursuant to Section 2.3) of all Securities of such affected
series, and the interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become immediately
due and payable.
(b) If an Event of Default described in clauses (c) or (f) of
Section 6.1 with respect to the Securities of one or more but not all series
then outstanding, or with respect to the Securities of all series then
outstanding, occurs and is continuing, then, and in each and every such case,
except for any series of Securities the principal of which shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount (or, if the Securities of any such series are
Original Issue Discount Securities, the amount thereof accelerable under this
Section) of the Securities of all such affected series then outstanding
hereunder (treated as a single class) by notice in writing to the Company (and
to the Trustee if given by Securityholders), may declare the entire principal
(or, if the Securities of any such series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series established pursuant to Section 2.3) of all Securities of
all such affected series, and the interest accrued thereon, if any, to be due
and payable immediately, and upon any such declaration the same shall become
immediately due and payable.
(c) If an Event of Default described in clause (d) or (e) of
Section 6.1 occurs and is continuing, then the principal amount (or, if any
Securities are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms thereof established pursuant to
Section 2.3) of all the Securities then outstanding and interest accrued
thereon, if any, shall be and become immediately due and payable, subject to
the prior payment in full of all Senior Debt, without any notice or other
action by any Holder or the Trustee, to the full extent permitted by
applicable law.
The foregoing provisions, however, are subject to the condition
that if, at any time after the principal (or, if the Securities are Original
Issue Discount Securities, such portion of the principal as may be specified
in the terms thereof established pursuant to Section 2.3) of the Securities of
any series (or of all the Securities, as the case may be) shall have been so
declared due and payable, and before any judgment or decree for the payment of
the moneys due shall have been obtained or entered as hereinafter provided,
the Company shall pay or shall deposit with the Trustee a sum sufficient to
pay all matured installments of interest upon all the Securities of each such
series (or of all the Securities, as the case may be) and the principal of any
and all Securities of each such series (or of all the Securities, as the case
may be) which shall have become due otherwise than by acceleration (with
interest upon such principal and, to the extent that payment of such interest
is enforceable under applicable law, on overdue installments of interest, at
the same rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in the Securities of each such
series to the date of such payment or deposit) and such amount as shall be
sufficient to cover all amounts owing the Trustee under Section 7.7, and if
any and all Events of Default under the Indenture, other than the non-payment
of the principal of Securities which shall have become due by acceleration,
shall have been cured, waived or otherwise remedied as provided herein,
then and in every such case the Holders of a majority in aggregate
principal amount of all the then outstanding Securities of all such series
that have been accelerated (voting as a single class), by written notice to
the Company and to the Trustee, may waive all defaults with respect to all
such series (or with respect to all the Securities, as the case may be) and
rescind and annul such declaration and its consequences, but no such waiver
or rescission and annulment shall extend to or shall affect any subsequent
default or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been
accelerated and declared due and payable pursuant to the provisions hereof,
then, from and after such declaration, unless such declaration has been
rescinded and annulled, the principal amount of such Original Issue Discount
Securities shall be deemed, for all purposes hereunder, to be such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, and payment of such portion of the principal thereof as shall be
due and payable as a result of such acceleration, together with interest, if
any, thereon and all other amounts owing thereunder, shall constitute payment
in full of such Original Issue Discount Securities.
SECTION 6.3 Other Remedies. If a payment default or an
Event of Default with respect to the Securities of any series occurs and is
continuing, the Trustee may pursue, in its own name or as trustee of an
express trust, any available remedy by proceeding at law or in equity to
collect the payment of principal of and interest on the Securities of such
series or to enforce the performance of any provision of the Securities of
such series or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the
proceeding.
SECTION 6.4 Waiver of Past Defaults. Subject to Sections
6.2, 6.7 and 9.2, the Holders of at least a majority in principal amount (or,
if the Securities are Original Issue Discount Securities, such portion of the
principal as is then accelerable under Section 6.2) of the outstanding
Securities of all series affected (voting as a single class), by notice to the
Trustee, may waive an existing Default or Event of Default with respect to the
Securities of such series and its consequences, except a Default in the
payment of Principal of or interest on any Security as specified in clauses
(a) or (b) of Section 6.1 or in respect of a covenant or provision of this
Indenture which cannot be modified or amended without the consent of the
Holder of each outstanding Security affected. Upon any such waiver, such
Default shall cease to exist, and any Event of Default with respect to the
Securities of such series arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right
consequent thereto.
SECTION 6.5 Control by Majority. Subject to Sections 7.1
and 7.2(v), the Holders of at least a majority in aggregate principal amount
(or, if any Securities are Original Issue Discount Securities, such portion of
the principal as is then accelerable under Section 6.2) of the outstanding
Securities of all series affected (voting as a single class) may direct the
time, method and place of conducting any proceeding for any remedy available
to the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Securities of such series by this Indenture; provided, that the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture, that may involve the Trustee in personal liability or that the
Trustee determines in good faith may be unduly prejudicial to the rights of
Holders not joining in the giving of such direction; and provided further,
that the Trustee may take any other action it deems proper that is not
inconsistent with any directions received from Holders of Securities
pursuant to this Section 6.5.
SECTION 6.6 Limitation on Suits. No Holder of any
Security of any series may institute any proceeding, judicial or otherwise,
with respect to this Indenture or the Securities of such series, or for the
appointment of a receiver or trustee, or for any other remedy hereunder,
unless:
(i) such Holder has previously given to the Trustee written
notice of a continuing Event of Default with respect to the
Securities of such series;
(ii) the Holders of at least 25% in aggregate principal amount
of outstanding Securities of all such series affected shall have made
written request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee
indemnity reasonably satisfactory to the Trustee against any costs,
liabilities or expenses to be incurred in compliance with such
request;
(iv) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(v) during such 60-day period, the Holders of a majority in
aggregate principal amount of the outstanding Securities of all such
affected series have not given the Trustee a direction that is
inconsistent with such written request.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over such other Holder.
SECTION 6.7 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
of a Security to receive payment of Principal of or interest, if any, on such
Holder's Security on or after the respective due dates expressed on such
Security, or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent
of such Holder.
SECTION 6.8 Collection Suit by Trustee. If an Event of
Default with respect to the Securities of any series in payment of Principal
or interest specified in clause (a) or (b) of Section 6.1 occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company for the whole amount (or such portion
thereof as specified in the terms established pursuant to Section 2.3 of
Original Issue Discount Securities) of Principal of, and accrued interest
remaining unpaid on, together with interest on overdue Principal of, and, to
the extent that payment of such interest is lawful, interest on overdue
installments of interest on, the Securities of such series, in each case at
the rate or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in such Securities, and such further amount as shall be
sufficient to cover all amounts owing the Trustee under Section 7.7.
SECTION 6.9 Trustee May File Proofs of Claim. The
Trustee may file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including
any claim for amounts due the Trustee under Section 7.7) and the Holders
allowed in any judicial proceedings relative to the Company (or any other
obligor on the Securities), its creditors or its property and shall be
entitled and empowered to collect and receive any moneys, securities or other
property payable or deliverable upon conversion or exchange of the Securities
or upon any such claims and to distribute the same, and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Holder
to make such payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it under Section 7.7. Nothing herein contained
shall be deemed to empower the Trustee to authorize or consent to, or
accept or adopt on behalf of any Holder, any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the
rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 6.10 Application of Proceeds. Any moneys collected
by the Trustee pursuant to this Article in respect of the Securities
of any series shall be applied in the following order at the date or dates
fixed by the Trustee and, in case of the distribution of such moneys on
account of Principal or interest, upon presentation of the several Securities
and coupons appertaining to such Securities in respect of which moneys have
been collected and noting thereon the payment, or issuing Securities of such
series and tenor in reduced principal amounts in exchange for the presented
Securities of such series and tenor if only partially paid, or upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 7.7 applicable to the Securities of such series in respect of
which moneys have been collected;
SECOND: In case the principal of the Securities of such series
in respect of which moneys have been collected shall not have become
and be then due and payable, to the payment of interest on the
Securities of such series in default in the order of the maturity of
the installments of such interest, with interest (to the extent that
such interest has been collected by the Trustee) upon the overdue
installments of interest at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities)
specified in such Securities, such payments to be made ratably to the
persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such series
in respect of which moneys have been collected shall have become and
shall be then due and payable, to the payment of the whole amount
then owing and unpaid upon all the Securities of such series for
Principal and interest, with interest upon the overdue Principal, and
(to the extent that such interest has been collected by the Trustee)
upon overdue installments of interest at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such series; and in case
such moneys shall be insufficient to pay in full the whole amount so
due and unpaid upon the Securities of such series, then to the
payment of such Principal and interest or Yield to Maturity, without
preference or priority of Principal over interest or Yield to
Maturity, or of interest or Yield to Maturity over Principal, or of
any installment of interest over any other installment of interest,
or of any Security of such series over any other Security of such
series, ratably to the aggregate of such Principal and accrued and
unpaid interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the
Company or any other person lawfully entitled thereto.
SECTION 6.11 Restoration of Rights and Remedies. If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then, and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored to
their former positions hereunder and thereafter all rights and remedies of the
Company, Trustee and the Holders shall continue as though no such proceeding
had been instituted.
SECTION 6.12 Undertaking for Costs. In any suit
for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as Trustee, in
either case in respect to the Securities of any series, a court may require
any party litigant in such suit (other than the Trustee) to file an
undertaking to pay the costs of the suit, and the court may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant
(other than the Trustee) in the suit having due regard to the merits and
good faith of the claims or defenses made by the party litigant. This
Section 6.12 does not apply to a suit by a Holder pursuant to Section 6.7
or a suit by Holders of more than 10% in principal amount of the
outstanding Securities of such series.
SECTION 6.13 Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or wrongfully taken Securities in Section 2.8, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 6.14 Delay or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article 6 or by law to the Trustee or to
the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
ARTICLE 7
TRUSTEE
SECTION 7.1 General. The duties and responsibilities of
the Trustee shall be as provided by the Trust Indenture Act and as set forth
herein. Notwithstanding the foregoing, no provision of this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, unless it receives indemnity
satisfactory to it against any loss, liability or expense. Whether or not
therein expressly so provided, every provision of this Indenture relating to
the conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Article 7.
SECTION 7.2 Certain Rights of Trustee. Subject to Trust
Indenture Act Sections 315(a) through (d):
(i) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, Officers'
Certificate, Opinion of Counsel (or both), statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper person or persons. The Trustee need not
investigate any fact or matter stated in the document, but the
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit;
(ii) before the Trustee acts or refrains from acting, it may
require an Officers' Certificate and/or an Opinion of Counsel, which
shall conform to Section 10.4. The Trustee shall not be liable for
any action it takes or omits to take in good faith in reliance on
such certificate or opinion. Subject to Sections 7.1 and 7.2,
whenever in the administration of the trusts of this Indenture the
Trustee shall deem it necessary or desirable that a matter be proved
or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or
bad faith on the part of the Trustee, be deemed to be conclusively
proved and established by an Officers' Certificate delivered to the
Trustee, and such certificate, in the absence of negligence or bad
faith on the part of the Trustee, shall be full warrant to the
Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof;
(iii) the Trustee may act through its attorneys and agents not
regularly in its employ and shall not be responsible for the
misconduct or negligence of any agent or attorney appointed with due
care;
(iv) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any Board Resolution may be evidenced
to the Trustee by a copy thereof certified by the Secretary or an
Assistant Secretary of the Company;
(v) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the
request, order or direction of any of the Holders, unless such
Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction;
(vi) the Trustee shall not be liable for any action it takes
or omits to take in good faith that it believes to be authorized or
within its rights or powers or for any action it takes or omits to
take in accordance with the direction of the Holders in accordance
with Section 6.5 relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture;
(vii) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon; and
(viii) prior to the occurrence of an Event of Default hereunder
and after the curing or waiving of all Events of Default, the Trustee
shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, Officers'
Certificate, Opinion of Counsel, Board Resolution, statement,
instrument, opinion, report, notice, request, consent, order,
approval, appraisal, bond, debenture, note, coupon, security, or
other paper or document unless requested in writing so to do by
the Holders of not less than a majority in aggregate principal
amount of the Securities of all series affected then outstanding;
provided that, if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such expenses or
liabilities as a condition to proceeding.
SECTION 7.3 Individual Rights of Trustee. The Trustee,
in its individual or any other capacity, may become the owner or pledgee of
Securities and may otherwise deal with the Company or its Affiliates with the
same rights it would have if it were not the Trustee. Any Agent may do the
same with like rights. However, the Trustee is subject to Trust Indenture Act
Sections 310(b) and 311. For purposes of Trust Indenture Act Section
311(b)(4) and (6), the following terms shall mean:
(a) "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after delivery
of the goods or securities in currency or in checks or other orders drawn upon
banks or bankers and payable upon demand; and
(b) "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase, processing,
manufacturing, shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to, possession of, or a lien
upon, the goods, wares or merchandise or the receivables or proceeds arising
from the sale of the goods, wares or merchandise previously constituting the
security, provided the security is received by the Trustee simultaneously with
the creation of the creditor relationship with the Company arising from the
making, drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation.
SECTION 7.4 Trustee's Disclaimer. The recitals contained
herein and in the Securities (except the Trustee's certificate of
authentication) shall be taken as statements of the Company and not of the
Trustee and the Trustee assumes no responsibility for the correctness of the
same. Neither the Trustee nor any of its agents (i) makes any representation
as to the validity or adequacy of this Indenture or the Securities and (ii)
shall be accountable for the Company's use or application of the proceeds from
the Securities.
SECTION 7.5 Notice of Default. If any Default with
respect to the Securities of any series occurs and is continuing and if such
Default is known to the actual knowledge of a Responsible Officer with the
Corporate Trust Department of the Trustee, the Trustee shall give to each
Holder of Securities of such series notice of such Default within 90 days
after it occurs (i) if any Unregistered Securities of such series are then
outstanding, to the Holders thereof, by publication at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New York and at
least once in an Authorized Newspaper in London and (ii) to all Holders of
Securities of such series in the manner and to the extent provided in Section
313(c) of the Trust Indenture Act, unless such Default shall have been cured
or waived before the mailing or publication of such notice; provided, however,
that, except in the case of a Default in the payment of the Principal of or
interest on any Security, the Trustee shall be protected in withholding such
notice if the Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders.
SECTION 7.6 Reports by Trustee to Holders. Within 60
days after each May 15, beginning with May 15, 1996, the Trustee shall mail to
each Holder as and to the extent provided in Trust Indenture Act Section
313(c) a brief report dated as of such May 15, if required by Trust Indenture
Act Section 313(a).
SECTION 7.7 Compensation and Indemnity. The Company
shall pay to the Trustee such compensation as shall be agreed upon in writing
from time to time for its services. The compensation of the Trustee shall not
be limited by any law on compensation of a Trustee of an express trust. The
Company shall reimburse the Trustee upon request for all reasonable
out-of-pocket expenses, disbursements and advances incurred or made by the
Trustee. Such expenses shall include the reasonable compensation and expenses
of the Trustee's agents, counsel and other persons not regularly in its
employ.
The Company shall indemnify the Trustee for, and hold it
harmless against, any loss or liability or expense incurred by it without
negligence or bad faith on its part arising out of or in connection with the
acceptance or administration of this Indenture and the Securities or the
issuance of the Securities or of any series thereof or the trusts hereunder
and the performance of duties under this Indenture and the Securities,
including the costs and expenses of defending itself against or
investigating any claim or liability and of complying with any process
served upon it or any of its officers in connection with the exercise or
performance of any of its powers or duties under this Indenture and the
Securities.
To secure the Company's payment obligations in this Section
7.7, the Trustee shall have a lien prior to the Securities on all money or
property held or collected by the Trustee, in its capacity as Trustee, except
money or property held in trust to pay Principal of, and interest on
particular Securities.
The obligations of the Company under this Section to compensate
and indemnify the Trustee and each predecessor Trustee and to pay or reimburse
the Trustee and each predecessor Trustee for expenses, disbursements and
advances shall constitute additional indebtedness hereunder and shall survive
the satisfaction and discharge of this Indenture or the rejection or
termination of this Indenture under bankruptcy law. Such additional
indebtedness shall be a senior claim to that of the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the Holders of particular Securities or coupons,
and the Securities are hereby subordinated to such senior claim. If the
Trustee renders services and incurs expenses following an Event of Default
under Section 6.1(d) or Section 6.1(e) hereof, the parties hereto and the
holders by their acceptance of the Securities hereby agree that such expenses
are intended to constitute expenses of administration under any bankruptcy
law.
SECTION 7.8 Replacement of Trustee. A resignation or
removal of the Trustee as Trustee with respect to the Securities of any series
and appointment of a successor Trustee as Trustee with respect to the
Securities of any series shall become effective only upon the successor
Trustee's acceptance of appointment as provided in this Section 7.8.
The Trustee may resign as Trustee with respect to the
Securities of any series at any time by so notifying the Company in writing.
The Holders of a majority in principal amount of the outstanding Securities of
any series may remove the Trustee as Trustee with respect to the Securities
of such series by so notifying the Trustee in writing and may appoint a
successor Trustee with respect thereto with the consent of the Company. The
Company may remove the Trustee as Trustee with respect to the Securities of
any series if: (i) the Trustee is no longer eligible under Section 7.10 of
this Indenture; (ii) the Trustee is adjudged a bankrupt or insolvent; (iii) a
receiver or other public officer takes charge of the Trustee or its property;
or (iv) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed as Trustee with respect to
the Securities of any series, or if a vacancy exists in the office of Trustee
with respect to the Securities of any series for any reason, the Company shall
promptly appoint a successor Trustee with respect thereto. Within one year
after the successor Trustee takes office, the Holders of a majority in
principal amount of the outstanding Securities of such series may appoint a
successor Trustee in respect of such Securities to replace the successor
Trustee appointed by the Company. If the successor Trustee with respect to
the Securities of any series does not deliver its written acceptance required
by the next succeeding paragraph of this Section 7.8 within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of a majority in principal amount of the outstanding Securities of
such series may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect thereto.
A successor Trustee with respect to the Securities of any
series shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Immediately after the delivery of such written
acceptance, subject to the lien provided for in Section 7.7, (i) the retiring
Trustee shall transfer all property held by it as Trustee in respect of the
Securities of such series to the successor Trustee, (ii) the resignation or
removal of the retiring Trustee in respect of the Securities of such series
shall become effective and (iii) the successor Trustee shall have all the
rights, powers and duties of the Trustee in respect of the Securities of such
series under this Indenture. A successor Trustee shall mail notice of its
succession to each Holder of Securities of such series.
Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in the preceding paragraph.
The Company shall give notice of any resignation and any
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee in respect of the Securities of such series
to all Holders of Securities of such series. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
Notwithstanding replacement of the Trustee with respect to the
Securities of any series pursuant to this Section 7.8, the Company's
obligations under Section 7.7 shall continue for the benefit of the retiring
Trustee.
SECTION 7.9 Successor Trustee by Merger, Etc. If the
Trustee consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation or
national banking association, the resulting, surviving or transferee
corporation or national banking association without any further act shall be
the successor Trustee with the same effect as if the successor Trustee had
been named as the Trustee herein.
SECTION 7.10 Eligibility. This Indenture shall always
have a Trustee who satisfies the requirements of Trust Indenture Act Section
310(a). The Trustee shall have a combined capital and surplus of at least
$25,000,000 as set forth in its most recent published annual report of
condition.
SECTION 7.11 Money Held in Trust. The Trustee shall not
be liable for interest on any money received by it except as the Trustee may
agree in writing with the Company. Money held in trust by the Trustee need
not be segregated from other funds except to the extent required by law and
except for money held in trust under Article 8 of this Indenture.
ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS.
SECTION 8.1 Satisfaction and Discharge of Indenture. If
at any time (a) the Company shall have paid or caused to be paid the principal
of and interest on all the Securities of any series outstanding hereunder
(other than Securities of such series which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 2.8) as and
when the same shall have become due and payable, or (b) the Company shall have
delivered to the Trustee for cancellation all securities of any series
theretofore authenticated (other than any Securities of such series which
shall have been destroyed, lost or stolen and which shall have been replaced
or paid as provided in Section 2.8) or (c) (i) all the securities of such
series not theretofore delivered to the Trustee for cancellation shall have
become due and payable, or are by their terms to become due and payable within
one year or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and (ii)
the Company shall have irrevocably deposited or caused to be deposited with
the Trustee as trust funds the entire amount in cash (other than moneys
repaid by the Trustee or any paying agent to the Company in accordance with
Section 8.4) or U.S. Government Obligations, maturing as to principal and
interest in such amounts and at such times as will insure the availability
of cash sufficient to pay at maturity or upon redemption all Securities of
such series (other than any Securities of such series which shall have been
destroyed, lost or stolen and which shall have been replaced or paid as
provided in Section 2.8) not theretofore delivered to the Trustee for
cancellation, including principal and interest due or to become due on or
prior to such date of maturity as the case may be, and if, in any such
case, the Company shall also pay or cause to be paid all other sums payable
hereunder by the Company with respect to Securities of such series, then
this Indenture shall cease to be of further effect with respect to
Securities of such series (except as to (i) rights of registration of
transfer and exchange of securities of such series, and the Company's right
of optional redemption, if any, (ii) substitution of mutilated, defaced,
destroyed, lost or stolen Securities, (iii) rights of holders to receive
payments of principal thereof and interest thereon, upon the original
stated due dates therefor (but not upon acceleration) and remaining rights
of the holders to receive mandatory sinking fund payments, if any, (iv) the
rights, obligations and immunities of the Trustee hereunder and (v) the
rights of the Securityholders of such series as beneficiaries hereof with
respect to the property so deposited with the Trustee payable to all or any
of them), and the Trustee, on demand of the Company accompanied by an
Officers' Certificate and an Opinion of Counsel and at the cost and expense
of the Company, shall execute proper instruments acknowledging such
satisfaction of and discharging this Indenture with respect to such series;
provided, that the rights of Holders of the Securities to receive amounts
in respect of principal of and interest on the Securities held by them
shall not be delayed longer than required by then-applicable mandatory
rules or policies of any securities exchange upon which the Securities are
listed. The Company agrees to reimburse the Trustee for any costs or
expenses thereafter reasonably and properly incurred and to compensate the
Trustee for any services thereafter reasonably and properly rendered by the
Trustee in connection with this Indenture or the Securities of such series.
SECTION 8.2 Application by Trustee of Funds Deposited for
Payment of Securities. Subject to Section 8.4 and to the subordination
provisions of Article 11 hereof, all moneys deposited with the Trustee
pursuant to Section 8.1 shall be held in trust and applied by it to the
payment, either directly or through any paying agent (including the Company
acting as its own paying agent), to the Holders of the particular Securities
of such series for the payment or redemption of which such moneys have been
deposited with the Trustee, of all sums due and to become due thereon for
principal and interest; but such money need not be segregated from other funds
except to the extent required by law.
SECTION 8.3 Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect
to Securities of any series, all moneys then held by any paying agent under
the provisions of this Indenture with respect to such series of Securities
shall, upon demand of the Company, be repaid to it or paid to the Trustee and
thereupon such paying agent shall be released from all further liability with
respect to such moneys.
SECTION 8.4 Return of Moneys Held by Trustee and Paying
Agent Unclaimed for Two Years. Any moneys deposited with or paid to the
Trustee or any paying agent for the payment of the principal of or interest on
any Security of any series and not applied but remaining unclaimed for two
years after the date upon which such principal or interest shall have become
due and payable, shall, upon the written request of the Company and unless
otherwise required by mandatory provisions of applicable escheat or abandoned
or unclaimed property law, be repaid to the Company by the Trustee for such
series or such paying agent, and the Holder of the Security of such series
shall, unless otherwise required by mandatory provisions of applicable escheat
or abandoned or unclaimed property laws, thereafter look only to the Company
for any payment which such Holder may be entitled to collect, and all
liability of the Trustee or any paying agent with respect to such moneys shall
thereupon cease.
SECTION 8.5 Defeasance and Discharge of Indenture. The
Company shall be deemed to have paid and shall be discharged from any and all
obligations in respect of the Securities of any series, on the 123rd day after
the deposit referred to in clause (A) hereof has been made, and the provisions
of this Indenture shall no longer be in effect with respect to the Securities
of such series (and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same), except as to: (a) rights of
registration of transfer and exchange, and the Company's right of optional
redemption, (b) substitution of apparently mutilated, defaced, destroyed, lost
or stolen Securities, (c) rights of holders to receive payments of principal
thereof and interest thereon, upon the original stated due dates therefor (but
not upon acceleration), (d) the rights, obligations and immunities of the
Trustee hereunder and (e) the rights of the Securityholders of such series as
beneficiaries hereof with respect to the property so deposited with the
Trustee payable to all or any of them; provided that the following conditions
shall have been satisfied:
(A) with reference to this provision the Company has deposited
or caused to be irrevocably deposited with the Trustee (or another
trustee satisfying the requirements of Sections 7.8 and 7.10) as
trust funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Securities
of such series, (i) money in an amount, or (ii) U.S. Government
Obligations which through the payment of interest and principal in
respect thereof in accordance with their terms will provide not
later than one day before the due date of any payment referred to
in subclause (x) or (y) of this clause (A) money in an amount, or
(iii) a combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay and discharge without consideration of the
reinvestment of such interest and after payment of all federal,
state and local taxes or other charges and assessments in respect
thereof payable by the Trustee (x) the principal of, premium, if
any, and each installment of interest on the outstanding
Securities of such series on the due dates thereof or earlier
redemption (irrevocably provided for under arrangements
satisfactory to the Trustee) and (y) any mandatory sinking fund
payments or analogous payments applicable to the Securities of
such series on the day on which such payments are due and payable
in accordance with the terms of Securities of such series and the
Indenture with respect to the Securities of such series;
(B) the Company has delivered to the Trustee (i) either (x) an
Opinion of Counsel to the effect that Holders of Securities of such
series will not recognize income, gain or loss for federal income tax
purposes as a result of the Company's exercise of its option under
this Section 8.5 and will be subject to federal income tax on the
same amount and in the same manner and at the same times as would
have been the case if such deposit, defeasance and discharge had not
occurred, which Opinion of Counsel must be based upon a ruling of the
Internal Revenue Service to the same effect unless there has been
a change in applicable federal income tax law or related treasury
regulations after the date of this Indenture that such a ruling is
no longer required or (y) a ruling directed to the Trustee
received from the Internal Revenue Service to the same effect as
the aforementioned Opinion of Counsel and (ii) an Opinion of
Counsel to the effect that the creation of the defeasance trust
does not violate the Investment Company Act of 1940 and after the
passage of 123 days following the deposit, the trust fund will not
be subject to the effect of Section 547 of the U.S. Bankruptcy
Code or Section 15 of the New York Debtor and Creditor Law;
(C) immediately after giving effect to such deposit on a pro
forma basis, no Event of Default, or event that after the giving of
notice or lapse of time or both would become an Event of Default,
shall have occurred and be continuing on the date of such deposit or
during the period ending on the 123rd day after the date of such
deposit, and such deposit shall not result in a breach or violation
of, or constitute a default under, any other agreement or instrument
to which the Company is a party or by which the Company is bound;
(D) the Company is not prohibited from making payments in
respect of the Securities by Article 11 hereof; and
(E) if at such time the Securities of such series are listed
on a national securities exchange, the Company has delivered to the
Trustee an Opinion of Counsel to the effect that the Securities of
such series will not be delisted as a result of such deposit,
defeasance and discharge.
SECTION 8.6 Defeasance of Certain Obligations. The
Company may omit to comply with any term, provision or condition set forth in,
and this Indenture will no longer be in effect with respect to, any covenant
in Article 4 or Section 5.1 established pursuant to Section 2.3 in any
indenture supplemental hereto and clause (c) (with respect to any covenants in
Article 4 or Section 5.1 established pursuant to Section 2.3 in any indenture
supplemental hereto) and clause (f) of Section 6.1 shall be deemed not to be
an Event of Default, and the provisions of Article 11 shall not apply with
respect to the Securities of any series, if
(A) with reference to this Section 8.6, the Company has
deposited or caused to be irrevocably deposited with the Trustee (or
another trustee satisfying the requirements of Section 7.8) as trust
funds in trust, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of the Securities of such
series and the Indenture with respect to the Securities of such
series, (i) money in an amount or (ii) U.S. Government Obligations
which through the payment of interest and principal in respect
thereof in accordance with their terms will provide not later than
one day before the due dates thereof or earlier redemption
(irrevocably provided for under agreements satisfactory to the
Trustee), as the case may be, of any payment referred to in subclause
(x) or (y) of this clause (A) money in an amount, or (iii) a
combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge without consideration of the reinvestment of such interest
and after payment of all federal, state and local taxes or other
charges and assessments in respect thereof payable by the Trustee (x)
the principal of, premium, if any, and each installment of interest
on the outstanding Securities on the due date thereof or earlier
redemption (irrevocably provided for under arrangements satisfactory
to the Trustee), as the case may be, and (y) any mandatory sinking
fund payments or analogous payments applicable to the Securities of
such series and the Indenture with respect to the Securities of such
series on the day on which such payments are due and payable in
accordance with the terms of the Indenture and of Securities of such
series and the Indenture with respect to the Securities of such
series;
(B) the Company has delivered to the Trustee (i) an Opinion of
Counsel to the effect that Holders of Securities of such series will
not recognize income, gain or loss for federal income tax purposes as
a result of the Company's exercise of its option under this Section
8.6 and will be subject to federal income tax on the same amount and
in the same manner and at the same times as would have been the case
if such deposit and defeasance had not occurred and (ii) an Opinion
of Counsel to the effect that the creation of the defeasance trust
does not violate the Investment Company Act of 1940 and after the
passage of 123 days following the deposit, the trust fund will not be
subject to the effect of Section 547 of the U.S. Bankruptcy Code or
Section 15 of the New York Debtor and Creditor Law;
(C) immediately after giving effect to such deposit on a pro
forma basis, no Event of Default, or event that after the giving of
notice or lapse of time or both would become an Event of Default,
shall have occurred and be continuing on the date of such deposit or
during the period ending on the 123rd day after the date of such
deposit, and such deposit shall not result in a breach or violation
of, or constitute a default under, any other agreement or instrument
to which the Company is a party or by which the Company is bound;
(D) the Company is not prohibited from making payments in
respect of the Securities by Article 11 hereof; and
(E) if at such time the Securities of such series are listed
on a national securities exchange, the Company has delivered to the
Trustee an Opinion of Counsel to the effect that the Securities of
such series will not be delisted as a result of such deposit,
defeasance and discharge.
SECTION 8.7 Reinstatement. If the Trustee or paying
agent is unable to apply any monies or U.S. Government Obligations in
accordance with Article 8 by reason of any legal proceeding or by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture and the Securities shall be revived and
reinstated as though no deposit had occurred pursuant to this Article until
such time as the Trustee or paying agent is permitted to apply all such monies
or U.S. Government Obligations in accordance with Article 8; provided,
however, that if the Company has made any payment of principal of or interest
on any Securities because of the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Securities to receive
such payment from the monies or U.S. Government Obligations held by the
Trustee or paying agent.
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 Without Consent of Holders. The Company and
the Trustee may amend or supplement this Indenture or the Securities of any
series without notice to or the consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency in this
Indenture; provided that such amendments or supplements shall not
materially and adversely affect the interests of the Holders;
(2) to comply with Article 5;
(3) to comply with any requirements of the Commission in
connection with the qualification of this Indenture under the Trust
Indenture Act;
(4) to evidence and provide for the acceptance of appointment
hereunder with respect to the Securities of any or all series by a
successor Trustee;
(5) to establish the form or forms or terms of Securities of
any series or of the coupons appertaining to such Securities as
permitted by Section 2.3;
(6) to provide for uncertificated or Unregistered Securities
and to make all appropriate changes for such purpose; and
(7) to make any change that does not materially and adversely
affect the rights of any Holder.
SECTION 9.2 With Consent of Holders. Subject to Sections
6.4 and 6.7, without prior notice to any Holders, the Company and the Trustee
may amend this Indenture and the Securities of any series with the written
consent of the Holders of a majority in principal amount of the outstanding
Securities of all series affected by such supplemental indenture (all such
series voting as one class), and the Holders of a majority in principal amount
of the outstanding Securities of all series affected thereby (all such series
voting as one class) by written notice to the Trustee may waive future
compliance by the Company with any provision of this Indenture or the
Securities of such series.
Notwithstanding the provisions of this Section 9.2, without the
consent of each Holder affected thereby, an amendment or waiver, including a
waiver pursuant to Section 6.4, may not:
(i) change the stated maturity of the Principal of, or any
sinking fund obligation or any installment of interest on, such
Holder's Security, or reduce the Principal amount thereof, the
premium, if any or the rate of interest thereon (including any
amount in respect of original issue discount) or adversely affect
the rights of such Holder under any mandatory redemption or
repurchase provision or any right of redemption or repurchase at
the option of such Holder, or reduce the amount of the Principal
of an Original Issue Discount Security that would be due and
payable upon an acceleration of the maturity thereof pursuant to
Section 6.2 or the amount thereof provable in bankruptcy, or
change any place of payment where, or the currency in which, any
Security or any premium or the interest thereon is payable, or
impair the right to institute suit for the enforcement of any such
payment on or after the due date therefor;
(ii) reduce the percentage in principal amount of outstanding
Securities of the relevant series the consent of whose Holders is
necessary for any such supplemental indenture, for any waiver of
compliance with certain provisions of this Indenture or certain
Defaults and their consequences provided for in this Indenture.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of Holders of Securities of such
series with respect to such covenant or provision, shall be deemed not to
affect the rights under this Indenture of the Holders of Securities of any
other series or of the coupons appertaining to such Securities.
It shall not be necessary for the consent of any Holder under
this Section 9.2 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.2
becomes effective, the Company shall give to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. The Company
will mail supplemental indentures to Holders upon request. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture or
waiver.
SECTION 9.3 Revocation and Effect of Consent. Until an
amendment or waiver becomes effective, a consent to it by a Holder is a
continuing consent by the Holder and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the Security of the
consenting Holder, even if notation of the consent is not made on any
Security. However, any such Holder or subsequent Holder may revoke the
consent as to its Security or portion of its Security. Such revocation shall
be effective only if the Trustee receives the notice of revocation before the
date the amendment, supplement or waiver becomes effective. An amendment,
supplement or waiver shall become effective with respect to any Securities
affected thereby on receipt by the Trustee of written consents from the
requisite Holders of outstanding Securities affected thereby.
The Company may, but shall not be obligated to, fix a record
date (which may be not less than five nor more than 60 days prior to the
solicitation of consents) for the purpose of determining the Holders of the
Securities of any series affected entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then, notwithstanding the
immediately preceding paragraph, those Persons who were such Holders at such
record date (or their duly designated proxies) and only those Persons shall be
entitled to consent to such amendment, supplement or waiver or to revoke any
consent previously given, whether or not such Persons continue to be such
Holders after such record date. No such consent shall be valid or effective
for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective with
respect to the Securities of any series affected thereby, it shall bind every
Holder of such Securities unless it is of the type described in any of clauses
(i) through (iv) of Section 9.2. In case of an amendment or waiver of the
type described in clauses (i) through (iv) of Section 9.2, the amendment or
waiver shall bind each such Holder who has consented to it and every
subsequent Holder of a Security that evidences the same indebtedness as the
Security of the consenting Holder.
SECTION 9.4 Notation on or Exchange of Securities. If an
amendment, supplement or waiver changes the terms of any Security, the Trustee
may require the Holder thereof to deliver it to the Trustee. The Trustee may
place an appropriate notation on the Security about the changed terms and
return it to the Holder and the Trustee may place an appropriate notation on
any Security of such series thereafter authenticated. Alternatively, if the
Company or the Trustee so determines, the Company in exchange for the Security
shall issue and the Trustee shall authenticate a new Security of the same
series and tenor that reflects the changed terms.
SECTION 9.5 Trustee to Sign Amendments, Etc. The Trustee
shall be entitled to receive, and shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of any amendment, supplement or
waiver authorized pursuant to this Article 9 is authorized or permitted by
this Indenture, stating that all requisite consents have been obtained or that
no consents are required and stating that such supplemental indenture
constitutes the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject to
customary exceptions. Subject to the preceding sentence, the Trustee shall
sign such amendment, supplement or waiver if the same does not adversely
affect the rights of the Trustee. The Trustee may, but shall not be
obligated to, execute any such amendment, supplement or waiver that affects
the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 9.6 Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article 9 shall conform to
the requirements of the Trust Indenture Act as then in effect.
ARTICLE 10
MISCELLANEOUS
SECTION 10.1 Trust Indenture Act of 1939. This Indenture
shall incorporate and be governed by the provisions of the Trust Indenture Act
that are required to be part of and to govern indentures qualified under the
Trust Indenture Act.
SECTION 10.2 Notices. Any notice or communication shall
be sufficiently given if written and (a) if delivered in person when received
or (b) if mailed by first class mail 5 days after mailing, or (c) as between
the Company and the Trustee if sent by facsimile transmission, when
transmission is confirmed, in each case addressed as follows:
if to the Company:
The AES Corporation
1001 North 19th Street
Arlington, VA 22209
Telecopy: (703) 528-4510
Attention: General Counsel
if to the Trustee:
First National Bank of Chicago
Corporate Trust Services Division
One First National Plaza
Chicago, Il 60670-0126
Telecopy: (312) 407-4656
Attention: Richard D. Manella
The Company or the Trustee by written notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication shall be sufficiently given to
Holders of any Unregistered Securities, by publication at least once in an
Authorized Newspaper in The City of New York, or with respect to any Security
the interest on which is based on the offered quotations in the interbank
Eurodollar market for dollar deposits at least once in an Authorized Newspaper
in London, and by mailing to the Holders thereof who have filed their names
and addresses with the Trustee pursuant to Section 313(c)(2) of the Trust
Indenture Act at such addresses as were so furnished to the Trustee and to
Holders of Registered Securities by mailing to such Holders at their addresses
as they shall appear on the Security Register. Notice mailed shall be
sufficiently given if so mailed within the time prescribed. Copies of any
such communication or notice to a Holder shall also be mailed to the Trustee
and each Agent at the same time.
Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders.
Except as otherwise provided in this Indenture, if a notice or communication
is mailed in the manner provided in this Section 10.2, it is duly given,
whether or not the addressee receives it.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee,
but such filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
In case it shall be impracticable to give notice as herein
contemplated, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose
hereunder.
SECTION 10.3 Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the
Trustee:
(i) an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with;
and
(ii) an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent have been complied with.
SECTION 10.4 Statements Required in Certificate or
Opinion. Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(i) a statement that each person signing such certificate or
opinion has read such covenant or condition and the definitions
herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statement or opinion
contained in such certificate or opinion is based;
(iii) a statement that, in the opinion of each such person, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(iv) a statement as to whether or not, in the opinion of each
such person, such condition or covenant has been complied with;
provided, however, that, with respect to matters of fact, an Opinion
of Counsel may rely on an Officers' Certificate or certificates of
public officials.
SECTION 10.5 Evidence of Ownership. The Company, the Trustee
and any agent of the Company or the Trustee may deem and treat the Holder of
any Unregistered Security and the Holder of any coupon as the absolute owner
of such Unregistered Security or coupon (whether or not such Unregistered
Security or coupon shall be overdue) for the purpose of receiving payment
thereof or on account thereof and for all other purposes, and neither the
Company, the Trustee, nor any agent of the Company or the Trustee shall
be affected by any notice to the contrary. The fact of the holding by any
Holder of an Unregistered Security, and the identifying number of such
Security and the date of his holding the same, may be proved by the production
of such Security or by a certificate executed by any trust company, bank,
banker or recognized securities dealer wherever situated satisfactory to the
Trustee, if such certificate shall be deemed by the Trustee to be
satisfactory. Each such certificate shall be dated and shall state that on
the date thereof a Security bearing a specified identifying number was
deposited with or exhibited to such trust company, bank, banker or
recognized securities dealer by the person named in such certificate. Any
such certificate may be issued in respect of one or more Unregistered
Securities specified therein. The holding by the person named in any such
certificate of any Unregistered Securities specified therein shall be
presumed to continue for a period of one year from the date of such
certificate unless at the time of any determination of such holding (1)
another certificate bearing a later date issued in respect of the same
Securities shall be produced or (2) the Security specified in such
certificate shall be produced by some other Person, or (3) the Security
specified in such certificate shall have ceased to be outstanding. Subject
to Article 7, the fact and date of the execution of any such instrument and
the amount and numbers of Securities held by the Person so executing such
instrument may also be proven in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in any other manner
which the Trustee may deem sufficient.
The Company, the Trustee and any agent of the Company or the
Trustee may deem and treat the person in whose name any Registered Security
shall be registered upon the Security Register for such series as the absolute
owner of such Registered Security (whether or not such Registered Security
shall be overdue and notwithstanding any notation of ownership or other
writing thereon) for the purpose of receiving payment of or on account of the
Principal of and, subject to the provisions of this Indenture, interest on
such Registered Security and for all other purposes; and neither the Company
nor the Trustee nor any agent of the Company or the Trustee shall be affected
by any notice to the contrary.
SECTION 10.6 Rules by Trustee, Paying Agent or Registrar.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Paying Agent or Registrar may make reasonable rules for its
functions.
SECTION 10.7 Payment Date Other Than a Business Day. If
any date for payment of Principal or interest on any Security shall not be a
Business Day at any place of payment, then payment of Principal of or interest
on such Security, as the case may be, need not be made on such date, but may
be made on the next succeeding Business Day at any place of payment with the
same force and effect as if made on such date and no interest shall accrue in
respect of such payment for the period from and after such date.
SECTION 10.8 Governing Law. The laws of the State of New
York shall govern this Indenture and the Securities.
SECTION 10.9 No Adverse Interpretation of Other
Agreements. This Indenture may not be used to interpret another indenture or
loan or debt agreement of the Company or any Subsidiary of the Company. Any
such indenture or agreement may not be used to interpret this Indenture.
SECTION 10.10 Successors. All agreements of the Company in
this Indenture and the Securities shall bind its successors. All agreements
of the Trustee in this Indenture shall bind its successors.
SECTION 10.11 Duplicate Originals. The parties may sign
any number of copies of this Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement.
SECTION 10.12 Separability. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 10.13 Table of Contents, Headings, Etc. The Table
of Contents and headings of the Articles and Sections of this Indenture have
been inserted for convenience of reference only, are not to be considered a
part hereof and shall in no way modify or restrict any of the terms and
provisions hereof.
SECTION 10.14 Incorporators, Stockholders, Officers and
Directors of Company Exempt from Individual Liability. No recourse under or
upon any obligation, covenant or agreement contained in this Indenture or any
indenture supplemental hereto, or in any Security or any coupons appertaining
thereto, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such or against any past, present or future
stockholder, officer, director or employee, as such, of the Company or of any
successor, either directly or through the Company or any successor, under any
rule of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities and the coupons appertaining thereto by the holders thereof and as
part of the consideration for the issue of the Securities and the coupons
appertaining thereto.
SECTION 10.15 Judgment Currency. The Company agrees, to
the fullest extent that it may effectively do so under applicable law, that
(a) if for the purpose of obtaining judgment in any court it is necessary to
convert the sum due in respect of the Principal of or interest on the
Securities of any series (the "Required Currency") into a currency in which a
judgment will be rendered (the "Judgment Currency"), the rate of exchange used
shall be the rate at which in accordance with normal banking procedures the
Trustee could purchase in The City of New York the Required Currency with the
Judgment Currency on the day on which final unappealable judgment is entered,
unless such day is not a Business Day, then, to the extent permitted by
applicable law, the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the
Business Day preceding the day on which final unappealable judgment is entered
and (b) its obligations under this Indenture to make payments in the Required
Currency (i) shall not be discharged or satisfied by any tender, or any
recovery pursuant to any judgment (whether or not entered in accordance with
subsection (a)), in any currency other than the Required Currency, except to
the extent that such tender or recovery shall result in the actual receipt, by
the payee, of the full amount of the Required Currency expressed to be payable
in respect of such payments, (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the Required
Currency the amount, if any, by which such actual receipt shall fall short of
the full amount of the Required Currency so expressed to be payable and (iii)
shall not be affected by judgment being obtained for any other sum due under
this Indenture.
ARTICLE 11
SUBORDINATION OF SECURITIES
SECTION 11.1 Agreement to Subordinate. The Company covenants
and agrees, and each Holder of Securities issued hereunder by his acceptance
thereof likewise covenants and agrees, that all Securities shall be issued
subject to the provisions of this Article; and each person holding any
Security, whether upon original issue or upon transfer, assignment or exchange
thereof accepts and agrees that the Principal of and interest on all
Securities issued hereunder shall, to the extent and in the manner herein set
forth, be subordinated and subject in right to the prior payment in full of
all Senior Debt.
SECTION 11.2 Payments to Securityholders. No payments on
account of Principal of or interest on the Securities shall be made if at the
time of such payment or immediately after giving effect thereto there shall
exist a default in any payment with respect to any Senior Debt, and such event
of default shall not have been cured or waived or shall not have ceased to
exist. In addition, during the continuance of any other event of default
(other than a payment default) with respect to Designated Senior Debt pursuant
to which the maturity thereof may be accelerated, from and after the date of
receipt by the Trustee of written notice from the holders of such Designated
Senior Debt or from an agent of such holders, no payments on account of
Principal or interest in respect of the Securities may be made by the Company
for a period ("Payment Blockage Period") commencing on the date of delivery of
such notice and ending 179 days thereafter (unless such Payment Blockage
Period shall be terminated by written notice to the Trustee from the
holders of such Designated Senior Debt or from an agent of such holders, or
such event of default has been cured or waived or has ceased to exist).
Only one Payment Blockage Period may be commenced with respect to the
Securities during any period of 360 consecutive days. No event of default
which existed or was continuing on the date of the commencement of any
Payment Blockage Period with respect to the Designated Senior Debt
initiating such Payment Blockage Period shall be or be made the basis for
the commencement of any subsequent Payment Blockage Period by the holders
of such Designated Senior Debt, unless such event of default shall have
been cured or waived for a period of not less than 90 consecutive days.
Upon any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, to creditors
upon any liquidation, dissolution, winding up, receivership, reorganization,
assignment for the benefit of creditors, marshalling of assets and liabilities
or any bankruptcy, insolvency or similar proceedings of the Company, all
amounts due or to become due upon all Senior Debt shall first be paid in full,
in cash or cash equivalents, or payment thereof provided for in accordance
with its terms, before any payment is made on account of the Principal of or
interest on the indebtedness evidenced by the Securities, and upon any such
liquidation, dissolution, winding up, receivership, reorganization,
assignment, marshalling or proceeding, any payment or distribution of assets
of the Company of any kind or character, whether in cash, property or
securities, to which the Holders of the Securities or the Trustee under this
Indenture would be entitled, except for the provisions hereof, shall be paid
by the Company or by any receiver, trustee in bankruptcy, liquidating trustee,
agent or other Person making such payment or distribution, or by the Holders
of the Securities or by the Trustee under this Indenture if received by them
or it, directly to the holders of Senior Debt (pro rata to such holders on the
basis of the respective amounts of Senior Debt held by such holders) or their
respective representatives, or to the trustee or trustees under any indenture
pursuant to which any instruments evidencing any of such Senior Debt may have
been issued, as their respective interests may appear, to the extent necessary
to pay all Senior Debt in full (including, without limitation, except to the
extent, if any, prohibited by mandatory provisions of law, post-petition
interest, in any such proceedings), after giving effect to any concurrent
payment or distribution to or for the holders of Senior Debt, before any
payment or distribution is made to the holders of the indebtedness evidenced
by the Securities or to the Trustee under this Indenture.
In the event that, notwithstanding the foregoing, any payment
or distribution of assets of the Company of any kind or character, whether in
cash, property or securities, prohibited by the foregoing, shall be received
by the Trustee under this Indenture or the holders of the Securities before
all Senior Debt is paid in full or provision is made for such payment in
accordance with its terms, such payment or distribution shall be held in trust
for the benefit of and shall be paid over or delivered to the holders of such
Senior Debt or their respective representatives, or to the trustee or trustees
under any indenture pursuant to which any instruments evidencing any of such
Senior Debt may have been issued, as their respective interests may appear,
for application to the payment of all Senior Debt remaining unpaid until all
such Senior Debt shall have been paid in full in accordance with its terms,
after giving effect to any concurrent payment or distribution to or for the
holders of such Senior Debt.
For purposes of this Article, the words, "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of arrangement, reorganization or
readjustment, the payment of which is subordinated (at least to the extent
provided in this Article with respect to the Securities) to the payment of all
Senior Debt which may at the time be outstanding; provided, that (i) the
Senior Debt is assumed by the new corporation, if any, resulting from any such
arrangement, reorganization or readjustment, and (ii) the rights of the
holders of the Senior Debt are not, without the consent of such holders,
altered by such arrangement, reorganization or readjustment. The
consolidation of the Company with, or the merger of the Company into, another
corporation or the liquidation or dissolution of the Company following the
conveyance or transfer of its property as an entirety, or substantially as an
entirety, to another corporation upon the terms and conditions provided in
Article 5 shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section if such other corporation
shall, as a part of such consolidation, merger, conveyance or transfer, comply
with the conditions stated in Article 5. Nothing in this Section shall apply
to claims of, or payments to, the Trustee under or pursuant to Article 7,
except as provided therein. This Section shall be subject to the further
provisions of Section 11.5.
SECTION 11.3 Subrogation of Securities. Subject to the
payment in full of all Senior Debt, the holders of the Securities shall be
subrogated to the rights of the holders of Senior Debt to receive payments or
distributions of cash, property or securities of the Company applicable to the
Senior Debt until the principal of and interest on the Securities shall be
paid in full; and, for the purposes of such subrogation, no payments or
distributions to the holders of the Senior Debt of any cash, property or
securities to which the holders of the Securities or the Trustee on their
behalf would be entitled except for the provisions of this Article, and no
payment over pursuant to the provisions of this Article to the holders of
Senior Debt by holders of the Securities or the Trustee on their behalf shall,
as between the Company, its creditors other than holders of Senior Debt and
the holders of the Securities, be deemed to be a payment by the Company to or
on account of the Senior Debt; and no payments or distributions of cash,
property or securities to or for the benefit of the Securityholders pursuant
to the subrogation provision of this Article, which would otherwise have been
paid to the holders of Senior Debt shall be deemed to be a payment by the
Company to or for the account of the Securities. It is understood that the
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the holders of the Securities, on the one
hand, and the holders of the Senior Debt, on the other hand.
Nothing contained in this Article or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as between the
Company, its creditors other than the holders of Senior Debt, and the holders
of the Securities, the obligation of the Company, which is absolute and
unconditional, to pay to the holders of the Securities the principal of and
interest on the Securities as and when the same shall become due and payable
in accordance with their terms, or is intended to or shall affect the relative
rights of the holders of the Securities and creditors of the Company other
than the holders of the Senior Debt, nor shall anything herein or therein
prevent the holder of any Security or the Trustee on his behalf from
exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article of the
holders of Senior Debt in respect of cash, property or securities of the
Company received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee, subject to the provisions of
Sections 7.1 and 7.2, and the holders of the Securities shall be entitled to
rely upon any order or decree made by any court of competent jurisdiction in
which such liquidation, dissolution, winding up, receivership, reorganization,
assignment or marshalling proceedings are pending, or a certificate of the
receiver, trustee in bankruptcy, liquidating trustee, agent or other person
making such payment or distribution, delivered to the Trustee or to the
holders of the Securities, for the purpose of ascertaining the persons
entitled to participate in such distribution, the holders of the Senior Debt
and other indebtedness of the Company, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article.
SECTION 11.4 Authorization by Securityholders. Each
holder of a Security by his acceptance thereof authorizes the Trustee in his
behalf to take such action as may be necessary or appropriate to effectuate
the subordination provided in this Article and appoints the Trustee his
attorney-in-fact for any and all such purposes.
SECTION 11.5 Notice to Trustee. The Company shall give
prompt written notice to the Trustee and to any paying agent of any fact known
to the Company which would prohibit the making of any payment of moneys to or
by the Trustee or any paying agent in respect of the Securities pursuant to
the provisions of this Article. Regardless of anything to the contrary
contained in this Article or elsewhere in this Indenture, the Trustee shall
not be charged with knowledge of the existence of any Senior Debt or of any
default or event of default with respect to any Senior Debt or of any other
facts which would prohibit the making of any payment of moneys to or by the
Trustee, unless and until the Trustee shall have received notice in writing
at its principal Corporate Trust Office to that effect signed by an officer of
the Company, or by a holder or agent of a holder of Senior Debt who shall have
been certified by the Company or otherwise established to the reasonable
satisfaction of the Trustee to be such holder or agent, or by the trustee
under any indenture pursuant to which Senior Debt shall be outstanding, and,
prior to the receipt of any such written notice, the Trustee shall, subject to
Sections 7.1 and 7.2, be entitled to assume that no such facts exist; provided
that if on a date at least three Business Days prior to the date upon which by
the terms hereof any such moneys shall become payable for any purpose
(including, without limitation, the payment of the principal of, or interest
on any Security) the Trustee shall not have received with respect to such
moneys the notice provided for in this Section, then, regardless of anything
herein to the contrary, the Trustee shall have full power and authority to
receive such moneys and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary which may be
received by it on or after such prior date.
Regardless of anything to the contrary herein, nothing shall
prevent (a) any payment by the Company or the Trustee to the Securityholders
of amounts in connection with a redemption of Securities if (i) notice of such
redemption has been given pursuant to Article 3 prior to the receipt by the
Trustee of written notice as aforesaid, and (ii) such notice of redemption is
given not earlier than 60 days before the redemption date, or (b) any payment
by the Trustee to the Securityholders of amounts deposited with it pursuant to
Section 8.1.
The Trustee shall be entitled to rely on the delivery to it of
a written notice by a person representing himself to be a holder of Senior
Debt (or a trustee on behalf of such holder) to establish that such notice has
been given by a holder of Senior Debt or a trustee on behalf of any such
holder. In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any person as a holder of
Senior Debt to participate in any payment or distribution pursuant to this
Article, the Trustee may request such person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Debt held by
such person, the extent to which such person is entitled to participate in
such payment or distribution and any other facts pertinent to the rights of
such person under this Article, and if such evidence is not furnished the
Trustee may defer any payment to such person pending judicial determination as
to the right of such person to receive such payment.
SECTION 11.6 Trustee's Relation to Senior Debt. The
Trustee and any agent of the Company or the Trustee shall be entitled to all
the rights set forth in this Article with respect to any Senior Debt which may
at any time be held by it in its individual or any other capacity to the same
extent as any other holder of Senior Debt and nothing in this Indenture shall
deprive the Trustee or any such agent, of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the Trustee
under or pursuant to Section 7.7.
With respect to the holders of Senior Debt, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article, and no implied covenants or
obligations with respect to the holders of Senior Debt shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt and, subject to the provisions of
Sections 7.1 and 7.2, the Trustee shall not be liable to any holder of Senior
Debt if it shall pay over or deliver to holders of Securities, the Company or
any other person moneys or assets to which any holder of Senior Debt shall be
entitled by virtue of this Article or otherwise.
SECTION 11.7 No Impairment of Subordination. No right of
any present or future holder of any Senior Debt to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by the Company
with the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof which any such holder may have or otherwise be charged with.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the date first written above.
(SEAL) THE AES CORPORATION
Attest: as the Company
_____________________________
By:________________________________
Name:
Title:
(SEAL) THE FIRST NATIONAL BANK OF CHICAGO,
Attest: as Trustee
_____________________________
By:________________________________
Name:
Title:
STATE OF ________________ )
)
COUNTY OF _______________ )
BEFORE ME, the undersigned authority, on this __ day of
____________, 1996, personally appeared ____________, ____________ of The AES
Corporation, a Delaware corporation, known to me (or proved to me by
introduction upon the oath of a person known to me) to be the person and
officer whose name is subscribed to the foregoing instrument, and acknowledged
to me that he/she executed the same as the act of such corporation for the
purposes and consideration herein expressed and in the capacity therein
stated.
GIVEN UNDER MY HAND AND SEAL THIS ____ DAY OF JUNE, 1995.
(SEAL)
________________________________
NOTARY PUBLIC, STATE OF ________
Print Name:_____________________
Commission Expires:_____________
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
BEFORE ME, the undersigned authority, on this _______ day of
____________, 1996, personally appeared _________________, _______________ of
The First National Bank of Chicago, a national association, known to me
(or proved to me by introduction upon the oath of a person known to me) to
be the person and officer whose name is subscribed to the foregoing
instrument, and acknowledged to me that he/she executed the same as the act
of such trust for the purposes and consideration herein expressed and in
the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS _____ DAY OF ____, 1996.
(SEAL)
________________________________
NOTARY PUBLIC, STATE OF NEW YORK
Print Name:_____________________
Commission Expires:_____________
Exhibit 4.2
[FORM OF DEBT SECURITY]
CUSIP:
No. $
[To be included on Registered Global Securities only: Unless and until it is
exchanged in whole or in part for [Notes] [Debentures] in definitive
registered form, this [Note] [Debenture] may not be transferred except as a
whole by the Depositary to the nominee of the Depositary or by a nominee of
the Depositary to the Depositary or another nominee of the Depositary or by
the Depositary or any such nominee to a successor Depositary or a nominee of
such successor Depositary.]
THE AES CORPORATION
__% [Note]
[Sinking Fund Debenture]
Due ___
THE AES CORPORATION, a Delaware corporation (the "Company",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to , or
registered assigns, at the office or agency of the Company in New York, New
York, the principal sum of Dollars on _______________, in the
coin or currency of the United States, and to pay interest, semi-annually on
______ and ______ of each year, commencing __________, on said principal sum
at said office or agency, in like coin or currency, at the rate per annum
specified in the title of this [Note] [Debenture], from the _____ or the
______, as the case may be, next preceding the date of this [Note] [Debenture]
to which interest has been paid or duly provided for, unless the date hereof
is a date to which interest has been paid or duly provided for, in which case
from the date of this [Note] [Debenture], or unless no interest has been paid
or duly provided for on these [Notes] [Debentures], in which case from
__________, until payment of said principal sum has been made or duly provided
for; provided, that payment of interest may be made at the option of the
Company by check mailed to the address of the person entitled thereto as such
address shall appear on the Security register or by wire transfer as provided
in the Indenture. Notwithstanding the foregoing, if the date hereof is after
the __th day of _____ or ______ , as the case may be, and before the following
_____ or ______, this [Note] [Debenture] shall bear interest from such ______
or ______; provided, that if the Company shall default in the payment of
interest due on such _____ or _____, then this [Note] [Debenture] shall bear
interest from the next preceding _____ or _____, to which interest has been
paid or duly provided for or, if no interest has been paid or duly provided
for on these [Notes] [Debentures], from ________. The interest so payable on
any ____ or ____ will, subject to certain exceptions provided in the Indenture
referred to on the reverse hereof, be paid to the person in whose name this
[Note] [Debenture] is registered at the close of business on the ____ or
______, as the case may be, next preceding such _____ or ______, whether or
not such day is a Business Day.
Reference is made to the further provisions of this [Note]
[Debenture] set forth on the reverse hereof, including without limitation
provisions subordinating the payment of principal of, premium, if any, and
interest on this [Note] [Debenture] to the payment in full of all Senior Debt
of the Company as defined in the Indenture. Such further provisions shall for
all purposes have the same effect as though fully set forth at this place.
This [Note] [Debenture] shall not be valid or become obligatory
for any purpose until the certificate of authentication hereon shall have been
manually signed by the Trustee under the Indenture referred to on the reverse
hereof.
IN WITNESS WHEREOF, THE AES CORPORATION has caused this
instrument to be signed manually or by facsimile by its duly authorized
officers and has caused a facsimile of its corporate seal to be affixed
hereunto or imprinted hereon.
(SEAL) THE AES CORPORATION
Attest: By:________________________________
________________________
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated: THE FIRST NATIONAL BANK OF CHICAGO,
CHICAGO, as Trustee
By:________________________________
Authorized Signatory
REVERSE OF [NOTE] [DEBENTURE]
THE AES CORPORATION
__% [Note]
[Sinking Fund Debenture]
Due ____
This [Note] [Sinking Fund Debenture] is one of a duly
authorized issue of debentures, notes, bonds or other evidences of
indebtedness of the Company (hereinafter called the "Securities") of the
series hereinafter specified, all issued or to be issued under and pursuant to
an indenture dated as of June __, 1996 (herein called the "Indenture"), duly
executed and delivered by the Company to The First National Bank of Chicago,
Chicago, as Trustee (herein called the "Trustee"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the Holders of the Securities. The
Securities may be issued in one or more series, which different series may be
issued in various aggregate principal amounts, may mature at different times,
may bear interest (if any) at different rates, may be subject to different
redemption provisions (if any), may be subject to different sinking, purchase
or analogous funds (if any) and may otherwise vary as in the Indenture
provided. This [Note] [Debenture] is one of a series designated as the ___%
[Notes] [Sinking Fund Debentures] Due ___ of the Company, limited in aggregate
principal amount to $________.
Interest will be computed on the basis of a 360-day year of
twelve 30-day months. The Company shall pay interest on overdue Principal
and, to the extent lawful, on overdue installments of interest at the rate per
annum borne by this [Note] [Debenture]. If a payment date is not a Business
Day as defined in the Indenture at a place of payment, payment may be made at
that place on the next succeeding day that is a Business Day, and no interest
shall accrue for the intervening period.
In case an Event of Default with respect to the
___% [Notes] [Sinking Fund Debentures] Due ____, as defined in the Indenture,
shall have occurred and be continuing, the Principal hereof and the interest
accrued hereon, if any, may be declared, and upon such declaration shall
become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture contains provisions which provide that,
without prior notice to any Holders, the Company and the Trustee may amend
the Indenture and the Securities of any series with the written consent of
the Holders of a majority in principal amount of the outstanding Securities
of all series affected by such amendment (all such series voting as one
class), and the Holders of a majority in principal amount of the
outstanding Securities of all series affected thereby (all such series
voting as one class) by written notice to the Trustee may waive future
compliance by the Company with any provision of the Indenture or the
Securities of such series; provided that, without the consent of each
Holder of the Securities of each series affected thereby, an amendment or
waiver, including a waiver of past defaults, may not: (i) change the
stated maturity of the Principal of, or any sinking fund obligation or any
installment of interest on, such Holder's Security, or reduce the principal
amount thereof or the rate of interest thereon, or any premium payable
under respect thereto, or change any place of payment where, or the
currency in which, any Security of such series or any premium or the
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the due date therefor; (ii)
reduce the percentage in principal amount of outstanding Securities of the
relevant series the consent of whose Holders is required for any waiver of
compliance with certain provisions of the Indenture or certain Defaults and
their consequences provided for in the Indenture; (iii) waive a Default in
the payment of Principal of or interest on any Security of such Holder;
(iv) adversely affect the rights of such Holder under any mandatory
redemption or repurchase provision or any right of redemption or repurchase
at the option of such Holder, or the amount thereof provable in bankruptcy;
or (v) modify any of the provisions of the Indenture governing supplemental
indentures with the consent of Securityholders except to increase any such
percentage or to provide that certain other provisions of the Indenture
cannot be modified or waived without the consent of the Holder of each
outstanding Security affected thereby.
It is also provided in the Indenture that, subject to certain
conditions, the Holders of at least a majority in principal amount (or, if any
Securities are Original Issue Discount Securities, such portion of the
principal as is then accelerable) of the outstanding Securities of all series
affected (voting as a single class), by notice to the Trustee, may waive an
existing Default or Event of Default with respect to the Securities of such
series and its consequences, except a Default in the payment of Principal of
or interest on any Security or in respect of a covenant or provision of the
Indenture which cannot be modified or amended without the consent of the
Holder of each outstanding Security affected. Upon any such waiver, such
Default shall cease to exist, and any Event of Default with respect to the
Securities of such series arising therefrom shall be deemed to have been
cured, for every purpose of the Indenture; but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any right
consequent thereto.
The Indenture provides that a series of Securities may include
one or more tranches (each a "tranche") of Securities, including Securities
issued in a Periodic Offering. The Securities of different tranches may have
one or more different terms, including authentication dates and public
offering prices, but all the Securities within each such tranche shall have
identical terms, including authentication date and public offering price.
Notwithstanding any other provision of the Indenture, subject to certain
exceptions, with respect to sections of the Indenture concerning the
execution, authentication and terms of the Securities, redemption of the
Securities, Events of Default of the Securities, defeasance of the Securities
and amendment of the Indenture, if any series of Securities includes more than
one tranche, all provisions of such sections applicable to any series of
Securities shall be deemed equally applicable to each tranche of any series
of Securities in the same manner as though originally designated a series
unless otherwise provided with respect to such series or tranche pursuant to a
board resolution or a supplemental indenture establishing such series or
tranche.
The indebtedness evidenced by the Securities is, to the extent
and in the manner provided in the Indenture, expressly subordinate and subject
in right of payment to the prior payment in full of all Senior Debt of the
Company as defined in the Indenture, whether outstanding at the date of the
Indenture or thereafter incurred, and this Security is issued subject to the
provisions of the Indenture with respect to such subordination. Each holder
of this Security, by accepting the same, agrees to and shall be bound by such
provisions and authorizes the Trustee on his behalf to take such action as may
be necessary or appropriate to effectuate the subordination so provided and
appoints the Trustee his attorney-in-fact for such purpose.
No reference herein to the Indenture and no provision of this
[Note] [Debenture] or of the Indenture shall alter or impair the obligation of
the Company, which is absolute and unconditional, to pay the Principal of and
any premium and interest on this [Note] [Debenture] in the manner, at the
place, at the respective times, at the rate and in the coin or currency herein
prescribed.
The [Notes] [Debentures] are issuable initially only in
registered form without coupons in denominations of [$1,000] or any integral
multiple thereof at the office or agency of the Company in the Borough of
Manhattan, The City of New York, and in the manner and subject to the
limitations provided in the Indenture.
[This [Note] [Debenture] will not be redeemable at the option
of the Company prior to maturity.] [This [Note] [Debenture] is redeemable
prior to maturity ...] [This Debenture is entitled to the benefits of a
mandatory sinking fund as follows ...]
Upon due presentment for registration of transfer of this
[Note] [Debenture] at the office or agency of the Company in the the City
of Chicago, Illinois, a new [Note or Notes] [Debenture or Debentures] of
authorized denominations for an equal aggregate principal amount will be
issued to the transferee in exchange therefor, subject to the limitations
provided in the Indenture, without charge except for any tax or other
governmental charge imposed in connection therewith.
The Company, the Trustee and any agent of the Company or the
Trustee may deem and treat the registered Holder hereof as the absolute owner
of this [Note] [Debenture] (whether or not this [Note] [Debenture] shall be
overdue and notwithstanding any notation of ownership or other writing
hereon), for the purpose of receiving payment of, or on account of, the
Principal hereof and, subject to the provisions hereof, interest hereon, and
for all other purposes, and neither the Company nor the Trustee nor any agent
of the Company or the Trustee shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or agreement
contained in the Indenture or any indenture supplemental thereto or in any
[Note] [Debenture], or because of any indebtedness evidenced thereby, shall be
had against any incorporator as such, or against any past, present or future
stockholder, officer, director or employee, as such, of the Company or of any
successor, either directly or through the Company or any successor, under any
rule of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance hereof and as
part of the consideration for the issue hereof.
Terms used herein which are defined in the Indenture shall have
the respective meanings assigned thereto in the Indenture.
The laws of the State of New York (without regard to conflicts
of laws principles thereof) shall govern this [Note] [Debenture].
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
______________________________________
______________________________________________________________________________
______________________________________________________________________________
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE]
______________________________________________________________________________
the within [Note] [Debenture] and all rights thereunder, hereby
______________________________________________________________________________
irrevocably constituting and appointing such person attorney
______________________________________________________________________________
to transfer such [Note] [Debenture] on the books of the Issuer, with full
______________________________________________________________________________
power of substitution in the premises.
Dated:______________________
NOTICE: The signature to this assignment must correspond with the name
as written upon the face of the within [Note] [Debenture] in
every particular without alteration or enlargement or any change
whatsoever.
Signature guarantee: ________________________
Exhibit 4.3
THE AES CORPORATION
as the Company
and
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
___________________________________
Junior Subordinated Indenture
Dated as of ______ __, 199__
___________________________________
TABLE OF CONTENTS(*)
Page
----
RECITALS OF THE COMPANY
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
(*) Note: The Table of Contents shall not for any purposes be deemed to
be a part of the Indenture.
SECTION 1.1 Definitions...................................................1
SECTION 1.2 Other Definitions.............................................9
SECTION 1.3 Incorporation by Reference of Trust Indenture Act............ 9
SECTION 1.4 Rules of Construction....................................... 10
ARTICLE 2
THE SECURITIES
SECTION 2.1 Form and Dating............................................. 11
SECTION 2.2 Execution and Authentication................................ 11
SECTION 2.3 Amount Unlimited; Issuable in Series........................ 13
SECTION 2.4 Denomination and Date of Securities; Payments of Interest... 16
SECTION 2.5 Registrar and Paying Agent; Agents Generally................ 17
SECTION 2.6 Paying Agent to Hold Money in Trust......................... 18
SECTION 2.7 Transfer and Exchange....................................... 18
SECTION 2.8 Replacement Securities...................................... 22
SECTION 2.9 Outstanding Securities...................................... 22
SECTION 2.10 Temporary Securities........................................ 23
SECTION 2.11 Cancellation................................................ 24
SECTION 2.12 CUSIP Numbers............................................... 24
SECTION 2.13 Defaulted Interest.......................................... 24
SECTION 2.14 Series May Include Tranches................................. 25
ARTICLE 3
REDEMPTION
SECTION 3.1 Applicability of Article.................................... 25
SECTION 3.2 Notice of Redemption; Partial Redemptions................... 25
SECTION 3.3 Payment of Securities Called for Redemption................. 28
SECTION 3.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption.................................... 29
SECTION 3.5 Mandatory and Optional Sinking Funds........................ 29
ARTICLE 4
COVENANTS
SECTION 4.1 Payment of Securities....................................... 32
SECTION 4.2 Maintenance of Office or Agency............................. 33
SECTION 4.3 Securityholders' Lists...................................... 34
SECTION 4.4 Certificate to Trustee...................................... 35
SECTION 4.5 Reports by the Company...................................... 35
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.1 When Company May Merge, Etc................................. 35
SECTION 5.2 Successor Substituted....................................... 36
ARTICLE 6
DEFAULT AND REMEDIES
SECTION 6.1 Events of Default........................................... 36
SECTION 6.2 Acceleration................................................ 37
SECTION 6.3 Other Remedies.............................................. 39
SECTION 6.4 Waiver of Past Defaults..................................... 39
SECTION 6.5 Control by Majority......................................... 40
SECTION 6.6 Limitation on Suits......................................... 40
SECTION 6.7 Rights of Holders to Receive Payment........................ 41
SECTION 6.8 Collection Suit by Trustee.................................. 41
SECTION 6.9 Trustee May File Proofs of Claim............................ 41
SECTION 6.10 Application of Proceeds..................................... 42
SECTION 6.11 Restoration of Rights and Remedies.......................... 43
SECTION 6.12 Undertaking for Costs....................................... 43
SECTION 6.13 Rights and Remedies Cumulative.............................. 43
SECTION 6.14 Delay or Omission Not Waiver... ........ 44
ARTICLE 7
TRUSTEE
SECTION 7.1 General..................................................... 44
SECTION 7.2 Certain Rights of Trustee................................... 44
SECTION 7.3 Individual Rights of Trustee................................ 46
SECTION 7.4 Trustee's Disclaimer........................................ 47
SECTION 7.5 Notice of Default........................................... 47
SECTION 7.6 Reports by Trustee to Holders............................... 47
SECTION 7.7 Compensation and Indemnity.................................. 48
SECTION 7.8 Replacement of Trustee...................................... 49
SECTION 7.9 Successor Trustee by Merger, Etc............................ 50
SECTION 7.10 Eligibility................................................. 50
SECTION 7.11 Money Held in Trust......................................... 50
ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS.
SECTION 8.1 Satisfaction and Discharge of Indenture..................... 51
SECTION 8.2 Application by Trustee of Funds Deposited for Payment of
Securities.................................................. 52
SECTION 8.3 Repayment of Moneys Held by Paying Agent.................... 52
SECTION 8.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed
for Two Years............................................... 52
SECTION 8.5 Defeasance and Discharge of Indenture....................... 53
SECTION 8.6 Defeasance of Certain Obligations........................... 55
SECTION 8.7 Reinstatement............................................... 56
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 Without Consent of Holders.................................. 57
SECTION 9.2 With Consent of Holders..................................... 58
SECTION 9.3 Revocation and Effect of Consent............................ 59
SECTION 9.4 Notation on or Exchange of Securities....................... 60
SECTION 9.5 Trustee to Sign Amendments, Etc............................. 60
SECTION 9.6 Conformity with Trust Indenture Act......................... 60
ARTICLE 10
MISCELLANEOUS
SECTION 10.1 Trust Indenture Act of 1939................................ 61
SECTION 10.2 Notices.................................................... 61
SECTION 10.3 Certificate and Opinion as to Conditions Precedent......... 62
SECTION 10.4 Statements Required in Certificate or Opinion.............. 62
SECTION 10.5 Evidence of Ownership...................................... 63
SECTION 10.6 Rules by Trustee, Paying Agent or Registrar................ 64
SECTION 10.7 Payment Date Other Than a Business Day..................... 64
SECTION 10.8 Governing Law.............................................. 64
SECTION 10.9 No Adverse Interpretation of Other Agreements.............. 64
SECTION 10.10 Successors................................................. 64
SECTION 10.11 Duplicate Originals........................................ 65
SECTION 10.12 Separability............................................... 65
SECTION 10.13 Table of Contents, Headings, Etc........................... 65
SECTION 10.14 Incorporators, Stockholders, Officers and Directors of
Company Exempt from Individual Liability................... 65
SECTION 10.15 Judgment Currency.......................................... 65
ARTICLE 11
SUBORDINATION OF SECURITIES
SECTION 11.1 Agreement to Subordinate................................... 66
SECTION 11.2 Payments to Securityholders................................ 66
SECTION 11.3 Subrogation of Securities.................................. 69
SECTION 11.4 Authorization by Securityholders........................... 70
SECTION 11.5 Notice to Trustee.......................................... 70
SECTION 11.6 Trustee's Relation to Senior Indebtedness.................. 71
SECTION 11.7 No Impairment of Subordination............................. 72
SIGNATURES
INDENTURE, dated as of ______ __, 199__, between The AES
Corporation., a Delaware corporation, as the Company, The First National Bank
of Chicago, a national association, as Trustee.
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the issue from time to
time of its debentures, notes or other evidences of indebtedness to be issued
in one or more series (the "Securities") up to such principal amount or
amounts as may from time to time be authorized in accordance with the terms of
this Indenture and to provide, among other things, for the authentication,
delivery and administration thereof, the Company has duly authorized the
execution and delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Securities by the holders thereof, the Company and the Trustee mutually
covenant and agree for the equal and proportionate benefit of the respective
holders from time to time of the Securities or of any and all series thereof
and of the coupons, if any, appertaining thereto as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions.
"Affiliate" of any Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such Person. For the purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling", "controlled
by" and "under common control with") when used with respect to any Person
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such Person, whether through
the ownership of voting securities, by contract or otherwise.
"Agent" means any Registrar, Paying Agent, transfer agent or
Authenticating Agent.
"Authorized Newspaper" means a newspaper (which, in the case of
The City of New York, will, if practicable, be The Wall Street Journal
(Eastern Edition) and in the case of London, will, if practicable, be the
Financial Times (London Edition) and published in an official language of the
country of publication customarily published at least once a day for at least
five days in each calendar week and of general circulation in The City of New
York or London, as applicable. If it shall be impractical in the opinion of
the Trustee to make any publication of any notice required hereby in an
Authorized Newspaper, any publication or other notice in lieu thereof which is
made or given with the approval of the Trustee shall constitute a sufficient
publication of such notice.
"Bank Credit Agreement" means the Credit Agreement dated as of
August 2, 1996 among the Company, the Banks named on the signature pages
thereof and Morgan Guaranty Trust Company of New York, as such Agreement has
been and may be amended, restated, supplemented or otherwise modified from
time to time, and includes any agreement extending the maturity of, or
restructuring (including, but not limited to, the inclusion of additional
borrowers thereunder that are Subsidiaries of the Company and whose
obligations are guaranteed by the Company thereunder) all or any portion of,
the Debt under such Agreement or any successor agreements and includes any
agreement with one or more banks or other lending institutions refinancing all
or any portion of the Debt under such Agreement or any successor agreements.
"Board Resolution" means one or more resolutions of the board
of directors of the Company or any authorized committee thereof, certified by
the secretary or an assistant secretary to have been duly adopted and to be in
full force and effect on the date of certification, and delivered to the
Trustee.
"Business Day" means any day, other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which banking institutions are
authorized or required by law or regulation to close in The City of New York,
with respect to any Security the interest on which is based on the offered
quotations in the interbank Eurodollar market for dollar deposits in London,
or with respect to Securities denominated in a specified currency other than
United States dollars, in the principal financial center of the country of the
specified currency.
"Change of Control" means the occurrence of one or more of the
following events: (i) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all, or substantially all,
of the assets of the Company to any Person or group (as that term is used in
Section 13(d)(3) of the Securities Exchange Act of 1934) of Persons, (ii) a
Person or group (as so defined) of Persons (other than management of the
Company on the date of this Indenture or their Affiliates) shall have become
the beneficial owner of more than 35% of the outstanding voting stock of the
Company, or (iii) during any one-year period, individuals who at the beginning
of such period constitute the Board of Directors (together with any new
director whose election or nomination was approved by a majority of the
directors then in office who were either directors at the beginning of such
period or who were previously so approved) cease to constitute a majority of
the Board of Directors.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act or, if at any
time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act,
then the body performing such duties at such time.
"Company" means the party named as such in the first paragraph
of this Indenture until a successor replaces it pursuant to Article 5 of this
Indenture and thereafter means the successor.
"Corporate Trust Office" means the office of the Trustee at
which the corporate trust business of the Trustee shall, at any particular
time, be principally administered, which office is, at the date of this
Indenture, located at 14 Wall Street, 8th Floor, Window 2, New York, New York
10005 Attention: Corporate Trust Administration.
"Currency Agreement" means, with respect to any Person, any
foreign exchange contract, currency swap agreement or other similar agreement
or arrangement designed to protect such Person or any of its Subsidiaries
against fluctuations in currency values to or under which such Person or any
of its Subsidiaries is a party or a beneficiary on the date hereof or becomes
a party or a beneficiary thereafter.
"Debt" means, with respect to any Person at any date of
determination (without duplication), (i) all indebtedness of such Person for
borrowed money, (ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (iii) all obligations of such
Person in respect of letters of credit or bankers' acceptance or other similar
instruments (or reimbursement obligations with respect thereto), (iv) all
obligations of such Person to pay the deferred purchase price of property or
services, except Trade Payables, (v) all obligations of such Person as lessee
under Capitalized Leases, (vi) all Debt of others secured by a Lien on any
asset of such Person, whether or not such Debt is assumed by such Person;
provided that, for purposes of determining the amount of any Debt of the type
described in this clause, if recourse with respect to such Debt is limited to
such asset, the amount of such Debt shall be limited to the lesser of the fair
market value of such asset or the amount of such Debt, (vii) all Debt of
others Guaranteed by such Person to the extent such Debt is Guaranteed by such
Person, (viii) all redeemable stock valued at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends and (ix)
to the extent not otherwise included in this definition, all obligations of
such Person under Currency Agreements and Interest Rate Agreements.
