\nSECTION 11.01. TRUST INDENTURE ACT CONTROLS…………………………… 68
\nSECTION 11.02. NOTICES……………………………………………… 68
\nSECTION 11.03. COMMUNICATION BY HOLDERS WITIH OTHER HOLDERS…………….. 69
\nSECTION 11.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT……….. 69
\nSECTION 11.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION……………. 69
\nSECTION 11.06. RULES BY TRUSTEE AND AGENTS……………………………. 69
\nSECTION 11.07. SUCCESSORS; NO RECOURSE AGAINST OTHERS………………….. 70
\nSECTION 11.08. DUPLICATE ORIGINALS…………………………………… 70
\nSECTION 11.09. OTHER PROVISIONS……………………………………… 70
\nSECTION 11.10. GOVERNING LAW………………………………………… 70
\nSECTION 11.11. CONSENT TO JURISDICTION……………………………….. 70
\nSECTION 11.12. JUDGMENT CURRENCY…………………………………….. 71
\nSECTION 11.13. EFFECT OF HEADINGS……………………………………. 71
\nSECTION 11.14. WAIVER OF IMMUNITY……………………………………. 71
\nSECTION 11.15. TAX CONSIDERATIONS……………………………………. 72
\n<\/c><\/c><\/s><\/caption>\n<\/table>\nEXHIBIT A – FORM OF NOTE<\/p>\n
iv<\/p>\n
INDENTURE dated as of December 19, 1996, between AES China Generating
\nCo. Ltd., a corporation established under the laws of Bermuda (the “Company”)
\nand Bankers Trust Company, a New York banking corporation, as trustee (the
\n“Trustee”).<\/p>\n
Each party agrees as follows for the benefit of the other parties and
\nfor the equal and ratable benefit of the holders of the Company’s 10 1\/8 % Notes
\nDue 2006:<\/p>\n
ARTICLE 1<\/p>\n
DEFINITIONS AND INCORPORATION BY REFERENCE<\/p>\n
SECTION 1.01. DEFINITIONS.<\/p>\n
“ACQUIRED INDEBTEDNESS” means Indebtedness of a Person existing at the
\ntime at which such Person became a Subsidiary and not incurred in connection
\nwith, or in contemplation of, such Person becoming a Subsidiary. Acquired
\nIndebtedness shall be deemed to be Incurred on the date the acquired Person
\nbecomes a Project Company.<\/p>\n
“ADDITIONAL AMOUNTS” has the meaning set forth in Section 3.06 hereof.
\nAny reference in this Indenture to principal or interest in respect of the Notes
\nshall be deemed also to refer to any Additional Amounts that may be payable as
\nset forth herein and under the Notes.<\/p>\n
“ADDITIONAL ASSETS” means (i) any property or assets related to the
\nLine of Business which will be owned and used by the Company or a Project
\nCompany, (ii) the Capital Stock of a Person that becomes a Project Company as a
\nresult of the acquisition of such Capital Stock by the Company or another
\nProject Company, or (iii) Capital Stock in any Person that at the time of
\nacquisition of such Capital Stock is a Project Company.<\/p>\n
“ADJUSTED CASH FLOW” means, for any period, the excess of (A) the
\naggregate amount (without duplication ) of (i) dividends, distributions,
\npayments of interest and scheduled repayments of loans or advances, in each
\ncase, that are received by the Company and its Wholly Owned Subsidiaries from
\nthe Project Companies during such period, (ii) 50% of the dividends,
\ndistributions, payments of interest and scheduled repayments of loans or
\nadvances, in each case, that are received by the Company and its Wholly Owned
\nSubsidiaries from any Person other than a Project Company during such period,
\n(iii) all payments received by the Company and its Wholly Owned Subsidiaries
\nduring such period from any Person with respect to agreements to provide
\ndevelopment, construction or operations management and the provision of
\nconsulting or advisory services; (iv) 50% of the combined interest income of the
\nCompany and its Wholly Owned Subsidiaries for such period from cash, cash
\nequivalents and investments in marketable securities; (v) the interest income
\n(net of interest expense) of the Company and its Wholly Owned Subsidiaries from
\nthe transactions referred to in clause (viii) of the definition of Permitted
\nInvestments over (B) the aggregate amount (without duplication) of (i) the
\ncombined selling, general and administrative expenses of the Company and its
\nWholly Owned Subsidiaries for such period determined in accordance with GAAP and
\n(ii) the Company Designated Costs for such period and (iii) the total income
\ntaxes paid by the Company and its Wholly Owned Subsidiaries during such period.<\/p>\n
“ADJUSTED INTEREST EXPENSE” means, for any period, the sum of (without
\nduplication) (a) the combined interest expense of the Company and its Wholly
\nOwned Subsidiaries for such period as determined in accordance with GAAP,
