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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event
reported):
December 11, 1998 (December 8, 1998)
THE AES CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Delaware 0-19281 54-1163725
(State of incorporation (Commission File Number) (I.R.S. Employer
or organization) Identification No.)
1001 North 19th Street
Arlington, Virginia 22209
(Address, including zip code of Registrant's principal executive offices)
Registrant's telephone number, including area code: (703) 522-1315
NOT APPLICABLE
(Former Name or Former Address, if changed since last report)
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Item 7: Financial Statements, Pro Forma Financial Information and Exhibits
(c) Exhibits
4.01 Senior Indenture dated December 8, 1998 (the "Senior Indenture")
between the Registrant and The First National Bank of Chicago.
4.02 First Supplemental Indenture dated December 8, 1998 to the Senior
Indenture between the Registrant and The First National Bank of Chicago.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
THE AES CORPORATION
By: /s/ William R. Luraschi
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Name: William R. Luraschi
Title: Vice President and
General Counsel
Date: December 11, 1998
EXHIBIT 4.01
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THE AES CORPORATION
as the Company
and
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
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Senior Indenture
Dated as of December 8, 1998
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TABLE OF CONTENTS[a]
Page
----
RECITALS OF THE COMPANY
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions......................................................1
SECTION 1.2 Other Definitions................................................6
SECTION 1.3 Incorporation by Reference of Trust Indenture Act................6
SECTION 1.4 Rules of Construction............................................7
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.......13
SECTION 2.5 Registrar and Paying Agent; Agents Generally....................13
SECTION 2.6 Paying Agent to Hold Money in Trust.............................14
SECTION 2.7 Transfer and Exchange...........................................15
SECTION 2.8 Replacement Securities..........................................18
SECTION 2.9 Outstanding Securities..........................................19
SECTION 2.10 Temporary Securities............................................19
SECTION 2.11 Cancellation....................................................20
SECTION 2.12 CUSIP Numbers...................................................20
SECTION 2.13 Defaulted Interest..............................................20
SECTION 2.14 Series May Include Tranches.....................................21
ARTICLE 3
REDEMPTION
SECTION 3.1 Applicability of Article........................................21
SECTION 3.2 Notice of Redemption; Partial Redemptions.......................22
SECTION 3.3 Payment of Securities Called for Redemption.....................24
SECTION 3.4 Exclusion of Certain Securities from Eligibility
for Selection for Redemption....................................25
SECTION 3.5 Mandatory and Optional Sinking Funds............................25
ARTICLE 4
COVENANTS
SECTION 4.1 Payment of Securities...........................................28
SECTION 4.2 Maintenance of Office or Agency.................................29
SECTION 4.3 Securityholders' Lists..........................................30
SECTION 4.4 Certificate to Trustee..........................................30
SECTION 4.5 Reports by the Company..........................................31
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.1 When Company May Merge, Etc.....................................31
SECTION 5.2 Successor Substituted...........................................31
ARTICLE 6
DEFAULT AND REMEDIES
SECTION 6.1 Events of Default...............................................32
SECTION 6.2 Acceleration....................................................33
SECTION 6.3 Other Remedies..................................................34
SECTION 6.4 Waiver of Past Defaults.........................................35
SECTION 6.5 Control by Majority.............................................35
SECTION 6.6 Limitation on Suits.............................................35
SECTION 6.7 Rights of Holders to Receive Payment............................36
SECTION 6.8 Collection Suit by Trustee......................................36
SECTION 6.9 Trustee May File Proofs of Claim................................37
SECTION 6.10 Application of Proceeds.........................................37
SECTION 6.11 Restoration of Rights and Remedies..............................38
SECTION 6.12 Undertaking for Costs...........................................38
SECTION 6.13 Rights and Remedies Cumulative..................................39
SECTION 6.14 Delay or Omission Not Waiver....................................39
ARTICLE 7
TRUSTEE
SECTION 7.1 General.........................................................39
SECTION 7.2 Certain Rights of Trustee.......................................39
SECTION 7.3 Individual Rights of Trustee....................................41
SECTION 7.4 Trustee's Disclaimer............................................42
SECTION 7.5 Notice of Default...............................................42
SECTION 7.6 Reports by Trustee to Holders...................................42
SECTION 7.7 Compensation and Indemnity......................................43
SECTION 7.8 Replacement of Trustee..........................................44
SECTION 7.9 Successor Trustee by Merger, Etc................................45
SECTION 7.10 Eligibility.....................................................45
SECTION 7.11 Money Held in Trust.............................................45
ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 8.1 Satisfaction and Discharge of Indenture.........................46
SECTION 8.2 Application by Trustee of Funds Deposited
for Payment of Securities.......................................47
SECTION 8.3 Repayment of Moneys Held by Paying Agent........................47
SECTION 8.4 Return of Moneys Held by Trustee and Paying
Agent Unclaimed for Two Years...................................47
SECTION 8.5 Defeasance and Discharge of Indenture...........................48
SECTION 8.6 Defeasance of Certain Obligations...............................49
SECTION 8.7 Reinstatement...................................................51
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 Without Consent of Holders......................................51
SECTION 9.2 With Consent of Holders.........................................52
SECTION 9.3 Revocation and Effect of Consent................................53
SECTION 9.4 Notation on or Exchange of Securities...........................54
SECTION 9.5 Trustee to Sign Amendments, Etc.................................54
SECTION 9.6 Conformity with Trust Indenture Act.............................54
ARTICLE 10
MISCELLANEOUS
SECTION 10.1 Trust Indenture Act of 1939.....................................55
SECTION 10.2 Notices.........................................................55
SECTION 10.3 Certificate and Opinion as to Conditions Precedent..............56
SECTION 10.4 Statements Required in Certificate or Opinion...................56
SECTION 10.5 Evidence of Ownership...........................................57
SECTION 10.6 Rules by Trustee, Paying Agent or Registrar.....................58
SECTION 10.7 Payment Date Other Than a Business Day..........................58
SECTION 10.8 Governing Law...................................................58
SECTION 10.9 No Adverse Interpretation of Other Agreements...................58
SECTION 10.10 Successors......................................................58
SECTION 10.11 Duplicate Originals.............................................58
SECTION 10.12 Separability....................................................59
SECTION 10.13 Table of Contents, Headings, Etc................................59
SECTION 10.14 Incorporators, Stockholders, Officers and Directors
of Company Exempt from Individual Liability.....................59
SECTION 10.15 Judgment Currency...............................................59
SIGNATURES
[a] Note: The Table of Contents shall not for any purposes be deemed to be a
part of the Indenture.