"Default" means any Event of Default as defined in Section 6.1
and any event that is, or after notice or passage of time or both would be, an
Event of Default.
"Depositary" means, with respect to the Securities of any
series issuable or issued in the form of one or more Registered Global
Securities, the Person designated as Depositary by the Company pursuant to
Section 2.3 until a successor Depositary shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Depositary" shall
mean or include each Person who is then a Depositary hereunder, and if at any
time there is more than one such Person, "Depositary" as used with respect to
the Securities of any such series shall mean the Depositary with respect to
the Registered Global Securities of that series.
"Designated Senior Indebtedness" means (i) Debt under the Bank
Credit Agreement and (ii) Debt constituting Senior Indebtedness which, at the
time of its determination, (A) has an aggregate principal amount of at least
$30 million and (B) is specifically designated in the instrument evidencing
such Senior Indebtedness as "Designated Senior Indebtedness" by the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"GAAP" means generally accepted accounting principles in the
U.S. as in effect as of the Closing Date applied on a basis consistent with
the principles, methods, procedures and practices employed in the preparation
of the Company's audited financial statements, including, without limitation,
those set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or
in such other statements by such other entity as is approved by a significant
segment of the accounting profession.
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Debt or other obligation of
any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of)
such Debt or other obligation of such other Person (whether arising by virtue
of partnership arrangements, or by agreement to keepwell, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (ii) entered into for purposes of
assuring in any other manner the obligee of such Debt or other obligation of
the payment thereof or to protect such obligee against loss in respect thereof
(in whole or in part); provided that the term "Guarantee" shall not include
endorsements for collection or deposit in the ordinary course of business.
The term "Guarantee" used as a verb has a corresponding meaning.
"Holder" or "Securityholder" means the registered holder of any
Security with respect to Registered Securities and the bearer of any
Unregistered Security or any coupon appertaining thereto, as the case may be.
"Indenture" means this Indenture as originally executed and
delivered or as it may be amended or supplemented from time to time by one or
more indentures supplemental to this Indenture entered into pursuant to the
applicable provisions of this Indenture and shall include the forms and terms
of the Securities of each series established as contemplated pursuant to
Sections 2.1 and 2.3.
"Interest Rate Agreement" means, with respect to any Person,
any interest rate protection agreement, interest rate future agreement,
interest rate option agreement, interest rate swap agreement, interest rate
cap agreement, interest rate collar agreement, interest rate hedge agreement
or other similar agreement or arrangement designed to protect such Person or
any of its Subsidiaries against fluctuations in interest rates to or under
which such Person or any of its Subsidiaries is a party or a beneficiary on
the date hereof or becomes a party or a beneficiary thereafter.
"Lien" means, with respect to any Property, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of
such Property. For purposes of this Indenture, the Company shall be deemed to
own subject to a Lien any Property which it has acquired or holds subject to
the interest of a vendor or lessor under any conditional sale agreement,
capital lease or other title retention agreement relating to such Property.
"Officer" means, with respect to the Company, the chairman of
the board of directors, the president or chief executive officer, any vice
president, the chief financial officer, the treasurer or any assistant
treasurer, or the secretary or any assistant secretary.
"Officers' Certificate" means a certificate signed in the name
of the Company (i) by the chairman of the board of directors, the president or
chief executive officer or a vice president and (ii) by the chief financial
officer, the treasurer or any assistant treasurer, or the secretary or any
assistant secretary, complying with Section 10.4 and delivered to the Trustee.
Each such certificate shall comply with Section 314 of the Trust Indenture Act
and include (except as otherwise expressly provided in this Indenture) the
statements provided in Section 10.4.
"Opinion of Counsel" means a written opinion signed by legal
counsel, who may be an employee of or counsel to the Company, satisfactory to
the Trustee and complying with Section 10.4. Each such opinion shall comply
with Section 314 of the Trust Indenture Act and include the statements
provided in Section 10.4, if and to the extent required thereby.
"original issue date" of any Security (or portion thereof)
means the earlier of (a) the date of authentication of such Security or (b)
the date of any Security (or portion thereof) for which such Security was
issued (directly or indirectly) on registration of transfer, exchange or
substitution.
"Original Issue Discount Security" means any Security that
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant to
Section 6.2.
"Periodic Offering" means an offering of Securities of a series
from time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the stated
maturity or maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by the Company or its agents upon the
issuance of such Securities.
"Person" means an individual, a corporation, a partnership, a
limited liability company, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"Principal" of a Security means the principal amount of, and,
unless the context indicates otherwise, includes any premium payable on, the
Security.
"Registered Global Security" means a Security evidencing all or
a part of a series of Registered Securities, issued to the Depositary for such
series in accordance with Section 2.2, and bearing the legend prescribed in
Section 2.2.
"Registered Security" means any Security registered on the
Security Register (as defined in Section 2.5).
"Responsible Officer" means, when used with respect to the
Trustee, any senior trust officer, any vice president, any trust officer, any
assistant trust officer, or any other officer or assistant officer of the
Trustee customarily performing functions similar to those performed by the
persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his knowledge of and familiarity
with the particular subject.
"Securities" means any of the securities, as defined in the
first paragraph of the recitals hereof, that are authenticated and delivered
under this Indenture and, unless the context indicates otherwise, shall
include any coupon appertaining thereto.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Indebtedness" means the principal of (and premium, if
any) and interest on all Debt of the Company whether created, incurred or
assumed before, on or after the date of this Indenture; provided that such
Senior Indebtedness shall not include (i) Debt of the Company that, when
incurred and without respect to any election under Section 1111(b) of Title
11, U.S. Code, was without recourse, (ii) any other Debt of the Company which
by the terms of the instrument creating or evidencing the same are
specifically designated as not being senior in right of payment to the
Securities, and in particular the Securities shall rank pari passu with all
other debt securities and guarantees issued to any trust, partnership or other
entity affiliated with the Company which is a financing vehicle of the Company
in connection with an issuance of preferred securities by such financing
entity and (iii) redeemable stock of the Company.
"Subsidiary" means, with respect to any Person, any
corporation, association or other business entity of which a majority of the
capital stock or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned by such Person.
"Trade Payables" means, with respect to any Person, any
accounts payable or any other indebtedness or monetary obligation to trade
creditors created, assumed or Guaranteed by such Person or any of its
Subsidiaries arising in the ordinary course of business in connection with the
acquisition of goods or services.
"Trustee" means the party named as such in the first paragraph
of this Indenture until a successor replaces it in accordance with the
provisions of Article 7 and thereafter means such successor.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended (15 U.S. Code Section Section 77aaa-77bbbb), as it may be amended
from time to time.
"Unregistered Security" means any Security other than a
Registered Security.
"U.S. Government Obligations" means securities that are (i)
direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (ii) obligations of an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, and shall also include a depository receipt issued by a
bank or trust company as custodian with respect to any such U.S. Government
Obligation or a specific payment of interest on or principal of any such U.S.
Government Obligation held by such custodian for the account of the holder of
a depository receipt; provided that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the holder
of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of interest
on or principal of the U.S. Government Obligation evidenced by such depository
receipt.
"Yield to Maturity" means, as the context may require, the
yield to maturity (i) on a series of Securities or (ii) if the Securities of a
series are issuable from time to time, on a Security of such series,
calculated at the time of issuance of such series in the case of clause (i) or
at the time of issuance of such Security of such series in the case of clause
(ii), or, if applicable, at the most recent redetermination of interest on
such series or on such Security, and calculated in accordance with the
constant interest method or such other accepted financial practice as is
specified in the terms of such Security.
SECTION 1.2 Other Definitions. Each of the following
terms is defined in the section set forth opposite such term:
Term Section
---- -------
Authenticating Agent 2.2
cash transaction 7.3
Dollars 4.2
Event of Default 6.1
Judgment Currency 10.15
mandatory sinking fund payment 3.5
optional sinking fund payment 3.5
Paying Agent 2.5
Payment Blockage Period 11.2
record date 2.4
Registrar 2.5
Required Currency 10.15
Security Register 2.5
self-liquidating paper 7.3
sinking fund payment date 3.5
tranche 2.14
SECTION 1.3 Incorporation by Reference of Trust Indenture
Act. Whenever this Indenture refers to a provision of the Trust Indenture
Act, the provision is incorporated by reference in and made a part of this
Indenture. The following terms used in this Indenture that are defined by the
Trust Indenture Act have the following meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Holder or a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the indenture securities means the Company or any
other obligor on the Securities.
All other terms used in this Indenture that are defined by the
Trust Indenture Act, defined by reference in the Trust Indenture Act to
another statute or defined by a rule of the Commission and not otherwise
defined herein have the meanings assigned to them therein.
SECTION 1.4 Rules of Construction. Unless the context
otherwise requires:
(i) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(ii) words in the singular include the plural, and words in
the plural include the singular;
(iii) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision;
(iv) all references to Sections or Articles refer to Sections
or Articles of this Indenture unless otherwise indicated; and
(v) use of masculine, feminine or neuter pronouns should not
be deemed a limitation, and the use of any such pronouns should be
construed to include, where appropriate, the other pronouns.
ARTICLE 2
THE SECURITIES
SECTION 2.1 Form and Dating. The Securities of each
series shall be substantially in such form or forms (not inconsistent with
this Indenture) as shall be established by or pursuant to one or more Board
Resolutions or in one or more indentures supplemental hereto, in each case
with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture and may have
imprinted or otherwise reproduced thereon such legend or legends or
endorsements, not inconsistent with the provisions of this Indenture, as may
be required to comply with any law, or with any rules of any securities
exchange or usage, all as may be determined by the officers executing such
Securities as evidenced by their execution of the Securities. Unless
otherwise so established, Unregistered Securities shall have coupons attached.
SECTION 2.2 Execution and Authentication. Two Officers
shall execute the Securities (other than coupons) for the Company by facsimile
or manual signature in the name and on behalf of the Company. The seal of the
Company, if any, shall be reproduced on the Securities. If an Officer whose
signature is on a Security no longer holds that office at the time the
Security is authenticated, the Security shall nevertheless be valid.
The Trustee, at the expense of the Company, may appoint an
authenticating agent (the "Authenticating Agent") to authenticate Securities
(other than coupons). The Authenticating Agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such Authenticating
Agent.
A Security (other than coupons) shall not be valid until the
Trustee or Authenticating Agent manually signs the certificate of
authentication on the Security. The signature shall be conclusive evidence
that the Security has been authenticated under this Indenture.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
having attached thereto appropriate coupons, if any, executed by the Company
to the Trustee for authentication together with the applicable documents
referred to below in this Section, and the Trustee shall thereupon
authenticate and deliver such Securities to or upon the written order of the
Company. In authenticating any Securities of a series, the Trustee shall be
entitled to receive prior to the first authentication of any Securities of
such series, and (subject to Article 7) shall be fully protected in relying
upon, unless and until such documents have been superseded or revoked:
(1) any Board Resolution and/or executed supplemental
indenture referred to in Sections 2.1 and 2.3 by or pursuant to which
the forms and terms of the Securities of that series were
established;
(2) an Officers' Certificate setting forth the form or forms
and terms of the Securities, stating that the form or forms and terms
of the Securities of such series have been, or will be when
established in accordance with such procedures as shall be referred
to therein, established in compliance with this Indenture; and
(3) an Opinion of Counsel substantially to the effect that the
form or forms and terms of the Securities of such series have been,
or will be when established in accordance with such procedures as
shall be referred to therein, established in compliance with this
Indenture and that the supplemental indenture, to the extent
applicable, and Securities have been duly authorized and, if executed
and authenticated in accordance with the provisions of the Indenture
and delivered to and duly paid for by the purchasers thereof on the
date of such opinion, would be entitled to the benefits of the
Indenture and would be valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective
terms, subject to bankruptcy, insolvency, reorganization,
receivership, moratorium and other similar laws affecting creditors'
rights generally, general principles of equity, and such other
matters as shall be specified therein.
If the Company shall establish pursuant to Section 2.3 that the
Securities of a series or a portion thereof are to be issued in the form of
one or more Registered Global Securities, then the Company shall execute and
the Trustee shall authenticate and deliver one or more Registered Global
Securities that (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of all of the Securities of such
series issued in such form and not yet cancelled, (ii) shall be registered in
the name of the Depositary for such Registered Global Security or Securities
or the nominee of such Depositary, (iii) shall be delivered by the Trustee to
such Depositary or its custodian or pursuant to such Depositary's instructions
and (iv) shall bear a legend substantially to the following effect: "Unless
and until it is exchanged in whole or in part for Securities in definitive
registered form, this Security may not be transferred except as a whole by the
Depositary to the nominee of the Depositary or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary or by the Depositary or
any such nominee to a successor Depositary or a nominee of such successor
Depositary."
SECTION 2.3 Amount Unlimited; Issuable in Series. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series and shall be
subordinated to the Senior Indebtedness pursuant to the provisions of Article
11 hereof. There shall be established in or pursuant to Board Resolution or
one or more indentures supplemental hereto, prior to the initial issuance of
Securities of any series, subject to the last sentence of this Section 2.3,
(1) the designation of the Securities of the series, which
shall distinguish the Securities of the series from the Securities of
all other series;
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered
under this Indenture and any limitation on the ability of the Company
to increase such aggregate principal amount after the initial
issuance of the Securities of that series (except for Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, or upon redemption of, other Securities
of the series pursuant hereto);
(3) the date or dates on which the principal of the Securities
of the series is payable (which date or dates may be fixed or
extendible);
(4) the rate or rates (which may be fixed or variable) per
annum at which the Securities of the series shall bear interest, if
any, the date or dates from which such interest shall accrue, on
which such interest shall be payable and (in the case of Registered
Securities) on which a record shall be taken for the determination of
Holders to whom interest is payable and/or the method by which such
rate or rates or date or dates shall be determined;
(5) if other than as provided in Section 4.2, the place or
places where the principal of and any interest on Securities of the
series shall be payable, any Registered Securities of the series may
be surrendered for exchange, notices, demands to or upon the Company
in respect of the Securities of the series and this Indenture may be
served and notice to Holders may be published;
(6) the right, if any, of the Company to redeem Securities of
the series, in whole or in part, at its option and the period or
periods within which, the price or prices at which and any terms and
conditions upon which Securities of the series may be so redeemed,
pursuant to any sinking fund or otherwise;
(7) the obligation, if any, of the Company to redeem, purchase
or repay Securities of the series pursuant to any mandatory
redemption, sinking fund or analogous provisions or at the option of
a Holder thereof and the price or prices at which and the period or
periods within which and any of the terms and conditions upon which
Securities of the series shall be redeemed, purchased or repaid, in
whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(9) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the maturity thereof;
(10) if other than the coin or currency in which the Securities
of the series are denominated, the coin or currency in which payment
of the principal of or interest on the Securities of the series shall
be payable or if the amount of payments of principal of and/or
interest on the Securities of the series may be determined with
reference to an index based on a coin or currency other than that in
which the Securities of the series are denominated, the manner in
which such amounts shall be determined;
(11) if other than the currency of the United States of
America, the currency or currencies, including composite currencies,
in which payment of the Principal of and interest on the Securities
of the series shall be payable, and the manner in which any such
currencies shall be valued against other currencies in which any
other Securities shall be payable;
(12) whether the Securities of the series or any portion thereof
will be issuable as Registered Securities (and if so, whether such
Securities will be issuable as Registered Global Securities) or
Unregistered Securities (with or without coupons), or any combination
of the foregoing, any restrictions applicable to the offer, sale or
delivery of Unregistered Securities or the payment of interest
thereon and, if other than as provided herein, the terms upon which
Unregistered Securities of any series may be exchanged for Registered
Securities of such series and vice versa;
(13) whether and under what circumstances the Company will pay
additional amounts on the Securities of the series held by a person
who is not a U.S. person in respect of any tax, assessment or
governmental charge withheld or deducted and, if so, whether the
Company will have the option to redeem such Securities rather than
pay such additional amounts;
(14) if the Securities of the series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
the form and terms of such certificates, documents or conditions;
(15) any trustees, depositaries, authenticating or paying
agents, transfer agents or the registrar or any other agents with
respect to the Securities of the series;
(16) provisions, if any, for the defeasance of the Securities of
the series (including provisions permitting defeasance of less than
all Securities of the series), which provisions may be in addition
to, in substitution for, or in modification of (or any combination of
the foregoing) the provisions of Article 8;
(17) if the Securities of the series are issuable in whole or in
part as one or more Registered Global Securities, the identity of the
Depositary for such Registered Global Security or Securities;
(18) any other events of default or covenants with respect to
the Securities of the series; and
(19) any other terms of the Securities of the series (which
terms shall not be inconsistent with the provisions of this
Indenture).
All Securities of any one series and coupons, if any,
appertaining thereto shall be substantially identical, except in the case of
Registered Securities as to date and denomination, except in the case of any
Periodic Offering and except as may otherwise be provided by or pursuant to
the Board Resolution referred to above or as set forth in any such indenture
supplemental hereto. All Securities of any one series need not be issued at
the same time and may be issued from time to time, consistent with the
terms of this Indenture, if so provided by or pursuant to such Board
Resolution or in any such indenture supplemental hereto and any forms and
terms of Securities to be issued from time to time may be completed and
established from time to time prior to the issuance thereof by procedures
described in such Board Resolution or supplemental indenture.
SECTION 2.4 Denomination and Date of Securities; Payments
of Interest. The Securities of each series shall be issuable as Registered
Securities or Unregistered Securities in denominations established as
contemplated by Section 2.3 or, if not so established with respect to
Securities of any series, in denominations of $1,000 and any integral multiple
thereof. The Securities of each series shall be numbered, lettered or
otherwise distinguished in such manner or in accordance with such plan as the
Officers of the Company executing the same may determine, as evidenced by
their execution thereof.
Each Security shall be dated the date of its authentication.
The Securities of each series shall bear interest, if any, from the date, and
such interest and shall be payable on the dates, established as
contemplated by Section 2.3.
The person in whose name any Registered Security of any series
is registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest payment
date, except if and to the extent the Company shall default in the payment of
the interest due on such interest payment date for such series, in which case
the provisions of Section 2.13 shall apply. The term "record date" as used
with respect to any interest payment date (except a date for payment of
defaulted interest) for the Securities of any series shall mean the date
specified as such in the terms of the Registered Securities of such series
established as contemplated by Section 2.3, or, if no such date is so
established, the fifteenth day next preceding such interest payment date,
whether or not such record date is a Business Day.
SECTION 2.5 Registrar and Paying Agent; Agents Generally.
The Company shall maintain an office or agency where Securities may be
presented for registration, registration of transfer or for exchange (the
"Registrar") and an office or agency where Securities may be presented for
payment (the "Paying Agent"), which shall be in the Borough of Manhattan, The
City of New York. The Company shall cause the Registrar to keep a register of
the Registered Securities and of their registration, transfer and exchange
(the "Security Register"). The Company may have one or more additional Paying
Agents or transfer agents with respect to any series.
The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture. The agreement shall implement
the provisions of this Indenture and the Trust Indenture Act that relate to
such Agent. The Company shall give prompt written notice to the Trustee of
the name and address of any Agent and any change in the name or address of an
Agent. If the Company fails to maintain a Registrar or Paying Agent, the
Trustee shall act as such. The Company may remove any Agent upon written
notice to such Agent and the Trustee; provided that no such removal shall
become effective until (i) the acceptance of an appointment by a successor
Agent to such Agent as evidenced by an appropriate agency agreement entered
into by the Company and such successor Agent and delivered to the Trustee or
(ii) notification to the Trustee that the Trustee shall serve as such Agent
until the appointment of a successor Agent in accordance with clause (i) of
this proviso. The Company or any affiliate of the Company may act as Paying
Agent or Registrar; provided that neither the Company nor an affiliate of the
Company shall act as Paying Agent in connection with the defeasance of the
Securities or the discharge of this Indenture under Article 8.
The Company initially appoints the Trustee as Registrar, Paying
Agent and Authenticating Agent. If, at any time, the Trustee is not the
Registrar, the Registrar shall make available to the Trustee ten days prior to
each interest payment date and at such other times as the Trustee may
reasonably request the names and addresses of the Holders as they appear in
the Security Register.
SECTION 2.6 Paying Agent to Hold Money in Trust. Not
later than 10:00 a.m. New York City time on each due date of any Principal or
interest on any Securities, the Company shall deposit with the Paying Agent
money in immediately available funds sufficient to pay such Principal or
interest. The Company shall require each Paying Agent other than the Trustee
to agree in writing that such Paying Agent shall hold in trust for the benefit
of the Holders of such Securities or the Trustee all money held by the Paying
Agent for the payment of Principal of and interest on such Securities and
shall promptly notify the Trustee of any default by the Company in making any
such payment. The Company at any time may require a Paying Agent to pay all
money held by it to the Trustee and account for any funds disbursed, and the
Trustee may at any time during the continuance of any payment default, upon
written request to a Paying Agent, require such Paying Agent to pay all money
held by it to the Trustee and to account for any funds disbursed. Upon doing
so, the Paying Agent shall have no further liability for the money so paid
over to the Trustee. If the Company or any affiliate of the Company acts as
Paying Agent, it will, on or before each due date of any Principal of or
interest on any Securities, segregate and hold in a separate trust fund for
the benefit of the Holders thereof a sum of money sufficient to pay such
Principal or interest so becoming due until such sum of money shall be paid to
such Holders or otherwise disposed of as provided in this Indenture, and will
promptly notify the Trustee in writing of its action or failure to act as
required by this Section.
SECTION 2.7 Transfer and Exchange. Unregistered
Securities (except for any temporary global Unregistered Securities) and
coupons (except for coupons attached to any temporary global Unregistered
Securities) shall be transferable by delivery.
At the option of the Holder thereof, Registered Securities of
any series (other than a Registered Global Security, except as set forth
below) may be exchanged for a Registered Security or Registered Securities of
such series and tenor having authorized denominations and an equal aggregate
principal amount, upon surrender of such Registered Securities to be exchanged
at the agency of the Company that shall be maintained for such purpose in
accordance with Section 2.5 and upon payment, if the Company shall so require,
of the charges hereinafter provided. If the Securities of any series are
issued in both registered and unregistered form, except as otherwise
established pursuant to Section 2.3, at the option of the Holder thereof,
Unregistered Securities of any series may be exchanged for Registered
Securities of such series and tenor having authorized denominations and an
equal aggregate principal amount, upon surrender of such Unregistered
Securities to be exchanged at the agency of the Company that shall be
maintained for such purpose in accordance with Section 4.2, with, in the case
of Unregistered Securities that have coupons attached, all unmatured coupons
and all matured coupons in default thereto appertaining, and upon payment, if
the Company shall so require, of the charges hereinafter provided. At the
option of the Holder thereof, if Unregistered Securities of any series,
maturity date, interest rate and original issue date are issued in more than
one authorized denomination, except as otherwise established pursuant to
Section 2.3, such Unregistered Securities may be exchanged for Unregistered
Securities of such series and tenor having authorized denominations and an
equal aggregate principal amount, upon surrender of such Unregistered
Securities to be exchanged at the agency of the Company that shall be
maintained for such purpose in accordance with Section 4.2, with, in the case
of Unregistered Securities that have coupons attached, all unmatured coupons
and all matured coupons in default thereto appertaining, and upon payment, if
the Company shall so require, of the charges hereinafter provided. Registered
Securities of any series may not be exchanged for Unregistered Securities of
such series. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Registered Securities presented for registration of
transfer, exchange, redemption or payment shall be duly endorsed by, or be
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company and the Trustee duly executed by, the holder or
his attorney duly authorized in writing.
The Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with
any exchange or registration of transfer of Securities. No service charge
shall be made for any such transaction.
Notwithstanding any other provision of this Section 2.7, unless
and until it is exchanged in whole or in part for Securities in definitive
registered form, a Registered Global Security representing all or a portion of
the Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series
or a nominee of such successor Depositary.
If at any time the Depositary for any Registered Global
Securities of any series notifies the Company that it is unwilling or unable
to continue as Depositary for such Registered Global Securities or if at any
time the Depositary for such Registered Global Securities shall no longer be
eligible under applicable law, the Company shall appoint a successor
Depositary eligible under applicable law with respect to such Registered
Global Securities. If a successor Depositary eligible under applicable law
for such Registered Global Securities is not appointed by the Company within
90 days after the Company receives such notice or becomes aware of such
ineligibility, the Company will execute, and the Trustee, upon receipt of the
Company's order for the authentication and delivery of definitive Registered
Securities of such series and tenor, will authenticate and deliver Registered
Securities of such series and tenor, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of such Registered
Global Securities, in exchange for such Registered Global Securities.
The Company may at any time and in its sole discretion
determine that any Registered Global Securities of any series shall no longer
be maintained in global form. In such event the Company will execute, and the
Trustee, upon receipt of the Company's order for the authentication and
delivery of definitive Registered Securities of such series and tenor, will
authenticate and deliver, Registered Securities of such series and tenor in
any authorized denominations, in an aggregate principal amount equal to the
principal amount of such Registered Global Securities, in exchange for such
Registered Global Securities.
Any time the Registered Securities of any series are not in the
form of Registered Global Securities pursuant to the preceding two paragraphs,
the Company agrees to supply the Trustee with a reasonable supply of
certificated Registered Securities without the legend required by Section 2.2
and the Trustee agrees to hold such Registered Securities in safekeeping until
authenticated and delivered pursuant to the terms of this Indenture.
If established by the Company pursuant to Section 2.3 with
respect to any Registered Global Security, the Depositary for such Registered
Global Security may surrender such Registered Global Security in exchange in
whole or in part for Registered Securities of the same series and tenor in
definitive registered form on such terms as are acceptable to the Company and
such Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary new Registered
Securities of the same series and tenor, of any authorized
denominations as requested by such Person, in an aggregate principal
amount equal to and in exchange for such Person's beneficial interest
in the Registered Global Security; and
(ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Registered Global Security and the
aggregate principal amount of Registered Securities authenticated and
delivered pursuant to clause (i) above.
Registered Securities issued in exchange for a Registered
Global Security pursuant to this Section 2.7 shall be registered in such names
and in such authorized denominations as the Depositary for such Registered
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee or an agent of the
Company or the Trustee. The Trustee or such agent shall deliver such
Securities to or as directed by the Persons in whose names such Securities are
so registered.
All Securities issued upon any transfer or exchange of
Securities shall be valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the forms or terms of any
Securities to the contrary, none of the Company, the Trustee or any agent of
the Company or the Trustee shall be required to exchange any Unregistered
Security for a Registered Security if such exchange would result in adverse
Federal income tax consequences to the Company (such as, for example, the
inability of the Company to deduct from its income, as computed for Federal
income tax purposes, the interest payable on the Unregistered Securities)
under then applicable United States Federal income tax laws. The Trustee and
any such agent shall be entitled to rely on an Officers' Certificate or an
Opinion of Counsel in determining such result.
The Registrar shall not be required (i) to issue, authenticate,
register the transfer of or exchange Securities of any series for a period of
15 days before a selection of such Securities to be redeemed or (ii) to
register the transfer of or exchange any Security selected for redemption in
whole or in part.
SECTION 2.8 Replacement Securities. If a defaced or
mutilated Security of any series is surrendered to the Trustee or if a Holder
claims that its Security of any series has been lost, destroyed or wrongfully
taken, the Company shall issue and the Trustee shall authenticate a
replacement Security of such series and tenor and principal amount bearing a
number not contemporaneously outstanding. If required by the Trustee or the
Company, an indemnity bond must be furnished that is sufficient in the
judgment of both the Trustee and the Company to protect the Company, the
Trustee and any Agent from any loss that any of them may suffer if a Security
is replaced. The Company may charge such Holder for its expenses and the
expenses of the Trustee (including without limitation attorneys' fees and
expenses) in replacing a Security. In case any such mutilated, defaced, lost,
destroyed or wrongfully taken Security has become or is about to become due
and payable, the Company in its discretion may pay such Security instead of
issuing a new Security in replacement thereof.
Every replacement Security is an additional obligation of the
Company and shall be entitled to the benefits of this Indenture.
To the extent permitted by law, the foregoing provisions of
this Section are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or wrongfully taken Securities.
SECTION 2.9 Outstanding Securities. Securities
outstanding at any time are all Securities that have been authenticated by the
Trustee except for those cancelled by it, those delivered to it for
cancellation and those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.8, it ceases to
be outstanding unless and until the Trustee and the Company receive proof
satisfactory to them that the replaced Security is held by a holder in due
course.
If the Paying Agent (other than the Company or an affiliate of
the Company) holds on the maturity date or any redemption date or date for
repurchase of the Securities money sufficient to pay Securities payable or to
be redeemed or repurchased on that date, then on and after that date such
Securities cease to be outstanding and interest on them shall cease to accrue.
A Security does not cease to be outstanding because the Company
or one of its affiliates holds such Security, provided, however, that, in
determining whether the Holders of the requisite principal amount of the
outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Securities owned by the
Company or any affiliate of the Company shall be disregarded and deemed not to
be outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities as to which a Responsible Officer
of the Trustee has received written notice to be so owned shall be so
disregarded. Any Securities so owned which are pledged by the Company, or by
any affiliate of the Company, as security for loans or other obligations,
otherwise than to another such affiliate of the Company, shall be deemed to be
outstanding, if the pledgee is entitled pursuant to the terms of its pledge
agreement and is free to exercise in its or his discretion the right to vote
such securities, uncontrolled by the Company or by any such affiliate.
SECTION 2.10 Temporary Securities. Until definitive
Securities of any series are ready for delivery, the Company may prepare and
the Trustee shall authenticate temporary Securities of such series. Temporary
Securities of any series shall be substantially in the form of definitive
Securities of such series but may have insertions, substitutions, omissions
and other variations determined to be appropriate by the Officers executing
the temporary Securities, as evidenced by their execution of such temporary
Securities. If temporary Securities of any series are issued, the Company
will cause definitive Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Securities of any
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series and tenor upon surrender of such
temporary Securities at the office or agency of the Company designated for
such purpose pursuant to Section 4.2, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any
series the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive
Securities of such series and tenor and authorized denominations. Until so
exchanged, the temporary Securities of any series shall be entitled to the
same benefits under this Indenture as definitive Securities of such series.
SECTION 2.11 Cancellation. The Company at any time may
deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in
any manner whatsoever, and may deliver to the Trustee for cancellation any
Securities previously authenticated hereunder which the Company has not issued
and sold. The Registrar, any transfer agent and the Paying Agent shall
forward to the Trustee any Securities surrendered to them for transfer,
exchange or payment. The Trustee shall cancel and destroy all Securities
surrendered for transfer, exchange, payment or cancellation and shall deliver
a certificate of destruction to the Company. The Company may not issue new
Securities to replace Securities it has paid in full or delivered to the
Trustee for cancellation.
SECTION 2.12 CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" and "CINS" numbers (if then generally in use), and
the Trustee shall use CUSIP numbers or CINS numbers, as the case may be, in
notices of redemption or exchange as a convenience to Holders and no
representation shall be made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of redemption or
exchange.
SECTION 2.13 Defaulted Interest. If the Company
defaults in a payment of interest on the Securities, it shall pay, or shall
deposit with the Paying Agent money in immediately available funds sufficient
to pay, the defaulted interest plus (to the extent lawful) any interest
payable on the defaulted interest (as may be specified in the terms thereof,
established pursuant to Section 2.3) to the Persons who are Holders on a
subsequent special record date, which shall mean the 15th day next preceding
the date fixed by the Company for the payment of defaulted interest, whether
or not such day is a Business Day. At least 15 days before such special
record date, the Company shall mail to each Holder and to the Trustee a notice
that states the special record date, the payment date and the amount of
defaulted interest to be paid.
SECTION 2.14 Series May Include Tranches. A series of
Securities may include one or more tranches (each a "tranche") of Securities,
including Securities issued in a Periodic Offering. The Securities of
different tranches may have one or more different terms, including
authentication dates and public offering prices, but all the Securities within
each such tranche shall have identical terms, including authentication date
and public offering price. Notwithstanding any other provision of this
Indenture, with respect to Sections 2.2 (other than the fourth paragraph
thereof) through 2.4, 2.7, 2.8, 2.10, 3.1 through 3.5, 4.2, 6.1 through 6.14,
8.1 through 8.7 and 9.2, if any series of Securities includes more than one
tranche, all provisions of such sections applicable to any series of
Securities shall be deemed equally applicable to each tranche of any series
of Securities in the same manner as though originally designated a series
unless otherwise provided with respect to such series or tranche pursuant to
Section 2.3. In particular, and without limiting the scope of the next
preceding sentence, any of the provisions of such sections which provide for
or permit action to be taken with respect to a series of Securities shall also
be deemed to provide for and permit such action to be taken instead only with
respect to Securities of one or more tranches within that series (and such
provisions shall be deemed satisfied thereby), even if no comparable action is
taken with respect to Securities in the remaining tranches of that series.
ARTICLE 3
REDEMPTION
SECTION 3.1 Applicability of Article. The provisions of
this Article shall be applicable to the Securities of any series which are
redeemable before their maturity or to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by
Section 2.3 for Securities of such series.
SECTION 3.2 Notice of Redemption; Partial Redemptions.
Notice of redemption to the Holders of Registered Securities of any series to
be redeemed as a whole or in part at the option of the Company shall be given
by mailing notice of such redemption by first class mail, postage prepaid, at
least 30 days and not more than 60 days prior to the date fixed for redemption
to such Holders of Registered Securities of such series at their last
addresses as they shall appear upon the registry books. Notice of
redemption to the Holders of Unregistered Securities of any series to be
redeemed as a whole or in part who have filed their names and addresses
with the Trustee pursuant to Section 313(c)(2) of the Trust Indenture Act,
shall be given by mailing notice of such redemption, by first class mail,
postage prepaid, at least 30 days and not more than 60 days prior to the
date fixed for redemption, to such Holders at such addresses as were so
furnished to the Trustee (and, in the case of any such notice given by the
Company, the Trustee shall make such information available to the Company
for such purpose). Notice of redemption to all other Holders of
Unregistered Securities of any series to be redeemed as a whole or in part
shall be published in an Authorized Newspaper in The City of New York or
with respect to any Security the interest on which is based on the offered
quotations in the interbank Eurodollar market for dollar deposits in an
Authorized Newspaper in London, in each case, once in each of three
successive calendar weeks, the first publication to be not less than 30
days nor more than 60 days prior to the date fixed for redemption. Any
notice which is mailed or published in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
receives the notice. Failure to give notice by mail, or any defect in the
notice to the Holder of any Security of a series designated for redemption
as a whole or in part shall not affect the validity of the proceedings for
the redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the CUSIP numbers of the Securities to be redeemed, the date fixed
for redemption, the redemption price, the place or places of payment, that
payment will be made upon presentation and surrender of such Securities and,
in the case of Securities with coupons attached thereto, of all coupons
appertaining thereto maturing after the date fixed for redemption, that such
redemption is pursuant to the mandatory or optional sinking fund, or both, if
such be the case, that interest accrued to the date fixed for redemption will
be paid as specified in such notice and that on and after said date interest
thereon or on the portions thereof to be redeemed will cease to accrue. In
case any Security of a series is to be redeemed in part only, the notice of
redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for redemption, upon
surrender of such Security, a new Security or Securities of such series and
tenor in principal amount equal to the unredeemed portion thereof will be
issued.
The notice of redemption of Securities of any series to be
redeemed at the option of the Company shall be given by the Company or, at the
Company's request, by the Trustee in the name and at the expense of the
Company.
On or before 10:00 a.m. New York City time on the redemption
date specified in the notice of redemption given as provided in this Section,
the Company will deposit with the Trustee or with one or more Paying Agents
(or, if the Company is acting as its own Paying Agent, set aside, segregate
and hold in trust as provided in Section 2.6) an amount of money sufficient to
redeem on the redemption date all the Securities of such series so called for
redemption at the appropriate redemption price, together with accrued interest
to the date fixed for redemption. If all of the outstanding Securities of a
series are to be redeemed, the Company will deliver to the Trustee at least 10
days prior to the last date on which notice of redemption may be given to
Holders pursuant to the first paragraph of this Section 3.2 (or such shorter
period as shall be acceptable to the Trustee) an Officers' Certificate stating
that all such Securities are to be redeemed. If less than all the outstanding
Securities of a series are to be redeemed, the Company will deliver to the
Trustee at least 15 days prior to the last date on which notice of redemption
may be given to Holders pursuant to the first paragraph of this Section 3.2
(or such shorter period as shall be acceptable to the Trustee) an Officers'
Certificate stating the aggregate principal amount of such Securities to be
redeemed. In case of a redemption at the election of the Company prior to the
expiration of any restriction on such redemption, the Company shall deliver to
the Trustee, prior to the giving of any notice of redemption to Holders
pursuant to this Section, an Officers' Certificate stating that such
redemption is not prohibited by such restriction.
If less than all the Securities of a series are to be redeemed,
the Trustee shall select, pro rata, by lot or in such manner as it shall deem
appropriate and fair, Securities of such series to be redeemed in whole or in
part. Securities may be redeemed in part in multiples equal to the minimum
authorized denomination for Securities of such series or any multiple thereof.
The Trustee shall promptly notify the Company in writing of the Securities of
such series selected for redemption and, in the case of any Securities of such
series selected for partial redemption, the principal amount thereof to be
redeemed. For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part,
to the portion of the principal amount of such Security which has been or is
to be redeemed.
SECTION 3.3 Payment of Securities Called for Redemption.
If notice of redemption has been given as above provided, the Securities or
portions of Securities specified in such notice shall become due and payable
on the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for
redemption, and on and after such date (unless the Company shall default in
the payment of such Securities at the redemption price, together with interest
accrued to such date) interest on the Securities or portions of Securities so
called for redemption shall cease to accrue, and the unmatured coupons, if
any, appertaining thereto shall be void and, except as provided in Sections
7.11 and 8.2, such Securities shall cease from and after the date fixed for
redemption to be entitled to any benefit under this Indenture, and the Holders
thereof shall have no right in respect of such Securities except the right to
receive the redemption price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Securities at a place of
payment specified in said notice, together with all coupons, if any,
appertaining thereto maturing after the date fixed for redemption, said
Securities or the specified portions thereof shall be paid and redeemed by the
Company at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided that payment of interest
becoming due on or prior to the date fixed for redemption shall be payable in
the case of Securities with coupons attached thereto, to the Holders of the
coupons for such interest upon surrender thereof, and in the case of
Registered Securities, to the Holders of such Registered Securities registered
as such on the relevant record date subject to the terms and provisions of
Sections 2.4 and 2.13 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
If any Security with coupons attached thereto is surrendered
for redemption and is not accompanied by all appurtenant coupons maturing
after the date fixed for redemption, the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee, if there be furnished to
each of them such security or indemnity as they may require to save each of
them harmless.
Upon presentation of any Security of any series redeemed in
part only, the Company shall execute and the Trustee shall authenticate and
deliver to or on the order of the Holder thereof, at the expense of the
Company, a new Security or Securities of such series and tenor (with any
unmatured coupons attached), of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
SECTION 3.4 Exclusion of Certain Securities from
Eligibility for Selection for Redemption. Securities shall be excluded from
eligibility for selection for redemption if they are identified by
registration and certificate number in a written statement signed by an
authorized officer of the Company and delivered to the Trustee at least 40
days prior to the last date on which notice of redemption may be given as
being owned of record and beneficially by, and not pledged or hypothecated by,
either (a) the Company or (b) an entity specifically identified in such
written statement as directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company.
SECTION 3.5 Mandatory and Optional Sinking Funds. The
minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of the Securities of any series is herein referred to as an "optional
sinking fund payment". The date on which a sinking fund payment is to be made
is herein referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Company may at
its option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except through a mandatory sinking fund
payment) by the Company or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Company and delivered to the Trustee for cancellation
pursuant to Section 2.11, (b) receive credit for optional sinking fund
payments (not previously so credited) made pursuant to this Section, or (c)
receive credit for Securities of such series (not previously so credited)
redeemed by the Company through any optional sinking fund payment. Securities
so delivered or credited shall be received or credited by the Trustee at the
sinking fund redemption price specified in such Securities.
On or before the sixtieth day next preceding each sinking fund
payment date for any series, or such shorter period as shall be acceptable to
the Trustee, the Company will deliver to the Trustee an Officers' Certificate
(a) specifying the portion of the mandatory sinking fund payment to be
satisfied by payment of cash and the portion to be satisfied by credit of
specified Securities of such series and the basis for such credit, (b) stating
that none of the specified Securities of such series has theretofore been so
credited, (c) stating that no defaults in the payment of interest or Events of
Default with respect to such series have occurred (which have not been waived
or cured) and are continuing and (d) stating whether or not the Company
intends to exercise its right to make an optional sinking fund payment with
respect to such series and, if so, specifying the amount of such optional
sinking fund payment which the Company intends to pay on or before the next
succeeding sinking fund payment date. Any Securities of such series to be
credited and required to be delivered to the Trustee in order for the Company
to be entitled to credit therefor as aforesaid which have not theretofore been
delivered to the Trustee shall be delivered for cancellation pursuant to
Section 2.11 to the Trustee with such Officers' Certificate (or reasonably
promptly thereafter if acceptable to the Trustee). Such Officers' Certificate
shall be irrevocable and upon its receipt by the Trustee the Company shall
become unconditionally obligated to make all the cash payments or delivery of
securities therein referred to, if any, on or before the next succeeding
sinking fund payment date. Failure of the Company, on or before any such
sixtieth day, to deliver such Officer's Certificate and Securities specified
in this paragraph, if any, shall not constitute a default but shall
constitute, on and as of such date, the irrevocable election of the Company
(i) that the mandatory sinking fund payment for such series due on the next
succeeding sinking fund payment date shall be paid entirely in cash without
the option to deliver or credit Securities of such series in respect thereof
and (ii) that the Company will make no optional sinking fund payment with
respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional
or both) to be made in cash on the next succeeding sinking fund payment date
plus any unused balance of any preceding sinking fund payments made in cash
shall exceed $50,000 (or a lesser sum if the Company shall so request with
respect to the Securities of any series), such cash shall be applied on the
next succeeding sinking fund payment date to the redemption of Securities of
such series at the sinking fund redemption price thereof together with accrued
interest thereon to the date fixed for redemption. If such amount shall be
$50,000 (or such lesser sum) or less and the Company makes no such request
then it shall be carried over until a sum in excess of $50,000 (or such lesser
sum) is available. The Trustee shall select, in the manner provided in
Section 3.2, for redemption on such sinking fund payment date a sufficient
principal amount of Securities of such series to absorb said cash, as
nearly as may be, and shall (if requested in writing by the Company) inform
the Company of the serial numbers of the Securities of such series (or
portions thereof) so selected. Securities shall be excluded from
eligibility for redemption under this Section if they are identified by
registration and certificate number in an Officers' Certificate delivered
to the Trustee at least 60 days prior to the sinking fund payment date as
being owned of record and beneficially by, and not pledged or hypothecated
by either (a) the Company or (b) an entity specifically identified in such
Officers' Certificate as directly or indirectly controlling or controlled
by or under direct or indirect common control with the Company. The
Trustee, in the name and at the expense of the Company (or the Company, if
it shall so request the Trustee in writing) shall cause notice of
redemption of the Securities of such series to be given in substantially
the manner provided in Section 3.2 (and with the effect provided in Section
3.3) for the redemption of Securities of such series in part at the option
of the Company. The amount of any sinking fund payments not so applied or
allocated to the redemption of Securities of such series shall be added to
the next cash sinking fund payment for such series and, together with such
payment, shall be applied in accordance with the provisions of this
Section. Any and all sinking fund moneys held on the stated maturity date
of the Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of
particular Securities of such series shall be applied, together with other
moneys, if necessary, sufficient for the purpose, to the payment of the
Principal of, and interest on, the Securities of such series at maturity.
On or before 10:00 a.m. New York City time on each sinking fund
payment date, the Company shall pay to the Trustee in cash or shall otherwise
provide for the payment of all interest accrued to the date fixed for
redemption on Securities to be redeemed on the next following sinking fund
payment date.
The Trustee shall not redeem or cause to be redeemed any
Securities of a series with sinking fund moneys or mail any notice of
redemption of Securities of such series by operation of the sinking fund
during the continuance of a Default in payment of interest on such Securities
or of any Event of Default except that, where the mailing of notice of
redemption of any Securities shall theretofore have been made, the Trustee
shall redeem or cause to be redeemed such Securities, provided that it shall
have received from the Company a sum sufficient for such redemption. Except
as aforesaid, any moneys in the sinking fund for such series at the time when
any such Default or Event of Default shall occur, and any moneys thereafter
paid into the sinking fund, shall, during the continuance of such default or
Event of Default, be deemed to have been collected under Article 6 and held
for the payment of all such Securities. In case such Event of Default shall
have been waived as provided in Section 6.4 or the Default cured on or before
the sixtieth day preceding the sinking fund payment date in any year, such
moneys shall thereafter be applied on the next succeeding sinking fund payment
date in accordance with this Section to the redemption of such Securities.
ARTICLE 4
COVENANTS
SECTION 4.1 Payment of Securities. The Company shall pay
the Principal of and interest on the Securities on the dates and in the manner
provided in the Securities and this Indenture. The interest on Securities
with coupons attached (together with any additional amounts payable pursuant
to the terms of such Securities) shall be payable only upon presentation and
surrender of the several coupons for such interest installments as are
evidenced thereby as they severally mature. The interest on any temporary
Unregistered Securities (together with any additional amounts payable pursuant
to the terms of such Securities) shall be paid, as to the installments of
interest evidenced by coupons attached thereto, if any, only upon presentation
and surrender thereof, and, as to the other installments of interest, if any,
only upon presentation of such Unregistered Securities for notation thereon of
the payment of such interest. The interest on Registered Securities (together
with any additional amounts payable pursuant to the terms of such Securities)
shall be payable only to the Holders thereof and at the option of the Company
may be paid by mailing checks for such interest payable to or upon the written
order of such Holders at their last addresses as they appear on the Security
Register of the Company.
Notwithstanding any provisions of this Indenture and the
Securities of any series to the contrary, if the Company and a Holder of any
Registered Security so agree, payments of interest on, and any portion of the
Principal of, such Holder's Registered Security (other than interest payable
at maturity or on any redemption or repayment date or the final payment of
Principal on such Security) shall be made by the Paying Agent, upon receipt
from the Company of immediately available funds by 11:00 A.M., New York City
time (or such other time as may be agreed to between the Company and the
Paying Agent), directly to the Holder of such Security (by Federal funds wire
transfer or otherwise) if the Holder has delivered written instructions to the
Trustee 15 days prior to such payment date requesting that such payment will
be so made and designating the bank account to which such payments shall be so
made and in the case of payments of Principal, surrenders the same to the
Trustee in exchange for a Security or Securities aggregating the same
principal amount as the unredeemed principal amount of the Securities
surrendered. The Trustee shall be entitled to rely on the last instruction
delivered by the Holder pursuant to this Section 4.1 unless a new instruction
is delivered 15 days prior to a payment date. The Company will indemnify and
hold each of the Trustee and any Paying Agent harmless against any loss,
liability or expense (including attorneys' fees) resulting from any act or
omission to act on the part of the Company or any such Holder in connection
with any such agreement or from making any payment in accordance with any such
agreement.
The Company shall pay interest on overdue Principal, and
interest on overdue installments of interest, to the extent lawful, at the
rate per annum specified in the Securities.
SECTION 4.2 Maintenance of Office or Agency. The Company
will maintain in the Borough of Manhattan, The City of New York, an office or
agency where Securities may be surrendered for registration of transfer or
exchange or for presentation for payment and where notices and demands to or
upon the Company in respect of the Securities and this Indenture may be
served. The Company hereby initially designates the Corporate Trust Office of
the Trustee, located in the Borough of Manhattan, The City of New York, as
such office or agency of the Company. The Company will give prompt written
notice to the Trustee of the location, and any change in the location, of such
office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be
made or served at the address of the Trustee set forth in Section 10.2.
The Company will maintain one or more agencies in a city or
cities located outside the United States (including any city in which such an
agency is required to be maintained under the rules of any stock exchange on
which the Securities of any series are listed) where the Unregistered
Securities, if any, of each series and coupons, if any, appertaining thereto
may be presented for payment. No payment on any Unregistered Security or
coupon will be made upon presentation of such Unregistered Security or coupon
at an agency of the Company within the United States nor will any payment be
made by transfer to an account in, or by mail to an address in, the United
States unless, pursuant to applicable United States laws and regulations then
in effect, such payment can be made without adverse tax consequences to the
Company. Notwithstanding the foregoing, if full payment in United States
Dollars ("Dollars") at each agency maintained by the Company outside the
United States for payment on such Unregistered Securities or coupons
appertaining thereto is illegal or effectively precluded by exchange controls
or other similar restrictions, payments in Dollars of Unregistered Securities
of any series and coupons appertaining thereto which are payable in Dollars
may be made at an agency of the Company maintained in the Borough of
Manhattan, The City of New York.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of any series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or
agency in the Borough of Manhattan, The City of New York for such purposes.
The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
SECTION 4.3 Securityholders' Lists. The Company will
furnish or cause to be furnished to the Trustee a list in such form as the
Trustee may reasonably require of the names and addresses of the holders of
the Securities pursuant to Section 312 of the Trust Indenture Act of 1939 (a)
semi-annually not more than 15 days after each record date for the payment of
semi-annual interest on the Securities, as hereinabove specified, as of such
record date, and (b) at such other times as the Trustee may request in
writing, within thirty days after receipt by the Company of any such request
as of a date not more than 15 days prior to the time such information is
furnished.
SECTION 4.4 Certificate to Trustee. The Company will
furnish to the Trustee annually, on or before a date not more than four months
after the end of its fiscal year (which, on the date hereof, is a calendar
year), a brief certificate (which need not contain the statements required by
Section 10.4) from its principal executive, financial or accounting officer as
to his or her knowledge of the compliance of the Company with all conditions
and covenants under this Indenture (such compliance to be determined without
regard to any period of grace or requirement of notice provided under this
Indenture) which certificate shall comply with the requirements of the Trust
Indenture Act.
SECTION 4.5 Reports by the Company. The Company
covenants to file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents, and other reports which the Company may be
required to file with the Commission pursuant to Section 13 or Section 15(d)
of the Exchange Act.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.1 When Company May Merge, Etc. The Company
shall not consolidate with, merge with or into, or sell, convey, transfer,
lease or otherwise dispose of all or substantially all of its property and
assets (as an entirety or substantially as an entirety in one transaction or a
series of related transactions) to, any Person (other than a consolidation
with or merger with or into a Subsidiary or a sale, conveyance, transfer,
lease or other disposition to a Subsidiary) or permit any Person to merge with
or into the Company unless either (x) the Company shall be the continuing
Person or (y) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or to which properties and
assets of the Company shall be a corporation organized and validly existing
under the laws of the United States of America or any jurisdiction thereof and
shall expressly assume, by a supplemental indenture, executed and delivered to
the Trustee, all of the obligations of the Company on all of the Securities
and under this Indenture and the Company shall have delivered to the Trustee
(A) an Opinion of Counsel stating that such consolidation, merger or transfer
and such supplemental indenture complies with this provision and that all
conditions precedent provided for herein relating to such transaction have
been complied with and that such supplemental indenture constitutes the legal,
valid and binding obligation of the Company or such successor enforceable
against such entity in accordance with its terms, subject to customary
exceptions and (B) an Officers' Certificate to the effect that immediately
after giving effect to such transaction, no Default shall have occurred and be
continuing.
SECTION 5.2 Successor Substituted. Upon any
consolidation or merger, or any sale, conveyance, transfer, lease or other
disposition of all or substantially all of the property and assets of the
Company in accordance with Section 5.1 of this Indenture, the successor Person
formed by such consolidation or into which the Company is merged or to which
such sale, conveyance, transfer, lease or other disposition is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein.
ARTICLE 6
DEFAULT AND REMEDIES
SECTION 6.1 Events of Default. An "Event of Default"
shall occur with respect to the Securities of any series if:
(a) the Company defaults in the payment of the Principal of
any Security of such series when the same becomes due and payable at
maturity, upon acceleration, redemption or mandatory repurchase,
including as a sinking fund installment, or otherwise;
(b) the Company defaults in the payment of interest on any
Security of such series when the same becomes due and payable, and
such default continues for a period of 30 days;
(c) the Company defaults in the performance of or breaches any
other covenant or agreement of the Company in this Indenture with
respect to any Security of such series or in the Securities of such
series and such default or breach continues for a period of 30
consecutive days after written notice to the Company by the Trustee
or to the Company and the Trustee by the Holders of 25% or more in
aggregate principal amount of the Securities of all series affected
thereby;
(d) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Company in an
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Company or for any substantial part of its property
or ordering the winding up or liquidation of its affairs, and such
decree or order shall remain unstayed and in effect for a period of
60 consecutive days;
(e) the Company (A) commences a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consents to the entry of an order for relief
in an involuntary case under any such law, (B) consents to the
appointment of or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of the
Company or for all or substantially all of the property and assets of
the Company or (C) effects any general assignment for the benefit of
creditors; or
(f) any other Event of Default established pursuant to Section
2.3 with respect to the Securities of such series occurs.
SECTION 6.2 Acceleration. (a) If an Event of Default
other than as described in clauses (d) or (e) of Section 6.1 with respect to
the Securities of any series then outstanding occurs and is continuing, then,
and in each and every such case, except for any series of Securities the
principal of which shall have already become due and payable, either the
Trustee or the Holders of not less than 25% in aggregate principal amount of
the Securities of any such affected series then outstanding hereunder (each
such series treated as a separate class) by notice in writing to the Company
(and to the Trustee if given by Securityholders), may declare the entire
principal (or, if the Securities of any such series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series established pursuant to Section 2.3) of all Securities of
such affected series, and the interest accrued thereon, if any, to be due and
payable immediately, and upon any such declaration the same shall become
immediately due and payable.
(b) If an Event of Default described in clause (d) or (e) of
Section 6.1 occurs and is continuing, then the principal amount (or, if any
Securities are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms thereof established pursuant to
Section 2.3) of all the Securities then outstanding and interest accrued
thereon, if any, shall be and become immediately due and payable, subject to
the prior payment in full of all Senior Indebtedness, without any notice or
other action by any Holder or the Trustee, to the full extent permitted by
applicable law.
The foregoing provisions, however, are subject to the condition
that if, at any time after the principal (or, if the Securities are Original
Issue Discount Securities, such portion of the principal as may be specified
in the terms thereof established pursuant to Section 2.3) of the Securities of
any series (or of all the Securities, as the case may be) shall have been so
declared due and payable, and before any judgment or decree for the payment of
the moneys due shall have been obtained or entered as hereinafter provided,
the Company shall pay or shall deposit with the Trustee a sum sufficient to
pay all matured installments of interest upon all the Securities of each such
series (or of all the Securities, as the case may be) and the principal of any
and all Securities of each such series (or of all the Securities, as the case
may be) which shall have become due otherwise than by acceleration (with
interest upon such principal and, to the extent that payment of such interest
is enforceable under applicable law, on overdue installments of interest, at
the same rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in the Securities of each such
series to the date of such payment or deposit) and such amount as shall be
sufficient to cover all amounts owing the Trustee under Section 7.7, and if
any and all Events of Default under the Indenture, other than the
non-payment of the principal of Securities which shall have become due by
acceleration, shall have been cured, waived or otherwise remedied as
provided herein, then and in every such case the Holders of a majority in
aggregate principal amount of all the then outstanding Securities of all
such series that have been accelerated (voting as a single class), by
written notice to the Company and to the Trustee, may waive all defaults
with respect to all such series (or with respect to all the Securities, as
the case may be) and rescind and annul such declaration and its
consequences, but no such waiver or rescission and annulment shall extend
to or shall affect any subsequent default or shall impair any right
consequent thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been
accelerated and declared due and payable pursuant to the provisions hereof,
then, from and after such declaration, unless such declaration has been
rescinded and annulled, the principal amount of such Original Issue Discount
Securities shall be deemed, for all purposes hereunder, to be such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, and payment of such portion of the principal thereof as shall be
due and payable as a result of such acceleration, together with interest, if
any, thereon and all other amounts owing thereunder, shall constitute payment
in full of such Original Issue Discount Securities.
SECTION 6.3 Other Remedies. If a payment default or an
Event of Default with respect to the Securities of any series occurs and is
continuing, the Trustee may pursue, in its own name or as trustee of an
express trust, any available remedy by proceeding at law or in equity to
collect the payment of principal of and interest on the Securities of such
series or to enforce the performance of any provision of the Securities of
such series or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the
proceeding.
SECTION 6.4 Waiver of Past Defaults. Subject to Sections
6.2, 6.7 and 9.2, the Holders of at least a majority in principal amount (or,
if the Securities are Original Issue Discount Securities, such portion of the
principal as is then accelerable under Section 6.2) of the outstanding
Securities of all series affected (voting as a single class), by notice to the
Trustee, may waive an existing Default or Event of Default with respect to the
Securities of such series and its consequences, except a Default in the
payment of Principal of or interest on any Security as specified in clauses
(a) or (b) of Section 6.1 or in respect of a covenant or provision of this
Indenture which cannot be modified or amended without the consent of the
Holder of each outstanding Security affected. Upon any such waiver, such
Default shall cease to exist, and any Event of Default with respect to the
Securities of such series arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right
consequent thereto.
SECTION 6.5 Control by Majority. Subject to Sections 7.1
and 7.2(v), the Holders of at least a majority in aggregate principal amount
(or, if any Securities are Original Issue Discount Securities, such portion of
the principal as is then accelerable under Section 6.2) of the outstanding
Securities of all series affected (voting as a single class) may direct the
time, method and place of conducting any proceeding for any remedy available
to the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Securities of such series by this Indenture; provided, that the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture, that may involve the Trustee in personal liability or that the
Trustee determines in good faith may be unduly prejudicial to the rights of
Holders not joining in the giving of such direction; and provided further,
that the Trustee may take any other action it deems proper that is not
inconsistent with any directions received from Holders of Securities
pursuant to this Section 6.5.
SECTION 6.6 Limitation on Suits. No Holder of any
Security of any series may institute any proceeding, judicial or otherwise,
with respect to this Indenture or the Securities of such series, or for the
appointment of a receiver or trustee, or for any other remedy hereunder,
unless:
(i) such Holder has previously given to the Trustee written
notice of a continuing Event of Default with respect to the
Securities of such series;
(ii) the Holders of at least 25% in aggregate principal amount
of outstanding Securities of all such series affected shall have made
written request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee
indemnity reasonably satisfactory to the Trustee against any costs,
liabilities or expenses to be incurred in compliance with such
request;
(iv) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(v) during such 60-day period, the Holders of a majority in
aggregate principal amount of the outstanding Securities of all such
affected series have not given the Trustee a direction that is
inconsistent with such written request.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over such other Holder.
SECTION 6.7 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
of a Security to receive payment of Principal of or interest, if any, on such
Holder's Security on or after the respective due dates expressed on such
Security, or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent
of such Holder.
SECTION 6.8 Collection Suit by Trustee. If an Event of
Default with respect to the Securities of any series in payment of Principal
or interest specified in clause (a) or (b) of Section 6.1 occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company for the whole amount (or such portion
thereof as specified in the terms established pursuant to Section 2.3 of
Original Issue Discount Securities) of Principal of, and accrued interest
remaining unpaid on, together with interest on overdue Principal of, and, to
the extent that payment of such interest is lawful, interest on overdue
installments of interest on, the Securities of such series, in each case at
the rate or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in such Securities, and such further amount as shall be
sufficient to cover all amounts owing the Trustee under Section 7.7.
SECTION 6.9 Trustee May File Proofs of Claim. The
Trustee may file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including
any claim for amounts due the Trustee under Section 7.7) and the Holders
allowed in any judicial proceedings relative to the Company (or any other
obligor on the Securities), its creditors or its property and shall be
entitled and empowered to collect and receive any moneys, securities or other
property payable or deliverable upon conversion or exchange of the Securities
or upon any such claims and to distribute the same, and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Holder
to make such payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it under Section 7.7. Nothing herein contained
shall be deemed to empower the Trustee to authorize or consent to, or accept
or adopt on behalf of any Holder, any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
SECTION 6.10 Application of Proceeds. Any moneys
collected by the Trustee pursuant to this Article in respect of the Securities
of any series shall be applied in the following order at the date or dates
fixed by the Trustee and, in case of the distribution of such moneys on
account of Principal or interest, upon presentation of the several Securities
and coupons appertaining to such Securities in respect of which moneys have
been collected and noting thereon the payment, or issuing Securities of such
series and tenor in reduced principal amounts in exchange for the presented
Securities of such series and tenor if only partially paid, or upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 7.7 applicable to the Securities of such series in respect of
which moneys have been collected;
SECOND: In case the principal of the Securities of such series
in respect of which moneys have been collected shall not have become
and be then due and payable, to the payment of interest on the
Securities of such series in default in the order of the maturity of
the installments of such interest, with interest (to the extent that
such interest has been collected by the Trustee) upon the overdue
installments of interest at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities)
specified in such Securities, such payments to be made ratably to the
persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such series
in respect of which moneys have been collected shall have become and
shall be then due and payable, to the payment of the whole amount
then owing and unpaid upon all the Securities of such series for
Principal and interest, with interest upon the overdue Principal, and
(to the extent that such interest has been collected by the Trustee)
upon overdue installments of interest at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such series; and in case
such moneys shall be insufficient to pay in full the whole amount so
due and unpaid upon the Securities of such series, then to the
payment of such Principal and interest or Yield to Maturity, without
preference or priority of Principal over interest or Yield to
Maturity, or of interest or Yield to Maturity over Principal, or of
any installment of interest over any other installment of interest,
or of any Security of such series over any other Security of such
series, ratably to the aggregate of such Principal and accrued and
unpaid interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the
Company or any other person lawfully entitled thereto.
SECTION 6.11 Restoration of Rights and Remedies. If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then, and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored to
their former positions hereunder and thereafter all rights and remedies of the
Company, Trustee and the Holders shall continue as though no such proceeding
had been instituted.
SECTION 6.12 Undertaking for Costs. In any suit
for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as Trustee, in
either case in respect to the Securities of any series, a court may require
any party litigant in such suit (other than the Trustee) to file an
undertaking to pay the costs of the suit, and the court may assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant (other than the Trustee) in the suit having due regard to the
merits and good faith of the claims or defenses made by the party litigant.
This Section 6.12 does not apply to a suit by a Holder pursuant to Section
6.7 or a suit by Holders of more than 10% in principal amount of the
outstanding Securities of such series.
SECTION 6.13 Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or wrongfully taken Securities in Section 2.8, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 6.14 Delay or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article 6 or by law to the Trustee or to
the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
ARTICLE 7
TRUSTEE
SECTION 7.1 General. The duties and responsibilities of
the Trustee shall be as provided by the Trust Indenture Act and as set forth
herein. Notwithstanding the foregoing, no provision of this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, unless it receives indemnity
satisfactory to it against any loss, liability or expense. Whether or not
therein expressly so provided, every provision of this Indenture relating to
the conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Article 7.
SECTION 7.2 Certain Rights of Trustee. Subject to Trust
Indenture Act Sections 315(a) through (d):
(i) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, Officers'
Certificate, Opinion of Counsel (or both), statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper person or persons. The Trustee need not
investigate any fact or matter stated in the document, but the
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit;
(ii) before the Trustee acts or refrains from acting, it may
require an Officers' Certificate and/or an Opinion of Counsel, which
shall conform to Section 10.4. The Trustee shall not be liable for
any action it takes or omits to take in good faith in reliance on
such certificate or opinion. Subject to Sections 7.1 and 7.2,
whenever in the administration of the trusts of this Indenture the
Trustee shall deem it necessary or desirable that a matter be proved
or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or
bad faith on the part of the Trustee, be deemed to be conclusively
proved and established by an Officers' Certificate delivered to the
Trustee, and such certificate, in the absence of negligence or bad
faith on the part of the Trustee, shall be full warrant to the
Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof;
(iii) the Trustee may act through its attorneys and agents not
regularly in its employ and shall not be responsible for the
misconduct or negligence of any agent or attorney appointed with due
care;
(iv) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any Board Resolution may be evidenced
to the Trustee by a copy thereof certified by the Secretary or an
Assistant Secretary of the Company;
(v) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the
request, order or direction of any of the Holders, unless such
Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction;
(vi) the Trustee shall not be liable for any action it takes
or omits to take in good faith that it believes to be authorized or
within its rights or powers or for any action it takes or omits to
take in accordance with the direction of the Holders in accordance
with Section 6.5 relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture;
(vii) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon; and
(viii) prior to the occurrence of an Event of Default hereunder
and after the curing or waiving of all Events of Default, the Trustee
shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, Officers'
Certificate, Opinion of Counsel, Board Resolution, statement,
instrument, opinion, report, notice, request, consent, order,
approval, appraisal, bond, debenture, note, coupon, security, or
other paper or document unless requested in writing so to do by
the Holders of not less than a majority in aggregate principal
amount of the Securities of all series affected then outstanding;
provided that, if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such expenses or
liabilities as a condition to proceeding.
SECTION 7.3 Individual Rights of Trustee. The Trustee,
in its individual or any other capacity, may become the owner or pledgee of
Securities and may otherwise deal with the Company or its Affiliates with the
same rights it would have if it were not the Trustee. Any Agent may do the
same with like rights. However, the Trustee is subject to Trust Indenture Act
Sections 310(b) and 311. For purposes of Trust Indenture Act Section
311(b)(4) and (6), the following terms shall mean:
(a) "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after delivery
of the goods or securities in currency or in checks or other orders drawn upon
banks or bankers and payable upon demand; and
(b) "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase, processing,
manufacturing, shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to, possession of, or a lien
upon, the goods, wares or merchandise or the receivables or proceeds arising
from the sale of the goods, wares or merchandise previously constituting the
security, provided the security is received by the Trustee simultaneously with
the creation of the creditor relationship with the Company arising from the
making, drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation.
SECTION 7.4 Trustee's Disclaimer. The recitals contained
herein and in the Securities (except the Trustee's certificate of
authentication) shall be taken as statements of the Company and not of the
Trustee and the Trustee assumes no responsibility for the correctness of the
same. Neither the Trustee nor any of its agents (i) makes any representation
as to the validity or adequacy of this Indenture or the Securities and (ii)
shall be accountable for the Company's use or application of the proceeds from
the Securities.
SECTION 7.5 Notice of Default. If any Default with
respect to the Securities of any series occurs and is continuing and if such
Default is known to the actual knowledge of a Responsible Officer with the
Corporate Trust Department of the Trustee, the Trustee shall give to each
Holder of Securities of such series notice of such Default within 90 days
after it occurs (i) if any Unregistered Securities of such series are then
outstanding, to the Holders thereof, by publication at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New York and at
least once in an Authorized Newspaper in London and (ii) to all Holders of
Securities of such series in the manner and to the extent provided in Section
313(c) of the Trust Indenture Act, unless such Default shall have been cured
or waived before the mailing or publication of such notice; provided, however,
that, except in the case of a Default in the payment of the Principal of or
interest on any Security, the Trustee shall be protected in withholding such
notice if the Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders.
SECTION 7.6 Reports by Trustee to Holders. Within 60
days after each May 15, beginning with May 15, 1996, the Trustee shall mail to
each Holder as and to the extent provided in Trust Indenture Act Section
313(c) a brief report dated as of such May 15, if required by Trust Indenture
Act Section 313(a).
SECTION 7.7 Compensation and Indemnity. The Company
shall pay to the Trustee such compensation as shall be agreed upon in writing
from time to time for its services. The compensation of the Trustee shall not
be limited by any law on compensation of a Trustee of an express trust. The
Company shall reimburse the Trustee upon request for all reasonable
out-of-pocket expenses, disbursements and advances incurred or made by the
Trustee. Such expenses shall include the reasonable compensation and expenses
of the Trustee's agents, counsel and other persons not regularly in its
employ.
The Company shall indemnify the Trustee for, and hold it
harmless against, any loss or liability or expense incurred by it without
negligence or bad faith on its part arising out of or in connection with the
acceptance or administration of this Indenture and the Securities or the
issuance of the Securities or of series thereof or the trusts hereunder and
the performance of duties under this Indenture and the Securities, including
the costs and expenses of defending itself against or investigating any claim
or liability and of complying with any process served upon it or any of its
officers in connection with the exercise or performance of any of its powers
or duties under this Indenture and the Securities.
To secure the Company's payment obligations in this Section
7.7, the Trustee shall have a lien prior to the Securities on all money or
property held or collected by the Trustee, in its capacity as Trustee, except
money or property held in trust to pay Principal of, and interest on
particular Securities.
The obligations of the Company under this Section to compensate
and indemnify the Trustee and each predecessor Trustee and to pay or reimburse
the Trustee and each predecessor Trustee for expenses, disbursements and
advances shall constitute additional indebtedness hereunder and shall survive
the satisfaction and discharge of this Indenture or the rejection or
termination of this Indenture under bankruptcy law. Such additional
indebtedness shall be a senior claim to that of the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the Holders of particular Securities or coupons,
and the Securities are hereby subordinated to such senior claim. If the
Trustee renders services and incurs expenses following an Event of Default
under Section 6.1(d) or Section 6.1(e) hereof, the parties hereto and the
holders by their acceptance of the Securities hereby agree that such expenses
are intended to constitute expenses of administration under any bankruptcy
law.
SECTION 7.8 Replacement of Trustee. A resignation or
removal of the Trustee as Trustee with respect to the Securities of any series
and appointment of a successor Trustee as Trustee with respect to the
Securities of any series shall become effective only upon the successor
Trustee's acceptance of appointment as provided in this Section 7.8.
The Trustee may resign as Trustee with respect to the
Securities of any series at any time by so notifying the Company in writing.
The Holders of a majority in principal amount of the outstanding Securities of
any series may remove the Trustee as Trustee with respect to the Securities
of such series by so notifying the Trustee in writing and may appoint a
successor Trustee with respect thereto with the consent of the Company. The
Company may remove the Trustee as Trustee with respect to the Securities of
any series if: (i) the Trustee is no longer eligible under Section 7.10 of
this Indenture; (ii) the Trustee is adjudged a bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the Trustee or its
property; or (iv) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed as Trustee with respect to
the Securities of any series, or if a vacancy exists in the office of Trustee
with respect to the Securities of any series for any reason, the Company shall
promptly appoint a successor Trustee with respect thereto. Within one year
after the successor Trustee takes office, the Holders of a majority in
principal amount of the outstanding Securities of such series may appoint a
successor Trustee in respect of such Securities to replace the successor
Trustee appointed by the Company. If the successor Trustee with respect to
the Securities of any series does not deliver its written acceptance required
by the next succeeding paragraph of this Section 7.8 within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of a majority in principal amount of the outstanding Securities of
such series may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect thereto.
A successor Trustee with respect to the Securities of any
series shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Immediately after the delivery of such written
acceptance, subject to the lien provided for in Section 7.7, (i) the retiring
Trustee shall transfer all property held by it as Trustee in respect of the
Securities of such series to the successor Trustee, (ii) the resignation or
removal of the retiring Trustee in respect of the Securities of such series
shall become effective and (iii) the successor Trustee shall have all the
rights, powers and duties of the Trustee in respect of the Securities of such
series under this Indenture. A successor Trustee shall mail notice of its
succession to each Holder of Securities of such series.
Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in the preceding paragraph.
The Company shall give notice of any resignation and any
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee in respect of the Securities of such series
to all Holders of Securities of such series. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
Notwithstanding replacement of the Trustee with respect to the
Securities of any series pursuant to this Section 7.8, the Company's
obligations under Section 7.7 shall continue for the benefit of the retiring
Trustee.
SECTION 7.9 Successor Trustee by Merger, Etc. If the
Trustee consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation or
national banking association, the resulting, surviving or transferee
corporation or national banking association without any further act shall be
the successor Trustee with the same effect as if the successor Trustee had
been named as the Trustee herein.
SECTION 7.10 Eligibility. This Indenture shall always
have a Trustee who satisfies the requirements of Trust Indenture Act Section
310(a). The Trustee shall have a combined capital and surplus of at least
$25,000,000 as set forth in its most recent published annual report of
condition.
SECTION 7.11 Money Held in Trust. The Trustee shall not
be liable for interest on any money received by it except as the Trustee may
agree in writing with the Company. Money held in trust by the Trustee need
not be segregated from other funds except to the extent required by law and
except for money held in trust under Article 8 of this Indenture.
ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS.
SECTION 8.1 Satisfaction and Discharge of Indenture. If
at any time (a) the Company shall have paid or caused to be paid the principal
of and interest on all the Securities of any series outstanding hereunder
(other than Securities of such series which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 2.8) as and
when the same shall have become due and payable, or (b) the Company shall have
delivered to the Trustee for cancellation all securities of any series
theretofore authenticated (other than any Securities of such series which
shall have been destroyed, lost or stolen and which shall have been replaced
or paid as provided in Section 2.8) or (c) (i) all the securities of such
series not theretofore delivered to the Trustee for cancellation shall have
become due and payable, or are by their terms to become due and payable within
one year or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and (ii)
the Company shall have irrevocably deposited or caused to be deposited with
the Trustee as trust funds the entire amount in cash (other than moneys
repaid by the Trustee or any paying agent to the Company in accordance with
Section 8.4) or U.S. Government Obligations, maturing as to principal and
interest in such amounts and at such times as will insure the availability
of cash sufficient to pay at maturity or upon redemption all Securities of
such series (other than any Securities of such series which shall have been
destroyed, lost or stolen and which shall have been replaced or paid as
provided in Section 2.8) not theretofore delivered to the Trustee for
cancellation, including principal and interest due or to become due on or
prior to such date of maturity as the case may be, and if, in any such
case, the Company shall also pay or cause to be paid all other sums payable
hereunder by the Company with respect to Securities of such series, then
this Indenture shall cease to be of further effect with respect to
Securities of such series (except as to (i) rights of registration of
transfer and exchange os securities of such series, and the Company's right
of optional redemption, if any, (ii) substitution of mutilated, defaced,
destroyed, lost or stolen Securities, (iii) rights of holders to receive
payments of principal thereof and interest thereon, upon the original
stated due dates therefor (but not upon acceleration) and remaining rights
of the holders to receive mandatory sinking fund payments, if any, (iv) the
rights, obligations and immunities of the Trustee hereunder and (v) the
rights of the Securityholders of such series as beneficiaries hereof with
respect to the property so deposited with the Trustee payable to all or any
of them), and the Trustee, on demand of the Company accompanied by an
Officers' Certificate and an Opinion of Counsel and at the cost and expense
of the Company, shall execute proper instruments acknowledging such
satisfaction of and discharging this Indenture with respect to such series;
provided, that the rights of Holders of the Securities to receive amounts
in respect of principal of and interest on the Securities held by them
shall not be delayed longer than required by then-applicable mandatory
rules or policies of any securities exchange upon which the Securities are
listed. The Company agrees to reimburse the Trustee for any costs or
expenses thereafter reasonably and properly incurred and to compensate the
Trustee for any services thereafter reasonably and properly rendered by the
Trustee in connection with this Indenture or the Securities of such series.
SECTION 8.2 Application by Trustee of Funds Deposited for
Payment of Securities. Subject to Section 8.4 and to the subordination
provisions of Article 11 hereof, all moneys deposited with the Trustee
pursuant to Section 8.1 shall be held in trust and applied by it to the
payment, either directly or through any paying agent (including the Company
acting as its own paying agent), to the Holders of the particular Securities
of such series for the payment or redemption of which such moneys have been
deposited with the Trustee, of all sums due and to become due thereon for
principal and interest; but such money need not be segregated from other funds
except to the extent required by law.
SECTION 8.3 Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect
to Securities of any series, all moneys then held by any paying agent under
the provisions of this Indenture with respect to such series of Securities
shall, upon demand of the Company, be repaid to it or paid to the Trustee and
thereupon such paying agent shall be released from all further liability with
respect to such moneys.
SECTION 8.4 Return of Moneys Held by Trustee and Paying
Agent Unclaimed for Two Years. Any moneys deposited with or paid to the
Trustee or any paying agent for the payment of the principal of or interest on
any Security of any series and not applied but remaining unclaimed for two
years after the date upon which such principal or interest shall have become
due and payable, shall, upon the written request of the Company and unless
otherwise required by mandatory provisions of applicable escheat or abandoned
or unclaimed property law, be repaid to the Company by the Trustee for such
series or such paying agent, and the Holder of the Security of such series
shall, unless otherwise required by mandatory provisions of applicable escheat
or abandoned or unclaimed property laws, thereafter look only to the Company
for any payment which such Holder may be entitled to collect, and all
liability of the Trustee or any paying agent with respect to such moneys shall
thereupon cease.
SECTION 8.5 Defeasance and Discharge of Indenture. The
Company shall be deemed to have paid and shall be discharged from any and all
obligations in respect of the Securities of any series, on the 123rd day after
the deposit referred to in clause (A) hereof has been made, and the provisions
of this Indenture shall no longer be in effect with respect to the Securities
of such series (and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same), except as to: (a) rights of
registration of transfer and exchange, and the Company's right of optional
redemption, (b) substitution of apparently mutilated, defaced, destroyed, lost
or stolen Securities, (c) rights of holders to receive payments of principal
thereof and interest thereon, upon the original stated due dates therefor (but
not upon acceleration), (d) the rights, obligations and immunities of the
Trustee hereunder and (e) the rights of the Securityholders of such series as
beneficiaries hereof with respect to the property so deposited with the
Trustee payable to all or any of them; provided that the following conditions
shall have been satisfied:
(A) with reference to this provision the Company has deposited
or caused to be irrevocably deposited with the Trustee (or another
trustee satisfying the requirements of Sections 7.8 and 7.10) as
trust funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Securities of
such series, (i) money in an amount, or (ii) U.S. Government
Obligations which through the payment of interest and principal in
respect thereof in accordance with their terms will provide not later
than one day before the due date of any payment referred to in
subclause (x) or (y) of this clause (A) money in an amount, or (iii)
a combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge without consideration of the reinvestment of such interest
and after payment of all federal, state and local taxes or other
charges and assessments in respect thereof payable by the Trustee (x)
the principal of, premium, if any, and each installment of interest
on the outstanding Securities of such series on the due dates thereof
and (y) any mandatory sinking fund payments or analogous payments
applicable to the Securities of such series on the day on which such
payments are due and payable in accordance with the terms of
Securities of such series and the Indenture with respect to the
Securities of such series;
(B) the Company has delivered to the Trustee (i) either (x) an
Opinion of Counsel to the effect that Holders of Securities of such
series will not recognize income, gain or loss for federal income tax
purposes as a result of the Company's exercise of its option under
this Section 8.5 and will be subject to federal income tax on the
same amount and in the same manner and at the same times as would
have been the case if such deposit, defeasance and discharge had not
occurred, which Opinion of Counsel must be based upon a ruling of the
Internal Revenue Service to the same effect or a change in applicable
federal income tax law or related treasury regulations after the date
of this Indenture or (y) a ruling directed to the Trustee received
from the Internal Revenue Service to the same effect as the
aforementioned Opinion of Counsel and (ii) an Opinion of Counsel to
the effect that the creation of the defeasance trust does not violate
the Investment Company Act of 1940 and after the passage of 123 days
following the deposit, the trust fund will not be subject to the
effect of Section 547 of the U.S. Bankruptcy Code or Section 15 of
the New York Debtor and Creditor Law;
(C) immediately after giving effect to such deposit on a pro
forma basis, no Event of Default, or event that after the giving of
notice or lapse of time or both would become an Event of Default,
shall have occurred and be continuing on the date of such deposit or
during the period ending on the 123rd day after the date of such
deposit, and such deposit shall not result in a breach or violation
of, or constitute a default under, any other agreement or instrument
to which the Company is a party or by which the Company is bound;
(D) the Company is not prohibited from making payments in
respect of the Securities by Article 11 hereof; and
(E) if at such time the Securities of such series are listed
on a national securities exchange, the Company has delivered to the
Trustee an Opinion of Counsel to the effect that the Securities of
such series will not be delisted as a result of such deposit,
defeasance and discharge.
