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EXHIBIT 4.1
________________________________________________________________________________
AES CHINA GENERATING CO. LTD.
AND
BANKERS TRUST COMPANY,
AS TRUSTEE
________________________________________________________________________________
INDENTURE
DATED AS OF DECEMBER __, 1996
________________________________________________________________________________
$180,000,000
__% NOTES DUE 2006
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TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Other Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 1.03. Incorporation by Reference of Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 1.04. Rules of Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE 2
THE NOTES
SECTION 2.01. Form and Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 2.02. Execution and Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 2.03. Registrar and Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 2.04. Paying Agent to Hold Money in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 2.05. Noteholder Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 2.06. Transfer and Exchange; Definitive Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 2.07. Replacement Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 2.08. Outstanding Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 2.09. Determination of Holders' Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 2.10. Temporary Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 2.11. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 2.12. Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE 3
COVENANTS
SECTION 3.01. Payment of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 3.02. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 3.03. Limitation on Restricted Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 3.04. Limitation on Incurrence of Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 3.05. Limitation on Payment Restrictions Affecting Project Companies . . . . . . . . . . . . . . . . . 36
SECTION 3.06. Payment of Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 3.07. Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 3.08. Change of Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 3.09. Compliance Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 3.10. Commission Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 3.11. Limitation on Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
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SECTION 3.12. Limitation on Sales of Assets and Refinancings . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 3.13. Maintenance of Certain Cash Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 3.14. Payment of Stamp Duty and Other Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 3.15. Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 3.16. Notice of Defaults and Other Events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 3.17. Maintenance of Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 3.18. Limitation on Issuance of Subsidiary Capital Stock . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 3.19. Limitation on Changes in the Nature of the Business . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 3.20. Limitation on Certain Subsidiary Investments . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 3.21. Government Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 3.22. Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 3.23. Operations and Maintenance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE 4
CONSOLIDATION AND MERGER
SECTION 4.01. Merger and Consolidation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 4.02. Successor Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE 5
DEFAULTS AND REMEDIES
SECTION 5.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 5.02. Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 5.03. Other Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 5.04. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 5.05. Control by Majority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 5.06. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 5.07. Rights of Holders to Receive Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 5.08. Collection Suit by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 5.09. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 5.10. Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 5.11. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 5.12. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
ARTICLE 6
TRUSTEE
SECTION 6.01. Duties of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 6.02. Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
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SECTION 6.03. Individual Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 6.04. Trustees Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 6.05. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 6.06. Reports by Trustee to Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 6.07. Compensation and Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 6.08. Replacement of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 6.09. Successor Trustee by Merger, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 6.10. Eligibility; Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 6.11. Preferential Collections of Claims Against Company . . . . . . . . . . . . . . . . . . . . . . . 66
ARTICLE 7
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 7.01. Discharge of Liability on Notes; Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 7.02. Defeasance and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 7.03. Defeasance of Certain Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 7.04. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 7.05. Repayment to Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 7.06. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
ARTICLE 8
AMENDMENTS AND SUPPLEMENTS
SECTION 8.01. Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 8.02. With Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 8.03. Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 8.04. Revocation and Effect of Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 8.05. Notation on or Exchange of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 8.06. Trustee to Sign Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 8.07. Fixing of Record Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
ARTICLE 9
SECURITY AGREEMENT
SECTION 9.01. Security Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 9.02. Holders' Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 9.03. Trust Indenture Act of 1939 Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 9.04. Release upon Termination of the Company's Obligations . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 9.05. Retirement of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
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ARTICLE 10
REDEMPTION
SECTION 10.01. Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 10.02. Selection of Notes to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 10.03. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 10.04. Effect of Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 10.05. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 10.06. Notes Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 10.07. Optional Redemption for Changes in Withholding Taxes . . . . . . . . . . . . . . . . . . . . . . 80
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act Controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 11.02. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 11.03. Communication by Holders with Other Holders . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 11.04. Certificate and Opinion as to Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 11.05. Statements Required in Certificate or Opinion . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 11.06. Rules by Trustee and Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 11.07. Successors; No Recourse Against Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 11.08. Duplicate Originals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 11.09. Other Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 11.10. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 11.11. Consent to Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 11.12. Judgment Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 11.13. Effect of Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
SECTION 11.14. Waiver of Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
SECTION 11.15. Tax Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
EXHIBIT A-FORM OF NOTE
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INDENTURE dated as of December __, 1996, between AES China Generating Co.
Ltd., a corporation established under the laws of Bermuda (the "Company") and
Bankers Trust Company, a New York banking corporation, as trustee (the
"Trustee").
Each party agrees as follows for the benefit of the other parties and for
the equal and ratable benefit of the holders of the Company's [__]% Notes Due
2006:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Acquired Indebtedness" means Indebtedness of a Person existing at the time
at which such Person became a Subsidiary and not incurred in connection with,
or in contemplation of, such Person becoming a Subsidiary. Acquired
Indebtedness shall be deemed to be Incurred on the date the acquired Person
becomes a Project Company.
"Additional Amounts" has the meaning set forth in Section 3.06 hereof. Any
reference in this Indenture to principal or interest in respect of the Notes
shall be deemed also to refer to any Additional Amounts that may be payable as
set forth herein and under the Notes.
"Additional Assets" means (i) any property or assets related to the Line of
Business which will be owned and used by the Company or a Project Company, (ii)
the Capital Stock of a Person that becomes a Project Company as a result of the
acquisition of such Capital Stock by the Company or another Project Company, or
(iii) Capital Stock in any Person that at the time of acquisition of such
Capital Stock is a Project Company.
"Adjusted Cash Flow" means, for any period, the excess of (A) the aggregate
amount (without duplication ) of (i) dividends, distributions, payments of
interest and scheduled repayments of loans or advances, in each case, that are
received by the Company and its Wholly Owned Subsidiaries from the Project
Companies during such period, (ii) 50% of the dividends, distributions,
payments of interest and scheduled repayments of loans or advances, in each
case, that are received by the Company and its Wholly Owned Subsidiaries from
any Person other than a Project Company during such period, (iii) all payments
received by the Company and its Wholly Owned Subsidiaries during such period
from any Person with respect to agreements to provide development, construction
or operations management and the provision of consulting or advisory services;
(iv) 50% of the combined interest income of the Company and its Wholly Owned
Subsidiaries for such period from cash, cash equivalents and investments in
marketable securities; (v) the interest income (net of interest expense) of the
Company
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and its Wholly Owned Subsidiaries from the transactions referred to in clause
(viii) of the definition of Permitted Investments over (B) the aggregate amount
(without duplication) of (i) the combined selling, general and administrative
expenses of the Company and its Wholly Owned Subsidiaries for such period
determined in accordance with GAAP and (ii) the Company Designated Costs for
such period and (iii) the total income taxes paid by the Company and its Wholly
Owned Subsidiaries during such period.
"Adjusted Interest Expense" means, for any period, the sum of (without
duplication) (a) the combined interest expense of the Company and its Wholly
Owned Subsidiaries for such period as determined in accordance with GAAP,
including, without limitation or duplication, (i) amortization of debt issuance
costs or of original issue discount on any Indebtedness and the interest
portion of any deferred payment obligation, calculated in accordance with the
effective interest method of accounting, (ii) accrued interest, (iii) noncash
interest payments, (iv) commissions, discounts and other fees and charges owed
with respect to letters of credit and bankers' acceptance financing, (v)
interest actually paid by the Company or any Wholly Owned Subsidiary under any
guarantee of Indebtedness or other obligation of any other Person and (vi) net
costs associated with Interest Rate Agreements (including amortization of
discounts) and Currency Agreements of the Company or any Wholly Owned
Subsidiary relating to Indebtedness, plus (b) all but the principal component
of rentals in respect of Capitalized Lease Obligations paid, accrued, or
scheduled to be paid or accrued by the Company or any Wholly Owned Subsidiary,
plus (c) capitalized interest, plus (d) dividends paid in respect of Preferred
Stock of the Company or any Wholly Owned Subsidiary held by Persons other than
the Company or any Wholly Owned Subsidiary, plus (e) cash contributions to any
employee stock ownership plan to the extent such contributions are used by such
employee stock ownership plan to pay interest or fees to any person (other than
the Company) in connection with loans Incurred by such employee stock ownership
plan to purchase Capital Stock of the Company, plus (f) the interest expense of
any Project Company to the extent attributable to any Indebtedness of such
Project Company to the extent guaranteed by the Company or any Wholly Owned
Subsidiary, minus (g) interest expense of the Company or any Wholly Owned
Subsidiary attributable to Indebtedness referred to in clause (viii) of the
definition of "Permitted Investments."
"AES" means The AES Corporation, a Delaware corporation, its successors,
and any Subsidiary thereof.
"Affiliate" of any specified Person means any other Person, directly or
indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the
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foregoing. For purposes of Section 3.11 only, "Affiliate" shall also mean any
beneficial owner of 5% or more of the total Voting Shares (on a fully Diluted
Basis) of the Company or of rights or warrants to purchase such stock (whether
or not currently exercisable) and any Person who would be an Affiliate of any
such beneficial owner pursuant to the first sentence hereof.
"Agent" means any Registrar, Paying Agent, authenticating agent,
co-registrar or additional paying agent.
"Asset Sale" means any sale, transfer or other disposition (including by
way of merger, consolidation or sale leaseback transactions, but excluding
(except as provided for in the provisions described in the last paragraph of
Section 3.12(b)) those permitted by Article 4 hereof and those permitted by
Section 3.03 hereof) in one or a series of transactions by the Company or any
Project Company to any Person other than the Company or any Wholly Owned
Subsidiary, of (i) all or any of the Capital Stock of the Project Company, (ii)
all or substantially all of the assets of any operating unit, Facility or
division of the Company or any Project Company or (iii) any other property or
assets or rights to acquire property or assets of the Company or any Project
Company outside of the ordinary course of business of the Company or such
Project Company.
"Attributable Costs" means, for any period, the Company Designated Costs
for such period to the extent that such amount does not exceed an amount
calculated for such period at a rate equal to $10 million per annum (which
shall increase by 5% for each fiscal year beginning on or after December 1,
1997).
"Authorized Officers" means with respect to the Company, the President, the
Chief Financial Officer and any vice president.
"Average Life" means, as of the date of determination, with respect to any
Indebtedness or Preferred Stock, the quotient obtained by dividing (i) the sum
of the products of (A) the numbers of years from the date of determination to
the dates of each successive scheduled principal payment of such Indebtedness
or scheduled redemption or similar payment with respect to such Indebtedness or
Preferred Stock multiplied by (B) the amount of such payment by (ii) the sum of
all such payments.
"Bankruptcy Custodian" means any receiver, trustee, assignee, liquidator,
custodian or similar official under any Bankruptcy Law.
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any similar federal
or state law or laws of Bermuda for the relief of debtors or the
administration, reorganization or liquidation of debtors' estates for the
benefit of their creditors.
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"Bermuda" means the British colony of Bermuda.
"Board of Directors" means the Board of Directors of the Company or any
authorized committee thereof.
"Board Resolution" means a copy of a resolution certified by a director of
the Company to have been duly adopted by the Board of Directors to be in full
force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in The City of New York are authorized by law to close
or are otherwise not open for business. If any payment date hereunder or under
the Notes is not a Business Day, payment may be made at that place on the next
succeeding day that is a Business Day, and no interest shall accrue for the
intervening period. If a regular record date hereunder or under the Notes is
not a Business Day, the regular record date shall not be affected.
"Capital Stock" means any and all shares, interests (including joint
venture interests), participations or other equivalents (however designated) of
capital stock of a corporation or any and all equivalent ownership interests in
a Person (other than a corporation).
"Capitalized Lease" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) of which the discounted present
value of the rental obligations of such Person as lessee, in conformity with
GAAP, is required to be capitalized on the balance sheet of such Person; the
Stated Maturity thereof shall be the date of the last payment of rent or any
other amount due under such lease prior to the first date upon which such lease
may be terminated by the lessee without payment of a penalty; and "Capitalized
Lease Obligations" means the rental obligations, as aforesaid, under such
lease.
"Change of Control" means the occurrence of any of the following events:
(i) any "person" (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act), other than AES or an underwriter engaged in a firm commitment
underwriting on behalf of the Company, is or becomes the beneficial owner (as
such term is used in Rules 13d-3 and 13d-5 under the Exchange Act, except that
for purposes of this clause (i) a person shall be deemed to have beneficial
ownership of all shares that such person has the right to acquire, whether such
right is exercisable immediately or only after the passage of time), directly
or indirectly, of more than 35% of the total outstanding shares of Class A
Common Stock; (ii) AES is no longer entitled to elect at least one half of the
members of the Board of Directors; (iii) AES ceases to be the beneficial owner
(as such term is used in Rules 13d-3 and 13d-5 under the Exchange Act) of at
least 6,000,000 Voting Shares of
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the Company (as adjusted from time to time for any stock dividends, splits or
recombinations after the Issue Date); or (iv) during any period of two
consecutive years, individuals who at the beginning of such period constituted
the Board of Directors (together with any new directors whose election by the
Board of Directors or whose nomination for election by the stockholders was
approved by a vote of 66-2/3% of the directors of the Company then still in
office who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease for any
reason to constitute a majority of the Board of Directors then in office.
"Change of Control Triggering Event" means either (x) the occurrence of
both an event specified in clause (i) or (iv) of the definition of Change of
Control and a Rating Decline or (y) the occurrence of an event specified in
clause (ii) or (iii) of the definition of Change of Control.
"Class A Common Stock" means the Class A Common Stock, par value $0.01 per
share, of the Company.
"Class B Common Stock" means the Class B Common Stock, par value $0.01 per
share, of the Company.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" has the meaning set forth in the Security Agreement.
"Collateral Account" has the meaning set forth in the Security Agreement.
"Collateral Agent" means Bankers Trust Company as collateral agent, and any
successor thereof, under the Security Agreement.
"Commission" means the Securities and Exchange Commission.
"Company" means AES China Generating Co. Ltd., a Bermuda corporation, until
a successor replaces it pursuant to the terms and conditions of this Indenture
and thereafter means the successor.
"Company Designated Costs" means the total costs of development,
construction or operations management and the provision of consulting or
advisory services incurred by the Company and its Wholly Owned Subsidiaries
(net of any amounts received in reimbursement of such costs to the extent not
in excess of such costs).
"Consolidated Current Liabilities," as of the date of determination, means
the aggregate amount of liabilities of the Company and its Consolidated
Restricted
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Subsidiaries which may properly be classified as current liabilities (including
taxes accrued as estimated), after eliminating (i) all inter-company items
between the Company and any Consolidated Subsidiary and (ii) deducting all
current maturities of long-term Indebtedness, all as determined in accordance
with GAAP.
"Consolidated Net Income (Loss)" means, for any period, as applied to the
Company, the consolidated net income (loss) of the Company and its Consolidated
Restricted Subsidiaries for such period, determined in accordance with GAAP,
adjusted by excluding (without duplication), to the extent included in such net
income (loss), the following: (i) all extraordinary gains or losses; (ii) any
net income of any Person (other than the Company and its Consolidated
Restricted Subsidiaries), except that (A) the Company's equity in the net
income of any such Person for such period shall be included in Consolidated Net
Income (Loss) up to the aggregate amount of cash actually distributed by such
Person during such period to the Company or a Restricted Subsidiary as a
dividend or other distribution and (B) the equity of the Company or a
Restricted Subsidiary in a net loss of any such Person for such period shall be
included in determining Consolidated Net Income (Loss); (iii) the net income of
any Restricted Subsidiary to the extent that the declaration or payment of
dividends or similar distributions by such Restricted Subsidiary of such income
is not at the time thereof permitted, directly or indirectly, by operation of
the terms of its charter or bye-laws or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to such
Restricted Subsidiary or its stockholders; (iv) any net income (or loss) of any
Person combined with the Company or any of its Restricted Subsidiaries on a
"pooling of interests" basis attributable to any period prior to the date of
such combination; and (v) any gain (but not loss) realized upon the sale or
other disposition of any property, plant or equipment of the Company or its
Restricted Subsidiaries (including pursuant to any sale-and-leaseback
arrangement) which is not sold or otherwise disposed of in the ordinary course
of business and any gain (but not loss) realized upon the sale or other
disposition by the Company or any Restricted Subsidiary of any Capital Stock of
any Person, provided that losses shall be included on an after-tax basis; and
further adjusted by subtracting from such net income the tax liability of any
parent of the Company to the extent of payments made to such parent by the
Company pursuant to any tax sharing agreement or other arrangement for such
period.
"Consolidated Net Tangible Assets" means, as of any date of determination,
as applied to the Company, the total amount of assets (less accumulated
depreciation or amortization, allowances for doubtful receivables, other
applicable reserves and other properly deductible items) as set forth on the
most recently available quarterly or annual consolidated balance sheet of the
Company and its Consolidated Restricted Subsidiaries, determined in accordance
with GAAP, and after giving effect to purchase accounting and after deducting
therefrom, to the extent otherwise included, the amounts of: (i) Consolidated
Current Liabilities; (ii) minority interests in Consolidated Subsidiaries held
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by Persons other than the Company or a Restricted Subsidiary; (iii) excess of
cost over fair value of assets of businesses acquired, as determined in good
faith by the Board of Directors as evidenced by a Board Resolution; (iv) any
revaluation or other write-up in value of assets subsequent to December 31,
1995 as a result of a change in the method of valuation in accordance with
GAAP; (v) unamortized debt discount and expenses and other unamortized deferred
charges, goodwill, patents, trademarks, service marks, trade names, copyrights,
licenses, organization or developmental expenses and other intangible items;
(vi) treasury stock; (vii) any cash set apart and held in a sinking or other
analogous fund established for the purpose of redemption or other retirement of
Capital Stock to the extent such obligation is not reflected in Consolidated
Current Liabilities; and (viii) any Indebtedness of the Company or a Restricted
Subsidiary referred to in clause (viii) of the definition of Permitted
Investments.
"Consolidated Net Worth" means, at any date of determination, as applied to
the Company, stockholders' equity as set forth on the most recently available
quarterly or annual consolidated balance sheet of the Company and its
Consolidated Restricted Subsidiaries, less any amounts attributable to
Redeemable Stock or Exchangeable Stock, the cost of treasury stock and the
principal amount of any promissory notes receivable from the sale of Capital
Stock of the Company or any Subsidiary.
"Consolidation" means, with respect to any Person, the consolidation of
accounts of such Person and each of its subsidiaries if and to the extent the
accounts of such Person and such subsidiaries are consolidated in accordance
with GAAP. The term "Consolidated" shall have a correlative meaning.
"Currency Agreement" means any foreign exchange contract, currency swap
agreement or other similar agreement or arrangement designed to protect the
Company or any Project Company against fluctuations in currency values to or
under which the Company or any Project Company is a party on the Issue Date or
becomes a party thereafter.
"Debt Service Reserve Account" has the meaning set forth in the Security
Agreement.
"Default" means any event which is, or, after notice or passage of time or
both, would be, an Event of Default.
"Defaulted interest" means any interest on any Note which is payable, but
is not punctually paid or duly provided for on any Interest Payment Date.
"Depositary" means The Depository Trust Company, its nominees, and their
respective successors until a successor Depositary shall have become such
pursuant to the
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applicable provisions of this Indenture and thereafter "Depositary" shall mean
or include each Person who is then a Depositary hereunder.
"Designated Financing" means any Incurrence of Indebtedness by an Existing
Subsidiary or Existing Joint Venture that refinances Shareholder Loans in whole
or in part.
"Dollar Permitted Investments" means investments which are denominated and
payable in US dollars in any one or more of the following: (i)(a) direct,
interest-bearing obligations of the United States in certificated form; (b)
direct, interest-bearing obligations of, and guaranteed as to timely payment of
principal and interest by, the United States, but only if such obligations are
issued in the form of any entry made on the records of the Federal Reserve Bank
of New York; and (c) direct interest bearing obligations of, and interest
bearing obligations guaranteed as to timely payment of principal and interest
by, the Federal National Mortgage Association, the Government National Mortgage
Association, the Federal Home Loan Mortgage Corporation or the Student Loan
Marketing Association, but only if (A) at the time of investment, such
obligations are assigned the highest credit rating by the Rating Agency and (B)
such obligations have been deposited with The Depository Trust Company and its
successors, or are issued in the form of an entry made on the records of the
Federal Reserve Bank of New York; (ii) certificates of deposit with an original
term to maturity (x) of not more than 180 days or (y) with respect to the
amounts representing the interest payment amounts due on [__________], 1997 or
[_____________], 1997, not exceeding the second Business Day prior to such
date, issued by any U.S. depositary institution or trust company whose
principal offices are located in the Borough of Manhattan, City and State of
New York, New York (including the Trustee acting in its individual capacity);
provided that the short-term unsecured debt obligations of such depositary
institution or trust company at the time of such investment are assigned a
rating of "A-1" by S&P and "P1" by Moody's or the long-term unsecured debt
obligations of such depositary institution or trust company at the time of such
investment, are assigned a rating of "A-" or higher by S&P and "A3" or higher
by Moody's; (iii) repurchase obligations pursuant to a written agreement (a)
with respect to any obligation described in clause (i) above, where (in each
case) the Trustee has taken delivery of such obligation and (b) by a U.S.
depositary institution or trust company whose principal offices are located in
the Borough of Manhattan, City and State of New York, New York the short-term
unsecured debt obligations of which are rated "A-1" by S&P and "P-1" by Moody's
at the time of such investment or the long-term unsecured debt obligations of
which are rated "A-" or higher by S&P and "A3" or higher by Moody's (including,
if applicable, the Trustee acting in its individual capacity) at time of such
investment; or (iv) commercial paper that (a) is assigned a rating of "A-1" by
S&P and "P-1" by Moody's at the time of such investment and (b) had an original
term to maturity of not more than 180 days.
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"Dollars," "$" and "US dollars" mean United States dollars.
"Eligible Joint Venture" means a Joint Venture (other than a Subsidiary)
(i) that is formed with respect to the construction, development, acquisition,
servicing, ownership, improvement, operation or management of a single
Facility; (ii) in which the Company, directly or indirectly, owns at least 25%
of the Capital Stock therein and (iii) in respect of which the Company,
directly or indirectly, either (a) controls, by voting power, membership on the
board of directors or management committee or other similar governing body, or
through the provisions of any applicable partnership, joint venture,
shareholder or other similar agreement or under an operating, maintenance or
management agreement or otherwise, the management and operation of the Joint
Venture and any Facility of such Joint Venture or (b) otherwise has the right
to control or veto material acts and decisions with respect to the management
or operation of the Joint Venture that, taken as a whole, are substantially
similar to the rights of the Company with respect to the Existing Joint
Ventures as of the Issue Date.
