Exhibit 4.11
THE AES CORPORATION
AND
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
__________________
[ ] SUPPLEMENTAL INDENTURE
Dated as of _____________, 199__
TO
JUNIOR SUBORDINATED INDENTURE
Dated as of ___________, 199__
___________________
_____% Junior Subordinated Securities
Due ___
[ ] Supplemental INDENTURE, dated as of the _____ day of
__________ 199___ (the "[ ] Supplemental Indenture"), between THE AES
CORPORATION, a corporation duly organized and existing under the laws of the
State of Delaware (hereinafter sometimes referred to as the "Company") and The
First National Bank of Chicago, a national banking association, as trustee
(hereinafter sometimes referred to as the "Trustee") under the Junior
Subordinated Indenture dated as of _______ __, 199_ between the Company and
the Trustee (the "Indenture"); as set forth in Section 7.01 hereto and except
as otherwise set forth herein, all terms used and not defined herein are used
as defined in the Indenture),
WHEREAS, the Company executed and delivered the Indenture to
the Trustee to provide for the future issuance of its junior subordinated
Securities (the "Debentures"), said Debentures to be issued from time to time
in series as might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered
thereunder as in the Indenture provided; and
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a new series of its Debentures to
be known as its ____% Junior Subordinated Debentures due ___ (said series being
hereinafter referred to as the "Series ____% Debentures"), the form and
substance of such Series ____% Debentures and the terms, provisions and
conditions thereof to be set forth as provided in the Indenture and this [ ]
Supplemental Indenture; and
WHEREAS, the Company has caused to be formed AES Trust [ ]
("AES Trust [ ]") as a statutory business trust under the Business Trust Act
of the State of Delaware (12 Del. Code Section 3801 et seq.) pursuant to a
declaration of trust dated ______ __, 199__ (the "Original Declaration") and
the filing of a certificate of trust with the Secretary of State of the State
of Delaware on _____ __, 199__; and
WHEREAS, the Original Declaration is to be amended and restated
in its entirety pursuant to an Amended and Restated Declaration of Trust dated
as of ___________, 199___ (such Amended and Restated Declaration of Trust, as
amended from time to time, the "Declaration of Trust"); and
WHEREAS, AES Trust [ ] desires to issue its ____% Preferred
Trust Securities (the "Preferred Securities") and sell such Preferred
Securities to initial purchasers; and
WHEREAS, in connection with such purchases of Preferred
Securities and the related purchase by the Company of the Common Securities
(as defined in the Declaration of Trust) of AES Trust [ ], AES Trust [ ] will
purchase as trust assets Series ____% Debentures; and
WHEREAS, pursuant to the Declaration of Trust, the legal title
to the Series ____% Debentures shall be owned and held of record in the name
of The Bank of New York or its successor under the Declaration of Trust, as
Property Trustee (the "Property Trustee"), in trust for the benefit of holders
of the Preferred Securities and the Common Securities; and
WHEREAS, upon the occurrence of a Special Event (as defined in
the Declaration of Trust) the Regular Trustees (as defined in the Declaration
of Trust) of AES Trust [ ] shall, unless the Series ____% Debentures are
redeemed as described herein, dissolve AES Trust [ ] and cause to be
distributed to the holders of the Preferred Securities and Common Securities,
on a Pro Rata basis (determined as provided in the terms of the Preferred
Securities and Common Securities attached as Exhibits B and C to the
Declaration of Trust), Series ____% Debentures and in connection with a
Liquidation Distribution (as defined in the Declaration of Trust) the Regular
Trustees may cause to be distributed to holders of Preferred Securities and
Common Securities, on such a Pro Rata basis, Series ____% Debentures (each a
"Dissolution Event"); and
WHEREAS, the Company desires and has requested the Trustee to
join with it in the execution and delivery of this [ ] Supplemental
Indenture, and all requirements necessary to make this [ ] Supplemental
Indenture a valid instrument, in accordance with its terms, and to make the
Series ____% Debentures when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company, have been
performed and fulfilled, and the execution and delivery hereof have been in
all respects duly authorized;
NOW THEREFORE, in consideration of the purchase and acceptance
of the Series ____% Debentures by the holders thereof, and for the purpose of
setting forth, as provided in the Indenture, the form and substance of the
Series ____% Debentures and the terms, provisions and conditions thereof, the
Company covenants and agrees with the Trustee as follows:
ARTICLE ONE
General Terms and Conditions of
the Series ____% Debentures
SECTION 1.01. There shall be and is hereby authorized a series
of Debentures designated the "____% Junior Subordinated Debentures Due 20___",
limited in aggregate principal amount to $_____________ (except as provided in
this Section 1.01 and 6.01). Upon exercise of the overallotment option set
forth in the Underwriting Agreement (as defined in the Declaration of Trust),
additional Series ____% Debentures in the aggregate principal amount of up to
$__________ may be executed by the Company and delivered to the Trustee for
authentication, and the Trustee shall thereupon authenticate and deliver said
Series ____% Debentures to or upon the written order of the Company, which
order shall be accompanied by evidence satisfactory to the Trustee that the
overallotment option has been exercised. The Series ____% Debentures shall
mature and the principal shall be due and payable together with all accrued
and unpaid interest thereon, including Compounded Interest (as hereinafter
defined) on _________ , 20___.