INDENTURE, dated as of December 8, 1998, 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.
"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 153 West 51st Street, New York, New York 10005 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.
"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 date of this Indenture 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.
"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.
"Material Subsidiary" of a Person means, as of any date, any
Subsidiary that would constitute a "significant subsidiary" within the meaning
of Article 1 of Regulation S-X of the Securities Act of 1933, as amended.
"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.
"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 ss.ss. 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
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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
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. 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. 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, except the unredeemed portion of Securities
redeemed 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 Security Register. 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,
(b) quarterly not more than 15 days after each record date for the payment of
quarterly interest on the Securities, as hereinabove specified, as of such
record date, and (c) 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 solvent corporation organized and validly existing under the laws of the
United States of America or any state thereof or the District of Columbia 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 Event of Default or 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, 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 60
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 (i) relief in respect of the Company or any of its
Material Subsidiaries in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in
effect, (ii) appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator, or similar official of the Company
or any of its Material Subsidiaries or for all or substantially all of
the property and assets of the Company or any of its Material
Subsidiaries or (iii) the winding up or liquidation of the affairs of
the Company or any of its Material Subsidiaries, and, in each case,
such decree or order shall remain unstayed and in effect for a period
of 60 consecutive days;
(e) the Company or any of its Material 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 Material Subsidiaries or
for all or substantially all of the property and assets of the Company
or any of its Material Subsidiaries 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
Company) 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, and the Trustee
at the request of such Holders shall, declare the entire Principal of (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) 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 with respect to the Company, then the
Principal (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 ipso facto be and become immediately due and
payable, without any declaration or other action by any Holder or the Trustee.
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 the 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 of such series 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 such
series 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 such series shall have made written
request to the Trustee to pursue the remedy;
(iii) such Holder or Holders have offered and, if requested,
provided 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 such
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 Sections 310(b) and 311 of the Trust
Indenture Act. For purposes of Sections 311(b)(4) and (6) of the Trust
Indenture Act, 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 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, 1999, 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,
premium, if any, 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,
and premium, if any, 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, 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; and
(D) 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 or 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, 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 principal and interest 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; and
(D) 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, premium, if any, 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
adversely affect the interests of the Holders in any material respect;
(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 not less than a majority in aggregate 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 or aggregate 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 First National Bank Plaza
Chicago, IL 60670-0126
Telecopy: (312) 407-1708
Attention: Corporate Trust Services Division
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.
THE AES CORPORATION,
Attest: as the Company
/s/ William R. Luraschi
- ---------------------------------
By: /s/ Barry J. Sharp
---------------------------------
Name: Barry J. Sharp
Title: Vice President and
Chief Financial Officer
THE FIRST NATIONAL BANK OF
Attest: CHICAGO, as the Trustee
/s/ Michael Pinzon
- ---------------------------------
By: /s/ Mary Fonti
---------------------------------
Name: Mary Fonti
Title: Assistant Vice President
EXHIBIT 4.02
================================================================================
THE AES CORPORATION
AND
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
--------------------
FIRST SUPPLEMENTAL INDENTURE
Dated as of December 8, 1998
TO
SENIOR INDENTURE
Dated as of December 8, 1998
--------------------
8% Senior Notes due 2008
================================================================================
The First Supplemental INDENTURE, is dated as of this 8th day
of December, 1998 (the "First 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").