"Equity Interests" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Exchangeable Stock" means any Capital Stock which by its terms is
exchangeable or convertible at the option of any Person other than the Company
into another security (other than Capital Stock of the Company which is neither
Exchangeable Stock nor Redeemable Stock).
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Existing Joint Venture" means any of Chengdu-AES-Kaihua Gas Turbine Power
Co. Ltd., Wuhu Shaoda Electric Power Company Ltd. and Yangchun Fuyang Diesel
Engine Power Co. Ltd., and their respective successors, in each case, so long
as such Person is a Project Company.
"Existing Project Company Net Cash Flow" means, for any period, (A) the
aggregate amount (without duplication) of dividends, distributions, payments of
interest and scheduled repayments of loans or advances (excluding any of such
amounts that constitute Special Proceeds), in each case, that are received by
the Company and its Wholly Owned Subsidiaries from Existing Joint Ventures and
Existing Subsidiaries during such period less (B) the sum of (i) Attributable
Costs for such period, (ii) the aggregate interest expense accrued with respect
to the Notes after July [__], 1998 and (iii) the aggregate principal amount of
Notes purchased from time to time by the Company (other than pursuant to an
Offer or a Change of Control Offer).
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"Existing Subsidiary" means any of Sichuan Fuling Aixi Power Company Ltd.,
Hunan Xiangci-AES Hydro Power Company Ltd., Anhui Liyuan AES Power Company
Limited, the Hefei Zhongli Energy Company Ltd., Jiaozuo Xxx Xxxx Power Ltd.,
Wuxi- AES-CAREC Gas Turbine Power Company Ltd. and Wuxi-AES-Zhonghang Power
Company Ltd., and their respective successors, in each case, so long as such
Person is a Project Company.
Facility" means a power or steam generation facility or energy producing
facility and related assets (including without limitation electric power
transmission facilities or lines).
"Fixed Charge Coverage Ratio" as of any date of determination means the
ratio of (i) Adjusted Cash Flow for the period of the most recent four
consecutive fiscal quarters for which financial information is available to
(ii) the Adjusted Interest Expense for such period plus the Adjusted Interest
Expense for such period with respect to any Indebtedness proposed to be
Incurred by the Company and its Wholly Owned Subsidiaries; provided, however,
that, in making such computation, the Adjusted Interest Expense attributable to
interest on any Indebtedness bearing a floating interest rate shall be computed
on a pro forma basis as if the rate in effect on the date of computation had
been the applicable rate for the entire period; and provided further, that in
the event (A) of the designation of any Restricted Subsidiary or Restricted
Joint Venture to be an Unrestricted Company during or after such period, or (B)
the Company or any Wholly Owned Subsidiary has made any Asset Sales, Designated
Financings or acquisitions of assets not in the ordinary course of business
(including acquisitions of other Persons by merger, consolidation or purchase
of Capital Stock), or has Incurred or repaid any Indebtedness (or any guarantee
thereof has terminated), during or after such period, or any Project Company
has been designated to be an Unrestricted Company (or redesignated as a Project
Company) during or after such period, such computation shall be made on a pro
forma basis as if such event had taken place on the first day of such period;
and provided further that the Adjusted Cash Flow with respect to any
acquisitions shall not exceed the net income attributable to the acquired
assets for such period.
"Fully Diluted Basis" means after giving effect to the exercise of any
outstanding options, warrants or rights to purchase Voting Shares and the
conversion or exchange of any securities convertible into or exchangeable for
Voting Shares.
"GAAP" means generally accepted accounting principles in the United States
of America as in effect and, to the extent optional, adopted by the Company on
the Issue Date, consistently applied, 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.
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"guarantee" means, as applied to any obligation, contingent or otherwise,
of any Person, (i) a guarantee, direct or indirect, in any manner, of any part
or all of such obligation, (other than by endorsement of negotiable instruments
for collection in the ordinary course of business) and (ii) an agreement,
direct or indirect, contingent or otherwise, the practical effect of which is
to ensure in any way the payment or performance (or payment of damages in the
event of nonperformance) of any part or all of such obligation, including the
payment of amounts drawn down under letters of credit.
"Holder" or "Noteholder" means the Person in whose name a Note is
registered on the Registrar's books.
"Incur" means, as applied to any obligation, to create, incur, issue,
assume, guarantee or in any other manner become liable with respect to,
contingently or otherwise, such obligation, and "Incurred," "Incurrence," and
"Incurring" shall each have a correlative meaning; provided, however, that any
Indebtedness or Capital Stock of a Person existing at the time such Person
becomes (after the Issue Date) a Project Company (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be Incurred by such
Project Company at the time it becomes a Project Company, and provided,
further, that any amendment, modification or waiver of any provision of any
document pursuant to which Indebtedness was previously Incurred shall not be
deemed to be an Incurrence of Indebtedness as long as (i) such amendment,
modification or waiver does not (A) increase the principal or premium thereof
or interest rate thereon, (B) change to an earlier date the Stated Maturity
thereof or the date of any scheduled or required principal payment thereon or
the time or circumstances under which such Indebtedness may or shall be
redeemed, (C) if such Indebtedness is contractually subordinated in right of
payment to the Notes, modify or affect, in any manner adverse to the Holders,
such subordination, (D) if the Company is the obligor thereon, provide that a
Project Company shall be an obligor, (E) if such Indebtedness is Non-Recourse
Debt, cause such Indebtedness to no longer constitute Non-Recourse Debt or (F)
violate, or cause the Indebtedness to violate, the provisions of Sections 3.05
or 3.07 and (ii) such Indebtedness would, after giving effect to such
amendment, modification or waiver as if it were an Incurrence, comply with
clause (i) of the first proviso to the definition of "Refinancing
Indebtedness."
"Indebtedness" of any Person means, without duplication, (i) the principal
of and premium (if any such premium is then due and owing) in respect of (A)
indebtedness of such Person for money borrowed and (B) indebtedness evidenced
by notes, debentures, bonds or other similar instruments for the payment of
which such Person is responsible or liable; (ii) all Capitalized Lease
Obligations of such Person; (iii) all obligations of such Person Incurred as
the deferred purchase price of property, all conditional sale obligations of
such Person and all obligations of such Person under any title retention
agreement; (iv) all obligations of such Person for the reimbursement of any
obligor on any letter of credit,
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banker's acceptance or similar credit transaction (other than obligations with
respect to letters of credit securing obligations (other than obligations
described in (i) through (iii) above) entered into in the ordinary course of
business of such Person to the extent such letters of credit are not drawn upon
or, if and to the extent drawn upon, such drawing is reimbursed no later than
the tenth Business Day following receipt by such Person of a demand for
reimbursement following payment on the letter of credit); (v) Redeemable Stock
of such Person and, in the case of any Subsidiary, any other Preferred Stock
not owned by the Company or a Wholly Owned Subsidiary, in either case valued
at, in the case of Redeemable Stock, the greater of its voluntary or
involuntary maximum fixed repurchase price exclusive of accrued and unpaid
dividends or, in the case of Preferred Stock that is not Redeemable Stock, its
liquidation preference exclusive of accrued and unpaid dividends; (vi) all
obligations of such Person in respect of Interest Rate Agreements and Currency
Agreements; (vii) all obligations of the type referred to in clauses (i)
through (vi) of other Persons and all dividends of other Persons for the
payment of which, in either case, such Person is responsible or liable,
directly or indirectly, as obligor, guarantor or otherwise, including by means
of any guarantee; and (viii) all obligations of the type referred to in clauses
(i) through (vii) of other Persons secured by any Lien on any property or asset
of such Person (whether or not such obligation is assumed by such Person), the
amount of such obligation being deemed to be the lesser of the value of such
property or assets or the amount of the obligation so secured; provided,
however, that Indebtedness shall not include trade accounts payable arising in
the ordinary course of business. For purposes hereof, the "maximum fixed
repurchase price" of any Redeemable Stock which does not have a fixed
repurchase price shall be calculated in accordance with the terms of such
Redeemable Stock as if such Redeemable Stock were purchased on any date on
which Indebtedness shall be required to be determined pursuant to this
Indenture, and if such price is based upon, or measured by, the fair market
value of such Redeemable Stock, such fair market value to be determined in good
faith by the Board of Directors as evidenced by a Board Resolution. The amount
of Indebtedness of any Person at any date shall be, with respect to
unconditional obligations, the outstanding balance at such date of all such
obligations as described above and, with respect to any contingent obligations
at such date, the maximum liability determined by such Person's board of
directors, in good faith, as, in light of the facts and circumstances existing
at the time, reasonably likely to be Incurred upon the occurrence of the
contingency giving rise to such obligation; provided that the amount
outstanding at any time of any Indebtedness issued with original issue discount
is the face amount of such Indebtedness less the remaining unamortized portion
of the original issue discount of such Indebtedness as determined in accordance
with GAAP.
"Interest Payment Date" means the stated maturity of an installment of
interest on the Notes.
"Interest Rate Agreement" means any interest rate protection agreement,
interest
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rate future agreement, interest rate option agreement, interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement,
interest rate hedge agreement or other similar agreement or arrangement
designed to protect against fluctuations in interest rates to or under which
the Company or any Project Company is a party on the Issue Date or becomes a
party thereunder.
"Investment" means, with respect to any Person, any direct or indirect
advance, loan or other extension of credit or capital contribution to (by means
of any transfer of cash or other property to others or any payment for property
or services for the account or use of others), or any other investment in any
other Person, or any purchase or acquisition by such Person of any Capital
Stock, bonds, notes, debentures or other securities or assets issued or owned
by any other Person (whether by merger, consolidation, amalgamation, sale of
assets or otherwise). For purposes of the provisions set forth in Section
3.03, (i) "Investment" shall include the portion (proportionate to the
Company's Equity Interest in such Project Company) of the fair market value of
the net assets of any Project Company at the time such Project Company is
designated an Unrestricted Company and shall exclude the fair market value of
the net assets of any Unrestricted Company at the time that such Unrestricted
Company is designated a Project Company, as the case may be, and (ii) any
property transferred to or from an Unrestricted Company shall be valued at its
fair market value at the time of such transfer, in each case as determined by
the Board of Directors in good faith as evidenced by a Board Resolution.
"Issue Date" means the date on which the Notes are originally issued under
this Indenture.
"Joint Venture" means a joint venture, partnership or other similar
arrangement, whether corporation, partnership or other legal form.
"Lien" means any mortgage, lien, pledge, charge, or other security interest
or encumbrance of any kind (including any conditional sale or other title
retention agreement and any lease in the nature thereof).
"Line of Business" means the direct or indirect construction, development,
acquisition, servicing, ownership, improvement, operation and management of
Facilities and consulting or advisory activities related thereto.
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
"Net Available Cash" means, (A) with respect to any Designated Financing,
the aggregate amount of cash received by the Company or a Restricted Subsidiary
in repayment of Shareholder Loans in connection therewith; (B) with respect to
any Restricted Designation Event, an amount equal to the fair market value of
an Existing
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Subsidiary or Existing Joint Venture that is designated an Unrestricted
Company; and (C) with respect to any Asset Sale, the cash or cash equivalent
payments received by the Company or a Project Company in connection with such
Asset Sale (including any cash received by way of deferred payment of principal
pursuant to a note or installment receivable or otherwise, but only as or when
received and also including the proceeds of other property received when
converted to cash or cash equivalents) net of the sum of, without duplication,
(i) all reasonable legal, title and recording tax expenses, reasonable
commissions, and other reasonable fees and expenses incurred directly relating
to such Asset Sale, (ii) all local, state, federal and foreign taxes required
to be paid or accrued as a liability by the Company or any Project Company as a
consequence of such Asset Sale, (iii) payments made to repay Indebtedness which
is secured by any assets subject to such Asset Sale in accordance with the
terms of any Lien upon or other security agreement of any kind with respect to
such assets, or which must by its terms, or by applicable law, be repaid out of
the proceeds from such Asset Sale and (iv) all distributions required by any
contract entered into other than in contemplation of such Asset Sale to be paid
to any holder of an Equity Interest in such Project Company as a result of such
Asset Sale, so long as such distributions do not exceed such holder's pro rata
portion (based on such holder's proportionate Equity Interest) of the cash or
cash equivalent payments described above, net of the amounts set forth in
clauses (i)-(iii) above.
"Net Cash Proceeds" means, with respect to any issuance or sale of Capital
Stock by any Person, the cash proceeds to such Person of such issuance or sale
net of attorneys' fees, accountants' fees, underwriters' or placement agents'
fees, discounts or commissions and brokerage, consultancy and other fees
actually incurred by such Person in connection with such issuance or sale and
net of taxes paid or payable by such Person as a result thereof.
"Non-Convertible Capital Stock" means, with respect to any Person, any
Capital Stock of such Person which is not convertible into another security
other than non-convertible common stock of such Person; provided, however, that
Non- Convertible Capital Stock shall not include any Redeemable Stock or
Exchangeable Stock.
"Non-Recourse Debt" means Indebtedness of any Project Company (or of any
other Person that directly or indirectly owns the Capital Stock of such Project
Company as its sole assets) that is Incurred to acquire, develop, improve,
construct or to provide working capital for a Facility owned by such Project
Company, provided that such Indebtedness is without recourse to any assets of
the Company or any Project Company other than the assets or Capital Stock of
the Project Company Incurring such Indebtedness (or any other Person that,
directly or indirectly owns such Capital Stock as its sole assets) and the
income and proceeds therefrom. Indebtedness that does not comply with the
foregoing sentence because of a guarantee provided by the Company or another
Project Company will nevertheless qualify as Non-Recourse Debt so long as such
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guarantee complies with the restrictions set forth under Section 3.04.
"Notes" means all series of the [__]% Notes Due 2006 that are issued under
and pursuant to the terms of this Indenture, as amended or supplemented from
time to time.
"Offering" means the public offering and sale of the Notes.
"Officers' Certificate" means a certificate signed by two Authorized
Officers of the Company, one of whom must be the President or Chief Financial
Officer of the Company. Each Officers' Certificate (other than certificates
provided pursuant to TIA Section 314(a)(4)) shall include the statements
provided for in TIA Section 314(e).
"Operating Lease Obligations" means any obligation of the Company and its
Restricted Subsidiaries on a Consolidated basis incurred or assumed under or in
connection with any lease of real or personal property which, in accordance
with GAAP, is not required to be classified and accounted for as a capital
lease.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel, if so acceptable, may be an employee
of or counsel to the Company or the Trustee. Each such Opinion of Counsel
shall include the statements provided for in TIA Section 314(e).
"Permitted Investments" means (i) any Investment in any Restricted
Subsidiary (or any Person that would become a Restricted Subsidiary as a result
of such Investment) by the Company or any other Restricted Subsidiary or in the
Company by any Restricted Subsidiary; (ii) any Restricted Joint Venture
Investment; (iii) Investments in existence on the date of this Indenture and
Investments pursuant to letters of intent or legally binding commitments in
existence on the date of this Indenture; (iv) loans and advances made to
employees of the Company in the ordinary course of business consistent with
past practices; (v) loans and advances made by a Project Company to any Person
in connection with the provision of services by such Person to such Project
Company, the construction by such Person of fuel transportation facilities for
such Project Company or the construction by such Person of transmission
facilities or lines interconnecting such Project Company's Facility with an
electric power grid; (vi) any Investment in (a) obligations of the U.S.
government and its agencies or instrumentalities; (b) bank deposits and bank
obligations (including certificates of deposit, time deposits and bankers'
acceptances); (c) floating rate securities and other instruments issued by
governments or international development agencies; (d) commercial paper and
other short-term corporate debt obligations; (e) money market funds; and (f)
repurchase agreements with banks and broker-dealers with respect to securities
described in clauses (a) through (d) above; (vii) Dollar Permitted Investments;
and (viii) any loan made to or deposit made with any commercial banking
institution rated "A-" or higher by S&P and
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"A3" or higher by Moody's in connection with a substantially similar loan made
by an affiliate of such commercial banking institution to the Company or a
Wholly Owned Subsidiary.
"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any other entity.
"Preferred Stock," as applied to the Capital Stock of any corporation,
means Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"principal" of a Note means the principal of the Note plus, if applicable,
the premium on the Note.
"Project Companies" means the Restricted Subsidiaries and Restricted Joint
Ventures and "Project Company" means any of them.
"Rating Agencies" means (i) S&P and Moody's or (ii) if S&P or Moody's or
both shall not make a rating of the Notes publicly available, an
internationally recognized securities rating agency or agencies, as the case
may be, selected by the Company which shall be substituted for S&P or Moody's
or both, as the case may be.
"Rating Category" means (i) with respect to S&P, any of the following
categories: AAA, AA, A, BBB, BB, B, CCC, CC, C and D (or equivalent successor
categories, (ii) with respect to Moody's, any of the following categories: Aaa,
Aa, A, Baa, Ba, B, Caa, Ca, C and D (or equivalent successor categories) and
(iii) the equivalent of any such category used by another Rating Agency). In
determining whether the rating of the Notes has decreased by one or more
gradations, gradations within Rating Categories (+ and - for S&P; 1, 2 and 3
for Moody's) shall be taken into account (e.g., with respect to S&P, a decline
in a rating from BB+ to BB, as well as from BB- to B+, will constitute a
decrease of one gradation).
"Rating Decline" means the occurrence of (i) or (ii) below on, or within 90
days after, the earliest of (A) the Company having become aware that a Change
of Control has occurred, (B) the date of public notice of the occurrence of a
Change of Control or (C) the date of public notice of the intention by AES or
the Company to approve, recommend or enter into, any transaction which, if
consummated, would result in a Change of Control (which period shall be
extended so long as the rating of the Notes is under publicly announced
consideration or possible downgrade by either of the Rating Agencies), (i) a
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decrease of the rating of the Notes by either Rating Agency by one or more
rating gradations or (ii) the failure by the Company to advise the Rating
Agencies, in writing, of such occurrence or any subsequent material
developments or to use its best efforts to obtain, from at least one Rating
Agency, a written, publicly announced affirmation of its rating of the Notes,
stating that it is not downgrading and is not considering downgrading the
Notes.
"Redeemable Stock" means any class or series of Capital Stock of any Person
that (a) by its terms, by the terms of any security into which it is
convertible or exchangeable or otherwise is, or upon the happening of an event
or passage of time would be, required to be redeemed (in whole or in part) on
or prior to the first anniversary of the Stated Maturity of the Notes, (b) is
redeemable at the option of the holder thereof at any time on or prior to the
first anniversary of the Stated Maturity of the Notes (other than on a Change
of Control or Asset Sale, provided that such Change of Control or Asset Sale
shall not yet have occurred) or (c) is convertible into or exchangeable for
Capital Stock referred to in clause (a) or clause (b) above or debt securities
at any time prior to the first anniversary of the Stated Maturity of the Notes.
"Refinancing Indebtedness" means Indebtedness that refunds, refinances,
replaces, renews, repays or extends (including pursuant to any defeasance or
discharge mechanism) (collectively, "refinances," and "refinanced" shall have a
correlative meaning) any Indebtedness of the Company or a Project Company
existing on the Issue Date or Incurred in compliance with this Indenture
(including Indebtedness of the Company that refinances Indebtedness of any
Project Company and Indebtedness of any Project Company that refinances
Indebtedness of another Project Company) including Indebtedness that refinances
Refinancing Indebtedness; provided, however, that (i) if the Indebtedness being
refinanced is contractually subordinated in right of payment to the Notes, the
Refinancing Indebtedness shall be contractually subordinated in right of
payment to the Notes to at least the same extent as the Indebtedness being
refinanced, (ii) if the Indebtedness being refinanced is Non-Recourse Debt,
such Refinancing Indebtedness shall be Non-Recourse Debt, (iii) the Refinancing
Indebtedness is scheduled to mature either (a) no earlier than the Indebtedness
being refinanced or (b) after the Stated Maturity of the Notes, (iv) the
Refinancing Indebtedness has an Average Life at the time such Refinancing
Indebtedness is Incurred that is equal to or greater than the Average Life of
the Indebtedness being refinanced and (v) such Refinancing Indebtedness is in
an aggregate principal amount (or if issued with original issue discount, an
aggregate issue price) that is equal to or less than the aggregate principal
amount (or if issued with original issue discount, the aggregate accreted
value) then outstanding (plus fees and expenses, including any premium, swap
breakage and defeasance costs) under the Indebtedness being refinanced; and
provided, further, that (x) Refinancing Indebtedness shall not include
Indebtedness of a Project Company that refinances Indebtedness of the Company;
(y) the provisions of clauses (iii) and (iv) above shall not
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be applicable with respect to any Refinancing Indebtedness that refinances
Shareholder Loans; and (z) Refinancing Indebtedness that refinances Shareholder
Loans of any Person other than the Company or any of its Subsidiaries shall be
pari passu or subordinated to the Shareholder Loans being refinanced.
"Restricted Designation Event" means the designation by the Board of
Directors of the Company of any Existing Subsidiary or Existing Joint Venture
to be an Unrestricted Company.
"Restricted Joint Venture" means any Eligible Joint Venture of the Company
that is not designated an Unrestricted Joint Venture by the Board of Directors.
"Restricted Joint Venture Investment" means any Investment which is made by
the Company or a Restricted Subsidiary in a Restricted Joint Venture; provided
that (i) at the time such Investment is made, no Default or Event of Default
shall have occurred and be continuing (or would result therefrom); (ii) the
aggregate Investment in one or more Restricted Joint Ventures operating the
same Facility does not exceed 15% of Consolidated Net Tangible Assets; provided
that such restriction shall not apply to any Investment in (A) Yangcheng
International Power Generating Company Ltd., or its successors and (B) Tianjin
TEDA-AES Power Co. Ltd. or its successors, and provided, further, that such
restriction shall not apply to a single additional Investment of up to $100
million in the event that the Company does not make either of the Investments
described in clauses (A) and (B); and (iii) any encumbrance or restriction on
the ability of the Person in which the Investment is made to make the payments,
distributions, loans, advances or transfers referred to in clauses (i) through
(iii) under Section 3.05 that would apply immediately following the making of
the Investment could be created or permitted to exist pursuant to clause (d),
(g) or (h) under Section 3.05 or in the written opinion of the President or
Chief Financial Officer of the Company (x) are not materially more restrictive,
taken as a whole, than encumbrances and restrictions customarily accepted (or,
in the absence of any industry custom, reasonably acceptable) in substantially
non-recourse project financings and (y) apply only to the assets of the Person
in whom the Investment is made, the Capital Stock of such Person (or any other
Person that, directly or indirectly owns such Capital Stock as its sole assets)
and the income and proceeds therefrom.
"Restricted Subsidiary" means any Subsidiary of the Company that is not
designated an Unrestricted Subsidiary by the Board of Directors.
"S&P" means Standard and Poor's Corporation and its successors.
"Securities Act" means the Securities Act of 1933, as amended from time to
time.