\nincluding, without limitation or duplication, (i) amortization of debt issuance
\ncosts or of original issue discount on any Indebtedness and the interest portion
\nof any deferred payment obligation, calculated in accordance with the effective
\ninterest method of accounting, (ii) accrued interest, (iii) noncash interest
\npayments, (iv) commissions, discounts and other fees and charges owed with
\nrespect to letters of credit and bankers’ acceptance financing, (v) interest
\nactually paid by the Company or any Wholly Owned Subsidiary under any guarantee
\nof Indebtedness or other obligation of any other Person and (vi) net costs
\nassociated with Interest Rate Agreements (including amortization of discounts)
\nand Currency Agreements of the Company or any Wholly Owned Subsidiary relating
\nto Indebtedness, plus (b) all but the principal component of rentals in respect
\nof Capitalized Lease Obligations paid, accrued, or scheduled to be paid or
\naccrued by the Company or any Wholly Owned Subsidiary, plus (c) capitalized
\ninterest, plus (d) dividends paid in respect of Preferred Stock of the Company
\nor any Wholly Owned Subsidiary held by Persons other than the Company or any
\nWholly Owned Subsidiary, plus (e) cash contributions to any employee stock
\nownership plan to the extent such contributions are used by such employee stock
\nownership plan to pay interest or fees to any person (other than the Company) in
\nconnection with loans Incurred by such employee stock ownership plan to purchase
\nCapital Stock of the Company, plus (f) the interest expense of any Project
\nCompany to the extent attributable to any Indebtedness of such Project Company
\nto the extent guaranteed by the Company or any Wholly Owned Subsidiary, minus
\n(g) interest expense of the Company or any Wholly Owned Subsidiary attributable
\nto Indebtedness referred to in clause (viii) of the definition of “Permitted
\nInvestments.”<\/p>\n
“AES” means The AES Corporation, a Delaware corporation, its
\nsuccessors, and any Subsidiary thereof.<\/p>\n
“AFFILIATE” of any specified Person means any other Person, directly or
\nindirectly, controlling or controlled by or under direct or indirect common
\ncontrol with such specified Person. For the purposes of this definition,
\n“control” when used with respect to any Person means the power to direct the
\nmanagement and policies of such Person, directly or indirectly, whether through
\nthe ownership of voting securities, by contract or otherwise; and the terms
\n“controlling” and “controlled” have meanings correlative to the foregoing. For
\npurposes of Section 3.11 only, “Affiliate” shall also mean any beneficial owner
\nof 5% or more of the total Voting Shares (on a fully Diluted Basis) of the
\nCompany or of rights or warrants to purchase such stock (whether or not
\ncurrently exercisable) and any Person who would be an Affiliate of any such
\nbeneficial owner pursuant to the first sentence hereof.<\/p>\n
“AGENT” means any Registrar, Paying Agent, authenticating agent,
\nco-registrar or additional paying agent.<\/p>\n
“ASSET SALE” means any sale, transfer or other disposition (including
\nby way of merger, consolidation or sale leaseback transactions, but excluding
\n(except as provided for in the provisions described in the last paragraph of
\nSection 3.12(b)) those permitted by Article 4 hereof and those permitted by
\nSection 3.03 hereof) in one or a series of transactions by the Company or any
\nProject Company to any Person other than the Company or any Wholly Owned
\nSubsidiary, of (i) all or any of the Capital Stock of the Project Company, (ii)
\nall or substantially all of the assets of any operating unit, Facility or
\ndivision of the Company or any Project Company or (iii) any other property or
\nassets or rights to acquire property or assets of the Company or any Project
\nCompany outside of the ordinary course of business of the Company or such
\nProject Company.<\/p>\n
“ATTRIBUTABLE COSTS” means, for any period, the Company Designated
\nCosts for such period to the extent that such amount does not exceed an amount
\ncalculated for such period at a rate equal to $10 million per annum (which shall
\nincrease by 5% for each fiscal year beginning on or after December 1, 1997).<\/p>\n
“AUTHORIZED OFFICERS” means with respect to the Company, the President,