WHEREAS, the Company entered into a Senior Indenture dated as
of December 8, 1998 between the Company and the Trustee (the "Indenture") to
provide for the future issuance of its senior debentures, notes or other
evidences of indebtedness (collectively, the "Securities"), said Securities to
be issued from time to time in series as might be determined by the Company
pursuant to the Indenture and, in an unlimited aggregate principal amount; and
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a new series of its Securities to
be known as its 8% Senior Notes due 2008 (said series being hereinafter
referred to as the "Series A Senior Notes"), the form and substance of such
Series A Senior Notes and the terms, provisions and conditions thereof to be
set forth as provided in the Indenture and this First Supplemental Indenture;
and
WHEREAS, the Company desires and has requested the Trustee to
join with it in the execution and delivery of this First Supplemental
Indenture, and all requirements necessary to make this First Supplemental
Indenture a valid instrument, in accordance with its terms, and to make the
Series A Senior Notes, when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company;
NOW, THEREFORE, in consideration of the purchase and
acceptance of the Series A Senior Notes by the Holders thereof, and for the
purpose of setting forth, as provided in the Indenture, the form and substance
of the Series A Senior Notes and the terms, provisions and conditions thereof,
the Company covenants and agrees with the Trustee as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1. TERMS DEFINED IN THE INDENTURE.
Each capitalized term used not but defined in this First
Supplemental Indenture shall have the meaning assigned to such term in the
Indenture.
SECTION 1.2. CERTAIN DEFINITIONS.
The following definitions are hereby added to the definitions
contained in Section 1.1 of the Indenture, but only with respect to the Series
A Senior Notes issued in accordance with the provisions hereof:
"Attributable Debt" means the present value (discounted at
the rate of 8% per annum compounded monthly) of the obligations for rental
payments required to be paid during the remaining term of any lease of more
than 12 months.
"Beneficial Owner" means the Person who has the right to
sell, transfer or otherwise dispose of an interest in a Series A Senior Note
and the right to receive the Principal and interest payable to the Holder
thereof.
"Consolidated Net Assets" means the aggregate amount of
assets (less reserves and other deductible items) after deducting current
liabilities, as shown on the consolidated balance sheet of the Company and its
Subsidiaries contained in the latest annual report to the stockholders of the
Company and prepared in accordance with GAAP.
"Funded Debt" means indebtedness for borrowed money having a
maturity of, or by its terms extendible or renewable for, a period of more than
12 months after the determination of the amount thereof.
"Principal Domestic Property" means any building, structure
or other facility (together with the land on which it is erected and fixtures
comprising a part thereof) used primarily for manufacturing, processing,
research, warehousing or distribution, located in the United States (excluding
its territories, possessions and Puerto Rico), owned or leased by the Company
and having a net book value in excess of 2% of Consolidated Net Assets, other
than any such building, structure or other facility or portion thereof which is
a pollution control facility financed by state or local governmental
obligations or which the principal executive officer, president and principal
financial officer of the Company determine in good faith is not of material
importance to the total business conducted or assets owned by the Company and
its Subsidiaries as an entirety.
The following terms are defined in the places indicated:
Term Defined in Section
---- ------------------
DTC 2.1
Initial Period 4.1(a)
Participant 4.1(c)
Redemption Request 4.1(b)
Representative 4.1(c)
Subsequent Period 4.1(a)
ARTICLE TWO
THE SERIES A SENIOR NOTES
SECTION 2.1. FORM.
The Series A Senior Notes shall be substantially in the form
of Exhibit A hereto, which is a part of this First Supplemental Indenture, with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by the Indenture and this First Supplemental
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the Officers of the Company executing such Series A Senior Notes,
as evidenced by their execution of the Series A Senior Notes.
The Series A Senior Notes will initially be issued as
Registered Global Securities.
The Company initially appoints The Depository Trust Company
("DTC") and the Trustee to act as Depositary and custodian, respectively, with
respect to the Series A Senior Notes.
The Company initially appoints the Trustee to act as Paying
Agent and Registrar with respect to the Series A Senior Notes.
SECTION 2.2. DESIGNATION AND AMOUNT.
(a) The Series A Senior Notes shall be entitled the "8%
Senior Notes due 2008" of the Company.
(b) The Trustee shall authenticate and deliver Series A
Senior Notes for original issue in an aggregate principal amount of
$200,000,000. The aggregate principal amount of Series A Senior Notes that may
be authenticated and delivered under the Indenture may not exceed the amount
set forth in the foregoing sentence, except for Series A Senior Notes that may
be authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Series A Senior Notes pursuant to Sections 2.7, 2.8,
2.10, 3.3 or 9.4 of the Indenture.
(c) The Company may not issue new Series A Senior Notes to
replace Series A Senior Notes that it has paid or delivered to the Trustee for
cancellation.
SECTION 2.3. INTEREST.
Interest on the Series A Senior Notes shall be payable in the
amount, on the dates and in the manner provided for in the form of the Series A
Senior Note attached hereto as Exhibit A.
SECTION 2.4. DENOMINATIONS.
The Series A Senior Notes shall be Registered Securities in
denominations of $1,000 or any integral multiple thereof.
SECTION 2.5. PLACE OF PAYMENT.