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"Security Agreement" means the security agreement dated as of the date
hereof among the Company, the Trustee and the Collateral Agent.
"Services Agreement" means the Services Agreement dated as of December 29,
1993 between the Company and AES.
"Shareholder Loan" means Indebtedness of a Project Company that is payable
to a holder of Equity Interests in such Project Company.
"Special Proceeds Event" means (i) any Asset Sale of the assets, property
or Capital Stock of any Existing Subsidiary or Existing Joint Venture (or any
other Person that, directly or indirectly, owns such Capital Stock as its sole
assets), (ii) any Designated Financing or (iii) any Restricted Designation
Event.
"Special Proceeds" means, with respect to any Special Proceeds Event, the
Net Available Cash from such Special Proceeds Event; provided that the Net
Available Cash from a Special Proceeds Event relating to an Existing Subsidiary
shall not constitute Special Proceeds if and to the extent that: (A) the
aggregate amount of Net Available Cash from all Special Proceeds Events
excluded from the definition of Special Proceeds under this proviso after the
Issue Date does not exceed $30 million; (B) at the date of such Special
Proceeds Event, the Fixed Charge Coverage Ratio is greater than 2.25:1.0; and
(C) with respect to any Asset Sale, the Facilities owned by each of the
Existing Subsidiaries and each of the Existing Joint Ventures have commenced
commercial operation; and provided further, that the Net Available Cash from
any Special Proceeds Event relating to an Existing Joint Venture shall not
constitute Special Proceeds if and to the extent that (A) at the date thereof,
the Fixed Charge Coverage Ratio is greater than 2.25:1.0 and (B) with respect
to any Asset Sale, the Facilities owned by each of the Existing Subsidiaries
and each of the Existing Joint Ventures have commenced commercial operation.
"Stated Maturity" means, with respect to any security, the date specified
in such security as the fixed date on which the principal is due and payable,
including pursuant to any mandatory redemption provision (but excluding any
provision providing for the repurchase of such security at the option of the
holder thereof upon the happening of any contingency).
"Subordinated Indebtedness" means any Indebtedness of the Company (whether
outstanding on the Issue Date or thereafter Incurred) which is contractually
subordinated or junior in right of payment to the Notes or any other
Indebtedness of the Company.
"Subsidiary" means, as applied to any Person, any corporation or other
entity of which a majority of the outstanding Voting Shares is, at the time,
directly or indirectly,
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owned by such Person.
"tax" means any tax, duty, levy, impost, assessment or other governmental
charge of a similar nature (including penalties, interest and any other
liabilities related thereto.
"Taxing Authority" means any government or political subdivision or
territory or possession of any government or any authority or agency therein or
thereof having power to tax.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Section Section
77aaa-77bbbb) as in effect on the date first above written.
"Trustee" means the party named as such above until a successor replaced it
and thereafter means the successor.
"Trust Officer" means any officer of the Trustee within its Corporate Trust
and Agency Group assigned by the Trustee to administer its corporate trust
matters or to whom any corporate trust matter is referred because of that
officer's knowledge of and familiarity with the particular subject.
"Uniform Commercial Code" means the New York Uniform Commercial Code as in
effect from time to time.
"Unrelated Business" means any business other than the Line of Business.
"Unrestricted Companies" means the Unrestricted Subsidiaries and
Unrestricted Joint Ventures and "Unrestricted Company" means any of them.
"Unrestricted Joint Venture" means: (i) any Eligible Joint Venture that at
the time of determination shall be designated an Unrestricted Joint Venture by
the Board of Directors in the manner provided below; (ii) any Joint Venture of
an Unrestricted Subsidiary; or (iii) any Joint Venture of the Company that is
not an Eligible Joint Venture. The Board of Directors may designate any
Eligible Joint Venture (including any newly acquired or newly formed Eligible
Joint Venture) to be an Unrestricted Joint Venture unless such Eligible Joint
Venture owns any Capital Stock of, or owns or holds any Lien on any property
of, the Company or any other Restricted Joint Venture; provided, that either
(A) the Eligible Joint Venture to be so designated has total assets of $1,000
or less or (B) if such Eligible Joint Venture has assets greater than $1,000,
that such designation would be an investment permitted pursuant to the
provisions under Section 3.03. The Board of Directors may designate any
Unrestricted Joint Venture to be a Restricted Joint Venture; provided, however,
that immediately after giving effect to such designation (x) the Company could
Incur $1.00 of additional Indebtedness pursuant
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to Subsection 3.04(a) and no Default or Event of Default shall have occurred
and be continuing. Any such designation by the Board of Directors shall be
evidenced to the Trustee by promptly filing with the Trustee a copy of the
Board Resolution giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing provisions;
provided, however, that the failure to so file such resolution and/or Officers'
Certificate with the Trustee shall not impair or affect the validity of such
designation.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company that at
the time of determination shall be designated an Unrestricted Subsidiary by the
Board of Directors in the manner provided below and (ii) any Subsidiary of an
Unrestricted Subsidiary. The Board of Directors may designate any Subsidiary
(including any newly acquired or newly formed Subsidiary) to be an Unrestricted
Subsidiary unless such Subsidiary owns any Capital Stock of, or owns or holds
any Lien on any property of, the Company or any Project Company that is not a
Subsidiary or Joint Venture of the Subsidiary to be so designated; provided,
that either (A) the Subsidiary to be so designated has total assets of $1,000
or less or (B) if such Subsidiary has assets greater than $1,000, that such
designation would be permitted pursuant to Section 3.03. The Board of
Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary of the Company; provided, however, that immediately after giving
effect to such designation (x) the Company could Incur $1.00 of additional
Indebtedness pursuant to Section 3.04(a) and (y) no Default or Event of Default
shall have occurred and be continuing. Any such designation by the Board of
Directors shall be evidenced to the Trustee by promptly filing with the Trustee
a copy of the Board Resolution giving effect to such designation and an
Officers' Certificate certifying that such designation complied with the
foregoing provisions; provided, however, that the failure to so file such
resolution and/or Officers' Certificate with the Trustee shall not impair or
affect the validity of such designation.
"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 a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America which, in either case
under clauses (i) or (ii) are not callable or redeemable before the maturity
thereof.
"Voting Shares," with respect to any Person, means the Capital Stock having
the general voting power under ordinary circumstances to vote on the election
of the members of the board of directors or other governing body of such Person
(irrespective of whether or not at the time stock of any other class or classes
shall have or might have voting power by reason of the happening of any
contingency) and, with respect to the
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Company, shall include the Class A Common Stock and the Class B Common Stock
and any other Voting Shares of the Company.
"Wholly Owned Subsidiary" means a Subsidiary (other than an Unrestricted
Subsidiary) all the Capital Stock of which (other than directors' qualifying
shares) is owned by the Company or another Wholly Owned Subsidiary.
SECTION 1.02. Other Definitions.
Term Defined in Section
---- ------------------
"Additional Amounts" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.06
"Change of Control Offer" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.08
"Change of Control Purchase Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.08
"Event of Default" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.01
"Excess Proceeds" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.12(b)
"Excess Proceeds Offer" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.12(b)
"Global Note" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.01
"Intermediate Holding Company" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.20
"Notice of Default" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.01
"Offer" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.12(d)
"Offer Amount" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.12(d)
"Paying Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.03
"Purchase Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.12(d)
"Registrar" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.03
"Restricted Payment" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.03(a)
"Successor Corporation" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.01
"Special Proceeds Offer" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.12(d)
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Notes;
"indenture security holder" means a Holder or Noteholder;
"indenture to be qualified" means this Indenture;
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"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company. All other terms
used in this Indenture that are defined by the TIA, defined by TIA reference to
another statute or defined by Commission rule under the TIA have the meanings
assigned to them.
SECTION 1.04. Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) "generally accepted accounting principles" means, and any
accounting term not otherwise defined has the meaning assigned to it and shall
be construed in accordance with, GAAP;
(c) "or" is not exclusive
(d) words in the singular include the plural, and in the plural
include the singular;
(e) provisions apply to successive events and transactions;
(f) "including" means including, without limitation;
(g) unsecured debt shall not be deemed to be subordinate or junior
to secured debt merely by virtue of its nature as unsecured debt;
(h) the principal amount of any non-interest bearing or other
discount security at any date shall be the principal amount thereof that would
be shown on a balance sheet of the issuer dated such date prepared in
accordance with generally accepted accounting principles and accretion of
principal on such security shall be deemed to be the Incurrence of
Indebtedness; and
(i) the principal amount (if any) of any Preferred Stock shall be
the greatest of (i) the stated value, (ii) the redemption price or (iii) the
liquidation preference of such Preferred Stock.
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ARTICLE 2
THE NOTES
SECTION 2.01. Form and Dating.
The Notes and the Trustee's certificate of authentication, shall be
substantially in the form of Exhibit A annexed hereto, which is part of this
Indenture. The Notes may have notation, legends or endorsements required by
law, stock exchange rule or usage. Each Note shall be dated the date of its
authentication.
The terms and provisions contained in the form of Note annexed hereto as
Exhibit A shall constitute, and are expressly made, a part of this Indenture.
To the extent applicable, the Company and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and provisions and to
be bound thereby.
The Notes shall be issued initially in the form of a single permanent
global note in fully registered form without interest coupons substantially in
the form of Exhibit A with such legends as may be applicable thereto, only in
denominations of $1,000 and integral multiples thereof (the "Global Note"),
deposited with the Trustee as custodian for the Depositary and registered in the
name of Cede & Co., as nominee of the Depositary, duly executed by the Company
and authenticated by the Trustee as hereinafter provided. The Global Note shall
bear such legend as may be required or reasonably requested by the Depositary.
The definitive Notes shall be typed, printed, lithographed or engraved or
produced by any combination of these methods or may be produced in any other
manner permitted by the rules of any securities exchange on which the Notes may
be listed, all as determined by the officers executing such Notes, as evidenced
by their execution of such Notes.
SECTION 2.02. Execution and Authentication.
Two Authorized Officers shall sign the Notes for the Company by manual or
facsimile signature. [The Company's seal shall be reproduced on the Notes.]
If an Authorized Officer whose signature is on a Note no longer holds that
office at the time the Note is authenticated, the Note shall nevertheless be
valid.
A Note shall not be valid until authenticated by the manual signature of an
authorized signatory of the Trustee. The signature shall be conclusive
evidence that the Note has been authenticated under this Indenture.
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The Trustee shall authenticate Notes for original issue up to the aggregate
principal amount stated in paragraph 1 of Exhibit A upon a written order of the
Company signed by two Authorized Officers (except as otherwise provided in
Section 2.07). Such order shall specify the amount of the Notes to be
authenticated and the date on which the original issue of Notes is to be
authenticated. The aggregate principal amount of Notes outstanding at any time
may not exceed that amount except as provided in Section 2.07.
The Trustee shall initially act as authenticating agent and may
subsequently appoint another Person acceptable to the Company as authenticating
agent to authenticate Notes. Unless limited by the terms of such appointment,
an authenticating agent may authenticate Notes whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as
an Agent to deal with the Company or an Affiliate of the Company. Provided
that the authenticating agent has entered into an agreement with the Company
concerning authentication agent's duties, the Trustee shall not be liable for
any act or any failure of the authenticating agent to perform any duty either
required herein or authorized herein to be performed by such person in
accordance with this Indenture.
Typographical and other minor errors or defects in any such reproduction of
the seal or any such signature shall not affect the validity or enforceability
of any Note which has been duly authenticated and delivered by the Trustee.
SECTION 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency where Notes may be presented
for registration of transfer or for exchange ("Registrar") and an office or
agency where Notes may be presented for payment ("Paying Agent"). The
Registrar shall keep a register of the Notes and of their transfer and
exchange. The Company may appoint one or more co-registrars and one or more
additional paying agents. The term "Paying Agent" includes any additional
paying agent and the term "Registrar" includes any co-registrar.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent or co-registrar not a party to this Indenture. The
agreement shall implement the provisions of this Indenture that relate to such
agent. The Company shall promptly notify the Trustee of the name and address
of any such agent and change in the address of such agent. If the Company
fails to maintain a Registrar or Paying Agent, the Trustee shall act as such
and shall be entitled to appropriate compensation therefor pursuant to Section
6.07. The Company or any Subsidiary or Affiliate of the Company may act as
Paying Agent, Registrar, co-registrar or transfer agent.
The Company initially appoints the Trustee as Registrar and Paying Agent.
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SECTION 2.04. Paying Agent to Hold Money in Trust.
On or prior to 11:00 a.m., eastern standard time, on each due date of the
principal and interest on any Note (including any redemption date fixed under
the terms of such Note or this Indenture) the Company shall deposit with the
Paying Agent a sum of money, in immediately available funds, sufficient to pay
such principal and interest in funds available when such becomes due. The
Company shall require each Paying Agent (other than the Trustee) to agree in
writing that the Paying Agent shall hold in trust for the benefit of
Noteholders or the Trustee all money held by the Paying Agent for the payment
of principal of or interest on the Notes (whether such money has been paid to
it by the Company or any other obligor on the Notes) and shall notify the
Trustee of any default by the Company (or any other obligor on the Notes) in
making any such payment. If the Company or a Subsidiary or an affiliate of the
Company acts as Paying Agent, it shall segregate the money held by it as Paying
Agent and hold it as a separate trust fund for the benefit of the Noteholders.
If the Company defaults in its obligation to deposit funds for the payment of
principal and interest the Trustee may, during the continuation of such
default, require a Paying Agent to pay all money held by it to the Trustee.
The Company at any time may require a Paying Agent to pay all money held by it
to the Trustee and to account for any funds disbursed by it. Upon doing so,
the Paying Agent (other than the Company or a Subsidiary or Affiliate of the
Company) shall have no further liability for the money delivered to the
Trustee.
SECTION 2.05. Noteholder Lists.
The Trustee shall preserve in as current a form as reasonably practicable
the most recent list available to it of the names and addresses of Noteholders.
If the Trustee is not the Registrar, the Company shall furnish to the Trustee
at least five Business Days before each Interest Payment Date and at such other
times as the Trustee may request in writing a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of the
Noteholders and the Company shall otherwise comply with TIA Section 312(a).
SECTION 2.06. Transfer and Exchange; Definitive Note.
(a) The Notes shall be transferable only upon the surrender of a
Note for registration of transfer. When a Note is presented to the Registrar
or a co-registrar with a request to register a transfer, the Registrar shall
register the transfer as requested if the requirements of Section 8-401(1) of
the Uniform Commercial Code are met (and the Registrar shall be entitled to
assume such requirements have been met unless it receives written notice to the
contrary) and, if so required by the Trustee or the Company, if the Note
presented is accompanied by a written instrument of transfer in form
satisfactory to the Trustee and the Company, duly executed by the registered
owner or by his or her
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attorney duly authorized in writing. When Notes are presented to the Registrar
or a co-registrar with a request to exchange them for an equal principal amount
of Notes of other denominations, the Registrar shall make the exchange as
requested if the same requirements are met. To permit registration of
transfers and exchanges, the Company shall execute and the Trustee shall
authenticate Notes at the Registrar's or co-registrar's request. No service
charge shall be made for any registration of transfer or exchange of the Notes,
but the Company may require payment of a sum sufficient to cover any transfer
tax or similar governmental charge payable in connection therewith (other than
any such transfer taxes or similar governmental charge payable upon exchange
pursuant to Section 2.10 or 8.05 of this Indenture). The Company shall not be
required to make and the Registrar need not register transfers or exchanges of
Notes selected for redemption (except, in the case of Notes to be redeemed in
part, the portion thereof not to be redeemed) or for a period of 15 days before
a selection of Notes to be redeemed or 15 days before an interest payment date.
(b) Prior to the due presentation for registration of transfer of any
Note, the Company, the Trustee, the Paying Agent, the Registrar or any
co-registrar may deem and treat the person in whose name a Note is registered
as the absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Note and for all other purposes whatsoever,
whether or not such Note is overdue, and none of the Company, the Trustee, the
Paying Agent, the Registrar or any co-registrar shall be affected by notice to
the contrary.
(c) Notwithstanding any other provisions of this Section 2.06, unless
and until it is exchanged in whole or in part for Notes in definitive
registered form, the Global Note representing all or a portion of the Notes may
not be transferred except as a whole by the Depositary 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 or a nominee of such successor Depositary.
(d) If the Depositary notifies the Company that it is unwilling or
unable to continue as Depositary for the Global Notes or if at any time the
Depositary shall no longer be registered under the next sentence of this
paragraph, the Company shall appoint a successor Depositary with respect to the
Notes. Each Depositary appointed pursuant to this Section 2.06 must, at the
time of its appointment and at all times while it serves as Depositary, be a
clearing agency registered under the Exchange Act and any other applicable
statute or regulation. The Company will execute, and the Trustee will
authenticate and deliver upon a written order of the Company signed by two
Authorized Officers, Notes in definitive registered form in any authorized
denominations representing such Notes in exchange for the Global Note if (i)
the Depositary notifies the Company that it is unwilling or unable to continue
as Depositary for the Global Note or if at any time the Depositary ceases to be
a clearing agency registered under the Exchange
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Act at any time when it is required to be and, in either case, a successor
Depositary for the Notes is not appointed by the Company within 90 days after
the Company receives such notice or becomes aware that the Depositary is no
longer so registered, (ii) the Company determines in accordance with the next
paragraph of this subsection (d) that the Global Note shall be exchanged or
exchangeable for Notes in definitive registered form or (iii) an Event of
Default has occurred and is continuing.
The Company may at any time and in its sole discretion determine that the
Notes shall no longer be represented by the Global Note. In such event the
Company will execute, and the Trustee will authenticate and deliver upon a
written order of the Company signed by two Authorized Officers, Notes in
definitive registered form in any authorized denominations representing such
Notes in exchange for such Global Note.
(e) Upon the exchange of the Global Note for Notes in definitive
registered form without coupons, in authorized denominations, such Global Note
shall be canceled by the Trustee. Notes in definitive registered form issued
in exchange for the Global Note pursuant to this Section 2.06 shall be
registered in such names and in such authorized denominations as the Depositary
for the Global Note pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Notes to or as directed by the Persons in whose names such Notes
are so registered.
All Notes issued upon any transfer or exchange pursuant to the terms of
this Indenture will evidence the same debt and will be entitled to the same
benefits under this Indenture as the Notes surrendered upon such transfer or
exchange.
SECTION 2.07. Replacement Notes.
If a mutilated security is surrendered to the Registrar or if the Holder of
a Note claims that the Note has been lost, destroyed or wrongfully taken and
the Holder furnishes to the Company and the Trustee evidence to their
satisfaction of such loss, destruction or wrongful taking, the Company shall
issue and the Trustee shall, in the absence of notice to the Company or the
Trustee that such Note has been acquired by a bona fide purchaser, authenticate
a replacement Note if the requirements of Section 8-405 of the Uniform
Commercial Code are met (and the Registrar shall be entitled to assume such
requirements have been met unless it receives written notice to the contrary)
and if there is delivered to the Company and the Trustee such security or
indemnity as may be required to save each of them harmless, satisfactory to the
Company or the Trustee, as the case may be. The Company and the Trustee may
charge the Holder for their expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company and shall be
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entitled to the benefits of (but shall be subject to all the limitations of
rights set forth in) this Indenture.
SECTION 2.08. Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by the
Trustee except for those canceled by it, those delivered to it for
cancellation, and those described in this section as not outstanding.
If a Note is replaced pursuant to Section 2.07, it ceases to be outstanding
unless the Trustee and the Company receive proof satisfactory to them that the
replaced Note is held by a bona fide purchaser.
If all the principal and interest on any Notes are considered paid under
Section 3.01, such Notes cease to be outstanding under this Indenture and
interest on such Notes shall cease to accrue.
If the Paying Agent (other than the Company or a Subsidiary or an Affiliate
of the Company) holds in accordance with this Indenture on a redemption date or
maturity date money sufficient to pay all principal and interest due on that
date then on and after that date such Notes cease to be outstanding and
interest on them ceases to accrue (unless there shall be a default in such
payment).
If a Note is called for redemption, the Company and the Trustee need not
treat the Note as outstanding in determining whether Holders of the required
principal amount of Notes have concurred in any direction, waiver or consent.
Subject to Section 2.09, a Note does not cease to be outstanding because
the Company or an Affiliate thereof holds the Note.
SECTION 2.09. Determination of Holders' Action.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, amendment, waiver or consent, Notes
owned by or pledged to the Company, any other obligor upon the Notes or any
Affiliate of the Company, or such other obligor shall be disregarded and deemed
not to be outstanding, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Notes which the Trustee knows are so owned or pledged shall be so
disregarded.
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SECTION 2.10. Temporary Notes.
Until definitive Notes are ready for delivery, the Company may prepare and
the Trustee shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of definitive Notes but may have variations that the
Company considers appropriate for temporary Notes. Without unreasonable delay,
the Company shall prepare and the Trustee, upon the written order of the
Company signed by two Authorized Officers, shall authenticate definitive Notes
in exchange for temporary Notes. Until such exchange, temporary Notes shall be
entitled to the same rights, benefits and privileges as definitive Notes.
SECTION 2.11. Cancellation.
The Company at any time may deliver Notes to the Trustee for cancellation.
The Registrar and Paying Agent shall forward to the Trustee any Notes
surrendered to them for registration of transfer, exchange or payment. The
Trustee shall cancel all Notes surrendered for registration of transfer,
exchange, payment or cancellation and shall destroy the same or otherwise
dispose of canceled Notes as the Company directors by written order signed by
two Authorized Officers. The Company may not issue new Notes to replace Notes
that it has paid or delivered to the Trustee for cancellation.
SECTION 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Notes, it shall pay
defaulted interest, plus any interest payable on the defaulted interest to the
extent permitted by law, in any lawful manner. The Company may pay the
defaulted interest to the Persons who are Noteholders on a subsequent special
record date which date shall be at least five Business Days prior to the
payment date. The Company shall fix the special record date and payment date.
At least 15 days before the special record date, the Company (or the Trustee,
in the name of and at the expense of the Company) shall mail to Noteholders a
notice that states the special record date, payment date and amount of interest
to be paid.
ARTICLE 3
COVENANTS
SECTION 3.01. Payment of Notes.
(a) The Company shall pay the principal of and interest on the Notes
on the dates and in the manner provided in the Notes. The Company shall pay
interest on overdue principal at the rate borne by the Notes; it shall pay
interest on overdue installments of interest at the rate borne by the Notes to
the extent lawful. Principal and
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interest shall be considered paid on the date due (including a redemption date)
if the Trustee or the Paying Agent (other than the Company or a Subsidiary or
an Affiliate of the Company) has received from or on behalf of the Company on
or prior to 11:00 a.m., eastern standard time, on that date, in immediately
available funds, money sufficient to pay all principal and interest then due.