SECTION 1.02. (a) Except as provided in Section 1.02(b), the
Series ____% Debentures shall be issued in fully registered certificated form
without interest coupons. Principal and interest on the Series ____%
Debentures issued in certificated form will be payable, the transfer of such
Series ____% Debentures will be registrable and such Series ____% Debentures
will be exchangeable for Series ____% Debentures bearing identical terms and
provisions at the office or agency of the Company in the Borough of Manhattan,
The City and State of New York; provided, however, that payment of interest
may be made at the option of the Company by check mailed to the registered
holder at such address as shall appear in the Debenture register and that the
payment of principal with respect to the Series ____% Debentures will only be
made upon surrender of the Series ____% Debentures to the Trustee.
Notwithstanding the foregoing, so long as the Property Trustee is the legal
owner and record holder of the Series ____% Debentures, the payment of the
principal of and interest (including Compounded Interest, if any) on the
Series ____% Debentures held by the Property Trustee will be made by the
Company in immediately available funds on the payment date therefor at such
place and to the Property Account (as defined in the Declaration of Trust)
established and maintained by the Property Trustee pursuant to the Declaration
of Trust.
(b) In connection with a Dissolution Event;
(i) Series ____% Debentures in certificated form may be
presented to the Trustee by the Property Trustee in
exchange for a Global Debenture representing the Series
____% Debentures in an aggregate principal amount equal
to all Outstanding Series ____% Debentures, to be
registered in the name of the Depositary, or its nominee,
and delivered by the Trustee to the Depositary for
crediting to the accounts of its participants pursuant to
the instructions of the Regular Trustees (as defined in
the Declaration of Trust). The Company upon any such
presentation shall execute a Global Debenture
representing the Series ____% Debentures in such
aggregate principal amount and deliver the same to the
Trustee for authentication and delivery in accordance
with the Indenture and this [ ] Supplemental Indenture.
Payments on the Series ____% Debentures issued as a
Global Debenture will be made to the Depositary; and
(ii) if any Preferred Securities are held in non book-entry
certificated form, Series ____% Debentures in
certificated form may be presented to the Trustee by the
Property Trustee and any Preferred Security Certificate
(as defined in the Declaration of Trust) which represents
Preferred Securities other than Preferred Securities held
by the Clearing Agency (as defined in the Declaration of
Trust) or its nominee ("Non Book-Entry Preferred
Securities") will be deemed to represent beneficial
interests in Series ____% Debentures presented to the
Trustee by the Property Trustee having an aggregate
principal amount equal to the aggregate liquidation
amount of the Non Book-Entry Preferred Securities until
such Preferred Security Certificate are presented to the
Debenture Registrar for transfer or reissuance at which
time such Preferred Security Certificate will be
cancelled and a Series ____% Debenture, registered in the
name of the holder of the Preferred Security Certificate
or the transferee of the holder of such Preferred
Security Certificate, as the case may be, with an
aggregate principal amount equal to the aggregate
liquidation amount of the Preferred Security Certificate
canceled will be executed by the Company and delivered to
the Trustee for authentication and delivery in accordance
with the Indenture and this [ ] Supplemental Indenture.
On issue of such Series ____% Debentures, Series ____%
Debentures with an equivalent aggregate amount that were
presented by the Property Trustee to the Trustee will be
deemed to have been canceled.
SECTION 1.03. Each Series ____% Debenture will bear interest
at the rate of ____% per annum from _______________, 199___ until the
principal thereof becomes due and payable, and on any overdue principal and
(to the extent that payment of such interest is enforceable under applicable
law) on any overdue installment of interest at the same rate per annum,
compounded quarterly, payable (subject to the provisions of Article Three)
quarterly in arrears on the last day of each calendar quarter, viz. March 31,
June 30, September 30 and December 31 (each, an "Interest Payment Date",
commencing on __________ __, 199__), to the person in whose name such Series
____% Debenture or any predecessor Series ____% Debenture is registered, at
the close of business on the regular record date for such interest
installment, which, except as set forth below, shall be, in respect of any
Series ____% Debentures of which the Property Trustee is the registered holder
of or a Global Debenture, the close of business on the business day next
preceding that Interest Payment Date. Notwithstanding the foregoing sentence,
if the Preferred Securities are no longer in book-entry only form or if
pursuant to the provisions of Section 2.11(c) of the Indenture the Series
____% Debentures are not represented by a Global Debenture, the regular record
dates for such interest installment shall be the close of business on the
[last day of the month next preceding that Interest Payment Date]. Any such
interest installment not punctually paid or duly provided for shall forthwith
cease to be payable to the registered holders on such regular record date, and
may be paid to the person in whose name the Series ____% Debenture (or one or
more Predecessor Debentures) is registered at the close of business on a
special record date to be fixed by the Trustee for the payment of such
defaulted interest, notice whereof shall be given to the registered holders of
the Series ____% Debentures not less than 10 days prior to such special record
date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Series ____%
Debentures may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture.
The amount of interest payable for any period will be computed
on the basis of a 365-day year of 4 calendar quarters. In the event that any
date on which interest is payable on the Series ____% Debentures is not a
business day, then payment of interest payable on such date will be made on
the next succeeding day which is a business day (and without any interest or
other payment in respect of any such delay), except that, if such business day
is in the next succeeding calendar year, such payment shall be made on the
immediately preceding business day, in each case with the same force and
effect as if made on such date.