The place of payment for the Series A Senior Notes shall be
the Borough of Manhattan, The City of New York. So long as the Series A Senior
Notes are in the form of Registered Global Securities, the Company agrees that
payments of interest on, and any portion of the Principal of, the Series A
Senior Notes shall be made by the Paying Agent, upon receipt from the Company
of immediately available funds, directly to the Depositary (by Federal funds
wire transfer).
ARTICLE THREE
OPTIONAL REDEMPTION OF THE SERIES A SENIOR NOTES
SECTION 3.1. OPTIONAL REDEMPTION.
The Series A Senior Notes may be redeemed at the option of
the Company, as a whole or from time to time in part, at the times and at the
Redemption Price specified in the form of the Series A Senior Note attached
hereto as Exhibit A.
ARTICLE FOUR
LIMITED RIGHT OF REDEMPTION UPON DEATH
OF A BENEFICIAL OWNER OF
SERIES A SENIOR NOTES
SECTION 4.1. REDEMPTION AT THE HOLDER'S OPTION.
(a) Unless the Series A Senior Notes have been declared due
and payable prior to their maturity by reason of an Event of Default, the
Representative (as hereinafter defined) of a deceased Beneficial Owner of an
interest in Series A Senior Notes has the right to request redemption at par of
all or part of such interest, and the Company will redeem the same, provided
that the Company will not be obligated to redeem during the period from the
original issuance of the Series A Senior Notes through and including November
30, 1999 (the "Initial Period"), and during any twelve-month period which ends
on and includes each November 30 thereafter (each such twelve-month period
being a "Subsequent Period") (i) on behalf of a deceased Beneficial Owner any
interest in the Series A Senior Notes which exceeds an aggregate principal
amount of $25,000 or (ii) interests in the Series A Senior Notes in an
aggregate principal amount exceeding $4,000,000. A request for redemption may
be initiated by the Representative of a deceased Beneficial Owner at any time
and in any principal amount in integral multiples of $1,000. If the Company,
although not obligated to do so, chooses to redeem interests of a deceased
Beneficial Owner in the Series A Senior Notes in the Initial Period or in any
Subsequent Period in excess of the $25,000 limitation, such redemption, to the
extent that it exceeds the $25,000 limitation for any deceased Beneficial
Owner, shall not be included in the computation of the $4,000,000 aggregate
limitation for such Initial Period or for any Subsequent Period.
(b) Subject to the $25,000 and the $4,000,000 limitations set
forth in paragraph (a) above, the Company will, after the death of any
Beneficial Owner, redeem the interest of such Beneficial Owner in the Series A
Senior Notes within 60 days following receipt by the Trustee of a Redemption
Request (as hereinafter defined). If, during the Initial Period or any
Subsequent Period, Redemption Requests exceed the aggregate principal amount of
interests in Series A Senior Notes which the Company is obligated to redeem,
then such excess Redemption Requests will be applied in the order received by
the Trustee to successive Subsequent Periods, regardless of the number of
Subsequent Periods required to redeem such interests.
(c) A request for redemption of an interest in the Series A
Senior Notes may be initiated by the personal representative or other person
authorized to represent the estate of a deceased Beneficial Owner or by a
surviving joint tenant or tenant by the entirety (each a "Representative"). The
Representative shall deliver a request to the relevant participant in DTC (the
"Participant") through whom the deceased Beneficial Owner owned such interest,
in form satisfactory to the Participant, together with evidence of the death of
the Beneficial Owner, evidence of the authority of the Representative
satisfactory to the Participant, such waivers, notices or certificates as may
be required under applicable state or federal law and such other evidence of
the right to such redemption as the Participant shall require. The request
shall specify the principal amount of the interest in the Series A Senior Notes
to be redeemed. The Participant shall thereupon deliver to DTC a request for
redemption substantially in the form attached hereto as Exhibit B (a
"Redemption Request"), accompanied by the documents submitted to the
Participant as above described, and DTC will forward the same to the Trustee.
Documents accompanying Redemption Requests shall be in form satisfactory to the
Company. The Trustee may conclusively assume, without independent
investigation, that the statements contained in each Redemption Request are
true and correct and shall have no responsibility for reviewing any documents
accompanying a Redemption Request or for determining whether the applicable
decedent is in fact the Beneficial Owner of the Series A Senior Notes or is in
fact deceased and whether the Representative is duly authorized to request
redemption on behalf of the applicable Beneficial Owner.
(d) The price to be paid by the Company for an interest in
the Series A Senior Notes to be redeemed pursuant to a Redemption Request is
100% of the principal amount thereof plus accrued but unpaid interest to the
date of payment. Subject to arrangements with DTC, payment for interests in
Series A Senior Notes which are to be redeemed shall be made to DTC upon
presentation of the Series A Senior Notes to the Trustee in the aggregate
principal amount specified in the relevant Redemption Request. The principal
amount of any Series A Senior Notes acquired or redeemed by the Company other
than by redemption at the option of any Representative of a deceased Beneficial
Owner pursuant to this Section 4.1 shall not be included in the computation of
either the $25,000 or the $4,000,000 limitation specified in paragraph (a)
above for the Initial Period or for any Subsequent Period.