(b) At least five Business Days prior to the first interest payment
date and, if there has been any change with respect to the matters set forth in
the below-mentioned certificate, at least five Business Days prior to each
interest payment date thereafter, the Company shall furnish the Trustee with an
Officers' Certificate instructing the Trustee as to any circumstances in which
payments of principal of or interest on the Notes due on such date shall be
subject to deduction or withholding for or on account of any taxes described in
Section 3.06 and the rate of any such deduction or withholding. If any such
deduction or withholding shall be required and if the Company therefore becomes
liable to pay Additional Amounts, if any, pursuant to Section 3.06, then, at
least five Business Days prior to each interest payment date, the Company will
furnish the Trustee with a certificate which specifies the amount required to
be withheld on such payment to Holders of the Notes and the Additional Amounts,
if any, due to Holders of the Notes, and will pay to the Trustee such
Additional Amounts, if any, as shall be required to be paid to such Holders.
SECTION 3.02. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, the City of New
York, an office or agency where Notes 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 Notes and this Indenture may
be served. 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
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 11.02 of this Indenture.
The Company may also from time to time designate one or more other offices
or agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided,
however, 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.
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The Company hereby initially designates the office of Bankers Trust Company
in the Borough of Manhattan, the City of New York, as such office of the
Company in accordance with Section 2.03.
SECTION 3.03. Limitation on Restricted Payments.
(a) So long as any of the Notes are outstanding, the Company shall
not, and shall not permit any Project Company to, directly or indirectly, (i)
declare or pay (either in cash or property) any dividend on or make any
distribution or similar payment of any sort in respect of its Equity Interests
(including any payment in connection with any merger or consolidation involving
the Company) to the direct or indirect holders of its Equity Interests (other
than dividends or distributions payable solely in its Non-Convertible Capital
Stock or rights to acquire its Non-Convertible Capital Stock and dividends or
distributions by a Project Company that are paid to the Company or a Wholly
Owned Subsidiary and to the other holders of Equity Interests in such Project
Company (A) in accordance with the joint venture contract, articles of
association or other constituent document governing such Project Company or (B)
as permitted by applicable law), (ii) purchase, redeem, defease or otherwise
acquire or retire for value any Equity Interests of the Company or AES, or,
with respect to the Company, exercise any option to exchange any Equity
Interests that by their terms are exchangeable solely at the option of the
Company (other than into Capital Stock of the Company which is neither
Exchangeable Stock nor Redeemable Stock), (iii) purchase, repurchase, redeem,
defease or otherwise acquire or retire for value, prior to scheduled maturity
or scheduled repayment thereof or scheduled sinking fund payment thereon, any
Subordinated Indebtedness or (iv) make any Investment, other than a Permitted
Investment (each such payment described in clauses (i)-(iv) of this paragraph,
a "Restricted Payment"), unless at the time of and after giving effect to the
proposed Restricted Payment:
(1) no Default or Event of Default shall have occurred and be
continuing (or would result therefrom);
(2) the Company would be permitted to Incur an additional $1.00 of
Indebtedness pursuant to the provisions of Section 3.04(a); and
(3) the aggregate amount of all such Restricted Payments subsequent to
the Issue Date shall not exceed the sum of
(A) 50% of aggregate Consolidated Net Income accrued during
the period (treated as one accounting period) from
December 1, 1996 to the end of the most recent fiscal
quarter for which financial statements are available (or
if such Consolidated Net Income is a deficit, minus 100%
of such deficit);
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(B) the aggregate Net Cash Proceeds received by
the Company after the Issue Date from the sale of Equity
Interests (other than Redeemable Stock or Exchangeable
Stock) of the Company to any person other than the
Company, any of its Subsidiaries or an employee stock
ownership plan;
(C) the amount by which the principal amount of,
and any accrued interest on, Indebtedness of the Company
or its Restricted Subsidiaries (other than Shareholder
Loans) is reduced on the Company's Consolidated balance
sheet upon the conversion or exchange (other than by a
Subsidiary) subsequent to the Issue Date of any
Indebtedness of the Company or any Restricted Subsidiary
converted or exchanged for Capital Stock (other than
Redeemable Stock or Exchangeable Stock) of the Company
(less the amount of any cash, or the value of any other
property, distributed by the Company or any such
Restricted Subsidiary upon such conversion or exchange);
and
(D) an amount equal to the net reduction in
Investments after the Issue Date in Unrestricted Companies
resulting from payments of interest on Indebtedness,
dividends, repayments of loans or advances, or other
transfers of assets, in each case to the Company or any
Project Company from Unrestricted Companies or from
redesignations of Unrestricted Companies as Project
Companies (valued in each case as provided in the
definition of "Investments"), not to exceed in the case of
any Unrestricted Company the amount of Investments
previously made by the Company or any Project Company in
such Unrestricted Company.
(b) The failure to satisfy the conditions set forth in clauses
(2) and (3) of Subsection 3.03(a) shall not prohibit any of the following as
long as the condition set forth in clause (1) of Subsection 3.03(a) is
satisfied (except as set forth below):
(i) dividends paid within 60 days after the date of
declaration thereof if at such date of declaration such dividend
would have complied with Subsection 3.03(a); provided that, solely
for purposes of this clause (i), it shall not be necessary to
satisfy the condition set forth in clause (1) of Subsection
3.03(a) at the date of payment if such clause is satisfied at the
date of declaration;
(ii) any purchase, redemption, defeasance, or other
acquisition or retirement for value of Capital Stock of the
Company or Subordinated Indebtedness made by exchange for, or out
of the proceeds of the substantially concurrent sale of, Capital
Stock of the Company (other than Redeemable Stock
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or Exchangeable Stock and other than stock issued or sold to a
Subsidiary or to an employee stock ownership plan), provided, that
such purchase, redemption, defeasance or other acquisition or
retirement shall not be included in the calculation of Restricted
Payments made for purposes of clause (3) of Subsection 3.03(a) and
provided, further, that the Net Cash Proceeds from such sale shall
be excluded from sub-clause B of clause (3) of Subsection 3.03(a);
(iii) any purchase, redemption, defeasance or other
acquisition or retirement for value of Subordinated Indebtedness
made by exchange for, or out of the proceeds of the substantially
concurrent Incurrence of for cash (other than to a Subsidiary),
new Indebtedness of the Company, provided, however, that (A) such
new Indebtedness shall be contractually subordinated in right of
payment to the Notes at least to the same extent as the
Indebtedness being so redeemed, repurchased, defeased, acquired or
retired, (B) such new Indebtedness has a Stated Maturity either
(1) no earlier than the Stated Maturity of the Indebtedness
redeemed, repurchased, defeased, acquired or retired or (2) after
the Stated Maturity of the Notes and (C) such Indebtedness has an
Average Life equal to or greater than the Average Life of the
Indebtedness redeemed, repurchased, defeased, acquired or retired,
and provided further, that such purchase, redemption, defeasance
or other acquisition or retirement shall not be included in the
calculation of Restricted Payments made for purposes of clause (3)
of Subsection 3.03(a); and
(iv) any purchase, redemption, defeasance or other
acquisition or retirement for value of Subordinated Indebtedness
upon a Change of Control or an Asset Sale to the extent required
by this Indenture or other agreement pursuant to which such
Subordinated Indebtedness was issued, but only if (A) in the case
of a Change of Control, the Company has made an offer to
repurchase the Notes as described under Section 3.08 or (B) in the
case of an Asset Sale, the Company or the applicable Project
Company, as the case may be, has applied the Net Available Cash
from such Asset Sale in accordance with the provisions of Section
3.12; and
(v) Restricted Payments not otherwise permitted by
the foregoing provisions in an aggregate amount not in excess of
$10 million.
SECTION 3.04. Limitation on Incurrence of Indebtedness.
(a) The Company shall not, and shall not permit any Project
Company to, directly or indirectly, Incur any Indebtedness, except that the
Company may Incur Indebtedness if, after giving effect thereto, the Fixed
Charge Coverage Ratio would be greater than (i) 1.75:1.0 through November 30,
1998, (ii) 2.00:1.0 from December 1,
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1998 through November 30, 2001, and (iii) 2.25:1.0 thereafter.
(b) Notwithstanding the foregoing, this section shall not limit the
ability of the Company or any Project Company to Incur the following
Indebtedness:
(i) Indebtedness under the Notes and this Indenture;
(ii) Refinancing Indebtedness;
(iii) Indebtedness of the Company which is owned to and held by
a Wholly Owned Subsidiary and Indebtedness of a Project Company which is
owed to and held by the Company or a Wholly Owned Subsidiary, provided,
however, that any subsequent issuance or transfer of any Capital Stock
which results in any such Wholly Owned Subsidiary ceasing to be a Wholly
Owned Subsidiary or any transfer of such Indebtedness (other than to the
Company or a Wholly Owned Subsidiary) shall be deemed, in each case, to
constitute the Incurrence of such Indebtedness by the Company or by a
Project Company, as the case may be;
(iv) Acquired Indebtedness that is Non-Recourse Debt;
(v) Indebtedness of the Company or a Project Company
outstanding on the Issue Date;
(vi) Indebtedness under any Currency Agreement or Interest Rate
Agreement in each case entered into in the ordinary course of the financial
management of the Company and the Project Companies and not for speculative
purposes; provided that, in the case of any Currency Agreement, such
Currency Agreement does not increase the Indebtedness of the obligor
outstanding at any time other than as a result of fluctuations in foreign
currency exchange rates or by reason of fees, indemnities and compensation
payable thereunder;
(vii) Indebtedness incurred in connection with a purchase of the
Notes as required in connection with a Change of Control Triggering Event;
provided that the aggregate principal amount of such indebtedness does not
exceed 101% of the aggregate principal amount of the Notes purchased
pursuant to such Change of Control Triggering Event (plus the amount of
reasonable fees and expenses, including underwriting discounts and
commissions, incurred by the Company in connection with obtaining such
Indebtedness) and that such Indebtedness does not mature prior to the
Stated Maturity of the Notes so purchased;
(viii) Indebtedness referred to in clause (viii) of the
definition of Permitted Investments;
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(ix) Non-Recourse Debt of a Project Company (other than any
Existing Subsidiary), the proceeds of which are used to acquire, develop,
improve, construct or provide working capital for a Facility of such
Project Company;
(x) Shareholder Loans to the extent that the aggregate
principal amount of Shareholder Loans of a Project Company is not greater
than an amount equal to the principal amount of Shareholder Loans of such
Project Company payable to the Company or a Wholly Owned Subsidiary divided
by the Company's percentage ownership of the Capital Stock of such Project
Company;
(xi) Non-Recourse Debt of any Existing Subsidiary Incurred to
pay for construction cost overruns; provided that the aggregate principal
amount of all such Non-Recourse Debt incurred under this clause (xi) shall
not exceed $15 million;
(xii) Non-Recourse Debt of any Existing Subsidiary Incurred to
provide for working capital; provided that the aggregate principal amount
outstanding at any time of all such Non-Recourse Debt under this clause
(xii) shall not exceed $10 million; and
(xiii) other Indebtedness Incurred by the Company or any Project
Company (other than an Existing Subsidiary) in an aggregate principal
amount outstanding at any time of not more than 5% of Consolidated Net
Worth.
(c) Notwithstanding Sections 3.04(a) and (b), the Company shall not
Incur any Indebtedness if the proceeds thereof are used, directly or indirectly,
to repay, prepay, redeem, defease, retire, refund or refinance any Subordinated
Indebtedness unless such repayment, prepayment, redemption, defeasance,
retirement, refunding or refinancing is not prohibited by Section 3.03 or unless
such Indebtedness shall be contractually subordinated to the Notes at least to
the same extent as such Subordinated Indebtedness.
SECTION 3.05. Limitation on Payment Restrictions Affecting Project
Companies.
The Company shall not, and shall not permit any Project Company to, create
or otherwise cause or permit to exist or become effective any consensual
encumbrance or restriction on the ability of any Project Company to (i) pay
dividends to or make any other distributions on its Capital Stock, or pay any
Indebtedness or other obligations owed to the Company or any other Project
Company, (ii) make any loans or advances to the Company or any Project Company
or (iii) transfer any of its property or assets to the Company or any other
Project Company; provided, however, that the foregoing shall not apply to:
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(a) any encumbrance or restriction existing pursuant to this
Indenture or any other agreement or instrument as in effect or entered into on
the Issue Date;
(b) any encumbrance or restriction with respect to any Person or the
assets of such Person acquired by the Company or any Project Company and
existing at the time of such acquisition; provided, however, that such
encumbrance or restriction was not Incurred in connection with or in
contemplation of such Project Company becoming a Project Company;
(c) any encumbrance or restriction pursuant to an agreement
effecting a refinancing of Indebtedness referred to in clause (a) or (b) above
or contained in any amendment or modification with respect to such
Indebtedness; provided, however, that the encumbrances and restrictions
contained in any such agreement, amendment or modification are no less
favorable in any material respect with respect to the matters referred to in
clauses (i), (ii) and (iii) above than the encumbrances and restrictions with
respect to the Indebtedness being refinanced, amended or modified;
(d) in the case of clause (iii) above, customary non-assignment
provisions of (A) any leases governing a leasehold interest or (B) any supply,
license or other agreement entered into in the ordinary course of business of
the Company or any Project Company;
(e) any restrictions with respect to a Project Company imposed
pursuant to an agreement entered into for the sale or disposition of all or
substantially all of the Capital Stock or assets of such Project Company
pending the closing of such sale or disposition;
(f) any encumbrances or restrictions imposed pursuant to the terms
of Non-Recourse Debt incurred pursuant to Section 3.04(b)(ix), provided that
such encumbrances or restrictions, in the written opinion of the President or
Chief Financial Officer of the Company, (x) are required in order to obtain
such financing, (y) are not materially more restrictive, taken as a whole, than
encumbrances and restrictions customarily accepted (or, in the absence of any
industry custom, reasonably acceptable), in substantially non-recourse project
financings and (z) apply only to the assets of the Project Company that has
Incurred such Non-Recourse Debt, the Capital Stock of such Person (or any other
Person that, directly or indirectly, owns such Capital Stock as its sole
assets) and the income and proceeds therefrom;
(g) any encumbrance or restriction existing by reason of applicable
law; and
(h) any restriction under a joint venture, shareholders' or similar
agreement to pay dividends or make other distributions, so long as there is a
contemporaneous agreement providing for the payment of dividends or the making
of distributions
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according to a schedule or calculation notwithstanding such restriction.
Nothing contained in this Section 3.05 shall prevent the Company or any
Project Company from (1) creating, incurring, assuming or suffering to exist
any Liens otherwise permitted in Section 3.07 or (2) restricting the sale or
other disposition of property or assets of the Company or any Project Company
that secure Indebtedness.
SECTION 3.06. Payment of Additional Amounts.
All payments of principal and interest in respect of each Note shall be
made free and clear of, and without withholding or deduction for, any taxes,
duties, assessments or governmental charges of whatever nature imposed, levied,
collected, withheld or assessed by or within Bermuda or any other jurisdiction
in which the Company is organized or any authority therein or thereof having
power to tax or from which any payment is made with respect to the Notes,
unless such withholding or deduction is required by law or by regulation or
governmental policy having the force of law. In the event that any such
withholding or deduction in respect of principal or interest is so required,
the Company shall pay such additional amounts ("Additional Amounts") as will
result in receipt by each Holder of any Note of such amounts as would have been
received by such Holder or the beneficial owner with respect to such Note had
no such withholding or deduction been required, except that no Additional
Amounts shall be payable:
(a) for or on account of:
(i) any tax, duty, assessment or other governmental charge
that would not have been imposed but for
(A) the existence of any present or former connection
between such Holder or the beneficial owner of such Note and
Bermuda or such other jurisdiction in which the Company is
organized, as the case may be, other than merely holding such
Note, including, without limitation, such Holder or the beneficial
owner of such Note being or having been a national, domiciliary or
resident of or treated as a resident thereof or being or having
been present or engaged in a trade or business therein or having
or having had a permanent establishment therein;
(B) presentation of such Note (where presentation is
required) more than thirty (30) days after the date on which the
payment in respect of such Note became due and payable or provided
for, whichever is later, except to the extent that such Holder
would have been entitled to such Additional Amounts if it had
presented such Note for payment on any day within such period of
thirty (30) days; or
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(C) the presentation of such Note for payment in
Bermuda or any political subdivision thereof or therein, unless
such Note could not have been presented for payment elsewhere;
(ii) any estate, inheritance, gift, sale, transfer, personal
property or similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge that is
imposed or withheld by reason of the failure of such Holder or the
beneficial owner of such Note to comply with a request by the Company
addressed to such Holder (A) to provide information concerning the
nationality, residence or identity of such Holder or such beneficial owner
or (B) to make any declaration or other similar claim or satisfy any
information or reporting requirement, which, in the case of (A) or (B), is
required or imposed by a statute, treaty, regulation or administrative
practice of the taxing jurisdiction as a precondition to exemption from all
or part of such tax, assessment or other governmental charge;
(iv) any tax, duty, assessment or governmental charge which is
payable other than by withholding or deduction from payments with
respect to the Notes; or
(v) any combination of items (1), (2), (3) and (4);
(b) with respect to any payment of the principal of or interest on
such Note to such Holder (including a fiduciary or partnership) to the extent
that the beneficial owner of such Note would not have been entitled to such
Additional Amounts had it been the Holder of the Note.
Whenever there is mentioned, in any context, the payment of principal or
interest in respect of any Note or the net proceeds received on the sale or
exchange of any Note, such mention shall be deemed to include the payment of
Additional Amounts provided for in this Indenture to the extent that, in such
context, Additional Amounts are, were or would be payable in respect thereof
pursuant to this Indenture.
SECTION 3.07. Limitation on Liens.
The Company shall not, and shall not permit any Project Company to directly
or indirectly, incur or permit to exist any Lien of any nature whatsoever on
any of its properties (including, without limitation, Capital Stock), whether
owned at the date of such Indenture or thereafter acquired, unless
contemporaneously therewith or prior thereto the Notes are equally and ratably
secured other than:
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(a) pledges or deposits made by such Person under workers'
compensation, unemployment insurance laws or similar legislation, or good faith
deposits in connection with bids, tenders, contracts (other than for payment of
Indebtedness) or leases to which such Person is a party, or deposits to secure
statutory or regulatory obligations of such Person or deposits of cash or
United States government bonds to secure surety, appeal or performance bonds to
which such Person is a party, or deposits as security for contested taxes or
import duties or for the payment of rent, in each case Incurred in the ordinary
course of business;
(b) Liens imposed by law such as carriers', warehousemen's and
mechanics' Liens, in each case, arising in the ordinary course of business and
with respect to amounts not yet due or being contested in good faith by
appropriate legal proceedings promptly instituted and diligently conducted and
for which a reserve or other appropriate provision, if any, as shall be
required in conformity with GAAP shall have been made; or other Liens arising
out of judgments or awards against such Person with respect to which such
Person shall then be diligently prosecuting appeal or other proceedings for
review;
(c) Liens for property taxes not yet subject to penalties for
non-payment or which are being contested in good faith and for which
appropriate provision as shall be required in conformity with GAAP, if any,
shall have been made;
(d) Liens in favor of issuers or surety bonds or letters of credit
issued pursuant to the request of and for the account of such Person in the
ordinary course of its business; provided, however, that such letters of credit
may not constitute Indebtedness;
(e) minor survey exceptions, minor encumbrances, easements or
reservations of, or rights of others for, rights of way, sewers, electric
lines, telegraph and telephone lines and other similar purposes, or zoning or
other restrictions as to the use of real properties or liens incidental to the
conduct of the business of such Person or to the ownership of its properties
which were not Incurred in connection with Indebtedness or other extensions of
credit and which do not in the aggregate materially adversely affect the value
of said properties or materially impair their use in the operation of the
business of such Person;
(f) Liens securing Indebtedness Incurred to finance the construction
or purchase of, or repairs, improvements or additions to, property; provided,
however, that the Lien may not extend to any other property owned by the
Company or a Project Company and the Indebtedness secured by the Lien may not
be issued more than 270 days after the later of the acquisitions, completion of
construction, repair, improvement, addition or commencement of full operation
of the property subject to the Lien;
(g) Liens existing on the Issue Date;
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(h) Liens on property or shares of stock of a Person at the time
such Person becomes a Project Company, provided, however, that any such Lien
may not extend to any other property owned by the Company or any Project
Company;
(i) Liens on property at the time the Company or a Project Company
acquires the property, including any acquisitions by means of a merger or
consolidation with or into the Company or a Project Company; provided, however,
that such Liens are not incurred in connection with, or in contemplation of,
such merger or consolidation; and provided, further, that the Lien may not
extend to any other property owned by the Company or any Project Company;
(j) Liens securing Indebtedness or other obligations of a Project
Company owing to the Company or a Wholly Owned Subsidiary;
(k) Liens incurred by a Person other than the Company or a Project
Company on assets that are the subject of a Capitalized Lease Obligation to
which the Company or a Project Company is a party; provided, however, that any
such Lien may not secure Indebtedness of the Company or Project Company (except
by virtue of clause (viii) of the definition of "Indebtedness") and may not
extend to any other property owned by the Company or any Project Company;
(l) Liens Incurred by a Project Company to secure Non-Recourse Debt
Incurred pursuant to paragraphs (ix), (xi) or (xii) of Section 3.04(b),
provided that such Liens (x) are required in order to obtain such financing,
(y) are not materially more restrictive, taken as a whole, than Liens
customarily accepted (or, in the absence of any industry custom, reasonably
acceptable), in substantially non-recourse project financings and (z) apply
only to the assets of the Person that has incurred such Non-Recourse Debt, the
Capital Stock of such Person (or any other Person that, directly or indirectly,
owns such Capital Stock as its sole assets) and the income and proceeds
therefrom;
(m) Liens not in respect of Indebtedness consisting of the interest
of the lessor under any lease Incurred in the ordinary course of business and
not otherwise prohibited by this Indenture;
(n) Liens which constitute banker's liens, rights of set-off or
similar rights and remedies as to deposit accounts or other funds maintained
with any bank or other financial institution, whether arising by operation of
law or pursuant to contract;
(o) Liens Incurred pursuant to the Security Agreement; and
(p) Liens to secure any refinancing, refunding, extension, renewal
or replacement (or successive refinancings, refundings, extensions, renewals or
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replacements) as a whole, or in part, of any Indebtedness secured by any Lien
referred to in the foregoing clauses (f), (g), (h) and (i), provided, however,
that (x) such new Lien shall be limited to all or part of the same property
that secured the original Lien (plus improvements on such property) and (y) the
Indebtedness secured by such Lien at such time is not increased (other than by
an amount necessary to pay fees and expenses, including premiums, related to
the refinancing, refunding, extension, renewal or replacement of such
Indebtedness).