\nthe Chief Financial Officer and any vice president.<\/p>\n
“AVERAGE LIFE” means, as of the date of determination, with respect to
\nany Indebtedness or Preferred Stock, the quotient obtained by dividing (i) the
\nsum of the products of (A) the numbers of years from the date of determination
\nto the dates of each successive scheduled principal payment of such Indebtedness
\nor scheduled redemption or similar payment with respect to such Indebtedness or
\nPreferred Stock multiplied by (B) the amount of such payment by (ii) the sum of
\nall such payments.<\/p>\n
“BANKRUPTCY CUSTODIAN” means any receiver, trustee, assignee,
\nliquidator, custodian or similar official under any Bankruptcy Law.<\/p>\n
“BANKRUPTCY LAW” means Title 11, United States Code, or any similar
\nfederal or state law or laws of Bermuda for the relief of debtors or the
\nadministration, reorganization or liquidation of debtors’ estates for the
\nbenefit of their creditors.<\/p>\n
“BERMUDA” means the British colony of Bermuda.<\/p>\n
“BOARD OF DIRECTORS” means the Board of Directors of the Company or any
\nauthorized committee thereof.<\/p>\n
“BOARD RESOLUTION” means a copy of a resolution certified by a director
\nof the Company to have been duly adopted by the Board of Directors to be in full
\nforce and effect on the date of such certification, and delivered to the
\nTrustee.<\/p>\n
“BUSINESS DAY” means any day except a Saturday, Sunday or other day on
\nwhich commercial banks in The City of New York are authorized by law to close or
\nare otherwise not open for business. If any payment date hereunder or under the
\nNotes is not a Business Day, payment may be made at that place on the next
\nsucceeding day that is a Business Day, and no interest shall accrue for the
\nintervening period. If a regular record date hereunder or under the Notes is not
\na Business Day, the regular record date shall not be affected.<\/p>\n
“CAPITAL STOCK” means any and all shares, interests (including joint
\nventure interests), participations or other equivalents (however designated) of
\ncapital stock of a corporation or any and all equivalent ownership interests in
\na Person (other than a corporation).<\/p>\n
“CAPITALIZED LEASE” means, as applied to any Person, any lease of any
\nproperty (whether real, personal or mixed) of which the discounted present value
\nof the rental obligations of such Person as lessee, in conformity with GAAP, is
\nrequired to be capitalized on the balance sheet of such Person; the Stated
\nMaturity thereof shall be the date of the last payment of rent or any other
\namount due under such lease prior to the first date upon which such lease may be
\nterminated by the lessee without payment of a penalty; and “Capitalized Lease
\nObligations” means the rental obligations, as aforesaid, under such lease.<\/p>\n
“CHANGE OF CONTROL” means the occurrence of any of the following
\nevents: (i) any “person” (as such term is used in Sections 13(d) and 14(d) of
\nthe Exchange Act), other than AES or an underwriter engaged in a firm commitment
\nunderwriting on behalf of the Company, is or becomes the beneficial owner (as
\nsuch term is used in Rules 13d-3 and 13d-5 under the Exchange Act, except that
\nfor purposes of this clause (i) a person shall be deemed to have beneficial
\nownership of all shares that such person has the right to acquire, whether such
\nright is exercisable immediately or only after the passage of time), directly or
\nindirectly, of more than 35% of the total outstanding shares of Class A Common
\nStock; (ii) AES is no longer entitled to elect at least one half of the members
\nof the Board of Directors; (iii) AES ceases to be the beneficial owner (as such
\nterm is used in Rules 13d-3 and 13d-5 under the Exchange Act) of at least
\n6,000,000 Voting Shares of the Company (as adjusted from time to time for any
\nstock dividends, splits or recombinations after the Issue Date); or (iv) during
\nany period of two consecutive years, individuals who at the beginning of such
\nperiod constituted the Board of Directors (together with any new directors whose
\nelection by the Board of Directors or whose nomination for election by the
\nstockholders was approved by a vote of 66-2\/3% of the directors of the Company
\nthen still in office who were either directors at the beginning of such period