(e) For purposes of this Section 4.1, interests in the Series
A Senior Notes held in tenancy by the entirety, joint tenancy or by tenants in
common will be deemed to be held by a single Beneficial Owner, and the death of
a tenant in common, tenant by the entirety or joint tenant will be deemed the
death of the Beneficial Owner. The death of a Person who during such Person's
lifetime, was entitled to substantially all of the rights of a Beneficial Owner
of an interest in the Series A Senior Notes will be deemed to be the death of
the Beneficial Owner, regardless of the recordation of such interest on the
records of the Participant, provided such entitlement can be established to the
satisfaction of the Participant and the Company. Such entitlement shall be
deemed to exist in typical cases of nominee ownership, ownership under the
Uniform Gifts to Minors Act or the Uniform Transfers to Minors Act, community
property or other similar joint ownership arrangements, including individual
retirement accounts or Keogh (H.R. 10) plans maintained solely by or for the
decedent or by or for the decedent and any spouse, and trust and certain other
arrangements where one Person has substantially all of the rights of a
Beneficial Owner during such Person's lifetime.
(f) In the case of a Redemption Request which is presented
pursuant to this Section 4.1 and which has not been fulfilled at the time the
Company gives notice of its election to redeem the Series A Senior Notes
pursuant to Section 3.1 hereof, the interests in the Series A Senior Notes
which are the subject of such Redemption Request shall not be eligible for
redemption pursuant to such Section 3.1 hereof, but shall remain subject to
redemption pursuant to this Section 4.1.
(g) Subject to the provisions of Section 4.1(f), any
Redemption Request may be withdrawn upon delivery of a written request for such
withdrawal given to the Trustee by DTC prior to payment for redemption of an
interest in the Series A Senior Notes pursuant to this Section 4.1.
(h) During such time or times as, in accordance with the
Indenture, the Series A Senior Notes are not represented by a Registered Global
Security and are issued in definitive form: (i) all references in this Section
4.1 to Participants and DTC shall be deemed deleted, (ii) all determinations
pursuant to this Section 4.1 which the Participants are required to make shall
be made by the Company (including, without limitation, determining whether the
applicable decedent is in fact the Beneficial Owner of the interest in the
Series A Senior Note to be redeemed or is in fact deceased and whether the
Representative is duly authorized to request redemption on behalf of the
applicable Beneficial Owner), (iii) all redemption requests, to be effective,
shall be delivered by the Representative to the Trustee, with a copy to the
Company, and shall be in the form of a Redemption Request (with appropriate
changes to reflect the fact that such Redemption Request is being executed by a
Representative) and (iv) in addition to all documents that are otherwise
required to accompany a Redemption Request, the Series A Senior Note that is
the subject of such request shall accompany the request.
ARTICLE FIVE
ADDITIONAL COVENANTS APPLICABLE
TO THE SERIES A SENIOR NOTES
SECTION 5.1. RESTRICTIONS ON SECURED DEBT.
If the Company shall incur, issue, assume or guarantee any
indebtedness for borrowed money represented by notes, bonds, debentures or
other similar evidences of indebtedness, secured by a mortgage, pledge or other
lien on any Principal Domestic Property, the Company shall secure the Series A
Senior Notes equally and ratably with (or prior to) such indebtedness, so long
as such indebtedness shall be so secured, unless after giving effect thereto
the aggregate amount of all such indebtedness so secured, together with all
Attributable Debt in respect of sale and leaseback transactions involving
Principal Domestic Properties, would not exceed 15% of the Consolidated Net
Assets of the Company.
The foregoing restriction shall not apply to, and there shall
be excluded in computing secured indebtedness for the purpose of such
restriction, indebtedness secured by (a) property of, or on any shares of stock
or debt of, any Subsidiary of the Company, (b) mortgages on property of, or on
any shares of stock or debt of, any corporation existing at the time such
corporation becomes a Subsidiary, (c) mortgages in favor of the Company or any
Subsidiary, (d) mortgages in favor of U.S. or foreign governmental bodies to
secure partial, progress, advance or other payments, (e) mortgages on property,
shares of stock or debt existing at the time of acquisition thereof (including
acquisition through merger or consolidation), purchase money mortgages and
construction cost mortgages existing at or incurred within 180 days of the time
of acquisition thereof, (f) mortgages existing on the first date on which a
Series A Senior Note is authenticated by the Trustee, (g) mortgages incurred in
connection with pollution control, industrial revenue or similar financings,
and (h) any extension, renewal or replacement of any debt secured by any
mortgage referred to in the foregoing clauses (a) through (g), inclusive.
SECTION 5.2. RESTRICTIONS ON SALES AND LEASEBACKS.