SECTION 3.08. Change of Control.
In the event of a Change of Control Triggering Event, the Company shall
make an offer to purchase (the "Change of Control Offer") the Notes then
outstanding at a purchase price of not less than 101% of the principal amount
(excluding any premium) thereof plus accrued and unpaid interest to the Change
of Control Purchase Date (as defined below) on the terms set forth in this
section. The date on which the Company shall purchase the Notes pursuant to
this section (the "Change of Control Purchase Date") shall be no earlier than
30 days, nor later than 60 days, after the notice referred to below is mailed,
unless a longer period shall be required by law. The Company shall notify the
Trustee in writing promptly after any Change of Control Triggering Event of the
Company's obligation to offer to purchase all of the Notes.
Notice of a Change of Control Offer shall be mailed by the Company to the
Holders of the Notes at their last registered address (with a copy to the
Trustee and the Paying Agent) within thirty (30) days after a Change of Control
Triggering Event has occurred. The Change of Control Offer shall remain open
from the time of mailing until a date not more than five (5) Business Days
before the Change of Control Purchase Date. The notice shall contain all
instructions and materials necessary to enable such Holders to tender (in whole
or in part) the Notes pursuant to the Change of Control Offer. The notice,
which shall govern the terms of the Change of Control Offer, shall state:
(a) that the Change of Control Offer is being made pursuant to this
section;
(b) the purchase price and the Change of Control Purchase Date;
(c) that any Note not surrendered or accepted for payment will continue
to accrue interest;
(d) that any Note accepted for payment pursuant to the Change of Control
Offer shall cease to accrue interest after the Change of Control Purchase Date;
(e) that any Holder electing to have a Note purchased (in whole or in
part) pursuant to a Change of Control Offer will be required to surrender the
Note, with the
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form entitled "Option of Holder to Elect Purchase" on the reverse of the Note
completed, to the Paying Agent at the address specified in the notice (or
otherwise make effective delivery of the Note pursuant to book-entry procedures
and the related rules of the applicable depositories) at least five (5)
Business Days before the Change of Control Purchase Date; and
(f) that any Holder will be entitled to withdraw his or her election if
the Paying Agent receives, not later than three (3) Business Days prior to the
Change of Control Purchase Date, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the Note
the Holder delivered for purchase and a statement that such Holder is
withdrawing his or her election to have the Note purchased.
On the Change of Control Purchase Date, the Company shall (i) accept for
payment the Notes, or portions thereof, surrendered and properly tendered, and
not withdrawn, pursuant to the Change of Control Offer, (ii) deposit with the
Paying Agent, no later than 11:00 a.m. eastern standard time, money, in
immediately available funds, sufficient to pay the purchase price of all Notes
or portions thereof so accepted and (iii) deliver to the Trustee, no later than
11:00 a.m. eastern standard time, Notes so accepted together with an Officers'
Certificate stating that such Notes have been accepted for payment by the
Company. The Paying Agent shall promptly mail or deliver to Holders of Notes
so accepted payment in an amount equal to the purchase price. Holders whose
Notes are purchased only in part will be issued new Notes equal in principal
amount to the unpurchased portion of the Notes surrendered.
The Company shall comply, to the extent applicable, with the requirements
of Section 14(e) of the Exchange Act and any other securities laws or
regulations in connection with the repurchase of Notes pursuant to this
section. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this section, the Company shall comply
with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations under this section by virtue thereof.
SECTION 3.09. Compliance Certificate.
(a) The Company shall, within 120 days after the close of each fiscal
year following the issuance of the Notes, file with the Trustee an Officer's
Certificate, covering the period from the date of issuance of the Notes to the
end of the fiscal year in which the Notes were issued, in the case of the first
such certificate, and covering the preceding fiscal year in the case of each
subsequent certificate, and stating whether or not, to the knowledge of each
such executing Officer, the Company has complied with and performed and
fulfilled all covenants on its part contained in this Indenture and is not in
default in the performance or observance of any of the terms or provisions
contained in this Indenture, and, if any such signer has obtained knowledge of
any default by the
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Company in the performance, observance or fulfillment of any such covenant,
term or provision specifying each such default and the nature thereof. For the
purpose of this Section 3.09, compliance shall be determined without regard to
any grace period or requirement of notice provided pursuant to the terms of
this Indenture.
(b) The Officers' Certificate described in Section 3.11(b) shall also set
forth (i) a calculation of the Fixed Charge Coverage Ratio as the last day of
the preceding fiscal year and (ii) a calculation of the amount required to be
maintained by the Company pursuant to Section 3.13 as of the last day of the
preceding fiscal year, setting forth in each such case each component of the
calculation thereof.
SECTION 3.10. Commission Reports.
The Company shall deliver to the Trustee and to the Holders, within 30 days
after the filing with the Commission, copies of the annual and quarterly
reports and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may by rules and regulations
prescribe) which the Company is required to file with the Commission pursuant
to Section 13 or 15(d) of the Exchange Act. In the event the Company is at any
time no longer subject to the reporting requirements of Section 13 or 15(d) of
the Exchange Act or otherwise report on an annual and quarterly basis on forms
provided for such annual and quarterly reporting pursuant to rules and
regulations promulgated by the Commission, it shall, for so long as the Notes
remain outstanding, file with the Trustee and the Commission and mail to each
Holder at such Holder's registered address, within 30 days after the Company
would have been required to file such documents with the Commission, copies of
the annual audited financial statements and quarterly unaudited financial
statements, along in each case with a discussion and analysis thereof, all in
the form the Company would have been required to file with the Commission if
the Company had continued to be subject to such Section 13 or 15(d). The
Company shall not be obligated to file any such reports with the Commission if
the Commission does not permit such filings. The Company shall also be
required to deliver, together with each annual and quarterly financial
statements delivered pursuant to this paragraph, a calculation of the Fixed
Charge Coverage Ratio as of the end of the period to which such financial
statements relate. The Company also shall comply with the other provisions of
TIA Section 314(a).
SECTION 3.11. Limitation on Transactions with Affiliates.
The Company shall not, and shall not permit any Project Company to,
directly or indirectly, enter into, permit to exist, renew or extend any
transaction or series of related transactions (including, without limitation,
the sale, purchase, exchange or lease of any assets or property or the
rendering of any services) with any Affiliate of the Company (other than a
Project Company) unless (i) the terms of such transaction or series of related
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transactions are (A) no less favorable to the Company or such Project Company,
as the case may be, than would be obtainable in a comparable transaction or
series of related transactions in arm's-length dealings with an unrelated third
party and (B) set forth in writing, if such transaction or series of related
transactions involve aggregate payments or consideration in excess of
$1,000,000, and (ii) with respect to a transaction or series of related
transactions involving the sale, purchase, lease or exchange of property or
assets having a value in excess of $5,000,000, such transaction or series of
transactions has been approved by a majority of the disinterested members of
the Board of Directors or, if there are no disinterested members of the Board
of Directors, the Board of Directors shall have received a written opinion of a
internationally recognized investment banking firm stating that such
transaction or series of transactions is fair to the Company or such Project
Company from a financial point of view.
The foregoing provisions do not prohibit:
(i) the payment of reasonable fees to directors of the Company
and the Project Companies who are not employees of the Company or a Project
Company;
(ii) any transaction between the Company and a Wholly Owned
Subsidiary or between Wholly Owned Subsidiaries not otherwise prohibited by
the terms of this Indenture;
(iii) the payment of any Restricted Payment which is expressly
permitted to be paid pursuant to Section 3.03(b);
(iv) any issuance of securities or other reasonable payments,
awards or grants, in cash or otherwise, pursuant to, or the funding of,
employment arrangements approved by the Board of Directors;
(v) the grant of stock options or similar rights to employees
and directors of the Company pursuant to plans approved by the Board of
Directors;
(vi) loans or advances to employees in the ordinary course of
business;
(vii) any repurchase, redemption or other retirement of Equity
Interests of the Company held by employees of the Company or any of the
Project Companies upon death, disability or termination of employment at a
price not in excess of the fair market value thereof approved by the Board
of Directors or other governing body of such Project Company;
(viii) the extension, renewal, entry into or payment pursuant to
any
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services agreement with AES that provides for the payment by the Company to
AES of fees on terms that are not more advantageous to AES than as provided
under the Services Agreement as in effect on the Issue Date; and
(ix) any agreement to do any of the foregoing.
Any transaction which has been determined, in the written opinion of an
independent internationally recognized investment banking firm, to be fair,
from a financial point of view, to the Company or the applicable Project
Company, shall be deemed to be in compliance with this section.
SECTION 3.12. Limitation on Sales of Assets and Refinancings.
(a) The Company shall not, and shall not permit any Project Company
to, consummate any Asset Sale other than to the Company or a Wholly Owned
Subsidiary unless (i) the Company or such Project Company, as the case may be,
receives consideration at the time of such Asset Sale at least equal to the
fair market value, as determined in good faith by the Board of Directors, as
evidenced by a Board Resolution, of the shares or assets disposed of pursuant
to such Asset Sale, (ii) at least 75% of the consideration thereof received by
the Company or such Project Company is in the form of cash or cash equivalents
which are promptly converted into cash by the Person receiving such payment and
(iii) an amount equal to 100% of the Net Available Cash is applied by the
Company (or such Project Company, as the case may be) as set forth herein.
(b) To the extent that the fair market value (as determined in good
faith by the Board of Directors, as evidence by a Board Resolution) of any
asset, property or Capital Stock disposed of in any Asset Sale (other than an
Asset Sale of the assets, property or Capital Stock of any Existing Subsidiary
or Existing Joint Venture), together with the fair market value of all other
assets, property, or Capital Stock sold, transferred or otherwise disposed of
in such Asset Sales received during the twelve month period preceding the date
of such Asset Sale, exceeds 5% of Consolidated Net Tangible Assets, then within
three hundred sixty-five (365) days (such period being the "Application
Period") following the consummation of an Asset Sale, the Company or such
Project Company shall apply the Net Available Cash from such Asset Sale as
follows: (i) to the extent the Company or such Project Company elects, to
reinvest in Additional Assets (including by means of an investment in
Additional Assets by a Project Company with Net Available Cash received by the
Company or another Project Company or by means of an exchange of assets that
achieves a similar effect); (ii) to the extent of the balance of such Net
Available Cash after application in accordance with clause (i) and to the
extent the Company or such Project Company elects (or is required by the terms
of any Indebtedness or any Indebtedness of such Project Company), to prepay,
repay or purchase Indebtedness of the Company (other than Notes or Subordinated
Indebtedness) or
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Indebtedness of any Project Company (other than Non-Recourse Debt, Indebtedness
owed to the Company or an Affiliate of the Company or Preferred Stock);
provided, that in connection with any prepayment, repayment or purchase of
Indebtedness pursuant to clause (ii) above, the Company or such Project Company
shall retire such Indebtedness and cause the related loan commitment (if any)
to be permanently reduced in an amount equal to the principal amount so
prepaid, repaid or purchased; or (iii) to the extent of the balance of the Net
Available Cash after application in accordance with the preceding clauses (i)
and (ii) (the "Excess Proceeds"), the Company shall, within 30 days after the
end of the Application Period, except as provided below, make an offer to
purchase the Notes (an "Excess Proceeds Offer") at a purchase price of not less
than 100% of the principal amount (excluding any premium) plus accrued and
unpaid interest pursuant to and subject to the conditions set forth in this
Indenture. To the extent that any Net Available Cash from any Asset Sale
remains after an Excess Proceeds Offer, the Company or such Project Company may
utilize such remaining Net Available Cash in any manner not otherwise
prohibited by this Indenture.
In the event of the transfer of substantially all (but not all) of the
property and assets of the Company as an entirety to a Person in a transaction
permitted under Article 4, the Successor Corporation shall be deemed to have
sold the properties and assets of the Company not so transferred for purposes
of this Section 3.12; and shall comply with the provisions of this Section 3.12
with respect to such deemed sale as if it were an Asset Sale.
(c) The Company shall not be required to make an Excess Proceeds Offer
if the amount of Excess Proceeds is less than $5,000,000 for any particular
Asset Sale (which lesser amounts shall not be carried forward for purposes of
determining whether an Excess Proceeds Offer is required with respect to the
Net Available Cash from any subsequent Asset Sale).
(d) (1) The Company shall, within 30 days after the occurrence of any
Special Proceeds Event, cause all Special Proceeds with respect to such Special
Proceeds Event to be deposited into the Special Proceeds Account held by the
Collateral Agent and the Company shall, to the extent of the amounts on deposit
in the Special Proceeds Account, except as provided below, make an offer to
purchase the Notes (a "Special Proceeds Offer," and together with an Excess
Proceeds Offer, an "Offer"), at a purchase price of not less than 101% of the
principal amount (excluding any premium) plus accrued and unpaid interest
pursuant to and subject to the conditions set forth in this Indenture. To the
extent that any Special Proceeds remain after a Special Proceeds Offer, the
Collateral Agent shall retain such amounts on deposit in the Special Proceeds
Account in the form of cash or Dollar Permitted Investments. Under this
Indenture, the Company shall not be required to make a Special Proceeds Offer
unless the amount held by the Collateral Agent in the Special Proceeds Account
is greater than $5,000,000.
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(2) The Company will make an Offer by mailing by first class mail to
each Holder, with a copy to the Trustee, within 30 days after the end of the
relevant Application Period or Special Proceeds Event, a written notice stating
that the Holder may elect to have his Notes purchased by the Company either in
whole or in part (subject to proration as hereinafter described in the event
the Offer is oversubscribed) in integral multiples of $1,000 of principal
amount, at the applicable purchase price. The notice shall specify a purchase
date not less than 30 days, nor more than 60 days, after the date of such
notice (the "Purchase Date") and shall contain the information required in a
notice for a Change of Control Offer, to the extent applicable.
(3) Not later than the date upon which written notice of an Offer is
delivered to the Trustee as provided above, the Company shall deliver to the
Trustee an Officers' Certificate as to (i) the amount of the Offer (the "Offer
Amount") and (ii) (A) in the case of an Excess Proceeds Offer, the allocation
pursuant to which such Offer is being made and the compliance of such
allocation with the provisions of Section 3.12(a) or (B) in the case of a
Special Proceeds Offer, the calculation of Special Proceeds arising from such
Special Proceeds Event. On such date, the Company shall also deposit with the
Collateral Agent, in the case of a Special Proceeds offer or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust), in the case of an Excess Proceeds Offer funds in an amount equal to
the Offer Amount to be held for payment in accordance with the provisions of
this section and the Security Agreement. Upon the expiration of the period for
which the Offer remains open (the "Offer Period"), the Company shall deliver,
or cause to be delivered, to the Trustee the Notes or portions thereof which
have been properly tendered to and are to be accepted by the Company. The
Collateral Agent or the Paying Agent, as the case may be, shall promptly, and
in any event within one (1) Business Day following the Purchase Date, mail or
deliver payment to each tendering Holder in the amount of the purchase price.
In the event that the aggregate purchase price of the Notes delivered, or
caused to be delivered, by the Company to the Trustee is less than the Offer
Amount, the Collateral Agent or the Paying Agent, as the case may be, shall
deliver the excess to the Company immediately after the expiration of the Offer
Period and the delivery to the Trustee of the Notes or portions thereof that
have been properly tendered to and are to be accepted for payment by the
Company.
(4) Holders electing to have a Note purchased will be required to
surrender the Note, with the form entitled "Option of Holder to Elect Purchase"
on the reverse of the Note duly completed, to the Company or the Paying Agent,
as specified in, and at the address specified in, the notice at least ten (10)
Business Days prior to the Purchase Date. Holders will be entitled to withdraw
their election if the Trustee or the Paying Agent receives, not later than
three Business Days prior to the Purchase Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount
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of the Note which was delivered for purchase by the Holder and a statement that
such Holder is withdrawing his election to have such Note purchased. If at the
expiration of the Offer Period the aggregate principal amount of Notes
surrendered by Holders exceeds the Offer Amount, the Company shall elect the
Notes to be purchased on a pro rata basis (with such adjustments as may be
deemed appropriate by the Company so that only Notes in denominations of
$1,000, or integral multiples thereof, shall be purchased) and shall notify the
Trustee of its selection in a writing signed by two Authorized Officers.
Holders whose Notes are purchased only in part will be issued new Notes equal
in principal amount to the unpurchased portion of the Notes surrendered.
(e) At the time the Company delivers Notes to the Trustee which are to
be accepted for purchase, the Company will also deliver an Officers'
Certificate stating that such Notes are to be accepted by the Company pursuant
to and in accordance with the terms of this section. A Note shall be deemed to
have been accepted for purchase at the time the Collateral Agent or the Paying
Agent, as the case may be, directly or through an agent, mails or delivers
payment therefor to the surrendering Holder.
(f) The Company shall comply to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and other securities laws or
regulations in connection with the repurchase of Notes pursuant to this
section. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this section, the Company shall comply
with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations under this section by virtue thereof. If the
Company is prohibited by applicable law from making the Offer or purchasing
Notes thereunder, the Company need not make an Offer pursuant to this section
for so long as such prohibition is in effect.
SECTION 3.13. Maintenance of Certain Cash Proceeds.
At any time (x) prior to the later to occur of (i) the commencement of
commercial operation of each of the Existing Joint Ventures and Existing
Subsidiaries and (ii) January 1, 2000 or (y) at which the Fixed Charge Coverage
Ratio is less than 2.0:1.0, the Company shall maintain (on an unconsolidated
basis) cash and Permitted Investments of the type referred to in clauses (vi)
and (vii) of the definition thereof (exclusive of any amounts held in the Debt
Service Reserve Account or the Special Proceeds Account) in an amount equal to
or greater than the Existing Project Company Net Cash Flow for the period from
the Restricted Date to the date of determination. For purposes hereof, the
"Restricted Date" means December 1, 1996 or, if the Fixed Charge Coverage Ratio
shall at any time have been equal to or greater than 2.0:1.0, then the most
recent date on which the Fixed Charge Coverage Ratio shall have decreased to
below 2.0:1.0.
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SECTION 3.14. Payment of Stamp Duty and Other Taxes.
The Company will pay any present or future stamp, court or documentary
taxes, or any other excise or property taxes, charges or similar levies which
arise under the laws of Bermuda from the execution, delivery or registration of
the Notes or any other document or instrument referred to herein.
SECTION 3.15. Payment of Taxes and Other Claims.
The Company shall pay or discharge, or cause to be paid or discharged,
before any material penalty accrues thereon all material taxes, assessments and
governmental charges levied or imposed upon the Company or any Restricted
Subsidiary or upon the income, profits or property of the Company or any
Restricted Subsidiary; provided, however, that the Company shall not be
required to pay or discharge, or cause to be paid or discharged, any such tax,
assessment, charge or claim the amount, applicability or validity of which is
being contested in good faith by appropriate proceedings and for which adequate
reserves, if the same shall be required in accordance with GAAP, have been
made.
SECTION 3.16. Notice of Defaults and Other Events.
In the event that any Indebtedness of the Company or any Project Company
having an outstanding principal amount in excess of $5,000,000 (or its foreign
currency equivalent) individually or in the aggregate has been or could be
declared due and payable before its maturity because of the occurrence of any
event of default under such Indebtedness (including any Default under this
Indenture), the Company, promptly after it becomes aware thereof, will give
written notice thereof to the Trustee.
SECTION 3.17. Maintenance of Insurance.
The Company shall cause each Project Company to maintain insurance policies
covering such risks, in such amounts and with such terms as are normally
carried by similarly situated foreign invested companies engaged in the Line of
Business in the country in which such Project Company is located.
SECTION 3.18. Limitation on Issuance of Subsidiary Capital Stock.
The Company shall not permit any Restricted Subsidiary, directly or
indirectly, to issue or sell any shares of such Restricted Subsidiary's Capital
Stock (including options, warrants or other rights to purchase shares of
Capital Stock) except, to the extent not otherwise prohibited by this
Indenture, (i) to the Company or another Restricted Subsidiary that is a Wholly
Owned Subsidiary of the Company, or (ii) if the Net Cash
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Proceeds from such issuance or sale are applied, to the extent required to be
applied, pursuant to Section 3.12.
SECTION 3.19. Limitation on Changes in the Nature of the Business.
The Company and the Project Companies shall engage only in the Line of
Business as well as any other activities reasonably related to the Line of
Business.
SECTION 3.20. Limitation on Certain Subsidiary Investments.
The Company will not permit any Project Company with an interest in a
Facility to make any Investment in or merge with any other Person with an
interest in another Facility or in an Unrelated Business. Notwithstanding the
foregoing, subject to any applicable restrictions imposed by Section 3.03 the
Company may permit one or more of its Subsidiaries (each, an "Intermediate
Holding Company") to serve as a holding company for the Company's direct and
indirect interests in Facilities and Unrelated Businesses; provided that: (i)
each such Intermediate Holding Company's direct and indirect interest in any
Facility or Unrelated Business shall be limited to the ownership of Capital
Stock or Indebtedness of a Person with a direct or indirect interest in such
Facility or Unrelated Business; (ii) no consensual encumbrance or restriction
of any kind shall exist on the ability of any Intermediate Holding Company to
make the payments, distributions, loans, advances or transfers referred to in
clauses (i) through (iii) of the first paragraph of Section 3.05; (iii) no
Intermediate Holding Company shall incur, assume, create or suffer to exist any
Indebtedness other than Indebtedness to the Company; and (iv) no Lien shall
exist upon any assets of such Intermediate Holding Company whether now or
hereafter acquired, except for Liens upon the Capital Stock of a Subsidiary of
an Intermediate Holding Company securing Indebtedness of such Subsidiary.
SECTION 3.21. Government Approvals.
The Company shall, and shall cause each Project Company to, at all times
(i) obtain and maintain in full force and effect all government authorizations,
approvals and consents relating to any Project Company or Facility and (ii)
preserve and maintain good and valid title to its properties and assets
(subject to Section 3.07 hereof), except in any such case where any failure to
comply with clause (i) or (ii) would not reasonably be expected to have a
material adverse effect on the business or results of operations of the Company
and its Restricted Subsidiaries, taken as a whole, or the ability of the
Company to perform its obligations under this Indenture or the Notes.
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SECTION 3.22. Compliance with Laws.
The Company shall, and shall cause each Project Company to, comply with all
applicable laws, rules, regulations and orders of, and all applicable
restrictions imposed by, any governmental authority or regulatory body in
respect of the conduct of its business and the ownership of its properties,
except to the extent that any failure to comply therewith would not reasonably
be expected to have a material adverse effect on the business or results of
operations of the Company and its Restricted Subsidiaries, taken as a whole, or
the ability of the Company to perform its obligations under this Indenture or
the Notes.