ARTICLE TWO
Optional Redemption
of the Series ____% Debentures
SECTION 2.01. Except as provided in Section 2.02, Series ____%
Debentures may not be redeemed by the Company prior to __________, 200__.
Subject to the terms of Article Three of the Indenture, the Company shall have
the right to redeem the Series ____% Debentures, in whole or in part, from
time to time, on or after ___________, 200__, at a redemption price equal to
100% of the principal amount to be redeemed plus any accrued and unpaid
interest thereon, including Compounded Interest, if any, to the date of such
redemption (the "Optional Redemption Price"). Any redemption pursuant to this
paragraph will be made upon not less than 30 nor more than 60 days' notice, at
the Optional Redemption Price.
SECTION 2.02. If, at any time, a Tax Event (as defined below)
shall occur or be continuing and (i) the Regular Trustees and the Company
shall have received an opinion (a "Redemption Tax Opinion") of a nationally
recognized independent tax counsel experienced in such matters that, as a
result of a Tax Event, there is more than an insubstantial risk that the
Company would be precluded from deducting the interest on the Series ____%
Debentures for United States federal income tax purposes even if the Series
____% Debentures were distributed to the holders of Preferred Securities and
Common Securities in liquidation of such holder's interest in AES Trust [ ] as
set forth in the Declaration of Trust or (ii) the Regular Trustees shall have
been informed by such tax counsel that a No Recognition Opinion (as defined
below) cannot be delivered to AES Trust [ ], the Company shall have the right
at any time, upon not less than 30 nor more than 60 days' notice, to redeem the
Series ____% Debentures in whole or in part for cash at the Optional
Redemption Price within 90 days following the occurrence of such Tax Event;
provided, however, that, if at the time there is available to the Company or
the Regular Trustees on behalf of AES Trust [ ] the opportunity to eliminate,
within such 90 day period, the Tax Event by taking some ministerial action
("Ministerial Action"), such as filing a form or making an election, or
pursuing some other similar reasonable measure, which has no adverse effect on
AES Trust [ ], the Company or the holders of the Preferred Securities, the
Company or the Regular Trustees on behalf of AES Trust [ ] will pursue such
measure in lieu of redemption and provided further that the Company shall have
no right to redeem the Series ____% Debentures while the Regular Trustees on
behalf of AES Trust [ ] are pursuing any such Ministerial Action.
"Tax Event" means that the Company and the Regular Trustees
shall have obtained an opinion of nationally recognized independent tax
counsel experienced in such matters (a "Dissolution Tax Opinion") to the
effect that on or after ____________, 199___ as a result of (a) any amendment
to, or change (including any announced prospective change) in, the laws (or
any regulations thereunder) of the United States or any political subdivision
or taxing authority thereof or therein, (b) any amendment to, or change in, an
interpretation or application of any such laws or regulations by any
legislative body, court, governmental agency or regulatory authority
(including the enactment of any legislation and the publication of any
judicial decision or regulatory determination), (c) any interpretation or
pronouncement that provides for a position with respect to such laws or
regulations that differs from the theretofore generally accepted position or
(d) any action taken by any governmental agency or regulatory authority, which
amendment or change is enacted, promulgated, issued or announced or which
interpretation or pronouncement is issued or announced or which action is
taken, in each case on or after ______________, 199___ there is more than an
insubstantial risk that (i) AES Trust [ ] is, or will be within 90 days of the
date thereof, subject to United States federal income tax with respect to
income accrued or received on the Series ____% Debentures, (ii) AES Trust [ ]
is, or will be within 90 days of the date thereof, subject to more than a de
minimis amount of taxes, duties or other governmental charges or (iii)
interest payable by the Company to AES Trust [ ] on the Series ____%
Debentures is not, or within 90 days of the date thereof will not be,
deductible by the Company for United States federal income tax purposes.
"No Recognition Opinion" means an opinion of a nationally
recognized independent tax counsel experienced in such matters, which opinion
may rely on any then applicable published revenue ruling of the Internal
Revenue Service, to the effect that the holders of the Preferred Securities
will not recognize any gain or loss for United States federal income tax
purposes as a result of a dissolution of AES Trust [ ] and distribution of the
Series ____% Debentures as provided in the Declaration of Trust.
SECTION 2.03. If the Series ____% Debentures are only
partially redeemed pursuant to this Article Two, the Series ____% Debentures
will be redeemed pro rata or by lot or by any other method utilized by the
Trustee, provided that if at the time of redemption, the Series ____%
Debentures are registered as a Global Debenture, the Depository shall
determine by lot the principal amount of such Series ____% Debentures held by
each Debenture Holder to be redeemed in accordance with its customary
procedures. Notwithstanding the foregoing, if a partial redemption of the
Series ____% Debentures would result in the delisting of the Preferred
Securities by any national securities exchange or other organization on which
the Preferred Securities are then listed, the Company shall not be permitted
to effect such partial redemption and will only redeem the Series ____%
Debentures in whole.