The Company shall not enter into any sale and leaseback
transaction involving any Principal Domestic Property, the acquisition or
completion of construction and commencement of full operation of which has
occurred more than 180 days prior thereto, unless (a) the Company could incur a
mortgage on such property under the restrictions described in Section 5.1 hereof
in an amount equal to the Attributable Debt with respect to the sale and
leaseback transaction without equally and ratably securing the Series A Senior
Notes or (b) the Company, within 180 days after the sale or transfer by the
Company, applies to the retirement of its Funded Debt an amount equal to the
greater of (i) the net proceeds of the sale of the Principal Domestic Property
sold and leased pursuant to such arrangement or (ii) the fair market value of
the Principal Domestic Property so sold and leased as determined by the board of
directors of the Company; provided that the amount to be applied to the
retirement of Funded Debt of the Company shall be reduced by (A) the principal
amount of any Series A Senior Notes delivered within 180 days after such sale or
transfer to the Trustee for retirement and cancellation, and (B) the principal
amount of Funded Debt, other than Series A Senior Notes, voluntarily retired by
the Company within 180 days after such sale or transfer; provided further that
no retirement referred to in this clause (b) may be effected by payment at
maturity or pursuant to any mandatory sinking fund payment or any mandatory
prepayment provision.
ARTICLE SIX
ADDITIONAL EVENTS OF DEFAULT APPLICABLE
TO THE SERIES A SENIOR NOTE
SECTION 6.1. ADDITIONAL EVENTS OF DEFAULT.
Pursuant to Section 6.1(f) of the Indenture, an "Event of
Default" shall be deemed to occur with respect to the Series A Senior Notes if
an event of default, as defined in any indenture or instrument evidencing or
under which the Company has as of the date of this First Supplemental Indenture
or shall thereafter have outstanding any indebtedness, shall happen and be
continuing and either (a) such default results from the failure to pay the
principal of such indebtedness in excess of $50 million at final maturity of
such indebtedness or (b) as a result of such default the maturity of such
indebtedness shall have been accelerated so that the same shall be or become
due and payable prior to the date on which the same would otherwise have become
due and payable, and such acceleration shall not be rescinded or annulled
within 60 days and the principal amount of such indebtedness, together with the
principal amount of any other indebtedness of the Company in default, or the
maturity of which has been accelerated, aggregates $50 million or more;
provided that, the Trustee shall not be charged with knowledge of any such
default unless written notice thereof shall have been given to the Trustee by
the Company, by the holder or an agent of the holder of any such indebtedness,
by the trustee then acting under any indenture or other instrument under which
such default shall have occurred, or by the holders of not less than 25% in the
aggregate principal amount of the Series A Senior Notes at the time
outstanding; and provided further that if such default shall be remedied or
cured by the Company or waived by the holder of such indebtedness, then the
Event of Default described under this First Supplemental Indenture shall be
deemed likewise to have been remedied, cured or waived without further action
on the part of the Trustee, any Holder of Series A Senior Notes or any other
person.
ARTICLE SEVEN
MISCELLANEOUS PROVISIONS
SECTION 7.1. RATIFICATION.
The Indenture, as supplemented by this First Supplemental
Indenture, is in all respects ratified and confirmed. This First Supplemental
Indenture shall be deemed part of the Indenture in the manner and to the extent
provided herein and therein.
SECTION 7.2. COUNTERPARTS.
This First 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 First
Supplemental Indenture to be duly executed and attested, on the date or dates
indicated in the acknowledgments and as of the day and year first above written.
THE AES CORPORATION,
as the Company
By: /s/ Barry J. Sharp
---------------------------------
Name: Barry J. Sharp
Title: Vice President and
Chief Financial Officer
Attest:
/s/ William R. Luraschi
- ---------------------------------
Name: William R. Luraschi
Title: Vice President and
General Counsel
THE FIRST NATIONAL BANK OF
CHICAGO, as the Trustee
By: /s/ Mary Fonti
---------------------------------
Name: Mary Fonti
Title: Assistant Vice President
Attest:
/s/ Michael Pinzon
- ---------------------------------
Name: Michael Pinzon
Title: Trust Officer
EXHIBIT A
[FORM OF FACE OF SERIES A SENIOR NOTE]
[INSERT IF THE NOTE IS TO BE A REGISTERED GLOBAL SECURITY -
This Series A Senior Note is a Registered Global Security 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 Series A Senior Note is
exchangeable for Series A Senior Notes registered in the name of a person other
than the Depositary or its nominee only in the limited circumstances described
in the Indenture. 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.
Unless this Series A Senior Note is presented by an
authorized representative of 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 Series A Senior Note 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.: 00130HAP0
$
8% SENIOR NOTE DUE 2008
THE AES CORPORATION promises to pay
to or registered assigns the
principal sum of Dollars on
, 2008.
Interest Payment Dates: March 31, June 30, September 30 and December 31 of
each year, commencing March 31, 1999.
Record Dates: The fifteenth calendar day prior to each Interest Payment Date.
By:____________________________
Authorized Signature
By:____________________________
Authorized Signature
Dated:
Certificate of Authentication
This is one of the 8% Senior Notes due 2008 referred to in
the within-mentioned Indenture.