SECTION 3.23. Operations and Maintenance.
The Company shall, and shall cause each Project Company to, in all material
respects operate and maintain each Facility in accordance with prudent industry
operating and maintenance practices generally accepted in the Line of Business.
ARTICLE 4
CONSOLIDATION AND MERGER
SECTION 4.01. Merger and Consolidation.
The Company shall not, in a single transaction or through a series of
related transactions, consolidate, merge or amalgamate with or into any other
corporation or sell, assign, convey, transfer or lease or otherwise dispose of
all or substantially all of its properties and assets as an entirety to any
Person or group of affiliated Persons, unless:
(i) either (A) the Company shall be the continuing Person, or
(B) the Person (if other than the Company) formed by such consolidation or
into which the Company is merged or to which the properties and assets of
the Company as an entirety are transferred (the "Successor Corporation")
shall be a corporation organized and existing under the laws of Bermuda,
the United States (or any State thereof or the District of Columbia) or
any other member country of the Organization for Economic Cooperation and
Development and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form and substance
reasonably satisfactory to the Trustee, all the obligations of the Company
under this Indenture and the Notes;
(ii) immediately before and immediately after giving effect to
such transaction on a pro forma basis (and treating any Indebtedness which
becomes an obligation of the Company (or the Successor Corporation if the
Company is not the continuing obligor under this Indenture) or any
Restricted Subsidiary as a
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result of such transaction as having been Incurred by such Person at the time
of such transaction), no Default shall have occurred and be continuing;
(iii) the Company shall have delivered or caused to be delivered, to the
Trustee: (A) an Officers' Certificate stating that such consolidation, merger
or amalgamation or such transfer complies with Article 4 hereof and that all
conditions precedent under this Indenture provided for or relating to such
transaction have been complied with; (B) an Opinion of Counsel of local counsel
of recognized standing as to the legal issues relating thereto; and (C) an
Opinion of Counsel of United States independent counsel of recognized standing
to the effect that the Holders of the Notes will not recognize income, gain or
loss for United States federal income tax purposes as a result of such
consolidation, merger or amalgamation or such transfer and will be subject to
United States federal income tax (if subject to United States federal income
tax at all either before or after such consolidation, merger or amalgamation or
such transfer) on the same amount and in the same manner and at the same time
as would have been the case if such consolidation, merger or amalgamation or
such transfer had not occurred;
(iv) the Successor Corporation shall expressly agree to indemnify each
Holder of a Note against any tax, assessment or governmental charge payable by
withholding or deduction thereafter imposed on such Holder or with respect to
the payment of principal and interest on the Notes solely as a consequence of
such consolidation, merger or amalgamation or such transfer;
(v) immediately after giving effect to such transaction on a pro forma
basis (and treating any Indebtedness which becomes an obligation of the Company
(or the Successor Corporation if the Company is not the continuing obligor
under this Indenture) or a Restricted Subsidiary in connection with or as a
result of such transaction as having been Incurred by such Person at the time
of such transaction), the Company (or the Successor Corporation if the Company
is not the continuing obligor under this Indenture) shall have Consolidated Net
Worth in an amount which is not less than the Consolidated Net Worth of the
Company immediately prior to such transaction; and
(vi) immediately after giving effect to such transaction on a pro forma
basis the Company (or the Successor Corporation if the Company is not the
continuing obligor under this Indenture) would be able to Incur at least $1.00
of additional Indebtedness pursuant to Section 3.04(a).
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SECTION 4.02. Successor Substituted.
(a) Upon any such consolidation, merger or amalgamation, or any
conveyance, transfer, or disposition of all or substantially all of the
properties or assets of the Company in accordance with Section 4.01, but not in
the case of a lease, the Successor Corporation shall succeed to and be
substituted for the Company under this Indenture and the Notes, and the Company
shall thereupon be released from all obligations hereunder and under the Notes
and the Company, as the predecessor corporation, may thereupon or at any time
thereafter be dissolved, wound up or liquidated. The Successor Corporation
thereupon may cause to be signed, and may issue either in its own name or in
the name of the Company, all or any of the Notes issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of the Successor Corporation instead of the
Company and subject to all the terms, conditions and limitations prescribed in
this Indenture, the Trustee shall authenticate and shall deliver any Notes
which the Successor Corporation thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All the Notes so issued shall in
all respects have the same legal rank and benefit under this Indenture as the
Notes theretofore or thereafter issued in accordance with the terms of this
Indenture as though all such Notes had been issued at the date of the execution
hereof.
(b) In the case of any consolidation, merger, amalgamation or
transfer described in Section 4.02(a) above, such changes in form (but not in
substance) may be made in the Notes thereafter to be issued as may be
appropriate.
ARTICLE 5
DEFAULTS AND REMEDIES
SECTION 5.01. Events of Default.
An "Event of Default" means any of the following events:
(a) default in the payment of interest on any Note when the same
becomes due and payable, and such default continues for a period of 30 days;
(b) default in the payment of the principal of any Note when the
same becomes due and payable at maturity or otherwise or a failure to redeem or
purchase Notes when required pursuant to this Indenture or the Notes;
(c) default in performance of any other covenants or agreements in
this Indenture, the Notes or the Security Agreement and the default continues
for 30 days after the date on which written notice of such default is given to
the Company by the Trustee or to the Company and the Trustee by Holders of at
least 25% in aggregate principal
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amount of the Notes then outstanding hereunder;
(d) there shall have occurred either (i) a default by the Company or
any Project Company under any instrument or instruments under which there is or
may be secured or evidenced any Indebtedness of the Company or any Project
Company (other than the Notes or any Non-Recourse Debt) having an outstanding
principal amount of $5,000,000 (or its foreign currency equivalent) or more
individually or in the aggregate that has caused the holders thereof to declare
such Indebtedness to be due and payable prior to its Stated Maturity or (ii) a
default by the Company or any Project Company in the payment when due or any
portion of the principal under any instrument or instruments under which there
is or may be secured or evidenced any Indebtedness of the Company or any
Project Company (other than the Notes or any Non- Recourse Debt), and such
unpaid portion exceeds $5,000,000 (or its foreign currency equivalent)
individually or in the aggregate and is not paid, or such default is not cured
or waived, within any grace period applicable thereto, unless such Indebtedness
is discharged within 20 days of the Company or a Project Company becoming aware
of such default; provided, however, that the foregoing shall not apply to any
default on Non-Recourse Indebtedness;
(e) any final judgment or order (not covered by insurance) for the
payment of money shall be rendered against the Company or any Project Company
in an amount in excess of $5,000,000 (or its foreign currency equivalent)
individually or in the aggregate for all such final judgments or orders against
all such Persons (treating any deductibles, self-insurance or retention as not
so covered) and shall not be discharged, and there shall be any period of 60
consecutive days following entry of the final judgment or order in excess of
$5,000,000 (or its foreign currency equivalent) individually or in the
aggregate during which a stay of enforcement of such final judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect;
(f) (i) other than in accordance with the provisions of this
Indenture or the Security Agreement, for any reason, other than the
satisfaction in full and discharge of the obligations secured thereby, the
Collateral Agent shall cease to have a first priority security interest in the
Collateral or (ii) other than in accordance with the provisions of this
Indenture, the Company asserts in writing that the Security Agreement has
ceased to be or is not in full force and effect;
(g) the Company or any Restricted Subsidiary pursuant to any
Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief
against it in an involuntary case,
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(iii) consents to the appointment or taking possession
by a Bankruptcy Custodian of the Company or such Restricted
Subsidiary or for any substantial part of the property of any of
them.
(iv) make a general assignment for the benefit of its
creditors, or
(v) admits in writing its inability to generally pay
its debts as such debts become due; or takes any comparable action
under any foreign laws relating to insolvency; and
(h) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law, that:
(i) is for relief against the Company or any
Restricted Subsidiary in an involuntary case,
(ii) appoints a Bankruptcy Custodian of any of the
Company or any Restricted Subsidiary or for all or substantially
all of its property, or
(iii) orders the winding up or liquidation of the
Company or any Restricted Subsidiary;
or any similar relief is granted under any similar laws of another
jurisdiction; and the order or decree remains unstayed and in effect for 60
days.
Any notice of Default given by the Trustee or Noteholders under
this section must specify the Default, demand that it be remedied and state
that the notice is a "Notice of Default."
The Company shall file annually with the Trustee a certificate
describing any Default by the Company in the performance of any conditions or
covenants that has occurred under this Indenture and its status. The Company
shall deliver to the Trustee, within 30 days after the occurrence thereof,
written notice of any event which with the giving of notice or the lapse of
time or both would become an Event of Default under clause (c), (d), (e) or (h)
hereof.
Subject to the provisions of Section 6.01 and 6.02, the Trustee
shall not be charged with knowledge of any Event of Default unless written
notice thereof shall have been given to the Trustee by the Company, the Paying
Agent, any Holder or an agent of any Holder.
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SECTION 5.02. Acceleration.
If an Event of Default (other than an Event of Default specified in clauses
(g) and (h) of Section 5.01 with respect to the Company or any Restricted
Subsidiary) occurs and is continuing, the Trustee by notice to the Company, or
the Holders of at least 25% in principal amount of the Notes by notice to the
Company and the Trustee, may declare the principal of and any accrued and
unpaid interest on all the Notes to be due and payable. Upon such declaration
the principal and interest shall be due and payable immediately. If an Event
of Default specified in clause (g) or (h) of Section 5.01 with respect to the
Company or any Restricted Subsidiary occurs, the principal of and interest on
all the 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
Noteholders. The Holders of a majority in principal amount of the Notes by
notice to the Trustee may rescind any such declaration and its consequences if
the rescission would not conflict with any judgment or decree and if all
existing Events of Default have been cured or waived, except nonpayment of
principal or interest that has become due solely because of such declaration.
No such rescission shall affect any subsequent or other Default or Event of
Default or impair any consequent right.
SECTION 5.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any
available remedy to collect the payment of principal or interest on the Notes
or to enforce the performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Noteholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
SECTION 5.04. Waiver of Past Defaults.
The Holders of a majority in principal amount of the Notes by notice to the
Trustee may waive an existing Default and its consequences except (a) a Default
in the payment of the principal of or interest on any Note or (b) a Default in
respect of a provision that under Section 8.02 cannot be amended without the
consent of each Noteholder affected. When a Default is waived, it is deemed
cured, but no such waiver shall extend to any subsequent or other Default or
Event of Default or impair any consequent right.
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SECTION 5.05. Control by Majority.
The Holders of a majority in principal amount of the Notes 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 it. However, the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture, or, subject to Section 6.01, that the Trustee determines is unduly
prejudicial to the rights of other Noteholders, or would involve the Trustee in
personal liability; provided, however, that the Trustee may take any other
action deemed proper by the Trustee that is not inconsistent with such
direction. Prior to taking any action hereunder, the Trustee shall be
entitled, subject to the duty of the Trustee during a Default to act with the
required standard of care, to indemnification reasonably satisfactory to it
against all risk, losses and expenses caused by taking or not taking such
action. Subject to Section 6.01, the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture at the
request or direction of the Noteholders pursuant to this Indenture, unless such
Noteholders shall have provided to the Trustee security or indemnity reasonably
satisfactory to it against the costs, expenses and liabilities which might be
incurred in compliance with such request or direction.
SECTION 5.06. Limitation on Suits.
A Noteholder may pursue a remedy with respect to this Indenture or the
Notes only if:
(a) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(b) the Holders of at least 25% in principal amount of the Notes make
a written request to the Trustee to pursue the remedy;
(c) such Holder or Holders offer to the Trustee security reasonably
satisfactory to it or indemnity against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of security or indemnity; and
(e) the Holders of a majority in principal amount of the Notes do not
give the Trustee a direction inconsistent with the request during such 60-day
period.
A Noteholder may not use this Indenture to prejudice the rights of another
Noteholder or to obtain a preference or priority over another Noteholder.
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SECTION 5.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of principal and interest on the Note, on
or after the respective due dates expressed in the Note, 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 the Holder, except to the
extent that the institution or prosecution of any such suit or the entry of
judgment therein would result in the surrender, impairment, waiver or loss of
the Lien on the Collateral.
SECTION 5.08. Collection Suit by Trustee.
If an Event of Default specified in Section 5.01(a) or (b) 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 of principal and
interest remaining unpaid (together with interest on such unpaid interest to
the extent lawful) and the amounts provided for in Section 6.07.
SECTION 5.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents and
take such other actions including participating as a member or otherwise in any
committees of creditors appointed in the matter as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the amounts provided in Section 6.07) and the Noteholders allowed in any
judicial proceedings relative to the Company, its creditors or its property
and, unless prohibited by law or applicable regulations, may vote on behalf of
the Holders in any election of a trustee in bankruptcy or other Person
performing similar functions, and any custodian in any such judicial proceeding
is hereby authorized by each Holder to make 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 it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and its counsel, and any other amounts due the Trustee under Section 6.07. To
the extent that the payment of any such amount due to the Trustee under Section
6.07 out of the estate in any such proceeding shall be denied for any reason,
payment of the same shall be secured by a Lien on, and shall be paid out of,
any and all distributions, dividends, money, securities and other properties
which the Holders of the Notes may be entitled to receive in such proceeding
whether in liquidation or under any plan of reorganization or arrangement or
otherwise.
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SECTION 5.10. Priorities.
If the Trustee collects any money pursuant to this Article, it shall pay
out the money in the following order:
First: to the Trustee for amounts due under Section 6.07;
Second: to Noteholders for amounts due and unpaid on the Notes for
principal and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal and
interest, respectively; and
Third: to the Company.
The Trustee may fix a record date and payment date for any payment to
Noteholders pursuant to this section. At least 15 days before such record
date, the Company shall give written notice to each Noteholder and the Trustee
of the record date, the payment date and amount to be paid.
SECTION 5.11. 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, a court in its discretion may require the filing by any party litigant
in the suit of an undertaking to pay the costs of the suit, and the court in
its discretion may assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in the suit, having due regard to the merits
and good faith of the claims or defenses made by the party litigant. This
section does not apply to a suit by the Trustee, a suit by a Holder pursuant to
Section 5.07, or a suit by Holders of more than 10% in principal amount of the
Notes.
SECTION 5.12. Waiver of Stay or Extension Laws.
The Company shall not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company hereby
expressly waives all benefit or advantage of any such law, and shall not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but shall suffer and permit the execution of every such power as
though no such law has been enacted.
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ARTICLE 6
TRUSTEE
SECTION 6.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent Person would exercise or use under the circumstances in the conduct of
his own affairs.
(b) Except during the continuance of an Event of Default:
(i) The Trustee need perform only those duties that
are specifically set forth in this Indenture and no others and no
implied covenants or obligations shall be read into this Indenture
against the Trustee.
(ii) In the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture. However, the Trustee shall
examine the certificates and opinions to determine whether or not
they conform to the requirement of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) This paragraph does not limit the effect of
paragraph (b) of this section.
(ii) The Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is
proved that the Trustee was negligent in ascertaining the
pertinent facts.
(iii) The Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance
with a direction received by it pursuant to Section 5.02, 5.04 or
5.05.
(iv) 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 risk,
loss, liability or expense.
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(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this section.
(e) The Trustee, in its capacity as Trustee and Registrar and Paying
Agent, shall not be liable to the Company, the Noteholders or any other Person
for interest on any money received by it, including, but not limited to, money
with respect to principal of or interest on the Notes, except as the Trustee
may agree with the Company.
(f) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
SECTION 6.02. Rights of Trustee.
(a) The Trustee may rely on any document reasonably believed by it
to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(i) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate, an Opinion of Counsel or both. The
Trustee shall not be liable for any action it takes or omits to take in
good faith in reliance on any such Officers' Certificate or Opinion of
Counsel.
(ii) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with
due care.
(iii) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within
its rights or powers provided, however, that the Trustee's conduct does not
constitute wilful misconduct, negligence or bad faith.
(iv) The Trustee may consult with counsel, and the advice or
opinion of such counsel as to matters of law shall be full and complete
authorization and protection from liability in respect of any action taken,
omitted or suffered by it hereunder in good faith and in accordance with
the advice of such counsel.
(v) The Trustee shall not be obligated to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture or any other paper or document.
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SECTION 6.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Notes and may otherwise deal with the Company or an Affiliate with
the same rights it would have if it were not Trustee. Any Agent may do the
same with like rights. However, the Trustee is subject to Sections 6.10 and
6.11.
SECTION 6.04. Trustees Disclaimer.
The Trustee shall not be responsible for and makes no representation as to
the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes, it shall not
be responsible for any statement in the Notes other than its authentication.
The Trustee shall have no duty to ascertain or inquire as to the performance of
the Company's covenants in Article 3 hereof.
SECTION 6.05. Notice of Defaults.
If a Default or an Event of Default occurs and is continuing and if it is
known to a Trust Officer of the Trustee, the Trustee shall mail to Noteholders
a notice of the Default or Event of Default within 90 days after a Trust
Officer of the Trustee has actual knowledge of the occurrence thereof. Except
in the case of a Default in any payment on any Note, the Trustee may withhold
the notice if and so long as a committee of its Trust Officers in good faith
determines that withholding the notice is in the interests of Noteholders.
SECTION 6.06. Reports by Trustee to Holders.
Within 60 days after the reporting date stated in Section 11.09, the
Trustee shall mail to Noteholders a brief report dated as of such date that
complies with TIA Section 313(a) if required by that Section. The Trustee
also shall comply with TIA Section 313(b)(2).
A copy of each report at the time of its mailing to Noteholders shall be
filed with the Commission and each stock exchange on which the Notes are
listed. The Company shall promptly notify the Trustee when the Notes are
listed on any stock exchange and of any delisting thereof.
SECTION 6.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services. The Trustee's compensation shall not be limited
by any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee
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upon request for all reasonable out-of-pocket disbursements, expenses and
advances incurred by it. Such expenses shall include the reasonable
compensation and out-of-pocket disbursements and expenses of the Trustee's
agents and counsel.
The Company shall indemnify the Trustee and its officers, directors,
employees and agents for, and hold it and them harmless against, any claim,
loss, liability or expense, including, but not limited to, reasonable
attorneys' fees, disbursements and expenses, incurred by it or them arising out
of or in connection with the administration of this trust and the performance
of its or their duties hereunder including the costs and expenses of defending
itself or themselves against any claim or liability in connection with the
exercise or performance of any of its or their powers or duties hereunder or
under the Security Agreement. The Trustee shall notify the Company promptly of
any claim for which it may seek indemnity. Failure by the Trustee to so notify
the Company shall not relieve the Company of its obligations hereunder. The
Company shall defend the claim and the Trustee shall cooperate in the defense.
The Trustee may have separate counsel and the Company shall pay the reasonable
fees and expenses of such counsel. The Company need not pay for any settlement
made without its consent, which consent shall not be unreasonably withheld.
The Company need not reimburse any expense or indemnify against any loss or
liability incurred by the Trustee as a result of the negligence or willful
misconduct of the Trustee.
To secure the Company's payment obligations in this section, the Trustee
shall have a Lien prior to the Notes on all money or property held or collected
by the Trustee, except that held in trust to pay principal and interest on
particular Notes.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 5.01(g) or (h) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The Company's obligations under this Section 6.07 with respect to any Lien
arising hereunder shall survive the resignation or removal of the Trustee, the
discharge of such obligations pursuant to Article 7 of this Indenture and the
termination of this Indenture.
SECTION 6.08. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this section.
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The Trustee may resign at any time by so notifying the Company. The
Holders of a majority in principal amount of the Notes may, by written notice
to the Trustee, remove the Trustee by so notifying the Trustee and the Company.
The Company, by notice to the Trustee, shall remove the Trustee if:
(a) the Trustee fails to comply with Section 6.10;
(b) the Trustee is adjudged a bankrupt or an insolvent;
(c) a receiver or public officer takes charge of the trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office,
the Holders of a majority in principal amount of the Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of at least 10% in principal amount of the Notes may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 6.10 any Noteholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and the Company. Thereupon the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to
Noteholders. The retiring Trustee shall promptly transfer all property held by
it as Trustee to the successor Trustee, subject to the Lien provided for in
Section 6.07.
SECTION 6.09. Successor Trustee by Merger, Etc.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation,
the successor corporation without any further act shall be the successor
Trustee.
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SECTION 6.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1). The Trustee shall always have a
combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA
Section 310(b). Nothing herein shall prevent the Trustee from filing with the
Commission the application referred to in the second-to-last paragraph of TIA
Section 310(b).
SECTION 6.11. Preferential Collections of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), except with respect
to any creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed is subject to TIA Section 311(a) to the extent
indicated.
ARTICLE 7
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 7.01. Discharge of Liability on Notes; Defeasance.
If (a) the Company delivers to the Trustee all outstanding Notes (other
than Notes replaced pursuant to Section 2.07) for cancellation or (b) all
outstanding Notes have become due and payable and the Company irrevocably
deposits with the Trustee as trust funds solely for the benefit of the Holders
for that purpose funds sufficient to pay at maturity the principal of and all
accrued interest on all outstanding Notes (other than Notes replaced pursuant
to Section 2.07), and if, in either case, the Company pays all other sums
payable hereunder by the Company, then, subject to Sections 7.06, this
Indenture shall cease to be of further effect. The Trustee shall acknowledge
satisfaction and discharge of this Indenture on demand of the Company
accompanied by an Officers' Certificate and an Opinion of Counsel and at the
cost and expense of the Company.
SECTION 7.02. Defeasance and Discharge of Indenture.
The Company will be deemed to have paid and will be discharged from any
and all obligations in respect of the Notes on the 123rd day after the date of
the deposit referred to in clause (i) hereof, and the provisions of this
Indenture will no longer be in effect with respect to the Notes, in each case
subject to the penultimate paragraph of this Section 7.03, and the Trustee, at
the reasonable request of and at the expense of the Company, shall execute
proper instruments acknowledging the same, except as to (a) rights of
registration of transfer and exchange, (b) substitution of apparently
mutilated, defaced, destroyed, lost or stolen Notes, (c) rights of Holders to
receive payments of principal thereof and interest thereon, (d) the Company's
obligations under Section 3.02,
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(e) the rights, obligations and immunities of the Trustee hereunder including,
without limitation, those arising under Section 6.07 hereof, (f) the rights of
the Holders as beneficiaries of this Indenture with respect to the property so
deposited with the Trustee payable to all or any of them and (g) the rights,
obligations and immunities which survive as provided in the penultimate
paragraph of this Section 7.02; provided that the following conditions shall
have been satisfied:
(i) with reference to this Section 7.02, the Company has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee (or another trustee satisfying the requirement of Section 6.10)
or Paying Agent (other than the Company or a Subsidiary or Affiliate of
the Company) and conveyed all right, title and interest for the benefit
of the Holders, under the terms of an irrevocable trust agreement in
form and substance satisfactory to the Trustee as trust funds in trust,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders, in and to, (A) money in an amount, (B) U.S.