ARTICLE THREE
Extension of Interest Payment Period
SECTION 3.01. So long as the Company is not in default in the
payment of interest on the Series ____% Debentures, the Company shall have the
right, at any time during the term of the Series ____% Debentures, from time to
time to extend the interest payment period of such Series ____% Debentures for
up to [to come] consecutive quarterly interest periods (the "Extended Interest
Payment Period"), at the end of which period the Company shall pay all
interest accrued and unpaid thereon (together with interest thereon at the
rate of ____% per annum to the extent permitted by applicable law, compounded
quarterly ("Compounded Interest")). During such Extended Interest Payment
Period the Company shall not declare or pay any dividend on, or redeem,
purchase, acquire or make a distribution or liquidation payment with respect
to, any of its common stock or preferred stock or make any guarantee payments
with respect thereto; provided that (i) the Company may pay accrued dividends
(and cash in lieu of fractional shares) upon the conversion of any preferred
stock of the Company as may be outstanding from time to time, in each case in
accordance with the terms of such stock and (ii) the foregoing will not apply
to any stock dividends paid by the Company. Prior to the termination of any
such Extended Interest Payment Period, the Company may pay all or any portion
of the interest accrued on the Series ____% Debentures on any Interest Payment
Date to holders of record on the regular record date for such Interest Payment
Date or from time to time further extend such Period; provided that such
Period together with all such further extensions thereof shall not exceed 60
consecutive monthly interest periods. Upon the termination of any Extended
Interest Payment Period and upon the payment of all accrued and unpaid
interest then due, together with Compounded Interest, the Company may select a
new Extended Interest Payment Period, subject to the foregoing requirements.
No interest shall be due and payable during an Extended Interest Payment
Period, except at the end thereof. At the end of the Extended Interest
Payment Period the Company shall pay all interest accrued and unpaid on the
Series ____% Debentures including any Compounded Interest which shall be
payable to the holders of the Series ____% Debentures in whose names the
Series ____% Debentures are registered in the Debenture register on the first
record date after the end of the Extended Interest Payment Period.
SECTION 3.02. (a) So long as the Property Trustee is the
legal owner and holder of record of the Series ____% Debentures, at the time
the Company selects an Extended Interest Payment Period, the Company shall give
both the Property Trustee and the Trustee written notice of its selection of
such Extended Interest Payment Period one business day prior to the earlier of
(i) the next succeeding date on which distributions on the Preferred
Securities are payable or (ii) the date AES Trust [ ] is required to give
notice of the record date or the date such distributions are payable to the
New York Stock Exchange or other applicable self-regulatory organization or to
holders of the Preferred Securities, but in any event not less than one
business day prior to such record date. The Company shall cause AES Trust [ ]
to give notice of the Company's selection of such Extended Interest Payment
Period to the holders of the Preferred Securities.
(b) If as a result of a Dissolution Event Series ____%
Debentures have been distributed to holders of Preferred Securities and Common
Securities, at the time the Company selects an Extended Interest Payment
Period, the Company shall give the holders of the Series ____% Debentures and
the Trustee written notice of its selection of such Extended Interest Payment
Period at least 10 business days prior to the earlier of (i) the next
succeeding Interest Payment Date or (ii) the date the Company is required to
give notice of the record or payment date of such interest payment to the New
York Stock Exchange or other applicable self-regulatory organization or to
holders of the Series ____% Debentures.
SECTION 3.03. The month in which any notice is given pursuant
to Section 3.02 shall be counted as one of the 60 months permitted in the
maximum Extended Interest Payment Period permitted under this Article Three.
ARTICLE FOUR
Covenants Applicable to Series ____% Debentures
SECTION 4.01. So long as any Preferred Securities remain
outstanding, the Company will not declare or pay any dividends on, or redeem,
purchase, acquire or make a distribution or liquidation payment with respect
to, any of its common stock or preferred stock or make any guarantee payments
with respect thereto if at such time (i) the Company shall be in default with
respect to its Guarantee Payments (as defined in the Guarantee Agreement) or
other payment obligations under the Guarantee Agreement, (ii) there shall have
occurred any Event of Default under the Indenture with respect to the Series
____% Debentures or (iii) the Company shall have given notice of its election
of an Extended Interest Payment Period and such Period, or any extension
thereof, is continuing; provided that (a) the Company will be permitted to pay
accrued dividends (and cash in lieu of fractional shares) upon the conversion
of any preferred stock of the Company as may be outstanding from time to time,
in each case in accordance with the terms of such stock and (b) the foregoing
will not apply to any stock dividends paid by the Company.
SECTION 4.02. In connection with the distribution of the
Series ____% Debentures to the holders of the Preferred Securities upon a
Dissolution Event, the Company will use its best efforts to list such Series
____% Debentures on the New York Stock Exchange or on such other exchange as
the Preferred Securities are then listed and traded.
SECTION 4.03. The Company covenants and agrees for the benefit
of the holders of the Preferred Securities to comply fully with all of its
obligations and agreements under the Declaration of Trust, including, without
limitation, its obligations under Article IV thereof.
SECTION 4.04. Prior to the distribution of Series ____%
Debentures to the holders of Preferred Securities upon a Dissolution Event,
the Company covenants and agrees for the benefit of the holders of the
Preferred Securities (i) not to cause or permit the Common Securities to be
transferred except as permitted by the Declaration of Trust and (ii) that it
will use reasonable efforts to cause the Trust to continue to be treated as a
grantor trust for United States federal income tax purposes, except in
connection with a distribution of the Series ____% Debentures as provided in
the Declaration of Trust.