SECTION 8.6 Defeasance of Certain Obligations. The
Company may omit to comply with any term, provision or condition set forth in,
and this Indenture will no longer be in effect with respect to, any covenant
in Article 4 or Section 5.1 established pursuant to Section 2.3 in any
indenture supplemental hereto and clause (c) (with respect to any covenants in
Article 4 or Section 5.1 established pursuant to Section 2.3 in any indenture
supplemental hereto) and clause (f) of Section 6.1 shall be deemed not to be
an Event of Default, and the provisions of Article 11 shall not apply with
respect to the Securities of any series, if
(A) with reference to this Section 8.6, the Company has
deposited or caused to be irrevocably deposited with the Trustee (or
another trustee satisfying the requirements of Section 7.8) as trust
funds in trust, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of the Securities of such
series and the Indenture with respect to the Securities of such
series, (i) money in an amount or (ii) U.S. Government Obligations
which through the payment of interest and principal in respect
thereof in accordance with their terms will provide not later than
one day before the due dates thereof or earlier redemption
(irrevocably provided for under agreements satisfactory to the
Trustee), as the case may be, of any payment referred to in subclause
(x) or (y) of this clause (A) money in an amount, or (iii) a
combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge without consideration of the reinvestment of such interest
and after payment of all federal, state and local taxes or other
charges and assessments in respect thereof payable by the Trustee (x)
the principal of, premium, if any, and each installment of interest
on the outstanding Securities on the due date thereof or earlier
redemption (irrevocably provided for under arrangements satisfactory
to the Trustee), as the case may be, and (y) any mandatory sinking
fund payments or analogous payments applicable to the Securities of
such series and the Indenture with respect to the Securities of such
series on the day on which such payments are due and payable in
accordance with the terms of the Indenture and of Securities of such
series and the Indenture with respect to the Securities of such
series;
(B) the Company has delivered to the Trustee (i) an Opinion of
Counsel to the effect that Holders of Securities of such series will
not recognize income, gain or loss for federal income tax purposes as
a result of the Company's exercise of its option under this Section
8.6 and will be subject to federal income tax on the same amount and
in the same manner and at the same times as would have been the case
if such deposit and defeasance had not occurred and (ii) an Opinion
of Counsel to the effect that the creation of the defeasance trust
does not violate the Investment Company Act of 1940 and after the
passage of 123 days following the deposit, the trust fund will not be
subject to the effect of Section 547 of the U.S. Bankruptcy Code or
Section 15 of the New York Debtor and Creditor Law;
(C) immediately after giving effect to such deposit on a pro
forma basis, no Event of Default, or event that after the giving of
notice or lapse of time or both would become an Event of Default,
shall have occurred and be continuing on the date of such deposit or
during the period ending on the 123rd day after the date of such
deposit, and such deposit shall not result in a breach or violation
of, or constitute a default under, any other agreement or instrument
to which the Company is a party or by which the Company is bound;
(D) the Company is not prohibited from making payments in
respect of the Securities by Article 11 hereof; and
(E) if at such time the Securities of such series are listed
on a national securities exchange, the Company has delivered to the
Trustee an Opinion of Counsel to the effect that the Securities of
such series will not be delisted as a result of such deposit,
defeasance and discharge.
SECTION 8.7 Reinstatement. If the Trustee or paying
agent is unable to apply any monies or U.S. Government Obligations in
accordance with Article 8 by reason of any legal proceeding or by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture and the Securities shall be revived and
reinstated as though no deposit had occurred pursuant to this Article until
such time as the Trustee or paying agent is permitted to apply all such monies
or U.S. Government Obligations in accordance with Article 8; provided,
however, that if the Company has made any payment of principal of or interest
on any Securities because of the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Securities to receive
such payment from the monies or U.S. Government Obligations held by the
Trustee or paying agent.
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 Without Consent of Holders. The Company and
the Trustee may amend or supplement this Indenture or the Securities of any
series without notice to or the consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency in this
Indenture; provided that such amendments or supplements shall not
materially and adversely affect the interests of the Holders;
(2) to comply with Article 5;
(3) to comply with any requirements of the Commission in
connection with the qualification of this Indenture under the Trust
Indenture Act;
(4) to evidence and provide for the acceptance of appointment
hereunder with respect to the Securities of any or all series by a
successor Trustee;
(5) to establish the form or forms or terms of Securities of
any series or of the coupons appertaining to such Securities as
permitted by Section 2.3;
(6) to provide for uncertificated or Unregistered Securities
and to make all appropriate changes for such purpose; and
(7) to make any change that does not materially and adversely
affect the rights of any Holder.
SECTION 9.2 With Consent of Holders. Subject to Sections
6.4 and 6.7, without prior notice to any Holders, the Company and the Trustee
may amend this Indenture and the Securities of any series with the written
consent of the Holders of a majority in principal amount of the outstanding
Securities of all series affected by such amendment (all such series voting as
a separate class), and the Holders of a majority in principal amount of the
outstanding Securities of all series affected thereby (all such series voting
as a separate class) by written notice to the Trustee may waive future
compliance by the Company with any provision of this Indenture or the
Securities of such series.
Notwithstanding the provisions of this Section 9.2, without the
consent of each Holder affected thereby, an amendment or waiver, including a
waiver pursuant to Section 6.4, may not:
(i) change the stated maturity of the Principal of, or any
sinking fund obligation or any installment of interest on, such
Holder's Security,
(ii) reduce the Principal amount thereof or the rate of
interest thereon (including any amount in respect of original issue
discount);
(iii) reduce the above stated percentage of outstanding
Securities the consent of whose holders is necessary to modify or
amend the Indenture with respect to the Securities of the relevant
series; and
(iv) reduce the percentage in principal amount of outstanding
Securities of the relevant series the consent of whose Holders is
required for any supplemental indenture, for any waiver of compliance
with certain provisions of this Indenture or certain Defaults and
their consequences provided for in this Indenture.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of Holders of Securities of such
series with respect to such covenant or provision, shall be deemed not to
affect the rights under this Indenture of the Holders of Securities of any
other series or of the coupons appertaining to such Securities.
It shall not be necessary for the consent of any Holder under
this Section 9.2 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.2
becomes effective, the Company shall give to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. The Company
will mail supplemental indentures to Holders upon request. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture or
waiver.
SECTION 9.3 Revocation and Effect of Consent. Until an
amendment or waiver becomes effective, a consent to it by a Holder is a
continuing consent by the Holder and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the Security of the
consenting Holder, even if notation of the consent is not made on any
Security. However, any such Holder or subsequent Holder may revoke the
consent as to its Security or portion of its Security. Such revocation shall
be effective only if the Trustee receives the notice of revocation before the
date the amendment, supplement or waiver becomes effective. An amendment,
supplement or waiver shall become effective with respect to any Securities
affected thereby on receipt by the Trustee of written consents from the
requisite Holders of outstanding Securities affected thereby.
The Company may, but shall not be obligated to, fix a record
date (which may be not less than five nor more than 60 days prior to the
solicitation of consents) for the purpose of determining the Holders of the
Securities of any series affected entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then, notwithstanding the
immediately preceding paragraph, those Persons who were such Holders at such
record date (or their duly designated proxies) and only those Persons shall be
entitled to consent to such amendment, supplement or waiver or to revoke any
consent previously given, whether or not such Persons continue to be such
Holders after such record date. No such consent shall be valid or effective
for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective with
respect to the Securities of any series affected thereby, it shall bind every
Holder of such Securities unless it is of the type described in any of clauses
(i) through (iv) of Section 9.2. In case of an amendment or waiver of the
type described in clauses (i) through (iv) of Section 9.2, the amendment or
waiver shall bind each such Holder who has consented to it and every
subsequent Holder of a Security that evidences the same indebtedness as the
Security of the consenting Holder.
SECTION 9.4 Notation on or Exchange of Securities. If an
amendment, supplement or waiver changes the terms of any Security, the Trustee
may require the Holder thereof to deliver it to the Trustee. The Trustee may
place an appropriate notation on the Security about the changed terms and
return it to the Holder and the Trustee may place an appropriate notation on
any Security of such series thereafter authenticated. Alternatively, if the
Company or the Trustee so determines, the Company in exchange for the Security
shall issue and the Trustee shall authenticate a new Security of the same
series and tenor that reflects the changed terms.
SECTION 9.5 Trustee to Sign Amendments, Etc. The Trustee
shall be entitled to receive, and shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of any amendment, supplement or
waiver authorized pursuant to this Article 9 is authorized or permitted by
this Indenture, stating that all requisite consents have been obtained or that
no consents are required and stating that such supplemental indenture
constitutes the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject to
customary exceptions. Subject to the preceding sentence, the Trustee shall
sign such amendment, supplement or waiver if the same does not adversely
affect the rights of the Trustee. The Trustee may, but shall not be
obligated to, execute any such amendment, supplement or waiver that affects
the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 9.6 Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article 9 shall conform to
the requirements of the Trust Indenture Act as then in effect.
ARTICLE 10
MISCELLANEOUS
SECTION 10.1 Trust Indenture Act of 1939. This Indenture
shall incorporate and be governed by the provisions of the Trust Indenture Act
that are required to be part of and to govern indentures qualified under the
Trust Indenture Act.
SECTION 10.2 Notices. Any notice or communication shall
be sufficiently given if written and (a) if delivered in person when received
or (b) if mailed by first class mail 5 days after mailing, or (c) as between
the Company and the Trustee if sent by facsimile transmission, when
transmission is confirmed, in each case addressed as follows:
if to the Company:
The AES Corporation
1001 North 19th Street
Arlington, VA 22209
Telecopy: (703) 528-4510
Attention: General Counsel
if to the Trustee:
The First National Bank of Chicago
One North State Street
Ninth Floor
Chicago, IL 60670-0126
Telecopy: (312) 407-1708
Attention: Richard Manella
Vice President and Trust Counsel
The Company or the Trustee by written notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication shall be sufficiently given to
Holders of any Unregistered Securities, by publication at least once in an
Authorized Newspaper in The City of New York, or with respect to any Security
the interest on which is based on the offered quotations in the interbank
Eurodollar market for dollar deposits at least once in an Authorized Newspaper
in London, and by mailing to the Holders thereof who have filed their names
and addresses with the Trustee pursuant to Section 313(c)(2) of the Trust
Indenture Act at such addresses as were so furnished to the Trustee and to
Holders of Registered Securities by mailing to such Holders at their addresses
as they shall appear on the Security Register. Notice mailed shall be
sufficiently given if so mailed within the time prescribed. Copies of any
such communication or notice to a Holder shall also be mailed to the Trustee
and each Agent at the same time.
Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders.
Except as otherwise provided in this Indenture, if a notice or communication
is mailed in the manner provided in this Section 10.2, it is duly given,
whether or not the addressee receives it.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee,
but such filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
In case it shall be impracticable to give notice as herein
contemplated, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose
hereunder.
SECTION 10.3 Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the
Trustee:
(i) an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with;
and
(ii) an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent have been complied with.
SECTION 10.4 Statements Required in Certificate or
Opinion. Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(i) a statement that each person signing such certificate or
opinion has read such covenant or condition and the definitions
herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statement or opinion
contained in such certificate or opinion is based;
(iii) a statement that, in the opinion of each such person, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(iv) a statement as to whether or not, in the opinion of each
such person, such condition or covenant has been complied with;
provided, however, that, with respect to matters of fact, an Opinion
of Counsel may rely on an Officers' Certificate or certificates of
public officials.
SECTION 10.5 Evidence of Ownership. The Company, the
Trustee and any agent of the Company or the Trustee may deem and treat the
Holder of any Unregistered Security and the Holder of any coupon as the
absolute owner of such Unregistered Security or coupon (whether or not such
Unregistered Security or coupon shall be overdue) for the purpose of receiving
payment thereof or on account thereof and for all other purposes, and neither
the Company, the Trustee, nor any agent of the Company or the Trustee shall
be affected by any notice to the contrary. The fact of the holding by any
Holder of an Unregistered Security, and the identifying number of such
Security and the date of his holding the same, may be proved by the production
of such Security or by a certificate executed by any trust company, bank,
banker or recognized securities dealer wherever situated satisfactory to the
Trustee, if such certificate shall be deemed by the Trustee to be
satisfactory. Each such certificate shall be dated and shall state that on the
date thereof a Security bearing a specified identifying number was deposited
with or exhibited to such trust company, bank, banker or recognized securities
dealer by the person named in such certificate. Any such certificate may be
issued in respect of one or more Unregistered Securities specified therein.
The holding by the person named in any such certificate of any Unregistered
Securities specified therein shall be presumed to continue for a period of one
year from the date of such certificate unless at the time of any determination
of such holding (1) another certificate bearing a later date issued in respect
of the same Securities shall be produced or (2) the Security specified in such
certificate shall be produced by some other Person, or (3) the Security
specified in such certificate shall have ceased to be outstanding. Subject to
Article 7, the fact and date of the execution of any such instrument and the
amount and numbers of Securities held by the Person so executing such
instrument may also be proven in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in any other manner which
the Trustee may deem sufficient.
The Company, the Trustee and any agent of the Company or the
Trustee may deem and treat the person in whose name any Registered Security
shall be registered upon the Security Register for such series as the absolute
owner of such Registered Security (whether or not such Registered Security
shall be overdue and notwithstanding any notation of ownership or other
writing thereon) for the purpose of receiving payment of or on account of the
Principal of and, subject to the provisions of this Indenture, interest on
such Registered Security and for all other purposes; and neither the Company
nor the Trustee nor any agent of the Company or the Trustee shall be affected
by any notice to the contrary.
SECTION 10.6 Rules by Trustee, Paying Agent or Registrar.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Paying Agent or Registrar may make reasonable rules for its
functions.
SECTION 10.7 Payment Date Other Than a Business Day. If
any date for payment of Principal or interest on any Security shall not be a
Business Day at any place of payment, then payment of Principal of or interest
on such Security, as the case may be, need not be made on such date, but may
be made on the next succeeding Business Day at any place of payment with the
same force and effect as if made on such date and no interest shall accrue in
respect of such payment for the period from and after such date.
SECTION 10.8 Governing Law. The laws of the State of New
York shall govern this Indenture and the Securities.
SECTION 10.9 No Adverse Interpretation of Other
Agreements. This Indenture may not be used to interpret another indenture or
loan or debt agreement of the Company or any Subsidiary of the Company. Any
such indenture or agreement may not be used to interpret this Indenture.
SECTION 10.10 Successors. All agreements of the Company in
this Indenture and the Securities shall bind its successors. All agreements
of the Trustee in this Indenture shall bind its successors.
SECTION 10.11 Duplicate Originals. The parties may sign
any number of copies of this Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement.
SECTION 10.12 Separability. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 10.13 Table of Contents, Headings, Etc. The Table
of Contents and headings of the Articles and Sections of this Indenture have
been inserted for convenience of reference only, are not to be considered a
part hereof and shall in no way modify or restrict any of the terms and
provisions hereof.
SECTION 10.14 Incorporators, Stockholders, Officers and
Directors of Company Exempt from Individual Liability. No recourse under or
upon any obligation, covenant or agreement contained in this Indenture or any
indenture supplemental hereto, or in any Security or any coupons appertaining
thereto, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such or against any past, present or future
stockholder, officer, director or employee, as such, of the Company or of any
successor, either directly or through the Company or any successor, under any
rule of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities and the coupons appertaining thereto by the holders thereof and as
part of the consideration for the issue of the Securities and the coupons
appertaining thereto.
SECTION 10.15 Judgment Currency. The Company agrees, to
the fullest extent that it may effectively do so under applicable law, that
(a) if for the purpose of obtaining judgment in any court it is necessary to
convert the sum due in respect of the Principal of or interest on the
Securities of any series (the "Required Currency") into a currency in which a
judgment will be rendered (the "Judgment Currency"), the rate of exchange used
shall be the rate at which in accordance with normal banking procedures the
Trustee could purchase in The City of New York the Required Currency with the
Judgment Currency on the day on which final unappealable judgment is entered,
unless such day is not a Business Day, then, to the extent permitted by
applicable law, the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the
Business Day preceding the day on which final unappealable judgment is entered
and (b) its obligations under this Indenture to make payments in the Required
Currency (i) shall not be discharged or satisfied by any tender, or any
recovery pursuant to any judgment (whether or not entered in accordance with
subsection (a)), in any currency other than the Required Currency, except to
the extent that such tender or recovery shall result in the actual receipt, by
the payee, of the full amount of the Required Currency expressed to be payable
in respect of such payments, (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the Required
Currency the amount, if any, by which such actual receipt shall fall short of
the full amount of the Required Currency so expressed to be payable and (iii)
shall not be affected by judgment being obtained for any other sum due under
this Indenture.
ARTICLE 11
SUBORDINATION OF SECURITIES
SECTION 11.1 Agreement to Subordinate. The Company
covenants and agrees, and each Holder of Securities issued hereunder by his
acceptance thereof likewise covenants and agrees, that all Securities shall be
issued subject to the provisions of this Article; and each person holding any
Security, whether upon original issue or upon transfer, assignment or exchange
thereof accepts and agrees that the Principal of and interest on all
Securities issued hereunder shall, to the extent and in the manner herein set
forth, be subordinated and subject in right to the prior payment in full of
all Senior Indebtedness.
SECTION 11.2 Payments to Securityholders. No payments on
account of Principal of, Change of Control purchase price, or interest on the
Securities shall be made if at the time of such payment or immediately after
giving effect thereto there shall exist a default in any payment with respect
to any Senior Indebtedness, and such event of default shall not have been
cured or waived or shall not have ceased to exist. In addition, during the
continuance of any other event of default (other than a payment default) with
respect to Designated Senior Indebtedness pursuant to which the maturity
thereof may be accelerated, from and after the date of receipt by the Trustee
of written notice from the holders of such Designated Senior Indebtedness or
from an agent of such holders, no payments on account of Principal, Change of
Control purchase price, or interest in respect of the Securities may be made
by the Company for a period ("Payment Blockage Period") commencing on the date
of delivery of such notice and ending 179 days thereafter (unless such Payment
Blockage Period shall be terminated by written notice to the Trustee from the
holders of such Designated Senior Indebtedness or from an agent of such
holders, or such event of default has been cured or waived or has ceased to
exist). Only one Payment Blockage Period may be commenced with respect to the
Securities during any period of 360 consecutive days. No event of default
which existed or was continuing on the date of the commencement of any Payment
Blockage Period with respect to the Designated Senior Indebtedness initiating
such Payment Blockage Period shall be or be made the basis for the
commencement of any subsequent Payment Blockage Period by the holders of such
Designated Senior Indebtedness, unless such event of default shall have been
cured or waived for a period of not less than 90 consecutive days.
Upon any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, to creditors
upon any liquidation, dissolution, winding up, receivership, reorganization,
assignment for the benefit of creditors, marshalling of assets and liabilities
or any bankruptcy, insolvency or similar proceedings of the Company, all
amounts due or to become due upon all Senior Indebtedness shall first be paid
in full, in cash or cash equivalents, or payment thereof provided for in
accordance with its terms, before any payment is made on account of the
Principal of, Change of Control purchase price, or interest on the
indebtedness evidenced by the Securities, and upon any such liquidation,
dissolution, winding up, receivership, reorganization, assignment,
marshalling or proceeding, any payment or distribution of assets of the
Company of any kind or character, whether in cash, property or securities,
to which the Holders of the Securities or the Trustee under this Indenture
would be entitled, except for the provisions hereof, shall be paid by the
Company or by any receiver, trustee in bankruptcy, liquidating trustee,
agent or other Person making such payment or distribution, or by the
Holders of the Securities or by the Trustee under this Indenture if
received by them or it, directly to the holders of Senior Indebtedness (pro
rata to such holders on the basis of the respective amounts of Senior
Indebtedness held by such holders) or their respective representatives, or
to the trustee or trustees under any indenture pursuant to which any
instruments evidencing any of such Senior Indebtedness may have been
issued, as their respective interests may appear, to the extent necessary
to pay all Senior Indebtedness in full (including, without limitation,
except to the extent, if any, prohibited by mandatory provisions of law,
post-petition interest, in any such proceedings), after giving effect to
any concurrent payment or distribution to or for the holders of Senior
Indebtedness, before any payment or distribution is made to the holders of
the indebtedness evidenced by the Securities or to the Trustee under this
Indenture.
In the event that, notwithstanding the foregoing, any payment
or distribution of assets of the Company of any kind or character, whether in
cash, property or securities, prohibited by the foregoing, shall be received
by the Trustee under this Indenture or the holders of the Securities before
all Senior Indebtedness is paid in full or provision is made for such payment
in accordance with its terms, such payment or distribution shall be held in
trust for the benefit of and shall be paid over or delivered to the holders of
such Senior Indebtedness or their respective representatives, or to the
trustee or trustees under any indenture pursuant to which any instruments
evidencing any of such Senior Indebtedness may have been issued, as their
respective interests may appear, for application to the payment of all Senior
Indebtedness remaining unpaid until all such Senior Indebtedness shall have
been paid in full in accordance with its terms, after giving effect to any
concurrent payment or distribution to or for the holders of such Senior
Indebtedness.
For purposes of this Article, the words, "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of arrangement, reorganization or
readjustment, the payment of which is subordinated (at least to the extent
provided in this Article with respect to the Securities) to the payment of all
Senior Indebtedness which may at the time be outstanding; provided, that (i)
the Senior Indebtedness is assumed by the new corporation, if any, resulting
from any such arrangement, reorganization or readjustment, and (ii) the rights
of the holders of the Senior Indebtedness are not, without the consent of such
holders, altered by such arrangement, reorganization or readjustment. The
consolidation of the Company with, or the merger of the Company into, another
corporation or the liquidation or dissolution of the Company following the
conveyance or transfer of its property as an entirety, or substantially as an
entirety, to another corporation upon the terms and conditions provided in
Article 5 shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section if such other corporation
shall, as a part of such consolidation, merger, conveyance or transfer, comply
with the conditions stated in Article 5. Nothing in this Section shall apply
to claims of, or payments to, the Trustee under or pursuant to Article 7,
except as provided therein. This Section shall be subject to the further
provisions of Section 11.5.
SECTION 11.3 Subrogation of Securities. Subject to the
payment in full of all Senior Indebtedness, the holders of the Securities
shall be subrogated to the rights of the holders of Senior Indebtedness to
receive payments or distributions of cash, property or securities of the
Company applicable to the Senior Indebtedness until the principal of and
interest on the Securities shall be paid in full; and, for the purposes of
such subrogation, no payments or distributions to the holders of the Senior
Indebtedness of any cash, property or securities to which the holders of the
Securities or the Trustee on their behalf would be entitled except for the
provisions of this Article, and no payment over pursuant to the provisions of
this Article to the holders of Senior Indebtedness by holders of the
Securities or the Trustee on their behalf shall, as between the Company,
its creditors other than holders of Senior Indebtedness and the holders of
the Securities, be deemed to be a payment by the Company to or on account
of the Senior Indebtedness; and no payments or distributions of cash,
property or securities to or for the benefit of the Securityholders
pursuant to the subrogation provision of this Article, which would
otherwise have been paid to the holders of Senior Indebtedness shall be
deemed to be a payment by the Company to or for the account of the
Securities. It is understood that the provisions of this Article are and
are intended solely for the purpose of defining the relative rights of the
holders of the Securities, on the one hand, and the holders of the Senior
Indebtedness, on the other hand.
Nothing contained in this Article or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as between the
Company, its creditors other than the holders of Senior Indebtedness, and the
holders of the Securities, the obligation of the Company, which is absolute
and unconditional, to pay to the holders of the Securities the principal of
and interest on the Securities as and when the same shall become due and
payable in accordance with their terms, or is intended to or shall affect the
relative rights of the holders of the Securities and creditors of the Company
other than the holders of the Senior Indebtedness, nor shall anything herein
or therein prevent the holder of any Security or the Trustee on his behalf
from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this
Article of the holders of Senior Indebtedness in respect of cash, property or
securities of the Company received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee, subject to the provisions of
Sections 7.1 and 7.2, and the holders of the Securities shall be entitled to
rely upon any order or decree made by any court of competent jurisdiction in
which such liquidation, dissolution, winding up, receivership, reorganization,
assignment or marshalling proceedings are pending, or a certificate of the
receiver, trustee in bankruptcy, liquidating trustee, agent or other person
making such payment or distribution, delivered to the Trustee or to the
holders of the Securities, for the purpose of ascertaining the persons
entitled to participate in such distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article.
SECTION 11.4 Authorization by Securityholders. Each
holder of a Security by his acceptance thereof authorizes the Trustee in his
behalf to take such action as may be necessary or appropriate to effectuate
the subordination provided in this Article and appoints the Trustee his
attorney-in-fact for any and all such purposes.
SECTION 11.5 Notice to Trustee. The Company shall give
prompt written notice to the Trustee and to any paying agent of any fact known
to the Company which would prohibit the making of any payment of moneys to or
by the Trustee or any paying agent in respect of the Securities pursuant to
the provisions of this Article. Regardless of anything to the contrary
contained in this Article or elsewhere in this Indenture, the Trustee shall
not be charged with knowledge of the existence of any Senior Indebtedness or
of any default or event of default with respect to any Senior Indebtedness or
of any other facts which would prohibit the making of any payment of moneys to
or by the Trustee, unless and until the Trustee shall have received notice in
writing at its principal Corporate Trust Office to that effect signed by an
officer of the Company, or by a holder or agent of a holder of Senior
Indebtedness who shall have been certified by the Company or otherwise
established to the reasonable satisfaction of the Trustee to be such holder or
agent, or by the trustee under any indenture pursuant to which Senior
Indebtedness shall be outstanding, and, prior to the receipt of any such
written notice, the Trustee shall, subject to Sections 7.1 and 7.2, be
entitled to assume that no such facts exist; provided that if on a date at
least three Business Days prior to the date upon which by the terms hereof any
such moneys shall become payable for any purpose (including, without
limitation, the payment of the principal of, or interest on any Security) the
Trustee shall not have received with respect to such moneys the notice
provided for in this Section, then, regardless of anything herein to the
contrary, the Trustee shall have full power and authority to receive such
moneys and to apply the same to the purpose for which they were received, and
shall not be affected by any notice to the contrary which may be received by
it on or after such prior date.
Regardless of anything to the contrary herein, nothing shall
prevent (a) any payment by the Company or the Trustee to the Securityholders
of amounts in connection with a redemption of Securities if (i) notice of such
redemption has been given pursuant to Article 3 prior to the receipt by the
Trustee of written notice as aforesaid, and (ii) such notice of redemption is
given not earlier than 60 days before the redemption date, or (b) any payment
by the Trustee to the Securityholders of amounts deposited with it pursuant to
Section 8.1.
The Trustee shall be entitled to rely on the delivery to it of
a written notice by a person representing himself to be a holder of Senior
Indebtedness (or a trustee on behalf of such holder) to establish that such
notice has been given by a holder of Senior Indebtedness or a trustee on
behalf of any such holder. In the event that the Trustee determines in good
faith that further evidence is required with respect to the right of any
person as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article, the Trustee may request such person to
furnish evidence to the reasonable satisfaction of the Trustee as to the
amount of Senior Indebtedness held by such person, the extent to which such
person is entitled to participate in such payment or distribution and any
other facts pertinent to the rights of such person under this Article, and if
such evidence is not furnished the Trustee may defer any payment to such
person pending judicial determination as to the right of such person to
receive such payment.
SECTION 11.6 Trustee's Relation to Senior Indebtedness.
The Trustee and any agent of the Company or the Trustee shall be entitled to
all the rights set forth in this Article with respect to any Senior
Indebtedness which may at any time be held by it in its individual or any
other capacity to the same extent as any other holder of Senior
Indebtedness and nothing in this Indenture shall deprive the Trustee or any
such agent, of any of its rights as such holder. Nothing in this Article
shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 7.7.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to
owe any fiduciary duty to the holders of Senior Indebtedness and, subject to
the provisions of Sections 7.1 and 7.2, the Trustee shall not be liable to any
holder of Senior Indebtedness if it shall pay over or deliver to holders of
Securities, the Company or any other person moneys or assets to which any
holder of Senior Indebtedness shall be entitled by virtue of this Article or
otherwise.
SECTION 11.7 No Impairment of Subordination. No right of
any present or future holder of any Senior Indebtedness to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance
by the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof which any such holder may have or
otherwise be charged with.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the date first written above.
(SEAL) THE AES CORPORATION
Attest: as the Company
__________________________
By:___________________________________
Name:
Title:
(SEAL) THE FIRST NATIONAL BANK
Attest: OF CHICAGO
__________________________
By:___________________________________
Name:
Title:
STATE OF _________________ )
)
COUNTY OF ________________ )
BEFORE ME, the undersigned authority, on this __ day of
____________, 199_, personally appeared ____________, ____________ of The AES
Corporation, a Delaware corporation, known to me (or proved to me by
introduction upon the oath of a person known to me) to be the person and
officer whose name is subscribed to the foregoing instrument, and acknowledged
to me that he/she executed the same as the act of such corporation for the
purposes and consideration herein expressed and in the capacity therein
stated.
GIVEN UNDER MY HAND AND SEAL THIS ____ DAY OF _____, 199__.
(SEAL)
________________________________
NOTARY PUBLIC, STATE OF ________
Print Name:_____________________
Commission Expires:_____________
STATE OF _________________ )
)
COUNTY OF ________________ )
BEFORE ME, the undersigned authority, on this _______ day of
____________, 199__, personally appeared _________________, _______________ of
The First National Bank of Chicago, a national banking association, known
to me (or proved to me by introduction upon the oath of a person known to
me) to be the person and officer whose name is subscribed to the foregoing
instrument, and acknowledged to me that he/she executed the same as the act
of such trust for the purposes and consideration herein expressed and in
the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS _____ DAY OF ______, 199__.
(SEAL)
________________________________
NOTARY PUBLIC, STATE OF ________
Print Name:_____________________
Commission Expires:_____________
Exhibit 4.4
THE AES CORPORATION
AND
THE FIRST NATIONAL BANK OF CHICAGO
AS TRUSTEE
JUNIOR SUBORDINATED INDENTURE
Dated as of ______ __, 199_
JUNIOR SUBORDINATED DEBENTURES
TABLE OF CONTENTS(*)
Page
PARTIES...................................................................1
RECITALS:
Purpose of Indenture......................................................1
Compliance with legal requirements........................................1
Purpose of and consideration for Indenture................................1
ARTICLE ONE
DEFINITIONS
SECTION 1.01. Certain terms defined; other terms defined in the
Trust Indenture Act of 1939, as amended, or by
reference therein in the Securities Act of 1933,
as amended, to have the meanings assigned therein.. 2
AES Trust.......................................... 2
Affiliate.......................................... 2
Authenticating Agent............................... 2
Board of Directors................................. 2
Board Resolution................................... 2
Business day....................................... 3
Certificate........................................ 3
Common Securities.................................. 3
Company............................................ 3
Corporate Trust Office............................. 3
Declaration of Trust............................... 3
Debenture or Debentures............................ 3
Debentureholder.................................... 3
Default............................................ 3
Depositary......................................... 4
Event of Default................................... 4
Global Debenture................................... 4
Governmental Obligations........................... 4
Guarantee.......................................... 5
Indenture.......................................... 5
Interest Payment Date.............................. 5
Officers' Certificate.............................. 5
Opinion of Counsel................................. 5
Outstanding........................................ 5
Person............................................. 6
Predecessor Debenture.............................. 6
Preferred Securities............................... 6
Property Trustee................................... 6
Responsible Officer................................ 6
Security Exchange.................................. 6
Senior Indebtedness................................ 6
Subsidiary......................................... 7
Trustee............................................ 7
Trust Indenture Act................................ 8
(*) This Table of Contents does not constitute part of the Indenture and
should not have any bearing upon the interpretation of any of its
terms or provisions.
ARTICLE TWO
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF DEBENTURES
Section 2.01. Designation, terms, amount, authentication
and delivery of Debentures...........................8
SECTION 2.02. Form of Debentures and Trustee's
certificate.........................................10
SECTION 2.03. Date and denominations of Debentures and
provisions for payment of principal,
premium and interest................................10
SECTION 2.04. Execution of Debentures.............................12
SECTION 2.05. Exchange of Debentures..............................13
(a) Registration and transfer of
Debentures..............................13
(b) Debentures to be accompanied by
proper instruments of transfer..........14
(c) Charges upon exchange, transfer
or registration of Debentures...........14
(d) Restrictions on transfer or exchange at
time of redemption......................14
SECTION 2.06. Temporary Debentures................................15
SECTION 2.07. Mutilated, destroyed, lost or stolen Debentures.....15
SECTION 2.08. Cancellation of surrendered Debentures.............16
SECTION 2.09. Provisions of Indenture and Debentures for sole
benefit of parties and Debentureholders.............17
SECTION 2.10. Appointment of Authenticating Agent.................17
SECTION 2.11. Global Debenture....................................18
(a) Authentication and Delivery; Legend...........18
(b) Transfer of Global Debenture..................18
(c) Issuance of Debentures in
definitive form...............................18
SECTION 2.12 CUSIP Numbers.......................................19
ARTICLE THREE
REDEMPTION OF DEBENTURES AND SINKING FUND PROVISIONS
SECTION 3.01. Redemption of Debentures............................19
SECTION 3.02. (a) Notice of redemption..........................19
(b) Selection of Debentures in case less than all
Debentures to be redeemed.....................20
SECTION 3.03. (a) When Debentures called for redemption become
due and payable...............................21
(b) Receipt of new Debenture upon partial
payment.......................................21
SECTION 3.04. Sinking Fund for Debentures.........................21
SECTION 3.05. Satisfaction of Sinking Fund Payments with
Debentures..........................................22
SECTION 3.06. Redemption of Debentures for Sinking Fund...........22
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.01. Payment of principal of (and premium, if any) and
interest on Debent...........ures...................23
SECTION 4.02. Maintenance of office or agency for payment of
Debentures, designation of office or agency for
payment, registration, transfer and exchange of
Debentures..........................................23
SECTION 4.03. (a) Duties of paying agent........................23
(b) Company as payment agent......................24
(c) Holding sums of trust.........................24
SECTION 4.04 Appointment to fill vacancy in Office of Trustee..........24
ARTICLE FIVE
DEBENTUREHOLDERS' LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE
SECTION 5.01. Company to furnish Trustee information as to names
and addresses of Debentureholders...................25
SECTION 5.02. (a) Trustee to preserve information as to names
and addresses of Debentureholders received
by it in capacity of paying agent.............25
(b) Trustee may destroy list of Debentureholders
on certain conditions.........................25
(c) Trustee to make information as to names and
addresses of Debentureholders available to
"applicants" or mail communications to
Debentureholders in certain circumstances.....25
(d) Procedure if Trustee elects not to make
information available to applicants...........26
(e) Company and Trustee not accountable for
disclosure of information.....................27
SECTION 5.03. (a) Annual and other reports to be filed
by Company with Trustee.......................27
(b) Additional information and reports to be filed
with Trustee and Securities and Exchange
Commission....................................27
(c) Summaries of information and reports to be
transmitted by Company to Debentureholders....27
(d) Annual Certificate to be furnished to
Trustee.......................................28
SECTION 5.04. (a) Trustee to transmit annual report to
Debentureholders..............................28
(b) Trustee to transmit certain further reports
to Debentureholders...........................29
(c) Copies of reports to be filed with stock
exchanges and Securities and Exchange
Commission....................................29
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND DEBENTUREHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01. (a) Events of Default defined.....................30
(b) Acceleration of maturity upon Event
of Default....................................31
(c) Waiver of default and rescission of
declaration of maturity.......................31
(d) Restoration of former position and
rights upon curing default....................32
(e) Certain rights of holders of
Preferred Securities..........................32
SECTION 6.02. (a) Covenant of Company to pay to Trustee
whole amount due on Debentures on
Default in payment of interest or
principal (and premiums, if any)..............33
(b) Trustee may recover judgment for
whole amount due on Debentures on
failure of Company to pay.....................33
(c) Filing of proof of claim by Trustee
in bankruptcy, reorganization or
receivership proceeding.......................33
(d) Rights of action and of asserting
claims may be enforced by Trustee
without possession of Debentures..............34
SECTION 6.03. Application of moneys collected by
Trustee.............................................35
SECTION 6.04. Limitation on suits by holders of
Debentures..........................................35
SECTION 6.05. (a) Remedies cumulative...........................36
(b) Delay or omission in exercise of
rights not waiver of default..................36
SECTION 6.06. Rights of holders of majority in principal
amount of Debentures to direct Trustee and
to waive defaults...................................36
SECTION 6.07. Trustee to give notice of defaults known
to it, but may withhold in certain
circumstances.......................................37
SECTION 6.08. Requirements of an undertaking to pay
costs in certain suits under Indenture or
against Trustee.....................................38
ARTICLE SEVEN
CONCERNING THE TRUSTEE
SECTION 7.01. (a) Upon Event of Default occurring and continuing,
Trustee shall exercise powers vested in it, and
use same degree of care and skill in their
exercise, as prudent individual would use.....39
(b) Trustee not relieved from liability
for negligence or willful misconduct
except as provided in this section............39
(1) Prior to Event of Default and
after the curing of all Events
of Default which may have
occurred................................39
(i) Trustee not liable except
for performance of duties
specifically set forth............39
(ii) In absence of bad faith,
Trustee may conclusively
rely on certificates or
opinions furnished it
hereunder, subject to duty
to examine the same if
specifically required to
be furnished to it................39
(2) Trustee not liable for error
of judgment made in good faith
by responsible officer unless
Trustee negligent.......................40
(3) Trustee not liable for action or
non-action in accordance with
direction of holders of majority
in principal amount of
debentures..............................40
(4) Trustee need not expend own funds
without adequate indemnity..............40
(5) Provisions of Indenture relating to
Trustee's conduct or liability are
subject to this Article 7...............40
SECTION 7.02. Subject to provisions of Section 7.01:
(a) Trustee may rely on documents believed
genuine and properly signed or presented......41
(b) Sufficient evidence by certain
instruments provided for......................41
(c) Trustee may consult with counsel and
act on advice or Opinion of Counsel...........41
(d) Trustee may require indemnity from
Debentureholders..............................41
(e) Trustee not liable for actions in
good faith believed to be authorized..........41
(f) Prior to Event of Default, Trustee not bound
to investigate facts or matters stated in
certificates, etc., unless requested in
writing by Debentureholders...................41
(g) Trustee may perform duties directly or
through agents or attorneys...................42
SECTION 7.03 (a) Trustee not liable for recitals in
Indenture or in Debentures....................42
(b) No representations by Trustee as to
to validity of Indenture or of Debentures.....42
(c) Trustee not accountable for use of
Debentures or proceeds........................42
SECTION 7.04. Trustee, paying agent or Debenture
Registrar may own Debentures........................42
SECTION 7.05. Moneys received by Trustee to be held in
trust without interest..............................42
SECTION 7.06. (a) Trustee entitled to compensation,
reimbursement and indemnity..................43
(b) Obligations to Trustee to be secured by
lien prior to Debentures......................43
SECTION 7.07. Right of Trustee to rely on certificate of
officers of Company where no other
evidence specifically prescribed....................43
SECTION 7.08. (a) Trustee acquiring conflicting interest
to eliminate conflict or resign...............44
(b) Notice to Debentureholders in case
of failure to comply with subsection (a)......44
(c) Definition of conflicting interest............44
(d) Definition of certain terms...................48
(e) Calculation of percentages of Debentures......49
(f) Trustee resignation not required under
certain circumstances.........................51
SECTION 7.09. Requirements for eligibility of Trustee.............51
SECTION 7.10. (a) Resignation of Trustee and appointment
of successor..................................52
(b) Removal of Trustee by Company or by
court on Debentureholders' application........52
(c) Removal of Trustee by holders of majority in
principal amount of Debentures................53
(d) Time when resignation or removal of Trustee
effective.....................................53
(e) One Trustee for each series...................53
SECTION 7.11. (a) Acceptance by successor to Trustee............53
(b) Trustee with respect to less than
all series....................................54
(c) Company to confirm Trustee's rights...........55
(d) Successor Trustee to be qualified.............55
(e) Notice of succession..........................55
SECTION 7.12. Successor to Trustee by merger, consolidation
or succession to business...........................55
SECTION 7.13. (a) Limitations on rights of Trustee
as a creditor to obtain payment of
certain claims within four months
prior to default or during default,
or to realize on property as such
creditor thereafter...........................55
(b) Certain creditor relationships excluded.......58
(c) Definition of certain terms...................59
ARTICLE EIGHT
CONCERNING THE DEBENTUREHOLDERS
SECTION 8.01. Evidence of action by Debentureholders..............60
SECTION 8.02. Proof of execution of instruments and of holding of
Debentures..........................................61
SECTION 8.03. Who may be deemed owners of Debentures..............61
SECTION 8.04. Debentures owned by Company or controlled or
controlling companies disregarded for certain
purposes............................................61
SECTION 8.05. Instruments executed by Debentureholders
bind future holders.................................62
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Purposes for which supplemental indenture may be
entered into without consent of Debentureholders....62
SECTION 9.02. Modification of Indenture with consent
of Debentureholders.................................64
SECTION 9.03. Effect of supplemental indentures...................65
SECTION 9.04. Debentures may bear notation of changes
by supplemental indentures..........................65
SECTION 9.05. Opinion of Counsel..................................66
ARTICLE TEN
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 10.01. Company May Consolidate, Etc. Only on
Certain Terms.......................................66
SECTION 10.02. Successor Corporation Substituted...................66
SECTION 10.03. Opinion of Counsel..................................67
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 11.01. Satisfaction and discharge of Indenture.............67
SECTION 11.02. Application by Trustee of Funds Deposited
for Payment of Debentures...........................70
SECTION 11.03. Application by Trustee of funds deposited
for payment of Debentures...........................70
SECTION 11.04. Repayment of moneys held by paying agent............70
SECTION 11.05. Repayment of moneys held by Trustee.................71
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. Incorporators, stockholders, officers and
directors of Company exempt from individual
liability...........................................71
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
SECTION 13.01. Successors and assigns of Company bound
by Indenture........................................72
SECTION 13.02. Acts of board, committee or officer of
successor company valid.............................72
SECTION 13.03. Surrender of powers of Company......................72
SECTION 13.04. Required notices or demands may be served
by mail.............................................72
SECTION 13.05. Indenture and Debentures to be construed
in accordance with laws of the State of
New York............................................72
SECTION 13.06. (a) Officers' Certificate and Opinion of
Counsel to be furnished upon applications
or demands by Company..........................72
(b) Statements to be included in each certificate
or opinion with respect to compliance with
condition or covenant..........................73
SECTION 13.07. Payments due on Sundays or holidays.................73
SECTION 13.08. Provisions required by Trust Indenture Act of 1933
to control..........................................73
SECTION 13.09. Indenture may be executed in counterparts...........73
SECTION 13.10. Separability of indenture provisions................73
SECTION 13.11. Assignment by Company to subsidiary.................74
SECTION 13.12. Holders of Preferred Securities as third party
beneficiaries of this Indenture; holders of
Preferred Securities may institute legal proceedings
against the Company in certain cases................74
ARTICLE FOURTEEN
SUBORDINATION OF DEBENTURES
SECTION 14.01. Agreement to Subordinate............................74
SECTION 14.02. Payments to Debentureholders........................74
SECTION 14.03. Subrogation of Debentures...........................76
SECTION 14.04. Authorization by Debentureholders...................78
SECTION 14.05. Notice to Trustee...................................78
SECTION 14.06. Trustee's Relation to Senior Indebtedness...........78
SECTION 14.07. No Impairment to Subordination......................79
ACCEPTANCE OF TRUST BY TRUSTEE...........................................79
SIGNATURES AND SEALS.....................................................80
THIS INDENTURE, is dated as of the ____ day of ______, 199_,
between The AES Corporation, a corporation duly organized and existing under
the laws of the State of Delaware (hereinafter sometimes referred to as the
"Company"), and The First National Bank of Chicago, a national association, as
Trustee (hereinafter sometimes referred to as the "Trustee"):
WHEREAS, for its lawful corporate purposes, the Company has
fully authorized the execution and delivery of this Indenture to provide for
the issuance of unsecured debentures (hereinafter referred to as the
"Debentures"), in an unlimited aggregate principal amount to be issued from
time to time in one or more series in accordance with the terms of this
Indenture, as registered Debentures without coupons, to be authenticated by
the certificate of the Trustee;
WHEREAS, to provide the terms and conditions upon which the
Debentures are to be authenticated, issued and delivered, the Company has duly
authorized the execution of this Indenture;
WHEREAS, the Debentures and the certificate of authentication
to be borne by the Debentures (the "Certificate of Authentication") are to be
substantially in such forms as may be approved by the Board of Directors (as
defined below) or set forth in any indenture supplemental to this Indenture;
AND WHEREAS, all acts and things necessary to make the
Debentures issued pursuant hereto, when executed by the Company and
authenticated and delivered by the Trustee in accordance with the terms of
this Indenture, the valid, binding and legal obligations of the Company,
and to constitute a valid indenture and agreement according to its terms,
have been done and performed or will be done and performed prior to the
issuance of such Debentures, and the execution of this Indenture has been
and the issuance hereunder of the Debentures has been or will be prior to
issuance in all respects duly authorized, and the Company, in the exercise
of the legal right and power in it vested, executes this Indenture and
proposes to make, execute, issue and deliver the Debentures;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which
the Debentures are and are to be authenticated, issued and delivered, and in
consideration of the premises and of the acquisition and acceptance of the
Debentures by the holders thereof, the Company covenants and agrees with the
Trustee, for the equal and proportionate benefit (subject to the provisions of
this Indenture) of the respective holders from time to time of the Debentures,
without any discrimination, preference or priority of any one Debenture over
any other by reason of priority in the time of issue, sale or negotiation
thereof, or otherwise, except as provided herein, as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. The terms defined in this Section (except as in
this Indenture otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Indenture, any resolution of the Board of
Directors of the Company and of any indenture supplemental hereof shall have
the respective meanings specified in this Section. All other terms used in
this Indenture which are defined in the Trust Indenture Act of 1939, as
amended, or which are by reference in such Act defined in the Securities Act
of 1933, as amended (except as herein otherwise expressly provided or unless
the context otherwise requires), shall have the meanings assigned to such
terms in said Trust Indenture Act and in said Securities Act as in force at
the date of this instrument.
"AES Trust" means such statutory business trust created under
the laws of the State of Delaware specified in the applicable Board Resolution
or supplemental indenture establishing a particular series of Debentures
pursuant to Section 2.01 hereof.
"Affiliate" of the Company means any company at least a
majority of whose outstanding voting stock shall at the time be owned by the
Company, or by one or more direct or indirect subsidiaries of the Company or
by the Company and one or more direct or indirect subsidiaries of the Company.
For the purposes only of this definition of the term "Affiliate", the term
"voting stock", as applied to the stock of any company, shall mean stock of
any class or classes having ordinary voting power for the election of a
majority of the directors of such company, other than stock having such power
only by reason of the occurrence of a contingency.
"Authenticating Agent" means an authenticating agent with
respect to all or any of the series of Debentures, as the case may be,
appointed with respect to all or any series of the Debentures, as the case may
be, by the Trustee pursuant to Section 2.10.
"Bank Credit Agreement" means the Credit Agreement dated as of
August 2, 1996 among the Company, the Banks named on the signature pages
thereof and Morgan Guaranty Trust Company of New York, as such Agreement has
been and may be amended, restated, supplemented or otherwise modified from
time to time, and includes any agreement extending the maturity of, or
restructuring (including, but not limited to, the inclusion of additional
borrowers thereunder that are Subsidiaries of the Company and whose
obligations are guaranteed by the Company thereunder) all or any portion of,
the Debt under such Agreement or any successor agreements and includes any
agreement with one or more banks or other lending institutions refinancing all
or any portion of the Debt under such Agreement or any successor agreements.
"Board of Directors" means the Board of Directors of the
Company, or any committee of such Board duly authorized to act hereunder.
"Board Resolution" means a copy of one or more resolutions,
certified by the secretary or an assistant secretary of the Company to have
been adopted or consented to by the Board of Directors and to be in full force
and effect, and delivered to the Trustee.
"Business day", with respect to any series of Debentures, means
any day other than a day on which banking institutions in the Borough of
Manhattan, the City and State of New York, are authorized or obligated by law
or executive order to close.
"Certificate" means a certificate signed by the principal
executive officer, the principal financial officer or the principal accounting
officer of the Company. The Certificate need not comply with the provisions of
Section 13.06.
"Change of Control" means the occurrence of one or more of the
following events: (i) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all, or substantially all,
of the assets of the Company to any Person or group (as that term is used in
Section 13(d)(3) of the Securities Exchange Act of 1934) of Persons, (ii) a
Person or group (as so defined) of Persons (other than management of the
Company on the date of this Indenture or their Affiliates) shall have become
the beneficial owner of more than 35% of the outstanding voting stock of the
Company, or (iii) during any one-year period, individuals who at the beginning
of such period constitute the Board of Directors (together with any new
director whose election or nomination was approved by a majority of the
directors then in office who were either directors at the beginning of such
period or who were previously so approved) cease to constitute a majority of
the Board of Directors.
"Common Securities" means the common undivided beneficial
interests in the assets of the applicable AES Trust.
"Company" means The AES Corporation, a corporation duly
organized and existing under the laws of the State of Delaware, and, subject
to the provisions of Article Ten, shall also include its successors and
assigns.
"Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered, which office at the date of the execution of this Indenture is
located at [TRUSTEE OFFICE ADDRESS], Attention: [TO COME].
"Currency Agreement" means, with respect to any Person, any
foreign exchange contract, currency swap agreement or other similar agreement
or arrangement designed to protect such Person or any of its Subsidiaries
against fluctuations in currency values to or under which such Person or any
of its Subsidiaries is a party or a beneficiary on the date hereof or becomes
a party or a beneficiary thereafter.
"Debt" means, with respect to any Person at any date of
determination (without duplication), (i) all indebtedness of such Person for
borrowed money, (ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (iii) all obligations of such
Person in respect of letters of credit or bankers' acceptance or other similar
instruments (or reimbursement obligations with respect thereto), (iv) all
obligations of such Person to pay the deferred purchase price of property or
services, except Trade Payables, (v) all obligations of such Person as lessee
under Capitalized Leases, (vi) all Debt of others secured by a Lien on any
asset of such Person, whether or not such Debt is assumed by such Person;
provided that, for purposes of determining the amount of any Debt of the type
described in this clause, if recourse with respect to such Debt is limited to
such asset, the amount of such Debt shall be limited to the lesser of the fair
market value of such asset or the amount of such Debt, (vii) all Debt of
others Guaranteed by such Person to the extent such Debt is Guaranteed by such
Person, (viii) all redeemable stock valued at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends and (ix)
to the extent not otherwise included in this definition, all obligations of
such Person under Currency Agreements and Interest Rate Agreements.
"Declaration of Trust" means the Declaration of Trust of the
AES Trust, if any, specified in the applicable Board Resolution or
supplemental indenture establishing a particular series of Debentures pursuant
to Section 2.01 hereof.
"Debenture" or "Debentures" means any Debenture or Debentures,
as the case may be, authenticated and delivered under this Indenture.
"Debentureholder", "holder of Debentures", "registered holder",
or other similar term, means the person or persons in whose name or names a
particular Debenture shall be registered on the books of the Company kept for
the purpose in accordance with the terms of this Indenture.
"Default" means any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
"Depositary" means with respect to Debentures of any series,
for which the Company shall determine that such Debentures will be issued as a
Global Debenture, The Depository Trust Company, New York, New York, another
clearing agency, or any successor registered as a clearing agency under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or other
applicable statute or regulation, which, in each case, shall be designated by
the Company pursuant to either Section 2.01 or 2.11.
"Designated Senior Indebtedness" means (i) Debt under the Bank
Credit Agreement and (ii) Debt constituting Senior Indebtedness which, at the
time of its determination, (A) has an aggregate principal amount of at least
$30 million and (B) is specifically designated in the instrument evidencing
such Senior Indebtedness as "Designated Senior Indebtedness" by the Company.
"Event of Default", with respect to Debentures of a particular
series means any event specified in Section 6.01(a), continued for the period
of time, if any, therein designated.
"Global Debenture" means, with respect to any series of
Debentures, a Debenture executed by the Company and delivered by the Trustee
to the Depositary or pursuant to the Depositary's instruction, all in
accordance with the Indenture, which shall be registered in the name of the
Depositary or its nominee.
"Governmental Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America, the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which, in either case,
are not callable or redeemable at the option of the issuer thereof, and shall
also include a depository receipt issued by a bank (as defined in Section 3(a)
(2) of the Securities Act of 1933, as amended) as custodian with respect to
any such Governmental Obligation or a specific payment of principal of or
interest on any such Governmental Obligation held by such custodian for the
account of the holder of such depository receipt; provided that (except as
required by law) such custodian is not authorized to make any deduction from
the amount payable to the holder of such depository receipt from any amount
received by the custodian in respect of the Governmental Obligation or the
specific payment of principal of or interest on the Governmental Obligation
evidenced by such depository receipt.
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Debt or other obligation of
any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of)
such Debt or other obligation of such other Person (whether arising by virtue
of partnership arrangements, or by agreement to keepwell, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (ii) entered into for purposes of
assuring in any other manner the obligee of such Debt or other obligation of
the payment thereof or to protect such obligee against loss in respect thereof
(in whole or in part); provided that the term "Guarantee" shall not include
endorsements for collection or deposit in the ordinary course of business.
The term "Guarantee" used as a verb has a corresponding meaning.
"Guarantee" means the guarantee, if any, that the Company may
enter into that operates directly or indirectly for the benefit of holders of
Preferred Securities issued by a AES Trust.
"Indenture" means this instrument as originally executed, or,
if amended or supplemented as herein provided, as so amended or supplemented.
"Interest Payment Date" when used with respect to any
installment of interest on a Debenture of a particular series means the date
specified in such Debenture or in a Board Resolution or in an indenture
supplemental hereto with respect to such series as the fixed date on which an
installment of interest with respect to Debentures of that series is due and
payable.
"Interest Rate Agreement" means, with respect to any Person,
any interest rate protection agreement, interest rate future agreement,
interest rate option agreement, interest rate swap agreement, interest rate
cap agreement, interest rate collar agreement, interest rate hedge agreement
or other similar agreement or arrangement designed to protect such Person or
any of its Subsidiaries against fluctuations in interest rates to or under
which such Person or any of its Subsidiaries is a party or a beneficiary on
the date hereof or becomes a party or a beneficiary thereafter.
"Lien" means, with respect to any Property, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of
such Property. For purposes of this Indenture, the Company shall be deemed to
own subject to a Lien any Property which it has acquired or holds subject to
the interest of a vendor or lessor under any conditional sale agreement,
capital lease or other title retention agreement relating to such Property.
"Officers' Certificate" means a certificate signed by the
President or a Vice President and by the Treasurer or an Assistant Treasurer
or the Controller or an Assistant Controller or the Secretary or an Assistant
Secretary of the Company and who shall be satisfactory to the Trustee. Each
such certificate shall include the statements provided for in Section 13.06,
if and to the extent required by the provisions thereof.
"Opinion of Counsel" means an opinion in writing signed by
legal counsel, who may be an employee of or counsel for the Company and who
shall be satisfactory to the Trustee. Each such opinion shall include the
statements provided for in section 13.06, if and to the extent required by the
provisions thereof.
"Outstanding", when used with reference to Debentures of any
series, subject to the provisions of Section 8.01, means, as of any particular
time, all Debentures of that series theretofore authenticated and delivered by
the Trustee under this Indenture, except (a) Debentures theretofore canceled
by the Trustee or any paying agent, or delivered to the Trustee or any paying
agent for cancellation or which have previously been canceled; (b) Debentures
or portions thereof for the payment or redemption of which moneys or
Governmental Obligations in the necessary amount shall have been deposited in
trust with the Trustee or with any paying agent (other than the Company) or
shall have been set aside and segregated in trust for the holders of such
Debentures by the Company (if the Company shall act as its own paying agent);
provided, however, that if such Debentures or portions of such Debentures are
to be redeemed prior to the maturity thereof, notice of such redemption shall
have been given as in Article Three provided, or provision satisfactory to the
Trustee shall have been made for giving such notice; and (c) Debentures in
lieu of or in substitution for which other Debentures shall have been
authenticated and delivered pursuant to the terms of Section 2.07.
"Person" means any individual, corporation, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Predecessor Debenture" of any particular Debenture means every
previous Debenture evidencing all or a portion of the same debt as that
evidenced by such particular Debenture; and, for the purposes of this
definition, any Debenture authenticated and delivered under Section 2.07 in
lieu of a lost, destroyed or stolen Debenture shall be deemed to evidence the
same debt as the lost, destroyed or stolen Debenture.
"Preferred Securities" means the preferred undivided beneficial
interests in the assets of the applicable AES Trust.
"Property Trustee" means the entity performing the function of
the Property Trustee under the applicable Declaration of Trust of a AES Trust.
"Responsible Officer" when used with respect to the Trustee
means the chairman of the board of directors, the president, any vice
president, the secretary, the treasurer, any trust officer, any corporate
trust officer or any other officer or assistant officer of the Trustee
customarily performing functions similar to those performed by the persons who
at the time shall be such officers, respectively, or to whom any corporate
trust matter is referred because of his or her knowledge of and familiarity
with the particular subject.
"Security Exchange" when used with respect to the Debentures of
any series which are held as trust assets of a AES Trust pursuant to the
Declaration of Trust of such AES Trust, means the distribution of the
Debentures of such series by such AES Trust in exchange for the Preferred
Securities and Common Securities of such AES Trust in dissolution of such AES
Trust pursuant to the Declaration of Trust of such AES Trust.
"Senior Indebtedness" means the principal of (and premium, if
any) and interest on all Debt of the Company whether created, incurred or
assumed before, on or after the date of this Indenture; provided that such
Senior Indebtedness shall not include (i) Debt of the Company that, when
incurred and without respect to any election under Section 1111(b) of Title
11, U.S. Code, was without recourse, (ii) any other Debt of the Company which
by the terms of the instrument creating or evidencing the same is specifically
designated as not being senior in right of payment to the Debentures, and in
particular the Debentures shall rank pari passu with all other debt securities
and guarantees issued to any trust, partnership or other entity affiliated
with the Company which is a financing vehicle of the Company in connection
with an issuance of preferred securities by such financing entity and (iii)
redeemable stock of the Company.
"Subsidiary" means any corporation at least a majority of whose
outstanding voting stock shall at the time be owned by the Company or by one
or more subsidiaries or by the Company and one or more Subsidiaries. For the
purposes only of this definition of the term "Subsidiary", the term "voting
stock", as applied to the stock of any corporation, shall mean stock of any
class or classes having ordinary voting power for the election of a majority
of the directors of such corporation, other than stock having such power only
by reason of the occurrence of a contingency.
"Trade Payables" means, with respect to any Person, any
accounts payable or any other indebtedness or monetary obligation to trade
creditors created, assumed or Guaranteed by such Person or any of its
Subsidiaries arising in the ordinary course of business in connection with the
acquisition of goods or services.
"Trustee" means The First National Bank of Chicago, and,
subject to the provisions of Article Seven, shall also include its successors
and assigns, and, if at any time there is more than one person acting in such
capacity hereunder, "Trustee" shall mean each such person. The term "Trustee"
as used with respect to a particular series of the Debentures shall mean the
trustee with respect to that series.
"Trust Indenture Act", subject to the provisions of Section
9.01 and 9.02, means the Trust Indenture Act of 1939, as amended and in effect
at the date of execution of this Indenture.
ARTICLE TWO
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF DEBENTURES
Section 2.01. The aggregate principal amount of Debentures
which may be authenticated and delivered under this Indenture is unlimited.
The Debentures may be issued in one or more series up to the
aggregate principal amount of Debentures of that series from time to time
authorized by or pursuant to a Board Resolution or pursuant to one or more
indentures supplemental hereto, prior to the initial issuance of Debentures of
a particular series. Prior to the initial issuance of Debentures of any
series, there shall be established in or pursuant to a Board Resolution, and
set forth in an Officers' Certificate, or established in one or more
indentures supplemental hereto:
(1) the title of the Debentures of the series (which shall
distinguish the Debentures of the series from all other
Debentures);
(2) any limit upon the aggregate principal amount of the
Debentures of that series which may be authenticated and delivered
under this Indenture (except for Debentures authenticated and
delivered upon registration of transfer of, or in exchange for, or
in lieu of, other Debentures of that series):
(3) the date or dates on which the principal of the
Debentures of the series is payable;
(4) the rate or rates at which the Debentures of the series
shall bear interest or the manner of calculation of such rate or
rates, if any;
(5) the date or dates from which such interest shall accrue,
the Interest Payment Dates on which such interest will be payable
or the manner of determination of such Interest Payment Dates and
the record date for the determination of holders to whom interest
is payable on any such Interest Payment Dates;
(6) the right, if any, to extend or defer the interest
payment periods and the duration of such extension;
(7) the period or periods within which, the price or prices
at which, and the terms and conditions upon which, Debentures of
the series may be redeemed, in whole or in part, at the option of
the Company;
(8) the obligation, if any, of the Company to redeem or
purchase Debentures of the series pursuant to any sinking fund or
analogous provisions (including payments made in cash in
anticipation of future sinking fund obligations) or at the option
of a holder thereof and the period or periods within which, the
price or prices at which, and the terms and conditions upon which,
Debentures of the series shall be redeemed or purchased, in whole
or in part, pursuant to such obligation;
(9) any exchangeability, conversion or prepayment provisions
of the Debentures;
(10) the form of the Debentures of the series including the
form of the Certificate of Authentication for such series;
(11) if other than denominations of $25 or any integral
multiple thereof, the denominations in which the Debentures of the
series shall be issuable;
(12) any and all other terms with respect to such series
(which terms shall not be inconsistent with the terms of this
Indenture); and
(13) whether the Debentures are issuable as a Global Debenture
and, in such case, the identity of the Depositary for such series.
(14) If the Debentures of such series are to be deposited as
trust assets in a AES Trust the name of the applicable AES Trust
(which shall distinguish such statutory business trust from all
other AES Trusts) into which the Debentures of such series are to
be deposited as trust assets and the date of its Declaration of
Trust.
All Debentures of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to any such Board Resolution or in any indenture supplemental
hereto.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
SECTION 2.02. The Debentures of any series and the Trustee's
certificate of authentication to be borne by such Debentures shall be
substantially of the tenor and purport as set forth in one or more indentures
supplemental hereto or as provided in a Board Resolution and as set forth in
an Officers' Certificate, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the Company may deem appropriate and as
are not inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which
Debentures of that series may be listed, or to conform to usage.
SECTION 2.03. The Debentures shall be issuable as registered
Debentures and in the denominations of $25 or any integral multiple thereof,
subject to Section 2.01(10). The Debentures of a particular series shall bear
interest payable on the dates and at the rate specified with respect to that
series. The principal of and the interest on the Debentures of any series, as
well as any premium thereon in case of redemption thereof prior to maturity,
shall be payable in the coin or currency of the United States of America which
at the time is legal tender for public and private debt, at the office or
agency of the Company maintained for that purpose in the Borough of Manhattan,
The City and State of New York. Each Debenture shall be dated the date of its
authentication. Interest on the Debentures shall be computed on the basis of a
360-day year composed of twelve 30-day months.
The interest installment on any Debenture which is payable, and
is punctually paid or duly provided for, on any Interest Payment Date for
Debentures of that series shall be paid to the person in whose name said
Debenture (or one or more Predecessor Debentures) is registered at the close
of business on the regular record date for such interest installment. In the
event that any Debenture of a particular series or portion thereof is called
for redemption and the redemption date is subsequent to a regular record date
with respect to any Interest Payment Date and prior to such Interest Payment
Date, interest on such Debenture will be paid upon presentation and surrender
of such Debenture as provided in Section 3.03.
Any interest on any Debenture which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date for
Debentures of the same series (herein called "Defaulted Interest") shall
forthwith cease to be payable to the registered holder on the relevant regular
record date by virtue of having been such holder; and such Defaulted Interest
shall be paid by the Company, at its election, as provided in clause (1) or
clause (2) below:
(1) The Company may make payment of any Defaulted Interest on
Debentures to the persons in whose names such Debentures (or their
respective Predecessor Debentures) are registered at the close of
business on a special record date for the payment of such
Defaulted Interest, which shall be fixed in the following manner:
the Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each such Debenture and
the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the
persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a special record date
for the payment of such Defaulted Interest which shall not be more
than 15 nor less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such special record date and, in the name
and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the special record
date therefor to be mailed, first class postage prepaid, to each
Debentureholder at his or her address as it appears in the
Debenture Register (as hereinafter defined), not less than 10 days
prior to such special record date. Notice of the proposed payment
of such Defaulted Interest and the special record date therefor
having been mailed as aforesaid, such Defaulted Interest shall be
paid to the persons in whose names such Debentures (or their
Predecessor Debentures) are registered on such special record date
and shall be no longer payable pursuant to the following clause
(2).
(2) The Company may make payment of any Defaulted Interest on
any Debentures in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such
Debentures may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
Unless otherwise set forth in a Board Resolution or one or more
indentures supplemental hereto establishing the terms of any series of
Debentures pursuant to Section 2.01 hereof, the term "regular record date" as
used in this Section with respect to a series of Debentures with respect to
any Interest Payment Date for such series shall mean either the fifteenth day
of the month immediately preceding the month in which an Interest Payment Date
established for such series pursuant to Section 2.01 hereof shall occur, if
such Interest Payment Date is the first day of a month, or the last day of the
month immediately preceding the month in which an Interest Payment Date
established for such series pursuant to Section 2.01 hereof shall occur, if
such Interest Payment Date is the fifteenth day of a month, whether or not
such date is business day.
Subject to the foregoing provisions of this Section, each
Debenture of a series delivered under this Indenture upon transfer of or in
exchange for or in lieu of any other Debenture of such series shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by
such other Debenture.
SECTION 2.04. The Debentures shall, subject to the provisions
of Section 2.06, be printed on steel engraved borders or fully or partially
engraved, or legibly typed, as the proper officers of the Company may
determine, and shall be signed on behalf of the Company by the Chairman or
Vice Chairman of its Board of Directors or its President or one of its Vice
Presidents, under its corporate seal attested by its Secretary or one of its
Assistant Secretaries. The signature of the Chairman, Vice Chairman, President
or a Vice President and/or the signature of the Secretary or an Assistant
Secretary in attestation of the corporate seal, upon the Debentures, may be in
the form of a manual or facsimile signature of a present or any future
Chairman, Vice Chairman, President or Vice President and of a present or any
future Secretary or Assistant Secretary and may be imprinted or otherwise
reproduced on the Debentures and for that purpose the Company may use the
manual or facsimile signature of any person who shall have been a Chairman,
Vice Chairman, President or Vice President, or of any person who shall have
been a Secretary or Assistant Secretary, notwithstanding the fact that at the
time the Debentures shall be authenticated and delivered or disposed of such
person shall have ceased to be the Chairman, Vice Chairman, President or a
Vice President, or the Secretary or an Assistant Secretary, of the Company, as
the case may be. The seal of the Company may be in the form of a facsimile of
the seal of the Company and may be impressed, affixed, imprinted or otherwise
reproduced on the Debentures.
Only such Debentures as shall bear thereon a Certificate of
Authentication substantially in the form established for such Debentures,
executed manually by an authorized signatory of the Trustee, or by any
Authenticating Agent with respect to such Debentures, shall be entitled to the
benefits of this Indenture or be valid or obligatory for any purpose. Such
certificate executed by the Trustee, or by any Authenticating Agent appointed
by the Trustee with respect to such Debentures, upon any Debenture executed by
the Company shall be conclusive evidence that the Debenture so authenticated
has been duly authenticated and made available for delivery hereunder and that
the holder is entitled to the benefits of this Indenture.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Debentures of any series
executed by the Company to the Trustee for authentication, together with a
written order of the Company for the authentication and delivery of such
Debentures, signed by its President or any Vice President and its Treasurer or
any Assistant Treasurer, and the Trustee in accordance with such written order
shall authenticate and make available for delivery such Debentures.
In authenticating such Debentures and accepting the additional
responsibilities under this Indenture in relation to such Debentures, the
Trustee shall be entitled to receive, and (subject to Section 7.01) shall be
fully protected in relying upon, an Opinion of Counsel stating that the form
and terms thereof have been established in conformity with the provisions of
this Indenture.
The Trustee shall not be required to authenticate such
Debentures if the issue of such Debentures pursuant to this Indenture will
affect the Trustee's own rights, duties or immunities under the Debentures and
this Indenture or otherwise in a manner which is not reasonably acceptable to
the Trustee.
SECTION 2.05. (a) Debentures of any series may be exchanged
upon presentation thereof at the office or agency of the Company designated
for such purpose in the Borough of Manhattan, The City and State of New York,
for other Debentures of such series of authorized denominations, and for a
like aggregate principal amount, upon payment of a sum sufficient to cover any
tax or other governmental charge in relation thereto, all as provided in this
Section. In respect of any Debentures so surrendered for exchange, the Company
shall execute, the Trustee shall authenticate and such office or agency shall
make available for delivery in exchange therefor the Debenture or Debentures
of the same series which the Debentureholder making the exchange shall be
entitled to receive, bearing numbers not contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at its office
or agency designated for such purpose in the Borough of Manhattan, The City
and State of New York, or such other location designated by the Company a
register or registers (herein referred to as the "Debenture Register") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall register the Debentures and the transfers of Debentures as in this
Article provided and which at all reasonable times shall be open for
inspection by the Trustee. The registrar for the purpose of registering
Debentures and transfer of Debentures as herein provided shall be appointed
as authorized by Board Resolution (the "Debenture Registrar").
Upon surrender for transfer of any Debenture at the office or
agency of the Company designated for such purpose in the Borough of Manhattan,
The City and State of New York, the Company shall execute, the Trustee shall
authenticate and such office or agency shall make available for delivery in
the name of the transferee or transferees a new Debenture or Debentures of the
same series as the Debenture presented for a like aggregate principal amount.
All Debentures presented or surrendered for exchange or
registration of transfer, as provided in this Section, shall be accompanied
(if so required by the Company or the Debenture Registrar) by a written
instrument or instruments of transfer, in form satisfactory to the Company or
the Debenture Registrar, duly executed by the registered holder or by his duly
authorized attorney in writing.
(c) No service charge shall be made for any exchange or
registration of transfer of Debentures, or issue of new Debentures in case of
partial redemption of any series, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge in relation thereto,
other than exchanges pursuant to Section 2.06, the second paragraph of Section
3.03 and Section 9.04 not involving any transfer.
(d) The Company shall not be required (i) to issue, exchange
or register the transfer of any Debentures during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of less than all the outstanding Debentures of the same series and
ending at the close of business on the day of such mailing, nor (ii) to
register the transfer of or exchange any Debentures of any series or portions
thereof called for redemption. The provisions of this Section 2.05 are, with
respect to any Global Debenture, subject to Section 2.11 hereof.
SECTION 2.06. Pending the preparation of definitive Debentures
of any series, the Company may execute, and the Trustee shall authenticate and
make available for delivery, temporary Debentures (printed, lithographed or
typewritten) of any authorized denomination, and substantially in the form of
the definitive Debentures in lieu of which they are issued, but with such
omissions, insertions and variations as may be appropriate for temporary
Debentures, all as may be determined by the Company. Every temporary Debenture
of any series shall be executed by the Company and be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and
with like effect, as the definitive Debentures of such series. Without
unnecessary delay the Company will execute and will furnish definitive
Debentures of such series and thereupon any or all temporary Debentures of
such series may be surrendered in exchange therefor (without charge to the
holders), at the office or agency of the Company designated for the purpose in
the Borough of Manhattan, The City and State of New York, and the Trustee
shall authenticate and such office or agency shall make available for delivery
in exchange for such temporary Debentures an equal aggregate principal amount
of definitive Debentures of such series, unless the Company advises the
Trustee to the effect that definitive Debentures need not be executed and
furnished until further notice from the Company. Until so exchanged, the
temporary Debentures of such series shall be entitled to the same benefits
under this Indenture as definitive Debentures of such series authenticated and
delivered hereunder.
SECTION 2.07. In case any temporary or definitive Debenture
shall become mutilated or be destroyed, lost or stolen, the Company (subject
to the next succeeding sentence) shall execute, and upon its request the
Trustee (subject as aforesaid) shall authenticate and make available for
delivery, a new Debenture of the same series bearing a number not
contemporaneously outstanding, in exchange and substitution for the mutilated
Debenture, or in lieu of and in substitution for the Debenture so destroyed,
lost or stolen. In every case the applicant for a substituted Debenture shall
furnish to the Company and to the Trustee such security or indemnity as may be
required by them to save each of them harmless, and, in every case of
destruction, loss or theft, the applicant shall also furnish to the Company
and to the Trustee evidence to their satisfaction of the destruction, loss or
theft of the applicant's Debenture and of the ownership thereof. The Trustee
may authenticate any such substituted Debenture and make available for
delivery the same upon the written request or authorization of any officer of
the Company. Upon the issuance of any substituted Debenture, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith. In case
any Debenture which has matured or is about to mature shall become mutilated
or be destroyed, lost or stolen, the Company may, instead of issuing a
substitute Debenture, pay or authorize the payment of the same (without
surrender thereof except in the case of a mutilated Debenture) if the
applicant for such payment shall furnish to the Company and to the Trustee
such security or indemnity as they may require to save them harmless, and, in
case of destruction, loss or theft, evidence to the satisfaction of the
Company and the Trustee of the destruction, loss or theft of such Debenture
and of the ownership thereof.
Every Debenture issued pursuant to the provisions of this
Section in substitution for any Debenture which is mutilated, destroyed, lost
or stolen shall constitute an additional contractual obligation of the
Company, whether or not the mutilated, destroyed, lost or stolen Debenture
shall be found at any time, or be enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and proportionately with any and
all other Debentures of the same series duly issued hereunder. All Debentures
shall be held and owned upon the express condition that the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Debentures, and shall preclude (to the
extent lawful) any and all other rights or remedies, notwithstanding any law
or statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
SECTION 2.08. All Debentures surrendered for the purpose of
payment, redemption, exchange or registration of transfer shall, if
surrendered to the Company or any paying agent, be delivered to the Trustee
for cancellation, or, if surrendered to the Trustee, shall be canceled by it,
and no Debentures shall be issued in lieu thereof except as expressly required
or permitted by any of the provisions of this Indenture. On written request of
the Company, the Trustee shall deliver to the Company canceled Debentures held
by the Trustee. If the Company shall otherwise acquire any of the Debentures,
however, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Debentures unless and until the same are
delivered to the Trustee for cancellation.
SECTION 2.09. Nothing in this Indenture or in the Debentures,
express or implied, shall give or be construed to give to any person, firm or
corporation, other than the parties hereto and the holders of the Debentures,
any legal or equitable right, remedy or claim under or in respect of this
Indenture, or under any covenant, condition or provision herein contained; all
such covenants, conditions and provisions being for the sole benefit of the
parties hereto and of the holders of the Debentures.
SECTION 2.10. So long as any of the Debentures of any series
remain outstanding there may be an Authenticating Agent for any or all such
series of Debentures which the Trustee shall have the right to appoint. Said
Authenticating Agent shall be authorized to act on behalf of the Trustee to
authenticate Debentures of such series issued upon exchange, transfer or
partial redemption thereof, and Debentures so authenticated shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. All references in this
Indenture to the authentication of Debentures by the Trustee shall be deemed
to include authentication by an Authenticating Agent for such series except
for authentication upon original issuance or pursuant to Section 2.07 hereof.
Each Authenticating Agent shall be acceptable to the Company and shall be a
corporation which has a combined capital and surplus, as most recently
reported or determined by it, sufficient under the laws of any jurisdiction
under which it is organized or in which it is doing business to conduct a
trust business, and which is otherwise authorized under such laws to conduct
such business and is subject to supervision or examination by Federal or State
authorities. If at any time any Authenticating Agent shall cease to be
eligible in accordance with these provisions, it shall resign immediately.
Any Authenticating Agent may at any time resign by giving
written notice of resignation to the Trustee and to the Company. The Trustee
may at any time (and upon request by the Company shall) terminate the agency
of any Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Company. Upon resignation, termination or
cessation of eligibility of any Authenticating Agent, the Trustee may appoint
an eligible successor Authenticating Agent acceptable to the Company. Any
successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its predecessor
hereunder as if originally named as an Authenticating Agent pursuant hereto.
SECTION 2.11. (a) If the Company shall establish pursuant to
Section 2.01 that the Debentures of a particular series are to be issued as
one or more Global Debentures, then the Company shall execute and the Trustee
shall, in accordance with Section 2.04, authenticate and deliver, one or more
Global Debentures which (i) shall represent, and shall be denominated in an
aggregate amount equal to the aggregate principal amount of, all of the
Outstanding Debentures of such series, (ii) shall be registered in the name of
the Depositary or its nominee, (iii) shall be delivered by the Trustee to the
Depositary or pursuant to the Depositary's instruction and (iv) shall bear a
legend substantially to the following effect: "Except as otherwise provided
in Section 2.11 of the Indenture, this Debenture may be transferred, in whole
but not in part, only to another nominee of the Depositary or to a successor
Depositary or to a nominee of such successor Depositary."
(b) Notwithstanding the provisions of Section 2.05, the Global
Debenture of a series may be transferred, in whole but not in part and in the
manner provided in Section 2.05, only to another nominee of the Depositary for
such series, or to a successor Depositary for such series selected or approved
by the Company or to a nominee of such successor Depositary.
(c) If at any time the Depositary for a series of Debentures
notifies the Company that it is unwilling or unable to continue as Depositary
for such series or if at any time the Depositary for such series shall no
longer be registered or in good standing under the Exchange Act, or other
applicable statute or regulation and a successor Depositary for such series is
not appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such condition, as the case may be, this Section
2.11 shall no longer be applicable to the Debentures of such series and the
Company will execute, and subject to Section 2.05, the Trustee will
authenticate and make available for delivery Debentures of such series in
definitive registered form without coupons, in authorized denominations, and
in an aggregate principal amount equal to the principal amount of the Global
Debentures of such series in exchange for such Global Debenture. In addition,
the Company may at any time determine that the Debentures of any series shall
no longer be represented by one or more Global Debentures and that the
provisions of this Section 2.11 shall no longer apply to the Debentures of
such series. In such event the Company will execute and subject to Section
2.05, the Trustee, upon receipt of an Officers' Certificate evidencing such
determination by the Company, will authenticate and deliver Debentures of such
series in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Debentures of such series in exchange for such Global
Debentures. Upon the exchange of the Global Debentures for such Debentures in
definitive registered form without coupons, in authorized denominations, the
Global Debentures shall be canceled by the Trustee. Such Debentures in
definitive registered form issued in exchange for the Global Debentures
pursuant to this Section 2.11(c) shall be registered in such names and in such
authorized denominations as the Depositary, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such Debentures to the Depositary for delivery to the
persons in whose names such Debentures are so registered.