Government Obligations that, through the payment of interest and
principal in respect thereof in accordance with their terms, will
provide, not later than one Business Day before the due date of any
payment referred to in this clause (i), money in an amount or (C) a
combination thereof in an amount 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 any reinvestment of interest and
after payment of all federal, state and local taxes or other fees,
charges and assessments in respect thereof payable by the Trustee or
Paying Agent, the principal of and interest on the outstanding Notes
when due; provided that the Trustee or Paying Agent shall have been
irrevocably instructed to apply such money or the proceeds of such U.S.
Government Obligations to the payment of such principal and interest
with respect to the Notes;
(ii) such deposit shall not result in or constitute a
Default or 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 it is bound;
(iii) no Default shall have occurred and be continuing on
the date of such deposit or during the period ending on the 123rd day
after such date of deposit;
(iv) the Company shall have delivered to the Trustee (A)
either (1) a ruling directed to the Trustee received from the Internal
Revenue Service to the effect that the Holders will not recognize
income, gain or loss for federal income tax purposes as a result of the
Company's exercise of its option under this Section 7.02 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 option had
not
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been exercised or (2) an Opinion of Counsel from recognized tax counsel
licensed to practice law in the United States (who may not be an
employee of the Company) to the same effect as the ruling described in
clause (1), which must refer to and be based upon a ruling to that
effect published by the Internal Revenue Service, unless there has been
a change in the applicable federal income tax law since the date of
this Indenture such that a ruling from the Internal Revenue Service is
no longer required and (B) an Opinion of Counsel to the effect that (1)
the creation of the defeasance trust does not violate the Investment
Company Act of 1940, and (2) the Holders of the Notes have a valid
security interest in the trust funds subject to no prior Liens under
the New York Uniform Commercial Code;
(v) the Company shall have delivered to the Trustee an
Opinion of Counsel licensed to practice law in Bermuda to the effect
that under the laws of Bermuda, the Holders of the Notes (other than
Bermuda Persons) will not recognize gain for Bermuda tax purposes and
payments from the defeasance trust to any such Holder will not be
subject to withholding payments under the laws of Bermuda; and
(vi) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, in each case stating
that all conditions precedent provided for herein relating to the
defeasance contemplated by this Section 7.02 have been complied with.
Notwithstanding the foregoing clause (i), prior to the end of the 123
day period referred to in clause (iv)(B)(2) above, none of the Company's
obligations under this Indenture shall be discharged. Subsequent to the end of
such 123-day period with respect to this Section 7.02, the Company's
obligations in Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.12, 3.01, 3.02,
3.06, 6.07, 7.04, 7.05 and 7.06 shall survive until the Notes are no longer
outstanding. Thereafter, only the Company's obligations in Sections 6.07,
7.04, 7.05 and 7.06 shall survive. If and when a ruling from the Internal
Revenue Service or Opinion of Counsel referred to in clause (iv)(A) above is
able to be provided specifically without regard to, and not in reliance upon,
the continuance of the Company's obligations under Section 3.01, then the
Company's obligations under such Section 3.01 shall cease upon delivery to the
Trustee of such ruling or Opinion of Counsel and compliance with the other
conditions precedent provided for herein relating to the defeasance
contemplated by this Section 7.02.
After any such irrevocable deposit and the fulfillment of the other
requirements of this Section 7.02, the Trustee upon request shall acknowledge
in writing the discharge of the Company's obligations under the Notes and this
Indenture except for those surviving obligation in the immediately preceding
paragraph.
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SECTION 7.03. Defeasance of Certain Obligations.
The Company may omit to comply with any term, provision or condition
set forth in clauses (v) and (vi) of Section 4.01 and Section 3.03 through
3.23, and clause (c) of Section 5.01 with respect to clauses (v) and (vi) of
Section 4.01 and Sections 3.03 through 3.23, and clauses (d), (e) and (f) of
Section 5.01 shall be deemed not to be Events of Default, in each case with
respect to the outstanding Notes if:
(i) with reference to this Section 7.03, the Company has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee (or another trustee satisfying the requirements of Section
6.10) or Paying Agent (other than the Company or a Subsidiary or
Affiliate of the Company) and conveyed all right, title and interest
for the benefit of the Holders, under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee as trust
funds in trust, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders, in and to, (A) money in an
amount, (B) U.S. Government Obligations that, through the payment of
interest and principal in respect thereof in accordance with their
terms, will provide, not later than one Business Day before the due
date of any payment referred to in this clause (i), money in an amount
or (C) a combination thereof in an amount, 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 any reinvestment of
interest and after payment of all federal, state and local taxes or
other fees, charges and assessments in respect thereof payable by the
Trustee or Paying Agent, the principal of and interest on the
outstanding Notes when due; provided that the Trustee or Paying Agent
shall have been irrevocably instructed to apply such money or the
proceeds of such U.S. Government Obligations to the payment of such
principal and interest with respect to the Notes;
(ii) such deposit will not result in or constitute a
Default or 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 it is bound;
(iii) no Default shall have occurred and be continuing on
the date of such deposit;
(iv) the Company has delivered to the Trustee (A) an
Opinion of Counsel from recognized tax counsel licensed to practice law
in the United States (who may not be an employee of the Company) to
the effect that the Holders will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit and defeasance
of certain obligations and will be subject to federal income
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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 (B) an Opinion of Counsel to the effect that (1) the
creation of the defeasance trust does not violate the Investment
Company Act of 1940, and (2) the Holders of the Notes have a valid
security interest in the trust funds subject to no prior Liens under
the New York Uniform Commercial Code;
(v) the Company shall have delivered to the Trustee an
Opinion of Counsel licensed to practice law in Bermuda to the effect
that under the laws of Bermuda the Holders of the Notes (other than
Bermuda Persons) will not recognize gain for Bermuda tax purposes and
payments from the defeasance trust to any such Holder will not be
subject to withholding payments under the laws of Bermuda; and
(vi) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance
contemplated by this Section 7.03 have been complied with.
SECTION 7.04. Application of Trust Money.
Subject to Section 7.06 of this Indenture, the Trustee or Paying Agent
shall hold in trust money or U.S. Government Obligations deposited with it
pursuant to Section 7.02 or 7.03 of this Indenture, as the case may be, and
shall apply the deposited money and the money from U.S. Government Obligations
in accordance with this Indenture to the payment of principal of and interest
on the Notes. The Trustee shall be under no obligation to invest such money or
U.S. Government Obligations except as it may agree with the Company and in no
event shall the Trustee have any liability for, or in respect of, any such
investment made as agreed with the Company.
SECTION 7.05. Repayment to Company.
Subject to Sections 6.07, 7.02 and 7.03 of this Indenture, the Trustee
and the Paying Agent shall promptly pay to the Company upon written request any
excess money held by them at any time and thereupon shall be relieved from all
liability with respect to such money. The Trustee and the Paying Agent shall
pay to the Company upon written request any money held by them for the payment
of principal or interest that remains unclaimed for two years; provided,
however, that the Company shall if requested by the Trustee or the Paying
Agent, give the Trustee or such Paying Agent indemnification reasonably
satisfactory to it against any and all liability which may be incurred by it by
reason of such payment; and provided, further, that the Trustee or such Paying
Agent before being required to make any payment may cause to be published at
the request and
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expense of the Company once in a newspaper of general circulation in the City
of New York or mail to each Holder entitled to such money at such Holder's
address as set forth in the Note Register notice that such money remains
unclaimed and that after a date specified therein (which shall be at least 30
days from the date of such publication or mailing) any unclaimed balance of
such money then remaining will be repaid to the Company. After payment to the
Company, Holders entitled to such money must look to the Company for payment as
general creditors unless an applicable law designates another person, and all
liability of the Trustee and such Paying Agent with respect to such money shall
cease.
SECTION 7.06. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 7.02 or 7.03 of this
Indenture, as the case may be, by reason of any legal proceedings 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 Notes shall be revived and reinstated
as though no deposit had occurred pursuant to Section 7.02 or 7.03 of this
Indenture, as the case may be, until such time as the Trustee or Paying Agent
is permitted to apply all such money or U.S. Government Obligations in
accordance with Section 7.02 or 7.03 of this Indenture, as the case may be;
provided that, if the Company has made any payment of principal of or interest
on any Notes because of the reinstatement of its obligations, the Company shall
be subrogated to the rights of the Holders of such Notes to receive such
payment from the money or U.S. Government Obligations held by the Trustee or
Paying Agent.
ARTICLE 8
AMENDMENTS AND SUPPLEMENTS
SECTION 8.01. Without Consent of Holders.
(a) The Company and the Trustee may amend or supplement the
Indenture without notice to or the consent of any Noteholder:
(1) to cure any ambiguity, omission, defect or
inconsistency;
(2) to comply with Article 4;
(3) to provide for uncertificated Notes in addition to
certificated Notes; provided, however, that the uncertificated Notes
are issued, in registered form for purposes of Section 163(f) of the
Internal Revenue Code of 1986, as amended, or in a manner such that the
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uncertificated Notes are described in Section 163(f)(2)(b) of the
Code;
(4) to add guarantees with respect to the Notes or to
further secure the Notes;
(5) to add to the covenants of the Company for the
benefit of the Holders or to surrender any right or power herein
conferred upon the Company;
(6) to comply with the requirements of the Commission in
connection with qualification of this Indenture under the TIA;
(7) to establish and maintain the Liens of the Security
Agreement; or
(8) to make any change that does not adversely affect the
rights of any Noteholder.
(b) The Company and the Trustee may amend or supplement the Security
Agreement without notice to or the consent of any Noteholder:
(1) to cure any ambiguity, omission, defect or
inconsistency;
(2) to comply with Article 4;
(3) to add additional guarantees with respect to
the Notes or to further secure the Notes;
(4) to add to the covenants of the Company for
the benefit of the Holders or to surrender any right or power
herein conferred upon the Company;
(5) to comply with the requirements of the
Commission in connection with qualification of this Indenture
under the TIA;
(6) to establish and maintain the Liens of the
Security Agreement; or
(7) to make any change that does not adversely
affect the rights of any Noteholder.
(c) After an amendment or supplement under this Section becomes
effective,
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the Company shall mail to Noteholders a notice briefly describing such amendment
or supplement. The failure to give such notice to all Noteholders, or any
defect therein, shall not impair or affect the validity of an amendment or
supplement under this section.
SECTION 8.2. With Consent of Holders.
The Company and the Trustee may amend or supplement this Indenture, the
Notes or the Security Agreement with the written consent of the Holders of a
majority in principal amount of the Notes. However, without the consent of
each Noteholder affected, an amendment or supplement under this Section may not
(a) reduce the amount of Notes the Holders of which must consent to
an amendment or supplement;
(b) reduce the rate of or change the time for payment of interest on
any Note;
(c) change the currency or consideration of payment of the Notes;
(d) reduce the principal of or change the Stated Maturity of any
Note;
(e) reduce the premium payable upon the redemption of any Note or
change the time at which any Note may or shall be redeemed in accordance with
Article 10;
(f) amend, change or modify the obligations of the Company to make
or consummate any offer pursuant to Section 3.08 or 3.12 or modify any of the
provisions or definitions with respect thereto;
(g) permit the release or termination of all or substantially all of
the Liens of the Collateral Agent on the Collateral or deprive the Holders of
all or substantially all of the security afforded by the Liens of the Security
Agreement or this Indenture;
(h) release the Company from its obligations under this Indenture
other than pursuant to Article 4 hereof;
(i) permit the creation of any Lien (other than Liens permitted
under Section 3.07) on the Collateral or any part thereof or terminate the
Liens of the Collateral Agent on the Collateral or any part thereof or deprive
the holders of the security afforded by the Liens of the Security Agreement or
this Indenture;
(j) change the obligation of the Company to pay Additional Amounts;
and
(k) make any change in Section 5.04, Section 5.07 or this second
sentence of
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this Section 8.02.
It shall not be necessary for the consent of the Holders under this Section
8.02 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 or supplement under this Section becomes effective, the
Company shall mail to Noteholders a notice briefly describing such amendment or
supplement. The failure to give such notice to all Noteholders, or any defect
therein, shall not impair or affect the validity of an amendment or supplement
under this section.
SECTION 8.03. Supplemental Indentures.
Every amendment or supplement to this Indenture or the Notes shall be set
forth in a supplemental indenture that complies with the TIA as then in effect.
SECTION 8.04. Revocation and Effect of Consents.
Until an amendment or supplement under this Article or a waiver under
Article 6 becomes effective, a consent to it by a Holder of a Note is a
continuing consent by the Holder and every subsequent Holder of a Note or
portion of a Note that evidences the same debt as the consenting Holder's Note,
even if notation of the consent is not made on any Note. However, any such
Holder or subsequent Holder may revoke the consent as to his Note or portion of
a Note if the Trustee receives the notice of revocation before the date the
amendment, supplement or waiver becomes effective.
After an amendment or supplement becomes effective, it shall bind every
Noteholder.
SECTION 8.05. Notation on or Exchange of Notes.
If an amendment changes the terms of a Note, the Trustee may require the
Holder of the Note to deliver it to the Trustee. The Trustee may place an
appropriate notation on the Note regarding the changed terms and return it to
the Holder. Alternatively, if the Company or the Trustee so determines, the
Company in exchange for the Note shall issue and the Trustee shall authenticate
a new Note that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Note shall not affect the validity of such
amendment.
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SECTION 8.06. Trustee to Sign Amendments.
The Trustee shall sign any supplemental indenture which sets forth an
amendment or supplement authorized pursuant to this Article if the amendment or
supplement does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may but need not sign it.
In signing such supplemental indenture the Trustee shall be entitled to
receive, and (subject to Section 6.01) shall be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel stating that such
supplemental indenture is authorized or permitted by this Indenture and, with
respect to an amendment or supplement pursuant to Section 8.02, evidence of the
consents of Holders required in connection therewith.
SECTION 8.7. Fixing of Record Dates.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to take any action under this
Indenture by vote or consent. Except as provided herein, such record date
shall be the later of 30 days prior to the first solicitation of such consent
or vote or the date of the most recent list of Noteholders furnished to the
Trustee pursuant to Section 2.05 prior to such solicitation. If a record date
is fixed, those Persons who were Noteholders at such record date (or their duly
designated proxies), and only those Persons, shall be entitled to take such
action by vote or consent or to revoke any vote or consent previously given,
whether or not such Persons continue to be Holders after such record date;
provided, however, that unless such vote or consent is obtained from the
Holders (or their duly designated proxies) of the requisite principal amount of
outstanding Notes prior to the date which is the 120th day after such record
date, any such vote or consent previously given shall automatically and without
further action by any Holder be canceled and of no further effect.
ARTICLE 9
SECURITY AGREEMENT
SECTION 9.01. Security Agreement. (a) In order to secure the obligations
of the Company under this Indenture, the Company, the Collateral Agent and the
Trustee have entered into the Security Agreement to create the Liens of the
Security Agreement and for related matters.
(b) The Company covenants and agrees that it has full right, power
and lawful authority to grant, bargain, sell, release, convey, hypothecate,
assign, mortgage, pledge and transfer the Collateral, in the manner and form
done, or intended to be done, in this Indenture and the Security Agreement.
The Company further covenants and agrees that the Security Agreement and the
actions taken hereunder and thereunder create, or will create, a perfected
first priority Lien on the Collateral which they purport to create, prior
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to all other Liens.
(c) As among the Holders, the Collateral as now or hereafter
constituted shall be held for the equal and ratable benefit of the Holders
without preference, priority or distinction of any thereof over any other by
reason of difference in time of issuance, sale or otherwise, as security for
the Company's obligations under this Indenture and the Notes.
SECTION 9.02. Holders' Consent. (a) Each Holder, by its acceptance of a
Note, (i) consents and agrees to the terms of the Security Agreement and
authorizes and approves the Trustee's execution thereof, and (ii) agrees that
such Holder is bound by the terms thereof and that such Holder may not take any
action contrary thereto.
SECTION 9.03. Trust Indenture Act of 1939 Requirements. (a) The release of
any Collateral from the terms of the Security Sharing Agreement or the release
of, in whole or in part, the Liens created by the Security Sharing Agreement,
will not be deemed to impair the Liens of the Security Sharing Agreement in
contravention of the provisions hereof and of the Security Agreement if and to
the extent the Collateral or Liens are released pursuant to the terms of the
Security Agreement. Each of the Holders acknowledges that a release of
Collateral or Liens strictly in accordance with the terms of the Security
Agreement will not be deemed for any purpose to be an impairment of the Liens
in contravention of the terms of this Indenture or the Security Agreement.
SECTION 9.04. Release upon Termination of the Company's Obligations.
(a) In the event that the Company delivers an Officers' Certificate
certifying that the Company has complied with Sections 7.01 and, if applicable,
Section 7.02 with respect to the Notes, or that all obligations under this
Indenture have been satisfied and discharged in accordance with this Indenture,
the Trustee shall deliver to the Company and the Collateral Agent on behalf of
the Holders, a notice disclaiming, relinquishing and releasing (without
recourse or warranty) any and all rights it has in respect of the Collateral
and any other instruments or documents evidencing or effecting such release in
such form as the Company may reasonably request.
(b) Any release of any portion of the Collateral made strictly in
compliance with the provisions of this Section 9.04 shall not be deemed to
impair the Liens created by the Security Agreement in contravention of the
provisions of this Indenture.
(c) Release of Collateral. To the extent applicable, the Company
shall comply with clause Section 314(d) of the TIA relating to the release of
property from the Lien of the Security Agreement.
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SECTION 9.05. Retirement of Notes. The Trustee shall direct the Collateral
Agent to release such amounts held in the Special Proceeds Account and the
Trustee shall apply such amounts from time to time to the payment (including
any premium) of the principal on the Notes, at maturity or to the purchase
thereof pursuant to a Special Proceeds Offer together with accrued interest, if
any, required to be paid in connection with any such purchase or payment at
maturity as the Company shall request, upon receipt by the Trustee of the
following:
(a) a Board Resolution directing the application pursuant to this
Section 9.05 of a specific amount of the Collateral and, in any case any such
moneys are to be applied to payment, designating the Notes so to be paid and
prescribing the method of purchase, the price or prices to be paid and the
maximum principal (including any premium) amount of Notes of such Series to be
purchased and any other provisions of this Indenture governing such purchase;
(b) an Officers' Certificate dated not more than five days prior to
the date of the relevant application, stating that all conditions precedent and
covenants herein and in the Security Agreement provided for relating to such
application of the Collateral have been complied with; and
(c) an Opinion of Counsel stating that the documents and the amounts
in such coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts, in
immediately available funds, if any, which have been or are therewith delivered
to and deposited with the Collateral Agent or the Trustee, as the case may be,
for the purposes of payment of the principal (including any premium) and
interest on the Notes at maturity or to purchase thereof pursuant to a Special
Proceeds Offer conform to the requirements of this Indenture and the Security
Agreement and that all conditions precedent herein and in the Security
Agreement provided for relating to such application of Collateral have been
complied with.
Upon compliance with the foregoing provisions of this Section 9.05, the
Trustee shall apply funds released from the Collateral Accounts as directed and
specified by such Board Resolution up to, but not exceeding, the principal
amount (including any premium) of the Notes so paid or purchased together with
accrued interest, if any, required to be paid in connection with any such
purchase or payment at maturity.
A Board Resolution expressed to be irrevocable directing the application of
funds from the Collateral Accounts under this Section 9.05 to the payment of
the principal (including any premium), and accrued interest if any, shall, for
all purposes of this Indenture, be deemed the equivalent of the deposit of
money with the Trustee in trust for such purpose. Such funds from the
Collateral Accounts shall not, after compliance with the foregoing provisions
of this Section 9.05, be deemed to be part of the Collateral.
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ARTICLE 10
REDEMPTION
SECTION 10.01. Notice to Trustee.
If the Company elects to redeem Notes pursuant to paragraph 7 or 8 of the
Notes, it shall notify the Trustee of the redemption date and the principal
amount (not including any premium in respect thereof) of Notes to be redeemed
and the paragraph of the Notes pursuant to which the redemption will occur.
The Company shall give the notices provided for in this Section at least
[40] days before the redemption date (unless a shorter period shall be
satisfactory to the Trustee). Such notice shall be accompanied by an Officers'
Certificate to the effect that such redemption will comply with the conditions
herein. If fewer than all the Notes are to be redeemed, the record date
relating to such redemption shall be selected by the Company and given to the
Trustee, which record date shall be not less than 15 days after the date of
notice to the Trustee.
SECTION 10.02. Selection of Notes to Be Redeemed.
If fewer than all the Notes are to be redeemed, the Trustee shall select
the Notes to be redeemed on a pro rata basis or by lot or by any other method
that complies with applicable legal and securities exchange requirements, if
any, and that the Trustee consider fair and appropriate and in accordance with
methods generally used at the time of selection by fiduciaries in similar
circumstances, provided, however, that no Note of $1,000 in original principal
amount or less shall be redeemed in part. The Trustee shall make the selection
not more than 45 days before the redemption date from outstanding Notes not
previously called for redemption. The Trustee may select for redemption
portions of the principal of Notes that have denominations larger than $1,000.
Notes and portions of them selected by the Trustee shall be in amounts of
$1,000 or whole multiples of $1,000. Provisions of this Indenture that apply
to Notes called for redemption also apply to portions of Notes called for
redemption.
SECTION 10.03. Notice of Redemption.
At least 30 days but not more than 60 days before a redemption date, the
Company shall mail a notice of redemption to each Holder whose Notes are to be
redeemed at the address set forth for such Holder on the register referred to
in Section 2.03. Such notice, once delivered by the Company or to the Trustee,
will be irrevocable.
The notice shall identify the Notes to be redeemed and shall state:
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(a) the redemption date;
(b) the redemption price;
(c) the name and address of the Paying Agent;
(d) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(e) if fewer than all the outstanding Notes are to be redeemed, the
aggregate principal amount of the Notes to be redeemed together with the
identification and principal amounts of the particular Notes to be redeemed;
(f) that, unless the Company defaults in making the redemption
payment, interest accrued to the date fixed for redemption and any Additional
Amounts will be paid as specified in the notice and that interest on Notes
called for redemption ceases to accrue on and after the redemption date; and
(g) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on the Notes.