\nor whose election or nomination for election was previously so approved) cease
\nfor any reason to constitute a majority of the Board of Directors then in
\noffice.<\/p>\n
“CHANGE OF CONTROL TRIGGERING EVENT” means either (x) the occurrence of
\nboth an event specified in clause (i) or (iv) of the definition of Change of
\nControl and a Rating Decline or (y) the occurrence of an event specified in
\nclause (ii) or (iii) of the definition of Change of Control.<\/p>\n
“CLASS A COMMON STOCK” means the Class A Common Stock, par value $0.01
\nper share, of the Company.<\/p>\n
“CLASS B COMMON STOCK” means the Class B Common Stock, par value $0.01
\nper share, of the Company.<\/p>\n
“CODE” means the Internal Revenue Code of 1986, as amended.<\/p>\n
“COLLATERAL” has the meaning set forth in the Security Agreement.<\/p>\n
“COLLATERAL ACCOUNT” has the meaning set forth in the Security
\nAgreement.<\/p>\n
“COLLATERAL AGENT” means Bankers Trust Company as collateral agent, and
\nany successor thereof, under the Security Agreement.<\/p>\n
“COMMISSION” means the Securities and Exchange Commission.<\/p>\n
“COMPANY” means AES China Generating Co. Ltd., a Bermuda corporation,
\nuntil a successor replaces it pursuant to the terms and conditions of this
\nIndenture and thereafter means the successor.<\/p>\n
“COMPANY DESIGNATED COSTS” means the total costs of development,
\nconstruction or operations management and the provision of consulting or
\nadvisory services incurred by the Company and its Wholly Owned Subsidiaries (net
\nof any amounts received in reimbursement of such costs to the extent not in
\nexcess of such costs).<\/p>\n
“CONSOLIDATED CURRENT LIABILITIES,” as of the date of determination,
\nmeans the aggregate amount of liabilities of the Company and its Consolidated
\nRestricted Subsidiaries which may properly be classified as current liabilities
\n(including taxes accrued as estimated), after eliminating (i) all inter-company
\nitems between the Company and any Consolidated Subsidiary and (ii) deducting all
\ncurrent maturities of long-term Indebtedness, all as determined in accordance
\nwith GAAP.<\/p>\n
“CONSOLIDATED NET INCOME (LOSS)” means, for any period, as applied to
\nthe Company, the consolidated net income (loss) of the Company and its
\nConsolidated Restricted Subsidiaries for such period, determined in accordance
\nwith GAAP, adjusted by excluding (without duplication), to the extent included
\nin such net income (loss), the following: (i) all extraordinary gains or losses;
\n(ii) any net income of any Person (other than the Company and its Consolidated
\nRestricted Subsidiaries), except that (A) the Company’s equity in the net income
\nof any such Person for such period shall be included in Consolidated Net Income
\n(Loss) up to the aggregate amount of cash actually distributed by such Person
\nduring such period to the Company or a Restricted Subsidiary as a dividend or
\nother distribution and (B) the equity of the Company or a Restricted Subsidiary
\nin a net loss of any such Person for such period shall be included in
\ndetermining Consolidated Net Income (Loss); (iii) the net income of any
\nRestricted Subsidiary to the extent that the declaration or payment of dividends
\nor similar distributions by such Restricted Subsidiary of such income is not at
\nthe time thereof permitted, directly or indirectly, by operation of the terms of
\nits charter or bye-laws or any agreement, instrument, judgment, decree, order,
\nstatute, rule or governmental regulation applicable to such Restricted
\nSubsidiary or its stockholders; (iv) any net income (or loss) of any Person
\ncombined with the Company or any of its Restricted Subsidiaries on a “pooling of
\ninterests” basis attributable to any period prior to the date of such
\ncombination; and (v) any gain (but not loss) realized upon the sale or other
\ndisposition of any property, plant or equipment of the Company or its Restricted
\nSubsidiaries (including pursuant to any sale-and-leaseback arrangement) which is
\nnot sold or otherwise disposed of in the ordinary course of business and any
\ngain (but not loss) realized upon the sale or other disposition by the Company
\nor any Restricted Subsidiary of any Capital Stock of any Person, provided that
\nlosses shall be included on an after-tax basis; and further adjusted by
\nsubtracting from such net income the tax liability of any parent of the Company