SECTION 2.12. CUSIP Numbers. The Company in issuing the
Debentures may use "CUSIP" and "CINS" numbers (if then generally in use), and
the Trustee shall use CUSIP numbers or CINS numbers, as the case may be, in
notices of redemption or exchange as a convenience to Debentureholders and no
representation shall be made as to the correctness of such numbers either as
printed on the Debentures or as contained in any notice of redemption or
exchange.
ARTICLE THREE
REDEMPTION OF DEBENTURES AND
SINKING FUND PROVISIONS
SECTION 3.01. The Company may redeem the Debentures of any
series issued hereunder on and after the dates and in accordance with the
terms established for such series pursuant to Section 2.01 hereof.
SECTION 3.02. (a) In case the Company shall desire to
exercise such right to redeem all or, as the case may be, a portion of the
Debentures of any series in accordance with the right reserved so to do, it
shall give notice of such redemption to holders of the Debentures of such
series to be redeemed by mailing, first class postage prepaid, a notice of
such redemption not less than 30 days and not more than 60 days before the
date fixed for redemption of that series to such holders at their last
addresses as they shall appear upon the Debenture Register. Any notice which
is mailed in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the registered holder receives the notice.
In any case, failure duly to give such notice to the holder of any Debenture
of any series designated for redemption in whole or in part, or any defect in
the notice, shall not affect the validity of the proceedings for the
redemption of any other Debentures of such series or any other series. In the
case of any redemption of Debentures prior to the expiration of any
restriction on such redemption provided in the terms of such Debentures or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with any such restriction.
Each such notice of redemption shall specify the date fixed for
redemption and the redemption price at which Debentures of that series are to
be redeemed, and shall state that payment of the redemption price of such
Debentures to be redeemed will be made at the office or agency of the Company
in the Borough of Manhattan, the City and State of New York, upon presentation
and surrender of such Debentures, that interest accrued to the date fixed for
redemption will be paid as specified in said notice, that from and after said
date interest will cease to accrue and that the redemption is for a sinking
fund, if such is the case. If less than all the Debentures of a series are to
be redeemed, the notice to the holders of Debentures of that series to be
redeemed in whole or in part shall specify the particular Debentures to be so
redeemed. In case any Debenture is to be redeemed in part only, the notice
which relates to such Debenture shall state the portion of the principal
amount thereof to be redeemed, and shall state that on and after the
redemption date, upon surrender of such Debenture, a new Debenture or
Debentures of such series in principal amount equal to the unredeemed portion
thereof will be issued.
(b) If less than all the Debentures of a series are to be
redeemed, the Company shall give the Trustee at least 45 days' notice in
advance of the date fixed for redemption as to the aggregate principal amount
of Debentures of the series to be redeemed, and thereupon the Trustee shall
select, by lot or in such other manner as it shall deem appropriate and fair
in its discretion and which may provide for the selection of a portion or
portions (equal to $25 or any integral multiple thereof) of the principal
amount of such Debentures of a denomination larger than $25, the Debentures to
be redeemed and shall thereafter promptly notify the Company in writing of the
numbers of the Debentures to be redeemed, in whole or in part.
The Company may, if and whenever it shall so elect, by delivery
of instructions signed on its behalf by its President or any Vice President,
instruct the Trustee or any paying agent to call all or any part of the
Debentures of a particular series for redemption and to give notice of
redemption in the manner set forth in this Section, such notice to be in the
name of the Company or its own name as the Trustee or such paying agent may
deem advisable. In any case in which notice of redemption is to be given by
the Trustee or any such paying agent, the Company shall deliver or cause to be
delivered to, or permit to remain with, the Trustee or such paying agent, as
the case may be, such Debenture Register, transfer books or other records, or
suitable copies or extracts therefrom, sufficient to enable the Trustee or
such paying agent to give any notice by mail that may be required under the
provisions of this Section.
SECTION 3.03. (a) If the giving of notice of redemption shall
have been completed as above provided, the Debentures or portions of
Debentures of the series to be redeemed specified in such notice shall become
due and payable on the date and at the place stated in such notice at the
applicable redemption price, together with interest accrued to the date fixed
for redemption and interest on such Debentures or portions of Debentures shall
cease to accrue on and after the date fixed for redemption, unless the Company
shall default in the payment of such redemption price and accrued interest
with respect to any such Debenture or portion thereof. On presentation and
surrender of such Debentures on or after the date fixed for redemption at the
place of payment specified in the notice, said Debentures shall be paid and
redeemed at the applicable redemption price for such series, together with
interest accrued thereon to the date fixed for redemption (but if the date
fixed for redemption is an interest payment date, the interest installment
payable on such date shall be payable to the registered holder at the close of
business on the applicable record date pursuant to Section 2.03).
(b) Upon presentation of any Debenture of such series which is
to be redeemed in part only, the Company shall execute and the Trustee shall
authenticate and the office or agency where the Debenture is presented shall
make available for delivery to the holder thereof, at the expense of the
Company, a new Debenture or Debentures of the same series, of authorized
denominations in principal amount equal to the unredeemed portion of the
Debenture so presented.
SECTION 3.04. The provisions or Sections 3.04, 3.05 and 3.06
shall be applicable to any sinking fund for the retirement of Debentures of a
series, except as otherwise specified as contemplated by section 2.01 for
Debentures of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Debentures of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount
provided for by the terms of Debentures of any series is herein referred to as
on "optional sinking fund payment". If provided for by the terms of Debentures
for any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 3.05. Each sinking fund payment shall be
applied to the redemption of Debentures of any series as provided for by the
terms of Debentures of such series.
SECTION 3.05. The Company (i) may deliver outstanding
Debentures of a series (other than any previously called for redemption) and
(ii) may apply as a credit Debentures of a series which have been redeemed
either at the election of the Company pursuant to the terms of such Debentures
or through the application of permitted optional sinking fund payments
pursuant to the terms of such Debentures, in each case in satisfaction of all
or any part of any sinking fund payment with respect to the Debentures of such
series required to be made pursuant to the terms of such Debentures as
provided for by the terms of such series; provided that such Debentures have
not been previously so credited. Such Debentures shall be received and
credited for such purpose by the Trustee at the redemption price specified in
such Debentures for redemption through operation of the sinking fund and the
amount of such sinking fund payment shall be reduced accordingly.
SECTION 3.06. Not less than 45 days prior to each sinking fund
payment date for any series of Debentures, the Company will deliver to the
Trustee an Officers' Certificate specifying the amount of the next ensuing
sinking fund payment for that series pursuant to the terms for that series,
the portion thereof, if any, which is to be satisfied by delivering and
crediting Debentures of that series pursuant to Section 3.05 and the basis for
such credit and will, together with such Officers' Certificate, deliver to the
Trustee any Debentures to be so delivered. Not less than 30 days before each
such sinking fund payment date the Trustee shall select the Debentures to be
redeemed upon such sinking fund payment date in the manner specified in
Section 3.02 and cause notice of the redemption thereof to be given in the
name of and at the expense of the Company in the manner provided in Section
3.02. Such notice having been duly given, the redemption of such Debentures
shall be made upon the terms and in the manner stated in Section 3.03.
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
The Company covenants and agrees for each series of the Debentures
as follows:
SECTION 4.01. The Company will duly and punctually pay or
cause to be paid the principal of (and premium, if any) and interest on the
Debentures of that series at the time and place and in the manner provided
herein and established with respect to such Debentures.
SECTION 4.02. So long as any series of the Debentures remain
outstanding, the Company agrees to maintain an office or agency in the Borough
of Manhattan, The City and State of New York, with respect to each such series
and at such other location or locations as may be designated as provided in
this Section 4.02, where (i) Debentures of that series may be presented for
payment, (ii) Debentures of that series may be presented as hereinabove
authorized for registration of transfer and exchange, and (iii) notices and
demands to or upon the Company in respect of the Debentures of that series and
this Indenture may be given or served, such designation to continue with
respect to such office or agency until the Company shall, by written notice
signed by its President or a Vice President and delivered to the Trustee,
designate some other office or agency for such purposes or any of them. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, notices and demands may be made or served at the Corporate
Trust Office of the Trustee, and the Company hereby appoints the Trustee as
its agent to receive all such presentations, notices and demands.
SECTION 4.03. (a) If the Company shall appoint one or more
paying agents for all or any series of the Debentures, other than the Trustee,
the Company will cause each such paying agency to execute and deliver to the
Trustee an instrument in which such agent shall agree with the Trustee,
subject to the provisions of this Section:
(1) that it will hold all sums held by it as such agent for
the payment of the principal of (and premium, if any) or interest
on the Debentures of that series (whether such sums have been paid
to it by the Company or by any other obligor of such Debentures)
in trust for the benefit of the persons entitled thereto:
(2) that it will give the Trustee written notice of any
failure by the Company (or by any other obligor of such
Debentures) to make any payment of the principal of (and premium,
if any) or interest on the Debentures of that series when the same
shall be due and payable;
(3) that it will, at any time during the continuance of any
failure referred to in the preceding paragraph (a)(2) above, upon
the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such paying agent; and
(4) that it will perform all other duties of paying agent as
set forth in this Indenture.
(b) If the Company shall act as its own paying agent with
respect to any series of the Debentures, it will on or before each due date of
the principal of (and premium, if any) or interest on Debentures of that
series, set aside, segregate and hold in trust for the benefit of the persons
entitled thereto a sum sufficient to pay such principal (and premium, if any)
or interest so becoming due on Debentures of that series until such sums shall
be paid to such persons or otherwise disposed of as herein provided and will
promptly notify in writing the Trustee of such action, or any failure (by it
or any other obligor on such Debentures) to take such action. Whenever the
Company shall have one or more paying agents for any series of Debentures, it
will, prior to each due date of the principal of (and premium, if any) or
interest on any Debentures of that series, deposit with the paying agent a sum
sufficient to pay the principal (and premium, if any) or interest so becoming
due, such sum to be held in trust for the benefit of the persons entitled to
such principal, premium or interest, and (unless such paying agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
(c) Anything in this Section to the contrary notwithstanding,
(i) the agreement to hold sums in trust as provided in this Section is subject
to the provisions of Section 11.05, and (ii) the Company may at any time, for
the purpose of obtaining the satisfaction and discharge of this Indenture or
for any other purpose, pay, or direct any paying agent to pay, to the Trustee
all sums held in trust by the Company or such paying agent, such sums to be
held by the Trustee upon the same terms and conditions as those upon which
such sums were held by the Company or such paying agent; and, upon such
payment by any paying agent to the Trustee, such paying agent shall be
released from all further liability with respect to such money.
SECTION 4.04. The Company, whenever necessary to avoid or fill
a vacancy in the office of Trustee, will appoint, in the manner provided in
Section 7.10, a Trustee, so that there shall at all times be a Trustee
hereunder.
ARTICLE FIVE
DEBENTUREHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 5.01. The Company will furnish or cause to be
furnished to the Trustee (a) on a monthly basis on each regular record date
(as defined in Section 2.03) a list, in such form as the Trustee may
reasonably require, of the names and addresses of the holders of each series
of Debentures as of such regular record date, provided, that the Company shall
not be obligated to furnish or cause to furnish such list at any time that the
list shall not differ in any respect from the most recent list furnished to
the Trustee by the Company and (b) at such other times as the Trustee may
request in writing within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished; provided, however, no such list need
be furnished for any series for which the Trustee shall be the Debenture
Registrar.
SECTION 5.02. (a) The Trustee shall preserve, in as current a
form as is reasonably practicable, all information as to the names and
addresses of the holders of Debentures contained in the most recent list
furnished to it as provided in Section 5.01 and as to the names and addresses
of holders of Debentures received by the Trustee in its capacity as Debenture
Registrar (if acting in such capacity).
(b) The Trustee may destroy any list furnished to it as
provided in Section 5.01 upon receipt of a new list so furnished.
(c) In case three or more holders of Debentures of a series
(hereinafter referred to as "applicants") apply in writing to the Trustee, and
furnish to the Trustee reasonable proof that each such applicant has owned a
Debenture for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other holders of Debentures of such series or holders of all
Debentures with respect to their rights under this Indenture or under such
Debentures, and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee
shall within five business days after the receipt of such application, at its
election, either:
(1) afford to such applicants access to the information
preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section 5.02; or
(2) inform such applicants as to the approximate number of
holders of Debentures of such series or of all Debentures, as the
case may be, whose names and addresses appear in the information
preserved at the time by the Trustee, in accordance with the
provisions of subsection (a) of this Section 5.02, and as to the
approximate cost of mailing to such Debentureholders the form of
proxy or other communication, if any, specified in such
application.
(d) If the Trustee shall elect not to afford such applicants
access to such information, the Trustee shall, upon the written request of
such applicants, mail to each holder of such series or of all Debentures, as
the case may be, whose name and address appears in the information preserved
at the time by the Trustee in accordance with the provisions of subsection (a)
of this Section 5.02, a copy of the form of proxy or other communication which
is specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file with the
Securities and Exchange Commission (the "Commission"), together with a copy of
the material to be mailed, a written statement to the effect that, in the
opinion of the Trustee, such mailing would be contrary to the best interests
of the holders of Debentures of such series or of all Debentures, as the case
may be, or would be in violation of applicable law. Such written statement
shall specify the basis of such opinion. If the Commission, after opportunity
for a hearing upon the objections specified in the written statement so filed,
shall enter an order refusing to sustain any of such objections or if, after
the entry of an order sustaining one or more of such objections, the
Commission shall find, after notice and opportunity for hearing, that all the
objections so sustained have been met and shall enter an order so declaring,
the Trustee shall mail copies of such material to all such Debentureholders
with reasonable promptness after the entry of such order and the renewal of
such tender; otherwise, the Trustee shall be relieved of any obligation or
duty to such applicants respecting their application.
(e) Each and every holder of the Debentures, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any paying agent nor any Debenture Registrar shall
be held accountable by reason of the disclosure of any such information as to
the names and addresses of the holders of Debentures in accordance with the
provisions of subsection (b) of this Section, regardless of the source from
which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
said subsection (b).
SECTION 5.03. (a) The Company covenants and agrees to file
with the Trustee, within 15 days after the Company is required to file the
same with the Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15 (d) of the Exchange Act; or, if the
Company is not required to file information, documents or reports pursuant to
either of such sections, then to file with the Trustee and the Commission in
accordance with the rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Exchange Act, in
respect of a security listed and registered on a national securities exchange
as may be prescribed from time to time in such rules and regulations.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein, including
the Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
(b) The Company covenants and agrees to file with the Trustee
and the Commission, in accordance with the rules and regulations prescribed
from time to time by the Commission, such additional information, documents
and reports with respect to compliance by the Company with the conditions and
covenants provided for in this Indenture as may be required from time to time
by such rules and regulations.
(c) The Company covenants and agrees to transmit by mail,
first class postage prepaid, or reputable over-night delivery service which
provides for evidence of receipt, to the Debentureholders, as their names and
addresses appear upon the Debenture Register, within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents and
reports required to be filed by the Company pursuant to subsections (a) and
(b) of this Section as may be required by rules and regulations prescribed
from time to time by the Commission.
(d) The Company covenants and agrees to furnish to the
Trustee, on or before May 15 in each calendar year in which any of the
Debentures are outstanding, or on or before such other day in each calendar
year as the Company and the Trustee may from time to time agree upon, a
Certificate as to his or her knowledge of the Company's compliance with all
conditions and covenants under this Indenture. For purposes of this
subsection (d), such compliance shall be determined without regard to any
period of grace or requirement of notice provided under this Indenture.
SECTION 5.04. (a) On or before July 15 in each year in which
any of the Debentures are outstanding, the Trustee shall transmit by mail,
first class postage prepaid, to the Debentureholders, as their names and
addresses appear upon the Debenture Register, a brief report dated as of the
preceding May 15, with respect to any of the following events which may have
occurred within the previous twelve months (but if no such event has occurred
within such period no report need be transmitted):
(1) any change to its eligibility under Section 7.09, and its
qualifications under Section 7.08;
(2) the creation of or any material change to a relationship
specified in paragraphs (1) through (10) of subsection (c) of
Section 7.08;
(3) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the
making thereof) made by the Trustee (as such) which remain unpaid
on the date of such report, and for the reimbursement of which it
claims or may claim a lien or charge, prior to that of the
Debentures, on any property or funds held or collected by it as
Trustee if such advances so remaining unpaid aggregate more than
1/2 of 1% of the principal amount of the Debentures outstanding on
the date of such report;
(4) any change to the amount, interest rate, and maturity date
of all other indebtedness owing by the Company, or by any other
obligor on the Debentures, to the Trustee in its individual
capacity, on the date of such report, with a brief description of
any property held as collateral security therefor, except any
indebtedness based upon a creditor relationship arising in any
manner described in paragraph (2), (3), (4), or (6) of subsection
(b) of Section 7.13;
(5) any change to the property and funds, if any, physically
in the possession of the Trustee as such on the date of such
report;
(6) any release, or release and substitution, of property
subject to the lien of this Indenture (and the consideration
thereof, if any) which it has not previously reported;
(7) any additional issue of Debentures which the Trustee has
not previously reported; and
(8) any action taken by the Trustee in the performance of its
duties under this Indenture which it has not previously reported
and which in its opinion materially affects the Debentures or the
Debentures of any series, except any action in respect of a
default, notice of which has been or is to be withheld by it in
accordance with the provisions of Section 6.07.
(b) The Trustee shall transmit by mail, first class postage
prepaid, to the Debentureholders, as their names and addresses appear upon the
Debenture Register, a brief report with respect to the character and amount of
any advances (and if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee as such since the date of
the last report transmitted pursuant to the provisions of subsection (a) of
this Section (or if no such report has yet been so transmitted, since the date
of execution of this Indenture), for the reimbursement of which it claims or
may claim a lien or charge prior to that of the Debentures of any series on
property or funds held or collected by it as Trustee, and which it has not
previously reported pursuant to this subsection if such advances remaining
unpaid at any time aggregate more than 10% of the principal amount of
Debentures of such series outstanding at such time, such report to be
transmitted within 90 days after such time.
(c) A copy of each such report shall, at the time of such
transmission to Debentureholders, be filed by the Trustee with the Company,
with each stock exchange upon which any Debentures are listed (if so listed)
and also with the Commission. The Company agrees to notify the Trustee when
any Debentures become listed on any stock exchange.
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND
DEBENTUREHOLDERS ON EVENT OF DEFAULT
SECTION 6.01. (a) Whenever used herein with respect to
Debentures of a particular series, "Event of Default" means any one or more of
the following events which has occurred and is continuing:
(1) default in the payment of any installment of interest upon
any of the Debentures of that series, as and when the same shall
become due and payable, and continuance of such default for a
period of 30 days; provided, however, that a valid extension of
an interest payment period by the Company in accordance with the
terms of any indenture supplemental hereto, shall not constitute a
default in the payment of interest for this purpose;
(2) default in the payment of the principal of (or premium, if
any, on) any of the Debentures of that series as and when the same
shall become due and payable whether at maturity, upon redemption,
by declaring or otherwise, or in any payment required by any
sinking or analogous fund established with respect to that series;
(3) failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of
the Company with respect to that series contained in such
Debentures or otherwise established with respect to that series of
Debentures pursuant to Section 2.01 hereof or contained in this
Indenture (other than a covenant or agreement which has been
expressly included in this Indenture solely for the benefit of one
or more series of Debentures other than such series) for a period
of 90 days after the date on which written notice of such failure,
requiring the same to be remedied and stating that such notice is
a "Notice of Default" hereunder, shall have been given to the
Company by the Trustee, by registered or certified mail, or to the
Company and the Trustee by the holders of at least 25% in
principal amount of the Debentures of that series at the time
outstanding;
(4) a decree or order by a court having jurisdiction in the
premises shall have been entered adjudging the Company as bankrupt
or insolvent, or approving as properly filed a petition seeking
liquidation or reorganization of the Company under the Federal
Bankruptcy Code or any other similar applicable Federal or State
law, and such decree or order shall have continued unvacated and
unstayed for a period of 90 days; or an involuntary case shall be
commenced under such Code in respect of the Company and shall
continue undismissed for a period of 90 days or an order for
relief in such case shall have been entered; or a decree or order
of a court having jurisdiction in the premises shall have been
entered for the appointment on the ground of insolvency or
bankruptcy of a receiver or custodian or liquidator or trustee or
assignee in bankruptcy or insolvency of the Company or of its
property, or for the winding up or liquidation of its affairs, and
such decree or order shall have remained in force unvacated and
unstayed for a period of 90 days; or
(5) the Company shall institute proceedings to be adjudicated
a voluntary bankrupt, or shall consent to the filing of a
bankruptcy proceeding against it, or shall file a petition or
answer or consent seeking liquidation or reorganization under the
Federal Bankruptcy Code or any other similar applicable Federal or
State law, or shall consent to the filing of any such petition, or
shall consent to the appointment on the ground of insolvency or
bankruptcy of a receiver or custodian or liquidator or trustee or
assignee in bankruptcy or insolvency of it or of its property, or
shall make an assignment for the benefit of creditors.
(b) In each and every such case, unless the principal of all
the Debentures of that series shall have already become due and payable,
either the Trustee or the holders of not less than 25% in aggregate principal
amount of the Debentures of that series then outstanding hereunder, by notice
in writing to the Company (and to the Trustee if given by such
Debentureholders), may declare the principal of all the Debentures of that
series to be due and payable immediately, and upon any such declaration the
same shall become and shall be immediately due and payable, anything contained
in this Indenture or in the Debentures of that series or established with
respect to that series pursuant to Section 2.01 hereof to the contrary
notwithstanding.
(c) Section 6.01(b), however, is subject to the condition
that if, at any time after the principal of the Debentures of that series
shall have been so declared due and payable, and before any judgment or decree
for the payment of the moneys due shall have been obtained or entered as
hereinafter provided, the Company shall pay or shall deposit with the Trustee
a sum sufficient to pay all matured installments of interest upon all the
Debentures of that series and the principal of (and premium, if any, on) any
and all Debentures of that series which shall have become due otherwise than
by acceleration (with interest upon such principal and premium, if any, and,
to the extent that such payment is enforceable under applicable law, upon
overdue installments of interest, at the rate per annum expressed in the
Debentures of that series to the date of such payment or deposit) and the
amount payable to the Trustee under Section 7.06, and any and all defaults
under the Indenture, other than the nonpayment of principal on Debentures of
that series which shall not have become due by their terms, shall have been
remedied or waived as provided in Section 6.06 then and in every such case the
holders of a majority in aggregate principal amount of the Debentures of that
series then outstanding (subject to, in the case of any series of Debentures
held as trust assets of a AES Trust and with respect to which a Security
Exchange has not theretofore occurred, such consent of the holders of the
Preferred Securities and the Common Securities of such AES Trust as may be
required under the Declaration of Trust of such AES Trust), by written notice
to the Company and to the Trustee, may rescind and annul such declaration and
its consequences with respect to that series of Debentures; but no such
rescission and annulment shall extend to or shall affect any subsequent
default, or shall impair any right consequent thereon.
(d) In case the Trustee shall have proceeded to enforce any
right with respect to Debentures of that series under this Indenture and such
proceedings shall have been discontinued or abandoned because of such
rescission or annulment or for any other reason or shall have been determined
adversely to the Trustee, then and in every such case the Company and the
Trustee shall be restored respectively to their former positions and rights
hereunder, and all rights, remedies and powers of the Company and the Trustee
shall continue as though no such proceedings had been taken.
(e) If, prior to a Security Exchange with respect to the
Debentures of any series, a Default with respect to the Debentures of such
series shall have occurred, the Company expressly acknowledges that under the
circumstances set forth in the applicable Declaration of Trust, any holder of
Preferred Securities of the applicable AES Trust may enforce directly against
the Company the applicable Property Trustee's rights hereunder. In
furtherance of the foregoing and for the avoidance of any doubt, the Company
acknowledges that, under the circumstances described in the applicable
Declaration of Trust, any such holder of Preferred Securities, in its own
name, in the name of the applicable AES Trust or in the name of the holders of
the Preferred Securities issued by such AES Trust, may institute or cause to
be instituted a proceeding, including, without limitation, any suit in equity,
an action at law or other judicial or administrative proceeding, to enforce
the applicable Property Trustee's rights hereunder directly against the
Company as issuer of the applicable series of Debentures, and may prosecute
such proceeding to judgment or final decree, and enforce the same against the
Company.
SECTION 6.02. (a) The Company covenants that (1) in case
default shall be made in the payment of any installment of interest on any of
the Debentures of a series, or any payment required by any sinking or
analogous fund established with respect to that series as and when the same
shall have become due and payable, and such default shall have continued
for a period of 10 business days, or (2) in case default shall be made in
the payment of the principal of (or premium, if any, on) any of the
Debentures of a series when the same shall have become due and payable,
whether upon maturity of the Debentures of a series or upon redemption or
upon declaration or otherwise, then, upon demand of the Trustee, the
Company will pay to the Trustee, for the benefit of the holders of the
Debentures of that series, the whole amount that then shall have become due
and payable on all such Debentures for principal (and premium, if any) or
interest, or both, as the case may be, with interest upon the overdue
principal (and premium, if any) and (to the extent that payment of such
interest is enforceable under applicable law and without duplication of any
other amounts paid by the Company or the applicable AES Trust in respect
thereof) upon overdue installments of interest at the rate per annum
expressed in the Debentures of that series; and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, and the amount payable to the Trustee under Section 7.06.
(b) In case the Company shall fail forthwith to pay such
amounts upon such demand, the Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceeding to judgment or final
decree, and may enforce any such judgment or final decree against the Company
or other obligor upon the Debentures of that series and collect in the manner
provided by law out of the property of the Company or other obligor upon the
Debentures of that series wherever situated the moneys adjudged or decreed to
be payable.
(c) In case of any receivership, insolvency, liquidation,
bankruptcy, reorganization, readjustment, arrangement, composition or other
judicial proceedings affecting the Company, any other obligor on such
Debentures, or the creditors or property of either, the Trustee shall have the
power to intervene in such proceedings and take any action therein that may be
permitted by the court and shall (except as may be otherwise provided by law)
be entitled to file such proofs of claim and other papers and documents as may
be necessary or advisable in order to have the claims of the Trustee and of
the holders of Debentures of such series allowed for the entire amount due and
payable by the Company or such other obligor under the Indenture at the
date of institution of such proceedings and for any additional amount which
may become due and payable by the Company or such other obligor after such
date, and to collect and receive any moneys or other property payable or
deliverable on any such claim, and to distribute the same after the
deduction of the amount payable to the Trustee under Section 7.06; and any
receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the holders of Debentures of such series to make such
payments to the Trustee, and, in the event that the Trustee shall consent
to the making of such payments directly to such Debentureholders, to pay to
the Trustee any amount due it under Section 7.06.
(d) All rights of action and of asserting claims under this
Indenture, or under any of the terms established with respect to Debentures of
that series, may be enforced by the Trustee without the possession of any of
such Debentures, or the production thereof at any trial or other proceeding
relative thereto, and any such suit or proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for payment to the Trustee of any
amounts due under Section 7.06, be for the ratable benefit of the holders of
the Debentures of such series.
In case of an Event of Default hereunder, the Trustee may in
its discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in the Indenture or in aid of the exercise
of any power granted in this Indenture, or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Debentureholder any plan of reorganization, arrangement, adjustment or
composition affecting the Debentures of that series or the rights of any
holder thereof or to authorize the Trustee to vote in respect of the claim of
any Debentureholder in any such proceeding.
SECTION 6.03. Any moneys collected by the Trustee pursuant to
Section 6.02 with respect to a particular series of Debentures shall be
applied in the order following, at the date or dates fixed by the Trustee and,
in case of the distribution of such moneys on account of principal (or
premium, if any) or interest, upon presentation of the several Debentures of
that series, and stamping thereon the payment, if only partially paid, and
upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection and
of all amounts payable to the Trustee under Section 7.06; and
SECOND: To the payment of the amounts then due and unpaid upon
Debentures of such series for principal (and premium, if any) and
interest, in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority
of any kind, according to the amounts due and payable on such
Debentures for principal (and premium, if any) and interest,
respectively.
SECTION 6.04. No holder of any Debenture of any series shall
have any right by virtue or by availing of any provision of this Indenture to
institute any suit, action or proceeding in equity or at law upon or under or
with respect to this Indenture or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless such holder previously
shall have given to the Trustee written notice of an Event of Default and of
the continuance thereof with respect to Debentures of such series specifying
such Event of Default, as hereinbefore provided, and unless also the holders
of not less than 25% in aggregate principal amount of the Debentures of such
series then outstanding shall have made written request upon the Trustee to
institute such action, suit or proceeding in its own name as trustee hereunder
and shall have offered to the Trustee such reasonable indemnity as it may
require against the costs, expenses and liabilities to be incurred therein or
thereby, and the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity, shall have failed to institute any such action, suit
or proceeding; it being understood and intended, and being expressly
covenanted by the taker and holder of every Debenture of such series with
every other such taker and holder and Trustee, that no one or more holders of
Debentures of such series shall have any right in any manner whatsoever by
virtue or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of the holders of any other of such Debentures, or to
obtain or seek to obtain priority over or preference to any other such holder,
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal, ratable and common benefit of all holders of
Debentures of such series. For the protection and enforcement of the
provisions of this Section, each and every Debentureholder and the Trustee
shall be entitled to such relief as can be given either at law or in equity.
Notwithstanding any other provisions of this Indenture,
however, the right of any holder of any Debenture to receive payment of the
principal of (and premium, if any) and interest on such Debenture, as therein
provided, on or after the respective due dates expressed in such Debenture (or
in the case of redemption, on the redemption date), or to institute suit for
the enforcement of any such payment on or after such respective dates or
redemption date, shall not be impaired or affected without the consent of such
holder.
SECTION 6.05. (a) All powers and remedies given by this
Article to the Trustee or to the Debentureholders shall, to the extent
permitted by law, be deemed cumulative and not exclusive of any others thereof
or of any other powers and remedies available to the Trustee or the holders
of the debentures, by judicial proceedings or otherwise, to enforce
performance or observance of the covenants and agreements contained in this
Indenture or otherwise established with respect to such Debentures.
(b) No delay or omission of the Trustee or of any holder of
any of the Debentures to exercise any right or power accruing upon any Event
of Default occurring and continuing as aforesaid shall impair any such right
or power, or shall be construed to be a waiver of any such default or an
acquiescence therein; and, subject to the provisions of Section 6.04, every
power and remedy given by this Article or by law to the Trustee or to the
Debentureholders may be exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or by the Debentureholders.
SECTION 6.06. The holders of a majority in aggregate principal
amount of the Debentures of any series at the time outstanding, determined in
accordance with Section 8.04 (with, in the case of any series of Debentures
held as trust assets of a AES Trust and with respect to which a Security
Exchange has not theretofore occurred, such consent of holders of the
Preferred Securities and the Common Securities of such AES Trust as may be
required under the Declaration of Trust of such AES Trust), shall have the
right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee with respect to such series; provided, however, that
such direction shall not be in conflict with any rule of law or with this
Indenture or unduly prejudicial to the rights of holders of Debentures of any
other series at the time outstanding determined in accordance with Section
8.04 not parties thereto. Subject to the provisions of Section 7.01, the
Trustee shall have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer or Officers of the
Trustee, determine that the proceeding so directed would involve the Trustee
in personal liability. The holders of a majority in aggregate principal
amount of the Debentures of any series at the time outstanding affected
thereby, determined in accordance with section 8.04 (with, in the case of
any series of Debentures held as trust assets of a AES Trust and with
respect to which a Security Exchange has not theretofore occurred, such
consent of holders of the Preferred Securities and the Common Securities of
such AES Trust as may be required under the Declaration of Trust of such
AES Trust), may on behalf of the holders of all of the Debentures of such
series waive any past default in the performance of any of the covenants
contained herein or established pursuant to section 2.01 with respect to
such series and its consequences, except a default in the payment of the
principal of, or premium, if any, or interest on, any of the Debentures of
that series as and when the same shall become due by the terms of such
Debentures otherwise than by acceleration (unless such default has been
cured and a sum sufficient to pay all matured installments of interest and
principal and any premium has been deposited with the Trustee (in
accordance with Section 6.01(c)) or a call for redemption of Debentures of
that series. Upon any such waiver, the default covered thereby shall be
deemed to be cured for all purposes of this Indenture and the Company, the
Trustee and the holders of the Debentures of such series shall be restored
to their former positions and rights hereunder, respectively; but no such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
SECTION 6.07. The Trustee shall, within 90 days after the
occurrence of a default with respect to a particular series, transmit by mail,
first class postage prepaid, to the holders of Debentures of that series, as
their names and addresses appear upon the Debenture Register, notice of all
defaults with respect to that series known to the Trustee, unless such
defaults shall have been cured before the giving of such notice (the term
"defaults" for the purposes of this Section being hereby defined to be the
events specified in subsections (1), (2), (3), (4) and (5) of Section 6.01(a),
not including any periods of grace provided for therein and irrespective of
the giving of notice provided for by subsection (3) of Section 6.01(a));
provided, that, except in the case of default in the payment of the principal
of (or premium, if any) or interest on any of the Debentures of that series or
in the payment of any sinking fund installment established with respect to
that series, the Trustee shall be protected in withholding such notice if
and so long as the board of directors, the executive committee, or a trust
committee of directors and/or Responsible Officers, of the Trustee in good
faith determine that the withholding of such notice is in the interests of
the holders of Debentures of that series; provided further, that in the
case of any default of the character specified in Section 6.01(a)(3) with
respect to Debentures of such series no such notice to the holders of the
Debentures of that series shall be given until at least 30 days after the
occurrence thereof.
The Trustee shall not be deemed to have knowledge of any
default, except (i) a default under subsection (a)(1) or (a)(2) of Section
6.01 as long as the Trustee is acting as paying agent for such series of
Debentures or (ii) any default as to which the Trustee shall have received
written notice or a Responsible Officer charged with the administration of
this Indenture shall have obtained written notice.
SECTION 6.08. All parties to this Indenture agree, and each
holder of any Debentures by his or her acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section shall
not apply to any suit instituted by the Trustee, to any suit instituted by any
Debentureholder, or group of Debentureholders, holding more than 10% in
aggregate principal amount of the outstanding Debentures of any series, or to
any suit instituted by any Debentureholder for the enforcement of the payment
of the principal of (or premium, if any) or interest on any Debenture of such
series, on or after the respective due dates expressed in such Debenture or
established pursuant to this Indenture.
ARTICLE SEVEN
CONCERNING THE TRUSTEE
SECTION 7.01. (a) The Trustee, prior to the occurrence of an
Event of Default with respect to Debentures of a series and after the curing
of all Events of Default with respect to Debentures of that series which may
have occurred, shall undertake to perform with respect to Debentures of such
series such duties and only such duties as are specifically set forth in this
Indenture, and no implied covenants shall be read into this Indenture against
the Trustee. In case an Event of Default with respect to Debentures of a
series has occurred (which has not been cured or waived), the Trustee shall
exercise with respect to Debentures of that series such of the rights and
powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(b) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(1) prior to the occurrence of an Event of Default with
respect to Debentures of a series and after the curing or waiving
of all such Events of Default with respect to that series which
may have occurred:
(i) the duties and obligations of the Trustee shall with
respect to Debentures of such series be determined solely by
the express provisions of this Indenture, and the Trustee shall
not be liable with respect to Debentures of such series except
for the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may with respect to Debentures of such
series conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the
case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished to
the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the
requirements of this Indenture but need not confirm or
investigate the accuracy of mathematical calculations or other
facts stated therein;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the holders of not less than a
majority in principal amount of the Debentures of any series at
the time outstanding relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee under
this Indenture with respect to the Debentures of that series; and
(4) none of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers,
if there is reasonable ground for believing that the repayment
of such funds or liability is not reasonably assured to it
under the terms of this Indenture or adequate indemnity against
such risk is not reasonably assured to it.
(5) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be
subject to the provisions of this Article 7.
SECTION 7.02. Except as otherwise provided in Section 7.01:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, approval, bond, security or other paper or document
believed by it to the genuine and to have been signed or presented
by the proper party or parties;
(b) Any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by a Board
Resolution or an instrument signed in the name of the Company by
the President or any Vice President and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer
(unless other evidence in respect thereof is specifically
prescribed herein);
(c) The Trustee may consult with counsel of its selection and
the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection in respect of
any action taken or suffered or omitted hereunder in good faith
and in reliance thereon;
(d) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the
request, order or direction of any of the Debentureholders,
pursuant to the provisions of this Indenture, unless such
Debentureholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby; nothing herein contained
shall, however, relieve the Trustee of the obligation, upon the
occurrence of an Event of Default with respect to a series of the
Debentures (which has not been cured or waived) to exercise with
respect to Debentures of that series such of the rights and powers
vested in it by this Indenture, and to use the same degree of care
and skill in their exercise, as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs;
(e) The Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred
upon it by this Indenture;
(f) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, approval, bond, security, or other papers or documents,
unless requested in writing so to do by the holders of not less
than a majority in principal amount of the outstanding Debentures
of the particular series affected thereby (determined as provided
in Section 8.04); provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms
of this Indenture, the Trustee may require reasonable indemnity
against such costs, expenses or liabilities as a condition to so
proceeding. The reasonable expense of every such examination
shall be paid by the Company or, if paid by the Trustee, shall be
repaid by the Company upon demand; and
(g) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
SECTION 7.03. (a) The recitals contained herein and in the
Debentures (other than the Certificate of Authentication on the Debentures)
shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same.
(b) The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Debentures.
(c) The Trustee shall not be accountable for the use or
application by the Company of any of the Debentures or of the proceeds of such
Debentures, or for the use or application of any moneys paid over by the
Trustee in accordance with any provision of this Indenture or established
pursuant to Section 2.01, or for the use or application of any moneys received
by any paying agent other than the Trustee.
SECTION 7.04. The Trustee or any paying agent or Debenture
Registrar, in its individual or any other capacity, may become the owner or
pledgee of Debentures with the same rights it would have if it were not
Trustee, paying agent or Debenture Registrar.
SECTION 7.05. Subject to the provisions of Section 11.05, all
moneys received by the Trustee shall, until used or applied as herein
provided, be held in trust for the purposes for which they were received, but
need not be segregated from other funds except to the extent required by law.
The Trustee shall be under no liability for interest on any moneys received by
it hereunder except such as it may agree with the Company to pay thereon.
SECTION 7.06. (a) The Company covenants and agrees to pay to
the Trustee from time to time, and the Trustee shall be entitled to, such
reasonable compensation as the Company and the Trustee shall from time to time
agree in writing (which shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust) for all services
rendered by it in the execution of the trusts hereby created and in the
exercise and performance of any of the powers and duties hereunder of the
Trustee, and the Company will pay or reimburse the Trustee upon its request
for all reasonable expenses, disbursements and advances incurred or made by
the Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of
its counsel and of all persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence or bad
faith. The Company also covenants to indemnify the Trustee (and its officers,
agents, directors and employees) for, and to hold it harmless against, any
loss, liability or expense including taxes (other than taxes based upon,
measured by or determined by the income of the Trustee) incurred without
negligence or bad faith on the part of the Trustee and arising out of or in
connection with the acceptance or administration of this trust, including the
costs and expenses of defending itself against any claim of liability in the
premises.
(b) The obligations of the Company under this Section to
compensate and indemnify the Trustee and to pay or reimburse the Trustee for
expenses, disbursements and advances shall constitute additional indebtedness
hereunder. Such additional indebtedness shall be secured by a lien prior to
that of the Debentures upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the benefit of the holders of
particular Debentures.
SECTION 7.07. Except as otherwise provided in Section 7.01,
whenever in the administration of the provisions of this Indenture the Trustee
shall deem it necessary or desirable that a matter be proved or established
prior to taking or suffering or omitting to take any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by an Officers'
Certificate delivered to the Trustee and such certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be full warrant to
the Trustee for any action taken, suffered or omitted to be taken by it under
the provisions of this Indenture upon the faith thereof.
SECTION 7.08. (a) If the Trustee has or shall acquire any
conflicting interest, as defined in this Section, with respect to the
Debentures of any series and if the Default to which such conflicting interest
relates has not been cured, duly waived or otherwise eliminated, within 90
days after ascertaining that it has such conflicting interest, it shall either
eliminate such conflicting interest, except as otherwise provided herein, or
resign with respect to the Debentures of that series in the manner and with
the effect specified in Section 7.10 and the Company shall promptly appoint a
successor Trustee in the manner provided herein.
(b) In the event that the Trustee shall fail to comply with
the provisions of subsection (a) of this Section, with respect to the
Debentures of any series the Trustee shall, within ten days after the
expiration of such 90-day period, transmit notice of such failure by mail,
first class postage prepaid, to the Debentureholders of that series as their
names and addresses appear upon the registration books.
(c) For the purposes of this Section the Trustee shall be
deemed to have a conflicting interest with respect to the Debentures of any
series if a Default has occurred and is continuing and:
(1) the Trustee is trustee under this Indenture with respect
to the outstanding Debentures of any series other than that
series, or is trustee under another indenture under which any
other securities, or certificates of interest or participation in
any other securities, of the Company are outstanding, unless such
other indenture is a collateral trust indenture under which the
only collateral consists of Debentures issued under this
Indenture; provided that there shall be excluded from the
operation of this paragraph the Debentures of any series other
than that series and any other indenture or indentures under which
other securities, or certificates of interest or participation in
other securities, of the Company are outstanding if (i) this
Indenture and such other indenture or indentures and all series of
securities issuable thereunder are wholly unsecured and rank
equally and such other indenture or indentures (and such series)
are hereafter qualified under the Trust Indenture Act, unless the
Commission shall have found and declared by order pursuant to
subsection (b) of Section 305 or subsection (c) of Section 307 of
the Trust Indenture Act, that differences exist between (A) the
provisions of this Indenture with respect to Debentures of that
series and with respect to one or more other series or (B) the
provisions of this Indenture and the provisions of such other
indenture or indentures (or such series), which are so likely to
involve a material conflict of interest as to make it necessary in
the public interest or for the protection of investors to
disqualify the Trustee from acting as such under this Indenture
with respect to the Debentures of that series and such other
series or such other indenture or indentures, or (ii) the Company
shall have sustained the burden of proving, on application to the
Commission and after opportunity for hearing thereon, that the
trusteeship under this Indenture with respect to Debentures of
that series and such other series or such other indenture or
indentures is not so likely to involve a material conflict of
interest as to make it necessary in the public interest or for the
protection of investors to disqualify the Trustee from acting as
such under this Indenture with respect to Debentures of that
series and such other series or under such other indentures;
(2) the Trustee or any of its directors or executive officers
is an underwriter for the Company;
(3) the Trustee directly or indirectly controls or is directly
or indirectly controlled by or is under direct or indirect common
control with or an underwriter for the Company;
(4) the Trustee or any of its directors or executive officers
is a director, officer, partner, employee, appointee or
representative of the Company, or of an underwriter (other than the
Trustee itself) for the Company who is currently engaged in the
business of underwriting, except that (A) one individual may be a
director and/or an executive officer of the Trustee and a director
and/or an executive officer of the Company, but may not be at the
same time an executive officer of both the Trustee and the
Company; (B) if and so long as the number of directors of the
Trustee in office is more than nine, one additional individual may
be a director and/or an executive officer of the Trustee and a
director of the Company; and (C) the Trustee may be designated by
the Company or by an underwriter for the Company to act in the
capacity of transfer agent, registrar, custodian, paying agent,
fiscal agent, escrow agent, or depository, or in any other similar
capacity, or, subject to the provisions of paragraph (1) of this
subsection (c), to act as trustee whether under an indenture or
otherwise;
(5) 10% or more of the voting securities of the Trustee is
beneficially owned either by the Company or by any director,
partner, or executive officer thereof, or 20% or more of such
voting securities is beneficially owned, collectively, by any two
or more of such persons; or 10% or more of the voting securities
of the Trustee is beneficially owned either by an underwriter for
the Company or by any director, partner, or executive officer
thereof, or is beneficially owned, collectively by any two or more
such persons;
(6) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this subsection (c) defined), (A) 5% or more of the
voting securities, or 10% or more of any other class of security,
of the Company, not including the Debentures issued under this
Indenture and securities issued under any other indenture under
which the Trustee is also trustee, or (B) 10% or more of any class
of security of an underwriter for the Company;
(7) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this subsection (c) defined), 5% or more of the
voting securities of any person who, to the knowledge of the
Trustee, owns 10% or more of the voting securities of, or controls
directly or indirectly or is under direct or indirect common
control with, the Company;
(8) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this subsection (c) defined), 10% or more of any
class of security of any person who, to the knowledge of the
Trustee, owns 50% or more of the voting securities of the Company;
(9) the Trustee owns, on the date of Default upon the
Debentures of any series or any anniversary of such Default while
such Default upon the Debentures issued under this Indenture
remains outstanding, in the capacity of executor, administrator,
testamentary or inter vivos trustee, guardian, committee or
conservator, or in any other similar capacity, an aggregate of 25%
or more of the voting securities, or of any class of security, of
any person, the beneficial ownership of a specified percentage of
which would have constituted a conflict interest under paragraph
(6), (7), or (8) of this subsection (c). As to any such
securities of which the Trustee acquired ownership through
becoming executor, administrator or testamentary trustee of an
estate which includes them, the provisions of the preceding
sentence shall not apply, for a period of two years from the
date of such acquisition, to the extent that such securities in
such estate do not exceed 25% of such voting securities or 25%
of any such class of security. Promptly after the dates of any
such Default upon the Debentures issued under this Indenture
and annually in each succeeding year that the Debentures issued
under this Indenture remain in Default, the Trustee shall make
a check of its holding of such securities in any of the
above-mentioned capacities as of such dates. If the Company
fails to make payment in full of principal of or interest on
any of the Debentures when and as the same becomes due and
payable, and such failure continues for 30 days thereafter, the
Trustee shall make a prompt check of its holding of such
securities in any of the above-mentioned capacities as of the
date of the expiration of such 30-day period, and after such
date, notwithstanding the foregoing provisions of this
paragraph (9), all such securities so held by the Trustee, with
sole or joint control over such securities vested in it, shall,
but only so long as such failure shall continue, be considered
as though beneficially owned by the Trustee for the purposes of
paragraphs (6), (7) and (8) of this subsection (c); or
(10) except under the circumstances described in paragraph
(1), (3), (4), (5) or (6) of subsection (b) of Section 7.13 the
Trustee shall be or shall become a creditor of the Company.
For purposes of paragraph (1) of this subsection (c), and of
Section 6.06, the term "series of securities" or "securities" means a series,
class or group of securities issuable under an indenture pursuant to whose
terms holders of one such series may vote to direct the indenture trustee, or
otherwise take action pursuant to a vote of such holders, separately from
holders of another such series; provided, that, "series of securities" or
"series" shall not include any series of securities issuable under an
indenture if all such series rank equally and are wholly secured.
The specification of percentages in paragraphs (5) to (9),
inclusive, of this subsection (c) shall not be construed as indicating that
the ownership of such percentages of securities of a person is or is not
necessary or sufficient to constitute direct or indirect control for the
purposes of paragraph (3) or (7) of this subsection (c).
For the purposes of paragraphs (6), (7), (8) and (9) of this
subsection (c) only, (A) the terms "security" and "securities" shall include
only such securities as are generally known as corporate securities, but shall
not include any note or other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a person by one or more banks, trust
companies or banking firms, or any certificate of interest or participation in
any such note or evidence of indebtedness; (B) an obligation shall be deemed
to be in "default", when a default in payment of principal shall have
continued for 30 days or more and shall not have been cured; and (C) the
Trustee shall not be deemed to be the owner or holder of (i) any security
which it holds as collateral security (as trustee or otherwise) for any
obligation which is not in default as defined in clause (B) above, or (ii) any
security which it holds as collateral security under this Indenture,
irrespective of any Default hereunder, or (iii) any security which it holds as
agent for collection, or as custodian, escrow agent or depositary, or in any
similar representative capacity.
Except as above provided, the word "security" or securities" as
used in this Indenture shall mean any note, stock, treasury stock, bond,
debenture, evidence of indebtedness, certificate of interest or participation
in any profit-sharing agreement, collateral trust certificate,
pre-organization certificate or subscription, transferable share, investment
contract, voting trust certificate, certificate of deposit for a security,
fractional undivided interest in oil, gas, or other mineral rights, or, in
general, any interest or instrument commonly known as a "security", or any
certificate of interest or participation in, temporary or interim certificate
for, receipt for, guarantee of, or warrant or right to subscribe to or
purchase, any of the foregoing.
(d) For the purposes of this Section:
(1) The term "underwriter" when used with reference to the
Company shall mean every person, who, within one year prior to the
time as of which the determination is made, has purchased from the
Company with a view to, or has offered or sold for the Company in
connection with, the distribution of any security of the Company,
or has participated or has had a direct or indirect participation
in any such undertaking, or has participated or has had a
participation in the direct or indirect underwriting of any such
undertaking, but such term shall not include a person whose
interest was limited to a commission from an underwriter or dealer
not in excess of the usual and customary distributors' or sellers'
commission.
(2) The term "director" shall mean any member of the board of
directors of a corporation or any individual performing similar
functions with respect to any organization whether incorporated or
unincorporated.
(3) The term "person" shall mean an individual, a corporation,
a partnership, an association, a joint-stock company, a trust, an
unincorporated organization or a government or political
subdivision thereof. As used in this paragraph, the term "trust"
shall include only a trust where the interest or interests of the
beneficiary or beneficiaries are evidenced by a security.
(4) The term "voting security" shall mean any security
presently entitling the owner or holder thereof to vote in the
direction or management of the affairs of a person, or any
security issued under or pursuant to any trust, agreement or
arrangement whereby a trustee or trustees or agent or agents for
the owner or holder of such security are presently entitled to
vote in the direction or management of the affairs of a person.
(5) The term "Company" shall mean any obligor upon the
Debentures.
(6) The term "executive officer" shall mean the chairman of
the board of directors, president, every vice president, every
assistant vice president, every trust officer, the cashier, the
secretary, and the treasurer of a corporation, and any individual
customarily performing similar functions with respect to any
organization whether incorporated or unincorporated.
(e) The percentages of voting securities and other securities
specified in this Section shall be calculated in accordance with the following
provisions:
(1) A specified percentage of the voting securities of the
Trustee, the Company or any other person referred to in this
Section (each of whom is referred to as a "person" in this
paragraph) means such amount of the outstanding voting securities
of such person as entitles the holder or holders thereof to cast
such specified percentage of the aggregate votes which the holders
of all the outstanding voting securities of such person are
entitled to cast in the direction or management of the affairs of
such person.
(2) A specified percentage of a class of securities of a
person means such percentage of the aggregate amount of securities
of the class outstanding.
(3) The term "amount", when used in regard to securities,
means the principal amount if relating to evidences of
indebtedness, the number of shares if relating to capital shares
and the number of units if relating to any other kind of security.
(4) The term "outstanding" means issued and not held by or for
the account of the issuer. The following securities shall not be
deemed outstanding within the meaning of this definition:
(i) securities of an issuer held in a sinking fund
relating to securities of the issuer of the same class;
(ii) securities of an issuer held in a sinking fund
relating to another class of securities of the issuer, if the
obligation evidenced by such other class of securities is not
in default as to principal or interest or otherwise;
(iii) securities pledged by the issuer thereof as security
for an obligation of the issuer not in default as to principal
or interest or otherwise; and
(iv) securities held in escrow if placed in escrow by the
issuer thereof, provided, however, that any voting securities
of an issuer shall be deemed outstanding if any person other
than the issuer is entitled to exercise the voting rights
thereof.
(5) A security shall be deemed to be of the same class as
another security if both securities confer upon the holder or
holders thereof substantially the same rights and privileges;
provided, however, that, in the case of secured evidences of
indebtedness, all of which are issued under a single indenture,
differences in the interest rates or maturity dates of various
series thereof shall not be deemed sufficient to constitute such
series different classes; and provided, further, that, in the case
of unsecured evidences of indebtedness, differences in the
interest rates or maturity dates thereof shall not be deemed
sufficient to constitute them securities of different classes,
whether or not they are issued under a single indenture.
(f) Except in the case of a default in the payment of the
principal of (or premium, if any) or interest on any Debentures issued under
this Indenture, or in the payment of any sinking or analogous fund
installment, the Trustee shall not be required to resign as provided by this
Section 7.08 if such Trustee shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing thereon, that
(i) the default under the Indenture may be cured or waived during a reasonable
period and under the procedures described in such application and (ii) a stay
of the Trustee's duty to resign will not be inconsistent with the interests of
Debentureholders. The filing of such an application shall automatically stay
the performance of the duty to resign until the Commission orders otherwise.
Any resignation of the Trustee shall become effective only upon
the appointment of a successor trustee and such successor's acceptance of such
an appointment.
SECTION 7.09. There shall at all times be a Trustee with
respect to the Debentures issued hereunder which shall at all times be a
corporation organized and doing business under the laws of the United States
of America or any State or Territory thereof or of the District of Columbia,
or a corporation or other person permitted to act as trustee by the
Commission, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least 50 million dollars, and
subject to supervision or examination by Federal, State, Territorial, or
District of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. The Company may not, nor may any
person directly or indirectly controlling, controlled by, or under common
control with the Company, serve as Trustee. In case at any time the
Trustee shall cease to be eligible in accordance with the provisions of
this Section, the Trustee shall resign immediately in the manner and with
the effect specified in Section 7.10.
SECTION 7.10. (a) The Trustee or any successor hereafter
appointed, may at any time resign with respect to the Debentures of one or
more series by giving written notice thereof to the Company and by
transmitting notice of resignation by mail, first class postage prepaid, to
the Debentureholders of such series, as their names and addresses appear
upon the Debenture Register. Upon receiving such notice of resignation,
the Company shall promptly appoint a successor trustee with respect to
Debentures of such series by written instrument, in duplicate, executed by
order of the Board of Directors, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor trustee.
If no successor trustee shall have been so appointed and have accepted
appointment within 30 days after the mailing of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction for
the appointment of a successor trustee with respect to Debentures of such
series, or any Debentureholder of that series who has been a bona fide
holder of a Debenture or Debentures for at least six months may, subject to
the provisions of Section 6.08, on behalf of himself and all others
similarly situated, petition any such court for the appointment of a
successor trustee. Such court may thereupon after such notice, if any, as
it may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of
subsection (a) of Section 7.08 after written request therefor by
the Company or by any Debentureholder who has been a bona fide
holder of a Debenture or Debentures for at least six months; or
(2) the Trustee shall cease to be eligible in accordance with
the provisions of Section 7.09 and shall fail to resign after
written request therefor by the Company or by any such
Debentureholder; or
(3) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or
of its property shall be appointed, or any public officer shall
take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation, then, in any such case, the Company may remove the
Trustee with respect to all Debentures and appoint a successor
trustee by written instrument, in duplicate, executed by order of
the Board of Directors, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor
trustee. If no successor trustee shall have been so appointed and
have accepted appointment within 30 days after the mailing of such
notice of removal, the Trustee so removed may petition any court
of competent jurisdiction for the appointment of a successor
trustee with respect to Debentures of such series, or any
Debentureholder of that series who has been a bona fide holder of
a Debenture or Debentures for at least six months may, subject to
the provisions of Section 6.08, on behalf of himself and all
others similarly situated, petition any such court for the
removal of the Trustee and the appointment of a successor
trustee. Such court may thereupon after such notice, if any,
as it may deem proper and prescribe, remove the Trustee and
appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of
the Debentures of any series at the time outstanding may at any time remove
the Trustee with respect to such series and appoint a successor trustee.
(d) Any resignation or removal of the Trustee and appointment
of a successor trustee with respect to the Debentures of a series pursuant to
any of the provisions of this Section shall become effective upon
acceptance of appointment by the successor trustee as provided in Section
7.11.
(e) Any successor trustee appointed pursuant to this Section
may be appointed with respect to the Debentures of one or more series or all
of such series, and at any time there shall be only one Trustee with respect
to the Debentures of any particular series.
SECTION 7.11. (a) In case of the appointment hereunder of a
successor trustee with respect to all Debentures, every such successor trustee
so appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor trustee all the rights, powers, and trusts of
the retiring Trustee and shall duly assign, transfer and deliver to such
successor trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor
trustee with respect to the Debentures of one or more (but not all) series,
the Company, the retiring Trustee and each successor trustee with respect to
the Debentures of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor
trustee all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Debentures of that or those series to which the appointment of
such successor trustee relates, (2) shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Debentures of that or
those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of
the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust, that
each such Trustee shall be trustee of a trust or trusts hereunder separate and
apart from any trust or trusts hereunder administered by any other such
Trustee and that no Trustee shall be responsible for any act or failure to
act on the part of any other Trustee hereunder; and upon the execution and
delivery of such supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent provided therein,
such retiring Trustee shall with respect to the Debentures of that or those
series to which the appointment of such successor trustee relates have no
further responsibility for the exercise of rights and powers or for the
performance of the duties and obligations vested in the Trustee under this
Indenture, and each such successor trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Debentures of that or
those series to which the appointment of such successor trustee relates;
but, on request of the Company or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor trustee,
to the extent contemplated by such supplemental indenture, the property and
money held by such retiring Trustee hereunder with respect to the
Debentures of that or those series to which the appointment of such
successor trustee relates.
(c) Upon request of any such successor trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor trustee all such rights, power and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor trustee shall accept its appointment unless
at the time of such acceptance such successor trustee shall be qualified and
eligible under this Article.
(e) Upon acceptance of appointment by a successor trustee as
provided in this Section, the Company shall transmit notice of the succession
of such trustee hereunder by mail, first class postage prepaid, to the
Debentureholders, as their names and addresses appear upon the Debenture
Register. If the Company fails to transmit such notice within ten days after
acceptance of appointment by the successor trustee, the successor trustee
shall cause such notice to be transmitted at the expense of the Company.
SECTION 7.12. Any corporation into which the Trustee may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be qualified under the provisions
of Section 7.08 and eligible under the provisions of Section 7.09, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding. In case any
Debentures shall have been authenticated, but not made available for delivery,
by the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication and
make available for delivery the Debentures so authenticated with the same
effect as if such successor Trustee had itself authenticated such Debentures.
SECTION 7.13. (a) Subject to the provisions of subsection (b)
of this Section, if the Trustee shall be or shall become a creditor, directly
or indirectly, secured or unsecured, of the Company within three months prior
to a default, as defined in subsection (b) of this Section, or subsequent to
such a default, then, unless and until such default shall be cured, the
Trustee shall set apart and hold in a special account for the benefit of the
Trustee individually, the holders of the Debentures and the holders of other
indenture securities (as defined in subsection (c) of this Section):
(1) an amount equal to any and all reductions in the amount
due and owing upon any claim as such creditor in respect of
principal or interest, effected after the beginning of such three
months' period and valid as against the Company and its other
creditors, except any such reduction resulting from the receipt or
disposition of any property described in paragraph (2) of this
subsection, or from the exercise of any right of set-off which the
Trustee could have exercised if a petition in bankruptcy had been
filed by or against the Company upon the date of such default; and
(2) all property received by the Trustee in respect of any
claim as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise, after the
beginning of such three months' period, or an amount equal to the
proceeds of any such property, if disposed of, subject, however,
to the rights, if any, of the Company and its other creditors in
such property or such proceeds.
Nothing herein contained, however, shall affect the right of
the Trustee:
(A) to retain for its own account (i) payments made on account
of any such claim by any person (other than the Company) who is
liable thereon, and (ii) the proceeds of the bona fide sale of any
such claim by the Trustee to a third person, and (iii)
distributions made in cash, securities, or other property in
respect of claims filed against the Company in bankruptcy or
receivership or in a case for reorganization pursuant to the
Federal Bankruptcy Code or applicable State law;
(B) to realize, for its own account, upon any property held by
it as security for any such claim, if such property was so held
prior to the beginning of such three months' period;
(C) to realize, for its own account, but only to the extent of
the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such three months' period and such property was
received as security therefor simultaneously with the creation
thereof, and if the Trustee shall sustain the burden of proving
that at the time such property was so received the Trustee had no
reasonable cause to believe that a default, as defined in
subsection (c) of this Section, would occur within three months;
or
(D) to receive payment on any claim referred to in paragraph
(B) or (C), against the release of any property held as security
for such claim as provided in such paragraph (B) or (C), as the
case may be, to the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property
substituted after the beginning of such three months' period for property held
as security at the time of such substitution shall, to the extent of the fair
value of the property released, have the same status as the property released,
and, to the extent that any claim referred to in any of such paragraphs is
created in renewal of or in substitution for or for the purpose of repaying or
refunding any pre-existing claim of the Trustee as such creditor, such claim
shall have the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and
property held in such special account and the proceeds thereof shall be
apportioned between the Trustee, the Debentureholders and the holders of other
indenture securities in such manner that the Trustee, the Debentureholders and
the holders of other indenture securities realize, as a result of payments
from such special account and payments of dividends on claims filed against
the Company in bankruptcy or receivership or in a case for reorganization
pursuant to the Federal Bankruptcy Code or applicable State law, the same
percentage of their respective claims, figured before crediting to the claim
of the Trustee anything on account of the receipt by it from the Company of
the funds and property in such special account and before crediting to the
respective claims of the Trustee, the Debentureholders and the holders of
other indenture securities dividends on claims filed against the Company in
bankruptcy or receivership or in a case for reorganization pursuant to the
Federal Bankruptcy Code or applicable State law, but after crediting thereon
receipts on account of the indebtedness represented by their respective claims
from all sources other than from such dividends and from the funds and
property so held in such special account. As used in this paragraph, with
respect to any claim, the term "dividends" shall include any distribution with
respect to such claim, in bankruptcy or receivership or in a case for
reorganization pursuant to the Federal Bankruptcy Code or applicable State
law, whether such distribution is made in cash, securities, or other property,
but shall not include any such distribution with respect to the secured
portion, if any, of such claim. The court in which such bankruptcy,
receivership or a case for reorganization is pending shall have jurisdiction
(i) to apportion between the Trustee, the Debentureholders and the holders of
other indenture securities, in accordance with the provisions of this
paragraph, the funds and property held in such special account and the
proceeds thereof, or (ii) in lieu of such apportionment, in whole or in part,
to give to the provisions of this paragraph due consideration in determining
the fairness of the distributions to be made to the Trustee, the
Debentureholders and the holders of other indenture securities with respect to
their respective claims, in which event it shall not be necessary to liquidate
or to appraise the value of any securities or other property held in such
special account or as security for any such claim, or to make a specific
allocation of such distributions as between the secured and unsecured portions
of such claims, or otherwise to apply the provisions of this paragraph as a
mathematical formula.
Any Trustee who has resigned or been removed after the
beginning of such three months' period shall be subject to the provisions of
this subsection (a) as though such resignation or removal had not occurred.
If any Trustee has resigned or been removed prior to the beginning of such
three months' period, it shall be subject to the provisions of this subsection
(a) if and only if the following conditions exist:
(i) the receipt of property or reduction of claim which
would have given rise to the obligation to account, if such
Trustee had continued as trustee, occurred after the beginning of
such three months' period; and
(ii) such receipt of property or reduction of claim
occurred within three months after such resignation or removal.
(b) There shall be excluded from the operation of subsection
(a) of this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under
any indenture, or any security or securities having a maturity of
one year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court
of competent jurisdiction, or by this Indenture, for the purpose
of preserving any property other than cash which shall at any time
be subject to the lien, if any, of this Indenture or of
discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advance and of the circumstances
surrounding the making thereof is given to the Debentureholders at
the time and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in
the capacity of trustee under an indenture, transfer agent,
registrar, custodian, paying agent, subscription agent, fiscal
agent or depositary, or other similar capacity;
(4) an indebtedness created as a result of services rendered
or premises rented; or an indebtedness created as a result of
goods or securities sold in a cash transaction as defined in
subsection (c) of this Section;
(5) the ownership of stock or of other securities of a Company
organized under the provisions of Section 25(a) of the Federal
Reserve Act, as amended, which is directly or indirectly a
creditor of the Company; or
(6) the acquisition, ownership, acceptance or negotiation of
any drafts, bills of exchange, acceptance or obligations which
fall within the classification of self-liquidating paper as
defined in subsection (c) of this Section.
(c) As used in this Section:
(1) The term "default" shall mean any failure to make payment
in full of the principal of (or premium, if any) or interest upon
any of the Debenture or upon the other indenture securities when
and as such principal (or premium, if any) or interest becomes due
and payable.
(2) The term "other indenture securities" shall mean
securities upon which the Company is an obligor (as defined in the
Trust Indenture Act) outstanding under any other indenture (A)
under which the Trustee is also trustee, (B) which contains
provisions substantially similar to the provisions of subsection
(a) of this Section, and (C) under which a default exists at the
time of the apportionment of the funds and property held in said
special account.
(3) The term "cash transaction" shall mean any transaction in
which full payment for goods or securities sold is made within
seven days after delivery of the goods or securities in
currency or in checks or other orders drawn upon banks or
bankers and payable upon demand.
(4) The term "self-liquidating paper" shall mean any draft,
bill of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Company for the purpose of financing
the purchase, processing, manufacture, shipment, storage or sale
of goods, wares or merchandise and which is secured by documents
evidencing title to, possession of, or a lien upon , the goods,
wares or merchandise or the receivables or proceeds arising from
the sale of the goods, wares or merchandise previously
constituting the security, provided the security is received by
the Trustee simultaneously with the creation of the creditor
relationship with the Company arising from the making, drawing,
negotiating or incurring of the draft, bill of exchange,
acceptance or obligation.
(5) The term "Company" shall mean any obligor upon any of the
Debentures.
ARTICLE EIGHT
CONCERNING THE DEBENTUREHOLDERS
SECTION 8.01. Whenever in this Indenture it is provided that
the holders of a majority or specified percentage in aggregate principal
amount of the Debentures of a particular series may take any action (including
the making of any demand or request, the giving of any notice, consent or
waiver or the taking of any other action) the fact that at the time of taking
any such action the holders of such majority or specified percentage of that
series have joined therein may be evidenced by any instrument or any number of
instruments of similar tenor executed by such holders of Debentures of that
series in person or by agent or proxy appointed in writing.
If the Company shall solicit from the Debentureholders of any
series any request, demand, authorization, direction, notice, consent, waiver
or other action, the Company may, at its option, as evidenced by an Officers'
Certificate, fix in advance a record date for such series for the
determination of Debentureholders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other action, but the
Company shall have no obligation to do so. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or
other action may be given before or after the record date, but only the
Debentureholders of record at the close of business on the record date shall
be deemed to be Debentureholders for the purposes of determining whether
Debentureholders of the requisite proportion of outstanding Debentures of that
series have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other action, and for
that purpose the outstanding Debentures of that series shall be computed as
of the record date; provided that no such authorization, agreement or
consent by such Debentureholders on the record date shall be deemed
effective unless it shall become effective pursuant to the provisions of
this Indenture not later than six months after the record date.
SECTION 8.02. Subject to the provisions of Section 7.01, proof
of the execution of any instrument by a Debentureholder (such proof will not
require notarization) or his agent or proxy and proof of the holding by any
person of any of the Debentures shall be sufficient if made in the following
manner;
(a) The fact and date of the execution by any such person of
any instrument may be proved in any reasonable manner acceptable
to the Trustee.
(b) The ownership of Debentures shall be proved by the
Debenture Register of such Debentures or by a certificate of the
Debenture Registrar thereof.
(c) The Trustee may require such additional proof of any
matter referred to in this Section as it shall deem necessary.
SECTION 8.03. Prior to the due presentment for registration of
transfer of any Debenture, the Company, the Trustee, any paying agent and any
Debenture Registrar may deem and treat the person in whose name such Debenture
shall be registered upon the books of the Company as the absolute owner of
such Debenture (whether or not such Debenture shall be overdue and
notwithstanding any notice of ownership or writing thereon made by anyone
other than the Debenture Registrar) for the purpose of receiving payment of or
on account of the principal of, premium, if any, and (subject to Section 2.03)
interest on such Debenture and for all other purposes; and neither the Company
nor the Trustee nor any paying agent nor any Debenture Registrar shall be
affected by any notice to the contrary.
SECTION 8.04. In determining whether the holders of the
requisite aggregate principal amount of Debentures of a particular series have
concurred in any direction, consent or waiver under this Indenture, Debentures
of that series which are owned by the Company or any other obligor on the
Debentures of that series or by any Subsidiary of the Company or of such other
obligor on the Debentures of that series shall be disregarded and deemed not
to be outstanding for the purpose of any such determination, except that for
the purpose of determining whether the Trustee shall be protected in relying
on any such direction, consent or waiver, only Debentures of such series which
the Trustee actually knows are so owned shall be so disregarded. Debentures
so owned which have been pledged in good faith may be regarded as outstanding
for the purposes of this Section, if the pledgee shall establish to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Debentures and that the pledgee is not a person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Company or any such other obligor. In case of a dispute as to such right,
any decision by the Trustee taken upon the advice of counsel shall be full
protection to the Trustee.
SECTION 8.05. At any time prior to (but not after) the
evidencing to the Trustee, as provided in Section 8.01, of the taking of any
action by the holders of the majority or percentage in aggregate principal
amount of the Debentures of a particular series specified in this Indenture in
connection with such action, any holder of a Debenture of that series which is
shown by the evidence to be included in the Debentures the holders of which
have consented to such action may, by filing written notice with the Trustee,
and upon proof of holding as provided in Section 8.02, revoke such action so
far as concerns such Debenture. Except as aforesaid any such action taken by
the holder of any Debenture shall be conclusive and binding upon such holder
and upon all future holders and owners of such Debenture, and of any Debenture
issued in exchange therefor, on registration of transfer thereof or in place
thereof, irrespective of whether or not any notation in regard thereto is made
upon such Debenture. Any action taken by the holders of the majority or
percentage in aggregate principal amount of the Debentures of a particular
series specified in this Indenture in connection with such action shall be
conclusively binding upon the Company, the Trustee and the holders of all the
Debentures of that series.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. In addition to any supplemental indenture
otherwise authorized by this Indenture, the Company, when authorized by a
Board Resolution, and the Trustee may from time to time and at any time enter
into an indenture or indentures supplemental hereto (which shall conform to
the provisions of the Trust Indenture Act as then in effect), without the
consent of the Debentureholders, for one or more of the following purposes:
(a) to evidence the succession of another corporation to the
Company, and the assumption by any such successor of the covenants
of the Company contained herein or otherwise established with
respect to the Debentures; or
(b) to add to the covenants of the Company such further
covenants, restrictions, conditions or provisions for the
protection of the holders of the Debentures of all or any series
as the Board of Directors and the Trustee shall consider to be for
the protection of the holders of Debentures of all or any series,
and to make the occurrence, or the occurrence and continuance, of
a default in any of such additional covenants, restrictions,
conditions or provisions a default or an Event of Default with
respect to such series permitting the enforcement of all or any of
the several remedies provided in this Indenture as herein set
forth; provided, however, that in respect of any such additional
covenant, restriction, condition or provision such supplemental
indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed
in the case of other defaults) or may provide for an immediate
enforcement upon such default or may limit the remedies available
to the Trustee upon such default or may limit the right of the
holders of a majority in aggregate principal amount of the
Debentures of such series to waive such default; or
(c) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which
may be defective or inconsistent with any other provision
contained herein or in any supplemental indenture, or to make
such other provisions in regard to matters or questions arising
under this Indenture as shall not be inconsistent with the
provisions of this Indenture and shall not adversely affect the
interests of the holders of the Debentures of any series; or
(d) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall
become effective only when there is no Debenture outstanding of
any series created prior to the execution of such supplemental
indenture which is entitled to the benefit of such provision.
The Trustee is hereby authorized to join with the Company in
the execution of any such supplemental indenture, and to make any further
appropriate agreements and stipulations which may be therein contained, but
the Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed by the Company and the Trustee without the consent of
the holders of any of the Debentures at the time outstanding, notwithstanding
any of the provisions of Section 9.02.
SECTION 9.02. With the consent (evidenced as provided in
Section 8.01) of the holders of not less than a majority in aggregate
principal amount of the Debentures of each series affected by such
supplemental indenture or indentures at the time outstanding (and, in the case
of any series of Debentures held as trust assets of a AES Trust and with
respect to which a Security Exchange has not theretofore occurred, such
consent of holders of the Preferred Securities and the Common Securities of
such AES Trust as may be required under the Declaration of Trust of such AES
Trust), the Company, when authorized by a Board Resolution, and the Trustee
may from time to time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act as then in effect) for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any manner the
rights of the holders of the Debentures of such series under this Indenture;
provided, however, that no such supplemental indenture shall (i) extend the
fixed maturity of any Debentures of any series, or reduce the principal amount
thereof, or reduce the rate or extend the time of payment of interest thereon,
or reduce any premium payable upon the redemption thereof, without the consent
of the holder of each Debenture so affected or (ii) reduce the aforesaid
percentage of Debentures, the holders of which are required to consent to any
such supplemental indenture, without the consent of the holders of each
Debenture (and, in the case of any series of Debentures held as trust assets
of a AES Trust and with respect to which a Security Exchange has not
theretofore occurred, such consent of the holders of the Preferred Securities
and the Common Securities of such AES Trust as may be required under the
Declaration of Trust of such AES Trust) then outstanding and affected thereby.
Upon the request of the Company, accompanied by a Board
Resolution authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of
Debentureholders (and, in the case of any series of Debentures held as trust
assets of a AES Trust and with respect to which a Security Exchange has not
theretofore occurred, such consent of holders of the Preferred Securities and
the Common Securities of such AES Trust as may be required under the
Declaration of Trust of such AES Trust) required to consent thereto as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise,
in which case the Trustee may in its discretion but shall not be obligated to
enter into such supplemental indenture.
It shall not be necessary for the consent of the
Debentureholders of any series affected thereby under this Section to approve
the particular form of any proposed supplemental indenture, but it shall be
sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Company and the Trustee of
any supplemental indenture pursuant to the provisions of this Section, the
Trustee shall transmit by mail, first class postage prepaid, a notice, setting
forth in general terms the substance of such supplemental indenture, to the
Debentureholders of all series affected thereby as their names and addresses
appear upon the Debenture Register. Any failure of the Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
SECTION 9.03. Upon the execution of any supplemental indenture
pursuant to the provisions of this Article or of Section 10.01, this Indenture
shall, with respect to such series, be and be deemed to be modified and
amended in accordance therewith and the respective rights, limitations of
rights, obligations, duties and immunities under this Indenture of the
Trustee, the Company and the holders of Debentures of the series affected
thereby shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and all the
terms and conditions of any such supplemental indenture shall be and be deemed
to be part of the terms and conditions of this Indenture for any and all
purposes.
SECTION 9.04. Debentures of any series, affected by a
supplemental indenture, authenticated and delivered after the execution of
such supplemental indenture pursuant to the provisions of this Article or of
Section 10.01, may bear a notation in form approved by the Company, provided
such form meets the requirements of any exchange upon which such series may be
listed, as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Debentures of that series so modified as to
conform, in the opinion of the Board of Directors, to any modification of this
Indenture contained in any such supplemental indenture may be prepared by the
Company, authenticated by the Trustee and delivered in exchange for the
Debentures of that series then outstanding.
SECTION 9.05. The Trustee, subject to the provisions of
Section 7.01, may receive an Opinion of Counsel as conclusive evidence that
any supplemental indenture executed pursuant to this Article is authorized or
permitted by, and conforms to, the terms of this Article and that it is proper
for the Trustee under the provisions of this Article to join in the execution
thereof.
ARTICLE TEN
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 10.01. The Company shall not consolidate with or
merge into any other Person or transfer or lease its properties and assets
substantially as an entirety to any Person, and the Company shall not permit
any other Person to consolidate with or merge into the Company, unless:
(a) either the Company shall be the continuing corporation, or
the corporation (if other than the Company) formed by such
consolidation or into which the Company is merged or to which the
properties and assets of the Company substantially as an entity
are transferred or leased shall be a corporation organized and
existing under the laws of the United States of America or any
State thereof or the District of Columbia and shall expressly
assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, all
the obligations of the Company under the Debentures and this
Indenture; and
(b) immediately after giving effect to such transaction no
Event of Default, and no event which, after notice or lapse of
time or both, would become an Event of Default, shall have
occurred and be continuing.
SECTION 10.02 The successor corporation formed by such
consolidation or into which the Company is merged or to which such transfer or
lease is made shall succeed to and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same effect as
if such successor corporation had been named as the Company herein, and
thereafter (except in the case of a lease to another Person) the predecessor
corporation shall be relieved of all obligations and covenants under the
Indenture and the Debentures and, in the event of such conveyance or transfer,
any such predecessor corporation may be dissolved and liquidated.
SECTION 10.03. The Trustee, subject to the provisions of
Section 7.01, may receive an Opinion of Counsel as conclusive evidence that
any such consolidation, merger, sale, conveyance, transfer or other
disposition, and any such assumption, comply with the provisions of this
Article.
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE
OF INDENTURE; UNCLAIMED MONEYS
SECTION 11.01. (A) If at any time (a) the Company shall
have paid or caused to be paid the principal of and interest on all the
Debentures of any series Outstanding hereunder (other than Debentures of such
series which have been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 2.07) as and when the same shall have become
due and payable, or (b) the Company shall have delivered to the Trustee for
cancellation all Debentures of any series theretofore authenticated (other
than any Debentures of such series which shall have been destroyed, lost or
stolen and which shall have been replaced or paid as provided in Section 2.07)
or (c) (i) all the Debentures of series not theretofore delivered to the
Trustee for cancellation shall have become due and payable, or are by their
terms to become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption, and (ii) the Company shall have
irrevocably deposited or caused to be deposited with the Trustee as trust
funds the entire amount in cash (other than moneys repaid by the Trustee or
any paying agent to the Company in accordance with Section 11.04) or
Government Obligations, maturing as to principal and interest at such times
and in such amounts as will insure the availability of cash, or a
combination thereof, sufficient in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay (A) the principal and interest on
all Debentures of such series on each date that such principal or interest
is due and payable and (B) any mandatory sinking fund payments on the dates
on which such payments are due and payable in accordance with the terms of
the Indenture and the Debentures of such series; and if, in any such case,
the Company shall also pay or cause to be paid all other sums payable
hereunder by the Company, then this Indenture shall cease to be of further
effect (except as to (i) rights of registration of transfer and exchange of
Debentures of such series and the Company's right of optional redemption,
if any, (ii) substitution of mutilated, defaced, destroyed, lost or stolen
Debentures, (iii) rights of holders of Debentures to receive payments of
principal thereof and interest thereon, upon the original stated due dates
therefor (but not upon acceleration), and remaining rights of the
Debentureholders to receive mandatory sinking fund payments, if any, (iv)
the rights, obligations, duties and immunities of the Trustee hereunder,
(v) the rights of the holders of Debentures of such series as beneficiaries
hereof with respect to the property so deposited with the Trustee payable
to all or any of them, and (vi) the obligations of the Company under
Section 4.02) and the Trustee, on demand of the Company accompanied by an
Officers' Certificate and an Opinion of Counsel and at the cost and expense
of the Company, shall execute proper instruments acknowledging such
satisfaction of and discharging this Indenture; provided, that the rights
of Holders of the Debentures to receive amounts in respect of principal of
and interest on the Debentures held by them shall not be delayed longer
than required by then-applicable mandatory rules or policies of any
securities exchange upon which the Debentures are listed. The Company
agrees to reimburse the Trustee for any costs or expenses thereafter
reasonably and properly incurred and to compensate the Trustee for any
services thereafter reasonably and properly rendered by the Trustee in
connection with this Indenture or the Debentures of such series.