At the Company's written request, made at least 45 days before a
redemption date, unless a shorter period shall be satisfactory to the Trustee,
the Trustee shall give the notice of redemption provided for in this section in
the Company's name and at its expense.
SECTION 10.04. Effect of Notice of Redemption.
Once notice of redemption is mailed, Notes called for redemption become due
and payable on the redemption date at the redemption price. Upon surrender to
the Paying Agent, such Notes shall be paid at the redemption price stated in
the notice, plus accrued and unpaid interest to the redemption date.
SECTION 10.05. Deposit of Redemption Price.
Prior to 11:00 a.m., eastern standard time, the redemption date, the
Company shall deposit with the Paying Agent (or, if the Company or a Subsidiary
of the Company is the Paying Agent, shall segregate and hold in trust) money
sufficient to pay the redemption price of and accrued and unpaid interest on
all Notes to be redeemed on that date other than Notes or portions of Notes
called for redemption which have been delivered by the Company to the Trustee
for cancellation.
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SECTION 10.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Company shall
execute and the Trustee shall authenticate for the Holder (at the Company's
expense) a new Note equal in principal amount to the unredeemed portion of the
Note surrendered.
SECTION 10.07. Optional Redemption for Changes in Withholding Taxes.
The Notes may be redeemed, in whole but not in part, at the option of the
Company, at any time, upon giving of notice as provided in Section 10.03 at a
redemption price equal to 100% of the principal amount at maturity thereof,
together with accrued and unpaid interest to the date fixed by the Company for
redemption, if the Company determines and certifies to the Trustee in an
Officers' Certificate immediately prior to the giving of such notice that, as a
result of any change in, or amendment to, the laws or treaties (including any
regulations or rulings promulgated thereunder) of Bermuda or such other
jurisdiction in which the Company is then organized, as the case may be (or any
political subdivision or taxing authority thereof or therein), affecting
taxation, or any change in official position regarding the application,
interpretation or administration of such laws, treaties, regulations or rulings
(including a holding, judgment or order by a court of competent jurisdiction),
which change, amendment, application, interpretation or administration is
announced or becomes effective on or after the date hereof with respect to any
payment due or to become due under the Notes or this Indenture, the Company is,
or on the next interest payment date would be, required to pay Additional
Amounts on or in respect thereof and such obligation to pay Additional Amounts
cannot be avoided by the taking of reasonable measures by the Company; provided
that no such notice of redemption shall be given earlier than 90 days prior to
the earliest date on which the Company would be obligated to make such
withholding if a payment in respect of the Notes were then due.
Prior to the publication and mailing of any notice of redemption of the
Notes pursuant to Section 10.03, the Company will deliver to the Trustee an
Opinion of Counsel or written advice of a qualified tax expert, such counsel or
tax expert being reasonably acceptable to the Trustee, that the Company has or
will become obligated to pay Additional Amounts as a result of such change,
amendment, application, interpretation or administration.
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ARTICLE 11
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by any of TIA Section 310 to 317, inclusive, through operation
of TIA Section 318(c), such imposed duties shall control.
SECTION 11.02. Notices.
Any notice or communication shall be in writing and delivered in person, or
mailed by first-class mail (certified, return receipt requested), addressed as
follows:
if to the Company:
AES China Generating Co., Ltd.
3/f(w) Golden Bridge Plaza
No. 1(A) Xxxxxxxxxxxxx Xxxxxx
Xxxxxxx, 00000, Xxxxxx'x Xxxxxxxx of China
Attention: Chief Financial Officer
if to the Trustee:
Bankers Trust Company
Four Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust and Agency Group / Debt Administration
The Company or the Trustee by notice to the others may designate additional
or different addresses for subsequent notices or communications. Any notice to
the Trustee under this Indenture shall be deemed given only when received by
the Trustee at the address specified in this Section 11.02.
Any notice or communication to a Noteholder shall be mailed by first-class
mail to the Noteholder's address shown on the register kept by the Registrar.
Failure to mail a notice or communication to a Noteholder or any defect in it
shall not affect its sufficiency with respect to other Noteholders.
If a notice or communication is mailed in the manner provided above within
the time prescribed, it is duly given, whether or not the addressee receives
it.
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If the Company mails a notice or communication to Noteholders, it shall
mail a copy to the Trustee and each Agent at the same time.
SECTION 11.03. Communication by Holders with Other Holders.
Noteholders may communicate pursuant to TIA Section 312(b) with other
Noteholders with respect to their rights under this Indenture or the Notes.
The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA Section 312(c).
SECTION 11.04. 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, if requested by the Trustee,
furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the signers, all
conditions precedent (including any covenants compliance with which constitutes
a condition precedent), if any, provided for in this Indenture relating to the
proposed action have been complied with; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such counsel (which
may rely upon an Officers' Certificate as to factual matters), all such
conditions precedent have been complied with.
SECTION 11.05. Statements Required in Certificate or Opinion.
Each Officers' Certificate or Opinion of Counsel with respect to compliance
with a condition or covenant provided for in this Indenture other than
certificates provided pursuant to Section 3.09 shall include:
(a) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has
made such examination or investigation as is necessary to enable him or her to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether or not, in the opinion of such Person,
such
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condition or covenant has been complied with.
SECTION 11.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or a meeting of
Noteholders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 11.07. Successors; No Recourse Against Others.
(a) All agreements of the Company in this Indenture and the Notes
shall bind its successor. All agreements of the Trustee in this Indenture
shall bind its successor.
(b) All liability of the Company described in the Notes insofar as it
relates to any director, officer, employee or stockholder, as such, of the
Company is waived and released by each Noteholder.
SECTION 11.08. Duplicate Originals.
The parties may sign any number of copies of this Indenture. One signed
copy is enough to prove this Indenture.
SECTION 11.09. Other Provisions.
The first certificate pursuant to Section 3.09 shall be for the fiscal
year ending in 1996. The reporting date for Section 6.06 is [__________] of
each year. The first reporting date is [____________], 1997.
SECTION 11.10. Governing Law.
The laws of the State of New York govern this Indenture and the Notes,
without regard to the conflicts of laws rules thereof.
SECTION 11.11. Consent to Jurisdiction.
The Company irrevocably submits to the jurisdiction of the United States
District Court for the Southern District of New York, any court in the State of
New York located in the city and county of New York, and any appellate court
from any thereof, in any action, suit or proceeding brought against it and
related to or in connection with the Notes or this Indenture or for recognition
or enforcement of any judgment and the Company
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irrevocably and unconditionally agrees that all claims in respect of any such
suit or action or proceeding may be heard or determined in such New York State
court or, to the extent permitted by law, in such federal court. The Company
agrees that a final judgment in any such action, suit or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. To the extent permitted by applicable
law, the Company hereby waives and agrees not to assert by way of motion, as a
defense or otherwise in any such suit, action or proceeding, any claim that it
is not personally subject to the jurisdiction of such courts, that the suit,
action or proceeding is brought in an inconvenient forum, that the venue of the
suit, action or proceeding is improper or that the Notes or this Indenture or
the subject matter hereof or thereof may not be litigated in or by such courts.
The Company hereby irrevocably appoints and designates The Xxxxxxxx-Xxxx
Corporation System, Inc., as its true and lawful attorney and duly authorized
agent for acceptance of service of legal process. The Company agrees that
service of such process upon The Xxxxxxxx-Xxxx Corporation System, Inc. at 000
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, shall constitute personal service
of such process upon the Company. Nothing contained in this Agreement shall
limit or affect the rights of any party hereto to serve process in any other
manner permitted by law or (other than the Company) to initiate legal
proceedings against the Company or its property in the courts of any
jurisdiction.
SECTION 11.12. Judgment Currency.
If for the purpose of obtaining judgement in any court it is necessary to
convert a sum due hereunder to the Holder of a Note in U.S. dollars into
another currency (the "judgment currency"), the parties hereto agree, to the
fullest extent that they may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures such Holder
could purchase U.S. dollars with the judgment currency in New York City two
Business Days preceding the day on which final judgment is given. The
obligation of the Company in respect of any sum payable by it to the Holder of
a Note hereunder shall, notwithstanding any judgment in a judgment currency
other than U.S. dollars, be discharged only to the extent that on the Business
Day following receipt by such Holder of any sum adjudged to be so due in the
judgment currency, such Holder may in accordance with normal banking procedures
purchase U.S. dollars with the judgment currency; if the amount of the U.S.
dollars so purchased is less than the sum originally due upon the Note, the
Company agrees, as a separate obligation and notwithstanding any such judgment,
to indemnify such Holder against such loss, and if the amount of the U.S.
dollars so purchase exceeds the sum originally due to such Holder, such Holder
agrees to remit to the Company such excess, provided that such Holder shall
have no obligation to remit any such excess as long as the Company shall have
failed to pay such Holder any obligations due and payable under this Indenture
or such Note, in which case such excess may be applied to such obligations of
the Company hereunder in accordance with the terms of this Indenture or such
Note.
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SECTION 11.13. Effect of Headings.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 11.14. Waiver of Immunity.
To the extent that the Company has or hereafter may acquire any immunity
from jurisdiction of any court or from any legal process (whether through
service or notice, attachment prior to judgement, attachment in aid or
execution, or otherwise) with respect to itself or its property, such party
hereby irrevocably waives such immunity in respect of its obligations hereunder
to the extent permitted by applicable law and, without limiting the generality
of the foregoing, agrees that the waivers set forth in this paragraph shall
have effect to the fullest extent permitted under the Foreign Sovereign
Immunities Act of 1976 of the United States and are intended to be irrevocable
for purposes of such Act.
SECTION 11.15. Tax Considerations.
It is the intention of the Company that for U.S. Federal, state and local
income tax purposes: (i) neither the Noteholders nor the Trustee shall be at
any time the owner of the Collateral for U.S. Federal, state or local tax
purposes and (ii) the trust estate created hereby is intended solely to be a
security arrangement and not a trust and neither the Trustee nor the
Noteholders shall file any returns, reports or other documents or take any
position inconsistent therewith for U.S. Federal, state or local tax law
purposes.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as set forth on the first page hereof.
[SEAL] AES CHINA GENERATING CO. LTD.
By:
-----------------------------
Name:
Title:
Attest:
-----------------------------------
BANKERS TRUST COMPANY,
as Trustee
By:
-----------------------------
Name:
Title:
Attest:
-----------------------------------
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EXHIBIT A
(Form of Face of Note)
[The following two paragraphs are to be reproduced on the Global Note.]
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Company (as
defined below) or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co., or such
other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co., or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein. Unless and until it is
exchanged in whole or in part for Notes in definitive registered form, this
certificate may not be transferred except as a whole by DTC to a nominee of DTC
or by a nominee of DTC to DTC or another nominee of DTC or by DTC or any such
nominee to a successor Depositary or a nominee of such successor Depositary.
AES CHINA GENERATING CO. LTD.
[__]% Notes Due 2006
$180,000,000
No.
CUSIP No.: 000983 AA 4
AES China Generating Co. Ltd., a corporation organized under the laws of
Bermuda (the "Company"), promises to pay to Cede & Co., or registered assigns,
the principal sum of Xxx Xxxxxxx Xxxxxx Xxxxxxx Xxxxxx Xxxxxx dollars
(US$180,000,000) on [______], 2006.
Interest Payment Dates: and
Record Dates: and
Additional provisions of this Note are set forth on the reverse hereof. Such
provisions shall for all purposes have the same effect as though fully set
forth at this place.
This Note shall not be valid or obligatory until the certificate of
authentication hereon shall have been duly signed by the Trustee acting under
the Indenture.
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IN WITNESS WHEREOF, the Company has caused this Note to be signed manually
or by facsimile by its duly authorized officers under its corporate seal.
Date: December __, 1996
AES CHINA GENERATING CO. LTD.
By: _________________________
(SEAL) Name:
Title:
By: _________________________
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION:
BANKERS TRUST COMPANY, as Trustee,
certifies that this is one
of the Notes
referred to in the Indenture.
By: _________________________
Authorized Signature
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(Form of Reverse of Note)
AES CHINA GENERATING CO. LTD.
[__]% Notes Due 2006
(1) Indenture. The Note is one of a duly authorized issue of debt
securities (the "Notes") of the Company limited to $180,000,000 in aggregate
principal amount issued under an Indenture dated as of December __, 1996 (the
"Indenture") among the Company and Bankers Trust Company, a New York banking
Corporation, as trustee (the "Trustee"). The terms of the 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 Section Section 77aaa-77bbbb)
(the "TIA"). Capitalized terms used herein but not defined are used as defined
in the Indenture. The Notes are subject to all such terms, and Noteholders are
referred to the Indenture and the TIA for a statement of such terms.
(2) Ranking. The Notes rank at least pari passu in right of payment with
all existing and future unsecured Indebtedness of the Company.
(3) Security Agreement. As provided in the Security Agreement, the
Company's obligations under the Indenture and the Notes are secured by a first
priority security interest in all amounts on deposit in the Collateral Accounts
granted in favor of Bankers Trust Company, as collateral agent (the "Collateral
Agent"), for the benefit of the Trustee on behalf of the Noteholders. The
rights of the Trustee in and to the Collateral are governed by the terms of the
Security Agreement.
(4) Interest. The Company promises to pay interest on the principal
amount of this Note at the rate per annum shown above. The Company will pay
interest semiannually on ______ and ______ of each year to Holders of record on
______ and ______ of each year, respectively. Interest on the Notes will
accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from ______ ___, 1996. Interest will be computed on
the basis of a 360-day year consisting of twelve 30-day months.
(5) Method of Payment. The Company will pay interest on the Notes (except
defaulted interest) to the persons who are registered Holders of Notes at the
close of business on the record date next preceding the interest payment date
even though Notes are canceled after the record date and on or before the
interest payment date. Holders must surrender 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. However, the Company may pay
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principal and interest by check payable in such money. It may mail an interest
check to a Holder's registered address.
(6) Paying Agent, Registrar. Initially, Bankers Trust Company, a New York
banking corporation, will act as Paying Agent and Registrar. The Company may
change any Paying Agent or Registrar without notice. The Company may act as
Paying Agent or Registrar.
(7) Optional Redemption. Except as set forth in the following paragraph,
the Company may not redeem the Notes prior to [_____], 2001. On and after such
date, the Company may redeem the Notes at any time, in whole, or from time to
time in part, at the following redemption prices (expressed in percentages of
principal amount), plus accrued interest to the redemption date, if redeemed
during the 12-month period beginning [_____]:
Year Redemption Price
2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [___]%
2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [___]%
2003, and thereafter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100.00%
(8) Optional Redemption for Changes in Withholding Taxes. The Notes may
be redeemed, in whole but not in part, at the option of the Company, at any
time, at a redemption price equal to 100% of the principal amount at maturity
thereof, together with accrued and unpaid interest to the date fixed by the
Company for redemption, if as a result of any change in, or amendment to, the
laws or treaties (including any regulations or rulings promulgated thereunder)
of Bermuda or such other jurisdiction in which the Company is then organized,
as the case may be (or any political subdivision or taxing authority thereof or
therein), affecting taxation, or any change in official position regarding the
application, interpretation or administration of such laws, treaties,
regulations or rulings (including a holding, judgment or order by a court of
competent jurisdiction), which change, amendment, application, interpretation
or administration is announced or becomes effective on or after the Date hereof
with respect to any payment due or to become due under the Notes or the
Indenture, the Company is, or on the next interest payment date would be,
required to pay Additional Amounts on or in respect thereof.
(9) Additional Amounts. All payments of principal and interest in respect
of each Note shall be made free and clear of, and without withholding or
deduction for, any taxes, duties, assessments or governmental charges of
whatever nature imposed, levied, collected, withheld or assessed by or within
Bermuda or any other jurisdiction in which the Company is organized or any
authority therein or thereof having power to tax or from
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which any payment is made with respect to the Notes, unless such withholding or
deduction is required by law or by regulation or governmental policy having the
force of law. In the event that any such withholding or deduction in respect
of principal or interest is so required, the Company shall pay such additional
amounts ("Additional Amounts") as will result in receipt by each Holder of any
Note of such amounts as would have been received by such Holder or the
beneficial owner with respect to such Note had no such withholding or deduction
been required, except for certain limited circumstances as set forth in Section
3.06 of the Indenture.
(10) Notice of Redemption. Notice of redemption will be mailed at least 30
days but not more than 60 days before the redemption date to each Holder of
Notes to be redeemed at the address set forth for such Holder on the register
referred to in Section 2.03 of the Indenture. Unless the Company shall default
in payment of the redemption price plus accrued interest, on and after the
redemption date interest ceases to accrue on such Notes or portions of them
called for redemption. Notes in denominations larger than $1,000 may be
redeemed in part but only in whole multiples of $1,000.
(11) Denominations; Transfer; Exchange. The Notes are in registered form
without coupons in denominations of $1,000 and whole multiples of $1,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay any taxes
and fees required by law or permitted by the Indenture. The Registrar need not
exchange or register the transfer of any Note or portion of a Note selected for
redemption (except, in the case of a Note to be redeemed in part, the portion
thereof not to be redeemed) or for a period of 15 days before a selection of
Notes to be redeemed or 15 days before an interest payment date.
(12) Change of Control Offer. The Indenture provides that in the event of
a Change of Control Triggering Event (as defined therein), the Company shall
make an offer to purchase the Notes then outstanding at a purchase price of not
less that 101% of the principal amount thereof (excluding any premium) plus
accrued and unpaid interest on the terms set forth in the Indenture.
(13) Excess Proceeds Offer. To the extent of the balance of the Net
Available Cash (each, as defined therein) after application thereof after
certain Asset Sales in accordance with the Indenture, the Company shall make an
offer to purchase the Notes at a purchase price of not less than 100% of the
principal amount (excluding any premium) plus accrued and unpaid interest
pursuant and subject to the conditions set forth in the Indenture.
(14) Special Proceeds Offer. The Indenture provides that the Company
shall, within 30 days after the occurrence of any Special Proceeds Event (as
defined therein), cause all Special Proceeds with respect to such Special
Proceeds Event to be deposited
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into a Collateral Account with the Collateral Agent and the Company shall, to
the extent of the amounts on deposit in the Special Proceeds collateral
account, subject to certain exceptions, make an offer to purchase the Notes at
a purchase price of not less that 101% of the principal amount (excluding any
premium) plus accrued and unpaid interest pursuant and subject to the
conditions set forth in the Indenture.
(15) Defeasance. Subject to certain conditions, the obligations under the
Notes and the Indenture may be terminated, at any time, if the Company deposits
with the Trustee money and/or U.S. Government Obligations for the payment of
principal and interest on the Notes to redemption or maturity, as the case may
be.
(16) Persons Deemed Owners. The registered Holder of a Note may be treated
as its owner for all purposes, except that interest (other than defaulted
interest) will be paid to the person that was the registered Holder on the
relevant record date for such payment of interest.
(17) Amendments and Waivers. Subject to certain exceptions, (i) the
Indenture or the Notes may be amended or supplemented with the consent of the
Holders of a majority in principal amount of the Notes; and (ii) any existing
default may be waived with the consent of the Holders of a majority in
principal amount of the Notes. Without the consent of any Noteholder, the
Indenture or the Notes may be amended or supplemented to cure any ambiguity,
omission, defect or inconsistency, to provide for assumption of Company's
obligations to Noteholders, to provide for uncertificated Notes in addition to
or in place of certificated Notes (subject to certain conditions), to provide
for additional guarantees with respect to the Notes or to further secure the
Notes, to add additional covenants or surrender any of the Company's rights, to
comply with the requirements of the Commission in connection with qualification
under the TIA, to establish or maintain the Liens of the Security Agreement or
to make any change that does not adversely affect the rights of any Noteholder.
(18) Remedies. If an Event of Default occurs and is continuing, the
Trustee or Holders of at least 25% in principal amount of the Notes may declare
all the Notes to be due and payable immediately. Noteholders may not enforce
the Indenture or the Notes except as provided in the Indenture. The Trustee
may require an indemnity before it enforces the Indenture or the Notes.
Subject to certain limitations, Holders of a majority in principal amount of
the Notes may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Noteholders notice of any continuing default (except
a Default in payment of principal or interest) if it determines that
withholding notice is in their interest. The Company must furnish an annual
compliance certificate to the Trustee.
(19) No Recourse Against Others. A director, officer, employee or
stockholder, as such, of the Company shall not have any liability for any
obligations of
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the Company under the Notes or the Indenture or for any claim based thereon or,
in respect thereof. Each Noteholder by accepting a Note waives and releases
all such liability. The waiver and release are part of the consideration for
the issue of the Notes.
(20) Authentication. This Note shall not be valid until authenticated by
the manual signature of an authorized signatory of the Trustee or an
authenticating agent thereof.
(21) Abbreviations. Customary abbreviations may be used in the name of a
Noteholder 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).
Pursuant to a recommendation promulgated by the Committee on Uniform Note
Identification Procedures the Company has caused CUSIP numbers to be printed on
the Notes and has directed the Trustee to use CUSIP numbers in notices of
redemption as a convenience to Noteholders. No representation is made as to
the accuracy of such numbers either as printed on the Notes or as contained in
any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.
THE COMPANY WILL FURNISH TO ANY NOTEHOLDER UPON WRITTEN REQUEST AND WITHOUT
CHARGE A COPY OF THE INDENTURE, WHICH HAS IN IT THE TEXT OF THIS NOTE. REQUESTS
MAY BE MADE TO: AES CHINA GENERATING CO. LTD., 9/F., ALLIED CAPITAL RESOURCES
BLDG., 00-00 XXX XXXXX XXXXXX, XXXXXXX, XXXX XXXX, XXXX.: CHIEF FINANCIAL
OFFICER.
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______________________________________________________________________________________________
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________________________
________________________________________________________________________________________________
________________________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint agent to transfer this Note on the books of the
Company. The agent may substitute another to act for him.
________________________________________________________________________________________________
Date: ____________________________________ Signed: _________________________________________
(Sign exactly as your name appears on the
other side of this Note)
Signature Guarantee:____________________________________________________________________________
________________________________________________________________________________________________
________________________________________________________________________________________________
OPTION OF HOLDER TO ELECT PURCHASE FORM
If you wish to elect to have this Note purchased by the Company pursuant
to Section 3.08 or 3.12 of the Indenture, check this box: [ ]
If you wish to elect to have only part of this Note purchased by the
Company pursuant to Section 3.08 or 3.12 of the Indenture, state the amount:
$____________
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* As set forth in the Indenture, any purchase pursuant to Section 3.08 or
3.12 is subject to proration in the event the offer is oversubscribed.
Dated: _________________________________ Signed:_______________________________________________________
_______________________________________________________
(Sign exactly as your name appears on the
other side of this Note)
Signature Guarantee: ____________________________________________________________________________________________
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