\nto the extent of payments made to such parent by the Company pursuant to any tax
\nsharing agreement or other arrangement for such period.<\/p>\n
“CONSOLIDATED NET TANGIBLE ASSETS” means, as of any date of
\ndetermination, as applied to the Company, the total amount of assets (less
\naccumulated depreciation or amortization, allowances for doubtful receivables,
\nother applicable reserves and other properly deductible items) as set forth on
\nthe most recently available quarterly or annual consolidated balance sheet of
\nthe Company and its Consolidated Restricted Subsidiaries, determined in
\naccordance with GAAP, and after giving effect to purchase accounting and after
\ndeducting therefrom, to the extent otherwise included, the amounts of: (i)
\nConsolidated Current Liabilities; (ii) minority interests in Consolidated
\nSubsidiaries held by Persons other than the Company or a Restricted Subsidiary;
\n(iii) excess of cost over fair value of assets of businesses acquired, as
\ndetermined in good faith by the Board of Directors as evidenced by a Board
\nResolution; (iv) any revaluation or other write-up in value of assets subsequent
\nto December 31, 1995 as a result of a change in the method of valuation in
\naccordance with GAAP; (v) unamortized debt discount and expenses and other
\nunamortized deferred charges, goodwill, patents, trademarks, service marks,
\ntrade names, copyrights, licenses, organization or developmental expenses and
\nother intangible items; (vi) treasury stock; (vii) any cash set apart and held
\nin a sinking or other analogous fund established for the purpose of redemption
\nor other retirement of Capital Stock to the extent such obligation is not
\nreflected in Consolidated Current Liabilities; and (viii) any Indebtedness of
\nthe Company or a Restricted Subsidiary referred to in clause (viii) of the
\ndefinition of Permitted Investments.<\/p>\n
“CONSOLIDATED NET WORTH” means, at any date of determination, as
\napplied to the Company, stockholders’ equity as set forth on the most recently
\navailable quarterly or annual consolidated balance sheet of the Company and its
\nConsolidated Restricted Subsidiaries, less any amounts attributable to
\nRedeemable Stock or Exchangeable Stock, the cost of treasury stock and the
\nprincipal amount of any promissory notes receivable from the sale of Capital
\nStock of the Company or any Subsidiary.<\/p>\n
“CONSOLIDATION” means, with respect to any Person, the consolidation of
\naccounts of such Person and each of its subsidiaries if and to the extent the
\naccounts of such Person and such subsidiaries are consolidated in accordance
\nwith GAAP. The term “Consolidated” shall have a correlative meaning.<\/p>\n
“CURRENCY AGREEMENT” means any foreign exchange contract, currency swap
\nagreement or other similar agreement or arrangement designed to protect the
\nCompany or any Project Company against fluctuations in currency values to or
\nunder which the Company or any Project Company is a party on the Issue Date or
\nbecomes a party thereafter.<\/p>\n
“DEBT SERVICE RESERVE ACCOUNT” has the meaning set forth in the
\nSecurity Agreement.<\/p>\n
“DEFAULT” means any event which is, or, after notice or passage of time
\nor both, would be, an Event of Default.<\/p>\n
“DEFAULTED INTEREST” means any interest on any Note which is payable,
\nbut is not punctually paid or duly provided for on any Interest Payment Date.<\/p>\n
“DEPOSITARY” means The Depository Trust Company, its nominees, and
\ntheir respective successors until a successor Depositary shall have become such
\npursuant to the applicable provisions of this Indenture and thereafter
\n“Depositary” shall mean or include each Person who is then a Depositary
\nhereunder.<\/p>\n
“DESIGNATED FINANCING” means any Incurrence of Indebtedness by an
\nExisting Subsidiary or Existing Joint Venture that refinances Shareholder Loans
\nin whole or in part.<\/p>\n
“DOLLAR PERMITTED INVESTMENTS” means investments which are denominated
\nand payable in US dollars in any one or more of the following: (i)(a) direct,
\ninterest-bearing obligations of the United States in certificated form; (b)
\ndirect, interest-bearing obligations of, and guaranteed as to timely payment of
\nprincipal and interest by, the United States, but only if such obligations are
\nissued in the form of any entry made on the records of the Federal Reserve Bank