ARTICLE FIVE
Form of Series ____% Debentures
SECTION 5.01. The Series ____% Debentures and the Trustee's
Certificate of Authentication to be endorsed thereon are to be substantially
in the following forms:
(FORM OF FACE OF DEBENTURE)
[IF THE NOTE IS TO BE A GLOBAL DEBENTURE, INSERT - This
Debenture is a Global Debenture within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee of a Depositary. This Debenture is exchangeable for Debentures
registered in the name of a person other than the Depositary or its nominee
only in the limited circumstances described in the Indenture, and no transfer
of this Debenture (other than a transfer of this Debenture as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary) may be registered
except in limited circumstances.
Unless this Debenture is presented by an authorized
representative to The Depository Trust Company (00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx) to the issuer or its agent for registration of transfer, exchange or
payment, and any Debenture issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of The Depository
Trust Company and any payment hereon is made to Cede & Co., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL
since the registered owner hereof, Cede & Co., has an interest herein.]
No. $
CUSIP NO. ____________
THE AES CORPORATION
____% JUNIOR SUBORDINATED DEBENTURE
DUE 20___
The AES Corporation, a corporation duly organized and existing
under the laws of the State of Delaware (herein referred to as the "Company",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to
, or registered assigns, the principal sum of _________
Dollars on ___________, 20___, and to pay interest on said principal sum from
___________, 199___ or from the most recent interest payment date (each such
date, an "Interest Payment Date") to which interest has been paid or duly
provided for, quarterly (subject to deferral as set forth herein) in arrears
on the last day of each month commencing ___________, 199___ at the rate of
____% per annum plus Compounded Interest, if any, until the principal hereof
shall have become due and payable, and on any overdue principal and premium,
if any, and (without duplication and to the extent that payment of such
interest is enforceable under applicable law) on any overdue installment of
interest at the same rate per annum. The amount of interest payable on any
Interest Payment Date shall be computed on the basis of a 365-day year of 4
calendar quarters, viz. March 31, June 30, September 30 and December 31. In
the event that any date on which interest is payable on this Debenture is not
a business day, then payment of interest payable on such date will be made on
the next succeeding day which is a business day (and without any interest or
other payment in respect of any such delay), except that, if such business day
is in the next succeeding calendar year, such payment shall be made on the
immediately preceding business day, in each case with the same force and
effect as if made on such date. The interest installment so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the person in whose name this Debenture
(or one or more Predecessor Debentures, as defined in said Indenture) is
registered at the close of business on the regular record date for such
interest installment, [which shall be the close of business on the day next
preceding such Interest Payment Date, provided if the Preferred Securities of
AES Trust Trust [ ] are no longer in book-entry only form, the regular record
dates shall be the close of business on the fifteenth (15th) day of each month
next preceding such Interest Payment Date] [IF PURSUANT TO THE PROVISIONS OF
SECTION 2.11(c) OF THE INDENTURE THE SERIES ____% DEBENTURES ARE NOT
REPRESENTED BY A GLOBAL DEBENTURE -- which shall be the close of business on
the fifteenth (15th) day of each month next preceding such Interest Payment
Date.] Any such interest installment not punctually paid or duly provided for
shall forthwith cease to be payable to the registered holders on such regular
record date, and may be paid to the person in whose name this Debenture (or
one or more Predecessor Debentures) is registered at the close of business on
a special record date to be fixed by the Trustee for the payment of such
defaulted interest, notice whereof shall be given to the registered holders of
this series of Debentures not less than 10 days prior to such special record
date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Debentures may
be listed, and upon such notice as may be required by such exchange, all as
more fully provided in the Indenture. The principal of (and premium, if any)
and the interest on this Debenture shall be payable at the office or agency of
the Company maintained for that purpose in the Borough of Manhattan, The City
and State of New York, in any coin or currency of the United States of America
which at the time of payment is legal tender for payment of public and private
debts; provided, however, that payment of interest may be made at the option
of the Company by check mailed to the registered holder at such address as
shall appear in the Debenture register and that the payment of principal will
only be made upon the surrender of this Debenture to the Trustee.
Notwithstanding the foregoing, so long as the owner and record holder of this
Debenture is the Property Trustee (as defined in the Indenture referred to on
the reverse hereof), the payment of the principal of (and premium, if any) and
interest (including Compounded Interest, if any) on this Debenture will be
made at such place and to such account of the Property Trustee as may be
designated by the Property Trustee.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and subject in right of payment to the
prior payment in full of all Senior Indebtedness, and this Debenture is issued
subject to the provisions of the Indenture with respect thereto. Each Holder
of this Debenture, by accepting the same, (a) agrees to and shall be bound by
such provisions, (b) authorizes and directs the Trustee on his behalf to take
such action as may be necessary or appropriate to acknowledge or effectuate
the subordination so provided and (c) appoints the Trustee his
attorney-in-fact for any and all such purposes. Each Holder hereof, by his
acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder
of Senior Indebtedness, whether now outstanding or hereafter incurred, and
waives reliance by each such Holder upon said provisions.
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any
purpose until the Certificate of Authentication hereon shall have been signed
by or on behalf of the Trustee.
Unless the Certificate of Authentication hereon has been
executed by the Trustee referred to on the reverse side hereof, this Debenture
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
The provisions of this Debenture are continued on the reverse
side hereof and such continued provisions shall for all purposes have the same
effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Instrument to
be executed.
Dated:______________________________
The AES Corporation
By:______________________________
Attest:
By:______________________________
Secretary
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures of the series of Debentures
described in the within-mentioned Indenture.
[NAME OF TRUSTEE]
as Trustee
______________________________
or as Authentication Agent
By:______________________________ ______________________________
Authorized Signatory Authorized Signatory
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of Debentures
of the Company (herein sometimes referred to as the "Debentures"), specified
in the Indenture, all issued or to be issued in one or more series under and
pursuant to an Indenture dated as of ______ __, 199__ duly executed and
delivered between the Company and, a New York banking corporation, as Trustee
(herein referred to as the "Trustee"), as supplemented by the [ ]
Supplemental Indenture dated as of _____________, 199___ between the Company
and the Trustee (said Indenture as so supplemented being hereinafter referred
to as the "Indenture"), to which Indenture and all indentures supplemental
thereto reference is hereby made for a description of the rights, limitations
of rights, obligations, duties and immunities thereunder of the Trustee, the
Company and the holders of the Debentures, and, to the extent specifically set
forth in the Indenture, the holders of Senior Indebtedness and Preferred
Securities. By the terms of the Indenture, the Debentures are issuable in
series which may vary as to amount, date of maturity, rate of interest and in
other respects as in the Indenture provided. This series of Debentures is
designated the ____% Junior Subordinated Debentures due 20___ and is limited in
aggregate principal amount as specified in said [ ] Supplemental Indenture.
Except as provided in the next paragraph, the Debentures may
not be redeemed by the Company prior to ____________, 200____. The Company
shall have the right to redeem this Debenture at the option of the Company,
without premium or penalty, in whole or in part at any time on or after
__________ __, 200___ (an "Optional Redemption"), at a redemption price equal
to 100% of the principal amount plus any accrued but unpaid interest,
including any Compounded Interest, if any, to the date of such redemption (the
"Optional Redemption Price"). Any redemption pursuant to this paragraph will
be made upon not less than 30 nor more than 60 days' notice, at the Optional
Redemption Price. If the Debentures are only partially redeemed by the Company
pursuant to an Optional Redemption, the Debentures will be redeemed pro rata
or by lot or by any other method utilized by the Trustee; provided if, at the
time of redemption, the Debentures are registered as a Global Debenture, the
Depository shall determine the principal amount of such Debentures held by
each holder of Debentures to be redeemed in accordance with its customary
procedures.
If, at any time, a Tax Event (as defined below) shall occur or
be continuing after receipt of a Dissolution Tax Opinion (as defined below)
and (i) the Regular Trustees and the Company shall have received an opinion (a
"Redemption Tax Opinion") of a nationally recognized independent tax counsel
experienced in such matters that, as a result of a Tax Event, there is more
than an insubstantial risk that the Company would be precluded from deducting
the interest on the Series ____% Debentures for United States federal income
tax purposes even if the Series ____% Debentures were distributed to the
holders of Preferred Securities and Common Securities in liquidation of such
xxxxxx's interest in AES Trust [ ] as set forth in the Declaration of Trust or
(ii) the Regular Trustees shall have been informed by such tax counsel that a
No Recognition Opinion (as defined below) cannot be delivered to AES Trust [
], the Company shall have the right at any time, upon not less than 30 nor
more than 60 days' notice, to redeem the Series ____% Debentures in whole or
in part for cash at the Optional Redemption Price within 90 days following the
occurrence of such Tax Event; provided, however, that, if at the time there is
available to the Company or the Regular Trustees on behalf of AES Trust [ ]
the opportunity to eliminate, within such 90 day period, the Tax Event by
taking some ministerial action ("Ministerial Action"), such as filing a form
or making an election, or pursuing some other similar reasonable measure,
which has no adverse effect on AES Trust [ ], the Company or the holders of the
Preferred Securities, the Company or the Regular Trustees on behalf of AES
Trust [ ] will pursue such measure in lieu of redemption and provided further
that the Company shall have no right to redeem the Series ____% Debentures
while the Regular Trustees on behalf of AES Trust [ ] are pursuing any such
Ministerial Action.
"Tax Event" means that the Company and the Regular Trustees
shall have obtained an opinion of nationally recognized independent tax
counsel experienced in such matters (a "Dissolution Tax Opinion") to the
effect that on or after _____________, 199___, as a result of (a) any
amendment to, or change (including any announced prospective change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, (b) any amendment to, or
change in, an interpretation or application of any such laws or regulations by
any legislative body, court, governmental agency or regulatory authority
(including the enactment of any legislation and the publication of any
judicial decision or regulatory determination), (c) any interpretation or
pronouncement that provides for a position with respect to such laws or
regulations that differs from the theretofore generally accepted position or
(d) any action taken by any governmental agency or regulatory authority, which
amendment or change is enacted, promulgated, issued or announced or which
interpretation or pronouncement is issued or announced or which action is
taken, in each case on or after ______________, 199___, there is more than an
insubstantial risk that (i) AES Trust [ ] is, or will be within 90 days of
the date thereof, subject to United States federal income tax with respect to
income accrued or received on the Series ____% Debentures, (ii) AES Trust [ ]
is, or will be within 90 days of the date thereof, subject to more than a de
minimis amount of taxes, duties or other governmental charges or (iii)
interest payable by the Company to AES Trust [ ] on the Series ____%
Debentures is not, or within 90 days of the date thereof will not be,
deductible by the Company for United States federal income tax purposes.