The First National Bank of
Chicago, as Trustee
By:____________________________
Authorized Signatory
[FORM OF REVERSE OF SERIES A SENIOR NOTE]
THE AES CORPORATION
8% SENIOR NOTE DUE DECEMBER 31, 2008
1. Interest. THE AES CORPORATION, a Delaware corporation (the
"Company," which definition shall include any successor thereto in accordance
with the Indenture (as defined below)), promises to pay, until the principal
hereof is paid or made available for payment, interest on the principal amount
set forth on the reverse side hereof at a rate of 8% per annum. Interest on the
Series A Senior Notes will accrue from and including the most recent date to
which interest has been paid or, if no interest has been paid, from December 8,
1998 through but excluding the date on which interest is paid. Interest shall
be payable in arrears on March 31, June 30, September 30 and December 31 of
each year (each an "Interest Payment Date"), commencing March 31, 1999.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
2. Method of Payment. The Company will pay interest on the
Series A Senior Notes (except defaulted interest) to the Persons who are
registered Holders of Series A Senior Notes at the close of business on the
fifteenth day prior to each Interest Payment Date (each, a "Regular Record
Date"). Holders must surrender Series A Senior Notes to a Paying Agent to
collect principal payments. The Company will pay principal and interest in
money of the United States that at the time of payment is legal tender for
payment of public and private debts. At the Company's option, interest may be
paid by check mailed to the registered address of the Holder of this Series A
Senior Note.
3. Paying Agent and Registrar. Initially, The First National
Bank of Chicago (the "Trustee") will act as Paying Agent and Registrar. The
Company may change any Paying Agent, Registrar or co-Registrar without notice.
4. Indenture. The Company issued the Series A Senior Notes
under an Indenture dated as of December 8, 1998 between the Company and the
Trustee as supplemented by the First Supplemental Indenture dated as of
December 8, 1998 between the Company and the Trustee (said Indenture, as so
supplemented, the "Indenture"). This Series A Senior Note is one of an issue of
Securities of the Company issued under the Indenture. The terms of the Series A
Senior Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code ss.ss.
77aaa-77bbbb) as amended from time to time. The Series A Senior Notes are
subject to all such terms, and Holders of the Series A Senior Notes are
referred to the Indenture and such Act for a statement of them. Capitalized
terms used herein and not otherwise defined have the meanings set forth in the
Indenture. The Series A Senior Notes are general unsecured and unsubordinated
obligations of the Company ranking pari passu with all of the Company's
unsecured and unsubordinated obligations, limited in aggregate principal amount
to $200,000,000. The Indenture limits the ability of the Company to incur
certain secured indebtedness and to enter into certain sale and leaseback
transactions.
5. Optional Redemption. The Series A Senior Notes are subject
to redemption, at the Company's option, in whole or from time to time in part,
at any time on or after December 8, 2000, upon not less than 30 nor more than
60 days' notice mailed to each holder of Series A Senior Notes to be redeemed
at its address appearing in the Security Register and prior to maturity at a
redemption price (the "Redemption Price") equal to 100% of the principal amount
to be redeemed plus any accrued and unpaid interest to the date of redemption
(subject to the right of Holders of record on the relevant Regular Record Date
to receive interest due or on Interest Payment Date that is on or prior to the
Redemption Date).
6. Limited Right of Redemption Upon Death of Beneficial
Owner. Subject to the conditions and limitations provided in the Indenture, at
the option of any deceased Beneficial Owner's Representative, interests in the
Series A Senior Notes are redeemable at 100% of their principal amount, plus
accrued interest.
7. Mandatory Redemption. No sinking fund is provided for the
Series A Senior Notes.
8. Denominations, Transfer, Exchange. The Series A Senior
Notes are in registered form without coupons in denominations of $1,000 and
integral multiples of $1,000. A Holder may transfer or exchange Series A Senior
Notes in accordance with the Indenture. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and to pay to it any taxes and fees required by law or permitted by the
Indenture. The Registrar need not transfer or exchange any Series A Senior
Notes or portion of a Series A Series Note selected for redemption, or transfer
or exchange any Series A Series Notes for a period of 15 days before selection
of such Series A Series Notes to be redeemed.
9. Persons Deemed Owners. The registered holder of a Series A
Senior Note may be treated as the owner of it for all purposes.
10 Unclaimed Money. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee or Paying Agent will pay
the money back to the Company at its written request. After that, Holders
entitled to the money must look to the Company for payment as general creditors
unless an "abandoned property" law designates another Person.
11. Amendment, Supplement, Waiver. The Company and the
Trustee may, without the consent of the holders of any outstanding Series A
Senior Notes, amend, waive or supplement the Indenture or the Series A Senior
Notes for certain specified purposes, including, among other things, curing
ambiguities, defects or inconsistencies, maintaining the qualification of the
Indenture under the Trust Indenture Act of 1939 or making any other change that
does not adversely affect the rights of any Holder in any material respect.
Other amendments and modifications of the Indenture or the Series A Senior
Notes may be made by the Company and the Trustee with the consent of the
Holders of not less than a majority of the aggregate principal amount of the
outstanding Securities of all series affected, subject to certain exceptions
requiring the consent of the Holders of the particular Series A Senior Notes to
be affected.
12. Successor Corporation. When a successor corporation
assumes all the obligations of its predecessor under the Series A Senior Notes
and the Indenture and the transaction complies with the terms of Article 5 of
the Indenture, the predecessor corporation, subject to certain exceptions, will
be released from those obligations.