(B) The following provisions shall apply to the Debentures of
each series unless specifically otherwise provided in a Board Resolution or
indenture supplemental hereto provided pursuant to Section 2.01. In addition
to discharge of the Indenture pursuant to the next preceding paragraph, the
Company shall be deemed to have paid and discharged the entire indebtedness on
all the Debentures of a series on the date of the deposit referred to in
subparagraph (a) below, and the provisions of this Indenture with respect to
the Debentures of such series shall no longer be in effect (except as to (i)
rights of registration of transfer and exchange of Debentures of such series
and the Company's right of optional redemption, if any, (ii) substitution of
mutilated, defaced, destroyed, lost or stolen Debentures, (iii) rights of
holders of Debentures to receive payments of principal thereof and interest
thereon, upon the original stated due dates therefor (but not upon
acceleration), and remaining rights of the holders of Debentures to receive
mandatory sinking fund payments, if any, (iv) the rights, obligations, duties
and immunities of the Trustee hereunder, (v) the rights of the Holders of
Debentures as beneficiaries hereof with respect to the property so deposited
with the Trustee payable to all or any of them and (vi) the obligations of the
Company under Section 4.02) and the Trustee, at the expense of the Company,
shall at the Company's request, execute proper instruments acknowledging the
same, if
(a) with reference to this provision the Company has
irrevocably deposited or caused to be irrevocably deposited with
the Trustee as trust funds in trust, specifically pledged as
security for, and dedicated solely to, the benefit of the holders
of the Debentures of such series (i) cash in an amount, or (ii)
Governmental Obligations maturing as to principal and interest at
such times and in such amounts as will insure the availability of
cash or (iii) a combination thereof, sufficient, in the opinion of
a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay (A) the principal and interest on all Debentures
of such series on each date that such principal or interest is due
and payable and (B) any mandatory sinking fund payments on the
dates on which such payments are due and payable in accordance
with the terms of the Indenture and the Debentures of such series;
(b) such deposit will not result in a breach or violation of,
or constitute a default under, any agreement or instrument to
which the Company is a party or by which it is bound;
(c) the Company has delivered to the Trustee an Opinion of
Counsel based on the fact that (x) the Company has received from,
or there has been published by, the Internal Revenue Service a
ruling or (y) since the date hereof, there has been a change in
the applicable Federal income tax law, in either case to the
effect that, and such opinion shall confirm that, the holders of
the Debentures of such series will not recognize income, gain or
loss for Federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to Federal income tax
on the same amount and in the same manner and at the same times,
as would have been the case if such deposit, defeasance and
discharge had not occurred;
(d) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the defeasance
contemplated by this provision have been complied with; and
(e) no event or condition shall exist that, pursuant to the
provisions of Section 14.02 or 14.03, would prevent the Company
from making payments of the principal of or interest on the
Debentures of such series on the date of such deposit.
SECTION 11.02 Subject to Section 11.04, all moneys deposited
with the Trustee (or other trustee) pursuant to Section 11.01 shall be held in
trust and applied by it to the payment, either directly or through any paying
agent (including the Company acting as its own paying agent), to the Holders
of the particular Debentures of such series for the payment or redemption of
which such moneys have been deposited with the Trustee, of all sums due and to
become due thereon for principal and interest; but such money need not be
segregated from other funds except to the extent required by law.
SECTION 11.03 In connection with the satisfaction and
discharge of this Indenture with respect to Debentures of any series, all
moneys then held by any paying agent under the provisions of this Indenture
with respect to such series of Debentures shall, upon demand of the Company,
be repaid to it or paid to the Trustee and thereupon such paying agent shall
be released from all further liability with respect to such moneys.
SECTION 11.04 Any moneys deposited with or paid to the Trustee
or any paying agent for the payment of the principal of or interest on any
Security of any series and not applied but remaining unclaimed for two years
after the date upon which such principal or interest shall have become due and
payable, shall, upon the written request of the Company and unless otherwise
required by mandatory provisions of applicable escheat or abandoned or
unclaimed property law, be repaid to the Company by the Trustee for such
series or such paying agent, and the Holder of the Debentures of such series
shall, unless otherwise required by mandatory provisions of applicable escheat
or abandoned or unclaimed property laws, thereafter look only to the Company
for any payment which such holder may be entitled to collect, and all
liability of the Trustee or any paying agent with respect to such moneys shall
thereupon cease; provided, however, that the Trustee or such paying agent,
before being required to make any such repayment with respect to moneys
deposited with it for any payment series, shall at the expense of the Company,
mail by first-class mail to holders of such Debentures at their addresses as
they shall appear on the Debenture Register, notice, that such moneys remain
and that, after a date specified therein, which shall not be less than thirty
days from the date of such mailing or publication, any unclaimed balance of
such money then remaining will be repaid to the Company.
SECTION 11.05 The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the
Governmental Obligations deposited pursuant to Section 11.01 or the principal
or interest received in respect of such obligations.
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. No recourse under or upon any obligations,
covenant or agreement of this Indenture, or of any Debenture, or for any claim
based thereon or otherwise in respect thereof, shall be had against any
incorporator, stockholder, officer or director, past, present or future as
such, of the Company or of any predecessor or successor corporation, either
directly or through the Company or any such predecessor or successor
corporation, whether by virtue of any constitution, statue or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that this Indenture and the obligations issued hereunder
are solely corporate obligations, and that no such personal liability whatever
shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors as such, of the Company or of any
predecessor or successor corporation, or any of them, because of the creation
of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Debentures or implied therefrom; and that any and all such personal
liability of every name and nature, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against,
every such incorporator, stockholder, officer or director as such, because the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Debentures or implied therefrom, are hereby expressly waived and released
as a condition of, and as a consideration for, the execution of this Indenture
and the issuance of such Debentures.
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
SECTION 13.01. All the covenants, stipulations, promises and
agreements in this Indenture contained by or on behalf of the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 13.02. Any act or proceeding by any provision of this
Indenture authorized or required to be done or performed by any board,
committee or officer of the Company shall and may be done and performed with
like force and effect by the corresponding board, committee or officer of any
corporation that shall at the time be the lawful sole successor of the
Company.
SECTION 13.03. The Company by instrument in writing executed
by authority of two-thirds of its Board of Directors and delivered to the
Trustee may surrender any of the powers reserved to the Company and thereupon
such power so surrendered shall terminate both as to the Company and as to any
successor corporation.
SECTION 13.04. Except as otherwise expressly provided herein
any notice or demand which by any provision of this Indenture is required or
permitted to be given or served by the Trustee or by the holders of Debentures
to or on the Company may be given or served by being deposited first class
postage prepaid in a post-office letterbox addressed (until another address is
filed in writing by the Company with the Trustee), as follows: The AES
Corporation, 1001 North 19th Street, Arlington, Virginia 22209, Attention:
General Counsel and Secretary. Any notice, election, request or demand by the
Company or any Debentureholder to or upon the Trustee shall be deemed to have
been sufficiently given or made, for all purposes, if given or made in writing
at the Corporate Trust Office of the Trustee.
SECTION 13.05. This Indenture and each Debenture shall be
deemed to be a contract made under the laws of the State of New York, and for
all purposes shall be construed in accordance with the laws of said State
(without regard to principles of conflicts of laws thereof).
SECTION 13.06. (a) Upon any application or demand by the
Company to the Trustee to take any action under any of the provisions of this
Indenture, the Company shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent provided for in this Indenture relating
to the proposed action have been complied with and an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent have
been complied with, except that in the case of any such application or demand
as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or demand,
no additional certificate or opinion need be furnished.
(b) Each certificate or opinion provided for in this Indenture
and delivered to the Trustee with respect to compliance with a condition or
covenant in this Indenture (other than the certificate provided pursuant to
Section 5.03(d) of this Indenture) shall include (1) a statement that the
person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based; (3) a statement that, in the opinion of such
person, he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and (4) a statement as to
whether or not, in the opinion of such person, such condition or covenant
has been complied with.
SECTION 13.07. Except as provided pursuant to Section 2.01
pursuant to a Board Resolution, and as set forth in an Officers' Certificate,
or established in one or more indentures supplemental to the Indenture, in any
case where the date of maturity of interest or principal of any Debenture or
the date of redemption of any Debenture shall not be a business day then
payment of interest or principal (and premium, if any) may be made on the next
succeeding business day with the same force and effect as if made on the
nominal date of maturity or redemption, and no interest shall accrue for the
period after such nominal date.
SECTION 13.08. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with the duties imposed by Sections
310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
SECTION 13.09. This Indenture may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
SECTION 13.10. In case any one or more of the provisions
contained in this Indenture or in the Debentures of any series shall for any
reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other
provisions of this Indenture or of such Debentures, but this Indenture and
such Debentures shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
SECTION 13.11. The Company will have the right at all times to
assign any of its rights or obligations under this Indenture to a direct or
indirect wholly owned Subsidiary of the Company; provided that, in the
event of any such assignment, the Company will remain jointly and severally
liable for all such obligations. Subject to the foregoing, this Indenture
is binding upon and inures to the benefit of the parties thereto and their
respective successors and assigns. This Indenture may not otherwise be
assigned by the parties hereto.
SECTION 13.12. The Company hereby acknowledges that, to the
extent specifically set forth herein, prior to a Security Exchange with
respect to the Debentures of any series held as trust assets of a AES Trust,
the holders of the Preferred Securities of such AES Trust shall expressly be
third party beneficiaries of this Indenture. The Company further acknowledges
that, prior to a Security Exchange with respect to Debentures of any series
held as trust assets of a AES Trust, if the Property Trustee of such AES Trust
fails to enforce its rights under this Indenture as the holder of the
Debentures of a series held as trust assets of such AES Trust, any holder of
the Preferred Securities of such AES Trust may institute legal proceedings
directly against the Company to enforce such Property Trustee's rights under
this Indenture without first instituting any legal proceedings against such
Property Trustee or any other person or entity.
ARTICLE FOURTEEN
SUBORDINATION OF DEBENTURES
SECTION 14.01. The Company covenants and agrees, and each
Debentureholder issued hereunder by his acceptance thereof likewise covenants
and agrees, that all Debentures shall be issued subject to the provisions of
this Article; and each person holding any Debenture, whether upon original
issue or upon transfer, assignment or exchange thereof accepts and agrees that
the Principal of and interest on all Debentures issued hereunder shall, to the
extent and in the manner herein set forth, be subordinated and subject in
right to the prior payment in full of all Senior Indebtedness.
SECTION 14.02. No payments on account of principal of,
Change of Control purchase price, or interest on the Debentures shall be made
if at the time of such payment or immediately after giving effect thereto
there shall exist a default in any payment with respect to any Senior
Indebtedness, and such event of default shall not have been cured or waived or
shall not have ceased to exist. In addition, during the continuance of any
other event of default (other than a payment default) with respect to
Designated Senior Indebtedness pursuant to which the maturity thereof may be
accelerated, from and after the date of receipt by the Trustee of written
notice from the holders of such Designated Senior Indebtedness or from an
agent of such holders, no payments on account of Principal, Change of Control
purchase price, or interest in respect of the Debentures may be made by the
Company for a period ("Payment Blockage Period") commencing on the date of
delivery of such notice and ending 179 days thereafter (unless such Payment
Blockage Period shall be terminated by written notice to the Trustee from the
holders of such Designated Senior Indebtedness or from an agent of such
holders, or such event of default has been cured or waived or has ceased to
exist). Only one Payment Blockage Period may be commenced with respect to the
Debentures during any period of 360 consecutive days. No event of default
which existed or was continuing on the date of the commencement of any Payment
Blockage Period with respect to the Designated Senior Indebtedness initiating
such Payment Blockage Period shall be or be made the basis for the
commencement of any subsequent Payment Blockage Period by the holders of such
Designated Senior Indebtedness, unless such event of default shall have been
cured or waived for a period of not less than 90 consecutive days.
Upon any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, to creditors
upon any liquidation, dissolution, winding up, receivership, reorganization,
assignment for the benefit of creditors, marshalling of assets and liabilities
or any bankruptcy, insolvency or similar proceedings of the Company, all
amounts due or to become due upon all Senior Indebtedness shall first be paid
in full, in cash or cash equivalents, or payment thereof provided for in
accordance with its terms, before any payment is made on account of the
Principal of, Change of Control purchase price, or interest on the
indebtedness evidenced by the Debentures, and upon any such liquidation,
dissolution, winding up, receivership, reorganization, assignment,
marshalling or proceeding, any payment or distribution of assets of the
Company of any kind or character, whether in cash, property or securities,
to which the Debentureholders or the Trustee under this Indenture would be
entitled, except for the provisions hereof, shall be paid by the Company or
by any receiver, trustee in bankruptcy, liquidating trustee, agent or other
Person making such payment or distribution, or by the Debentureholders or
by the Trustee under this Indenture if received by them or it, directly to
the holders of Senior Indebtedness (pro rata to such holders on the basis
of the respective amounts of Senior Indebtedness held by such holders) or
their respective representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any of such Senior
Indebtedness may have been issued, as their respective interests may
appear, to the extent necessary to pay all Senior Indebtedness in full
(including, without limitation, except to the extent, if any, prohibited by
mandatory provisions of law, post-petition interest, in any such
proceedings), after giving effect to any concurrent payment or distribution
to or for the holders of Senior Indebtedness, before any payment or
distribution is made to the holders of the indebtedness evidenced by the
Debentures or to the Trustee under this Indenture.
In the event that, notwithstanding the foregoing, any payment
or distribution of assets of the Company of any kind or character, whether in
cash, property or securities, prohibited by the foregoing, shall be received
by the Trustee under this Indenture or the holders of the Securities before
all Senior Indebtedness is paid in full or provision is made for such payment
in accordance with its terms, such payment or distribution shall be held in
trust for the benefit of and shall be paid over or delivered to the holders of
such Senior Indebtedness or their respective representatives, or to the
trustee or trustees under any indenture pursuant to which any instruments
evidencing any of such Senior Indebtedness may have been issued, as their
respective interests may appear, for application to the payment of all Senior
Indebtedness remaining unpaid until all such Senior Indebtedness shall have
been paid in full in accordance with its terms, after giving effect to any
concurrent payment or distribution to or for the holders of such Senior
Indebtedness.
For purposes of this Article, the words, "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of arrangement, reorganization or
readjustment, the payment of which is subordinated (at least to the extent
provided in this Article with respect to the Securities) to the payment of all
Senior Indebtedness which may at the time be outstanding; provided, that (i)
the Senior Indebtedness is assumed by the new corporation, if any, resulting
from any such arrangement, reorganization or readjustment, and (ii) the rights
of the holders of the Senior Indebtedness are not, without the consent of such
holders, altered by such arrangement, reorganization or readjustment. The
consolidation of the Company with, or the merger of the Company into, another
corporation or the liquidation or dissolution of the Company following the
conveyance or transfer of its property as an entirety, or substantially as an
entirety, to another corporation upon the terms and conditions provided in
Article 10 shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section if such other corporation
shall, as a part of such consolidation, merger, conveyance or transfer, comply
with the conditions stated in Article 10. Nothing in this Section shall apply
to claims of, or payments to, the Trustee under or pursuant to Article 7,
except as provided therein. This Section shall be subject to the further
provisions of Section 14.05.
SECTION 14.03. Subject to the payment in full of all Senior
Indebtedness, the holders of the Debentures shall be subrogated to the rights
of the holders of Senior Indebtedness to receive payments or distributions of
cash, property or securities of the Company applicable to the Senior
Indebtedness until the principal of and interest on the Debentures shall be
paid in full; and, for the purposes of such subrogation, no payments or
distributions to the holders of the Senior Indebtedness of any cash, property
or securities to which the holders of the Debentures or the Trustee on their
behalf would be entitled except for the provisions of this Article, and no
payment over pursuant to the provisions of this Article to the holders of
Senior Indebtedness by holders of the Debentures or the Trustee on their
behalf shall, as between the Company, its creditors other than holders of
Senior Indebtedness and the holders of the Debentures, be deemed to be a
payment by the Company to or on account of the Senior Indebtedness; and no
payments or distributions of cash, property or securities to or for the
benefit of the Debentureholders pursuant to the subrogation provision of this
Article, which would otherwise have been paid to the holders of Senior
Indebtedness shall be deemed to be a payment by the Company to or for the
account of the Debentures. It is understood that the provisions of this
Article are and are intended solely for the purpose of defining the relative
rights of the holders of the Debentures, on the one hand, and the holders of
the Senior Indebtedness, on the other hand.
Nothing contained in this Article or elsewhere in this
Indenture or in the Debentures is intended to or shall impair, as between the
Company, its creditors other than the holders of Senior Indebtedness, and the
holders of the Debentures, the obligation of the Company, which is absolute
and unconditional, to pay to the holders of the Debentures the principal of
and interest on the Debentures as and when the same shall become due and
payable in accordance with their terms, or is intended to or shall affect the
relative rights of the holders of the Debentures and creditors of the Company
other than the holders of the Senior Indebtedness, nor shall anything herein
or therein prevent the holder of any Debenture or the Trustee on his behalf
from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this
Article of the holders of Senior Indebtedness in respect of cash, property or
securities of the Company received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee, subject to the provisions of Article
7, and the holders of the Debentures shall be entitled to rely upon any order
or decree made by any court of competent jurisdiction in which such
liquidation, dissolution, winding up, receivership, reorganization, assignment
or marshalling proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidating trustee, agent or other person making such
payment or distribution, delivered to the Trustee or to the holders of the
Debentures, for the purpose of ascertaining the persons entitled to
participate in such distribution, the holders of the Senior Indebtedness and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
SECTION 14.04. Each holder of a Debenture by his acceptance
thereof authorizes the Trustee in his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article and appoints the Trustee his attorney-in-fact for any and all such
purposes.
SECTION 14.05. The Company shall give prompt written notice to
the Trustee and to any paying agent of any fact known to the Company which
would prohibit the making of any payment of moneys to or by the Trustee or any
paying agent in respect of the Debentures pursuant to the provisions of this
Article. Regardless of anything to the contrary contained in this Article or
elsewhere in this Indenture, the Trustee shall not be charged with knowledge
of the existence of any Senior Indebtedness or of any default or event of
default with respect to any Senior Indebtedness or of any other facts which
would prohibit the making of any payment of moneys to or by the Trustee,
unless and until the Trustee shall have received notice in writing at its
principal Corporate Trust Office to that effect signed by an officer of the
Company, or by a holder or agent of a holder of Senior Indebtedness who shall
have been certified by the Company or otherwise established to the reasonable
satisfaction of the Trustee to be such holder or agent, or by the trustee
under any indenture pursuant to which Senior Indebtedness shall be
outstanding, and, prior to the receipt of any such written notice, the Trustee
shall, subject to the provisions of Article 7, be entitled to assume that no
such facts exist; provided that if on a date at least three Business days
prior to the date upon which by the terms hereof any such moneys shall become
payable for any purpose (including, without limitation, the payment of the
principal of, or interest on any Debenture) the Trustee shall not have
received with respect to such moneys the notice provided for in this Section,
then, regardless of anything herein to the contrary, the Trustee shall have
full power and authority to receive such moneys and to apply the same to the
purpose for which they were received, and shall not be affected by any notice
to the contrary which may be received by it on or after such prior date.
Regardless of anything to the contrary herein, nothing shall
prevent (a) any payment by the Company or the Trustee to the Debentureholders
of amounts in connection with a redemption of Debentures if (i) notice of such
redemption has been given pursuant to Article 3 prior to the receipt by the
Trustee of written notice as aforesaid, and (ii) such notice of redemption is
given not earlier than 60 days before the redemption date, or (b) any payment
by the Trustee to the Debentureholders of amounts deposited with it pursuant
to Article 11.
The Trustee shall be entitled to rely on the delivery to it of
a written notice by a person representing himself to be a holder of Senior
Indebtedness (or a trustee on behalf of such holder) to establish that such
notice has been given by a holder of Senior Indebtedness or a trustee on
behalf of any such holder. In the event that the Trustee determines in good
faith that further evidence is required with respect to the right of any
person as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article, the Trustee may request such person to
furnish evidence to the reasonable satisfaction of the Trustee as to the
amount of Senior Indebtedness held by such person, the extent to which such
person is entitled to participate in such payment or distribution and any
other facts pertinent to the rights of such person under this Article, and if
such evidence is not furnished the Trustee may defer any payment to such
person pending judicial determination as to the right of such person to
receive such payment.
SECTION 14.06. The Trustee and any agent of the Company or the
Trustee shall be entitled to all the rights set forth in this Article with
respect to any Senior Indebtedness which may at any time be held by it in its
individual or any other capacity to the same extent as any other holder of
Senior Indebtedness and nothing in this Indenture shall deprive the Trustee or
any such agent, of any of its rights as such holder. Nothing in this Article
shall apply to claims of, or payments to, the Trustee under or pursuant to
Article 7.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to
owe any fiduciary duty to the holders of Senior Indebtedness and, subject to
the provisions of Article 7, the Trustee shall not be liable to any holder of
Senior Indebtedness if it shall pay over or deliver to holders of Debentures,
the Company or any other person moneys or assets to which any holder of Senior
Indebtedness shall be entitled by virtue of this Article or otherwise.
SECTION 14.07. No right of any present or future holder of any
Senior Indebtedness to enforce subordination as herein provided shall at any
time in any way be prejudiced or impaired by any act or failure to act on the
part of the Company or by any act or failure to act, in good faith, by any
such holder, or by any noncompliance by the Company with the terms, provisions
and covenants of this Indenture, regardless of any knowledge thereof which any
such holder may have or otherwise be charged with.
The First National Bank of Chicago, as Trustee, hereby accepts
the trust in this Indenture declared and provided, upon the terms and
conditions hereinabove set forth.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
THE AES CORPORATION
By ______________________________
Name:
Title:
Attest:
By ________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
AS TRUSTEE
By ___________________________
Name:
Title:
Attest:
By ______________________
Name:
Title:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On __________, 199__ before me, ____________________, Notary
Public, personally appeared ______________________ and
/ / personally known to me -OR -
/ / proved to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is/are subscribed to the within instrument and acknowledged to
me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed
the instrument.
Witness my hand and official seal.
_____________________________
Signature of Notary
CAPACITY CLAIMED BY SIGNER
/ / INDIVIDUAL(S) _______ ______________
/ / CORPORATE OFFICER(S)
/ / PARTNER(S)
/ / ATTORNEY-IN-FACT
/ / TRUSTEE(S)
/ / GUARDIAN/CONSERVATOR
/ / OTHER:
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
THE AES CORPORATION
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On _________, 199__ before me, __________________, Notary
Public, personally appeared ___________________ and
/ / personally known to me - OR -
/ / proved to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is/are subscribed to the within instrument and acknowledged to
me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed
the instrument.
Witness my hand and official seal.
_____________________________
Signature of Notary
CAPACITY CLAIMED BY SIGNER
/ / INDIVIDUAL(S) _________________________
/ / CORPORATE OFFICER(S)
/ / TRUST OFFICER
/ / ATTORNEY-IN-FACT
/ / TRUSTEE(S)
/ / GUARDIAN/CONSERVATOR
/ / OTHER:
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
THE FIRST NATIONAL BANK OF CHICAGO
EXHIBIT 4.5
DECLARATION OF TRUST, dated as of November 1, 1996, between
The AES Corporation, a Delaware corporation, as Sponsor, and The First
National Bank of Chicago, not in its individual capacity but solely as trustee
(the "Property Trustee"), First Chicago Delaware Inc., not in its individual
capacity but solely as trustee (the "Delaware Trustee"), and William R.
Luraschi, Willard Hoagland and Barry J. Sharp, each not in his individual
capacity but solely as trustee (the Property Trustee, Delaware Trustee and
each such individual as trustee, collectively the "Trustees"). The Sponsor
and the Trustees hereby agree as follows:
1. The trust created hereby shall be known as "AES Trust I",
in which name the Trustees, or the Sponsor to the extent provided herein, may
conduct the business of the Trust, make and execute contracts, and sue and be
sued.
2. The Sponsor hereby assigns, transfers, conveys and sets
over to the Trustees the sum of $10. The Trustees hereby acknowledge receipt
of such amount in trust from the Sponsor, which amount shall constitute the
initial trust estate. The Trustees hereby declare that they will hold the
trust estate in trust for the Sponsor. It is the intention of the parties
hereto that the Trust created hereby constitute a business trust under Chapter
38 of Title 12 of the Delaware Code, 12 Del. Code Section 3801 et seq. (the
"Business Trust Act"), and that this document constitute the governing
instrument of the Trust. The Trustees are hereby authorized and directed to
execute and file a certificate of trust with the Secretary of State of the
State of Delaware in the form attached hereto. The Trust is hereby
established by the Sponsors and the Trustees for the purposes of (i) issuing
preferred securities representing undivided beneficial interests in the assets
of the Trust ("Preferred Securities") in exchange for cash and investing the
proceeds thereof in junior subordinated debentures of the Sponsor, (ii)
issuing and selling common securities representing undivided beneficial
interest in the assets of the Trust to the Sponsor in exchange for cash and
investing the proceeds thereof in additional junior subordinated debentures of
the Sponsor and, (iii) engaging in such other activities as are necessary,
convenient or incidental thereto.
3. The Sponsor and the Trustees will enter into an amended
and restated Declaration of Trust, satisfactory to each such party and
substantially in the form included as an exhibit to the 1933 Act
Registration Statement referred to below, to provide for the contemplated
operation of the Trust created hereby and the issuance of the Preferred
Securities and Common Securities referred to therein. Prior to the
execution and delivery of such amended and restated Declaration of Trust,
the Trustees shall not have any duty or obligation hereunder or with
respect to the trust estate, except as otherwise required by applicable law
or as may be necessary to obtain prior to such execution and delivery any
licenses, consents or approvals required by applicable law or otherwise.
4. The Sponsor and the Trustees hereby authorize and direct
the Sponsor, as the sponsor of the Trust, (i) to prepare and file with the
Securities and Exchange Commission (the "Commission") and execute, in each
case on behalf of the Trust, (a) a Registration Statement on Form S-3 (the
"1933 Act Registration Statement") including any pre-effective or
post-effective amendments to such Registration Statement, relating to the
registration under the Securities Act of 1933, as amended, of the Preferred
Securities of the Trust and (b) a Registration Statement on Form 8-A (the
"1934 Act Registration Statement") (including all pre-effective and
post-effective amendments thereto) relating to the registration of the
Preferred Securities of the Trust under Section 12(b) of the Securities
Exchange Act of 1934, as amended; (ii) to prepare and file with the New York
Stock Exchange and execute on behalf of the Trust a listing application and
all other applications, statements, certificates, agreements and other
instruments as shall be necessary or desirable to cause the Preferred
Securities to be listed on the New York Stock Exchange; (iii) to prepare and
file and execute on behalf of the Trust such applications, reports, surety
bonds, irrevocable consents, appointments of attorney for service of process
and other papers and documents as shall be necessary or desirable to register
the Preferred Securities under the securities or "Blue Sky" laws of such
jurisdictions as the Sponsor, on behalf of the Trust, may deem necessary or
desirable and (iv) to negotiate the terms of and execute on behalf of the
Trust an underwriting agreement among the Trust, the Sponsor and any
underwriter, dealer or agent relating to the Preferred Securities,
substantially in the form included as Exhibit 1.3 to the 1933 Act
Registration Statement. In the event that any filing referred to in
clauses (i)-(iii) above is required by the rules and regulations of the
Commission, the New York Stock Exchange or state securities or blue sky
laws, to be executed on behalf of the Trust by the Trustees, William R.
Luraschi, Willard Hoagland and Barry J. Sharp, in their capacities as
Trustees of the Trust, are hereby authorized and directed to join in any
such filing and to execute on behalf of the Trust any and all of the
foregoing, it being understood that The First National Bank of Chicago and
First Chicago Delaware Inc., in their capacities as Trustees of the Trust,
shall not be required to join in any such filing or execute on behalf of
the Trust any such document unless required by the rules and regulations of
the Commission, the New York Stock Exchange or state securities or blue sky
laws. In connection with all of the foregoing, the Sponsor and each
Trustee, solely in its capacity as Trustee of the Trust, hereby constitutes
and appoints Willard Hoagland, Diane Crockett, William R. Luraschi, Dennis
W. Bakke and Barry J. Sharp, and each of them, his, her or its, as the
case may be, true and lawful attorneys-in-fact, and agents, with full power
of substitution and resubstitution, for the Sponsor or such Trustee and in
the Sponsor's or such Trustee's name, place and stead, in any and all
capacities, to sign and file (i) any and all amendments (including post-
effective amendments) to the 1933 Act Registration Statement and the 1934
Act Registration Statement with all exhibits thereto, and other documents
in connection therewith, and (ii) a registration statement, and any and all
amendments thereto, relating thereto filed pursuant to Rule 462(b) under
the Securities Act of 1933, as amended with the Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and
perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as the Sponsor
or such Trustee might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or
their or his or her substitute or substitutes, shall do or cause to be done
by virtue hereof.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of Trustees initially shall be five (5) and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Sponsor which may increase
or decrease the number of Trustees; provided, however, that the number of
Trustees shall in no event be less than five (5); and provided, further that
to the extent required by the Business Trust Act, one Trustee shall either be
a natural person who is a resident of the State of Delaware or, if not a
natural person, an entity which has its principal place of business in the
State of Delaware and meets other requirements imposed by applicable law.
Subject to the foregoing, the Sponsor is entitled to appoint or remove without
cause any Trustee at any time. The Trustees may resign upon thirty days prior
notice to the Sponsor.
7. First Chicago Delaware Inc., in its capacity as Trustee,
shall not have any of the powers or duties of the Trustees set forth herein
and shall be a Trustee of the Trust for the sole purpose of satisfying the
requirements of Section 3807 of the Business Trust Act.
8. The Trust shall terminate before the issuance of any
Preferred Securities at the election of the Sponsor.
IN WITNESS WHEREOF, the parties hereto have caused this
Declaration of Trust to be duly executed as of the day and year first above
written.
The AES Corporation,
as Sponsor
By: /s/ William R. Luraschi
-------------------------------
Name: William R. Luraschi
Title: General Counsel and
Secretary
The First National Bank of
Chicago, not in its individual
capacity but solely as
Property Trustee
By: /s/ Richard Manella
-------------------------------
Name: Richard Manella
Title: Vice President and
Trust Counsel
First Chicago Delaware Inc.,
not in its individual capacity
but solely as Delaware Trustee
By: /s/ Steve M. Wagner
-------------------------------
Name: Steve M. Wagner
Title: Vice President
/s/ William R. Luraschi
-------------------------------
William R. Luraschi,
not in his individual capacity
but solely as Trustee
/s/Willard Hoagland
-------------------------------
Willard Hoagland,
not in his individual capacity
but solely as Trustee
/s/ Barry J. Sharp
-------------------------------
Barry J. Sharp,
not in his individual capacity
but solely as Trustee
EXHIBIT 4.6
CERTIFICATE OF TRUST
OF
AES TRUST I
THIS Certificate of Trust of AES Trust I (the "Trust"),
dated as of November 1, 1996, is being duly executed and filed by the
undersigned, as trustees, to form a business trust under the Delaware
Business Trust Act (12 Del. Code Section 3801 et seq.).
1. Name. The name of the business trust being formed hereby
is AES Trust I.
2. Delaware Trustee. The name and business address of the
trustee of the Trust with a principal place of business in the State of
Delaware is First Chicago Delaware Inc., 300 King Street, Wilmington, Delaware
19801 .
3. Effective Date. This Certificate of Trust shall be
effective as of its filing.
4. Registered Agent. The name and address of the Registered
Agent upon whom process of service may be served is First Chicago Delaware
Inc., 300 King Street, Wilmington, Delaware 19801.
IN WITNESS WHEREOF, the undersigned, being the sole trustees of
the Trust, have executed this Certificate of Trust as of the date first above
written.
First Chicago Delaware Inc.,
as Delaware Trustee
By: /s/ Steve M. Wagner
----------------------------
Name: Steve M. Wagner
Title: Vice President
The First National Bank of
Chicago
By: /s/ Richard Manella
----------------------------
Name: Richard Manella
Title: Vice President and
Trust Counsel
/s/ William R. Luraschi
----------------------------
William R. Luraschi
as Trustee
/s/ Willard Hoagland
----------------------------
Willard Hoagland
as Trustee
/s/ Barry J. Sharp
----------------------------
Barry J. Sharp
as Trustee
EXHIBIT 4.7
DECLARATION OF TRUST, dated as of November 1, 1996, between
The AES Corporation, a Delaware corporation, as Sponsor, and The First
National Bank of Chicago, not in its individual capacity but solely as trustee
(the "Property Trustee"), First Chicago Delaware Inc., not in its individual
capacity but solely as trustee (the "Delaware Trustee"), and William R.
Luraschi, Willard Hoagland and Barry J. Sharp, each not in his individual
capacity but solely as trustee (the Property Trustee, Delaware Trustee and
each such individual as trustee, collectively the "Trustees"). The Sponsor
and the Trustees hereby agree as follows:
1. The trust created hereby shall be known as "AES Trust II",
in which name the Trustees, or the Sponsor to the extent provided herein, may
conduct the business of the Trust, make and execute contracts, and sue and be
sued.
2. The Sponsor hereby assigns, transfers, conveys and sets
over to the Trustees the sum of $10. The Trustees hereby acknowledge receipt
of such amount in trust from the Sponsor, which amount shall constitute the
initial trust estate. The Trustees hereby declare that they will hold the
trust estate in trust for the Sponsor. It is the intention of the parties
hereto that the Trust created hereby constitute a business trust under Chapter
38 of Title 12 of the Delaware Code, 12 Del. Code Section 3801 et seq. (the
"Business Trust Act"), and that this document constitute the governing
instrument of the Trust. The Trustees are hereby authorized and directed to
execute and file a certificate of trust with the Secretary of State of the
State of Delaware in the form attached hereto. The Trust is hereby
established by the Sponsors and the Trustees for the purposes of (i) issuing
preferred securities representing undivided beneficial interests in the assets
of the Trust ("Preferred Securities") in exchange for cash and investing the
proceeds thereof in junior subordinated debentures of the Sponsor, (ii)
issuing and selling common securities representing undivided beneficial
interest in the assets of the Trust to the Sponsor in exchange for cash and
investing the proceeds thereof in additional junior subordinated debentures of
the Sponsor and, (iii) engaging in such other activities as are necessary,
convenient or incidental thereto.
3. The Sponsor and the Trustees will enter into an amended and
restated Declaration of Trust, satisfactory to each such party and
substantially in the form included as an exhibit to the 1933 Act Registration
Statement referred to below, to provide for the contemplated operation of the
Trust created hereby and the issuance of the Preferred Securities and Common
Securities referred to therein. Prior to the execution and delivery of
such amended and restated Declaration of Trust, the Trustees shall not have
any duty or obligation hereunder or with respect to the trust estate,
except as otherwise required by applicable law or as may be necessary to
obtain prior to such execution and delivery any licenses, consents or
approvals required by applicable law or otherwise.
4. The Sponsor and the Trustees hereby authorize and direct
the Sponsor, as the sponsor of the Trust, (i) to prepare and file with the
Securities and Exchange Commission (the "Commission") and execute, in each
case on behalf of the Trust, (a) a Registration Statement on Form S-3 (the
"1933 Act Registration Statement") including any pre-effective or
post-effective amendments to such Registration Statement, relating to the
registration under the Securities Act of 1933, as amended, of the Preferred
Securities of the Trust and (b) a Registration Statement on Form 8-A (the
"1934 Act Registration Statement") (including all pre-effective and
post-effective amendments thereto) relating to the registration of the
Preferred Securities of the Trust under Section 12(b) of the Securities
Exchange Act of 1934, as amended; (ii) to prepare and file with the New York
Stock Exchange and execute on behalf of the Trust a listing application and
all other applications, statements, certificates, agreements and other
instruments as shall be necessary or desirable to cause the Preferred
Securities to be listed on the New York Stock Exchange; (iii) to prepare and
file and execute on behalf of the Trust such applications, reports, surety
bonds, irrevocable consents, appointments of attorney for service of process
and other papers and documents as shall be necessary or desirable to register
the Preferred Securities under the securities or "Blue Sky" laws of such
jurisdictions as the Sponsor, on behalf of the Trust, may deem necessary or
desirable and (iv) to negotiate the terms of and execute on behalf of the
Trust an underwriting agreement among the Trust, the Sponsor and any
underwriter, dealer or agent relating to the Preferred Securities,
substantially in the form included as Exhibit 1.3 to the 1933 Act Registration
Statement. In the event that any filing referred to in clauses (i)-(iii)
above is required by the rules and regulations of the Commission, the New
York Stock Exchange or state securities or blue sky laws, to be executed on
behalf of the Trust by the Trustees, William R. Luraschi, Willard Hoagland
and Barry J. Sharp, in their capacities as Trustees of the Trust, are
hereby authorized and directed to join in any such filing and to execute on
behalf of the Trust any and all of the foregoing, it being understood that
The First National Bank of Chicago and First Chicago Delaware Inc., in
their capacities as Trustees of the Trust, shall not be required to join in
any such filing or execute on behalf of the Trust any such document unless
required by the rules and regulations of the Commission, the New York Stock
Exchange or state securities or blue sky laws. In connection with all of
the foregoing, the Sponsor and each Trustee, solely in its capacity as
Trustee of the Trust, hereby constitutes and appoints Willard Hoagland,
Diane Crockett, William R. Luraschi, Dennis W. Bakke and Barry J. Sharp,
and each of them, his, her or its, as the case may be, true and lawful
attorneys-in-fact, and agents, with full power of substitution and
resubstitution, for the Sponsor or such Trustee and in the Sponsor's or
such Trustee's name, place and stead, in any and all capacities, to sign
and file (i) any and all amendments (including post-effective amendments)
to the 1933 Act Registration Statement and the 1934 Act Registration
Statement with all exhibits thereto, and other documents in connection
therewith, and (ii) a registration statement, and any and all amendments
thereto, relating thereto filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended with the Commission, granting unto said
attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as the Sponsor
or such Trustee might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or
their or his or her substitute or substitutes, shall do or cause to be done
by virtue hereof.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of Trustees initially shall be five (5) and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Sponsor which may increase
or decrease the number of Trustees; provided, however, that the number of
Trustees shall in no event be less than five (5); and provided, further that
to the extent required by the Business Trust Act, one Trustee shall either be
a natural person who is a resident of the State of Delaware or, if not a
natural person, an entity which has its principal place of business in the
State of Delaware and meets other requirements imposed by applicable law.
Subject to the foregoing, the Sponsor is entitled to appoint or remove without
cause any Trustee at any time. The Trustees may resign upon thirty days prior
notice to the Sponsor.
7. First Chicago Delaware Inc., in its capacity as Trustee,
shall not have any of the powers or duties of the Trustees set forth herein
and shall be a Trustee of the Trust for the sole purpose of satisfying the
requirements of section 3807 of the Business Trust Act.
8. The Trust shall terminate before the issuance of any
Preferred Securities at the election of the Sponsor.
IN WITNESS WHEREOF, the parties hereto have caused this
Declaration of Trust to be duly executed as of the day and year first above
written.
The AES Corporation,
as Sponsor
By: /s/ William R. Luraschi
-------------------------------
Name: William R. Luraschi
Title: General Counsel and
Secretary
The First National Bank of
Chicago, not in its individual
capacity but solely as
Property Trustee
By: /s/ Richard Manella
-------------------------------
Name: Richard Manella
Title: Vice President and
Trust Counsel
First Chicago Delaware Inc.,
not in its individual capacity
but solely as Delaware Trustee
By: /s/ Steve M. Wagner
-------------------------------
Name: Steve M. Wagner
Title: Vice President
/s/ William R. Luraschi
-------------------------------
William R. Luraschi,
not in his individual capacity
but solely as Trustee
/s/Willard Hoagland
-------------------------------
Willard Hoagland,
not in his individual capacity
but solely as Trustee
/s/ Barry J. Sharp
-------------------------------
Barry J. Sharp,
not in his individual capacity
but solely as Trustee
EXHIBIT 4.8
CERTIFICATE OF TRUST
OF
AES TRUST II
THIS Certificate of Trust of AES Trust II (the "Trust"),
dated as of November 1, 1996, is being duly executed and filed by the
undersigned, as trustees, to form a business trust under the Delaware
Business Trust Act (12 Del. Code Section 3801 et seq.).
1. Name. The name of the business trust being formed hereby
is AES Trust II.
2. Delaware Trustee. The name and business address of the
trustee of the Trust with a principal place of business in the State of
Delaware is 1First Chicago Delaware Inc., 300 King Street, Wilmington,
Delaware 19801.
3. Effective Date. This Certificate of Trust shall be
effective as of its filing.
4. Registered Agent. The name and address of the Registered
Agent upon whom process of service may be served is First Chicago Delaware
Inc., 300 King Street, Wilmington, Delaware 19801.
IN WITNESS WHEREOF, the undersigned, being the sole trustees of
the Trust, have executed this Certificate of Trust as of the date first above
written.
First Chicago Delaware Inc.,
as Delaware Trustee
By: /s/ Steve M. Wagner
----------------------------
Name: Steve M. Wagner
Title: Vice President
The First National Bank of
Chicago
By: /s/ Richard Manella
----------------------------
Name: Richard Manella
Title: Vice President and
Trust Counsel
/s/ William R. Luraschi
----------------------------
William R. Luraschi
as Trustee
/s/ Willard Hoagland
----------------------------
Willard Hoagland
as Trustee
/s/ Barry J. Sharp
----------------------------
Barry J. Sharp
as Trustee
Exhibit 4.9
Form of
AMENDED AND RESTATED DECLARATION OF TRUST
OF
AES TRUST [ ]
_______________________________________
Dated as of ___________, 19__
_______________________________________
TABLE OF CONTENTS(*)
(*) This Table of Contents does not constitute part of the Amended and
Restated Declaration of Trust and should not have any bearing upon the
interpretation of any of its terms or provisions.
Page
----
PARTIES................................................................. 1
RECITALS:
Recitals................................................................ 1
ARTICLE I
DEFINITIONS
SECTION 1.1 Certain terms defined; other terms defined in the Trust
Indenture Act of 1939, as amended, or by reference therein
in the Securities Act of 1933, as amended, to have the
meanings assigned therein................................ 2
Affiliate.................................................. 2
Book Entry Interest........................................ 2
Business Day............................................... 3
Business Trust Act......................................... 3
Certificate................................................ 3
Certificate of Trust....................................... 3
Clearing Agency............................................ 3
Clearing Agency Participant................................ 3
Closing Date............................................... 3
Code....................................................... 3
Commission................................................. 3
Common Security............................................ 3
Common Security Certificate................................ 3
Covered Person............................................. 4
Debenture Trustee.......................................... 4
Debentures................................................. 4
Definitive Preferred Security Certificates................. 4
Delaware Trustee........................................... 4
Depositary Agreement....................................... 4
Distribution............................................... 4
DTC........................................................ 4
Event of Default........................................... 4
Exchange Act............................................... 4
Fiscal Year................................................ 4
Global Certificate......................................... 4
Holder..................................................... 4
Indemnified Person......................................... 5
Indenture.................................................. 5
Indenture Event of Default................................. 5
Investment Company......................................... 5
Investment Company Act..................................... 5
Legal Action............................................... 5
Liquidation Distribution................................... 5
Majority in liquidation amount of the Securities........... 5
Ministerial Action......................................... 5
Option Closing Date........................................ 6
Original Declaration....................................... 6
Paying Agent............................................... 6
Person..................................................... 6
Preferred Guarantee........................................ 6
Preferred Security......................................... 6
Preferred Security Beneficial Owner........................ 6
Preferred Security Certificate............................ 6
Property Trustee........................................... 6
Property Account........................................... 6
Quorum..................................................... 6
Regular Trustee............................................ 6
Related Party.............................................. 7
Resignation Request........................................ 7
Responsible Officer........................................ 7
Rule 3a-7.................................................. 7
Securities................................................. 7
Securities Act............................................. 7
66-2/3% in liquidation amount of the Securities............ 7
Special Event.............................................. 7
Sponsor or AES............................................. 8
Successor Delaware Trustee................................. 8
Successor Property Trustee................................. 8
10% in liquidation amount of the Securities................ 8
Treasury Regulations....................................... 8
Trustee or Trustees........................................ 8
Trust Indenture Act........................................ 9
Underwriting Agreement..................................... 9
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.......................... 9
SECTION 2.2 List of Holders of Preferred Securities................... 9
SECTION 2.3 Reports by the Property Trustee........................... 10
SECTION 2.4 Periodic Reports to the Property Trustee.................. 10
SECTION 2.5 Evidence of Compliance with Conditions Precedent.......... 10
SECTION 2.6 Events of Default; Waiver................................. 10
SECTION 2.7 Disclosure of Information................................. 13
ARTICLE III
ORGANIZATION
SECTION 3.1 Name...................................................... 13
SECTION 3.2 Office.................................................... 13
SECTION 3.3 Insurance of the Trust Securities......................... 13
SECTION 3.4 Purchase of Debentures.................................... 14
SECTION 3.5 Purpose................................................... 15
SECTION 3.6 Authority................................................. 15
SECTION 3.7 Title to Property of the Trust............................ 16
SECTION 3.8 Powers and Duties of the Regular Trustees................. 16
SECTION 3.9 Prohibition of Actions by Trust and Trustees.............. 19
SECTION 3.10 Powers and Duties of the Property Trustee................. 20
SECTION 3.11 Delaware Trustee.......................................... 23
SECTION 3.12 Certain Rights and Duties of the Property Trustee......... 23
SECTION 3.13 Registration Statement and Related Matters................ 26
SECTION 3.14 Filing of Amendments to Certificate of Trust.............. 27
SECTION 3.15 Execution of Documents by Regular Trustees................ 28
SECTION 3.16 Trustees Not Responsible for Recitals or Issuance of
Securities.............................................. 28
SECTION 3.17 Duration of Trust....................................... 28
ARTICLE IV
SPONSOR
SECTION 4.1 Purchase of Common Securities by Sponsor.................. 28
SECTION 4.2 Expenses.................................................. 28
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees; Qualifications........................ 29
SECTION 5.2 Appointment, Removal and Resignation of Trustees.......... 32
SECTION 5.3 Vacancies Among Trustees.................................. 34
SECTION 5.4 Effect of Vacancies....................................... 34
SECTION 5.5 Meetings.................................................. 34
SECTION 5.6 Delegation of Power....................................... 35
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions............................................. 35
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities................... 36
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1 Termination of Trust...................................... 38
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities.................................... 38
SECTION 9.2 Transfer of Certificates.................................. 39
SECTION 9.3 Deemed Security Holders................................... 39
SECTION 9.4 Book Entry Interests...................................... 40
SECTION 9.5 Notices to Holders of Certificates........................ 41
SECTION 9.6 Appointment of Successor Clearing Agency.................. 41
SECTION 9.7 Definitive Preferred Securities Certificates.............. 41
SECTION 9.8 Mutilated, Destroyed, Lost or Stolen Certificates......... 42
ARTICLE X
LIMITATION OF LIABILITY; INDEMNIFICATION
SECTION 10.1 Exculpation............................................. 42
SECTION 10.2 Indemnification......................................... 43
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year............................................. 44
SECTION 11.2 Certain Accounting Matters.............................. 44
SECTION 11.3 Banking................................................. 45
SECTION 11.4 Withholding............................................. 45
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments.............................................. 46
SECTION 12.2 Meetings of the Holders of Securities; Action by Written
Consent............................................... 47
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Property Trustee...... 49
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices................................................. 50
SECTION 14.2 Undertaking for Costs................................... 51
SECTION 14.3 Governing Law........................................... 52
SECTION 14.4 Headings................................................ 52
SECTION 14.5 Partial Enforceability.................................. 52
SECTION 14.6 Counterparts............................................ 52
SECTION 14.7 Intention of the Parties................................ 53
SECTION 14.8 Successors and Assigns.................................. 53
SIGNATURES AND SEALS................................................... 54
EXHIBIT A: CERTIFICATE OF TRUST
EXHIBIT B: TERMS OF THE PREFERRED SECURITIES
EXHIBIT C: TERMS OF THE COMMON SECURITIES
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
AES TRUST [ ]
__________, 19__
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") dated
and effective as of __________, 199__ by the undersigned trustees (together
with all other Persons from time to time duly appointed and serving as
trustees in accordance with the provisions of this Declaration, the
"Trustees"), The AES Corporation, a Delaware corporation, as trust sponsor
("AES" or the "Sponsor"), and by the holders, from time to time, of undivided
beneficial interests in the assets of the Trust to be issued pursuant to this
Declaration.
WHEREAS, the Sponsor and the Trustees entered into a
Declaration of Trust dated as of _________ __, 199_ (the "Original
Declaration") in order to establish a statutory business trust (the "Trust")
under the Business Trust Act (as hereinafter defined);
WHEREAS, the Certificate of Trust (the "Certificate of Trust")
of the Trust was filed with the office of the Secretary of State of the State
of Delaware on _________ __, 199_;
WHEREAS, the Trustees and the Sponsor desire to continue the
Trust pursuant to the Business Trust Act for the purpose of, as described more
fully in Sections 3.3 and 3.4 hereof, (i) issuing and selling Preferred
Securities (as defined herein) representing preferred undivided beneficial
interests in the assets of the Trust for cash and investing the proceeds
thereof in Debentures (as hereinafter defined) of AES issued under the
Indenture (as hereinafter defined) to be held as assets of the Trust and (ii)
issuing and selling Common Securities (as defined herein) representing common
undivided beneficial interests in the assets of the Trust to AES in exchange
for cash and investing the proceeds thereof in additional Debentures issued
under the Indenture to be held as assets of the Trust; and
NOW, THEREFORE, it being the intention of the parties hereto
that the Trust constitute a business trust under the Business Trust Act, that
the Original Declaration be amended and restated in its entirety as provided
herein and that this Declaration constitute the governing instrument of such
business trust, the Trustees declare that all assets referred to in clauses
(i) and (ii) of the previous Whereas clause purchased by the Trust will be
held in trust for the benefit of the Holders (as defined herein) from time
to time, of the Certificates (as defined herein) representing undivided
beneficial interests in the assets of the Trust issued hereunder, subject
to the provisions of this Declaration.
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions.
(a) Capitalized terms used in this Declaration but not defined
in the preamble above have the respective meanings assigned to them in this
Section 1.1;
(b) a term defined anywhere in this Declaration has the same
meaning throughout;
(c) all references to "the Declaration" or "this Declaration"
are to this Amended and Restated Declaration of Trust (including Exhibits A, B
and C hereto (the "Exhibits")) as modified, supplemented or amended from time
to time;
(d) all references in this Declaration to Articles and
Sections and Exhibits are to Articles and Sections of and Exhibits to this
Declaration unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Declaration unless otherwise defined in this
Declaration or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice
versa.
"Affiliate" has the same meaning as given to that term in Rule
405 of the Securities Act or any successor rule thereunder.
"Book Entry Interest" means a beneficial interest in a Global
Certificate registered in the name of a Clearing Agency or a nominee thereof,
ownership and transfers of which shall be maintained and made through book
entries by such Clearing Agency as described in Section 9.4.
"Business Day" means any day other than a day on which banking
institutions in New York, New York are authorized or required by law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from
time to time.
"Certificate" means a Common Security Certificate or a
Preferred Security Certificate.
"Certificate of Trust" has the meaning set forth in the second
Whereas clause above.
"Clearing Agency" means an organization registered as a
"Clearing Agency" pursuant to Section 17A of the Exchange Act that is acting
as depository for the Preferred Securities and in whose name or in the name of
a nominee of that organization, shall be registered a Global Certificate and
which shall undertake to effect book entry transfers and pledges of the
Preferred Securities.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time the
Clearing Agency effects book entry transfers and pledges of securities
deposited with the Clearing Agency.
"Closing Date" means the Closing Date as specified in the
Underwriting Agreement, which date is also the date of execution and delivery
of this Declaration.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time, or any successor legislation. A reference to a specific section
((Sec.)) of the Code refers not only to such specific section but also to any
corresponding provision of any federal tax statute enacted after the date of
this Declaration, as such specific section or corresponding provision is in
effect on the date of application of the provisions of this Declaration
containing such reference.
"Commission" means the Securities and Exchange Commission.
"Common Security" has the meaning specified in Section 7.1(b).
"Common Security Certificate" means a definitive certificate in
fully registered form representing a Common Security substantially in the form
of Annex I to Exhibit C.
"Covered Person" means (i) any officer, director, shareholder,
partner, member, representative, employee or agent of the Trust or its
Affiliates, (ii) any officer, director, shareholder, employees,
representatives or agents of AES or its Affiliates and (iii) the Holders from
time to time of the Securities.
"Debenture Trustee" means [to come], as trustee under the
Indenture until a successor is appointed thereunder and thereafter means such
successor trustee.
"Debentures" means the series of Junior Subordinated Debentures
issued by AES under the Indenture to the Property Trustee and entitled the
"____% Junior Subordinated Debentures due [ ]".
"Definitive Preferred Security Certificates" has the meaning
set forth in Section 9.4.
"Delaware Trustee" has the meaning set forth in Section
5.1(a)(3).
"Depositary Agreement" means the agreement among the Trust, the
Property Trustee and DTC dated as of the Closing Date, as the same may be
amended or supplemented from time to time.
"Distribution" means a distribution payable to Holders of
Securities in accordance with Section 6.1.
"DTC" means The Depository Trust Company, the initial Clearing
Agency.
"Event of Default" in respect of the Securities means an
Indenture Event of Default has occurred and is continuing in respect of the
Debentures.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time or any successor legislation.
"Fiscal Year" has the meaning specified in Section 11.1.
"Global Certificate" has the meaning set forth in Section 9.4.
"Holder" means a Person in whose name a Certificate
representing a Security is registered, such Person being a beneficial owner
within the meaning of the Business Trust Act.
"Indemnified Person" means any Trustee, any Affiliate of any
Trustee, any officers, directors, shareholders, members, partners, employees,
representatives or agents of any Trustee, or any employee or agent of the
Trust or its Affiliates.
"Indenture" means the Junior Subordinated Indenture dated as of
_______ __, 199__ between AES and the Debenture Trustee as supplemented by the
[ ] Supplemental Indenture thereto dated as of ____________, 199__,
pursuant to which the Debentures are to be issued.
"Indenture Event of Default" means an event or condition
defined as an "Event of Default" with respect to the Debentures under Section
6.01(a) of the Indenture has occurred and is continuing.
"Investment Company" means an investment company as defined in
the Investment Company Act.
"Investment Company Act" means the Investment Company Act of
1940, as amended from time to time or any successor legislation.
"Legal Action" has the meaning specified in Section 3.8(g).
"Liquidation Distribution" has the meaning set forth in
Exhibits B and C hereto establishing the terms of the Securities.
"Majority in liquidation amount of the Securities" means,
except as otherwise required by the Trust Indenture Act and except as provided
in the penultimate paragraph of paragraph 5 of Exhibit B hereto, Holder(s) of
outstanding Securities voting together as a single class or, as the context
may require, Holder(s) of outstanding Preferred Securities or Common
Securities voting separately as a class, who are the record owners of a
relevant class of Securities whose liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus
accrued and unpaid Distributions to the date upon which the voting percentages
are determined) represents more than 50% of the liquidation amount of all
outstanding Securities of such class.
"Ministerial Action" has the meaning set forth in the terms of
the Securities as set forth in Exhibits B and C hereto.
"Option Closing Date" means the Option Closing Date as
specified in the Underwriting Agreement.
"Original Declaration" has the meaning set forth in the first
WHEREAS clause above.
"Paying Agent" has the meaning specified in Section 3.10(i).
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Guarantee" means the Guarantee Agreement dated as of
__________, 199__ of AES in respect of the Preferred Securities.
"Preferred Security" has the meaning specified in Section
7.1(b).
"Preferred Security Beneficial Owner" means, with respect to a
Book Entry Interest, a Person who is the beneficial owner of such Book Entry
Interest, as reflected on the books of the Clearing Agency, or on the books of
a Person maintaining an account with such Clearing Agency (directly as a
Clearing Agency Participant or as an indirect participant, in each case in
accordance with the rules of such Clearing Agency).
"Preferred Security Certificate" means a definitive certificate
in fully registered form representing a Preferred Security substantially in
the form of Annex I to Exhibit B.
"Property Trustee" means the Trustee meeting the eligibility
requirements set forth in Section 5.1(c) and having the duties set forth for
the Property Trustee herein.
"Property Account" has the meaning specified in Section
3.10(c)(i).
"Quorum" means a majority of the Regular Trustees or, if there
are only two Regular Trustees, both such Regular Trustees.
"Regular Trustee" means any Trustee other than the Property
Trustee and the Delaware Trustee.
"Related Party" means any direct or indirect wholly owned
subsidiary of AES or any other Person which owns, directly or indirectly, 100%
of the outstanding voting securities of AES.
"Resignation Request" has the meaning specified in Section
5.2(d).
"Responsible Officer" means, with respect to the Property
Trustee, the chairman of the board of directors, the president, any
vice-president, any assistant vice-president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, any trust officer or
assistant trust officer or any other officer of the Property Trustee
customarily performing functions similar to those performed by any of the
above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of that officer's knowledge of and familiarity with the particular
subject.
"Rule 3a-7" means Rule 3a-7 under the Investment Company Act or
any successor rule thereunder.
"Securities" means the Common Securities and the Preferred
Securities.
"Securities Act" means the Securities Act of 1933, as amended
from time to time or any successor legislation.
"66-2/3% in liquidation amount of the Securities" means, except
as otherwise required by the Trust Indenture Act and except as provided in the
penultimate paragraph of paragraph 5 of Exhibit B hereto, Holder(s) of
outstanding Securities voting together as a single class or, as the context
may require, Holder(s) of outstanding Preferred Securities or Common
Securities, voting separately as a class, who are the record owners of a
relevant class of Securities whose liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus
accrued and unpaid Distributions to the date upon which the voting percentages
are determined) represents 66-2/3% or more of the liquidation amount of all
outstanding Securities of such class.
"Special Event" has the meaning set forth in the terms of the
Securities as set forth in Exhibits B and C hereto.
"Sponsor" or "AES" means The AES Corporation, a Delaware
corporation, or any successor entity in a merger, in its capacity as sponsor
of the Trust.
"Successor Delaware Trustee" has the meaning specified in
Section 5.2(b)(ii).
"Successor Property Trustee" means a successor Trustee
possessing the qualifications to act as Property Trustee under Section 5.1(c).
"10% in liquidation amount of the Securities" means, except as
otherwise required by the Trust Indenture Act and except as provided in the
penultimate paragraph of paragraph 5 of Exhibit B hereto, Holder(s) of
outstanding Securities voting together as a single class or, as the context
may require, Holder(s) of outstanding Preferred Securities or Common
Securities, voting separately as a class, who are the record owners of a
relevant class of Securities whose liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus
accrued and unpaid Distributions to the date upon which the voting percentages
are determined) represents 10% or more of the liquidation amount of all
outstanding Securities of such class.
"Treasury Regulations" means the income tax regulations
including temporary and proposed regulations, promulgated under the Code by
the United States Treasury, as such regulations may be amended from time to
time (including corresponding provisions of succeeding regulations).
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with
the provisions hereof, and references herein to a Trustee or the Trustees
shall refer to such Person or Persons solely in their capacity as trustees
hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
["Underwriting Agreement" means the Underwriting Agreement
dated as of __________, 199__ among the Trust, the Sponsor and [to come]
Corporation, as representative of the several underwriters named therein.]
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the
Trust Indenture Act that are required to be part of this Declaration and
shall, to the extent applicable, be governed by such provisions;
(b) if and to the extent that any provision of this
Declaration limits, qualifies or conflicts with the duties imposed by Section
Section 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control;
(c) the Property Trustee, to the extent permitted by
applicable law and/or the rules and regulations of the Commission, shall be
the only Trustee which is a trustee for the purposes of the Trust Indenture
Act; and
(d) the application of the Trust Indenture Act to this
Declaration shall not affect the nature of the Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
SECTION 2.2 Lists of Holders of Preferred Securities.
(a) Each of the Sponsor and the Regular Trustees on behalf of
the Trust shall provide the Property Trustee with such information as is
required under Section 312(a) of the Trust Indenture Act at the times and in
the manner provided in Section 312(a); and
(b) the Property Trustee shall comply with its obligations
under Section Section 310(b), 311 and 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Property Trustee.
Within 60 days after May 15 of each year, the Property Trustee
shall provide to the Holders of the Securities such reports as are required by
Section 313 of the Trust Indenture Act, if any, in the form, in the manner
and at the times provided by Section 313 of the Trust Indenture Act. The
Property Trustee shall also comply with the requirements of Section 313(d) of
the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Property Trustee.
Each of the Sponsor and the Regular Trustees on behalf of the
Trust shall provide to the Property Trustee, the Commission and the Holders of
the Securities, as applicable, such documents, reports and information as
required by Section 314(a)(1)-(3) (if any) of the Trust Indenture Act and the
compliance certificates required by Section 314(a)(4) and (c) of the Trust
Indenture Act, any such certificates to be provided in the form, in the manner
and at the times required by Section 314(a)(4) and (c) of the Trust Indenture
Act (provided that any certificate to be provided pursuant to Section
314(a)(4) of the Trust Indenture Act shall be provided within 120 days of the
end of each Fiscal Year).
SECTION 2.5 Evidence of Compliance with
Conditions Precedent.
Each of the Sponsor and the Regular Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance with
any conditions precedent, if any, provided for in this Declaration which
relate to any of the matters set forth in Section 314(c) of the Trust
Indenture Act. Any certificate or opinion required to be given pursuant to
Section 314(c) shall comply with Section 314(e) of the Trust Indenture Act.
SECTION 2.6 Events of Default; Waiver.
(a) Subject to Section 2.6(c), Holders of Preferred Securities
may, by vote of at least a Majority in liquidation amount of the Preferred
Securities (A) in accordance with the terms of the Preferred Securities,
direct the time, method and place of conducting any proceeding for any remedy
available to the Property Trustee, or exercising any trust or power conferred
upon the Property Trustee, or (B) on behalf of the Holders of all Preferred
Securities, waive any past Event of Default in respect of the Preferred
Securities and its consequences; provided that if the Event of Default arises
out of an Indenture Event of Default:
(i) which is not waivable under the Indenture, the Event of
Default under this Declaration shall also be not waivable; or
(ii) which requires the consent or vote of (1) holders of
Debentures representing a specified percentage greater than a
majority in principal amount of the Debentures, or (2) each holder of
Debentures, the Event of Default under this Declaration may only be
waived by, in the case of clause (1) above, the vote of Holders of
Preferred Securities representing such specified percentage of the
aggregate liquidation amount of the Preferred Securities or, in the
case of clause (2) above, each Holder of Preferred Securities.
Upon such waiver, any such default shall cease to exist, and any Event of
Default with respect to the Preferred Securities arising therefrom shall be
deemed to have been cured for every purpose of this Declaration, but no such
waiver shall extend to any subsequent or other default or Event of Default
with respect to the Preferred Securities or impair any right consequent
thereon.
(b) Subject to Section 2.6(c), Holders of Common Securities
may by vote of at least a Majority in liquidation amount of the Common
Securities, (A) in accordance with the terms of the Common Securities, direct
the time, method and place of conducting any proceeding for any remedy
available to the Property Trustee or exercising any trust or power conferred
upon the Property Trustee or (B) on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, provided that, if the Event of Default arises
out of an Indenture Event of Default:
(i) which is not waivable under the Indenture, except where
the Holders of the Common Securities are deemed to have waived such
Event of Default under the Declaration as provided below, the Event
of Default under this Declaration shall also not be waivable; or
(ii) which requires the consent or vote of (1) holders of
Debentures representing a specified percentage greater than a
majority in principal amount of the Debentures or (2) each holder of
Debentures, except where the holders of the Common Securities are
deemed to have waived such Event of Default under this Declaration as
provided below, the Event of Default under this Declaration may only
be waived by, in the case of clause (1) above, the vote of Holders of
Common Securities representing such specified percentage of the
aggregate liquidation amount of the Common Securities or, in the case
of clause (2) above, each holder of Common Securities; and
provided, further, that each Holder of Common Securities will be deemed to
have waived any Event of Default with respect to the Common Securities and its
consequences until all Events of Default with respect to the Preferred
Securities have been cured, waived by the Holders of Preferred Securities as
provided in this Declaration or otherwise eliminated and until all Events of
Default with respect to the Preferred Securities have been so cured, waived or
otherwise eliminated, the Property Trustee will be deemed to be acting solely
on behalf of the Holders of the Preferred Securities and only the Holders of
the Preferred Securities will have the right to direct the Property Trustee in
accordance with the terms of this Declaration or the Securities. In the event
that any Event of Default with respect to the Preferred Securities is waived
by the Holders of Preferred Securities as provided in this Declaration, the
Holders of Common Securities agree that such waiver shall also constitute the
waiver of such Event of Default with respect to the Common Securities for all
purposes under this Declaration without any further act, vote or consent of
the Holders of the Common Securities. Subject to the foregoing provisions
of this Section 2.6(b), upon such waiver, any such default shall cease to
exist and any Event of Default with respect to the Common Securities
arising therefrom shall be deemed to have been cured for every purpose of
this Declaration, but no such waiver shall extend to any subsequent or
other default or Event of Default with respect to the Common Securities or
impair any right consequent thereon.
(c) The right of any Holder of Securities to receive payment
of Distributions on the Securities in accordance with this Declaration and the
terms of the Securities set forth in Exhibits B and C on or after the
respective payment dates therefor, or to institute suit for the enforcement of
any such payment on or after such payment dates, shall not be impaired without
the consent of such Holder.
(d) As provided in the terms of the Securities set forth in
Exhibits B and C hereto, a waiver of an Indenture Event of Default by the
Property Trustee at the written direction of the Holders of the Preferred
Securities constitutes a waiver of the corresponding Event of Default under
this Declaration in respect of the Securities.
SECTION 2.7 Disclosure of Information.
The disclosure of information as to the names and addresses of
the Holders of the Securities in accordance with Section 312 of the Trust
Indenture Act, regardless of the source from which such information was
derived, shall not be deemed to be a violation of any existing law, or any law
hereafter enacted which does not specifically refer to Section 312 of the
Trust Indenture Act, nor shall the Property Trustee be held accountable by
reason of mailing any material pursuant to a request made under Section
312(b) of the Trust Indenture Act.
ARTICLE III
ORGANIZATION
SECTION 3.1 Name.
The Trust continued by this Declaration is named "AES Trust [
]" as such name may be modified from time to time by the Regular Trustees
following written notice to the Holders of Securities. The Trust's activities
may be conducted under the name of the Trust or any other name deemed
advisable by the Regular Trustees.
SECTION 3.2 Office.
The address of the principal office of the Trust is c/o The AES
Corporation, 1001 North 19th Street, Arlington, Virginia 22209. Upon ten
days' written notice to the Holders, the Regular Trustees may change the
location of the Trust's principal office. The name of the registered agent
and office of the Trust in the State of Delaware is [The Corporation Trust
Company, 1209 Orange Street, Wilmington, Delaware 19801]. At any time, the
Regular Trustees may designate another registered agent and/or registered
office.
SECTION 3.3 Issuance of the Trust Securities.
On __________, 199_ the Sponsor, on behalf of the Trust and
pursuant to the Original Declaration, executed and delivered the Underwriting
Agreement. On the Closing Date and contemporaneously with the execution and
delivery of this Declaration, the Regular Trustees, on behalf of the Trust,
shall execute and deliver to (i) the underwriters named in the Underwriting
Agreement, a Global Certificate, registered in the name of the nominee of the
initial Clearing Agency as specified in Section 9.4, in an aggregate amount of
___________ Preferred Securities having an aggregate liquidation amount of
$__________, against receipt of the aggregate purchase price of such Preferred
Securities of $___________, and (ii) the Sponsor, Common Securities
Certificates, registered in the name of the Sponsor, in an aggregate amount of
________ Common Securities having an aggregate liquidation amount of
$____________, against receipt of the aggregate purchase price of such Common
Securities of $___________. In the event and to the extent the overallotment
option granted by the Trust pursuant to the Underwriting Agreement is
exercised by such underwriters, on the Option Closing Date the Regular
Trustees, on behalf of the Trust, shall execute and deliver to such
underwriters a Global Certificate, registered in the name of the nominee of
the initial Clearing Agency as specified in Section 9.4, in an aggregate
amount of up to ___________ Preferred Securities having an aggregate
liquidation amount of up to $___________, against receipt of the aggregate
purchase price of such Preferred Securities of up to $____________.
SECTION 3.4 Purchase of Debentures.
On the Closing Date and contemporaneously with the execution
and delivery of this Declaration, the Regular Trustees, on behalf of the
Trust, shall purchase from the Sponsor with the proceeds received by the Trust
from the sale of the Securities on such date pursuant to Section 3.3, at a
purchase price of 100% of the principal amount thereof, Debentures, registered
in the name of the Property Trustee and having an aggregate principal amount
equal to $___________, and, in satisfaction of the purchase price for such
Debentures, the Regular Trustee, on behalf of the Trust, shall deliver or
cause to be delivered to the Sponsor the sum of $___________. In the event
the overallotment option granted by the Trust with respect to the Preferred
Securities pursuant to the Underwriting Agreement is exercised by the
underwriters named therein, on the Option Closing Date the Regular Trustees,
on behalf of the Trust, shall purchase from the Sponsor with the proceeds
received by the Trust from the sale of the Preferred Securities on such date
pursuant to Section 3.3, at a purchase price of 100% of the principal amount
thereof, additional Debentures, registered in the name of the Property Trustee
and having an aggregate principal amount of up to $__________, and, in
satisfaction of the purchase price for such Debentures, the Regular Trustees,
on behalf of the Trust, shall deliver or cause to be delivered to the Sponsor
an amount equal to the aggregate principal amount of the Debentures being
purchased.
SECTION 3.5 Purpose.
The exclusive purposes and functions of the Trust are: (a)(i)
to issue and sell Preferred Securities for cash and use the proceeds of such
sales to acquire from AES Debentures issued under the Indenture having an
aggregate principal amount equal to the aggregate liquidation amount of the
Preferred Securities so issued and sold; (ii) to enter into such agreements
and arrangements as may be necessary in connection with the sale of Preferred
Securities to the initial purchasers thereof (including the Underwriting
Agreement) and to take all action, and exercise such discretion, as may be
necessary or desirable in connection therewith and to file such registration
statements or make such other filings under the Securities Act, the Exchange
Act or state securities or "Blue Sky" laws as may be necessary or desirable in
connection therewith and the issuance of the Preferred Securities; and (iii)
to issue and sell Common Securities to AES for cash and use the proceeds of
such sale to purchase as trust assets an equal aggregate principal amount of
Debentures issued under the Indenture; and (b) except as otherwise limited
herein, to engage in only those other activities necessary, convenient or
incidental thereto. The Trust shall not borrow money, issue debt or reinvest
proceeds derived from investments, pledge any of its assets or at any time
while the Securities are outstanding, otherwise undertake (or permit to be
undertaken) any activity that would result in or cause the Trust to be treated
as anything other than a grantor trust for United States federal income tax
purposes.
SECTION 3.6 Authority.
Subject to the limitations provided in this Declaration and to
the specific duties of the Property Trustee, the Regular Trustees shall have
exclusive and complete authority to carry out the purposes of the Trust. An
action taken by the Regular Trustees in accordance with their powers shall
constitute the act of and serve to bind the Trust and an action taken by the
Property Trustee in accordance with its powers shall constitute the act of and
serve to bind the Trust. In dealing with the Trustees acting on behalf of the
Trust, no Person shall be required to inquire into the authority of the
Trustees to bind the Trust. Persons dealing with the Trust are entitled to
rely conclusively on the power and authority of the Trustees as set forth in
this Declaration.
SECTION 3.7 Title to Property of the Trust.
Except as provided in Section 3.10 with respect to the
Debentures and the Property Account or unless otherwise provided in this
Declaration, legal title to all assets of the Trust shall be vested in the
Trust. The Holders shall not have legal title to any part of the assets of
the Trust, but shall have an individual undivided beneficial interest in the
assets of the Trust.
SECTION 3.8 Powers and Duties of the Regular Trustees.
The Regular Trustees shall have the exclusive power, authority
and duty to cause the Trust, and shall cause the Trust, to engage in the
following activities:
(a) to issue Preferred Securities and Common Securities, in
each case in accordance with this Declaration; provided, however, that the
Trust may issue no more than one series of Preferred Securities and no more
than one series of Common Securities, and, provided further, that there shall
be no interests in the Trust other than the Securities and the issuance of
Securities shall be limited to (x) a one-time, simultaneous issuance of both
Preferred Securities and Common Securities on the Closing Date and (y) any
subsequent issuance of Preferred Securities on the Option Closing Date
pursuant to an exercise of the over-allotment option granted to underwriters
in the Underwriting Agreement;
(b) in connection with the issuance of the Preferred
Securities, at the direction of the Sponsor, to effect or cause to be effected
the filings, and to execute or cause to be executed, the documents, set forth
in Section 3.13 and to execute, deliver and perform on behalf of the Trust the
Depositary Agreement;
(c) to acquire as trust assets Debentures with the proceeds of
the sale of the Preferred Securities and Common Securities; provided, however,
that the Regular Trustees shall cause legal title to all of the Debentures to
be vested in, and the Debentures to be held of record in the name of, the
Property Trustee for the benefit of the Holders of the Preferred Securities
and the Common Securities;
(d) to cause the Trust to enter into the Underwriting
Agreement and such other agreements and arrangements as may be necessary or
desirable in connection with the sale of Preferred Securities to the initial
purchasers thereof and the consummation thereof, and to take all action, and
exercise all discretion, as may be necessary or desirable in connection with
the consummation thereof;
(e) to give the Sponsor and the Property Trustee prompt
written notice of the occurrence of a Special Event; provided, that the
Regular Trustees shall consult with the Sponsor and the Property Trustee
before taking or refraining to take any Ministerial Action in relation to a
Special Event;
(f) to establish a record date with respect to all actions to
be taken hereunder that require a record date be established, including for
the purposes of Section 316(c) of the Trust Indenture Act and with respect to
Distributions, voting rights, redemptions, and exchanges, and to issue
relevant notices to Holders of the Preferred Securities and Common Securities
as to such actions and applicable record dates;
(g) to bring or defend, pay, collect, compromise, arbitrate,
resort to legal action or otherwise adjust claims or demands of or against the
Trust ("Legal Action"), unless pursuant to Section 3.10(e), the Property
Trustee has the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who
may be designated as officers with titles) and managers, contractors, advisors
and consultants and pay reasonable compensation for such services;
(i) to cause the Trust to comply with the Trust's obligations
under the Trust Indenture Act;
(j) to give the certificate to the Property Trustee required
by Section 314(a)(4) of the Trust Indenture Act, which certificate may be
executed by any Regular Trustee;
(k) to incur expenses which are necessary or incidental to
carrying out any of the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar
and transfer agent for the Securities, the Regular Trustees hereby initially
appointing the Property Trustee for such purposes;
(m) to take all actions and perform such duties as may be
required of the Regular Trustee pursuant to the terms of the Securities set
forth in Exhibits B and C hereto;
(n) to execute all documents or instruments, perform all
duties and powers and do all things for and on behalf of the Trust in all
matters necessary or incidental to the foregoing;
(o) to take all action which may be necessary or appropriate
for the preservation and the continuation of the Trust's valid existence,
rights, franchises and privileges as a statutory business trust under the laws
of the State of Delaware and of each other jurisdiction in which such
existence is necessary to protect the limited liability of the Holders of the
Securities or to enable the Trust to effect the purposes for which the Trust
has been created;
(p) to take all action, not inconsistent with this
Declaration or with applicable law, which the Regular Trustees determine in
their discretion to be reasonable and necessary or desirable in carrying out
the activities of the Trust as set out in this Section 3.8, in order that:
(i) the Trust will not be deemed to be an Investment Company
required to be registered under the Investment Company Act;
(ii) the Trust will not be classified for United States
federal income tax purposes as an association taxable as a
corporation or a partnership and will be treated as a grantor trust
for United States federal income tax purposes; and
(iii) the Trust will comply with any requirements imposed by
any taxing authority on holders of instruments treated as
indebtedness for United States federal income tax purposes;
provided that such action does not adversely affect the interests of Holders;
(q) to take all action necessary to cause all applicable tax
returns and tax information reports that are required to be filed with respect
to the Trust to be duly prepared and filed by the Regular Trustees, on behalf
of the Trust; and
(r) subject to the requirements of Rule 3a-7 and Section
317(b) of the Trust Indenture Act, to appoint one or more Paying Agents in
addition to the Property Trustee.
The Regular Trustees must exercise the powers set forth in this
Section 3.8 in a manner which is consistent with the purposes and functions of
the Trust set out in Section 3.5 and the Regular Trustees shall not take any
action which is inconsistent with the purposes and functions of the Trust set
forth in Section 3.5.
Subject to this Section 3.8, the Regular Trustees shall have
none of the powers nor any of the authority of the Property Trustee set forth
in Section 3.10.
SECTION 3.9 Prohibition of Actions by Trust and Trustees.
The Trust shall not, and the Trustees (including the Property
Trustee) shall cause the Trust not to, engage in any activity other than as
required or authorized by this Declaration. In particular, the Trust shall
not and the Trustees (including the Property Trustee) shall not:
(a) invest any proceeds received by the Trust from holding
the Debentures but shall promptly distribute all such proceeds to Holders of
Securities pursuant to the terms of this Declaration and of the Securities;
(b) acquire any assets other than as expressly provided
herein;
(c) possess Trust property for other than a Trust purpose;
(d) make any loans, other than loans represented by the
Debentures;
(e) possess any power or otherwise act in such a way as to
vary the Trust assets or the terms of the Securities in any way whatsoever;
(f) issue any securities or other evidences of beneficial
ownership of, or beneficial interests in, the Trust other than the Securities;
(g) incur any indebtedness for borrowed money; or
(h) (i) direct the time, method and place of exercising any
trust or power conferred upon the Debenture Trustee with respect to the
Debentures, (ii) waive any past default that is waivable under Section 6.06 of
the Indenture, (iii) exercise any right to rescind or annul any declaration
that the principal of all of the Debentures shall be due and payable or (iv)
consent to any amendment, modification or termination of the Indenture or the
Debentures, where such consent shall be required, unless in the case of this
clause (h) the Property Trustee shall have received an unqualified opinion of
nationally recognized independent tax counsel recognized as expert in such
matters to the effect that such action will not cause the Trust to be
classified for United States federal income tax purposes as an association
taxable as a corporation or partnership and that the Trust will continue to be
classified as a grantor trust for United States federal income tax purposes.
SECTION 3.10 Powers and Duties of the Property Trustee.
(a) The legal title to the Debentures shall be owned by and
held of record in the name of the Property Trustee in trust for the benefit of
the Holders of the Securities. The right, title and interest of the Property
Trustee to the Debentures shall vest automatically in each Person who may
hereafter be appointed as Property Trustee in accordance with Article V. Such
vesting and cessation of title shall be effective whether or not conveyancing
documents have been executed and delivered.
(b) The Property Trustee shall not transfer its right, title
and interest in the Debentures to the Regular Trustees or, if the Property
Trustee does not also act as the Delaware Trustee, the Delaware Trustee.