"No Recognition Opinion" means an opinion of a nationally
recognized independent tax counsel experienced in such matters, which opinion
may rely on any then applicable published revenue ruling of the Internal
Revenue Service, to the effect that the holders of the Preferred Securities
will not recognize any gain or loss for United States federal income tax
purposes as a result of a dissolution of AES Trust [ ] and distribution of
the Series ____% Debentures as provided in the Declaration of Trust.
If the Debentures are only partially redeemed by the Company
pursuant to an Optional Redemption or as a result of a Tax Event as described
above, the Debentures will be redeemed pro rata or by lot or in some other
equitable manner determined by the Trustee. Notwithstanding the foregoing, if
a partial redemption of the Series ____% Debentures would result in the
delisting of the Preferred Securities by any national securities exchange or
other organization on which the Preferred Securities are then listed, the
Company shall not be permitted to effect such partial redemption and will only
redeem the Series ____% Debentures in whole.
In the event of redemption of this Debenture in part only, a
new Debenture or Debentures of this series for unredeemed portion hereof will
be issued in the name of the Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall
have occurred and be continuing, the principal of all of the Debentures may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions for defeasance at any time of
the entire indebtedness of this Debenture upon compliance by the Company with
certain conditions set forth therein.
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Debentures of each series affected at the
time outstanding, as defined in the Indenture (and, in the case of any series
of Debentures held as trust assets of a AES Trust and with respect to which a
Security Exchange has not theretofore occurred, such consent of holders of the
Preferred Securities and the Common Securities of such AES Trust as may be
required under the Declaration of Trust of such AES Trust to execute
supplemental indentures for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Indenture
or of any supplemental indenture or of modifying in any manner the rights of
the Holders of the Debentures; provided, however, that no such supplemental
indenture shall (i) extend the fixed maturity of any Debentures of any series,
or reduce the principal amount thereof, or reduce the rate or extend the time
of payment of interest thereon, or reduce any premium payable upon the
redemption thereof, without the consent of the holder of each Debenture so
affected or (ii) reduce the aforesaid percentage of Debentures, the holders of
which are required to consent to any such supplemental indenture, without the
consent of the holders of each Debenture (and, in the case of any series of
Debentures held as trust assets of a AES Trust and with respect to which a
Security Exchange has not theretofore occurred, such consent of the holders of
the Preferred Securities and the Common Securities of such AES Trust as may be
required under the Declaration of Trust of such AES Trust) then outstanding
and affected thereby. The Indenture also contains provisions permitting the
Holders of a majority in aggregate principal amount of the Debentures of a
series at the time outstanding affected thereby (subject, in the case of any
series of Debentures held as trust assets of a AES Trust and with respect to
which a Securities Exchange has not theretofore occurred, to such consent of
holders of Preferred Securities and Common Securities of such AES Trust as may
be required under the Declaration of Trust of such AES Trust), on behalf of
the Holders of the Debentures of such series, to waive any past default in the
performance of any of the covenants contained in the Indenture, or established
pursuant to the Indenture with respect to such series, and its consequences,
except a default in the payment of the principal of or premium, if any, or
interest on any of the Debentures of such series. Any such consent or waiver
by the registered Holder of this Debenture (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all
future Holders and owners of this Debenture and of any Debenture issued in
exchange herefor or in place hereof (whether by registration of transfer or
otherwise), irrespective of whether or not any notation of such consent or
waiver is made upon this Debenture.
Subject to Section 13.12 of the Indenture, no reference herein
to the Indenture (other than such Section) and no provision of this Debenture
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and premium, if any,
and interest on this Debenture at the time and place at the rate and in the
money herein prescribed.
So long as the Company is not in default in the payment of
interest on the Debentures, the Company shall have the right, at any time
during the term of the Debentures, from time to time to extend the interest
payment period of such Debentures for up to 60 consecutive monthly interest
periods (the "Extended Interest Payment Period"), at the end of which period
the Company shall pay all interest then accrued and unpaid (together with
interest thereon at the rate of ____% per annum to the extent permitted by
applicable law, compounded monthly ("Compounded Interest")). During such
Extended Interest Payment Period the Company shall not declare or pay any
dividend on, or redeem, purchase, acquire or make a distribution or
liquidation payment with respect to, any of its common stock or preferred
stock, or make any guarantee payments with respect thereto, provided that (a)
the Company may pay accrued dividends (and cash in lieu of fractional shares)
upon conversion of any preferred stock of the Company as may be outstanding
from time to time, in each case in accordance with the terms of such stock and
(b) the foregoing will not apply to any stock dividends paid by the Company.
Prior to the termination of any such Extended Interest Payment Period, the
Company may pay all or any portion of the interest accrued on the Debentures
on any Interest Payment Date to holders of record on the regular record date
for such Interest Payment Date or from time to time further extend such
Extended Interest Payment Period, provided that such Period together with all
such further extensions thereof shall not exceed 60 consecutive monthly
interest periods. At the termination of any such Extended Interest Payment
Period and upon the payment of all accrued and unpaid interest then due,
together with Compounded Interest, the Company may select a new Extended
Interest Payment Period, subject to the foregoing requirements. No interest
on this Debenture shall be due and payable during an Extended Interest Payment
Period, except at the end thereof. At the end of the Extended Interest
Payment Period the Company shall pay all interest accrued and unpaid on the
Series ____% Debentures including any Compounded Interest which shall be
payable to the holders of the Series ____% Debentures in whose names the
Series ____% Debentures are registered in the Debenture register on the first
record date after the end of the Extended Interest Payment Period.