13. Defaults and Remedies. Events of Default are set forth in
the Indenture. Subject to certain limitations in the Indenture, if an Event of
Default (other than an Event of Default specified in Section 6.1(d) or (e) of
the Indenture with respect to the Company) occurs and is continuing, then the
holders of not less than 25% in aggregate principal amount of the outstanding
Series A Senior Notes may, or the Trustee may, declare the principal of, plus
accrued interest, if any, to be due and payable immediately. If an Event of
Default specified in Section 6.1(d) or (e) of the Indenture with respect to the
Company occurs and is continuing, the principal of and accrued interest on all
of the Series A Senior Notes 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. Holders of the Series A Senior Notes may not enforce the Indenture or
the Series A Senior Notes except as provided in the Indenture. The Trustee may
require indemnity reasonably satisfactory to it before it enforces the
Indenture or the Series A Senior Notes. Subject to certain limitations, Holders
of a majority in principal amount of the then outstanding Series A Senior Notes
may direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of the Series A Senior Notes notice of any continuing
default (except a default in payment of principal or interest or a failure to
comply with Article 5 of the Indenture) if it determines in good faith that
withholding notice is in their interests. The Company must furnish an annual
compliance certificate to the Trustee.
14. Trustee Dealings with Company. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Company or its Affiliates, and may otherwise deal with
the Company or its Affiliates, as if it were not Trustee.
15. No Recourse Against Others. A director, officer,
employee, stockholder or beneficiary, as such, of the Company shall not have
any liability for any obligations of the Company under the Series A Senior
Notes or the Indenture or for any claim based on, in respect of or by reason
of, such obligations or their creation. Each Holder of the Series A Senior
Notes by accepting a Series A Senior Note waives and releases all such
liability. The waiver and release are part of the consideration for the issue
of the Series A Senior Notes.
16. Defeasance. The Indenture contains provisions (which
provisions apply to this Series A Senior Note) for defeasance at any time of
(a) the entire indebtedness of the Company in respect of this Series A Senior
Note and (b) certain restrictive covenants and Defaults and Events of Default,
in each case upon compliance by the Company with certain conditions set forth
therein.
17. Authentication. This Series A Senior Note shall not be
valid until the Trustee signs the certificate of authentication on the other
side of this Series A Senior Note.
18. Abbreviations. Customary abbreviations may be used in the
name of a Holder of Series A Senior Notes or an assignee, such as: TEN COM (=
tenants in common), TENANT (= tenants by the entireties), JT TEN (= joint
tenants with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
19. GOVERNING LAW. THE INDENTURE AND THIS SERIES A SENIOR
NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
The Company will furnish to any Holder of Series A Senior
Notes upon written request and without charge a copy of the Indenture. Requests
may be made to:
THE AES CORPORATION
1001 North 19th Street, Suite 2000
Arlington, Virginia 22209
Telephone: (703) 522-1315
Telecopy: (703) 528-4510
Attention: General Counsel
ASSIGNMENT FORM
If you the holder want to assign this Series A Senior Note, fill in the form
below and have your signature guaranteed:
I or we assign and transfer this Series A Senior Note to
- -------------------------------------------------------------------------------
(Insert assignee's social security or tax ID number)___________________________
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code) and irrevocably appoint
____________ agent to transfer this Series A Senior Note on the books of the
Company. The agent may substitute another to act for him.
________________________________________________________________________________
Date: Your signature:
----------- ----------------------------
(Sign exactly as your name
appears on the other side
of this Series A Senior
Note)
Signature Guarantee:___________________________________________
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
EXHIBIT B
[FORM OF REQUEST FOR REDEMPTION]
The AES Corporation
8% Senior Notes
due December 31, 2008
CUSIP No. 00130HAP0
The undersigned Participant does hereby certify, pursuant to
Section 4.1 of the First Supplemental Indenture dated as of December 8, 1998 to
the Indenture dated as of December 8, 1998 between The AES Corporation (the
"Company") and The First National Bank of Chicago, as trustee (the "Trustee"),
to the Company and the Trustee that:
1. [Name of deceased Beneficial Owner] is deceased.
2. [Name of deceased Beneficial Owner] had a $________
interest in the Company's 8% Senior Notes due December 31, 2008 (the "Series A
Senior Notes").
3. [Name of Representative] is Beneficial Owner's personal
[representative/ other person authorized to represent the estate of the
Beneficial Owner/surviving joint tenant/ surviving tenant by the entirety] and
has delivered to the undersigned a request for redemption in form satisfactory
to the undersigned, requesting that $___________ ($1,000 or an integral
multiple thereof) be redeemed pursuant to said Section 4.1. Such request and
the documents accompanying such request, all of which are satisfactory to the
undersigned, are delivered herewith.
4. [Name of Participant] holds the interest in the Series A
Senior Notes with respect to which this Redemption Request is being made on
behalf of [Name of deceased Beneficial Owner].
IN WITNESS WHEREOF, the undersigned has executed this
Redemption Request as of ________________.
[Name of Participant]
By: __________________________
Name:
Title:
