Exhibit 4.1
THE AES CORPORATION
as Issuer
AND
WELLS FARGO BANK MINNESOTA, N.A.
as Trustee
TENTH SUPPLEMENTAL INDENTURE
Dated as of February 13, 2004
TO
SENIOR INDENTURE
Dated as of December 8, 1998
7.750% Senior Notes due
2014
The TENTH SUPPLEMENTAL INDENTURE, is
dated as of this 13th day of February, 2004 (the “Tenth
Supplemental Indenture”), between THE AES CORPORATION, a
corporation duly organized and existing under the laws of the State
of Delaware (hereinafter sometimes referred to as the
“Company”), and WELLS FARGO BANK MINNESOTA, N.A. as
successor trustee to BANK ONE, NATIONAL ASSOCIATION, a national
banking association, as trustee (hereinafter referred to as the
“Trustee”).
WHEREAS, the Company entered into a
Senior Indenture dated as of December 8, 1998 between the Company
and the Trustee to provide for the future issuance of its senior
debentures, notes or other evidences of indebtedness (collectively,
the “Securities”), said Securities to be issued from
time to time in series as might be determined by the Company
pursuant to the Indenture and, in an unlimited aggregate principal
amount;
WHEREAS, the Company and the Trustee
have entered into a First Supplemental Indenture, a Second
Supplemental Indenture, a Third Supplemental Indenture, a Fourth
Supplemental Indenture, a Fifth Supplemental Indenture, a Sixth
Supplemental Indenture, a Seventh Supplemental Indenture, an Eighth
Supplemental Indenture and a Ninth Supplemental Indenture providing
for the creation and issuance of various series of Securities
and/or amendments to the Indenture (the Indenture, as so amended
and supplemented by the forgoing supplemental indentures and this
Tenth Supplemental Indenture is hereinafter referred to as, the
“Indenture”);
WHEREAS, pursuant to the terms of
the Indenture, the Company desires to provide for the establishment
of a new series of its Securities to be known as its 7.750% Senior
Notes due 2014 (said series being hereinafter referred to as the
“Series H Senior Notes”), the form and substance of
such Series H Senior Notes and the terms, provisions and conditions
thereof to be set forth as provided in the Indenture and this Tenth
Supplemental Indenture;
WHEREAS, the Company desires and has
requested the Trustee to join with it in the execution and delivery
of this Tenth Supplemental Indenture, and all requirements
necessary to make this Tenth Supplemental Indenture a valid
instrument, in accordance with its terms, and to make the Series H
Senior Notes, when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company;
and
NOW, THEREFORE, in consideration of
the purchase and acceptance of the Series H Senior Notes by the
Holders thereof, and for the purpose of setting forth, as provided
in the Indenture, the form and substance of the Series H Senior
Notes and the terms, provisions and conditions thereof, the Company
covenants and agrees with the Trustee as follows:
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ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION
SECTION 1.1. TERMS
DEFINED IN THE INDENTURE.
Each capitalized term used but not
defined in this Tenth Supplemental Indenture shall have the meaning
assigned to such term in the Indenture.
SECTION 1.2. CERTAIN
DEFINITIONS.
The following definitions are hereby
added to the definitions contained in Section 1.1 of the Indenture,
but only with respect to the Series H Senior Notes issued in
accordance with the provisions hereof:
“Attributable Debt”
means the present value (discounted at the rate of 7.750% per annum
compounded monthly) of the obligations for rental payments required
to be paid during the remaining term of any lease of more than 12
months.
“Consolidated Net
Assets” means the aggregate amount of assets (less reserves
and other deductible items) after deducting current liabilities, as
shown on the consolidated balance sheet of the Company and its
Subsidiaries contained in the latest annual report to the
stockholders of the Company and prepared in accordance with
GAAP.
“DTC” shall have the
meaning provided in Section 2.1 hereof.
“Funded Debt” means
indebtedness for borrowed money having a maturity of, or by its
terms extendible or renewable for, a period of more than 12 months
after the date of the determination of the amount
thereof.
“Principal Property”
means any building, structure or other facility (together with the
land on which it is erected and fixtures comprising a part thereof)
used primarily for manufacturing, processing, research, warehousing
or distribution, owned or leased by the Company and having a net
book value in excess of 2% of Consolidated Net Assets, other than
any such building, structure or other facility or portion thereof
which is a pollution control facility financed by state or local
governmental obligations or which the principal executive officer,
president and principal financial officer of the Company determine
in good faith is not of material importance to the total business
conducted or assets owned by the Company and its Subsidiaries as an
entirety.
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ARTICLE TWO
THE SERIES H SENIOR NOTES
SECTION 2.1.
FORM.
The Series H Senior Notes shall be
substantially in the form of Exhibit A hereto, which is a part of
this Tenth Supplemental Indenture, with such appropriate
insertions, omissions, substitutions and other variations as are
required or permitted by the Indenture and this Tenth Supplemental
Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as
may be required to comply with the rules of any securities exchange
or as may, consistently herewith, be determined by the Officers of
the Company executing such Series H Senior Notes, as evidenced by
their execution of the Series H Senior Notes.
The Series H Senior Notes will
initially be issued as Registered Global Securities.
The Company initially appoints The
Depository Trust Company (“DTC”) and the Trustee to act
as Depositary and custodian, respectively, with respect to the
Series H Senior Notes.
The Company initially appoints the
Trustee to act as Paying Agent and Registrar with respect to the
Series H Senior Notes.
SECTION 2.2. DESIGNATION
AND AMOUNT.
(a)
The Series H Senior Notes shall be entitled the “7.750%
Senior Notes due 2014” of the Company.
(b)
The Trustee shall authenticate and deliver Series H Senior Notes
for original issue on the date hereof in an aggregate principal
amount of $500,000,000.
(c)
The Company may, subject to the terms of the Indenture and
applicable law, issue additional Series H Senior Notes under this
Tenth Supplemental Indenture. The Series H Senior Notes
issued on February 13, 2004 and any additional Series H Senior
Notes subsequently issued shall be treated as a single class for
all purposes of this Tenth Supplemental Indenture.
SECTION 2.3.
INTEREST.
Interest on the Series H Senior
Notes shall be payable in the amount, on the dates and in the
manner provided for in the form of the Series H Senior Note
attached hereto as Exhibit A.
SECTION 2.4.
DENOMINATIONS.
The Series H Senior Notes shall be
Registered Securities in denominations of $1,000 or any integral
multiple thereof.
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SECTION 2.5. PLACE OF
PAYMENT.
The place of payment for the Series
H Senior Notes shall be the Borough of Manhattan, The City of New
York, or Minneapolis, Minnesota. So long as the Series H
Senior Notes are in the form of Registered Global Securities, the
Company agrees that payments of interest on, and any portion of the
Principal of, the Series H Senior Notes shall be made by the Paying
Agent, upon receipt from the Company of immediately available
funds, directly to the Depositary (by Federal funds wire
transfer).
ARTICLE THREE
OPTIONAL REDEMPTION OF
THE SERIES H SENIOR NOTES
SECTION 3.1. OPTIONAL
REDEMPTION.
The Series H Senior Notes may be
redeemed at the option of the Company, as a whole or from time to
time in part, at the times and at the Redemption Price specified in
the form of the Series H Senior Note attached hereto as Exhibit
A.
ARTICLE FOUR
ADDITIONAL COVENANTS APPLICABLE
TO THE SERIES H SENIOR NOTES
SECTION 4.1.
RESTRICTIONS ON SECURED DEBT.
If the Company shall incur, issue,
assume or guarantee any indebtedness for borrowed money represented
by notes, bonds, debentures or other similar evidences of
indebtedness, secured by a mortgage, pledge or other lien on any
Principal Property or any capital stock or indebtedness held
directly by the Company of any Subsidiary of the Company, the
Company shall secure the Series H Senior Notes equally and ratably
with (or prior to) such indebtedness, so long as such indebtedness
shall be so secured, unless after giving effect thereto the
aggregate amount of all such indebtedness so secured, together with
all Attributable Debt in respect of sale and leaseback transactions
involving Principal Properties, would not exceed 15% of the
Consolidated Net Assets of the Company.
The foregoing restriction shall not
apply to, and there shall be excluded in computing secured
indebtedness for the purpose of such restriction, indebtedness
secured by (a) property of any Subsidiary of the Company, (b) liens
on property of, or on any shares of stock or debt of, any
corporation existing at the time such corporation becomes a
Subsidiary, (c) liens in favor of the Company or any Subsidiary,
(d) liens in favor of U.S. or foreign governmental bodies to secure
partial, progress, advance or other payments, (e) liens on
property, shares of stock or debt existing at the time of
acquisition thereof (including acquisition through merger or
consolidation), purchase money mortgages and construction cost
mortgages existing at or incurred within 180 days of the time of
acquisition thereof, (f) liens existing on the first date on which
any Series H Senior Note is authenticated by the Trustee, (g) liens
under one or more
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credit facilities for indebtedness in an
aggregate principal amount not to exceed $900,000,000 at any time
outstanding, (h) liens incurred in connection with pollution
control, industrial revenue or similar financings, and (i) any
extension, renewal or replacement of any debt secured by any liens
referred to in the foregoing clauses (a) through (h),
inclusive.
SECTION 4.2.
RESTRICTIONS ON SALES AND LEASEBACKS.
The Company shall not enter into any
sale and leaseback transaction involving any Principal Property,
the acquisition or completion of construction and commencement of
full operation of which has occurred more than 180 days prior
thereto, unless (a) the Company could incur a lien on such property
under the restrictions described in Section 4.1 hereof in an amount
equal to the Attributable Debt with respect to the sale and
leaseback transaction without equally and ratably securing the
Series H Senior Notes or (b) the Company, within 180 days after the
sale or transfer by the Company, applies to the retirement of its
Funded Debt an amount equal to the greater of (i) the net proceeds
of the sale of the Principal Property sold and leased pursuant to
such arrangement or (ii) the fair market value of the Principal
Property so sold and leased as determined by the board of directors
of the Company; provided that the amount to be applied to
the retirement of Funded Debt of the Company shall be reduced by
(A) the principal amount of any Series H Senior Notes delivered
within 180 days after such sale or transfer to the Trustee for
retirement and cancellation, and (B) the principal amount of Funded
Debt, other than Series H Senior Notes, voluntarily retired by the
Company within 180 days after such sale or transfer; provided
further that no retirement referred to in this clause (b) may be
effected by payment at maturity or pursuant to any mandatory
sinking fund payment or any mandatory prepayment
provision.
ARTICLE FIVE
ADDITIONAL EVENTS OF DEFAULT APPLICABLE
TO THE SERIES H SENIOR NOTE
SECTION 5.1. ADDITIONAL
EVENTS OF DEFAULT.
Pursuant to Section 6.1 (f) of the
Indenture, an “Event of Default” shall be deemed to
occur with respect to the Series H Senior Notes if an event of
default, as defined in any indenture