As provided in the Indenture and subject to certain limitations
therein set forth, this Debenture is transferable by the registered holder
hereof on the Debenture register of the Company, upon surrender of this
Debenture for registration of transfer at the office or agency of the Company
in the Borough of Manhattan, The City and State of New York accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Company or the Trustee duly executed by the registered holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Debentures
of authorized denominations and for the same aggregate principal amount and
series will be issued to the designated transferee or transferees. No service
charge will be made for any such transfer, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge payable in
relation thereto.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any paying agent and any Debenture
Registrar may deem and treat the registered holder hereof as the absolute
owner hereof (whether or not this Debenture shall be overdue and
notwithstanding any notice of ownership or writing hereon made by anyone other
than the Debenture Registrar) for the purpose of receiving payment of or on
account of the principal hereof and premium, if any, and interest due hereon
and for all other purposes, and neither the Company nor the Trustee nor any
paying agent nor any Debenture Registrar shall be affected by any notice to
the contrary.
No recourse shall be had for the payment of the principal of or
the interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether
by virtue of any constitution, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issuance hereof,
expressly waived and released.
[If certificated Debentures -- The Debentures of this series
are issuable only in registered form without coupons in denominations of $25
and any integral multiple thereto.] [If Global Debenture -- This Global
Debenture is exchangeable for Debentures in definitive form under certain
limited circumstances set forth in the Indenture. Debentures of this series
so issued are issuable only in registered form without coupons in
denominations of $25 or any integral multiple thereof.] As provided in the
Indenture and subject to certain limitations [If Global Debenture -- herein
and] therein set forth, Debentures of this series [If Global Debenture -- so
issued] are exchangeable for a like aggregate principal amount of Debentures
of this series of a different authorized denomination, as requested by the
Holder surrendering the same.
All terms used in this Debenture which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
ARTICLE SIX
Original Issue of Series ____% Debentures
SECTION 6.01. Except as provided in Section 1.01 and this
Section 6.01, Series ____% Debentures in the aggregate principal amount equal
to $____________ may, upon execution of this [ ] Supplemental Indenture, be
executed by the Company and delivered to the Trustee for authentication, and
the trustee shall thereupon authenticate and make available for delivery said
Debentures to or upon the written order of the Company, signed by its Chairman,
its President, or any Vice President and its Treasurer or an Assistant
Treasurer, without any further action by the Company. Upon exercise of the
overallotment option set forth in the Underwriting Agreement, additional
Series ____% Debentures in the aggregate principal amount of up to
$______________ may be executed by the Company and delivered to the Trustee
for authentication, and the Trustee shall thereupon authenticate and make
available for delivery said Series ____% Debentures executed as aforesaid by
the Company, to or upon the written order of the Company, which order shall be
accompanied by evidence satisfactory to the Trustee that the overallotment
option has been exercised.
ARTICLE SEVEN
Miscellaneous Provisions
SECTION 7.01. Except as otherwise expressly provided in this [
] Supplemental Indenture or in the form of Series ____% Debenture or
otherwise clearly required by the context hereof or thereof, all terms used
herein or in said form of Series ____% Debenture that are defined in the
Indenture shall have the several meanings respectively assigned to them
thereby.
SECTION 7.02. The Indenture, as supplemented by this [ ]
Supplemental Indenture, is in all respects ratified and confirmed. This [ ]
Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided.
SECTION 7.03. The recitals herein contained are made by the
Company and not by the Trustee, and the Trustee assumes no responsibility for
the correctness thereof. The Trustee makes no representation as to the
validity or sufficiency of this [ ] Supplemental Indenture.
SECTION 7.04. This [ ] Supplemental Indenture may be
executed in any number of counterparts each of which shall be an original; but
such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this [ ]
Supplemental Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, on the date or dates indicated in
the acknowledgments and as of the day and year first above written.
THE AES CORPORATION
By:______________________________
Name:
Title:
Attest:
______________________________
Name:
Title:
The First National Bank of Chicago
as Trustee
By:______________________________
Name:
Title:
Attest:
______________________________
Name:
Title:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK ) __________, 199__
On the ______ day of ________, in the year one thousand nine
hundred ninety-______, before me personally came __________________ to me
known, who, being by me duly sworn, did depose and say that he resides at
________________________________; that he is ________________ of THE AES
CORPORATION, one of the corporations described in and which executed the above
instrument; that he knows the corporate seal of said corporation; that the
seal affixed to the said instrument is such corporation seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
______________________________
NOTARY PUBLIC
My Commission Expires
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK ) ____________, 199__
On the ______ day of __________, in the year one thousand nine
hundred ninety-______ before me personally came ______________________ to me
known, who, being by me duly sworn, did depose and say that he resides at
________________________ that he is a ____________ of The First National Bank
of Chicago , one of the corporations described in and which executed the above
instrument; that he knows the corporate seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it was so affixed
by authority of the Board of Directors of said corporation and that he signed
his name thereto by like authority.
___________________________
NOTARY PUBLIC
My Commission Expires