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest bearing
bank account (the "Property Account") in the name of and under the
exclusive control of the Property Trustee on behalf of the Holders of
the Securities and on the receipt of payments of funds made in
respect of the Debentures held by the Property Trustee, deposit such
funds into the Property Account and, without any further acts of the
Property Trustee or the Regular Trustees, promptly make payments to
the Holders of the Preferred Securities and Common Securities from
the Property Account in accordance with Section 6.1. Funds in the
Property Account shall be held uninvested, and without liability for
interest thereon, until disbursed in accordance with this
Declaration. The Property Account shall be an account which is
maintained with a banking institution whose long term unsecured
indebtedness is rated by a "nationally recognized statistical rating
organization", as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act, at least equal to (but in no event less
than "A" or the equivalent) the rating assigned to the Preferred
Securities by a nationally recognized statistical rating
organization;
(ii) engage in such ministerial activities as shall be
necessary or appropriate to effect promptly the redemption of the
Preferred Securities and the Common Securities to the extent the
Debentures are redeemed or mature;
(iii) upon notice of distribution issued by the Regular
Trustees in accordance with the terms of the Preferred Securities and
the Common Securities, engage in such ministerial activities as shall
be necessary or appropriate to effect promptly the distribution
pursuant to terms of the Securities of Debentures to Holders of
Securities upon the occurrence of a Special Event; and
(iv) have the legal power to exercise all of the rights,
powers and privileges of a holder of the Debentures under the
Indenture and, if an Event of Default occurs and is continuing, the
Property Trustee, subject to Section 2.6(b), shall for the benefit of
the Holders of the Securities, enforce its rights as holder of the
Debentures under the Indenture, subject to the rights of the Holders
of the Preferred Securities pursuant to the terms of this
Declaration, the Business Trust Act and the Trust Indenture Act.
(d) The Property Trustee shall take all actions and perform
such duties as may be specifically required of the Property Trustee pursuant
to the terms of the Securities set forth in Exhibits B and C hereto.
(e) The Property Trustee shall take any Legal Action which
arises out of or in connection with an Event of Default or the Property
Trustee's duties and obligations under this Declaration, the Business Trust
Act or the Trust Indenture Act.
(f) All moneys deposited in the Property Account, and all
Debentures held by the Property Trustee for the benefit of the Holders of the
Securities will not be subject to any right, charge, security interest, lien
or claim of any kind in favor of, or for the benefit of the Property Trustee
or its agents or their creditors.
(g) The Property Trustee shall, within 90 days after the
occurrence of a default with respect to the Securities, transmit by mail,
first class postage prepaid, to the holders of the Securities, as their names
and addresses appear upon the register, notice of all defaults with respect to
the Securities known to the Property Trustee, unless such defaults shall have
been cured before the giving of such notice (the term "defaults" for the
purposes of this Section 3.10(g) being hereby defined to be an Indenture Event
of Default, not including any periods of grace provided for in the Indenture
and irrespective of the giving of any notice provided therein); provided,
that, except in the case of default in the payment of the principal of (or
premium, if any) or interest on any of the Debentures, the Property Trustee
shall be protected in withholding such notice if and so long as the board
of directors, the executive committee or a trust committee of directors
and/or Responsible Officers, of the Property Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders of the Securities. The Property Trustee shall not be deemed to
have knowledge of any default, except (i) a default in the payment of
principal, premium or interest on the Debentures or (ii) any default as to
which the Property Trustee shall have received written notice or a
Responsible Officer charged with the administration of this Declaration
shall have obtained written notice.
(h) The Property Trustee shall not resign as a Trustee unless
either:
(i) the Trust has been completely liquidated and the proceeds
thereof distributed to the Holders of Securities pursuant to the
terms of the Securities; or
(ii) a Successor Property Trustee has been appointed and
accepted that appointment in accordance with Article V.
(i) The Property Trustee shall act as paying agent in respect
of the Common Securities and, if the Preferred Securities are not in book
entry only form, the Preferred Securities and, subject to Section 3.8(r), may
authorize one or more Persons (each, a "Paying Agent") to pay Distributions,
redemption payments or liquidation payments on behalf of the Trust with
respect to the Preferred Securities. Any such Paying Agent shall comply with
Section 317(b) of the Trust Indenture Act. Any Paying Agent may be removed
by the Property Trustee, after consultation with the Regular Trustees, at any
time and a successor Paying Agent or additional Paying Agents may be appointed
at any time by the Property Trustee, subject to Section 3.8(r).
(j) The Property Trustee shall give prompt written notice to
the Holders of the Securities of any notice received by it from AES of its
election to defer payments of interest on the Debentures by extending the
interest payment period with respect thereto.
(k) Subject to this Section 3.10, the Property Trustee shall
have none of the powers or the authority of the Regular Trustees set forth in
Section 3.8.
(l) The Property Trustee shall exercise the powers, duties and
rights set forth in this Section 3.10 and Section 3.12 in a manner which is
consistent with the purposes and functions of the Trust set out in Section
3.5, and the Property Trustee shall not take any action which is
inconsistent with the purposes and functions of the Trust set forth in
Section 3.5.
SECTION 3.11 Delaware Trustee.
Notwithstanding any other provision of this Declaration other
than Section 5.1(a)(3), the Delaware Trustee shall not be entitled to exercise
any powers, nor shall the Delaware Trustee have any of the duties and
responsibilities of the Regular Trustees and the Property Trustee described in
this Declaration. Except as set forth in Section 5.1(a)(3), the Delaware
Trustee shall be a Trustee for the sole and limited purpose of fulfilling the
requirements of Section 3807 of the Business Trust Act. No implied covenants
or obligations shall be read into this Declaration against the Delaware
Trustee.
SECTION 3.12 Certain Rights and Duties of the Property Trustee.
(a) The Property Trustee, before the occurrence of an Event of
Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Declaration, and no implied covenants shall be read into this Declaration
against the Property Trustee. In case an Event of Default has occurred (that
has not been cured or waived pursuant to Section 2.6), the Property Trustee
shall exercise such of the rights and powers vested in it by this Declaration,
and use the same degree of care and skill in their exercise, as a prudent
person would exercise or use under the circumstances in the conduct of his or
her own affairs.
(b) No provision of this Declaration shall be construed to
relieve the Property Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Property Trustee shall
be determined solely by the express provisions of this
Declaration, and the Property Trustee shall not be liable
except for the performance of such duties and obligations
as are specifically set forth in this Declaration, and no
implied covenants or obligations shall be read into this
Declaration against the Property Trustee; and
(B) in the absence of bad faith on the part of the Property
Trustee, the Property Trustee may conclusively rely, as
to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or
opinions furnished to the Property Trustee and conforming
to the requirements of this Declaration; but in the case
of any such certificates or opinions that by any
provision hereof are specifically required to be
furnished to the Property Trustee, the Property Trustee
shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this
Declaration;
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders as provided herein
relating to the time, method and place of conducting any proceeding
for any remedy available to the Property Trustee hereunder or under
the Indenture, or exercising any trust or power conferred upon the
Property Trustee under this Declaration; and
(iv) no provision of this Declaration shall require the Property
Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if it shall have reasonable
ground for believing that the repayment of such funds or liability is
not reasonably assured to it under the terms of this Declaration or
adequate indemnity against such risk or liability is not reasonably
assured to it.
(c) Subject to the provisions of Section 3.12(a) and (b):
(i) whenever in the administration of this Declaration, the
Property Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Property Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part
and, if the Trust is excluded from the definition of Investment
Company solely by means of Rule 3a-7, subject to the requirements of
Rule 3a-7, request and rely upon a certificate, which shall comply
with the provisions of Section 314(e) of the Trust Indenture Act,
signed by any two of the Regular Trustees or by an authorized officer
of the Sponsor, as the case may be;
(ii) The Property Trustee (A) may consult with counsel (which
may be counsel to the Sponsor or any of its Affiliates and may
include any of its employees) selected by it in good faith and with
due care and the written advice or opinion of such counsel with
respect to legal matters shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon and in accordance
with such advice and opinion and (B) shall have the right at any
time to seek instructions concerning the administration of this
Declaration from any court of competent jurisdiction;
(iii) The Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or
by or through agents or attorneys and the Property Trustee shall not
be responsible for any misconduct or negligence on the part of any
agent or attorney appointed by it in good faith and with due care;
(iv) The Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Declaration
at the request or direction of any Holders, unless such Holders shall
have offered to the Property Trustee reasonable security and
indemnity against the costs, expenses (including attorneys' fees and
expenses) and liabilities that might be incurred by it in complying
with such request or direction; provided that nothing contained in
this clause (iv) shall relieve the Property Trustee of the
obligation, upon the occurrence of an Event of Default (which has not
been cured or waived) to exercise such of the rights and powers
vested in it by this Declaration, and to use the same degree of care
and skill in this exercise, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs; and
(v) Any action taken by the Property Trustee or its agents
hereunder shall bind the Holders of the Securities and the signature
of the Property Trustee or its agents alone shall be sufficient and
effective to perform any such action; and no third party shall be
required to inquire as to the authority of the Property Trustee to so
act, or as to its compliance with any of the terms and provisions of
this Declaration, both of which shall be conclusively evidenced by
the Property Trustee's or its agent's taking such action.
SECTION 3.13 Registration Statement and Related Matters.
In accordance with the Original Declaration, AES and the
Trustees have authorized and directed, and hereby confirm the authorization
of, AES, as the sponsor of the Trust, (i) to file with the Commission and
execute, in each case on behalf of the Trust, (a) the Registration Statement
on Form S-3 (File No. 333-07657) (the "1933 Act Registration Statement")
including any amendments thereto and any further pre-effective or
post-effective amendments to such Registration Statement, relating to the
registration under the Securities Act of the Preferred Securities of the Trust
and (b) a Registration Statement on Form 8-A or other appropriate form (the
"1934 Act Registration Statement") (including all pre-effective and
post-effective amendments thereto) relating to the registration of the
Preferred Securities of the Trust under Section 12(b) of the Exchange Act;
(ii) to file with the New York Stock Exchange and execute on behalf of the
Trust a listing application and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on the New York Stock
Exchange; (iii) to file and execute on behalf of the Trust such applications,
reports, surety bonds, irrevocable consents, appointments of attorney for
service of process and other papers and documents as shall be necessary or
desirable to register the Preferred Securities under the securities or "Blue
Sky" laws of such jurisdictions as AES on behalf of the Trust, may deem
necessary or desirable and (iv) to execute on behalf of the Trust the
Underwriting Agreement. In the event that any filing referred to in clauses
(i)-(iii) above is required by the rules and regulations of the Commission,
the New York Stock Exchange or state securities or blue sky laws, to be
executed on behalf of the Trust by the Trustees, the Regular Trustees, in
their capacities as Trustees of the Trust, are hereby authorized and directed
to join in any such filing and to execute on behalf of the Trust any and all
of the foregoing, it being understood that the Property Trustee and the
Delaware Trustee, in their capacities as Trustees of the Trust, shall not be
required to join in any such filing or execute on behalf of the Trust any such
document unless required by the rules and regulations of the Commission, the
New York Stock Exchange or state securities or blue sky laws. In connection
with all of the foregoing, AES and each Trustee, solely in its capacity as
Trustee of the Trust, have constituted and appointed, and hereby confirm the
appointment of, [to come] and each of them, as his, her or its, as the case
may be, true and lawful attorneys-in-fact, and agents, with full power of
substitution and resubstitution, for AES or such Trustee or in AES's or such
Trustee's name, place and stead, in any and all capacities, to sign any and
all amendments (including post-effective amendments) to the 1933 Act
Registration Statement and the 1934 Act Registration Statement and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Commission, granting unto said attorneys-in-fact and agents full
power and authority to do and perform each and every act and thing requisite
and necessary to be done in connection therewith, as fully to all intents and
purposes as AES or such Trustee might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents or any of them, or
their or his or her substitute or substitutes, shall do or cause to be done by
virtue hereof.
SECTION 3.14 Filing of Amendments to Certificate of Trust.
The Certificate of Trust as filed with the Secretary of State
of the State of Delaware on June 19, 1996 is attached hereto as Exhibit A. On
or after the date of execution of this Declaration, the Trustees shall cause
the filing with the Secretary of State of the State of Delaware of such
amendments to the Certificate of Trust as the Trustees shall deem necessary or
desirable.
SECTION 3.15 Execution of Documents by Regular Trustees.
Unless otherwise determined by the Regular Trustees and except
as otherwise required by the Business Trust Act with respect to the
Certificate of Trust or otherwise, a majority of, or if there are only two,
both of, the Regular Trustees are authorized to execute and deliver on behalf
of the Trust any documents which the Regular Trustees have the power and
authority to execute or deliver pursuant to this Declaration.
SECTION 3.16 Trustees Not Responsible for Recitals or
Issuance of Securities.
The recitals contained in this Declaration and the Securities
shall be taken as the statements of the Sponsor and the Trustees do not assume
any responsibility for their correctness. The Trustees make no
representations as to the value or condition of the property of the Trust or
any part thereof. The Trustees make no representations as to the validity or
sufficiency of this Declaration or the Securities.
SECTION 3.17 Duration of Trust.
The Trust, absent termination pursuant to the provisions of
Article VIII hereof, shall have existence until ___________, 204_.
ARTICLE IV
SPONSOR
SECTION 4.1 Purchase of Common Securities by Sponsor.
On the Closing Date the Sponsor will purchase all of the Common
Securities issued by the Trust at the same time as the Preferred Securities to
be issued on such date are issued, such purchase to be in an amount equal to
3% of the total capital of the Trust (including for this purpose the maximum
amount of Preferred Securities, if any, which may be issued on the Option
Closing Date pursuant to the exercise of the overallotment option set forth in
the Underwriting Agreement).
SECTION 4.2 Expenses.
(a) In connection with the purchase of the Debentures by the
Trust, the Sponsor, in its capacity as Sponsor and not as a Holder, shall be
responsible for and shall pay for all debts and obligations (other than with
respect to the Securities) and all costs and expenses of the Trust (including,
but not limited to, costs and expenses relating to the organization of the
Trust, the issuance of the Preferred Securities to initial purchasers thereof,
the fees and expenses (including reasonable counsel fees and expenses) of the
Trustees (including any amounts payable under Article X), the costs and
expenses relating to the operation of the Trust, including without limitation,
costs and expenses of accountants, attorneys, statistical or bookkeeping
services, expenses for printing and engraving and computing or accounting
equipment, paying agent(s), registrar(s), transfer agent(s), duplicating,
travel and telephone and other telecommunications expenses and costs and
expenses incurred in connection with the disposition of Trust assets).
(b) In connection with the purchase of the Debentures by the
Trust, the Sponsor, in its capacity as Sponsor and not as a Holder, will pay
any and all taxes (other than United States withholding taxes attributable to
the Trust or its assets) and all liabilities, costs and expenses with respect
to such taxes of the Trust.
(c) The Sponsor's obligations under this Section 4.2 shall be
for the benefit of, and shall be enforceable by, any Person to whom any such
debts, obligations, costs, expenses and taxes are owed (a "Creditor") whether
or not such Creditor has received notice hereof. Any such Creditor may
enforce the Sponsor's obligations under this Section 4.2 directly against the
Sponsor and the Sponsor irrevocably waives any right or remedy to require that
any such Creditor take any action against the Trust or any other Person before
proceeding against the Sponsor. The Sponsor agrees to execute such additional
agreements as may be necessary or desirable in order to give full effect to
the provisions of this Section 4.2.
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees; Qualifications.
(a) The number of Trustees initially shall be five (5). At
any time (i) before the issuance of the Securities, the Sponsor may, by
written instrument, increase or decrease the number of, and appoint, remove
and replace the, Trustees, and (ii) after the issuance of the Securities the
number of Trustees may be increased or decreased solely by, and Trustees may
be appointed, removed or replaced solely by, vote of Holders of Common
Securities representing a Majority in liquidation amount of the Common
Securities voting as a class; provided that in any case:
(1) the number of Trustees shall be at least five (5)
unless the Trustee that acts as the Property Trustee also acts
as the Delaware Trustee, in which cases the number of Trustees
shall be at least three (3);
(2) at least a majority of the Trustees shall at all
times be officers, directors or employees of AES;
(3) if required by the Business Trust Act, one Trustee
(the "Delaware Trustee") shall be either a natural person who
is a resident of the State of Delaware or, if not a natural
person, an entity which has its principal place of business in
the State of Delaware and otherwise is permitted to act as a
Trustee hereunder under the laws of the State of Delaware,
except that if the Property Trustee has its principal place of
business in the State of Delaware and otherwise is permitted to
act as a Trustee hereunder under the laws of the State of
Delaware, then the Property Trustee shall also be the Delaware
Trustee and Section 3.9 shall have no application; and
(4) there shall at all times be a Property Trustee
hereunder which shall satisfy the requirements of Section
5.1(c).
Each Trustee shall be either a natural person at least 21 years of age or a
legal entity which shall act through one or more duly appointed
representatives.
(b) The initial Regular Trustees shall be:
[to come]
c/o THE AES CORPORATION
1001 North 19th Street
Arlington, Virginia 22209
(c) There shall at all times be one Trustee which shall act as
Property Trustee. In order to act as Property Trustee hereunder, such Trustee
shall:
(i) not be an Affiliate of the Sponsor;
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory
thereof or of the District of Columbia, or a corporation or Person
permitted by the Commission to act as an institutional trustee under
the Trust Indenture Act, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at
least $50,000,000, and subject to supervision or examination by
Federal, State, Territorial or District of Columbia authority. If
such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the supervising or
examining authority referred to above, then for the purposes of this
Section 5.1(c)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published; and
(iii) if the Trust is excluded from the definition of an
Investment Company solely by reason of Rule 3a-7 and to the extent
Rule 3a-7 requires a trustee having certain qualifications to hold
title to the "eligible assets" (as defined in Rule 3a-7) of the
Trust, the Property Trustee shall possess those qualifications.
If at any time the Property Trustee shall cease to satisfy the
requirements of clauses (i)-(iii) above, the Property Trustee shall
immediately resign in the manner and with the effect set out in Section
5.2(d). If the Property Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act,
the Property Trustee and the Holders of the Common Securities (as if such
Holders were the obligor referred to in Section 310(b) of the Trust Indenture
Act) shall in all respects comply with the provisions of Section 310(b) of
the Trust Indenture Act. The Preferred Guarantee shall be deemed to be
specifically described in this Declaration for the purposes of clause (i) of
the first proviso contained in Section 310(b) of the Trust Indenture Act.
The initial Trustee which shall serve as the Property Trustee
is The Bank of New York, a New York banking corporation, whose address is as
set forth in Section 14.1(b).
(d) The initial Trustee which shall serve as the Delaware
Trustee is [to come], Delaware banking corporation, whose address is as set
forth in Section 14.1(c).
(e) Any action taken by Holders of Common Securities pursuant
to this Article V shall be taken at a meeting of Holders of Common Securities
convened for such purpose or by written consent as provided in Section 12.2.
(f) No amendment may be made to this Section 5.1 which would
change any rights with respect to the number, existence or appointment and
removal of Trustees, except with the consent of each Holder of Common
Securities.
SECTION 5.2 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 5.2(b), Trustees may be appointed or removed
without cause at any time:
(i) until the issuance of the Securities, by written instrument
executed by the Sponsor; and
(ii) after the issuance of the Securities by vote of the Holders of
a Majority in liquidation amount of the Common Securities
voting as a class.
(b) (i) The Trustee that acts as Property Trustee shall not be removed
in accordance with Section 5.2(a) until a Successor Property
Trustee possessing the qualifications to act as Property
Trustee under Section 5.1(c) has been appointed and has
accepted such appointment by written instrument executed by
such Successor Property Trustee and delivered to the Regular
Trustees, the Sponsor and the Property Trustee being
removed; and
(ii) the Trustee that acts as Delaware Trustee shall not be removed
in accordance with Section 5.2(a) until a successor Trustee
possessing the qualifications to act as Delaware Trustee under
Section 5.1(a)(3) (a "Successor Delaware Trustee") has been
appointed and has accepted such appointment by written
instrument executed by such Successor Delaware Trustee and
delivered to the Regular Trustees, the Sponsor and the Delaware
Trustee being removed.
(c) A Trustee appointed to office shall hold office until his successor
shall have been appointed or until his death, removal or resignation.
(d) Any Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument (a "Resignation Request") in
writing signed by the Trustee and delivered to the Sponsor and the
Trust, which resignation shall take effect upon such delivery or upon
such later date as is specified therein; provided, however, that:
(i) no such resignation of the Trustee that acts as the
Property Trustee shall be effective until:
(A) a Successor Property Trustee possessing the
qualifications to act as Property Trustee
under Section 5.1(c) has been appointed and
has accepted such appointment by instrument
executed by such Successor Property Trustee
and delivered to the Trust, the Sponsor and
the resigning Property Trustee; or
(B) if the Trust is excluded from the definition
of an Investment Company solely by reason of
Rule 3a-7, until the assets of the Trust have
been completely liquidated and the proceeds
thereof distributed to the Holders of the
Securities; and
(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor
Delaware Trustee has been appointed and has accepted
such appointment by instrument executed by such
Successor Delaware Trustee and delivered to the Trust,
the Sponsor and the resigning Delaware Trustee.
(e) If no Successor Property Trustee or Successor Delaware Trustee shall
have been appointed and accepted appointment as provided in this
Section 5.2 within 60 days after delivery to the Sponsor and the
Trust of a Resignation Request, the resigning Property Trustee or
Delaware Trustee may petition any court of competent jurisdiction for
appointment of a Successor Property Trustee or Successor Delaware
Trustee. Such court may thereupon after such notice, if any, as it
may deem proper and prescribe, appoint a Successor Property Trustee
or Successor Delaware Trustee, as the case may be.
SECTION 5.3 Vacancies Among Trustees.
If a Trustee ceases to hold office for any reason and the
number of Trustees is not reduced pursuant to Section 5.1 or if the number of
Trustees is increased pursuant to Section 5.1, a vacancy shall occur. A
resolution certifying the existence of such vacancy by a majority of the
Regular Trustees shall be conclusive evidence of the existence of such
vacancy. The vacancy shall be filled with a Trustee appointed in accordance
with the requirements of this Article V.
SECTION 5.4 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy,
dissolution, liquidation, incompetence or incapacity to perform the duties of
a Trustee, or any one of them, shall not operate to annul the Trust. Whenever
a vacancy in the number of Regular Trustees shall occur until such vacancy is
filled as provided in this Article V, the Regular Trustees in office,
regardless of their number, shall have all the powers granted to the Regular
Trustees and shall discharge all the duties imposed upon the Regular Trustees
by this Declaration.
SECTION 5.5 Meetings.
Meetings of the Regular Trustees shall be held from time to
time upon the call of any Trustee. Regular meetings of the Regular Trustees
may be held at a time and place fixed by resolution of the Regular Trustees.
Notice of any in-person meeting of the Regular Trustees shall be hand
delivered or otherwise delivered in writing (including by facsimile, with a
hard copy by overnight courier) not less than 48 hours before such meeting.
Notice of any telephonic meeting of the Regular Trustees or any committee
thereof shall be hand delivered or otherwise delivered in writing (including
by facsimile, with a hard copy by overnight courier) not less than 24 hours
before such meeting. Notices shall contain a brief statement of the time,
place and anticipated purposes of the meeting. The presence (whether in
person or by telephone) of a Regular Trustee at a meeting shall constitute a
waiver of notice of such meeting except where a Regular Trustee attends a
meeting for the express purpose of objecting to the transaction of any
activity on the ground that the meeting has not been lawfully called or
convened. Unless provided otherwise in this Declaration, any action of the
Regular Trustees may be taken at a meeting by vote of a majority of the
Regular Trustees present (whether in person or by telephone) and eligible to
vote with respect to such matter; provided that a Quorum is present, or
without a meeting by the unanimous written consent of the Regular Trustees.
SECTION 5.6 Delegation of Power.
(a) Any Regular Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21
his or her power for the purpose of executing any registration statement or
amendment thereto or other document or schedule filed with the Commission or
making any other governmental filing (including, without limitation to filings
referred to in Section 3.13).
(b) The Regular Trustees shall have power to delegate from
time to time to such of their number or to officers of the Trust the doing of
such things and the execution of such instruments either in the name of the
Trust or the names of the Regular Trustees or otherwise as the Regular
Trustees may deem expedient, to the extent such delegation is not prohibited
by applicable law or contrary to the provisions of the Trust, as set forth
herein.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions.
Holders shall receive periodic distributions, redemption
payments and liquidation distributions in accordance with the applicable terms
of the relevant Holder's Securities ("Distributions"). Distributions shall
be made to the Holders of Preferred Securities and Common Securities in
accordance with the terms of the Securities as set forth in Exhibits B and C
hereto. If and to the extent that AES makes a payment of interest (including
Compounded Interest (as defined in the Indenture)), premium and principal on
the Debentures held by the Property Trustee (the amount of any such payment
being a "Payment Amount"), the Property Trustee shall and is directed to
promptly make a Distribution of the Payment Amount to Holders in accordance
with the terms of the Securities as set forth in Exhibits B and C hereto.
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.
(a) The Regular Trustees shall issue on behalf of the Trust
securities in fully registered form representing undivided beneficial
interests in the assets of the Trust in accordance with Section 7.1(b) and for
the consideration specified in Section 3.3.
(b) The Regular Trustees shall issue on behalf of the Trust
one class of preferred securities representing undivided beneficial interests
in the assets of the Trust having such terms as are set forth in Exhibit B
(the "Preferred Securities") which terms are incorporated by reference in,
and made a part of, this Declaration as if specifically set forth herein, and
one class of common securities representing undivided beneficial interests in
the assets of the Trust having such terms as are set forth in Exhibit C (the
"Common Securities") which terms are incorporated by reference in, and made a
part of, this Declaration as if specifically set forth herein. The Trust
shall have no securities or other interests in the assets of the Trust other
than the Preferred Securities and the Common Securities.
(c) The Certificates shall be signed on behalf of the Trust by
the Regular Trustees (or if there are more than two Regular Trustees by any
two of the Regular Trustees). Such signatures may be the manual or facsimile
signatures of the present or any future Regular Trustee. Typographical and
other minor errors or defects in any such reproduction of any such signature
shall not affect the validity of any Certificate. In case any Regular Trustee
of the Trust who shall have signed any of the Certificates shall cease to be
such Regular Trustee before the Certificate so signed shall be delivered by
the Trust, such Certificate nevertheless may be delivered as though the person
who signed such Certificate had not ceased to be such Regular Trustee; and any
Certificate may be signed on behalf of the Trust by such persons as, at the
actual date of the execution of such Certificate, shall be the Regular
Trustees of the Trust, although at the date of the execution and delivery of
the Declaration any such person was not such a Regular Trustee. Certificates
shall be printed, lithographed or engraved or may be produced in any other
manner as is reasonably acceptable to the Regular Trustees, as evidenced by
their execution thereof, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements as the Regular
Trustees may deem appropriate, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which Securities may be listed, or to
conform to usage. Pending the preparation of definitive Certificates, the
Regular Trustees on behalf of the Trust may execute temporary Certificates
(printed, lithographed or typewritten), in substantially the form of the
definitive Certificates in lieu of which they are issued, but with such
omissions, insertions and variations as may be appropriate for temporary
Certificates, all as may be determined by the Regular Trustees. Each
temporary Certificate shall be executed by the Regular Trustees on behalf of
the Trust upon the same conditions and in substantially the same manner, and
with like effect, as definitive Certificates. Without unnecessary delay, the
Regular Trustees on behalf of the Trust will execute and furnish definitive
Certificates and thereupon any or all temporary Certificates may be
surrendered to the transfer agent and registrar in exchange therefor (without
charge to the Holders). Each Certificate whether in temporary or definitive
form shall be countersigned by the manual or facsimile signature of an
authorized signatory of the Person acting as registrar and transfer agent for
the Securities, which shall initially be the Property Trustee.
(d) The consideration received by the Trust for the issuance
of the Securities shall constitute a contribution to the capital of the Trust
and shall not constitute a loan to the Trust.
(e) Upon issuance of the Securities as provided in this
Declaration, the Securities so issued shall be deemed to be validly issued,
fully paid and non-assessable.
(f) Every Person, by virtue of having become a Holder or a
Preferred Security Beneficial Owner in accordance with the terms of this
Declaration, shall be deemed to have expressly assented and agreed to the
terms of, and shall be bound by this Declaration.
(g) Upon issuance of the Securities as provided in this
Declaration, the Regular Trustees on behalf of the Trust shall return to AES
the $10 constituting initial trust assets as set forth in the Original
Declaration.
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1 Termination of Trust.
This Declaration and the Trust shall terminate and be of no
further force or effect when:
(i) all of the Securities shall have been called for
redemption and the amounts necessary for redemption thereof shall
have been paid to the Holders of Securities in accordance with the
terms of the Securities; or
(ii) all of the Debentures shall have been distributed to the
Holders of Securities in exchange for all of the Securities in
accordance with the terms of the Securities; or
(iii) upon the expiration of the term of the Trust as set forth
in Section 3.17,
and a certificate of cancellation is filed by the Trustees with the Secretary
of State of the State of Delaware. The Trustees shall so file such a
certificate as soon as practicable after the occurrence of an event referred
to in this Section 8.1.
The provisions of Sections 3.12 and 4.2 and Article X shall
survive the termination of the Trust.
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities.
(a) Securities may only be transferred, in whole or in part,
in accordance with the terms and conditions set forth in this Declaration.
Any transfer or purported transfer of any Security not made in accordance with
this Declaration shall be null and void.
(b) Subject to this Article IX, Preferred Securities shall be
freely transferable.
(c) Subject to this Article IX, AES and any Related Party may
only transfer Common Securities to AES or a Related Party; provided that any
such transfer shall be subject to the condition that the transferor shall have
obtained (1) either a ruling from the Internal Revenue Service or an
unqualified written opinion addressed to the Trust and delivered to the
Trustees of nationally recognized independent tax counsel experienced in such
matters to the effect that such transfer will not (i) cause the Trust to be
treated as issuing a class of interests in the Trust differing from the class
of interests represented by the Common Securities originally issued to AES,
(ii) result in the Trust acquiring or disposing of, or being deemed to have
acquired or disposed of, an asset, or (iii) result in or cause the Trust to be
treated as anything other than a grantor trust for United States federal
income tax purposes and (2) an unqualified written opinion addressed to the
Trust and delivered to the Trustees of a nationally recognized independent
counsel experienced in such matters that such transfer will not cause the
Trust to be an Investment Company or controlled by an Investment Company.
SECTION 9.2 Transfer of Certificates.
The Regular Trustees shall provide for the registration of
Certificates and of transfers of Certificates, which will be effected without
charge but only upon payment (with such indemnity as the Regular Trustees may
require) in respect of any tax or other government charges which may be
imposed in relation to it. Upon surrender for registration of transfer of any
Certificate, the Regular Trustees shall cause one or more new Certificates to
be issued in the name of the designated transferee or transferees. Every
Certificate surrendered for registration of transfer shall be accompanied by a
written instrument of transfer in form satisfactory to the Regular Trustees
duly executed by the Holder or such Holder's attorney duly authorized in
writing. Each Certificate surrendered for registration of transfer shall be
canceled by the Regular Trustees. A transferee of a Certificate shall be
entitled to the rights and subject to the obligations of a Holder hereunder
upon the receipt by such transferee of a Certificate. By acceptance of a
Certificate, each transferee shall be deemed to have agreed to be bound by
this Declaration.
SECTION 9.3 Deemed Security Holders.
The Trustees may treat the Person in whose name any Certificate
shall be registered on the books and records of the Trust as the sole holder
of such Certificate and of the Securities represented by such Certificate for
purposes of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to
or interest in such Certificate or in the Securities represented by such
Certificate on the part of any Person, whether or not the Trustees shall have
actual or other notice thereof.
SECTION 9.4 Book Entry Interests.
Unless otherwise specified in the terms of the Preferred
Securities, the Preferred Securities Certificates, on original issuance
(including Preferred Securities, if any, issued on the Option Closing Date
pursuant to the exercise of the overallotment option set forth in the
Underwriting Agreement), will be issued in the form of one or more, fully
registered, global Preferred Security Certificates (each a "Global
Certificate"), to be delivered to DTC, the initial Clearing Agency, by, or on
behalf of, the Trust. Such Global Certificates shall initially be registered
on the books and records of the Trust in the name of Cede & Co., the nominee
of DTC, and no Preferred Security Beneficial Owner will receive a definitive
Preferred Security Certificate representing such Preferred Security Beneficial
Owner's interests in such Global Certificates, except as provided in Section
9.7. Unless and until definitive, fully registered Preferred Security
Certificates (the "Definitive Preferred Security Certificates") have been
issued to the Preferred Security Beneficial Owners pursuant to Section 9.7:
(i) the provisions of this Section 9.4 shall be in full force
and effect;
(ii) the Trust and the Trustees shall be entitled to deal with
the Clearing Agency for all purposes of this Declaration (including
the payment of Distributions on the Global Certificates and receiving
approvals, votes or consents hereunder) as the Holder of the
Preferred Securities and the sole holder of the Global Certificates
and, except as set forth herein or in Rule 3a-7 with respect to the
Property Trustee, shall have no obligation to the Preferred Security
Beneficial Owners;
(iii) to the extent that the provisions of this Section 9.4
conflict with any other provisions of this Declaration, the
provisions of this Section 9.4 shall control; and
(iv) the rights of the Preferred Security Beneficial Owners
shall be exercised only through the Clearing Agency and shall be
limited to those established by law and agreements between such
Preferred Security Beneficial Owners and the Clearing Agency and/or
the Clearing Agency Participants. DTC will make book entry transfers
among the Clearing Agency Participants and receive and transmit
payments of Distributions on the Global Certificates to such Clearing
Agency Participants.
SECTION 9.5 Notices to Holders of Certificates.
Whenever a notice or other communication to the Holders is
required to be given under this Declaration, unless and until Definitive
Preferred Security Certificates shall have been issued pursuant to Section
9.7, the relevant Trustees shall give all such notices and communications,
specified herein to be given to Preferred Securities Holders, to the Clearing
Agency and, with respect to any Preferred Security Certificate registered in
the name of a Clearing Agency or the nominee of a Clearing Agency, the
Trustees shall, except as set forth herein or in Rule 3a-7 with respect to the
Property Trustee, have no notice obligations to the Preferred Security
Beneficial Owners.
SECTION 9.6 Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as
securities depository with respect to the Preferred Securities, the Regular
Trustees may, in their sole discretion, appoint a successor Clearing Agency
with respect to the Preferred Securities.
SECTION 9.7 Definitive Preferred Securities Certificates.
If (i) a Clearing Agency elects to discontinue its services as
securities depository with respect to the Preferred Securities and a successor
Clearing Agency is not appointed within 90 days after such discontinuance
pursuant to Section 9.6 or (ii) the Regular Trustees elect after consultation
with the Sponsor to terminate the book entry system through the Clearing
Agency with respect to the Preferred Securities, then (x) Definitive Preferred
Security Certificates shall be prepared by the Regular Trustees on behalf of
the Trust with respect to such Preferred Securities and (y) upon surrender of
the Global Certificates by the Clearing Agency, accompanied by registration
instructions, the Regular Trustees shall cause definitive Preferred Security
Certificates to be delivered to Preferred Security Beneficial Owners in
accordance with the instructions of the Clearing Agency. Neither the Trustees
nor the Trust shall be liable for any delay in delivery of such instructions
and each of them may conclusively rely on and shall be protected in relying
on, such instructions.
SECTION 9.8 Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificates should be surrendered to the
Regular Trustees, or if the Regular Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and (b)
there shall be delivered to the Regular Trustees such security or indemnity as
may be required by them to keep each of them harmless, then in the absence of
notice that such Certificate shall have been acquired by a bona fide
purchaser, any two Regular Trustees on behalf of the Trust shall execute and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of like denomination. In connection
with the issuance of any new Certificate under this Section 9.8, the Regular
Trustees may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any
duplicate Certificate issued pursuant to this Section shall constitute
conclusive evidence of an ownership interest in the relevant Securities, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
ARTICLE X
LIMITATION OF LIABILITY; INDEMNIFICATION
SECTION 10.1 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in
a manner such Indemnified Person reasonably believed to be within the scope of
the authority conferred on such Indemnified Person by this Declaration or by
law, except that an Indemnified Person shall be liable for any such loss,
damage or claim incurred by reason of such Indemnified Person's gross
negligence (or, in the case of the Property Trustee, negligence) or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying
in good faith upon the records of the Trust and upon such information,
opinions, reports or statements presented to the Trust by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Trust, including information, opinions,
reports or statements as to the value and amount of the assets, liabilities,
profits, losses or any other facts pertinent to the existence and amount of
assets from which Distributions to Holders of Securities might properly be
paid.
(c) Pursuant to Section 3803(a) of the Business Trust Act,
the Holders of Securities, in their capacities as Holders, shall be entitled
to the same limitation of liability that is extended to stockholders of
private corporations for profit organized under the General Corporation Law
of the State of Delaware.
SECTION 10.2 Indemnification.
(a) To the fullest extent permitted by applicable law, the
Sponsor shall indemnify and hold harmless each Indemnified Person from and
against any loss, damage or claim incurred by such Indemnified Person by
reason of any act or omission performed or omitted by such Indemnified Person
in good faith on behalf of the Trust and in a manner such Indemnified Person
reasonably believed to be within the scope of authority conferred on such
Indemnified Person by this Declaration, except that no Indemnified Person
shall be entitled to be indemnified in respect of any loss, damage or claim
incurred by such Indemnified Person by reason of gross negligence (or, in the
case of the Property Trustee, negligence) or willful misconduct with respect
to such acts or omissions.
(b) To the fullest extent permitted by applicable law,
expenses (including legal fees) incurred by an Indemnified Person in defending
any claim, demand, action, suit or proceeding shall, from time to time, be
advanced by the Sponsor prior to the final disposition of such claim, demand,
action, suit or proceeding upon receipt by the Sponsor of an undertaking by or
on behalf of the Indemnified Person to repay such amount if it shall be
determined that the Indemnified Person is not entitled to be indemnified as
authorized in Section 10.2(a).
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the
calendar year, or such other year as is required by the Code.
SECTION 11.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the
Regular Trustees shall keep, or cause to be kept, full books of account,
records and supporting documents, which shall reflect in reasonable detail,
each transaction of the Trust. The books of account shall be maintained on
the accrual method of accounting, in accordance with generally accepted
accounting principles, consistently applied. The Trust shall use the accrual
method of accounting for United States federal income tax purposes. The books
and records of the Trust, together with a copy of this Declaration and a
certified copy of the Certificate of Trust, or any amendment thereto, shall at
all times be maintained at the principal office of the Trust and shall be open
for inspection for any examination by any Holder or its duly authorized
representative for any purpose reasonably related to its interest in the Trust
during normal business hours.
(b) The Regular Trustees shall, as soon as available after the
end of each Fiscal Year of the Trust, cause to be prepared and mailed to each
Holder of Securities unaudited financial statements of the Trust for such
Fiscal Year, prepared in accordance with generally accepted accounting
principles; provided that if the Trust is required to comply with the periodic
reporting requirements of Sections 13(a) or 15(d) of the Exchange Act, such
financial statements for such Fiscal Year shall be examined and reported on by
a firm of independent certified public accountants selected by the Regular
Trustees (which firm may be the firm used by the Sponsor).
(c) The Regular Trustees shall cause to be prepared and mailed
to each Holder of Securities, an annual United States federal income tax
information statement, on such form as is required by the Code, containing
such information with regard to the Securities held by each Holder as is
required by the Code and the Treasury Regulations. Notwithstanding any right
under the Code to deliver any such statement at a later date, the Regular
Trustees shall endeavor to deliver all such statements within 30 days after
the end of each Fiscal Year of the Trust.
(d) The Regular Trustees shall cause to be prepared and filed
with the appropriate taxing authority, an annual United States federal income
tax return, on such form as is required by the Code, and any other annual
income tax returns required to be filed by the Regular Trustees on behalf of
the Trust with any state or local taxing authority, such returns to be filed
as soon as practicable after the end of each Fiscal Year of the Trust.
SECTION 11.3 Banking.
The Trust shall maintain one or more bank accounts in the name
and for the sole benefit of the Trust; provided, however, that all payments of
funds in respect of the Debentures held by the Property Trustee shall be made
directly to the Property Account and no other funds from the Trust shall be
deposited in the Property Account. The sole signatories for such accounts
shall be designated by the Regular Trustees; provided, however, that the
Property Trustee shall designate the sole signatories for the Property
Account.
SECTION 11.4 Withholding.
The Trust and the Trustees shall comply with all withholding
requirements under United States federal, state and local law. The Trust
shall request, and the Holders shall provide to the Trust, such forms or
certificates as are necessary to establish an exemption from withholding with
respect to each Holder, and any representations and forms as shall reasonably
be requested by the Trust to assist it in determining the extent of, and in
fulfilling, its withholding obligations. The Trust shall file required forms
with applicable jurisdictions and, unless an exemption from withholding is
properly established by a Holder, shall remit amounts withheld with respect to
the Holder to applicable jurisdictions. To the extent that the Trust is
required to withhold and pay over any amounts to any authority with respect to
distributions or allocations to any Holder, the amount withheld shall be
deemed to be a distribution in the amount of the withholding to the Holder.
In the event of any claimed overwithholding, Holders shall be limited to an
action against the applicable jurisdiction. If the amount to be withheld was
not withheld from a Distribution, the Trust may reduce subsequent
Distributions by the amount of such withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments.
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Securities, this Declaration may be amended by, and
only by, a written instrument executed by a majority of the Regular Trustees;
provided, however, that (i) no amendment to this Declaration shall be made
unless the Regular Trustees shall have obtained (A) either a ruling from the
Internal Revenue Service or a written unqualified opinion of nationally
recognized independent tax counsel experienced in such matters to the effect
that such amendment will not cause the Trust to be classified for United
States federal income tax purposes as an association taxable as a corporation
or a partnership and to the effect that the Trust will continue to be treated
as a grantor trust for purposes of United States federal income taxation and
(B) a written unqualified opinion of nationally recognized independent counsel
experienced in such matters to the effect that such amendment will not cause
the Trust to be an Investment Company which is required to be registered under
the Investment Company Act, (ii) at such time after the Trust has issued any
Securities which remain outstanding, any amendment which would adversely
affect the rights, privileges or preferences of any Holder of Securities may
be effected only with such additional requirements as may be set forth in the
terms of such Securities, (iii) Section 4.2, Section 9.1(c) and this Section
12.1 shall not be amended without the consent of all of the Holders of the
Securities, (iv) no amendment which adversely affects the rights, powers and
privileges of the Property Trustee shall be made without the consent of the
Property Trustee, (v) Article IV shall not be amended without the consent of
the Sponsor, and (vi) the rights of Holders of Common Securities under Article
V to increase or decrease the number of, and to appoint, replace or remove,
Trustees shall not be amended without the consent of each Holder of Common
Securities.
(b) Notwithstanding Section 12.2(a)(ii), this Declaration may
be amended without the consent of the Holders of the Securities to (i) cure
any ambiguity, (ii) correct or supplement any provision in this Declaration
that may be defective or inconsistent with any other provision of this
Declaration, (iii) to add to the covenants, restrictions or obligations of the
Sponsor, and (iv) to conform to any changes in Rule 3a-7 or any change in
interpretation or application of Rule 3a-7 by the Commission, which amendment
does not adversely affect the rights, preferences or privileges of the
Holders.
SECTION 12.2 Meetings of the Holders of Securities; Action by Written
Consent.
(a) Meetings of the Holders of Preferred Securities and/or
Common Securities may be called at any time by the Regular Trustees (or as
provided in the terms of the Securities) to consider and act on any matter on
which Holders of such class of Securities are entitled to act under the terms
of this Declaration, the terms of the Securities or the rules of any stock
exchange on which the Preferred Securities are listed or admitted for trading.
The Regular Trustees shall call a meeting of Holders of Preferred Securities
or Common Securities, if directed to do so by Holders of at least 10% in
liquidation amount of such class of Securities. Such direction shall be given
by delivering to the Regular Trustees one or more calls in a writing stating
that the signing Holders of Securities wish to call a meeting and indicating
the general or specific purpose for which the meeting is to be called. Any
Holders of Securities calling a meeting shall specify in writing the
Certificates held by the Holders of Securities exercising the right to call a
meeting and only those specified Certificates shall be counted for purposes of
determining whether the required percentage set forth in the second sentence
of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of
the Securities, the following provision shall apply to meetings of Holders of
Securities:
(i) Notice of any such meeting shall be given by mail to all
the Holders of Securities having a right to vote thereat not less
than 7 days nor more than 60 days prior to the date of such meeting.
Whenever a vote, consent or approval of the Holders of Securities is
permitted or required under this Declaration or the rules of any
stock exchange on which the Preferred Securities are listed or
admitted for trading, such vote, consent or approval may be given at
a meeting of the Holders of Securities. Any action that may be taken
at a meeting of the Holders of Securities may be taken without a
meeting if a consent in writing setting forth the action so taken is
signed by Holders of Securities owning not less than the minimum
aggregate liquidation amount of Securities that would be necessary to
authorize or take such action at a meeting at which all Holders of
Securities having a right to vote thereon were present and voting.
Prompt notice of the taking of action without a meeting shall be
given to the Holders of Securities entitled to vote who have not
consented in writing. The Regular Trustees may specify that any
written ballot submitted to the Holders of Securities for the
purpose of taking any action without a meeting shall be returned
to the Trust within the time specified by the Regular Trustees.
(ii) Each Holder of a Security may authorize any Person to act
for it by proxy on all matters in which a Holder of a Security is
entitled to participate, including waiving notice of any meeting, or
voting or participating at a meeting. No proxy shall be valid after
the expiration of 11 months from the date thereof unless otherwise
provided in the proxy. Every proxy shall be revocable at the
pleasure of the Holder of the Security executing it. Except as
otherwise provided herein or in the terms of the Securities, all
matters relating to the giving, voting or validity of proxies shall
be governed by the General Corporation Law of the State of Delaware
relating to proxies, and judicial interpretations thereunder, as if
the Trust were a Delaware corporation and the Holders of the
Securities were stockholders of a Delaware corporation.
(iii) Each meeting of the Holders of the Securities shall be
conducted by the Regular Trustees or by such other Person that the
Regular Trustees may designate.
(iv) Unless otherwise provided in the Business Trust Act, this
Declaration or the rules of any stock exchange on which the Preferred
Securities are then listed or admitted for trading, the Regular
Trustees, in their sole discretion, shall establish all other
provisions relating to meetings of Holders of Securities, including
notice of the time, place or purpose of any meeting at which any
matter is to be voted on by any Holders of Securities, waiver of any
such notice, action by consent without a meeting, the establishment
of a record date, quorum requirements, voting in person or by proxy
or any other matter with respect to the exercise of any such right to
vote.
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Property Trustee.
(a) The Trustee which acts as initial Property Trustee
represents and warrants to the Trust and to the Sponsor at the date of this
Declaration, and each Successor Property Trustee represents and warrants to
the Trust and the Sponsor at the time of the Successor Property Trustee's
acceptance of its appointment as Property Trustee that:
(i) The Property Trustee is a banking corporation with
trust powers, duly organized, validly existing and in good
standing under the laws of the State of its incorporation, with
trust power and authority to execute and deliver, and to carry
out and perform its obligations under the terms of, this
Declaration.
(ii) The execution, delivery and performance by the
Property Trustee of this Declaration has been duly authorized
by all necessary corporate action on the part of the Property
Trustee. The Declaration has been duly executed and delivered
by the Property Trustee, and constitutes a legal, valid and
binding obligation of the Property Trustee, enforceable against
it in accordance with its terms, subject to applicable
bankruptcy, reorganization, moratorium, insolvency, and other
similar laws affecting creditors' rights generally and to
general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is
considered in a proceeding in equity or at law).
(iii) The execution, delivery and performance of this
Declaration by the Property Trustee does not conflict with or
constitute a breach of the Charter or By-laws of the Property
Trustee.
(iv) No consent, approval or authorization of, or
registration with or notice to, any banking authority which
supervises or regulates the Property Trustee is required for
the execution, delivery or performance by the Property Trustee,
of this Declaration.
(v) The Property Trustee satisfies the qualifications
set forth in Section 5.1(c).
(b) The Trustee which acts as initial Delaware Trustee
represents and warrants to the Trust and the Sponsor at the date of this
Declaration, and each Successor Delaware Trustee represents and warrants to
the Trust and the Sponsor at the time of the Successor Delaware Trustee's
acceptance of its appointment as Delaware Trustee, that it satisfies the
qualifications set forth in Section 5.1(a)(3).
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices.
All notices provided for in this Declaration shall be in
writing, duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by first class mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at
the Trust's mailing address set forth below (or such other address as
the Regular Trustees on behalf of the Trust may give notice of to the
Holders of the Securities):
AES Trust [ ]
c/o The AES Corporation
1001 North 19th Street
Arlington, Virginia 22209
Attention:
[Trustees]
Facsimile No: (212) 892-7272
(b) if given to the Property Trustee, at the mailing address
of the Property Trustee set forth below (or such other address as the
Property Trustee may give notice of to the Holders of the
Securities):
[to come]
Facsimile No:
(c) if given to the Delaware Trustee, at the mailing address
of the Delaware Trustee set forth below (or such other address as the
Delaware Trustee may give notice of to the Holders of the
Securities):
[to come]
With a copy to:
[to come]
(d) if given to the Holder of the Common Securities, at the
mailing address of the Sponsor set forth below (or such other address
as the Holder of the Common Securities may give notice to the Trust):
The AES Corporation
1001 North 19th Street
Arlington, Virginia 22209
Attention: Corporate Secretary
Facsimile No:
(e) if given to any other Holder, at the address set forth on
the books and records of the Trust.
A copy of any notice to the Property Trustee or the Delaware
Trustee shall also be sent to the Trust. All notices shall be deemed to have
been given, when received in person, telecopied with receipt confirmed, or
mailed by first class mail, postage prepaid except that if a notice or other
document is refused delivery or cannot be delivered because of a changed
address of which no notice was given, such notice or other document shall be
deemed to have been delivered on the date of such refusal or inability to
deliver.
SECTION 14.2 Undertaking for Costs.
All parties to this Declaration agree, and each Holder of any
Securities by his or her acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement
of any right or remedy under this Declaration, or in any suit against the
Property Trustee for any action taken or omitted by it as Property Trustee,
the filing by any party litigant in such suit of an undertaking to pay the
costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section 14.2 shall not apply to any suit instituted by the Property Trustee,
to any suit instituted by any Holder of Preferred Securities, or group of
Holders of Preferred Securities, holding more than 10% in aggregate
liquidation amount of the outstanding Preferred Securities, or to any suit
instituted by any Holder of Preferred Securities for the enforcement of the
payment of the principal of (or premium, if any) or interest on the
Debentures, on or after the respective due dates expressed in such Debentures.
SECTION 14.3 Governing Law.
This Declaration and the rights of the parties hereunder shall
be governed by and interpreted in accordance with the laws of the State of
Delaware and all rights and remedies shall be governed by such laws without
regard to principles of conflict of laws.
SECTION 14.4 Headings.
Headings contained in this Declaration are inserted for
convenience of reference only and do not affect the interpretation of this
Declaration or any provision hereof.
SECTION 14.5 Partial Enforceability.
If any provision of this Declaration, or the application of
such provision to any Person or circumstance, shall be held invalid, the
remainder of this Declaration, or the application of such provision to persons
or circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 14.6 Counterparts.
This Declaration may contain more than one counterpart of the
signature pages and this Declaration may be executed by the affixing of the
signature of the Sponsor and each of the Trustees to one of such counterpart
signature pages. All of such counterpart signature pages shall be read as
though one, and they shall have the same force and effect as though all of the
signers had signed a single signature page.
SECTION 14.7 Intention of the Parties.
It is the intention of the parties hereto that the Trust not be
classified for United States federal income tax purposes as an association
taxable as a corporation or partnership but that the Trust be treated as a
grantor trust for United States federal income tax purposes. The provisions
of this Declaration shall be interpreted to further this intention of the
parties.
SECTION 14.8 Successors and Assigns.
Whenever in this Declaration any of the parties hereto is named
or referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
IN WITNESS WHEREOF, the undersigned has caused these presents
to be executed as of the day and year first above written.
THE AES Corporation
as Sponsor
By:______________________________
Name:
Title:
_________________________________
William R. Luraschi
as Trustee
_________________________________
Willard Hoagland
as Trustee
_________________________________
Barry J. Sharp
as Trustee
The First National Bank of Chicago
as Property Trustee
By:______________________________
Name:
Title:
First Chicago Delaware Inc.
as Delaware Trustee
By:______________________________
Name:
Title:
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
BEFORE ME, the undersigned authority, on this day of
_____________, 199_, personally appeared _______________ (on behalf of The AES
Corporation and _____________, each known to me (or proved to me by
introduction upon the oath of a person known to me) to be the person and
officer, as the case may be, whose name is subscribed to the foregoing
instrument, and each acknowledged to me that he executed the same as the act
of such are for the purposes and consideration herein expressed and in the
capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS _____ day of _________, 199_.
________________________________
NOTARY PUBLIC, STATE OF NEW YORK
Print Name:_____________________
Commission Expires:_____________
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
BEFORE ME, the undersigned authority, on this day of
_____________, 199_, personally appeared ________________ of __________ known
to me (or proved to me by introduction upon the oath of a person known to me)
to be the person and officer whose names are subscribed to the foregoing
instrument, and acknowledged to me that she executed the same as the act of
such trust for the purposes and consideration herein expressed and in the
capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS _____ day of _________, 199_.
(SEAL)
________________________________
NOTARY PUBLIC, STATE OF NEW YORK
Print Name:_____________________
Commission Expires:_____________
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
BEFORE ME, the undersigned authority, on this day of
_____________, 199_, personally appeared ________________ of ___________ known
to me (or proved to me by introduction upon the oath of a person known to me)
to be the person and officer whose names are subscribed to the foregoing
instrument, and acknowledged to me that she executed the same as the act of
such trust for the purposes and consideration herein expressed and in the
capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS _____ day of _________, 199_.
(SEAL)
________________________________
NOTARY PUBLIC, STATE OF NEW YORK
Print Name:_____________________
Commission Expires:_____________
EXHIBIT A
CERTIFICATE OF TRUST
OF
AES TRUST [ ]
THIS Certificate of Trust of AES Capital Trust [ ] (the
"Trust"), dated _____ __, 199__, is being duly executed and filed by the
undersigned, as trustees, to form a business trust under the Delaware Business
Trust Act (12 Del. Code Section 3801 et seq.).
1. Name. The name of the business trust being formed hereby
is AES Trust [ ].
2. Delaware Trustee. The name and business address of the
trustee of the Trust with a principal place of business in the State of
Delaware is [Delaware Trustee]
3. Effective Date. This Certificate of Trust shall be
effective as of its filing.
IN WITNESS WHEREOF, the undersigned, being the sole trustees of
the Trust, have executed this Certificate of Trust as of the date first above
written.
First Chicago Delaware Inc.
as Delaware Trustee
By:______________________________
Name:
Title:
The First National Bank of Chicago
as Property Trustee
By:______________________________
Name:
Title:
_________________________________
William R. Luraschi
as Trustee
_________________________________
Willard Hoagland
as Trustee
_________________________________
Barry J. Sharp
as Trustee
EXHIBIT B
TERMS OF
PREFERRED SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration
of Trust of AES Trust [ ] dated as of ____________, 199__ (as amended from
time to time, the "Declaration"), the designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Preferred
Securities are set forth below (each capitalized term used but not defined
herein having the meaning set forth in the Declaration):
1. Designation and Number. Preferred Securities of the Trust
with an aggregate liquidation amount in the assets of the Trust of
___________________________________________ Dollars ($___________) (including
up to _______________________________________________ Dollars ($___________)
issuable upon exercise of the overallotment option set forth in the
Underwriting Agreement) and a liquidation amount in the assets of the Trust of
$25 per Preferred Security, are hereby designated as "____% Preferred Trust
Securities". The Preferred Security Certificates evidencing the Preferred
Securities shall be substantially in the form attached hereto as Annex I, with
such changes and additions thereto or deletions therefrom as may be required
by ordinary usage, custom or practice or to conform to the rules of any stock
exchange on which the Preferred Securities are listed. In connection with the
issuance and sale of the Preferred Securities and the Common Securities, the
Trust will purchase as trust assets Debentures of AES having an aggregate
principal amount equal to the aggregate liquidation amount of the Preferred
Securities and Common Securities so issued and bearing interest at an annual
rate equal to the annual Distribution rate on the Preferred Securities and
Common Securities and having payment and redemption provisions which
correspond to the payment and redemption provisions of the Preferred
Securities and Common Securities.
2. Distributions. (a) Distributions payable on each
Preferred Security will be fixed at a rate per annum of ____% (the "Coupon
Rate") of the stated liquidation amount of $25 per Preferred Security.
Distributions in arrears for more than one calendar quarter will bear interest
at the rate per annum of ____% thereof (to the extent permitted by law),
compounded monthly. The term "Distributions" as used in these terms means
such periodic cash distributions and any such interest payable unless
otherwise stated. A Distribution will be made by the Property Trustee only to
the extent that interest payments are made in respect of the Debentures held
by the Property Trustee. The amount of Distributions payable for any period
will be computed for any monthly Distribution period on the basis of a 365-day
year of four calendar quarters, viz: March 31, June 30, September 30 and
December 31.
(b) Distributions on the Preferred Securities will be
cumulative, will accrue from ___________, 199__ and will be payable quarterly
in arrears, on the last day of each quarter commencing on ________________,
199__, except as otherwise described below, but only if and to the extent that
interest payments are made in respect of the Debentures held by the Property
Trustee. So long as AES shall not be in default in the payment of interest on
the Debentures, AES has the right under the Indenture for the Debentures to
defer payments of interest by extending the interest payment period from time
to time on the Debentures for a period not exceeding [to come] consecutive
quarterly interest periods (each, an "Extension Period") and, as a
consequence, quarterly Distributions will continue to accrue with interest
thereon (to the extent permitted by applicable law) at the rate of ____%
per annum, compounded quarterly during any such Extension Period. Prior to
the termination of any such Extension Period, AES may further extend such
Extension Period; provided that such Extension Period together with all
such previous and further extensions thereof may not exceed [to come]
consecutive quarterly interest periods. Upon the termination of any
Extension Period and the payment of all amounts then due, AES may commence
a new Extension Period, subject to the above requirements. Payments of
accrued Distributions will be payable to Holders of Preferred Securities as
they appear on the books and records of the Trust on the first record date
after the end of the Extension Period.
(c) Distributions on the Preferred Securities will be payable
promptly by the Property Trustee (or other Paying Agent) upon receipt of
immediately available funds to the Holders thereof as they appear on the books
and records of the Trust on the relevant record dates. While the Preferred
Securities remain in book-entry only form, the relevant record dates shall be
one business day prior to the relevant Distribution date, and if the Preferred
Securities are no longer in book-entry only form, the relevant record dates
will be the fifteenth (15th) day of the month prior to the relevant
Distribution date, which record and payment dates correspond to the record and
interest payment dates on the Debentures. Distributions payable on any
Preferred Securities that are not punctually paid on any Distribution payment
date as a result of AES having failed to make the corresponding interest
payment on the Debentures will forthwith cease to be payable to the person in
whose name such Preferred Security is registered on the relevant record date,
and such defaulted Distribution will instead be payable to the person in whose
name such Preferred Security is registered on the special record date
established by the Regular Trustees, which record date shall correspond to the
special record date or other specified date determined in accordance with the
Indenture; provided, however, that Distributions shall not be considered
payable on any Distribution payment date falling within an Extension Period
unless AES has elected to make a full or partial payment of interest accrued
on the Debentures on such Distribution payment date. Subject to any
applicable laws and regulations and the provisions of the Declaration, each
payment in respect of the Preferred Securities will be made as described
paragraph 9 hereof. If any date on which Distributions are payable on the
Preferred Securities is not a Business Day, then payment of the Distribution
payable on such date will be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of any such
delay) except that, if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such date.
(d) All Distributions paid with respect to the Preferred
Securities and the Common Securities will be paid Pro Rata to the Holders
thereof entitled thereto. If an Event of Default has occurred and is
continuing, the Preferred Securities shall have a priority over the Common
Securities with respect to Distributions.
(e) In the event that there is any money or other property
held by or for the Trust that is not accounted for under the Declaration, such
money or property shall be distributed Pro Rata among the Holders of the
Preferred Securities and Common Securities.
3. Liquidation Distribution Upon Dissolution. In the event of
any voluntary or involuntary dissolution, winding-up or termination of the
Trust, the Holders of the Preferred Securities and Common Securities at the
date of the dissolution, winding-up or termination, as the case may be, will
be entitled to receive Pro Rata solely out of the assets of the Trust
available for distribution to Holders of Preferred Securities and Common
Securities after satisfaction of liabilities to creditors, an amount equal to
the aggregate of the stated liquidation amount of $25 per Preferred Security
and Common Security plus accrued and unpaid Distributions thereon to the date
of payment (such amount being the "Liquidation Distribution"), unless, in
connection with such dissolution, winding-up or termination, and after
satisfaction of liabilities to creditors, Debentures in an aggregate principal
amount equal to the aggregate stated liquidation amount of such Preferred
Securities and Common Securities and bearing accrued and unpaid interest in an
amount equal to the accrued and unpaid Distributions on, such Preferred
Securities and Common Securities, shall be distributed Pro Rata to the Holders
of the Preferred Securities and Common Securities in exchange for such
Securities.
If, upon any such dissolution, the Liquidation Distribution can
be paid only in part because the Trust has insufficient assets available to
pay in full the aggregate Liquidation Distribution, then the amounts payable
directly by the Trust on the Preferred Securities and Common Securities shall
be paid, subject to the next paragraph, on a Pro Rata basis.
Holders of Common Securities will be entitled to receive
Liquidation Distributions upon any such dissolution Pro Rata with Holders of
Preferred Securities, except that if an Event of Default has occurred and is
continuing, the Preferred Securities shall have a priority over the Common
Securities with respect to such Liquidation Distribution.
4. Redemption and Distribution of Debentures. The Preferred
Securities and Common Securities may only be redeemed if Debentures having an
aggregate principal amount equal to the aggregate liquidation amount of the
Preferred Securities and Common Securities are repaid, redeemed or distributed
as set forth below:
(a) Upon the repayment of the Debentures, in whole or in
part, whether at maturity, upon redemption at any time or from time to time on
or after _________, 200_, the proceeds of such repayment will be promptly
applied to redeem Pro Rata Preferred Securities and Common Securities having
an aggregate liquidation amount equal to the aggregate principal amount of the
Debentures so repaid or redeemed, upon not less than 30 nor more than 60 days'
notice, at a redemption price of $25 per Preferred and Common Security plus an
amount equal to accrued and unpaid Distributions thereon to the date of
redemption, payable in cash (the "Redemption Price"). The date of any such
repayment or redemption of Preferred Securities and Common Securities shall be
established to coincide with the repayment or redemption date of the
Debentures.
(b) If fewer than all the outstanding Preferred Securities
and Common Securities are to be so redeemed, the Preferred Securities and the
Common Securities will be redeemed Pro Rata and the Preferred Securities to be
redeemed as described in paragraph 4(f)(ii) below. If a partial redemption
would result in the delisting of the Preferred Securities by any national
securities exchange or other organization on which the Preferred Securities
are then listed, AES pursuant to the Indenture will only redeem Debentures
in whole and, as a result, the Trust may only redeem the Preferred
Securities in whole.
(c) If, at any time, a Tax Event or an Investment Company
Event (each as hereinafter defined, and each a "Special Event") shall occur
and be continuing, the Regular Trustees shall, unless the Debentures are
redeemed in the limited circumstances described below, dissolve the Trust and,
after satisfaction of creditors, cause Debentures held by the Property Trustee
having an aggregate principal amount equal to the aggregate stated liquidation
amount of and accrued and unpaid interest equal to accrued and unpaid
Distributions on, and having the same record date for payment as the Preferred
Securities and Common Securities, to be distributed to the Holders of the
Preferred Securities and Common Securities on a Pro Rata basis in liquidation
of such Holders' interests in the Trust, within 90 days following the
occurrence of such Special Event (the "90 Day Period"; provided, however, that
in the case of the occurrence of a Tax Event, as a condition of such
dissolution and distribution, the Regular Trustees shall have received an
opinion of a nationally recognized independent tax counsel experienced in such
matters (a "No Recognition Opinion"), which opinion may rely on any then
applicable published revenue ruling of the Internal Revenue Service, to the
effect that the Holders of the Preferred Securities will not recognize any
gain or loss for United States federal income tax purposes as a result of the
dissolution of the Trust and distribution of Debentures; and provided,
further, that, if and as long as at the time there is available to the Trust
the opportunity to eliminate, within the 90 Day Period, the Special Event by
taking some ministerial action, such as filing a form or making an election,
or pursuing some other similar reasonable measure that has no adverse effect
on the Trust, AES or the Holders of the Preferred Securities ("Ministerial
Action"), the Trust will pursue such measure in lieu of dissolution.
If in the case of the occurrence of a Tax Event, (i) the
Regular Trustees have received an opinion (a "Redemption Tax Opinion") of
nationally recognized independent tax counsel experienced in such matters
that, as a result of a Tax Event, there is more than an insubstantial risk
that AES would be precluded from deducting the interest on the Debentures for
United States federal income tax purposes even if the Debentures were
distributed to the Holders of Preferred Securities and Common Securities in
liquidation of such Holder's interest in the Trust as described in this
paragraph 4(c) or (ii) the Regular Trustees shall have been informed by such
tax counsel that a No Recognition Opinion cannot be delivered to the Trust,
AES shall have the right at any time, upon not less than 30 nor more than 60
days' notice, to redeem the Debentures in whole or in part for cash at the
Redemption Price within 90 days following the occurrence of such Tax Event,
and promptly following such redemption Preferred Securities and Common
Securities with an aggregate liquidation amount equal to the aggregate
principal amount of the Debentures so redeemed will be redeemed by the Trust
at the Redemption Price on a Pro Rata basis; provided, however, that, if at
the time there is available to AES or the Regular Trustees on behalf of the
Trust the opportunity to eliminate, within such 90 day period, the Tax Event
by taking some Ministerial Action, AES or the Regular Trustees on behalf of
the Trust will pursue such measure in lieu of redemption and; provided,
further, that AES shall have no right to redeem the Debentures while the
Regular Trustees on behalf of the Trust are pursuing such Ministerial Action.
The Common Securities will be redeemed Pro Rata with the Preferred Securities,
except that if an Event of Default under the Indenture has occurred and is
continuing, the Preferred Securities will have a priority over the Common
Securities with respect to payment of the Redemption Price.
"Tax Event" means that the Regular Trustees shall have obtained
an opinion of nationally recognized independent tax counsel experienced in
such matters (a "Dissolution Tax Opinion") to the effect that on or after
____________, 199_ as a result of (a) any amendment to, or change (including
any announced prospective change) in, the laws (or any regulations thereunder)
of the United States or any political subdivision or taxing authority thereof
or therein, (b) any amendment to, or change in, an interpretation or
application of any such laws or regulations by any legislative body, court,
governmental agency or regulatory authority (including the enactment of any
legislation and the publication of any judicial decision or regulatory
determination), (c) any interpretation or pronouncement that provides for a
position with respect to such laws or regulations that differs from the
theretofore generally accepted position or (d) any action taken by any
governmental agency or regulatory authority, which amendment or change is
enacted, promulgated, issued or announced or which interpretation or
pronouncement is issued or announced or which action is taken, in each case on
or after _________, 199_, there is more than an insubstantial risk that (i)
the Trust is, or will be within 90 days of the date thereof, subject to United
States federal income tax with respect to income accrued or received on the
Debentures, (ii) the Trust is, or will be within 90 days of the date thereof,
subject to more than a de minimis amount of taxes, duties or other
governmental charges or (iii) interest payable by AES to the Trust on the
Debentures is not, or within 90 days of the date thereof will not be,
deductible by AES for United States federal income tax purposes.
"Investment Company Event" means that the Regular Trustees
shall have received an opinion of nationally recognized independent counsel
experienced in practice under the Investment Company Act that, as a result of
the occurrence of a change in law or regulation or a change in interpretation
or application of law or regulation by any legislative body, court,
governmental agency or regulatory authority (a "Change in 1940 Act Law"),
there is more than an insubstantial risk that the Trust is or will be
considered an Investment Company which is required to be registered under the
Investment Company Act, which Change in 1940 Act Law becomes effective on or
after _________, 199_.
On the date fixed for any distribution of Debentures, upon
dissolution of the Trust, (i) the Preferred Securities will no longer be
deemed to be outstanding and (ii) certificates representing Preferred
Securities will be deemed to represent beneficial interests in the Debentures
having an aggregate principal amount equal to the stated liquidation amount
of, and bearing accrued and unpaid interest equal to accrued and unpaid
Distributions on, such Preferred Securities until such certificates are
presented to AES or its agent for transfer or reissuance.
(d) The Trust may not redeem fewer than all the outstanding
Preferred Securities unless all accrued and unpaid Distributions have been
paid on all Preferred Securities for all monthly Distribution periods
terminating on or prior to the date of redemption.
(e) If Debentures are distributed to Holders of the Preferred
Securities, AES, pursuant to the terms of the Indenture, will use its best
efforts to have the Debentures listed on the New York Stock Exchange or on
such other exchange as the Preferred Securities were listed immediately prior
to the distribution of the Debentures.
(f) (i) Notice of any redemption of, or notice of
distribution of Debentures in exchange for, the Preferred Securities and
Common Securities (a "Redemption/Distribution Notice") will be given by the
Regular Trustees on behalf of the Trust by mail to each Holder of Preferred
Securities and Common Securities to be redeemed or exchanged not less than 30
nor more than 60 days prior to the date fixed for redemption or exchange
thereof. For purposes of the calculation of the date of redemption or
exchange and the dates on which notices are given pursuant to this paragraph
(f)(i), a Redemption/Distribution Notice shall be deemed to be given on the
day such notice is first mailed by first-class mail, postage prepaid, to
Holders of Preferred Securities and Common Securities. Each Redemption/
Distribution Notice shall be addressed to the Holders of Preferred Securities
and Common Securities at the address of each such Holder appearing in the
books and records of the Trust. No defect in the Redemption/Distribution
Notice or in the mailing of either thereof with respect to any Holder shall
affect the validity of the redemption or exchange proceedings with respect to
any other Holder.
(ii) In the event that fewer than all the outstanding
Preferred Securities are to be redeemed, the Preferred Securities to be
redeemed will be redeemed Pro Rata from each Holder of Preferred Securities,
it being understood that, in respect of Preferred Securities registered in the
name of and held of record by DTC (or successor Clearing Agency) or any other
nominee, the Preferred Securities will be redeemed from, and the distribution
of the proceeds of such redemption will be made to, each Clearing Agency
Participant (or person on whose behalf such nominee holds such securities) in
accordance with the procedures applied by such agency or nominee.
(iii) Subject to paragraph 9 hereof, if the Trust gives a
Redemption/ Distribution Notice in respect of a redemption of Preferred
Securities as provided in this paragraph 4 (which notice will be irrevocable)
then (A) while the Preferred Securities are in book-entry only form, with
respect to the Preferred Securities, by 12:00 noon, New York City time, on the
redemption date, provided that AES has paid the Property Trustee, in
immediately available funds, a sufficient amount of cash in connection with
the related redemption or maturity of the Debentures, the Property Trustee
will deposit irrevocably with DTC (or successor Clearing Agency) funds
sufficient to pay the applicable Redemption Price with respect to the
Preferred Securities and will give DTC (or successor Clearing Agency)
irrevocable instructions and authority to pay the Redemption Price to the
Holders of the Preferred Securities and (B) if the Preferred Securities are
issued in definitive form, with respect to the Preferred Securities and
provided that AES has paid the Property Trustee, in immediately available
funds, a sufficient amount of cash in connection with the related
redemption or maturity of the Debentures, the Property Trustee will pay
the relevant Redemption Price to the Holders of such Preferred Securities
by check mailed to the address of the relevant Holder appearing on
the books and records of the Trust on the redemption date. If a
Redemption/Distribution Notice shall have been given and funds deposited as
required, if applicable, then immediately prior to the close of business on
the redemption date, Distributions will cease to accrue on the Preferred
Securities called for redemption, such Preferred Securities will no longer
be deemed to be outstanding and all rights of Holders of such Preferred
Securities so called for redemption will cease, except the right of the
Holders of such Preferred Securities to receive the Redemption Price, but
without interest on such Redemption Price. Neither the Trustees nor the
Trust shall be required to register or cause to be registered the transfer
of any Preferred Securities which have been so called for redemption. If
any date fixed for redemption of Preferred Securities is not a Business
Day, then payment of the Redemption Price payable on such date will be made
on the next succeeding day that is a Business Day (and without any interest
or other payment in respect of any such delay) except that, if such
Business Day falls in the next calendar year, such payment will be made on
the immediately preceding Business Day, in each case with the same force
and effect as if made on such date fixed for redemption. If payment of the
Redemption Price in respect of Preferred Securities is improperly withheld
or refused and not paid either by the Property Trustee or by AES pursuant
to the Preferred Securities Guarantee, Distributions on such Preferred
Securities will continue to accrue, from the original redemption date to
the date of payment, in which case the actual payment date will be
considered the date fixed for redemption for purposes of calculating the
Redemption Price.
(iv) Redemption/Distribution Notices shall be sent by the
Regular Trustees on behalf of the Trust to DTC or its nominee (or any
successor Clearing Agency or its nominee) if the Global Certificates have been
issued or, if Definitive Preferred Security Certificates have been issued, to
the Holders of the Preferred Securities.
(v) Upon the date of dissolution of the Trust and distribution
of Debentures as a result of the occurrence of a Special Event, Preferred
Security Certificates shall be deemed to represent beneficial interests in the
Debentures so distributed, and the Preferred Securities will no longer be
deemed outstanding and may be canceled by the Regular Trustees. The
Debentures so distributed shall have an aggregate principal amount equal to
the aggregate liquidation amount of the Preferred Securities so distributed.
(vi) Subject to the foregoing and applicable law (including,
without limitation, United States federal securities laws), AES or any of its
subsidiaries may at any time and from time to time purchase outstanding
Preferred Securities by tender, in the open market or by private agreement.
5. Voting Rights. (a) Except as provided under paragraph
5(b) below and as otherwise required by law and the Declaration, the Holders
of the Preferred Securities will have no voting rights.
(b) If any proposed amendment to the Declaration provides for,
or the Regular Trustees otherwise propose to effect, (i) any action that would
adversely affect the powers, preferences or special rights of the Securities,
whether by way of amendment to the Declaration or otherwise, or (ii) the
dissolution, winding-up or termination of the Trust, other than in connection
with the distribution of Debentures held by the Property Trustee, upon the
occurrence of a Special Event or in connection with the redemption of
Preferred Securities as a consequence of a redemption of Debentures, then the
Holders of outstanding Securities will be entitled to vote on such amendment
or proposal as a class and such amendment or proposal shall not be effective
except with the approval of the Holders of Securities representing 66-2/3% in
liquidation amount of such Securities; provided, however, that (A) if any
amendment or proposal referred to in clause (i) above would adversely affect
only the Preferred Securities or the Common Securities, then only the affected
class will be entitled to vote on such amendment or proposal and such
amendment or proposal shall not be effective except with the approval of
66-2/3% in liquidation amount of such class of Securities and (B) amendments
to the Declaration shall be subject to such further requirements as are set
forth in Sections 12.1 and 12.2 of the Declaration.
In the event the consent of the Property Trustee, as the holder
of the Debentures, is required under the Indenture with respect to any
amendment, modification or termination of the Indenture or the Debentures, the
Property Trustee shall request the written direction of the Holders of the
Securities with respect to such amendment, modification or termination. The
Property Trustee shall vote with respect to such amendment, modification or
termination as directed by a Majority in liquidation amount of the Securities
voting together as a single class; provided that where such amendment,
modification or termination of the Indenture requires the consent or vote of
(1) holders of Debentures representing a specified percentage greater than a
majority in principal amount of the Debentures or (2) each holder of
Debentures, the Property Trustee may only vote with respect to that amendment,
modification or termination as directed by, in the case of clause (1) above,
the vote of Holders of Securities representing such specified percentage of
the aggregate liquidation amount of the Securities, or, in the case of
clause (2) above, each Holder of Securities; and provided, further, that
the Property Trustee shall be under no obligation to take any action in
accordance with the directions of the Holders of Securities unless the
Property Trustee shall have received, at the expense of the Sponsor, an
opinion of nationally recognized independent tax counsel recognized as
expert in such matters to the effect that the Trust will not be classified
for United States federal income tax purposes as an association taxable as
a corporation or a partnership on account of such action and will be
treated as a grantor trust for United States federal income tax purposes
following such action.
Subject to Section 2.6 of the Declaration, and the provisions
of this and the next succeeding paragraph, the Holders of a Majority in
liquidation amount of the Preferred Securities, voting separately as a class
shall have the right to (A) on behalf of all Holders of Preferred Securities,
waive any past default that is waivable under the Declaration (subject to, and
in accordance with the Declaration) and (B) direct the time, method and place
of conducting any proceeding for any remedy available to the Property Trustee,
or exercising any trust or power conferred upon the Property Trustee under the
Declaration, including the right to direct the Property Trustee, as the holder
of the Debentures, to (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Debenture Trustee, or exercising
any trust or power conferred on the Debenture Trustee with respect to the
Debentures, (ii) waive any past default that is waivable under Section 6.06 of
the Indenture, or (iii) exercise any right to rescind or annul a declaration
that the principal of all the Debentures shall be due and payable; provided
that where the taking of any action under the Indenture requires the consent
or vote of (1) holders of Debentures representing a specified percentage
greater than a majority in principal amount of the Debentures or (2) each
holder of Debentures, the Property Trustee may only take such action if
directed by, in the case of clause (1) above, the vote of Holders of Preferred
Securities representing such specified percentage of the aggregate liquidation
amount of the Preferred Securities, or, in the case of clause (2) above, each
Holder of Preferred Securities. The Property Trustee shall not revoke any
action previously authorized or approved by a vote of the Holders of the
Preferred Securities. Other than with respect to directing the time, method
and place of conducting any proceeding for any remedy available to the
Property Trustee or the Debenture Trustee as set forth above, the Property
Trustee shall be under no obligation to take any of the foregoing actions at
the direction of the Holders of Preferred Securities unless the Property
Trustee shall have received, at the expense of the Sponsor, an opinion of
nationally recognized independent tax counsel recognized as expert in such
matters to the effect that the Trust will not be classified for United States
federal income tax purposes as an association taxable as a corporation or a
partnership on account of such action and will be treated as a grantor trust
for United States federal income tax purposes following such action. If the
Property Trustee fails to enforce its rights under the Declaration (including,
without limitation, its rights, powers and privileges as a holder of the
Debentures under the Indenture), any Holder of Preferred Securities may, to
the extent permitted by law, after a period of 30 days has elapsed from
such Holder's written request to the Property Trustee to enforce such
rights, institute a legal proceeding directly against AES to enforce the
Property Trustee's rights under the Declaration, without first instituting
a legal proceeding against the Property Trustee or any other Person.
A waiver of an Indenture Event of Default by the Property
Trustee at the direction of the Holders of the Preferred Securities will
constitute a waiver of the corresponding Event of Default under the
Declaration in respect of the Securities.
Any required approval or direction of Holders of Preferred
Securities may be given at a separate meeting of Holders of Preferred
Securities convened for such purpose, at a meeting of all of the Holders of
Securities of the Trust or pursuant to written consent. The Regular Trustees
will cause a notice of any meeting at which Holders of Preferred Securities
are entitled to vote, or of any matter upon which action by written consent of
such Holders is to be taken, to be mailed to each Holder of record of
Preferred Securities. Each such notice will include a statement setting
forth (i) the date of such meeting or the date by which such action is to
be taken, (ii) a description of any resolution proposed for adoption at
such meeting on which such Holders are entitled to vote or of such matter
upon which written consent is sought and (iii) instructions for the
delivery of proxies or consents.
No vote or consent of the Holders of Preferred Securities will
be required for the Trust to redeem and cancel Preferred Securities in
accordance with the Declaration.
Notwithstanding that Holders of Preferred Securities are
entitled to vote or consent under any of the circumstances described above,
any of the Preferred Securities at such time that are owned by AES or by any
entity directly or indirectly controlling or controlled by or under direct or
indirect common control with AES shall not be entitled to vote or consent and
shall, for purposes of such vote or consent, be treated as if they were not
outstanding.
Except as provided in this paragraph 5, Holders of the
Preferred Securities will have no rights to increase or decrease the number of
Trustees or to appoint, remove or replace a Trustee, which voting rights are
vested solely in the Holders of the Common Securities.
6. Pro Rata Treatment. A reference in these terms of the
Preferred Securities to any payment, distribution or treatment as being "Pro
Rata" shall mean pro rata to each Holder of Securities according to the
aggregate liquidation amount of the Securities held by the relevant Holder in
relation to the aggregate liquidation amount of all Securities outstanding
unless, in relation to a payment, an Event of Default has occurred and is
continuing, in which case any funds available to make such payment shall be
paid first to each Holder of the Preferred Securities pro rata according to
the aggregate liquidation amount of Preferred Securities held by the relevant
Holder relative to the aggregate liquidation amount of all Preferred
Securities outstanding, and only after satisfaction of all amounts owed to
the Holders of the Preferred Securities, to each Holder of Common
Securities pro rata according to the aggregate liquidation amount of Common
Securities held by the relevant Holder relative to the aggregate
liquidation amount of all Common Securities outstanding.
7. Ranking. The Preferred Securities rank pari passu and
payment thereon will be made Pro Rata with the Common Securities except that
where an Event of Default occurs and is continuing, the rights of Holders of
Preferred Securities to payment in respect of Distributions and payments upon
liquidation, redemption or otherwise rank in priority to the rights of Holders
of the Common Securities.
8. Mergers, Consolidations or Amalgamations. The Trust may
not consolidate, amalgamate, merge with or into, or be replaced by, or convey,
transfer or lease its properties and assets to, any corporation or other body.
9. Transfer, Exchange, Method of Payments. Payment of
Distributions and payments on redemption of the Preferred Securities will be
payable, the transfer of the Preferred Securities will be registrable, and
Preferred Securities will be exchangeable for Preferred Securities of other
denominations of a like aggregate liquidation amount, at the principal
corporate trust office of the Property Trustee in The City of New York;
provided that payment of Distributions may be made at the option of the
Regular Trustees on behalf of the Trust by check mailed to the address of
the persons entitled thereto and that the payment on redemption of any
Preferred Security will be made only upon surrender of such Preferred
Security to the Property Trustee.
10. Acceptance of Indenture and Preferred Guarantee. Each
Holder of Preferred Securities, by the acceptance thereof, agrees to the
provisions of (i) the Preferred Guarantee, including the subordination
provisions therein and (ii) the Indenture and the Debentures, including the
subordination provisions of the Indenture.
11. No Preemptive Rights. The Holders of Preferred Securities
shall have no preemptive rights to subscribe to any additional Preferred
Securities or Common Securities.
12. Miscellaneous. These terms shall constitute a part of the
Declaration. The Trust will provide a copy of the Declaration and the
Indenture to a Holder without charge on written request to the Trust at its
principal place of business.
Annex I
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE INSERT
- - This Preferred Security is a Global Certificate within the meaning of the
Declaration hereinafter referred to and is registered in the name of The
Depository Trust Company ("DTC") or a nominee of DTC. This Preferred Security
is exchangeable for Preferred Securities registered in the name of a person
other than DTC or its nominee only in the limited circumstances described in
the Declaration and no transfer of this Preferred Security (other than a
transfer of this Preferred Security as a whole by DTC to a nominee of DTC or
by a nominee of DTC to DTC or another nominee of DTC) may be registered except
in limited circumstances.
Unless this Preferred Security is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York) to
the Trust or its agent for registration of transfer, exchange or payment, and
any Preferred Security issued is registered in the name of Cede & Co. or such
other name as requested by an authorized representative of The Depository
Trust Company and any payment hereon is made to Cede & Co., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL
since the registered owner hereof, Cede & Co., has an interest herein.]
Number ___________ Preferred Securities
___________
CUSIP NO. ____________
Certificate Evidencing Preferred Securities
of
AES Trust [ ]
____% Preferred Trust Securities
(liquidation amount $25 per Preferred Security)
AES Trust [ ], a statutory business trust created under the
laws of the State of Delaware (the "Trust"), hereby certifies that _________
(the "Holder") is the registered owner of _____ (______) preferred securities
of the Trust representing undivided beneficial interests in the assets of the
Trust designated the ____% Preferred Trust Securities (liquidation amount $25
per Preferred Security) (the "Preferred Securities"). The Preferred
Securities are transferable on the books and records of the Trust, in person
or by a duly authorized attorney, upon surrender of this certificate duly
endorsed and in proper form for transfer. The designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Preferred Securities are set forth in, and this certificate and the Preferred
Securities represented hereby are issued and shall in all respects be subject
to the terms and provisions of, the Amended and Restated Declaration of Trust
of the Trust dated as of ___________, 199_, as the same may be amended from
time to time (the "Declaration") including the designation of the terms of
Preferred Securities as set forth in Exhibit B thereto. The Preferred
Securities and the Common Securities issued by the Trust pursuant to the
Declaration represent undivided beneficial interests in the assets of the
Trust, including the Debentures (as defined in the Declaration) issued by The
AES Corporation, a Delaware corporation ("AES"), to the Trust pursuant to the
Indenture referred to in the Declaration. The Holder is entitled to the
benefits of the Guarantee Agreement of AES dated as of __________, 199_ (the
"Guarantee") to the extent provided therein. The Trust will furnish a copy of
the Declaration, the Guarantee and the Indenture to the Holder without charge
upon written request to the Trust at its principal place of business or
registered office.
The Holder of this Certificate, by accepting this Certificate,
is deemed to have (i) agreed to the terms of the Indenture and the Debentures,
including that the Debentures are subordinate and junior in right of
payment to all Senior Debt (as defined in the Indenture) as and to the
extent provided in the Indenture and (ii) agreed to the terms of the
Guarantee, including that the Guarantee is subordinate and junior in right
of payment to all other liabilities of AES, including the Debentures,
except those made pari passu or subordinate by their terms, and senior to
all capital stock now or hereafter issued by AES and to any guarantee now
or hereafter entered into by AES in respect of any of its capital stock.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, the Trustees of the Trust have executed
this certificate this ____ day of __________, 199_.
AES TRUST [ ]
By:_________________________, as Trustee
Name:
Title: Trustee
By:_________________________, as Trustee
Name:
Title: Trustee
Dated:
Countersigned and Registered:
Transfer Agent and Registrar
By:___________________________
Authorized Signature
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security to:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Insert assignee's social security or tax identification number)
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
agent to transfer this Preferred Security Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date: _________________________
Signature: ____________________
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME(S)
AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
EXHIBIT C
TERMS OF
COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration
of Trust of AES Capital Trust [ ] dated as of ____________, 199__ (as amended
from time to time, the "Declaration"), the designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Common
Securities are set forth below (each capitalized term used but not defined
herein having the meaning set forth in the Declaration):
1. Designation and Number. Common Securities of the Trust
with an aggregate liquidation amount in the assets of the Trust of
__________________________________________ Dollars ($____________) and a
liquidation amount in the assets of the Trust of $25 per Common Security, are
hereby designated as "____% Common Trust Securities". The Common Security
Certificates evidencing the Common Securities shall be substantially in the
form attached hereto as Annex I, with such changes and additions thereto or
deletions therefrom as may be required by ordinary usage, custom or practice.
The Common Securities are to be issued and sold to The AES Corporation ("AES")
in consideration of $_____________ in cash. In connection with the issuance
and sale of the Preferred Securities and the Common Securities, the Trust will
purchase as trust assets Debentures of AES having an aggregate principal
amount equal to the aggregate liquidation amount of the Preferred Securities
and Common Securities so issued, and bearing interest at an annual rate equal
to the annual Distribution rate on the Preferred Securities and Common
Securities and having payment and redemption provisions which correspond to
the payment and redemption provisions of the Preferred Securities and Common
Securities.
2. Distributions. (a) Distributions payable on each Common
Security will be fixed at a rate per annum of ____% (the "Coupon Rate") of the
stated liquidation amount of $25 per Common Security. Distributions in
arrears for more than one calendar quarter will bear interest at the rate per
annum of ____% thereof (to the extent permitted by applicable law), compounded
quarterly. The term "Distributions" as used in these terms means such
periodic cash distributions and any such interest payable unless otherwise
stated. A Distribution will be made by the Property Trustee only to the
extent that interest payments are made in respect of the Debentures held by
the Property Trustee. The amount of Distributions payable for any period
will be computed for any monthly Distribution period on the basis of a 365-day
year of 4 calendar quarters, viz: March 31, June 30, September 30 and
December 31.
(b) Distributions on the Common Securities will be cumulative,
will accrue from _________, 199__ and will be payable quarterly in arrears, on
the last day of each month commencing on __________, 199__, except as
otherwise described below, but only if and to the extent that interest
payments are made in respect of the Debentures held by the Property
Trustee. So long as AES shall not be in default in the payment of interest
on the Debentures, AES has the right under the Indenture for the Debentures
to defer payments of interest by extending the interest payment period from
time to time on the Debentures for a period not exceeding [to come]
consecutive quarterly interest periods (each, an "Extension Period") and,
as a consequence, monthly Distributions will continue to accrue with
interest thereon (to the extent permitted by applicable law) at the rate of
____% per annum, compounded quarterly during any such Extension Period.
Prior to the termination of any such Extension Period, AES may further
extend such Extension Period; provided that such Extension Period together
with all such previous and further extensions thereof may not exceed [to
come] consecutive quarterly interest periods. Upon the termination of any
Extension Period and the payment of all amounts then due, AES may commence
a new Extension Period, subject to the above requirements. Payments of
accrued Distributions will be payable to Holders of Common Securities as
they appear on the books and records of the Trust on the first record date
after the end of the Extension Period.
(c) Distributions on the Common Securities will be payable
promptly by the Property Trustee (or other Paying Agent) upon receipt of
immediately available funds to the Holders thereof as they appear on the books
and records of the Trust on the relevant record dates which will be one
business day prior to the relevant Distribution date unless the Preferred
Securities are no longer in book-entry only form in which event the relevant
record dates will be the fifteenth (15th) day of the month prior to the
relevant Distribution date, which record and payment dates correspond to the
record and interest payment dates on the Debentures. Distributions payable on
any Common Securities that are not punctually paid on any Distribution date as
a result of AES having failed to make the corresponding interest payment on
the Debentures will forthwith cease to be payable to the person in whose name
such Common Security is registered on the relevant record date, and such
defaulted Distribution will instead be payable to the person in whose name
such Common Security is registered on the special record date established
by the Regular Trustees, which record date shall correspond to the special
record date or other specified date determined in accordance with the
Indenture; provided, however, that Distributions shall not be considered
payable on any Distribution payment date falling within an Extension Period
unless AES has elected to make a full or partial payment of interest
accrued on the Debentures on such Distribution payment date. Subject to
any applicable laws and regulations and the provisions of the Declaration,
each payment in respect of the Common Securities will be made as described
in paragraph 9 hereof. If any date on which Distributions are payable on
the Common Securities is not a Business Day, then payment of the
Distribution payable on such date will be made on the next succeeding day
that is a Business Day (and without any interest or other payment in
respect of any such delay) except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if
made on such date.
(d) All Distributions paid with respect to the Common
Securities and the Preferred Securities will be paid Pro Rata to the Holders
thereof entitled thereto. If an Event of Default has occurred and is
continuing, the Preferred Securities shall have a priority over the Common
Securities with respect to Distributions.
(e) In the event that there is any money or other property held
by or for the Trust that is not accounted for under the Declaration, such
money or property shall be distributed Pro Rata among the Holders of the
Preferred Securities and Common Securities.
3. Liquidation Distribution Upon Dissolution. In the event of
any voluntary or involuntary dissolution, winding-up or termination of the
Trust, the Holders of the Preferred Securities and Common Securities at the
date of the dissolution, winding-up or termination, as the case may be, will
be entitled to receive Pro Rata solely out of the assets of the Trust
available for distribution to Holders of Preferred Securities and Common
Securities, after satisfaction of liabilities to creditors, an amount equal to
the aggregate of the stated liquidation amount of $25 per Preferred Security
and Common Security plus accrued and unpaid Distributions thereon to the date
of payment (such amount being the "Liquidation Distribution"), unless, in
connection with such dissolution, winding-up or termination, and after
satisfaction of liabilities to creditors, Debentures in an aggregate principal
amount equal to the aggregate stated liquidation amount of such Preferred
Securities and Common Securities bearing accrued and unpaid interest in an
amount equal to the accrued and unpaid Distributions on, such Preferred
Securities and Common Securities, shall be distributed Pro Rata to the Holders
of the Preferred Securities and Common Securities in exchange for such
Securities.
If, upon any such dissolution, the Liquidation Distribution can
be paid only in part because the Trust has insufficient assets available to
pay in full the aggregate Liquidation Distribution, then the amounts payable
directly by the Trust on the Preferred Securities and Common Securities shall
be paid, subject to the next paragraph, on a Pro Rata basis.
Holders of Common Securities will be entitled to receive
Liquidation Distributions upon any such dissolution Pro Rata with Holders of
Preferred Securities, except that if an Event of Default has occurred and is
continuing, the Preferred Securities shall have a priority over the Common
Securities with respect to such Liquidation Distribution.
4. Redemption and Distribution of Debentures. The Preferred
Securities and Common Securities may only be redeemed if Debentures having an
aggregate principal amount equal to the aggregate liquidation amount of the
Preferred Securities and Common Securities are repaid, redeemed or distributed
as set forth below:
(a) Upon the repayment of the Debentures, in whole or in
part, whether at maturity, upon redemption at any time or from time to time on
or after __________, 200_, the proceeds of such repayment will be promptly
applied to redeem Pro Rata Preferred Securities and Common Securities having
an aggregate liquidation amount equal to the aggregate principal amount of the
Debentures so repaid or redeemed, upon not less than 30 nor more than 60 days'
notice, at a redemption price of $25 per Preferred and Common Security plus an
amount equal to accrued and unpaid Distributions thereon to the date of
redemption, payable in cash (the "Redemption Price"). The date of any such
repayment or redemption of Preferred Securities and Common Securities shall be
established to coincide with the repayment or redemption date of the
Debentures.
(b) If fewer than all the outstanding Preferred Securities
and Common Securities are to be so redeemed, the Preferred Securities and the
Common Securities will be redeemed Pro Rata and the Common Securities to be
redeemed will be redeemed as described in paragraph 4(e)(ii) below. If a
partial redemption would result in the delisting of the Preferred Securities
by any national securities exchange or other organization on which the
Preferred Securities are then listed, AES pursuant to the Indenture will only
redeem Debentures in whole and, as a result, the Trust may only redeem the
Common Securities in whole.
(c) If, at any time, a Tax Event or an Investment Company
Event (each as hereinafter defined, and each a "Special Event") shall occur
and be continuing, the Regular Trustees shall, unless the Debentures are
redeemed in the limited circumstances described below, dissolve the Trust and,
after satisfaction of creditors, cause Debentures held by the Property Trustee
having an aggregate principal amount equal to the aggregate stated liquidation
amount of and accrued and unpaid interest equal to accrued and unpaid
Distributions on, and having the same record date for payment as the Preferred
Securities and Common Securities, to be distributed to the Holders of the
Preferred Securities and Common Securities on a Pro Rata basis in liquidation
of such Holders' interests in the Trust, within 90 days following the
occurrence of such Special Event (the "90 Day Period"); provided, however,
that in the case of the occurrence of a Tax Event, as a condition of such
dissolution and distribution, the Regular Trustees shall have received an
opinion of a nationally recognized independent tax counsel experienced in such
matters (a "No Recognition Opinion"), which opinion may rely on any then
applicable published revenue rulings of the Internal Revenue Service, to the
effect that the Holders of the Preferred Securities will not recognize any
gain or loss for United States federal income tax purposes as a result of the
dissolution of the Trust and distribution of Debentures; and provided,
further, that, if and as long as at the time there is available to the Trust
the opportunity to eliminate, within such 90 Day Period, the Special Event by
taking some ministerial action, such as filing a form or making an election,
or pursuing some other similar reasonable measure that has no adverse effect
on the Trust, AES or the Holders of the Preferred Securities ("Ministerial
Action") the Trust will pursue such measure in lieu of dissolution.
If in the case of the occurrence of a Tax Event, (i) the
Regular Trustees have received an opinion (a "Redemption Tax Opinion") of
nationally recognized independent tax counsel experienced in such matters
that, as a result of a Tax Event, there is more than an insubstantial risk
that AES would be precluded from deducting the interest on the Debentures for
United States federal income tax purposes even if the Debentures were
distributed to the Holders of Preferred Securities and Common Securities in
liquidation of such Holder's interest in the Trust as described in this
paragraph 4(c) or (ii) the Regular Trustees shall have been informed by such
tax counsel that a No Recognition Opinion cannot be delivered to the Trust,
AES shall have the right at any time, upon not less than 30 nor more than
60 days' notice, to redeem the Debentures in whole or in part for cash at
the Redemption Price within 90 days following the occurrence of such Tax
Event, and promptly following such redemption Preferred Securities and
Common Securities with an aggregate liquidation amount equal to the
aggregate principal amount of the Debentures so redeemed will be redeemed
by the Trust at the Redemption Price on a Pro Rata basis: provided,
however, that, if at the time there is available to AES or the Regular
Trustees on behalf of the Trust the opportunity to eliminate, within such
90 day period, the Tax Event by taking some Ministerial Action, AES or the
Holders of the Preferred Securities, AES or the Regular Trustees on behalf
of the Trust will pursue such measure in lieu of redemption; and provided,
further, that AES shall have no right to redeem the Debentures while the
Regular Trustees on behalf of the Trust are pursuing such Ministerial
Action. The Common Securities will be redeemed Pro Rata with the Preferred
Securities, except that if an Event of Default under the Indenture has
occurred and is continuing, the Preferred Securities will have a priority
over the Common Securities with respect to payment of the Redemption Price.
"Tax Event" means that the Regular Trustees shall have obtained
an opinion of nationally recognized independent tax counsel experienced in
such matters (a "Dissolution Tax Opinion") to the effect that on or after
__________, 199_ as a result of (a) any amendment to, or change (including any
announced prospective change) in, the laws (or any regulations thereunder) of
the United States or any political subdivision or taxing authority thereof or
therein, (b) any amendment to, or change in, an interpretation or application
of any such laws or regulations by any legislative body, court, governmental
agency or regulatory authority (including the enactment of any legislation and
the publication of any judicial decision or regulatory determination), (c) any
interpretation or pronouncement that provides for a position with respect to
such laws or regulations that differs from the theretofore generally accepted
position or (d) any action taken by any governmental agency or regulatory
authority, which amendment or change is enacted, promulgated, issued or
announced or which interpretation or pronouncement is issued or announced or
which action is taken, in each case on or after __________, 199_, there is
more than an insubstantial risk that (i) the Trust is, or will be within 90
days of the date thereof, subject to United States federal income tax with
respect to income accrued or received on the Debentures, (ii) the Trust is, or
will be within 90 days of the date thereof, subject to more than a de minimis
amount of taxes, duties or other governmental charges or (iii) interest
payable by AES to the Trust on the Debentures is not, or within 90 days of the
date thereof will not be, deductible by AES for United States federal income
tax purposes.
"Investment Company Event" means that the Regular Trustees
shall have received an opinion of nationally recognized independent counsel
experienced in practice under the Investment Company Act that, as a result of
the occurrence of a change in law or regulation or a change in interpretation
or application of law or regulation by any legislative body, court,
governmental agency or regulatory authority (a "Change in 1940 Act Law"),
there is more than an insubstantial risk that the Trust is or will be
considered an Investment Company which is required to be registered under the
Investment Company Act, which Change in 1940 Act Law becomes effective on or
after __________, 199_.
On the date fixed for any distribution of Debentures, upon
dissolution of the Trust, (i) the Common Securities will no longer be deemed
to be outstanding and (ii) any certificates representing Common Securities
will be deemed to represent beneficial interests in the Debentures having an
aggregate principal amount equal to the stated liquidation amount of, and
bearing accrued and unpaid interest equal to accrued and unpaid Distributions
on, such Common Securities until such certificates are presented to AES or its
agent for transfer or reissuance.
(d) The Trust may not redeem fewer than all the outstanding
Common Securities unless all accrued and unpaid Distributions have been paid
on all Common Securities for all monthly Distribution periods terminating on
or prior to the date of redemption.
(e)(i) Notice of any redemption of, or notice of distribution
of Debentures in exchange for, the Preferred Securities and Common Securities
(a "Redemption/Distribution Notice") will be given by the Regular Trustees on
behalf of the Trust by mail to each Holder of Preferred Securities and Common
Securities to be redeemed or exchanged not less than 30 nor more than 60 days
prior to the date fixed for redemption or exchange thereof. For purposes of
the calculation of the date of redemption or exchange and the dates on which
notices are given pursuant to this paragraph (e)(i), a Redemption/Distribution
Notice shall be deemed to be given on the day such notice is first mailed by
first-class mail, postage prepaid, to Holders of Preferred Securities and
Common Securities. Each Redemption/Distribution Notice shall be addressed to
the Holders of Preferred Securities and Common Securities at the address of
each such Holder appearing in the books and
records of the Trust. No defect in the Redemption/Distribution Notice or in
the mailing of either thereof with respect to any Holder shall affect the
validity of the redemption or exchange proceedings with respect to any other
Holder.
(ii) In the event that fewer than all the outstanding Common
Securities are to be redeemed, the Common Securities to be redeemed will be
redeemed Pro Rata from each Holder of Common Securities (subject to adjustment
to eliminate fractional Common Securities).
(iii) If the Trust gives a Redemption/ Distribution Notice in
respect of a redemption of Common Securities as provided in this paragraph 4
(which notice will be irrevocable) then immediately prior to the close of
business on the redemption date, provided that AES has paid to the Property
Trustee in immediately available funds a sufficient amount of cash in
connection with the related redemption or maturity of the Debentures,
Distributions will cease to accrue on the Common Securities called for
redemption, such Common Securities will no longer be deemed to be outstanding
and all rights of Holders of such Common Securities so called for redemption
will cease, except the right of the Holders of such Common Securities to
receive the Redemption Price, but without interest on such Redemption Price.
Neither the Trustees nor the Trust shall be required to register or cause to
be registered the transfer of any Common Securities which have been so called
for redemption. If any date fixed for redemption of Common Securities is not
a Business Day, then payment of the Redemption Price payable on such date will
be made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay) except that, if such
Business Day falls in the next calendar year, such payment will be made on the
immediately preceding Business Day, in each case with the same force and
effect as if made on such date fixed for redemption. If payment of the
Redemption Price in respect of Common Securities is improperly withheld or
refused and not paid by the Property Trustee, Distributions on such Common
Securities will continue to accrue, from the original redemption date to the
date of payment, in which case the actual payment date will be considered the
date fixed for redemption for purposes of calculating the Redemption Price.
(iv) Redemption/Distribution Notices shall be sent by the
Regular Trustees on behalf of the Trust to the Holders of the Common
Securities.
(v) Upon the date of dissolution of the Trust and distribution
of Debentures as a result of the occurrence of a Special Event, Common
Security Certificates shall be deemed to represent beneficial interests in the
Debentures so distributed, and the Common Securities will no longer be deemed
outstanding and may be canceled by the Regular Trustees. The Debentures so
distributed shall have an aggregate principal amount equal to the aggregate
liquidation amount of the Common Securities so distributed.
5. Voting Rights. (a) Except as provided under paragraph
5(b) below and as otherwise required by law and the Declaration, the Holders
of the Common Securities will have no voting rights.
(b) Holders of Common Securities have the sole right under the
Declaration to increase or decrease the number of Trustees, and to appoint,
remove or replace a Trustee, any such increase, decrease, appointment, removal
or replacement to be approved by Holders of Common Securities representing a
Majority in liquidation amount of the Common Securities.
If any proposed amendment to the Declaration provides for, or
the Regular Trustees otherwise propose to effect, (i) any action that would
adversely affect the powers, preferences or special rights of the Securities,
whether by way of amendment to the Declaration or otherwise, or (ii) the
dissolution, winding-up or termination of the Trust, other than in connection
with the distribution of Debentures held by the Property Trustee, upon the
occurrence of a Special Event or in connection with the redemption of Common
Securities as a consequence of a redemption of Debentures, then the Holders of
outstanding Securities will be entitled to vote on such amendment or proposal
as a class and such amendment or proposal shall not be effective except with
the approval of the Holders of Securities representing 66-2/3% in liquidation
amount of such Securities; provided, however, that (A) if any amendment or
proposal referred to in clause (i) above would adversely affect only the
Preferred Securities or the Common Securities, then only the affected class
will be entitled to vote on such amendment or proposal and such amendment or
proposal shall not be effective except with the approval of 66-2/3% in
liquidation amount of such class of Securities, (B) the rights of Holders of
Common Securities under Article V of the Declaration to increase or decrease
the number of, and to appoint, replace or remove, Trustees shall not be
amended without the consent of each Holder of Common Securities, and (C)
amendments to the Declaration shall be subject to such further requirements
as are set forth in Sections 12.1 and 12.2 of the Declaration.
In the event the consent of the Property Trustee as the holder
of the Debentures, is required under the Indenture with respect to any
amendment, modification or termination of the Indenture or the Debentures, the
Property Trustee shall request the written direction of the Holders of the
Securities with respect to such amendment, modification or termination. The
Property Trustee shall vote with respect to such amendment, modification or
termination as directed by a Majority in liquidation amount of the Securities
voting together as a single class; provided that where such amendment,
modification or termination of the Indenture requires the consent or vote of
(1) holders of Debentures representing a specified percentage greater than a
majority in principal amount of the Debentures or (2) each holder of
Debentures, the Property Trustee may only vote with respect to that amendment,
modification or termination as directed by, in the case of clause (1) above,
the vote of Holders of Securities representing such specified percentage of
the aggregate liquidation amount of the Securities, or, in the case of
clause (2) above, each Holder of Securities; and provided, further, that
the Property Trustee shall be under no obligation to take any action in
accordance with the directions of the Holders of the Securities unless the
Property Trustee shall have received, at the expense of the Sponsor, an
opinion of nationally recognized independent tax counsel recognized as an
expert in such matters to the effect that the Trust will not be classified
for United States federal income tax purposes as an association taxable as
a corporation or a partnership on account of such action and will be
treated as a grantor trust for United States federal income tax purposes
following such action.
Subject to Section 2.6 of the Declaration, and the provisions
of this and the next succeeding paragraph, the Holders of a Majority in
liquidation amount of the Common Securities, voting separately as a class
shall have the right to (A) on behalf of all Holders of Common Securities,
waive any past default that is waivable under the Declaration (subject to, and
in accordance with the Declaration) and (B) direct the time, method, and place
of conducting any proceeding for any remedy available to the Property Trustee,
or exercising any trust or power conferred upon the Property Trustee under the
Declaration, including the right to direct the Property Trustee, as holder of
the Debentures, to (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Debenture Trustee, or exercising
any trust or power conferred on the Debenture Trustee with respect to the
Debentures, (ii) waive any past default and its consequences that is waivable
under Section 6.06 of the Indenture, or (iii) exercise any right to rescind or
annul a declaration that the principal of all the Debentures shall be due and
payable; provided that where the taking of any action under the Indenture
requires the consent or vote of (1) holders of Debentures representing a
specified percentage greater than a majority in principal amount of the
Debentures or (e) each holder of Debentures, the Property Trustee may only
take such action if directed by, in the case of clause (1) above, the vote
of Holders of Common Securities representing such specified percentage of
the aggregate liquidation amount of the Common Securities, or, in the case
of clause (2) above, each Holder of Common Securities. Pursuant to this
paragraph, the Property Trustee shall not revoke, or take any action
inconsistent with, any action previously authorized or approved by a vote
of the Holders of the Preferred Securities, and shall not take any action
in accordance with the direction of the Holders of the Common Securities
under this paragraph if the action is prejudicial to the Holders of
Preferred Securities. Other than with respect to directing the time,
method and place of conducting any proceeding for any remedy available to
the Property Trustee or the Debenture Trustee as set forth above, the
Property Trustee shall be under no obligation to take any of the foregoing
actions at the direction of the Holders of Common Securities unless the
Properties Trustee shall have received, at the expense of the Sponsor, an
opinion of nationally recognized independent tax counsel recognized as
expert in such matters to the effect that the Trust will not be classified
for United States federal income tax purposes as an association taxable as
a corporation or a partnership on account of such action and will be
treated as a grantor trust for United States income tax purposes following
such action.
Notwithstanding any other provision of these terms, each Holder
of Common Securities will be deemed to have waived any Event of Default with
respect to the Common Securities and its consequences until all Events of
Default with respect to the Preferred Securities have been cured, waived by
the Holders of Preferred Securities as provided in the Declaration or
otherwise eliminated, and until all Events of Default with respect to the
Preferred Securities have been so cured, waived by the Holders of Preferred
Securities or otherwise eliminated, the Property Trustee will be deemed to be
acting solely on behalf of the Holders of Preferred Securities and only the
Holders of the Preferred Securities will have the right to direct the Property
Trustee in accordance with the terms of the Declaration or of the Securities.
In the event that any Event of Default with respect to the Preferred
Securities is waived by the Holders of Preferred Securities as provided in the
Declaration, the Holders of Common Securities agree that such waiver shall
also constitute the waiver of such Event of Default with respect to the Common
Securities for all purposes under the Declaration without any further act,
vote or consent of the Holders of the Common Securities.
A waiver of an Indenture Event of Default by the Property
Trustee at the direction of the Holders of the Preferred Securities will
constitute a waiver of the corresponding Event of Default under the
Declaration in respect of the Securities.
Any required approval of Holders of Common Securities may be
given at a separate meeting of Holders of Common Securities convened for such
purpose, at a meeting of all of the Holders of Securities of the Trust or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Common Securities are entitled to vote, or of any
matter upon which action by written consent of such Holders is to be taken, to
be mailed to each Holder of record of Common Securities. Each such notice
will include a statement setting forth (i) the date of such meeting or the
date by which such action is to be taken, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders are entitled to
vote or of such matter upon which written consent is sought and (iii)
instructions for the delivery of proxies or consents.
No vote or consent of the Holders of Common Securities will be
required for the Trust to redeem and cancel Common Securities in accordance
with the Declaration.
6. Pro Rata Treatment. A reference in these terms of the
Common Securities to any payment, distribution or treatment as being "Pro
Rata" shall mean pro rata to each Holder of Securities according to the
aggregate liquidation amount of the Securities held by the relevant Holder in
relation to the aggregate liquidation amount of all Securities outstanding
unless, in relation to a payment, an Event of Default has occurred and is
continuing, in which case any funds available to make such payment shall be
paid first to each Holder of the Preferred Securities pro rata according to
the aggregate liquidation amount of Preferred Securities held by the relevant
Holder relative to the aggregate liquidation amount of all Preferred
Securities outstanding, and only after satisfaction of all amounts owed to
the Holders of the Preferred Securities, to each Holder of Common
Securities pro rata according to the aggregate liquidation amount of Common
Securities held by the relevant Holder relative to the aggregate
liquidation amount of all Common Securities outstanding.
7. Ranking. The Common Securities rank pari passu and payment
thereon will be made Pro Rata with the Preferred Securities except that where
an Event of Default occurs and is continuing, the rights of Holders of Common
Securities to payment in respect of Distributions and payments upon
liquidation, redemption or otherwise are subordinate to the rights of Holders
of the Preferred Securities.
8. Mergers, Consolidations or Amalgamations. The Trust may
not consolidate, amalgamate, merge with or into, or be replaced by, or convey,
transfer or lease its properties and assets to, any corporation or other body.
9. Transfers, Exchanges, Method of Payments. Payment of
Distributions and payments on redemption of the Common Securities will be
payable, the transfer of the Common Securities will be registrable, and Common
Securities will be exchangeable for Common Securities of other denominations
of a like aggregate liquidation amount, at the principal corporate trust
office of the Property Trustee in The City of New York; provided that payment
of Distributions may be made at the option of the Regular Trustees on behalf
of the Trust by check mailed to the address of the persons entitled thereto
and that the payment on redemption of any Common Security will be made only
upon surrender of such Common Security to the Property Trustee.
Notwithstanding the foregoing, transfers of Common Securities are subject to
conditions set forth in Section 9.1(c) of the Declaration.
10. Acceptance of Indenture. Each Holder of Common
Securities, by the acceptance thereof, agrees to the provisions of the
Indenture and the Debentures, including the subordination provisions thereof.
11. No Preemptive Rights. The Holders of Common Securities
shall have no preemptive rights to subscribe to any additional Common
Securities or Preferred Securities.
12. Miscellaneous. These terms shall constitute a part of the
Declaration. The Trust will provide a copy of the Declaration and the
Indenture to a Holder without charge on written request to the Trust at its
principal place of business.
Annex I
TRANSFER OF THIS CERTIFICATE
IS SUBJECT TO THE CONDITIONS
SET FORTH IN THE DECLARATION
REFERRED TO BELOW
Certificate Number Number of Common Securities
__________ ______________
Certificate Evidencing Common Securities
of
AES Trust [ ]
____% Common Trust Securities
(liquidation amount $25 per Common Security)
AES Trust [ ], a statutory business trust formed under the laws
of the State of Delaware (the "Trust"), hereby certifies that The AES
Corporation (the "Holder") is the registered owner of
____________________________ (_________) common securities of the Trust
representing undivided beneficial interests in the assets of the Trust
designated the "____% Common Trust Securities" (liquidation amount $25 per
Common Security) (the "Common Securities"). The Common Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer and satisfaction of the other conditions set forth in
the Declaration (as defined below) including, without limitation Section
9.1(c) thereof. The designations, rights, privileges, restrictions,
preferences and other terms and provisions of the Common Securities are set
forth in, and this certificate and the Common Securities represented hereby
are issued and shall in all respects be subject to the terms and provisions
of, the Amended and Restated Declaration of Trust of the Trust dated as of
__________, 199__, as the same may be amended from time to time (the
"Declaration") including the designation of the terms of Common Securities as
set forth in Exhibit C thereto. The Common Securities and the Preferred
Securities issued by the Trust pursuant to the Declaration represent undivided
beneficial interests in the assets of the Trust, including the Debentures (as
defined in the Declaration) issued by The AES Corporation, a Delaware
corporation, to the Trust pursuant to the Indenture referred to in the
Declaration. The Trust will furnish a copy of the Declaration and the
Indenture to the Holder without charge upon written request to the Trust at
its principal place of business or registered office.
The Holder of this Certificate, by accepting this Certificate,
is deemed to have agreed to the terms of the Indenture and the Debentures,
including that the Debentures are subordinate and junior in right of payment
to all Senior Debt (as defined in the Indenture) as and to the extent provided
in the Indenture.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, the Trustees of the Trust have executed
this certificate this ___ day of _____________, 199_.
AES TRUST [ ]
By________________________, as Trustee
Name:
Title: Trustee
By_________________________, as Trustee
Name:
Title: Trustee
Dated:
Countersigned and Registered:
______________________________
Transfer Agent and Registrar
By:___________________________
Authorized Signature
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common Security
Certificate to:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Insert assignee's social security or tax identification number)
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
______________________________________________________________________________
______________________________________________________________________________
_______________________________________________________ agent to transfer this
Common Security Certificate on the books of the Trust. The agent may
substitute another to act for him or her.
Date:___________________________________
Signature: _____________________________
(Sign exactly as your name appears on the other side of this Common Security
Certificate)
Exhibit 4.11
THE AES CORPORATION
AND
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
__________________
[ ] SUPPLEMENTAL INDENTURE
Dated as of _____________, 199__
TO
JUNIOR SUBORDINATED INDENTURE
Dated as of ___________, 199__
___________________
_____% Junior Subordinated Securities
Due ___
[ ] Supplemental INDENTURE, dated as of the _____ day of
__________ 199___ (the "[ ] Supplemental Indenture"), between THE AES
CORPORATION, a corporation duly organized and existing under the laws of the
State of Delaware (hereinafter sometimes referred to as the "Company") and The
First National Bank of Chicago, a national banking association, as trustee
(hereinafter sometimes referred to as the "Trustee") under the Junior
Subordinated Indenture dated as of _______ __, 199_ between the Company and
the Trustee (the "Indenture"); as set forth in Section 7.01 hereto and except
as otherwise set forth herein, all terms used and not defined herein are used
as defined in the Indenture),
WHEREAS, the Company executed and delivered the Indenture to
the Trustee to provide for the future issuance of its junior subordinated
Securities (the "Debentures"), said Debentures to be issued from time to time
in series as might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered
thereunder as in the Indenture provided; and
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a new series of its Debentures to
be known as its ____% Junior Subordinated Debentures due ___ (said series being
hereinafter referred to as the "Series ____% Debentures"), the form and
substance of such Series ____% Debentures and the terms, provisions and
conditions thereof to be set forth as provided in the Indenture and this [ ]
Supplemental Indenture; and
WHEREAS, the Company has caused to be formed AES Trust [ ]
("AES Trust [ ]") as a statutory business trust under the Business Trust Act
of the State of Delaware (12 Del. Code Section 3801 et seq.) pursuant to a
declaration of trust dated ______ __, 199__ (the "Original Declaration") and
the filing of a certificate of trust with the Secretary of State of the State
of Delaware on _____ __, 199__; and
WHEREAS, the Original Declaration is to be amended and restated
in its entirety pursuant to an Amended and Restated Declaration of Trust dated
as of ___________, 199___ (such Amended and Restated Declaration of Trust, as
amended from time to time, the "Declaration of Trust"); and
WHEREAS, AES Trust [ ] desires to issue its ____% Preferred
Trust Securities (the "Preferred Securities") and sell such Preferred
Securities to initial purchasers; and
WHEREAS, in connection with such purchases of Preferred
Securities and the related purchase by the Company of the Common Securities
(as defined in the Declaration of Trust) of AES Trust [ ], AES Trust [ ] will
purchase as trust assets Series ____% Debentures; and
WHEREAS, pursuant to the Declaration of Trust, the legal title
to the Series ____% Debentures shall be owned and held of record in the name
of The Bank of New York or its successor under the Declaration of Trust, as
Property Trustee (the "Property Trustee"), in trust for the benefit of holders
of the Preferred Securities and the Common Securities; and
WHEREAS, upon the occurrence of a Special Event (as defined in
the Declaration of Trust) the Regular Trustees (as defined in the Declaration
of Trust) of AES Trust [ ] shall, unless the Series ____% Debentures are
redeemed as described herein, dissolve AES Trust [ ] and cause to be
distributed to the holders of the Preferred Securities and Common Securities,
on a Pro Rata basis (determined as provided in the terms of the Preferred
Securities and Common Securities attached as Exhibits B and C to the
Declaration of Trust), Series ____% Debentures and in connection with a
Liquidation Distribution (as defined in the Declaration of Trust) the Regular
Trustees may cause to be distributed to holders of Preferred Securities and
Common Securities, on such a Pro Rata basis, Series ____% Debentures (each a
"Dissolution Event"); and
WHEREAS, the Company desires and has requested the Trustee to
join with it in the execution and delivery of this [ ] Supplemental
Indenture, and all requirements necessary to make this [ ] Supplemental
Indenture a valid instrument, in accordance with its terms, and to make the
Series ____% Debentures when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company, have been
performed and fulfilled, and the execution and delivery hereof have been in
all respects duly authorized;
NOW THEREFORE, in consideration of the purchase and acceptance
of the Series ____% Debentures by the holders thereof, and for the purpose of
setting forth, as provided in the Indenture, the form and substance of the
Series ____% Debentures and the terms, provisions and conditions thereof, the
Company covenants and agrees with the Trustee as follows:
ARTICLE ONE
General Terms and Conditions of
the Series ____% Debentures
SECTION 1.01. There shall be and is hereby authorized a series
of Debentures designated the "____% Junior Subordinated Debentures Due 20___",
limited in aggregate principal amount to $_____________ (except as provided in
this Section 1.01 and 6.01). Upon exercise of the overallotment option set
forth in the Underwriting Agreement (as defined in the Declaration of Trust),
additional Series ____% Debentures in the aggregate principal amount of up to
$__________ may be executed by the Company and delivered to the Trustee for
authentication, and the Trustee shall thereupon authenticate and deliver said
Series ____% Debentures to or upon the written order of the Company, which
order shall be accompanied by evidence satisfactory to the Trustee that the
overallotment option has been exercised. The Series ____% Debentures shall
mature and the principal shall be due and payable together with all accrued
and unpaid interest thereon, including Compounded Interest (as hereinafter
defined) on _________ , 20___.
SECTION 1.02. (a) Except as provided in Section 1.02(b), the
Series ____% Debentures shall be issued in fully registered certificated form
without interest coupons. Principal and interest on the Series ____%
Debentures issued in certificated form will be payable, the transfer of such
Series ____% Debentures will be registrable and such Series ____% Debentures
will be exchangeable for Series ____% Debentures bearing identical terms and
provisions at the office or agency of the Company in the Borough of Manhattan,
The City and State of New York; provided, however, that payment of interest
may be made at the option of the Company by check mailed to the registered
holder at such address as shall appear in the Debenture register and that the
payment of principal with respect to the Series ____% Debentures will only be
made upon surrender of the Series ____% Debentures to the Trustee.
Notwithstanding the foregoing, so long as the Property Trustee is the legal
owner and record holder of the Series ____% Debentures, the payment of the
principal of and interest (including Compounded Interest, if any) on the
Series ____% Debentures held by the Property Trustee will be made by the
Company in immediately available funds on the payment date therefor at such
place and to the Property Account (as defined in the Declaration of Trust)
established and maintained by the Property Trustee pursuant to the Declaration
of Trust.
(b) In connection with a Dissolution Event;
(i) Series ____% Debentures in certificated form may be
presented to the Trustee by the Property Trustee in
exchange for a Global Debenture representing the Series
____% Debentures in an aggregate principal amount equal
to all Outstanding Series ____% Debentures, to be
registered in the name of the Depositary, or its nominee,
and delivered by the Trustee to the Depositary for
crediting to the accounts of its participants pursuant to
the instructions of the Regular Trustees (as defined in
the Declaration of Trust). The Company upon any such
presentation shall execute a Global Debenture
representing the Series ____% Debentures in such
aggregate principal amount and deliver the same to the
Trustee for authentication and delivery in accordance
with the Indenture and this [ ] Supplemental Indenture.
Payments on the Series ____% Debentures issued as a
Global Debenture will be made to the Depositary; and
(ii) if any Preferred Securities are held in non book-entry
certificated form, Series ____% Debentures in
certificated form may be presented to the Trustee by the
Property Trustee and any Preferred Security Certificate
(as defined in the Declaration of Trust) which represents
Preferred Securities other than Preferred Securities held
by the Clearing Agency (as defined in the Declaration of
Trust) or its nominee ("Non Book-Entry Preferred
Securities") will be deemed to represent beneficial
interests in Series ____% Debentures presented to the
Trustee by the Property Trustee having an aggregate
principal amount equal to the aggregate liquidation
amount of the Non Book-Entry Preferred Securities until
such Preferred Security Certificate are presented to the
Debenture Registrar for transfer or reissuance at which
time such Preferred Security Certificate will be
cancelled and a Series ____% Debenture, registered in the
name of the holder of the Preferred Security Certificate
or the transferee of the holder of such Preferred
Security Certificate, as the case may be, with an
aggregate principal amount equal to the aggregate
liquidation amount of the Preferred Security Certificate
canceled will be executed by the Company and delivered to
the Trustee for authentication and delivery in accordance
with the Indenture and this [ ] Supplemental Indenture.
On issue of such Series ____% Debentures, Series ____%
Debentures with an equivalent aggregate amount that were
presented by the Property Trustee to the Trustee will be
deemed to have been canceled.
SECTION 1.03. Each Series ____% Debenture will bear interest
at the rate of ____% per annum from _______________, 199___ until the
principal thereof becomes due and payable, and on any overdue principal and
(to the extent that payment of such interest is enforceable under applicable
law) on any overdue installment of interest at the same rate per annum,
compounded quarterly, payable (subject to the provisions of Article Three)
quarterly in arrears on the last day of each calendar quarter, viz. March 31,
June 30, September 30 and December 31 (each, an "Interest Payment Date",
commencing on __________ __, 199__), to the person in whose name such Series
____% Debenture or any predecessor Series ____% Debenture is registered, at
the close of business on the regular record date for such interest
installment, which, except as set forth below, shall be, in respect of any
Series ____% Debentures of which the Property Trustee is the registered holder
of or a Global Debenture, the close of business on the business day next
preceding that Interest Payment Date. Notwithstanding the foregoing sentence,
if the Preferred Securities are no longer in book-entry only form or if
pursuant to the provisions of Section 2.11(c) of the Indenture the Series
____% Debentures are not represented by a Global Debenture, the regular record
dates for such interest installment shall be the close of business on the
[last day of the month next preceding that Interest Payment Date]. Any such
interest installment not punctually paid or duly provided for shall forthwith
cease to be payable to the registered holders on such regular record date, and
may be paid to the person in whose name the Series ____% Debenture (or one or
more Predecessor Debentures) is registered at the close of business on a
special record date to be fixed by the Trustee for the payment of such
defaulted interest, notice whereof shall be given to the registered holders of
the Series ____% Debentures not less than 10 days prior to such special record
date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Series ____%
Debentures may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture.
The amount of interest payable for any period will be computed
on the basis of a 365-day year of 4 calendar quarters. In the event that any
date on which interest is payable on the Series ____% Debentures is not a
business day, then payment of interest payable on such date will be made on
the next succeeding day which is a business day (and without any interest or
other payment in respect of any such delay), except that, if such business day
is in the next succeeding calendar year, such payment shall be made on the
immediately preceding business day, in each case with the same force and
effect as if made on such date.
ARTICLE TWO
Optional Redemption
of the Series ____% Debentures
SECTION 2.01. Except as provided in Section 2.02, Series ____%
Debentures may not be redeemed by the Company prior to __________, 200__.
Subject to the terms of Article Three of the Indenture, the Company shall have
the right to redeem the Series ____% Debentures, in whole or in part, from
time to time, on or after ___________, 200__, at a redemption price equal to
100% of the principal amount to be redeemed plus any accrued and unpaid
interest thereon, including Compounded Interest, if any, to the date of such
redemption (the "Optional Redemption Price"). Any redemption pursuant to this
paragraph will be made upon not less than 30 nor more than 60 days' notice, at
the Optional Redemption Price.
SECTION 2.02. If, at any time, a Tax Event (as defined below)
shall occur or be continuing and (i) the Regular Trustees and the Company
shall have received an opinion (a "Redemption Tax Opinion") of a nationally
recognized independent tax counsel experienced in such matters that, as a
result of a Tax Event, there is more than an insubstantial risk that the
Company would be precluded from deducting the interest on the Series ____%
Debentures for United States federal income tax purposes even if the Series
____% Debentures were distributed to the holders of Preferred Securities and
Common Securities in liquidation of such holder's interest in AES Trust [ ] as
set forth in the Declaration of Trust or (ii) the Regular Trustees shall have
been informed by such tax counsel that a No Recognition Opinion (as defined
below) cannot be delivered to AES Trust [ ], the Company shall have the right
at any time, upon not less than 30 nor more than 60 days' notice, to redeem the
Series ____% Debentures in whole or in part for cash at the Optional
Redemption Price within 90 days following the occurrence of such Tax Event;
provided, however, that, if at the time there is available to the Company or
the Regular Trustees on behalf of AES Trust [ ] the opportunity to eliminate,
within such 90 day period, the Tax Event by taking some ministerial action
("Ministerial Action"), such as filing a form or making an election, or
pursuing some other similar reasonable measure, which has no adverse effect on
AES Trust [ ], the Company or the holders of the Preferred Securities, the
Company or the Regular Trustees on behalf of AES Trust [ ] will pursue such
measure in lieu of redemption and provided further that the Company shall have
no right to redeem the Series ____% Debentures while the Regular Trustees on
behalf of AES Trust [ ] are pursuing any such Ministerial Action.
"Tax Event" means that the Company and the Regular Trustees
shall have obtained an opinion of nationally recognized independent tax
counsel experienced in such matters (a "Dissolution Tax Opinion") to the
effect that on or after ____________, 199___ as a result of (a) any amendment
to, or change (including any announced prospective change) in, the laws (or
any regulations thereunder) of the United States or any political subdivision
or taxing authority thereof or therein, (b) any amendment to, or change in, an
interpretation or application of any such laws or regulations by any
legislative body, court, governmental agency or regulatory authority
(including the enactment of any legislation and the publication of any
judicial decision or regulatory determination), (c) any interpretation or
pronouncement that provides for a position with respect to such laws or
regulations that differs from the theretofore generally accepted position or
(d) any action taken by any governmental agency or regulatory authority, which
amendment or change is enacted, promulgated, issued or announced or which
interpretation or pronouncement is issued or announced or which action is
taken, in each case on or after ______________, 199___ there is more than an
insubstantial risk that (i) AES Trust [ ] is, or will be within 90 days of the
date thereof, subject to United States federal income tax with respect to
income accrued or received on the Series ____% Debentures, (ii) AES Trust [ ]
is, or will be within 90 days of the date thereof, subject to more than a de
minimis amount of taxes, duties or other governmental charges or (iii)
interest payable by the Company to AES Trust [ ] on the Series ____%
Debentures is not, or within 90 days of the date thereof will not be,
deductible by the Company for United States federal income tax purposes.
"No Recognition Opinion" means an opinion of a nationally
recognized independent tax counsel experienced in such matters, which opinion
may rely on any then applicable published revenue ruling of the Internal
Revenue Service, to the effect that the holders of the Preferred Securities
will not recognize any gain or loss for United States federal income tax
purposes as a result of a dissolution of AES Trust [ ] and distribution of the
Series ____% Debentures as provided in the Declaration of Trust.
SECTION 2.03. If the Series ____% Debentures are only
partially redeemed pursuant to this Article Two, the Series ____% Debentures
will be redeemed pro rata or by lot or by any other method utilized by the
Trustee, provided that if at the time of redemption, the Series ____%
Debentures are registered as a Global Debenture, the Depository shall
determine by lot the principal amount of such Series ____% Debentures held by
each Debenture Holder to be redeemed in accordance with its customary
procedures. Notwithstanding the foregoing, if a partial redemption of the
Series ____% Debentures would result in the delisting of the Preferred
Securities by any national securities exchange or other organization on which
the Preferred Securities are then listed, the Company shall not be permitted
to effect such partial redemption and will only redeem the Series ____%
Debentures in whole.
ARTICLE THREE
Extension of Interest Payment Period
SECTION 3.01. So long as the Company is not in default in the
payment of interest on the Series ____% Debentures, the Company shall have the
right, at any time during the term of the Series ____% Debentures, from time to
time to extend the interest payment period of such Series ____% Debentures for
up to [to come] consecutive quarterly interest periods (the "Extended Interest
Payment Period"), at the end of which period the Company shall pay all
interest accrued and unpaid thereon (together with interest thereon at the
rate of ____% per annum to the extent permitted by applicable law, compounded
quarterly ("Compounded Interest")). During such Extended Interest Payment
Period the Company shall not declare or pay any dividend on, or redeem,
purchase, acquire or make a distribution or liquidation payment with respect
to, any of its common stock or preferred stock or make any guarantee payments
with respect thereto; provided that (i) the Company may pay accrued dividends
(and cash in lieu of fractional shares) upon the conversion of any preferred
stock of the Company as may be outstanding from time to time, in each case in
accordance with the terms of such stock and (ii) the foregoing will not apply
to any stock dividends paid by the Company. Prior to the termination of any
such Extended Interest Payment Period, the Company may pay all or any portion
of the interest accrued on the Series ____% Debentures on any Interest Payment
Date to holders of record on the regular record date for such Interest Payment
Date or from time to time further extend such Period; provided that such
Period together with all such further extensions thereof shall not exceed 60
consecutive monthly interest periods. Upon the termination of any Extended
Interest Payment Period and upon the payment of all accrued and unpaid
interest then due, together with Compounded Interest, the Company may select a
new Extended Interest Payment Period, subject to the foregoing requirements.
No interest shall be due and payable during an Extended Interest Payment
Period, except at the end thereof. At the end of the Extended Interest
Payment Period the Company shall pay all interest accrued and unpaid on the
Series ____% Debentures including any Compounded Interest which shall be
payable to the holders of the Series ____% Debentures in whose names the
Series ____% Debentures are registered in the Debenture register on the first
record date after the end of the Extended Interest Payment Period.
SECTION 3.02. (a) So long as the Property Trustee is the
legal owner and holder of record of the Series ____% Debentures, at the time
the Company selects an Extended Interest Payment Period, the Company shall give
both the Property Trustee and the Trustee written notice of its selection of
such Extended Interest Payment Period one business day prior to the earlier of
(i) the next succeeding date on which distributions on the Preferred
Securities are payable or (ii) the date AES Trust [ ] is required to give
notice of the record date or the date such distributions are payable to the
New York Stock Exchange or other applicable self-regulatory organization or to
holders of the Preferred Securities, but in any event not less than one
business day prior to such record date. The Company shall cause AES Trust [ ]
to give notice of the Company's selection of such Extended Interest Payment
Period to the holders of the Preferred Securities.
(b) If as a result of a Dissolution Event Series ____%
Debentures have been distributed to holders of Preferred Securities and Common
Securities, at the time the Company selects an Extended Interest Payment
Period, the Company shall give the holders of the Series ____% Debentures and
the Trustee written notice of its selection of such Extended Interest Payment
Period at least 10 business days prior to the earlier of (i) the next
succeeding Interest Payment Date or (ii) the date the Company is required to
give notice of the record or payment date of such interest payment to the New
York Stock Exchange or other applicable self-regulatory organization or to
holders of the Series ____% Debentures.
SECTION 3.03. The month in which any notice is given pursuant
to Section 3.02 shall be counted as one of the 60 months permitted in the
maximum Extended Interest Payment Period permitted under this Article Three.
ARTICLE FOUR
Covenants Applicable to Series ____% Debentures
SECTION 4.01. So long as any Preferred Securities remain
outstanding, the Company will not declare or pay any dividends on, or redeem,
purchase, acquire or make a distribution or liquidation payment with respect
to, any of its common stock or preferred stock or make any guarantee payments
with respect thereto if at such time (i) the Company shall be in default with
respect to its Guarantee Payments (as defined in the Guarantee Agreement) or
other payment obligations under the Guarantee Agreement, (ii) there shall have
occurred any Event of Default under the Indenture with respect to the Series
____% Debentures or (iii) the Company shall have given notice of its election
of an Extended Interest Payment Period and such Period, or any extension
thereof, is continuing; provided that (a) the Company will be permitted to pay
accrued dividends (and cash in lieu of fractional shares) upon the conversion
of any preferred stock of the Company as may be outstanding from time to time,
in each case in accordance with the terms of such stock and (b) the foregoing
will not apply to any stock dividends paid by the Company.
SECTION 4.02. In connection with the distribution of the
Series ____% Debentures to the holders of the Preferred Securities upon a
Dissolution Event, the Company will use its best efforts to list such Series
____% Debentures on the New York Stock Exchange or on such other exchange as
the Preferred Securities are then listed and traded.
SECTION 4.03. The Company covenants and agrees for the benefit
of the holders of the Preferred Securities to comply fully with all of its
obligations and agreements under the Declaration of Trust, including, without
limitation, its obligations under Article IV thereof.
SECTION 4.04. Prior to the distribution of Series ____%
Debentures to the holders of Preferred Securities upon a Dissolution Event,
the Company covenants and agrees for the benefit of the holders of the
Preferred Securities (i) not to cause or permit the Common Securities to be
transferred except as permitted by the Declaration of Trust and (ii) that it
will use reasonable efforts to cause the Trust to continue to be treated as a
grantor trust for United States federal income tax purposes, except in
connection with a distribution of the Series ____% Debentures as provided in
the Declaration of Trust.
ARTICLE FIVE
Form of Series ____% Debentures
SECTION 5.01. The Series ____% Debentures and the Trustee's
Certificate of Authentication to be endorsed thereon are to be substantially
in the following forms:
(FORM OF FACE OF DEBENTURE)
[IF THE NOTE IS TO BE A GLOBAL DEBENTURE, INSERT - This
Debenture is a Global Debenture within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee of a Depositary. This Debenture is exchangeable for Debentures
registered in the name of a person other than the Depositary or its nominee
only in the limited circumstances described in the Indenture, and no transfer
of this Debenture (other than a transfer of this Debenture as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary) may be registered
except in limited circumstances.
Unless this Debenture is presented by an authorized
representative to The Depository Trust Company (55 Water Street, New York, New
York) to the issuer or its agent for registration of transfer, exchange or
payment, and any Debenture issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of The Depository
Trust Company and any payment hereon is made to Cede & Co., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL
since the registered owner hereof, Cede & Co., has an interest herein.]
No. $
CUSIP NO. ____________
THE AES CORPORATION
____% JUNIOR SUBORDINATED DEBENTURE
DUE 20___
The AES Corporation, a corporation duly organized and existing
under the laws of the State of Delaware (herein referred to as the "Company",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to
, or registered assigns, the principal sum of _________
Dollars on ___________, 20___, and to pay interest on said principal sum from
___________, 199___ or from the most recent interest payment date (each such
date, an "Interest Payment Date") to which interest has been paid or duly
provided for, quarterly (subject to deferral as set forth herein) in arrears
on the last day of each month commencing ___________, 199___ at the rate of
____% per annum plus Compounded Interest, if any, until the principal hereof
shall have become due and payable, and on any overdue principal and premium,
if any, and (without duplication and to the extent that payment of such
interest is enforceable under applicable law) on any overdue installment of
interest at the same rate per annum. The amount of interest payable on any
Interest Payment Date shall be computed on the basis of a 365-day year of 4
calendar quarters, viz. March 31, June 30, September 30 and December 31. In
the event that any date on which interest is payable on this Debenture is not
a business day, then payment of interest payable on such date will be made on
the next succeeding day which is a business day (and without any interest or
other payment in respect of any such delay), except that, if such business day
is in the next succeeding calendar year, such payment shall be made on the
immediately preceding business day, in each case with the same force and
effect as if made on such date. The interest installment so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the person in whose name this Debenture
(or one or more Predecessor Debentures, as defined in said Indenture) is
registered at the close of business on the regular record date for such
interest installment, [which shall be the close of business on the day next
preceding such Interest Payment Date, provided if the Preferred Securities of
AES Trust Trust [ ] are no longer in book-entry only form, the regular record
dates shall be the close of business on the fifteenth (15th) day of each month
next preceding such Interest Payment Date] [IF PURSUANT TO THE PROVISIONS OF
SECTION 2.11(c) OF THE INDENTURE THE SERIES ____% DEBENTURES ARE NOT
REPRESENTED BY A GLOBAL DEBENTURE -- which shall be the close of business on
the fifteenth (15th) day of each month next preceding such Interest Payment
Date.] Any such interest installment not punctually paid or duly provided for
shall forthwith cease to be payable to the registered holders on such regular
record date, and may be paid to the person in whose name this Debenture (or
one or more Predecessor Debentures) is registered at the close of business on
a special record date to be fixed by the Trustee for the payment of such
defaulted interest, notice whereof shall be given to the registered holders of
this series of Debentures not less than 10 days prior to such special record
date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Debentures may
be listed, and upon such notice as may be required by such exchange, all as
more fully provided in the Indenture. The principal of (and premium, if any)
and the interest on this Debenture shall be payable at the office or agency of
the Company maintained for that purpose in the Borough of Manhattan, The City
and State of New York, in any coin or currency of the United States of America
which at the time of payment is legal tender for payment of public and private
debts; provided, however, that payment of interest may be made at the option
of the Company by check mailed to the registered holder at such address as
shall appear in the Debenture register and that the payment of principal will
only be made upon the surrender of this Debenture to the Trustee.
Notwithstanding the foregoing, so long as the owner and record holder of this
Debenture is the Property Trustee (as defined in the Indenture referred to on
the reverse hereof), the payment of the principal of (and premium, if any) and
interest (including Compounded Interest, if any) on this Debenture will be
made at such place and to such account of the Property Trustee as may be
designated by the Property Trustee.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and subject in right of payment to the
prior payment in full of all Senior Indebtedness, and this Debenture is issued
subject to the provisions of the Indenture with respect thereto. Each Holder
of this Debenture, by accepting the same, (a) agrees to and shall be bound by
such provisions, (b) authorizes and directs the Trustee on his behalf to take
such action as may be necessary or appropriate to acknowledge or effectuate
the subordination so provided and (c) appoints the Trustee his
attorney-in-fact for any and all such purposes. Each Holder hereof, by his
acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder
of Senior Indebtedness, whether now outstanding or hereafter incurred, and
waives reliance by each such Holder upon said provisions.
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any
purpose until the Certificate of Authentication hereon shall have been signed
by or on behalf of the Trustee.
Unless the Certificate of Authentication hereon has been
executed by the Trustee referred to on the reverse side hereof, this Debenture
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
The provisions of this Debenture are continued on the reverse
side hereof and such continued provisions shall for all purposes have the same
effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Instrument to
be executed.
Dated:______________________________
The AES Corporation
By:______________________________
Attest:
By:______________________________
Secretary
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures of the series of Debentures
described in the within-mentioned Indenture.
[NAME OF TRUSTEE]
as Trustee
______________________________
or as Authentication Agent
By:______________________________ ______________________________
Authorized Signatory Authorized Signatory
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of Debentures
of the Company (herein sometimes referred to as the "Debentures"), specified
in the Indenture, all issued or to be issued in one or more series under and
pursuant to an Indenture dated as of ______ __, 199__ duly executed and
delivered between the Company and, a New York banking corporation, as Trustee
(herein referred to as the "Trustee"), as supplemented by the [ ]
Supplemental Indenture dated as of _____________, 199___ between the Company
and the Trustee (said Indenture as so supplemented being hereinafter referred
to as the "Indenture"), to which Indenture and all indentures supplemental
thereto reference is hereby made for a description of the rights, limitations
of rights, obligations, duties and immunities thereunder of the Trustee, the
Company and the holders of the Debentures, and, to the extent specifically set
forth in the Indenture, the holders of Senior Indebtedness and Preferred
Securities. By the terms of the Indenture, the Debentures are issuable in
series which may vary as to amount, date of maturity, rate of interest and in
other respects as in the Indenture provided. This series of Debentures is
designated the ____% Junior Subordinated Debentures due 20___ and is limited in
aggregate principal amount as specified in said [ ] Supplemental Indenture.
Except as provided in the next paragraph, the Debentures may
not be redeemed by the Company prior to ____________, 200____. The Company
shall have the right to redeem this Debenture at the option of the Company,
without premium or penalty, in whole or in part at any time on or after
__________ __, 200___ (an "Optional Redemption"), at a redemption price equal
to 100% of the principal amount plus any accrued but unpaid interest,
including any Compounded Interest, if any, to the date of such redemption (the
"Optional Redemption Price"). Any redemption pursuant to this paragraph will
be made upon not less than 30 nor more than 60 days' notice, at the Optional
Redemption Price. If the Debentures are only partially redeemed by the Company
pursuant to an Optional Redemption, the Debentures will be redeemed pro rata
or by lot or by any other method utilized by the Trustee; provided if, at the
time of redemption, the Debentures are registered as a Global Debenture, the
Depository shall determine the principal amount of such Debentures held by
each holder of Debentures to be redeemed in accordance with its customary
procedures.
If, at any time, a Tax Event (as defined below) shall occur or
be continuing after receipt of a Dissolution Tax Opinion (as defined below)
and (i) the Regular Trustees and the Company shall have received an opinion (a
"Redemption Tax Opinion") of a nationally recognized independent tax counsel
experienced in such matters that, as a result of a Tax Event, there is more
than an insubstantial risk that the Company would be precluded from deducting
the interest on the Series ____% Debentures for United States federal income
tax purposes even if the Series ____% Debentures were distributed to the
holders of Preferred Securities and Common Securities in liquidation of such
holder's interest in AES Trust [ ] as set forth in the Declaration of Trust or
(ii) the Regular Trustees shall have been informed by such tax counsel that a
No Recognition Opinion (as defined below) cannot be delivered to AES Trust [
], the Company shall have the right at any time, upon not less than 30 nor
more than 60 days' notice, to redeem the Series ____% Debentures in whole or
in part for cash at the Optional Redemption Price within 90 days following the
occurrence of such Tax Event; provided, however, that, if at the time there is
available to the Company or the Regular Trustees on behalf of AES Trust [ ]
the opportunity to eliminate, within such 90 day period, the Tax Event by
taking some ministerial action ("Ministerial Action"), such as filing a form
or making an election, or pursuing some other similar reasonable measure,
which has no adverse effect on AES Trust [ ], the Company or the holders of the
Preferred Securities, the Company or the Regular Trustees on behalf of AES
Trust [ ] will pursue such measure in lieu of redemption and provided further
that the Company shall have no right to redeem the Series ____% Debentures
while the Regular Trustees on behalf of AES Trust [ ] are pursuing any such
Ministerial Action.
"Tax Event" means that the Company and the Regular Trustees
shall have obtained an opinion of nationally recognized independent tax
counsel experienced in such matters (a "Dissolution Tax Opinion") to the
effect that on or after _____________, 199___, as a result of (a) any
amendment to, or change (including any announced prospective change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, (b) any amendment to, or
change in, an interpretation or application of any such laws or regulations by
any legislative body, court, governmental agency or regulatory authority
(including the enactment of any legislation and the publication of any
judicial decision or regulatory determination), (c) any interpretation or
pronouncement that provides for a position with respect to such laws or
regulations that differs from the theretofore generally accepted position or
(d) any action taken by any governmental agency or regulatory authority, which
amendment or change is enacted, promulgated, issued or announced or which
interpretation or pronouncement is issued or announced or which action is
taken, in each case on or after ______________, 199___, there is more than an
insubstantial risk that (i) AES Trust [ ] is, or will be within 90 days of
the date thereof, subject to United States federal income tax with respect to
income accrued or received on the Series ____% Debentures, (ii) AES Trust [ ]
is, or will be within 90 days of the date thereof, subject to more than a de
minimis amount of taxes, duties or other governmental charges or (iii)
interest payable by the Company to AES Trust [ ] on the Series ____%
Debentures is not, or within 90 days of the date thereof will not be,
deductible by the Company for United States federal income tax purposes.
"No Recognition Opinion" means an opinion of a nationally
recognized independent tax counsel experienced in such matters, which opinion
may rely on any then applicable published revenue ruling of the Internal
Revenue Service, to the effect that the holders of the Preferred Securities
will not recognize any gain or loss for United States federal income tax
purposes as a result of a dissolution of AES Trust [ ] and distribution of
the Series ____% Debentures as provided in the Declaration of Trust.
If the Debentures are only partially redeemed by the Company
pursuant to an Optional Redemption or as a result of a Tax Event as described
above, the Debentures will be redeemed pro rata or by lot or in some other
equitable manner determined by the Trustee. Notwithstanding the foregoing, if
a partial redemption of the Series ____% Debentures would result in the
delisting of the Preferred Securities by any national securities exchange or
other organization on which the Preferred Securities are then listed, the
Company shall not be permitted to effect such partial redemption and will only
redeem the Series ____% Debentures in whole.
In the event of redemption of this Debenture in part only, a
new Debenture or Debentures of this series for unredeemed portion hereof will
be issued in the name of the Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall
have occurred and be continuing, the principal of all of the Debentures may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions for defeasance at any time of
the entire indebtedness of this Debenture upon compliance by the Company with
certain conditions set forth therein.
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Debentures of each series affected at the
time outstanding, as defined in the Indenture (and, in the case of any series
of Debentures held as trust assets of a AES Trust and with respect to which a
Security Exchange has not theretofore occurred, such consent of holders of the
Preferred Securities and the Common Securities of such AES Trust as may be
required under the Declaration of Trust of such AES Trust to execute
supplemental indentures for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Indenture
or of any supplemental indenture or of modifying in any manner the rights of
the Holders of the Debentures; provided, however, that no such supplemental
indenture shall (i) extend the fixed maturity of any Debentures of any series,
or reduce the principal amount thereof, or reduce the rate or extend the time
of payment of interest thereon, or reduce any premium payable upon the
redemption thereof, without the consent of the holder of each Debenture so
affected or (ii) reduce the aforesaid percentage of Debentures, the holders of
which are required to consent to any such supplemental indenture, without the
consent of the holders of each Debenture (and, in the case of any series of
Debentures held as trust assets of a AES Trust and with respect to which a
Security Exchange has not theretofore occurred, such consent of the holders of
the Preferred Securities and the Common Securities of such AES Trust as may be
required under the Declaration of Trust of such AES Trust) then outstanding
and affected thereby. The Indenture also contains provisions permitting the
Holders of a majority in aggregate principal amount of the Debentures of a
series at the time outstanding affected thereby (subject, in the case of any
series of Debentures held as trust assets of a AES Trust and with respect to
which a Securities Exchange has not theretofore occurred, to such consent of
holders of Preferred Securities and Common Securities of such AES Trust as may
be required under the Declaration of Trust of such AES Trust), on behalf of
the Holders of the Debentures of such series, to waive any past default in the
performance of any of the covenants contained in the Indenture, or established
pursuant to the Indenture with respect to such series, and its consequences,
except a default in the payment of the principal of or premium, if any, or
interest on any of the Debentures of such series. Any such consent or waiver
by the registered Holder of this Debenture (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all
future Holders and owners of this Debenture and of any Debenture issued in
exchange herefor or in place hereof (whether by registration of transfer or
otherwise), irrespective of whether or not any notation of such consent or
waiver is made upon this Debenture.
Subject to Section 13.12 of the Indenture, no reference herein
to the Indenture (other than such Section) and no provision of this Debenture
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and premium, if any,
and interest on this Debenture at the time and place at the rate and in the
money herein prescribed.
So long as the Company is not in default in the payment of
interest on the Debentures, the Company shall have the right, at any time
during the term of the Debentures, from time to time to extend the interest
payment period of such Debentures for up to 60 consecutive monthly interest
periods (the "Extended Interest Payment Period"), at the end of which period
the Company shall pay all interest then accrued and unpaid (together with
interest thereon at the rate of ____% per annum to the extent permitted by
applicable law, compounded monthly ("Compounded Interest")). During such
Extended Interest Payment Period the Company shall not declare or pay any
dividend on, or redeem, purchase, acquire or make a distribution or
liquidation payment with respect to, any of its common stock or preferred
stock, or make any guarantee payments with respect thereto, provided that (a)
the Company may pay accrued dividends (and cash in lieu of fractional shares)
upon conversion of any preferred stock of the Company as may be outstanding
from time to time, in each case in accordance with the terms of such stock and
(b) the foregoing will not apply to any stock dividends paid by the Company.
Prior to the termination of any such Extended Interest Payment Period, the
Company may pay all or any portion of the interest accrued on the Debentures
on any Interest Payment Date to holders of record on the regular record date
for such Interest Payment Date or from time to time further extend such
Extended Interest Payment Period, provided that such Period together with all
such further extensions thereof shall not exceed 60 consecutive monthly
interest periods. At the termination of any such Extended Interest Payment
Period and upon the payment of all accrued and unpaid interest then due,
together with Compounded Interest, the Company may select a new Extended
Interest Payment Period, subject to the foregoing requirements. No interest
on this Debenture shall be due and payable during an Extended Interest Payment
Period, except at the end thereof. At the end of the Extended Interest
Payment Period the Company shall pay all interest accrued and unpaid on the
Series ____% Debentures including any Compounded Interest which shall be
payable to the holders of the Series ____% Debentures in whose names the
Series ____% Debentures are registered in the Debenture register on the first
record date after the end of the Extended Interest Payment Period.
As provided in the Indenture and subject to certain limitations
therein set forth, this Debenture is transferable by the registered holder
hereof on the Debenture register of the Company, upon surrender of this
Debenture for registration of transfer at the office or agency of the Company
in the Borough of Manhattan, The City and State of New York accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Company or the Trustee duly executed by the registered holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Debentures
of authorized denominations and for the same aggregate principal amount and
series will be issued to the designated transferee or transferees. No service
charge will be made for any such transfer, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge payable in
relation thereto.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any paying agent and any Debenture
Registrar may deem and treat the registered holder hereof as the absolute
owner hereof (whether or not this Debenture shall be overdue and
notwithstanding any notice of ownership or writing hereon made by anyone other
than the Debenture Registrar) for the purpose of receiving payment of or on
account of the principal hereof and premium, if any, and interest due hereon
and for all other purposes, and neither the Company nor the Trustee nor any
paying agent nor any Debenture Registrar shall be affected by any notice to
the contrary.
No recourse shall be had for the payment of the principal of or
the interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether
by virtue of any constitution, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issuance hereof,
expressly waived and released.
[If certificated Debentures -- The Debentures of this series
are issuable only in registered form without coupons in denominations of $25
and any integral multiple thereto.] [If Global Debenture -- This Global
Debenture is exchangeable for Debentures in definitive form under certain
limited circumstances set forth in the Indenture. Debentures of this series
so issued are issuable only in registered form without coupons in
denominations of $25 or any integral multiple thereof.] As provided in the
Indenture and subject to certain limitations [If Global Debenture -- herein
and] therein set forth, Debentures of this series [If Global Debenture -- so
issued] are exchangeable for a like aggregate principal amount of Debentures
of this series of a different authorized denomination, as requested by the
Holder surrendering the same.
All terms used in this Debenture which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
ARTICLE SIX
Original Issue of Series ____% Debentures
SECTION 6.01. Except as provided in Section 1.01 and this
Section 6.01, Series ____% Debentures in the aggregate principal amount equal
to $____________ may, upon execution of this [ ] Supplemental Indenture, be
executed by the Company and delivered to the Trustee for authentication, and
the trustee shall thereupon authenticate and make available for delivery said
Debentures to or upon the written order of the Company, signed by its Chairman,
its President, or any Vice President and its Treasurer or an Assistant
Treasurer, without any further action by the Company. Upon exercise of the
overallotment option set forth in the Underwriting Agreement, additional
Series ____% Debentures in the aggregate principal amount of up to
$______________ may be executed by the Company and delivered to the Trustee
for authentication, and the Trustee shall thereupon authenticate and make
available for delivery said Series ____% Debentures executed as aforesaid by
the Company, to or upon the written order of the Company, which order shall be
accompanied by evidence satisfactory to the Trustee that the overallotment
option has been exercised.
ARTICLE SEVEN
Miscellaneous Provisions
SECTION 7.01. Except as otherwise expressly provided in this [
] Supplemental Indenture or in the form of Series ____% Debenture or
otherwise clearly required by the context hereof or thereof, all terms used
herein or in said form of Series ____% Debenture that are defined in the
Indenture shall have the several meanings respectively assigned to them
thereby.
SECTION 7.02. The Indenture, as supplemented by this [ ]
Supplemental Indenture, is in all respects ratified and confirmed. This [ ]
Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided.
SECTION 7.03. The recitals herein contained are made by the
Company and not by the Trustee, and the Trustee assumes no responsibility for
the correctness thereof. The Trustee makes no representation as to the
validity or sufficiency of this [ ] Supplemental Indenture.
SECTION 7.04. This [ ] Supplemental Indenture may be
executed in any number of counterparts each of which shall be an original; but
such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this [ ]
Supplemental Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, on the date or dates indicated in
the acknowledgments and as of the day and year first above written.
THE AES CORPORATION
By:______________________________
Name:
Title:
Attest:
______________________________
Name:
Title:
The First National Bank of Chicago
as Trustee
By:______________________________
Name:
Title:
Attest:
______________________________
Name:
Title:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK ) __________, 199__
On the ______ day of ________, in the year one thousand nine
hundred ninety-______, before me personally came __________________ to me
known, who, being by me duly sworn, did depose and say that he resides at
________________________________; that he is ________________ of THE AES
CORPORATION, one of the corporations described in and which executed the above
instrument; that he knows the corporate seal of said corporation; that the
seal affixed to the said instrument is such corporation seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
______________________________
NOTARY PUBLIC
My Commission Expires
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK ) ____________, 199__
On the ______ day of __________, in the year one thousand nine
hundred ninety-______ before me personally came ______________________ to me
known, who, being by me duly sworn, did depose and say that he resides at
________________________ that he is a ____________ of The First National Bank
of Chicago , one of the corporations described in and which executed the above
instrument; that he knows the corporate seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it was so affixed
by authority of the Board of Directors of said corporation and that he signed
his name thereto by like authority.
___________________________
NOTARY PUBLIC
My Commission Expires
Exhibit 4.13
THE AES CORPORATION
GUARANTEE AGREEMENT
Dated as of __________, 199_
TABLE OF CONTENTS
Page
ARTICLE I
SECTION 1.1 Definitions....................................... 2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.................. 5
SECTION 2.2 Lists of Holders of Preferred Securities.......... 5
SECTION 2.3 Reports by the Guarantee Trustee.................. 6
SECTION 2.4 Periodic Reports to Guarantee Trustee............. 6
SECTION 2.5 Evidence of Compliance with
Conditions Precedent.............................. 6
SECTION 2.6 Events of Default; Waiver......................... 6
SECTION 2.7 Disclosure of Information......................... 7
SECTION 2.8 Conflicting Interest.............................. 7
ARTICLE III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Guarantee Trustee........ 7
SECTION 3.2 Certain Rights and Duties of the
Guarantee Trustee................................. 8
SECTION 3.3 Not Responsible for Recitals or Issuance
of Guarantee...................................... 11
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1 Qualifications.................................... 11
SECTION 4.2 Appointment, Removal and Resignation
of Guarantee Trustee.............................. 12
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee......................................... 13
SECTION 5.2 Waiver of Notice.................................. 13
SECTION 5.3 Obligations Not Affected.......................... 14
SECTION 5.4 Enforcement of Guarantee.......................... 15
SECTION 5.5 Guarantee of Payment.............................. 15
SECTION 5.6 Subrogation....................................... 15
SECTION 5.7 Independent Obligations........................... 16
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions........................ 16
SECTION 6.2 Subordination..................................... 17
ARTICLE VII
TERMINATION
SECTION 7.1 Termination....................................... 17
ARTICLE VIII
LIMITATION OF LIABILITY; INDEMNIFICATION
SECTION 8.1 Exculpation....................................... 17
SECTION 8.2 Indemnification................................... 18
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns............................ 19
SECTION 9.2 Amendments........................................ 19
SECTION 9.3 Notices........................................... 19
SECTION 9.4 Genders........................................... 20
SECTION 9.5 Benefit........................................... 20
SECTION 9.6 Governing Law..................................... 20
SECTION 9.7 Counterparts...................................... 20
SECTION 9.8 Exercise of Overallotment Option.................. 20
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT, dated as of __________, 199_, is
executed and delivered by The AES Corporation, a Delaware corporation (the
"Guarantor"), and The First National Bank of Chicago, a national banking
association, as the initial Guarantee Trustee (as defined herein) for the
benefit of the Holders (as defined herein) from time to time of the Preferred
Securities (as defined herein) of AES Trust ___, a Delaware statutory business
trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of
Trust (the "Declaration"), dated as of ______________, 199_ among the trustees
of the Issuer named therein, The AES Corporation, as Sponsor, and the Holders
from time to time of undivided beneficial interests in the assets of the
Issuer, the Issuer may issue up to _______________ aggregate liquidation
amount of its _____% Preferred Trust Securities (the "Preferred Securities")
representing undivided beneficial interests in the assets of the Issuer and
having the terms set forth in Exhibit B to the Declaration, of which
$_____________ liquidation amount of Preferred Securities are being issued as
of the date hereof. Up to the remaining $______________ liquidation amount of
Preferred Securities may be issued by the Issuer if and to the extent that the
over-allotment option granted by the Guarantor and the Issuer pursuant to the
Underwriting Agreement (as defined in the Declaration) is exercised by the
Underwriters named in the Underwriting Agreement.
WHEREAS, as incentive for the Holders to purchase Preferred
Securities, the Guarantor desires to irrevocably and unconditionally agree, to
the extent set forth herein, to pay to the Holders of the Preferred Securities
the Guarantee Payments (as defined herein) and to make certain other payments
on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase by the initial
purchasers thereof of Preferred Securities, which purchase the Guarantor
hereby agrees shall benefit the Guarantor, the Guarantor executes and delivers
this Guarantee Agreement for the benefit of the Holders from time to time of
the Preferred Securities.
ARTICLE I
SECTION 1.1 Definitions.
(a) Capitalized terms used in this Guarantee Agreement but not
defined in the preamble above have the respective meanings assigned to them in
this Section 1.1;
(b) a term defined anywhere in this Guarantee Agreement has
the same meaning throughout;
(c) all references to "the Guarantee Agreement" or "this
Guarantee Agreement" are to this Guarantee Agreement as modified, supplemented
or amended from time to time;
(d) all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Guarantee Agreement unless otherwise defined in this
Guarantee Agreement or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice
versa.
"Affiliate" has the same meaning as given to that term in Rule
405 of the Securities Act of 1933, as amended, or any successor rule
thereunder.
"Commission" means the Securities and Exchange Commission.
"Common Securities" means the securities representing undivided
beneficial interests in the assets of the Issuer, having the terms set forth
in Exhibit C to the Declaration.
"Covered Person" means any Holder of Preferred Securities.
"Debentures" means the series of Junior Subordinated Debentures
issued by the Guarantor under the Indenture to the Property Trustee and
entitled the "_____% Junior Subordinated Debentures due ____".
"Distributions" means the periodic distributions and other
payments payable to Holders of Preferred Securities in accordance with the
terms of the Preferred Securities set forth in Exhibit B to the Declaration.
"Event of Default" means a default by the Guarantor on any of
its payment or other obligations under this Guarantee Agreement.
"Guarantee Payments" shall mean the following payments or
distributions, without duplication, with respect to the Preferred Securities,
to the extent not paid or made by the Issuer: (i) any accrued and unpaid
Distributions and the redemption price, including all accrued and unpaid
Distributions to the date of redemption (the "Redemption Price"), with respect
to the Preferred Securities called for redemption by the Issuer but only if
and to the extent that in each case the Guarantor has made a payment to the
Property Trustee of interest or principal on the Debentures and (ii) upon a
voluntary or involuntary dissolution, winding-up or termination of the Issuer
(other than in connection with the distribution of Debentures to Holders or
the redemption of all the Preferred Securities upon the maturity or redemption
of the Debentures as provided in the Declaration), the lesser of (a) the
aggregate of the liquidation amount and all accrued and unpaid Distributions
on the Preferred Securities to the date of payment, to the extent the Issuer
has funds available therefor, or (b) the amount of assets of the Issuer
remaining available for distribution to Holders in liquidation of the Issuer
(in either case, the "Liquidation Distribution").
"Guarantee Trustee" means [NAME OF GUARANTEE TRUSTEE] until a
Successor Guarantee Trustee has been appointed and accepted such appointment
pursuant to the terms of this Guarantee Agreement and thereafter means each
such Successor Guarantee Trustee.
"Holder" shall mean any holder, as registered on the books and
records of the Issuer, of any Preferred Securities; provided, however, that in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder,
"Holder" shall not include the Guarantor or any entity directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Guarantor.
"Indemnified Person" means the Guarantee Trustee, any Affiliate
of the Guarantee Trustee, and any officers, directors, shareholders, members,
partners, employees, representatives or agents of the Guarantee Trustee.
"Indenture" means the Junior Subordinated Indenture dated as of
_____ __, 1996 between the Guarantor and [NAME OF TRUSTEE] as trustee, as
supplemented by the [ ] Supplemental Indenture thereto dated as of
___________ 199___, pursuant to which the Debentures are to be issued.
"Majority in liquidation amount of the Preferred Securities"
means, except as otherwise required by the Trust Indenture Act, Holder(s) of
outstanding Preferred Securities voting together as a single class, who are
the record owners of Preferred Securities whose liquidation amount (including
the stated amount that would be paid on redemption, liquidation or otherwise,
plus accrued and unpaid Distributions to the date upon which the voting
percentages are determined) represents more than 50% of the liquidation amount
of all outstanding Preferred Securities.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Securities" has the meaning set forth in the first
WHEREAS clause above.
"Property Trustee" means the Person acting as Property Trustee
under the Declaration.
"Redemption Price" means the amount payable on redemption of
the Preferred Securities in accordance with the terms of the Preferred
Securities.
"Responsible Officer" means, with respect to the Guarantee
Trustee, the chairman of the board of directors, the president, any
vice-president, any assistant vice-president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, any trust officer or
assistant trust officer or any other officer of the Guarantee Trustee
customarily performing functions similar to those performed by any of the
above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of that officer's knowledge of and familiarity with the particular
subject.
"66-2/3% in liquidation amount of the Preferred Securities"
means, except as otherwise required by the Trust Indenture Act, Holder(s) of
outstanding Preferred Securities voting together as a single class who are the
record owners of Preferred Securities whose liquidation amount (including the
stated amount that would be paid on redemption, liquidation or otherwise, plus
accrued and unpaid Distributions to the date upon which the voting percentages
are determined) represents 66-2/3% or more of the liquidation amount of all
Preferred Securities.
"Successor Guarantee Trustee" means a successor Guarantee
Trustee possessing the qualifications to act as a Guarantee Trustee under
Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the provisions of
the Trust Indenture Act that are required to be part of this Guarantee
Agreement and shall, to the extent applicable, be governed by such provisions;
(b) if and to the extent that any provision of this Guarantee
Agreement limits, qualifies or conflicts with the duties imposed by Section
Section 310 to 317, inclusive, of the Trust Indenture Act, such imposed
duties shall control; and
(c) the application of the Trust Indenture Act to this
Guarantee Agreement shall not affect the nature of the Preferred Securities as
equity securities representing undivided beneficial interests in the assets of
the Issuer.
SECTION 2.2 Lists of Holders of Preferred Securities.
(a) The Guarantor shall provide the Guarantee Trustee with
such information as is required under Section 312(a) of the Trust Indenture
Act at the times and in the manner provided in Section 312(a); and
(b) the Guarantee Trustee shall comply with its obligations
under Section Section 310(b), 311 and 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Guarantee Trustee.
Within 60 days after May 15 of each year, the Guarantee Trustee
shall provide to the Holders of the Preferred Securities such reports as are
required by Section 313 of the Trust Indenture Act, if any, in the form, in
the manner and at the times provided by Section 313 of the Trust Indenture
Act. The Guarantee Trustee shall also comply with the requirements of Section
313(d) of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee, the
Commission and the Holders of the Preferred Securities, as applicable, such
documents, reports and information as required by Section 314(a)(1)-(3) (if
any) of the Trust Indenture Act and the compliance certificates required by
Section 314(a)(4) and (c) of the Trust Indenture Act, any such certificates
to be provided in the form, in the manner and at the times required by Section
314(a)(4) and (c) of the Trust Indenture Act (provided that any certificate to
be provided pursuant to Section 314(a)(4) of the Trust Indenture Act shall be
provided within 120 days of the end of each fiscal year of the Issuer).
SECTION 2.5 Evidence of Compliance with
Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such
evidence of compliance with any conditions precedent, if any, provided for in
this Guarantee Agreement which relate to any of the matters set forth in
Section 314(c) of the Trust Indenture Act. Any certificate or opinion
required to be given pursuant to Section 314(c) shall comply with Section
314(e) of the Trust Indenture Act.
SECTION 2.6 Events of Default; Waiver.
(a) Subject to Section 2.6(b), Holders of Preferred Securities
may by vote of at least a Majority in liquidation amount of the Preferred
Securities, (A) direct the time, method and place of conducting any proceeding
for any remedy available to the Guarantee Trustee, or exercising any trust or
power conferred upon by the Guarantee Trustee or (B) on behalf of the Holders
of all Preferred Securities waive any past Event of Default and its
consequences. Upon such waiver, any such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Guarantee Agreement, but no such waiver shall extend to
any subsequent or other default or Event of Default or impair any right
consequent thereon.
(b) The right of any Holder of Preferred Securities to receive
payment of the Guarantee Payments in accordance with this Guarantee Agreement,
or to institute suit for the enforcement of any such payment, shall not be
impaired without the consent of each such Holder.
SECTION 2.7 Disclosure of Information.
The disclosure of information as to the names and addresses of
the Holders of the Preferred Securities in accordance with Section 312 of the
Trust Indenture Act, regardless of the source from which such information was
derived, shall not be deemed to be a violation of any existing law, or any law
hereafter enacted which does not specifically refer to Section 312 of the
Trust Indenture Act, nor shall the Guarantee Trustee be held accountable by
reason of mailing any material pursuant to a request made under Section
312(b) of the Trust Indenture Act.
SECTION 2.8 Conflicting Interest.
The Declaration shall be deemed to be specifically described in
this Guarantee Agreement for the purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the Guarantee
Trustee in trust for the benefit of the Holders of the Preferred Securities.
The Guarantee Trustee shall not transfer its right, title and interest in the
Guarantee Agreement to any Person except a Successor Guarantee Trustee on
acceptance by such Successor Guarantee Trustee of its appointment to act as
Guarantee Trustee or to a Holder of Preferred Securities exercising his or her
rights pursuant to Section 5.4. The right, title and interest of the
Guarantee Trustee to the Guarantee Agreement shall vest automatically in each
Person who may hereafter be appointed as Guarantee Trustee in accordance with
Article IV. Such vesting and cessation of title shall be effective whether or
not conveyancing documents have been executed and delivered.
(b) If an Event of Default occurs and is continuing, the
Guarantee Trustee shall enforce this Guarantee Agreement for the benefit of
the Holders of the Preferred Securities.
(c) This Guarantee Agreement and all moneys received by the
Property Trustee hereunder in respect of the Guarantee Payments will not be
subject to any right, charge, security interest, lien or claim of any kind in
favor of, or for the benefit of that Guarantee Trustee or its agents or their
creditors.
(d) The Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the holders of the Preferred Securities, as their names and
addresses appear upon the register, notice of all Events of Default known to
the Guarantee Trustee, unless such defaults shall have been cured before the
giving of such notice; provided, that, the Guarantee Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee, or a trust committee of directors and/or Responsible
Officers, of the Guarantee Trustee in good faith determine that the
withholding of such notice is in the interests of the Holders of the Preferred
Securities. The Guarantee Trustee shall not be deemed to have knowledge of
any default except any default as to which the Guarantee Trustee shall have
received written notice or a Responsible Officer charged with the
administration of this Guarantee Agreement shall have obtained written notice.
(e) The Guarantee Trustee shall not resign as a Trustee unless
a Successor Guarantee Trustee has been appointed and accepted that appointment
in accordance with Article IV.
SECTION 3.2 Certain Rights and Duties of the
Guarantee Trustee.
(a) The Guarantee Trustee, before the occurrence of an Event
of Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Guarantee Agreement, and no implied covenants shall be read into
this Guarantee Agreement against the Guarantee Trustee. In case an Event of
Default has occurred (that has not been cured or waived pursuant to Section
2.6(a)), the Guarantee Trustee shall exercise such of the rights and powers
vested in it by this Guarantee Agreement, and use the same degree of care and
skill in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(b) No provision of this Guarantee Agreement shall be
construed to relieve the Guarantee Trustee from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) prior to the occurrence of an Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Guarantee Trustee shall
be determined solely by the express provisions of this
Guarantee Agreement, and the Guarantee Trustee shall not
be liable except for the performance of such duties and
obligations as are specifically set forth in this
Guarantee Agreement, and no implied covenants or
obligations shall be read into this Guarantee Agreement
against the Guarantee Trustee; and
(B) in the absence of bad faith on the part of the Guarantee
Trustee, the Guarantee Trustee may conclusively rely, as
to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or
opinions furnished to the Guarantee Trustee and
conforming to the requirements of this Guarantee
Agreement; but in the case of any such certificates or
opinions that by any provision hereof are specifically
required to be furnished to the Guarantee Trustee, the
Guarantee Trustee shall be under a duty to examine the
same to determine whether or not they conform to the
requirements of this Guarantee Agreement;
(ii) the Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that the Guarantee Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Guarantee Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of Preferred Securities
as provided herein relating to the time, method and place of
conducting any proceeding for any remedy available to the Guarantee
Trustee, or exercising any trust or power conferred upon the
Guarantee Trustee under this Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement shall require the
Guarantee Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties
or in the exercise of any of its rights or powers, if it shall have
reasonable ground for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Guarantee Agreement or adequate indemnity against such risk or
liability is not reasonably assured to it.
(c) Subject to the provisions of Section 3.2(a) and (b):
(i) whenever in the administration of this Guarantee
Agreement, the Guarantee Trustee shall deem it desirable that a
matter be proved or established prior to taking, suffering or
omitting any action hereunder, the Guarantee Trustee (unless other
evidence is herein specifically prescribed) may, in the absence of
bad faith on its part, request and rely upon a certificate, which
shall comply with the provisions of Section 314(e) of the Trust
Indenture Act, signed by any authorized officer of the Guarantor;
(ii) the Guarantee Trustee (A) may consult with counsel (which
may be counsel to the Guarantor or any of its Affiliates and may
include any of its employees) selected by it in good faith and with
due care and the written advice or opinion of such counsel with
respect to legal matters shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon and in accordance with
such advice and opinion and (B) shall have the right at any time to
seek instructions concerning the administration of this Guarantee
Agreement from any court of competent jurisdiction;
(iii) the Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or
by or through agents or attorneys and the Guarantee Trustee shall not
be responsible for any misconduct or negligence on the part of any
agent or attorney appointed by it in good faith and with due care;
(iv) the Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Guarantee
Agreement at the request or direction of any Holders of Preferred
Securities, unless such Holders shall have offered to the Guarantee
Trustee reasonable security and indemnity against the costs, expenses
(including its attorneys' fees and expenses) and liabilities that
might be incurred by it in complying with such request or direction;
provided that nothing contained in this clause (iv) shall relieve the
Guarantee Trustee of the obligation, upon the occurrence of an Event
of Default (which has not been cured or waived) to exercise such of
the rights and powers vested in it by this Guarantee Agreement, and
to use the same degree of care and skill in this exercise, as a
prudent person would exercise or use under the circumstances in the
conduct of his or her own affairs; and
(v) any action taken by the Guarantee Trustee or its agents
hereunder shall bind the Holders of the Preferred Securities and the
signature of the Guarantee Trustee or its agents alone shall be
sufficient and effective to perform any such action; and no third
party shall be required to inquire as to the authority of the
Guarantee Trustee to so act, or as to its compliance with any of the
terms and provisions of this Guarantee Agreement, both of which shall
be conclusively evidenced by the Guarantee Trustee's or its agent's
taking such action.
SECTION 3.3 Not Responsible for Recitals or Issuance
of Guarantee.
The recitals contained in this Guarantee shall be taken as the
statements of the Guarantor and the Guarantee Trustee does not assume any
responsibility for their correctness. The Guarantee Trustee makes no
representations as to the validity or sufficiency of this Guarantee Agreement.
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1 Qualifications.
(a) There shall at all times be a Guarantee Trustee which
shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory
thereof or of the District of Columbia, or a corporation or Person
permitted by the Commission to act as an institutional trustee under
the Trust Indenture Act, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at
least $50,000,000, and subject to supervision or examination by
Federal, State, Territorial or District of Columbia authority. If
such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the supervising or
examining authority referred to above, then for the purposes of this
Section 4.1(a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.
If at any time the Guarantee Trustee shall cease to satisfy the
requirements of clauses (i)-(ii) above, the Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.2.
If the Guarantee Trustee has or shall acquire any "conflicting interest"
within the meaning of Section 310(b) of the Trust Indenture Act, the
Guarantee Trustee and the Guarantor shall in all respects comply with the
provisions of Section 310(b) of the Trust Indenture Act.
SECTION 4.2 Appointment, Removal and Resignation
of Guarantee Trustee.
(a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed or
removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed in accordance with Section
4.2(a) until a Successor Guarantee Trustee possessing the
qualifications to act as Guarantee Trustee under Section 4.1(a) has
been appointed and has accepted such appointment by written
instrument executed by such Successor Guarantee Trustee and delivered
to the Guarantor and the Guarantee Trustee being removed.
(c) The Guarantee Trustee appointed to office shall hold office until his
successor shall have been appointed or until its removal or
resignation.
(d) The Guarantee Trustee may resign from office (without need for prior
or subsequent accounting) by an instrument (a "Resignation Request")
in writing signed by the Guarantee Trustee and delivered to the
Guarantor, which resignation shall take effect upon such delivery or
upon such later date as is specified therein; provided, however, that
no such resignation of the Guarantee Trustee shall be effective until
a Successor Guarantee Trustee possessing the qualifications to act as
Guarantee Trustee under Section 4.1(a) has been appointed and has
accepted such appointment by instrument executed by such Successor
Guarantee Trustee and delivered to Guarantor and the resigning
Guarantee Trustee.
(e) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 60 days
after delivery to the Guarantor of a Resignation Request, the
resigning Guarantee Trustee may petition any court of competent
jurisdiction for appointment of a Successor Guarantee Trustee. Such
court may thereupon after such notice, if any, as it may deem proper
and prescribe, appoint a Successor Guarantee Trustee.
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in
full to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by the Issuer) regardless of any defense, right of set-off or
counterclaim which the Issuer may have or assert. The Guarantor's obligation
to make a Guarantee Payment may be satisfied by direct payment of the required
amounts by the Guarantor to the Holders or by causing the Issuer to pay such
amounts to the Holders.
SECTION 5.2 Waiver of Notice.
The Guarantor hereby waives notice of acceptance of this
Guarantee Agreement and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first
against the Issuer or any other Person before proceeding against the Guarantor,
protest, notice of nonpayment, notice of dishonor, notice of redemption and
all other notices and demands.
SECTION 5.3 Obligations Not Affected.
The obligations, covenants, agreements and duties of the
Guarantor under this Guarantee Agreement shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise,
of the performance or observance by the Issuer of any express or
implied agreement, covenant, term or condition relating to the
Preferred Securities to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all
or any portion of the Distributions (other than an extension of time
for payment of Distributions that results from the extension of any
interest payment period on the Debentures), Redemption Price,
Liquidation Distribution (as defined in the Declaration) or any other
sums payable under the terms of the Preferred Securities or the
extension of time for the performance of any other obligation under,
arising out of, or in connection with, the Preferred Securities;
(c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders pursuant to the
terms of the Preferred Securities, or any action on the part of the
Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of debt of, or other similar proceedings
affecting, the Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the
Preferred Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor,
it being the intent of this Section 5.3 that the obligations of the
Guarantor hereunder shall be absolute and unconditional under any and
all circumstances.
There shall be no obligation of the Holders to give notice to,
or obtain consent of, the Guarantor with respect to the happening of any of
the foregoing.
SECTION 5.4 Enforcement of Guarantee.
The Guarantor and the Guarantee Trustee expressly acknowledge
that (i) this Guarantee Agreement will be deposited with the Guarantee Trustee
to be held for the benefit of the Holders; (ii) the Guarantee Trustee has the
right to enforce this Guarantee Agreement on behalf of the Holders; (iii)
Holders representing not less than a Majority in liquidation amount of the
Preferred Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available in respect of this
Guarantee Agreement including the giving of directions to the Guarantee
Trustee, or exercising any trust or other power conferred upon the Guarantee
Trustee under this Guarantee Agreement, and (iv) if the Guarantee Trustee fails
to enforce this Guarantee Agreement, any Holder of Preferred Securities may
institute a legal proceeding directly against the Guarantor to enforce its
rights under this Guarantee Agreement, without first instituting a legal
proceeding against the Issuer, the Guarantee Trustee, or any other Person.
SECTION 5.5 Guarantee of Payment.
This Guarantee Agreement creates a guarantee of payment and not
merely of collection. This Guarantee Agreement will not be discharged except
by payment of the Guarantee Payments in full (without duplication of amounts
theretofore paid by the Issuer).
SECTION 5.6 Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the
Holders against the Issuer in respect of any amounts paid to the Holders by
the Guarantor under this Guarantee Agreement; provided, however, that the
Guarantor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any rights which it may acquire by way
of subrogation or any indemnity, reimbursement or other agreement, in all
cases as a result of payment under this Guarantee Agreement, if, at the time
of any such payment, any amounts are due and unpaid under this Guarantee
Agreement. If any amount shall be paid to the Guarantor in violation of the
preceding sentence, the Guarantor agrees to hold such amount in trust for the
Holders and to pay over such amount to the Holders.
SECTION 5.7 Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Preferred
Securities and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Guarantee
Agreement notwithstanding the occurrence of any event referred to in
subsections (a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions.
So long as any Preferred Securities remain outstanding, the
Guarantor will not declare or pay dividends on, or redeem, purchase, acquire
or make a distribution or liquidation payment with respect to, any of its
common stock or preferred stock or make any guarantee payment with respect
thereto if at such time (i) the Guarantor shall be in default with respect to
its Guarantee Payments or other payment obligations hereunder, (ii) there
shall have occurred any event of default under the Declaration or (iii) the
Guarantor shall have given notice of its selection of an Extension Period (as
defined in the Indenture) and such period, or any extension thereof, is
continuing; provided that (a) the Guarantor will be permitted to pay accrued
dividends (and cash in lieu of fractional shares) upon the conversion of any
preferred stock of the Guarantor as may be outstanding from time to time, in
each case in accordance with the terms of such stock and (b) the foregoing
will not apply to any stock dividends paid by the Guarantor. In addition, so
long as any Preferred Securities remain outstanding, the Guarantor (i) will
remain the sole direct or indirect owner of all of the outstanding Common
Securities and shall not cause or permit the Common Securities to be
transferred except to the extent such transfer is permitted under Section
9.1(c) of the Declaration; provided that any permitted successor of the
Guarantor under the Indenture may succeed to the Guarantor's ownership of the
Common Securities and (ii) will use reasonable efforts to cause the Issuer to
continue to be treated as a grantor trust for United States federal income tax
purposes except in connection with a distribution of Debentures as provided in
the Declaration.
SECTION 6.2 Subordination.
This Guarantee Agreement will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in right
of payment to all other liabilities of the Guarantor, including the Debentures,
except those made pari passu or subordinate by their terms, and (ii) senior to
all capital stock now or hereafter issued by the Guarantor and to any
guarantee now or hereafter entered into by the Guarantor in respect of any of
its capital stock. The Guarantor's obligations under this Guarantee Agreement
will rank pari passu with respect to obligations under other guarantee
agreements which it may enter into from time to time to the extent that such
agreements shall be entered into in substantially the form hereof and provide
for comparable guarantees by the Guarantor of payment on preferred securities
issued by other DLJ Capital Trusts.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination.
This Guarantee Agreement shall terminate and be of no further
force and effect upon full payment of the Redemption Price of all Preferred
Securities, or upon the distribution of Debentures to Holders of Preferred
Securities and Common Securities in exchange for all of the Preferred
Securities and Common Securities, or upon full payment of the amounts payable
in accordance with the Declaration upon liquidation of the Issuer.
Notwithstanding the foregoing, this Guarantee Agreement will continue to be
effective or will be reinstated, as the case may be, if at any time any Holder
must restore payment of any sums paid with respect to the Preferred Securities
or this Guarantee Agreement.
ARTICLE VIII
LIMITATION OF LIABILITY; INDEMNIFICATION
SECTION 8.1 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered Person for
any loss, damage or claim incurred by reason of any act or omission performed
or omitted by such Indemnified Person in good faith and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Guarantee Agreement or by law,
except that an Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's negligence or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying
in good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Guarantor, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses, or any other facts pertinent to the existence
and amount of assets from which Distributions to Holders of Preferred
Securities might properly be paid.
SECTION 8.2 Indemnification.
(a) To the fullest extent permitted by applicable law, the
Guarantor shall indemnify and hold harmless each Indemnified Person from and
against any loss, damage or claim incurred by such Indemnified Person by
reason of any act or omission performed or omitted by such Indemnified Person
in good faith and in a manner such Indemnified Person reasonably believed to
be within the scope of authority conferred on such Indemnified Person by this
Guarantee Agreement, except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by such
Indemnified Person by reason of negligence or willful misconduct with respect
to such acts or omissions.
(b) To the fullest extent permitted by applicable law,
expenses (including legal fees) incurred by an Indemnified Person in defending
any claim, demand, action, suit or proceeding shall, from time to time, be
advanced by the Guarantor prior to the final disposition of such claim,
demand, action, suit or proceeding upon receipt by the Guarantor of an
undertaking by or on behalf of the Indemnified Person to repay such amount if
it shall be determined that the Indemnified Person is not entitled to be
indemnified as authorized in Section 8.2(a).
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns.
All guarantees and agreements contained in this Guarantee
Agreement shall bind the successors, assignees, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Preferred Securities then outstanding. Except in connection with a
consolidation, merger or sale involving the Guarantor that is permitted under
Article Ten of the Indenture, the Guarantor shall not assign its obligations
hereunder.
SECTION 9.2 Amendments.
Except with respect to any changes which do not adversely
affect the rights of Holders (in which case no consent of Holders will be
required), this Guarantee Agreement may only be amended with the prior
approval of the Holders of not less than 66-2/3% in liquidation amount of the
Preferred Securities. The provisions of Section 12.2 of the Declaration
concerning meetings of Holders shall apply to the giving of such approval.
SECTION 9.3 Notices.
Any notice, request or other communication required or
permitted to be given hereunder shall be in writing, duly signed by the party
giving such notice, and delivered, telecopied or mailed by first class mail as
follows:
(a) if given to the Guarantor, to the address set forth below
or such other address as the Guarantor may give notice of to the Holders:
The AES Corporation
1001 North 19th Street
Arlington, Virginia 22209
Facsimile No.:
Attention: General Counsel and Secretary
(b) if given to the Guarantee Trustee, to the address set
forth below or such other address as the Guarantee Trustee may give notice to
the Holders:
[to come]
(c) if given to any Holder of Preferred Securities, at the
address set forth on the books and records of the Issuer.
All notices hereunder shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first
class mail, postage prepaid except that if a notice or other document is
refused delivery or cannot be delivered because of a changed address of which
no notice was given, such notice or other document shall be deemed to have
been delivered on the date of such refusal or inability to deliver.
SECTION 9.4 Genders.
The masculine, feminine and neuter genders used herein shall
include the masculine, feminine and neuter genders.
SECTION 9.5 Benefit.
This Guarantee Agreement is solely for the benefit of the
Holders and subject to Section 3.1(a) is not separately transferable from the
Preferred Securities.
SECTION 9.6 Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAWS).
SECTION 9.7 Counterparts.
This Guarantee Agreement may be executed in counterparts, each
of which shall be an original; but such counterparts shall together constitute
one and the same instrument.
SECTION 9.8 Exercise of Overallotment Option.
If and to the extent that Preferred Securities are issued by
the Issuer upon exercise of the overallotment option referred to the second
WHEREAS clause, the Guarantor agrees to give prompt notice thereof to the
Guarantee Trustee but the failure to give such notice shall not relieve the
Guarantor of any of its obligations hereunder.
THIS GUARANTEE AGREEMENT is executed as of the day and year
first above written.
The AES Corporation
By:____________________________
Name:
Title:
The First National Bank of Chicago
As Guarantee Trustee
By:________________________
Name:
Title:
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
BEFORE ME, the undersigned authority, on this day of ________,
199_, personally appeared _______________ of The AES Corporation known to me
(or proved to me by introduction upon the oath of a person known to me) to be
the person and officer whose name is subscribed to the foregoing instrument,
and acknowledged to me that he/she executed the same as the act of such trust
for the purposes and consideration herein expressed and in the capacity
therein stated.
GIVEN UNDER MY HAND AND SEAL THIS ____ DAY OF __________, 199_.
[SEAL]
________________________________
NOTARY PUBLIC, STATE OF NEW YORK
Print Name:_____________________
Commission Expires:_____________
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
BEFORE ME, the undersigned authority, on this day of ________,
199_, personally appeared _______________ of The First National Bank of
Chicago, known to me (or proved to me by introduction upon the oath of a
person known to me) to be the person and officer whose name is subscribed to
the foregoing instrument, and acknowledged to me that he/she executed the same
as the act of such trust for the purposes and consideration herein expressed
and int he capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS ____ DAY OF __________, 199_.
[SEAL]
________________________________
NOTARY PUBLIC, STATE OF NEW YORK
Print Name:_____________________
Commission Expires:_____________
CALCULATIONS OF RATIO OF EARNINGS TO FIXED CHARGES EXHIBIT 12.1
(in thousand, unaudited)
<TABLE>
Nine Months
Ended
Year Ended December 31, September 30,
------------------------------------------------------------------- --------------
1991 1992 1993 1994 1995 1996
-------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
As defined:
Income from continuing
operations before income
taxes................................. $50,149 $65,161 $89,392 $141,807 $163,655 $136,000
Adjustment for
undistributed income.................. -- (2,509) (10,578) (12,039) (14,254) (16,594)
Distributions from
affiliates............................ -- -- -- 6,116 17,499 11,188
Interest expense....................... 84,787 97,158 125,019 121,793 121,927 97,000
Depreciation of previously
capitalized interest.................. 3,934 3,996 4,487 4,487 4,487 3,357
Net amortization of
issuance costs......................... 2,377 2,775 2,558 3,500 4,630 3,717
-------- -------- -------- -------- -------- --------
Earnings............................... $141,247 $166,581 $210,878 $265,664 $297,944 $234,668
======== ======== ======== ======== ======== ========
Interest expensed and
capitalized amounts
(including construction
related fixed charges)................ $105,132 $118,178 $126,965 $123,945 $131,934 $111,061
Net amortization of
issuance costs (including
capitalized amounts)................... 2,974 3,120 2,558 3,500 4,630 3,717
-------- -------- -------- -------- -------- --------
Fixed charges.......................... $108,106 $121,298 $129,523 $127,445 $136,564 $114,778
======== ======== ======== ======== ======== ========
Ratio of earnings to fixed
charges............................... 1.31x 1.37x 1.63x 2.08x 2.18x 2.04x
</TABLE>
INDEPENDENT AUDITORS' CONSENT EXHIBIT 23.1
We consent to the incorporation by reference in this Registration Statement of
The AES Corporation on Form S-3 of our report dated February 20, 1996, except
for Note 14, as to which the date is May 30, 1996, appearing in Registration
Statement No. 333-01286 of The AES Corporation on Form S-3, as amended, and of
our report on the consolidated financial statement schedules dated February
20, 1996, appearing in the Annual Report on Form 10-K of The AES Corporation,
for the year ended December 31, 1995 and to the reference to us under the
heading "Experts" in each Prospectus, which are part of such Registration
Statement.
DELOITTE & TOUCHE LLP
Washington, D.C.
November 4, 1996
INDEPENDENT AUDITORS' CONSENT EXHIBIT 23.2
We consent to the incorporation by reference in this Registration Statement of
The AES Corporation on Form S-3 of our report (based on our audit which was
performed in accordance with auditing standards generally accepted in Brazil)
on the financial statements of LIGHT - Servicos de Electricidade S.A. as of
December 31, 1995 and 1994 and for the years then ended, prepared in
conformity with accounting principles generally accepted in Brazil, dated
January 24, 1996, except for note 27, for which the date is May 1996 (which
expresses an unqualified opinion and includes a reference to other auditors
who audited the financial statements of Eletropaulo Electricidade de Sao Paulo
S.A. as of and for the years ended December 31, 1995 and 1994, whose report
thereon has been furnished to us, and our opinion on LIGHT - Servicos de
Electricidade S.A., insofar as it relates to the amounts included for such
company, is based solely on the report of such other auditors) appearing in
the Current Report on Form 8-K of The AES Corporation dated May 30, 1996, and
to the reference to us under the heading "Experts" in each Prospectus,
which are part of such Registration Statement.
DELOITTE TOUCHE TOHMATSU
Auditores Independentes
Rio de Janeiro, Brazil
November 4, 1996
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
--------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
--------------
THE AES CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 54-1163725
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
1001 North 19th Street
Arlington, Virginia 22209
(Address of principal executive offices) (Zip Code)
Senior Debt Securities
(Title of Indenture Securities)
Item 1. General Information. Furnish the following
information as to the trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate
trust powers.
Item 2. Affiliations With the Obligor. If the obligor
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a
part of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all
in the City of Chicago and State of Illinois, on the 31st day of
October, 1996.
The First National Bank of Chicago,
Trustee
By /s/ R. D. Manella
Richard D. Manella
Vice President
* Exhibits 1, 2, 3 and 4 are herein incorporated by reference to Exhibits
bearing identical numbers in Item 16 of the Form T-1 of The First National
Bank of Chicago, filed as Exhibit 25.1 to the Registration Statement on Form
S-3 of SunAmerica Inc. filed with the Securities and Exchange Commission on
October 25, 1996 (Registration No. 333-14201).
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
October 31, 1996
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of a Guarantee Agreement of The AES
Corporation, the undersigned, in accordance with Section 321(b) of the Trust
Indenture Act of 1939, as amended, hereby consents that the reports of
examinations of the undersigned, made by Federal or State authorities
authorized to make such examinations, may be furnished by such authorities to
the Securities and Exchange Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By: /s/ R. D. Manella
Richard D. Manella
Vice President
<TABLE>
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for June 30, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
Schedule RC--Balance Sheet
<CAPTION>
C400 <-
Dollar Amounts in ------------ -------
Thousands RCFD BIL MIL THOU
------------------ ---- ------------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1).......... 0081 3,572,641 1.a.
b. Interest-bearing balances(2)................................... 0071 6,958,367 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)...... 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)... 1773 1,448,974 2.b.
3. Federal funds sold and securities purchased under agreements to
resell in domestic offices of the bank and its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal Funds sold............................................. 0276 5,020,878 3.a.
b. Securities purchased under agreements to resell................ 0277 918,688 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C).......................................................... RCFD 2122 19,125,160 4.a.
b. LESS: Allowance for loan and lease losses...................... RCFD 3123 379,232 4.b.
c. LESS: Allocated transfer risk reserve.......................... RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c)........................... 2125 18,745,928 4.d.
5. Assets held in trading accounts................................... 3545 9,599,172 5.
6. Premises and fixed assets (including capitalized leases).......... 2145 623,289 6.
7. Other real estate owned (from Schedule RC-M)...................... 2150 8,927 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M).................................... 2130 57,280 8.
9. Customers' liability to this bank on acceptances outstanding...... 2155 632,259 9.
10. Intangible assets (from Schedule RC-M)............................ 2143 156,715 10.
11. Other assets (from Schedule RC-F)................................. 2160 1,592,088 11.
12. Total assets (sum of items 1 through 11).......................... 2170 49,335,206 12.
<FN>
- -----------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
</TABLE>
<TABLE>
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Schedule RC-Continued
<CAPTION>
Dollar Amounts in
Thousands Bill Mil Thou
------------------ -------------
<S> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1)................................... RCON 2200 16,878,870 13.a.
(1) Noninterest-bearing(1).................................... RCON 6631 7,855,880 13.a.(1)
(2) Interest-bearing............................................. RCON 6636 9,022,990 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)............................... RCFN 2200 12,677,057 13.b.
(1) Noninterest bearing.......................................... RCFN 6631 766,936 13.b.(1)
(2) Interest-bearing............................................. RCFN 6636 11,910,121 13.b.(2)
14. Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of
its Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds purchased....................................... RCFD 0278 1,318,968 14.a.
b. Securities sold under agreements to repurchase................ RCFD 0279 1,197,589 14.b.
15. a. Demand notes issued to the U.S. Treasury...................... RCON 2840 104,546 15.a.
b. Trading Liabilities........................................... RCFD 3548 6,431,784 15.b.
16. Other borrowed money:
a. With original maturity of one year or less.................... RCFD 2332 4,437,636 16.a.
b. With original maturity of more than one year................. RCFD 2333 75,308 16.b.
17. Mortgage indebtedness and obligations under capitalized
leases........................................................... RCFD 2910 283,041 17.
18. Bank's liability on acceptance executed and outstanding.......... RCFD 2920 632,259 18.
19. Subordinated notes and debentures................................ RCFD 3200 1,275,000 19.
20. Other liabilities (from Schedule RC-G)........................... RCFD 2930 892,947 20.
21. Total liabilities (sum of items 13 through 20)................... RCFD 2948 46,205,005 21.
22. Limited-Life preferred stock and related surplus................. RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus.................... RCFD 3838 0 23.
24. Common stock..................................................... RCFD 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock)......... RCFD 3839 2,349,164 25.
26. a. Undivided profits and capital reserves........................ RCFD 3632 584,878 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities.................................................... RCFD 8434 (3,951) 26.b.
27. Cumulative foreign currency translation adjustments.............. RCFD 3284 (748) 27.
28. Total equity capital (sum of items 23 through 27)................ RCFD 3210 3,130,201 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)............................ RCFD 3300 49,335,206 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external Number
auditors as of any date during 1995................................................RCFD 6724.... N/A M.1.
</TABLE>
1 = Independent audit of the bank conducted in accordance
with generally accepted auditing standards by a certified
public accounting firm which submits a report on the bank
2 = Independent audit of the bank's parent holding company
conducted in accordance with generally accepted auditing
standards by a certified public accounting firm which
submits a report on the consolidated holding company
(but not on the bank separately)
3. = Directors' examination of the bank conducted in
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
4. = Directors' examination of the bank performed by other
external auditors (may be required by state chartering
authority)
5. = Review of the bank's financial statements by external
auditors
6. = Compilation of the bank's financial statements by external
auditors
7. = Other audit procedures (excluding tax preparation work)
8. = No external audit work
- -------------
(1) Includes total demand deposits and noninterest-bearing time and
savings deposits.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
--------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
--------------
THE AES CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 54-1163725
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
1001 North 19th Street
Arlington, Virginia 22209
(Address of principal executive offices) (Zip Code)
Senior Subordinated Debt Securities
(Title of Indenture Securities)
Item 1. General Information. Furnish the following
information as to the trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate
trust powers.
Item 2. Affiliations With the Obligor. If the obligor
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a
part of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all
in the City of Chicago and State of Illinois, on the 31st day of
October, 1996.
The First National Bank of Chicago,
Trustee
By /s/ R. D. Manella
Richard D. Manella
Vice President
* Exhibits 1, 2, 3 and 4 are herein incorporated by reference to Exhibits
bearing identical numbers in Item 16 of the Form T-1 of The First National
Bank of Chicago, filed as Exhibit 25.1 to the Registration Statement on Form
S-3 of SunAmerica Inc. filed with the Securities and Exchange Commission on
October 25, 1996 (Registration No. 333-14201).
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
October 31, 1996
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of a Guarantee Agreement of The AES
Corporation, the undersigned, in accordance with Section 321(b) of the Trust
Indenture Act of 1939, as amended, hereby consents that the reports of
examinations of the undersigned, made by Federal or State authorities
authorized to make such examinations, may be furnished by such authorities to
the Securities and Exchange Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By: /s/ R. D. Manella
Richard D. Manella
Vice President
<TABLE>
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for June 30, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
Schedule RC--Balance Sheet
<CAPTION>
C400 <-
Dollar Amounts in ------------ -------
Thousands RCFD BIL MIL THOU
------------------ ---- ------------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1).......... 0081 3,572,641 1.a.
b. Interest-bearing balances(2)................................... 0071 6,958,367 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)...... 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)... 1773 1,448,974 2.b.
3. Federal funds sold and securities purchased under agreements to
resell in domestic offices of the bank and its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal Funds sold............................................. 0276 5,020,878 3.a.
b. Securities purchased under agreements to resell................ 0277 918,688 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C).......................................................... RCFD 2122 19,125,160 4.a.
b. LESS: Allowance for loan and lease losses...................... RCFD 3123 379,232 4.b.
c. LESS: Allocated transfer risk reserve.......................... RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c)........................... 2125 18,745,928 4.d.
5. Assets held in trading accounts................................... 3545 9,599,172 5.
6. Premises and fixed assets (including capitalized leases).......... 2145 623,289 6.
7. Other real estate owned (from Schedule RC-M)...................... 2150 8,927 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M).................................... 2130 57,280 8.
9. Customers' liability to this bank on acceptances outstanding...... 2155 632,259 9.
10. Intangible assets (from Schedule RC-M)............................ 2143 156,715 10.
11. Other assets (from Schedule RC-F)................................. 2160 1,592,088 11.
12. Total assets (sum of items 1 through 11).......................... 2170 49,335,206 12.
<FN>
- -----------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
</TABLE>
<TABLE>
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Schedule RC-Continued
<CAPTION>
Dollar Amounts in
Thousands Bill Mil Thou
------------------ -------------
<S> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1)................................... RCON 2200 16,878,870 13.a.
(1) Noninterest-bearing(1).................................... RCON 6631 7,855,880 13.a.(1)
(2) Interest-bearing............................................. RCON 6636 9,022,990 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)............................... RCFN 2200 12,677,057 13.b.
(1) Noninterest bearing.......................................... RCFN 6631 766,936 13.b.(1)
(2) Interest-bearing............................................. RCFN 6636 11,910,121 13.b.(2)
14. Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of
its Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds purchased....................................... RCFD 0278 1,318,968 14.a.
b. Securities sold under agreements to repurchase................ RCFD 0279 1,197,589 14.b.
15. a. Demand notes issued to the U.S. Treasury...................... RCON 2840 104,546 15.a.
b. Trading Liabilities........................................... RCFD 3548 6,431,784 15.b.
16. Other borrowed money:
a. With original maturity of one year or less.................... RCFD 2332 4,437,636 16.a.
b. With original maturity of more than one year................. RCFD 2333 75,308 16.b.
17. Mortgage indebtedness and obligations under capitalized
leases........................................................... RCFD 2910 283,041 17.
18. Bank's liability on acceptance executed and outstanding.......... RCFD 2920 632,259 18.
19. Subordinated notes and debentures................................ RCFD 3200 1,275,000 19.
20. Other liabilities (from Schedule RC-G)........................... RCFD 2930 892,947 20.
21. Total liabilities (sum of items 13 through 20)................... RCFD 2948 46,205,005 21.
22. Limited-Life preferred stock and related surplus................. RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus.................... RCFD 3838 0 23.
24. Common stock..................................................... RCFD 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock)......... RCFD 3839 2,349,164 25.
26. a. Undivided profits and capital reserves........................ RCFD 3632 584,878 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities.................................................... RCFD 8434 (3,951) 26.b.
27. Cumulative foreign currency translation adjustments.............. RCFD 3284 (748) 27.
28. Total equity capital (sum of items 23 through 27)................ RCFD 3210 3,130,201 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)............................ RCFD 3300 49,335,206 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external Number
auditors as of any date during 1995................................................RCFD 6724.... N/A M.1.
</TABLE>
1 = Independent audit of the bank conducted in accordance
with generally accepted auditing standards by a certified
public accounting firm which submits a report on the bank
2 = Independent audit of the bank's parent holding company
conducted in accordance with generally accepted auditing
standards by a certified public accounting firm which
submits a report on the consolidated holding company
(but not on the bank separately)
3. = Directors' examination of the bank conducted in
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
4. = Directors' examination of the bank performed by other
external auditors (may be required by state chartering
authority)
5. = Review of the bank's financial statements by external
auditors
6. = Compilation of the bank's financial statements by external
auditors
7. = Other audit procedures (excluding tax preparation work)
8. = No external audit work
- -------------
(1) Includes total demand deposits and noninterest-bearing time and
savings deposits.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
--------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
--------------
THE AES CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 54-1163725
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
1001 North 19th Street
Arlington, Virginia 22209
(Address of principal executive offices) (Zip Code)
Junior Subordinated Debt Securities
(Title of Indenture Securities)
Item 1. General Information. Furnish the following
information as to the trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate
trust powers.
Item 2. Affiliations With the Obligor. If the obligor
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a
part of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all
in the City of Chicago and State of Illinois, on the 31st day of
October, 1996.
The First National Bank of Chicago,
Trustee
By /s/ R. D. Manella
Richard D. Manella
Vice President
* Exhibits 1, 2, 3 and 4 are herein incorporated by reference to Exhibits
bearing identical numbers in Item 16 of the Form T-1 of The First National
Bank of Chicago, filed as Exhibit 25.1 to the Registration Statement on Form
S-3 of SunAmerica Inc. filed with the Securities and Exchange Commission on
October 25, 1996 (Registration No. 333-14201).
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
October 31, 1996
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of a Guarantee Agreement of The AES
Corporation, the undersigned, in accordance with Section 321(b) of the Trust
Indenture Act of 1939, as amended, hereby consents that the reports of
examinations of the undersigned, made by Federal or State authorities
authorized to make such examinations, may be furnished by such authorities to
the Securities and Exchange Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By: /s/ R. D. Manella
Richard D. Manella
Vice President
<TABLE>
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for June 30, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
Schedule RC--Balance Sheet
<CAPTION>
C400 <-
Dollar Amounts in ------------ -------
Thousands RCFD BIL MIL THOU
------------------ ---- ------------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1).......... 0081 3,572,641 1.a.
b. Interest-bearing balances(2)................................... 0071 6,958,367 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)...... 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)... 1773 1,448,974 2.b.
3. Federal funds sold and securities purchased under agreements to
resell in domestic offices of the bank and its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal Funds sold............................................. 0276 5,020,878 3.a.
b. Securities purchased under agreements to resell................ 0277 918,688 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C).......................................................... RCFD 2122 19,125,160 4.a.
b. LESS: Allowance for loan and lease losses...................... RCFD 3123 379,232 4.b.
c. LESS: Allocated transfer risk reserve.......................... RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c)........................... 2125 18,745,928 4.d.
5. Assets held in trading accounts................................... 3545 9,599,172 5.
6. Premises and fixed assets (including capitalized leases).......... 2145 623,289 6.
7. Other real estate owned (from Schedule RC-M)...................... 2150 8,927 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M).................................... 2130 57,280 8.
9. Customers' liability to this bank on acceptances outstanding...... 2155 632,259 9.
10. Intangible assets (from Schedule RC-M)............................ 2143 156,715 10.
11. Other assets (from Schedule RC-F)................................. 2160 1,592,088 11.
12. Total assets (sum of items 1 through 11).......................... 2170 49,335,206 12.
<FN>
- -----------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
</TABLE>
<TABLE>
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Schedule RC-Continued
<CAPTION>
Dollar Amounts in
Thousands Bill Mil Thou
------------------ -------------
<S> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1)................................... RCON 2200 16,878,870 13.a.
(1) Noninterest-bearing(1).................................... RCON 6631 7,855,880 13.a.(1)
(2) Interest-bearing............................................. RCON 6636 9,022,990 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)............................... RCFN 2200 12,677,057 13.b.
(1) Noninterest bearing.......................................... RCFN 6631 766,936 13.b.(1)
(2) Interest-bearing............................................. RCFN 6636 11,910,121 13.b.(2)
14. Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of
its Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds purchased....................................... RCFD 0278 1,318,968 14.a.
b. Securities sold under agreements to repurchase................ RCFD 0279 1,197,589 14.b.
15. a. Demand notes issued to the U.S. Treasury...................... RCON 2840 104,546 15.a.
b. Trading Liabilities........................................... RCFD 3548 6,431,784 15.b.
16. Other borrowed money:
a. With original maturity of one year or less.................... RCFD 2332 4,437,636 16.a.
b. With original maturity of more than one year................. RCFD 2333 75,308 16.b.
17. Mortgage indebtedness and obligations under capitalized
leases........................................................... RCFD 2910 283,041 17.
18. Bank's liability on acceptance executed and outstanding.......... RCFD 2920 632,259 18.
19. Subordinated notes and debentures................................ RCFD 3200 1,275,000 19.
20. Other liabilities (from Schedule RC-G)........................... RCFD 2930 892,947 20.
21. Total liabilities (sum of items 13 through 20)................... RCFD 2948 46,205,005 21.
22. Limited-Life preferred stock and related surplus................. RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus.................... RCFD 3838 0 23.
24. Common stock..................................................... RCFD 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock)......... RCFD 3839 2,349,164 25.
26. a. Undivided profits and capital reserves........................ RCFD 3632 584,878 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities.................................................... RCFD 8434 (3,951) 26.b.
27. Cumulative foreign currency translation adjustments.............. RCFD 3284 (748) 27.
28. Total equity capital (sum of items 23 through 27)................ RCFD 3210 3,130,201 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)............................ RCFD 3300 49,335,206 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external Number
auditors as of any date during 1995................................................RCFD 6724.... N/A M.1.
</TABLE>
1 = Independent audit of the bank conducted in accordance
with generally accepted auditing standards by a certified
public accounting firm which submits a report on the bank
2 = Independent audit of the bank's parent holding company
conducted in accordance with generally accepted auditing
standards by a certified public accounting firm which
submits a report on the consolidated holding company
(but not on the bank separately)
3. = Directors' examination of the bank conducted in
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
4. = Directors' examination of the bank performed by other
external auditors (may be required by state chartering
authority)
5. = Review of the bank's financial statements by external
auditors
6. = Compilation of the bank's financial statements by external
auditors
7. = Other audit procedures (excluding tax preparation work)
8. = No external audit work
- -------------
(1) Includes total demand deposits and noninterest-bearing time and
savings deposits.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
--------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
--------------
THE AES CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 54-1163725
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
1001 North 19th Street
Arlington, Virginia 22209
(Address of principal executive offices) (Zip Code)
Junior Subordinated Debt Trust Securities
(Title of Indenture Securities)
Item 1. General Information. Furnish the following
information as to the trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate
trust powers.
Item 2. Affiliations With the Obligor. If the obligor
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a
part of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all
in the City of Chicago and State of Illinois, on the 31st day of
October, 1996.
The First National Bank of Chicago,
Trustee
By /s/ R. D. Manella
Richard D. Manella
Vice President
* Exhibits 1, 2, 3 and 4 are herein incorporated by reference to Exhibits
bearing identical numbers in Item 16 of the Form T-1 of The First National
Bank of Chicago, filed as Exhibit 25.1 to the Registration Statement on Form
S-3 of SunAmerica Inc. filed with the Securities and Exchange Commission on
October 25, 1996 (Registration No. 333-14201).
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
October 31, 1996
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of a Guarantee Agreement of The AES
Corporation, the undersigned, in accordance with Section 321(b) of the Trust
Indenture Act of 1939, as amended, hereby consents that the reports of
examinations of the undersigned, made by Federal or State authorities
authorized to make such examinations, may be furnished by such authorities to
the Securities and Exchange Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By: /s/ R. D. Manella
Richard D. Manella
Vice President
<TABLE>
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for June 30, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
Schedule RC--Balance Sheet
<CAPTION>
C400 <-
Dollar Amounts in ------------ -------
Thousands RCFD BIL MIL THOU
------------------ ---- ------------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1).......... 0081 3,572,641 1.a.
b. Interest-bearing balances(2)................................... 0071 6,958,367 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)...... 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)... 1773 1,448,974 2.b.
3. Federal funds sold and securities purchased under agreements to
resell in domestic offices of the bank and its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal Funds sold............................................. 0276 5,020,878 3.a.
b. Securities purchased under agreements to resell................ 0277 918,688 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C).......................................................... RCFD 2122 19,125,160 4.a.
b. LESS: Allowance for loan and lease losses...................... RCFD 3123 379,232 4.b.
c. LESS: Allocated transfer risk reserve.......................... RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c)........................... 2125 18,745,928 4.d.
5. Assets held in trading accounts................................... 3545 9,599,172 5.
6. Premises and fixed assets (including capitalized leases).......... 2145 623,289 6.
7. Other real estate owned (from Schedule RC-M)...................... 2150 8,927 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M).................................... 2130 57,280 8.
9. Customers' liability to this bank on acceptances outstanding...... 2155 632,259 9.
10. Intangible assets (from Schedule RC-M)............................ 2143 156,715 10.
11. Other assets (from Schedule RC-F)................................. 2160 1,592,088 11.
12. Total assets (sum of items 1 through 11).......................... 2170 49,335,206 12.
<FN>
- -----------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
</TABLE>
<TABLE>
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Schedule RC-Continued
<CAPTION>
Dollar Amounts in
Thousands Bill Mil Thou
------------------ -------------
<S> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1)................................... RCON 2200 16,878,870 13.a.
(1) Noninterest-bearing(1).................................... RCON 6631 7,855,880 13.a.(1)
(2) Interest-bearing............................................. RCON 6636 9,022,990 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)............................... RCFN 2200 12,677,057 13.b.
(1) Noninterest bearing.......................................... RCFN 6631 766,936 13.b.(1)
(2) Interest-bearing............................................. RCFN 6636 11,910,121 13.b.(2)
14. Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of
its Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds purchased....................................... RCFD 0278 1,318,968 14.a.
b. Securities sold under agreements to repurchase................ RCFD 0279 1,197,589 14.b.
15. a. Demand notes issued to the U.S. Treasury...................... RCON 2840 104,546 15.a.
b. Trading Liabilities........................................... RCFD 3548 6,431,784 15.b.
16. Other borrowed money:
a. With original maturity of one year or less.................... RCFD 2332 4,437,636 16.a.
b. With original maturity of more than one year................. RCFD 2333 75,308 16.b.
17. Mortgage indebtedness and obligations under capitalized
leases........................................................... RCFD 2910 283,041 17.
18. Bank's liability on acceptance executed and outstanding.......... RCFD 2920 632,259 18.
19. Subordinated notes and debentures................................ RCFD 3200 1,275,000 19.
20. Other liabilities (from Schedule RC-G)........................... RCFD 2930 892,947 20.
21. Total liabilities (sum of items 13 through 20)................... RCFD 2948 46,205,005 21.
22. Limited-Life preferred stock and related surplus................. RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus.................... RCFD 3838 0 23.
24. Common stock..................................................... RCFD 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock)......... RCFD 3839 2,349,164 25.
26. a. Undivided profits and capital reserves........................ RCFD 3632 584,878 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities.................................................... RCFD 8434 (3,951) 26.b.
27. Cumulative foreign currency translation adjustments.............. RCFD 3284 (748) 27.
28. Total equity capital (sum of items 23 through 27)................ RCFD 3210 3,130,201 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)............................ RCFD 3300 49,335,206 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external Number
auditors as of any date during 1995................................................RCFD 6724.... N/A M.1.
</TABLE>
1 = Independent audit of the bank conducted in accordance
with generally accepted auditing standards by a certified
public accounting firm which submits a report on the bank
2 = Independent audit of the bank's parent holding company
conducted in accordance with generally accepted auditing
standards by a certified public accounting firm which
submits a report on the consolidated holding company
(but not on the bank separately)
3. = Directors' examination of the bank conducted in
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
4. = Directors' examination of the bank performed by other
external auditors (may be required by state chartering
authority)
5. = Review of the bank's financial statements by external
auditors
6. = Compilation of the bank's financial statements by external
auditors
7. = Other audit procedures (excluding tax preparation work)
8. = No external audit work
- -------------
(1) Includes total demand deposits and noninterest-bearing time and
savings deposits.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
--------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
--------------
THE AES TRUST I
(Exact name of obligor as specified in its charter)
Delaware (To be applied for)
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
1001 North 19th Street
Arlington, Virginia 22209
(Address of principal executive offices) (Zip Code)
Preferred Securities
(Title of Indenture Securities)
Item 1. General Information. Furnish the following
information as to the trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate
trust powers.
Item 2. Affiliations With the Obligor. If the obligor
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a
part of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all
in the City of Chicago and State of Illinois, on the 31st day of
October, 1996.
The First National Bank of Chicago,
Trustee
By /s/ R. D. Manella
Richard D. Manella
Vice President
* Exhibits 1, 2, 3 and 4 are herein incorporated by reference to Exhibits
bearing identical numbers in Item 16 of the Form T-1 of The First National
Bank of Chicago, filed as Exhibit 25.1 to the Registration Statement on Form
S-3 of SunAmerica Inc. filed with the Securities and Exchange Commission on
October 25, 1996 (Registration No. 333-14201).
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
October 31, 1996
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of a Guarantee Agreement of The AES
Corporation, the undersigned, in accordance with Section 321(b) of the Trust
Indenture Act of 1939, as amended, hereby consents that the reports of
examinations of the undersigned, made by Federal or State authorities
authorized to make such examinations, may be furnished by such authorities to
the Securities and Exchange Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By: /s/ R. D. Manella
Richard D. Manella
Vice President
<TABLE>
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for June 30, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
Schedule RC--Balance Sheet
<CAPTION>
C400 <-
Dollar Amounts in ------------ -------
Thousands RCFD BIL MIL THOU
------------------ ---- ------------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1).......... 0081 3,572,641 1.a.
b. Interest-bearing balances(2)................................... 0071 6,958,367 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)...... 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)... 1773 1,448,974 2.b.
3. Federal funds sold and securities purchased under agreements to
resell in domestic offices of the bank and its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal Funds sold............................................. 0276 5,020,878 3.a.
b. Securities purchased under agreements to resell................ 0277 918,688 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C).......................................................... RCFD 2122 19,125,160 4.a.
b. LESS: Allowance for loan and lease losses...................... RCFD 3123 379,232 4.b.
c. LESS: Allocated transfer risk reserve.......................... RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c)........................... 2125 18,745,928 4.d.
5. Assets held in trading accounts................................... 3545 9,599,172 5.
6. Premises and fixed assets (including capitalized leases).......... 2145 623,289 6.
7. Other real estate owned (from Schedule RC-M)...................... 2150 8,927 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M).................................... 2130 57,280 8.
9. Customers' liability to this bank on acceptances outstanding...... 2155 632,259 9.
10. Intangible assets (from Schedule RC-M)............................ 2143 156,715 10.
11. Other assets (from Schedule RC-F)................................. 2160 1,592,088 11.
12. Total assets (sum of items 1 through 11).......................... 2170 49,335,206 12.
<FN>
- -----------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
</TABLE>
<TABLE>
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Schedule RC-Continued
<CAPTION>
Dollar Amounts in
Thousands Bill Mil Thou
------------------ -------------
<S> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1)................................... RCON 2200 16,878,870 13.a.
(1) Noninterest-bearing(1).................................... RCON 6631 7,855,880 13.a.(1)
(2) Interest-bearing............................................. RCON 6636 9,022,990 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)............................... RCFN 2200 12,677,057 13.b.
(1) Noninterest bearing.......................................... RCFN 6631 766,936 13.b.(1)
(2) Interest-bearing............................................. RCFN 6636 11,910,121 13.b.(2)
14. Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of
its Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds purchased....................................... RCFD 0278 1,318,968 14.a.
b. Securities sold under agreements to repurchase................ RCFD 0279 1,197,589 14.b.
15. a. Demand notes issued to the U.S. Treasury...................... RCON 2840 104,546 15.a.
b. Trading Liabilities........................................... RCFD 3548 6,431,784 15.b.
16. Other borrowed money:
a. With original maturity of one year or less.................... RCFD 2332 4,437,636 16.a.
b. With original maturity of more than one year................. RCFD 2333 75,308 16.b.
17. Mortgage indebtedness and obligations under capitalized
leases........................................................... RCFD 2910 283,041 17.
18. Bank's liability on acceptance executed and outstanding.......... RCFD 2920 632,259 18.
19. Subordinated notes and debentures................................ RCFD 3200 1,275,000 19.
20. Other liabilities (from Schedule RC-G)........................... RCFD 2930 892,947 20.
21. Total liabilities (sum of items 13 through 20)................... RCFD 2948 46,205,005 21.
22. Limited-Life preferred stock and related surplus................. RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus.................... RCFD 3838 0 23.
24. Common stock..................................................... RCFD 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock)......... RCFD 3839 2,349,164 25.
26. a. Undivided profits and capital reserves........................ RCFD 3632 584,878 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities.................................................... RCFD 8434 (3,951) 26.b.
27. Cumulative foreign currency translation adjustments.............. RCFD 3284 (748) 27.
28. Total equity capital (sum of items 23 through 27)................ RCFD 3210 3,130,201 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)............................ RCFD 3300 49,335,206 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external Number
auditors as of any date during 1995................................................RCFD 6724.... N/A M.1.
</TABLE>
1 = Independent audit of the bank conducted in accordance
with generally accepted auditing standards by a certified
public accounting firm which submits a report on the bank
2 = Independent audit of the bank's parent holding company
conducted in accordance with generally accepted auditing
standards by a certified public accounting firm which
submits a report on the consolidated holding company
(but not on the bank separately)
3. = Directors' examination of the bank conducted in
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
4. = Directors' examination of the bank performed by other
external auditors (may be required by state chartering
authority)
5. = Review of the bank's financial statements by external
auditors
6. = Compilation of the bank's financial statements by external
auditors
7. = Other audit procedures (excluding tax preparation work)
8. = No external audit work
- -------------
(1) Includes total demand deposits and noninterest-bearing time and
savings deposits.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
--------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
--------------
THE AES TRUST II
(Exact name of obligor as specified in its charter)
Delaware (To be applied for)
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
1001 North 19th Street
Arlington, Virginia 22209
(Address of principal executive offices) (Zip Code)
Preferred Securities
(Title of Indenture Securities)
Item 1. General Information. Furnish the following
information as to the trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate
trust powers.
Item 2. Affiliations With the Obligor. If the obligor
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a
part of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all
in the City of Chicago and State of Illinois, on the 31st day of
October, 1996.
The First National Bank of Chicago,
Trustee
By /s/ R. D. Manella
Richard D. Manella
Vice President
* Exhibits 1, 2, 3 and 4 are herein incorporated by reference to Exhibits
bearing identical numbers in Item 16 of the Form T-1 of The First National
Bank of Chicago, filed as Exhibit 25.1 to the Registration Statement on Form
S-3 of SunAmerica Inc. filed with the Securities and Exchange Commission on
October 25, 1996 (Registration No. 333-14201).
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
October 31, 1996
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of a Guarantee Agreement of The AES
Corporation, the undersigned, in accordance with Section 321(b) of the Trust
Indenture Act of 1939, as amended, hereby consents that the reports of
examinations of the undersigned, made by Federal or State authorities
authorized to make such examinations, may be furnished by such authorities to
the Securities and Exchange Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By: /s/ R. D. Manella
Richard D. Manella
Vice President
<TABLE>
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for June 30, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
Schedule RC--Balance Sheet
<CAPTION>
C400 <-
Dollar Amounts in ------------ -------
Thousands RCFD BIL MIL THOU
------------------ ---- ------------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1).......... 0081 3,572,641 1.a.
b. Interest-bearing balances(2)................................... 0071 6,958,367 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)...... 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)... 1773 1,448,974 2.b.
3. Federal funds sold and securities purchased under agreements to
resell in domestic offices of the bank and its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal Funds sold............................................. 0276 5,020,878 3.a.
b. Securities purchased under agreements to resell................ 0277 918,688 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C).......................................................... RCFD 2122 19,125,160 4.a.
b. LESS: Allowance for loan and lease losses...................... RCFD 3123 379,232 4.b.
c. LESS: Allocated transfer risk reserve.......................... RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c)........................... 2125 18,745,928 4.d.
5. Assets held in trading accounts................................... 3545 9,599,172 5.
6. Premises and fixed assets (including capitalized leases).......... 2145 623,289 6.
7. Other real estate owned (from Schedule RC-M)...................... 2150 8,927 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M).................................... 2130 57,280 8.
9. Customers' liability to this bank on acceptances outstanding...... 2155 632,259 9.
10. Intangible assets (from Schedule RC-M)............................ 2143 156,715 10.
11. Other assets (from Schedule RC-F)................................. 2160 1,592,088 11.
12. Total assets (sum of items 1 through 11).......................... 2170 49,335,206 12.
<FN>
- -----------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
</TABLE>
<TABLE>
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Schedule RC-Continued
<CAPTION>
Dollar Amounts in
Thousands Bill Mil Thou
------------------ -------------
<S> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1)................................... RCON 2200 16,878,870 13.a.
(1) Noninterest-bearing(1).................................... RCON 6631 7,855,880 13.a.(1)
(2) Interest-bearing............................................. RCON 6636 9,022,990 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)............................... RCFN 2200 12,677,057 13.b.
(1) Noninterest bearing.......................................... RCFN 6631 766,936 13.b.(1)
(2) Interest-bearing............................................. RCFN 6636 11,910,121 13.b.(2)
14. Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of
its Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds purchased....................................... RCFD 0278 1,318,968 14.a.
b. Securities sold under agreements to repurchase................ RCFD 0279 1,197,589 14.b.
15. a. Demand notes issued to the U.S. Treasury...................... RCON 2840 104,546 15.a.
b. Trading Liabilities........................................... RCFD 3548 6,431,784 15.b.
16. Other borrowed money:
a. With original maturity of one year or less.................... RCFD 2332 4,437,636 16.a.
b. With original maturity of more than one year................. RCFD 2333 75,308 16.b.
17. Mortgage indebtedness and obligations under capitalized
leases........................................................... RCFD 2910 283,041 17.
18. Bank's liability on acceptance executed and outstanding.......... RCFD 2920 632,259 18.
19. Subordinated notes and debentures................................ RCFD 3200 1,275,000 19.
20. Other liabilities (from Schedule RC-G)........................... RCFD 2930 892,947 20.
21. Total liabilities (sum of items 13 through 20)................... RCFD 2948 46,205,005 21.
22. Limited-Life preferred stock and related surplus................. RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus.................... RCFD 3838 0 23.
24. Common stock..................................................... RCFD 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock)......... RCFD 3839 2,349,164 25.
26. a. Undivided profits and capital reserves........................ RCFD 3632 584,878 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities.................................................... RCFD 8434 (3,951) 26.b.
27. Cumulative foreign currency translation adjustments.............. RCFD 3284 (748) 27.
28. Total equity capital (sum of items 23 through 27)................ RCFD 3210 3,130,201 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)............................ RCFD 3300 49,335,206 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external Number
auditors as of any date during 1995................................................RCFD 6724.... N/A M.1.
</TABLE>
1 = Independent audit of the bank conducted in accordance
with generally accepted auditing standards by a certified
public accounting firm which submits a report on the bank
2 = Independent audit of the bank's parent holding company
conducted in accordance with generally accepted auditing
standards by a certified public accounting firm which
submits a report on the consolidated holding company
(but not on the bank separately)
3. = Directors' examination of the bank conducted in
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
4. = Directors' examination of the bank performed by other
external auditors (may be required by state chartering
authority)
5. = Review of the bank's financial statements by external
auditors
6. = Compilation of the bank's financial statements by external
auditors
7. = Other audit procedures (excluding tax preparation work)
8. = No external audit work
- -------------
(1) Includes total demand deposits and noninterest-bearing time and
savings deposits.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
--------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
--------------
THE AES CORPORATION
(Exact name of obligor as specified in its charter)
Delaware (To be applied for)
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
1001 North 19th Street
Arlington, Virginia 22209
(Address of principal executive offices) (Zip Code)
Guarantee of Preferred Securities of
The AES Trust I
(Title of Indenture Securities)
Item 1. General Information. Furnish the following
information as to the trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate
trust powers.
Item 2. Affiliations With the Obligor. If the obligor
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a
part of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all
in the City of Chicago and State of Illinois, on the 31st day of
October, 1996.
The First National Bank of Chicago,
Trustee
By /s/ R. D. Manella
Richard D. Manella
Vice President
* Exhibits 1, 2, 3 and 4 are herein incorporated by reference to Exhibits
bearing identical numbers in Item 16 of the Form T-1 of The First National
Bank of Chicago, filed as Exhibit 25.1 to the Registration Statement on Form
S-3 of SunAmerica Inc. filed with the Securities and Exchange Commission on
October 25, 1996 (Registration No. 333-14201).
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
October 31, 1996
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of a Guarantee Agreement of The AES
Corporation, the undersigned, in accordance with Section 321(b) of the Trust
Indenture Act of 1939, as amended, hereby consents that the reports of
examinations of the undersigned, made by Federal or State authorities
authorized to make such examinations, may be furnished by such authorities to
the Securities and Exchange Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By: /s/ R. D. Manella
Richard D. Manella
Vice President
<TABLE>
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for June 30, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
Schedule RC--Balance Sheet
<CAPTION>
C400 <-
Dollar Amounts in ------------ -------
Thousands RCFD BIL MIL THOU
------------------ ---- ------------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1).......... 0081 3,572,641 1.a.
b. Interest-bearing balances(2)................................... 0071 6,958,367 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)...... 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)... 1773 1,448,974 2.b.
3. Federal funds sold and securities purchased under agreements to
resell in domestic offices of the bank and its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal Funds sold............................................. 0276 5,020,878 3.a.
b. Securities purchased under agreements to resell................ 0277 918,688 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C).......................................................... RCFD 2122 19,125,160 4.a.
b. LESS: Allowance for loan and lease losses...................... RCFD 3123 379,232 4.b.
c. LESS: Allocated transfer risk reserve.......................... RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c)........................... 2125 18,745,928 4.d.
5. Assets held in trading accounts................................... 3545 9,599,172 5.
6. Premises and fixed assets (including capitalized leases).......... 2145 623,289 6.
7. Other real estate owned (from Schedule RC-M)...................... 2150 8,927 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M).................................... 2130 57,280 8.
9. Customers' liability to this bank on acceptances outstanding...... 2155 632,259 9.
10. Intangible assets (from Schedule RC-M)............................ 2143 156,715 10.
11. Other assets (from Schedule RC-F)................................. 2160 1,592,088 11.
12. Total assets (sum of items 1 through 11).......................... 2170 49,335,206 12.
<FN>
- -----------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
</TABLE>
<TABLE>
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Schedule RC-Continued
<CAPTION>
Dollar Amounts in
Thousands Bill Mil Thou
------------------ -------------
<S> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1)................................... RCON 2200 16,878,870 13.a.
(1) Noninterest-bearing(1).................................... RCON 6631 7,855,880 13.a.(1)
(2) Interest-bearing............................................. RCON 6636 9,022,990 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)............................... RCFN 2200 12,677,057 13.b.
(1) Noninterest bearing.......................................... RCFN 6631 766,936 13.b.(1)
(2) Interest-bearing............................................. RCFN 6636 11,910,121 13.b.(2)
14. Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of
its Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds purchased....................................... RCFD 0278 1,318,968 14.a.
b. Securities sold under agreements to repurchase................ RCFD 0279 1,197,589 14.b.
15. a. Demand notes issued to the U.S. Treasury...................... RCON 2840 104,546 15.a.
b. Trading Liabilities........................................... RCFD 3548 6,431,784 15.b.
16. Other borrowed money:
a. With original maturity of one year or less.................... RCFD 2332 4,437,636 16.a.
b. With original maturity of more than one year................. RCFD 2333 75,308 16.b.
17. Mortgage indebtedness and obligations under capitalized
leases........................................................... RCFD 2910 283,041 17.
18. Bank's liability on acceptance executed and outstanding.......... RCFD 2920 632,259 18.
19. Subordinated notes and debentures................................ RCFD 3200 1,275,000 19.
20. Other liabilities (from Schedule RC-G)........................... RCFD 2930 892,947 20.
21. Total liabilities (sum of items 13 through 20)................... RCFD 2948 46,205,005 21.
22. Limited-Life preferred stock and related surplus................. RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus.................... RCFD 3838 0 23.
24. Common stock..................................................... RCFD 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock)......... RCFD 3839 2,349,164 25.
26. a. Undivided profits and capital reserves........................ RCFD 3632 584,878 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities.................................................... RCFD 8434 (3,951) 26.b.
27. Cumulative foreign currency translation adjustments.............. RCFD 3284 (748) 27.
28. Total equity capital (sum of items 23 through 27)................ RCFD 3210 3,130,201 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)............................ RCFD 3300 49,335,206 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external Number
auditors as of any date during 1995................................................RCFD 6724.... N/A M.1.
</TABLE>
1 = Independent audit of the bank conducted in accordance
with generally accepted auditing standards by a certified
public accounting firm which submits a report on the bank
2 = Independent audit of the bank's parent holding company
conducted in accordance with generally accepted auditing
standards by a certified public accounting firm which
submits a report on the consolidated holding company
(but not on the bank separately)
3. = Directors' examination of the bank conducted in
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
4. = Directors' examination of the bank performed by other
external auditors (may be required by state chartering
authority)
5. = Review of the bank's financial statements by external
auditors
6. = Compilation of the bank's financial statements by external
auditors
7. = Other audit procedures (excluding tax preparation work)
8. = No external audit work
- -------------
(1) Includes total demand deposits and noninterest-bearing time and
savings deposits.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
--------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
--------------
THE AES CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 54-1163725
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
1001 North 19th Street
Arlington, Virginia 22209
(Address of principal executive offices) (Zip Code)
Guarantee of Preferred Securities of
The AES Trust II
(Title of Indenture Securities)
Item 1. General Information. Furnish the following
information as to the trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate
trust powers.
Item 2. Affiliations With the Obligor. If the obligor
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a
part of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all
in the City of Chicago and State of Illinois, on the 31st day of
October, 1996.
The First National Bank of Chicago,
Trustee
By /s/ R. D. Manella
Richard D. Manella
Vice President
* Exhibits 1, 2, 3 and 4 are herein incorporated by reference to Exhibits
bearing identical numbers in Item 16 of the Form T-1 of The First National
Bank of Chicago, filed as Exhibit 25.1 to the Registration Statement on Form
S-3 of SunAmerica Inc. filed with the Securities and Exchange Commission on
October 25, 1996 (Registration No. 333-14201).
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
October 31, 1996
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of a Guarantee Agreement of The AES
Corporation, the undersigned, in accordance with Section 321(b) of the Trust
Indenture Act of 1939, as amended, hereby consents that the reports of
examinations of the undersigned, made by Federal or State authorities
authorized to make such examinations, may be furnished by such authorities to
the Securities and Exchange Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By: /s/ R. D. Manella
Richard D. Manella
Vice President
<TABLE>
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for June 30, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
Schedule RC--Balance Sheet
<CAPTION>
C400 <-
Dollar Amounts in ------------ -------
Thousands RCFD BIL MIL THOU
------------------ ---- ------------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1).......... 0081 3,572,641 1.a.
b. Interest-bearing balances(2)................................... 0071 6,958,367 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)...... 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)... 1773 1,448,974 2.b.
3. Federal funds sold and securities purchased under agreements to
resell in domestic offices of the bank and its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal Funds sold............................................. 0276 5,020,878 3.a.
b. Securities purchased under agreements to resell................ 0277 918,688 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C).......................................................... RCFD 2122 19,125,160 4.a.
b. LESS: Allowance for loan and lease losses...................... RCFD 3123 379,232 4.b.
c. LESS: Allocated transfer risk reserve.......................... RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c)........................... 2125 18,745,928 4.d.
5. Assets held in trading accounts................................... 3545 9,599,172 5.
6. Premises and fixed assets (including capitalized leases).......... 2145 623,289 6.
7. Other real estate owned (from Schedule RC-M)...................... 2150 8,927 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M).................................... 2130 57,280 8.
9. Customers' liability to this bank on acceptances outstanding...... 2155 632,259 9.
10. Intangible assets (from Schedule RC-M)............................ 2143 156,715 10.
11. Other assets (from Schedule RC-F)................................. 2160 1,592,088 11.
12. Total assets (sum of items 1 through 11).......................... 2170 49,335,206 12.
<FN>
- -----------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
</TABLE>
<TABLE>
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Schedule RC-Continued
<CAPTION>
Dollar Amounts in
Thousands Bill Mil Thou
------------------ -------------
<S> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1)................................... RCON 2200 16,878,870 13.a.
(1) Noninterest-bearing(1).................................... RCON 6631 7,855,880 13.a.(1)
(2) Interest-bearing............................................. RCON 6636 9,022,990 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)............................... RCFN 2200 12,677,057 13.b.
(1) Noninterest bearing.......................................... RCFN 6631 766,936 13.b.(1)
(2) Interest-bearing............................................. RCFN 6636 11,910,121 13.b.(2)
14. Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of
its Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds purchased....................................... RCFD 0278 1,318,968 14.a.
b. Securities sold under agreements to repurchase................ RCFD 0279 1,197,589 14.b.
15. a. Demand notes issued to the U.S. Treasury...................... RCON 2840 104,546 15.a.
b. Trading Liabilities........................................... RCFD 3548 6,431,784 15.b.
16. Other borrowed money:
a. With original maturity of one year or less.................... RCFD 2332 4,437,636 16.a.
b. With original maturity of more than one year................. RCFD 2333 75,308 16.b.
17. Mortgage indebtedness and obligations under capitalized
leases........................................................... RCFD 2910 283,041 17.
18. Bank's liability on acceptance executed and outstanding.......... RCFD 2920 632,259 18.
19. Subordinated notes and debentures................................ RCFD 3200 1,275,000 19.
20. Other liabilities (from Schedule RC-G)........................... RCFD 2930 892,947 20.
21. Total liabilities (sum of items 13 through 20)................... RCFD 2948 46,205,005 21.
22. Limited-Life preferred stock and related surplus................. RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus.................... RCFD 3838 0 23.
24. Common stock..................................................... RCFD 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock)......... RCFD 3839 2,349,164 25.
26. a. Undivided profits and capital reserves........................ RCFD 3632 584,878 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities.................................................... RCFD 8434 (3,951) 26.b.
27. Cumulative foreign currency translation adjustments.............. RCFD 3284 (748) 27.
28. Total equity capital (sum of items 23 through 27)................ RCFD 3210 3,130,201 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)............................ RCFD 3300 49,335,206 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external Number
auditors as of any date during 1995................................................RCFD 6724.... N/A M.1.
</TABLE>
1 = Independent audit of the bank conducted in accordance
with generally accepted auditing standards by a certified
public accounting firm which submits a report on the bank
2 = Independent audit of the bank's parent holding company
conducted in accordance with generally accepted auditing
standards by a certified public accounting firm which
submits a report on the consolidated holding company
(but not on the bank separately)
3. = Directors' examination of the bank conducted in
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
4. = Directors' examination of the bank performed by other
external auditors (may be required by state chartering
authority)
5. = Review of the bank's financial statements by external
auditors
6. = Compilation of the bank's financial statements by external
auditors
7. = Other audit procedures (excluding tax preparation work)
8. = No external audit work
- -------------
(1) Includes total demand deposits and noninterest-bearing time and
savings deposits.