\nof New York; and (c) direct interest bearing obligations of, and interest
\nbearing obligations guaranteed as to timely payment of principal and interest
\nby, the Federal National Mortgage Association, the Government National Mortgage
\nAssociation, the Federal Home Loan Mortgage Corporation or the Student Loan
\nMarketing Association, but only if (A) at the time of investment, such
\nobligations are assigned the highest credit rating by the Rating Agency and (B)
\nsuch obligations have been deposited with The Depository Trust Company and its
\nsuccessors, or are issued in the form of an entry made on the records of the
\nFederal Reserve Bank of New York; (ii) certificates of deposit with an original
\nterm to maturity (x) of not more than 180 days or (y) with respect to the
\namounts representing the interest payment amounts due on June 15, 1997 or
\nDecember 15, 1997, not exceeding the second Business Day prior to such date,
\nissued by any U.S. depositary institution or trust company whose principal
\noffices are located in the Borough of Manhattan, City and State of New York, New
\nYork (including the Trustee acting in its individual capacity); provided that
\nthe short-term unsecured debt obligations of such depositary institution or
\ntrust company at the time of such investment are assigned a rating of “A-1” by
\nS&P and “P1” by Moody’s or the long-term unsecured debt obligations of such
\ndepositary institution or trust company at the time of such investment, are
\nassigned a rating of “A-” or higher by S&P and “A3” or higher by Moody’s; (iii)
\nrepurchase obligations pursuant to a written agreement (a) with respect to any
\nobligation described in clause (i) above, where (in each case) the Trustee has
\ntaken delivery of such obligation and (b) by a U.S. depositary institution or
\ntrust company whose principal offices are located in the Borough of Manhattan,
\nCity and State of New York, New York the short-term unsecured debt obligations
\nof which are rated “A-1” by S&P and “P-1” by Moody’s at the time of such
\ninvestment or the long-term unsecured debt obligations of which are rated “A-”
\nor higher by S&P and “A3” or higher by Moody’s (including, if applicable, the
\nTrustee acting in its individual capacity) at time of such investment; or (iv)
\ncommercial paper that (a) is assigned a rating of “A-1” by S&P and “P-1” by
\nMoody’s at the time of such investment and (b) had an original term to maturity
\nof not more than 180 days.<\/p>\n
“DOLLARS,” “$” AND “US DOLLARS” mean United States dollars.<\/p>\n
“ELIGIBLE JOINT VENTURE” means a Joint Venture (other than a
\nSubsidiary) (i) that is formed with respect to the construction, development,
\nacquisition, servicing, ownership, improvement, operation or management of a
\nsingle Facility; (ii) in which the Company, directly or indirectly, owns at
\nleast 25% of the Capital Stock therein and (iii) in respect of which the
\nCompany, directly or indirectly, either (a) controls, by voting power,
\nmembership on the board of directors or management committee or other similar
\ngoverning body, or through the provisions of any applicable partnership, joint
\nventure, shareholder or other similar agreement or under an operating,
\nmaintenance or management agreement or otherwise, the management and operation
\nof the Joint Venture and any Facility of such Joint Venture or (b) otherwise has
\nthe right to control or veto material acts and decisions with respect to the
\nmanagement or operation of the Joint Venture that, taken as a whole, are
\nsubstantially similar to the rights of the Company with respect to the Existing
\nJoint Ventures as of the Issue Date.<\/p>\n
“EQUITY INTERESTS” means Capital Stock and all warrants, options or
\nother rights to acquire Capital Stock (but excluding any debt security that is
\nconvertible into, or exchangeable for, Capital Stock).<\/p>\n
“EXCHANGEABLE STOCK” means any Capital Stock which by its terms is
\nexchangeable or convertible at the option of any Person other than the Company
\ninto another security (other than Capital Stock of the Company which is neither
\nExchangeable Stock nor Redeemable Stock).<\/p>\n
“EXCHANGE ACT” means the Securities Exchange Act of 1934, as amended.<\/p>\n
“EXISTING JOINT VENTURE” means any of Chengdu-AES-Kaihua Gas Turbine
\nPower Co. Ltd., Wuhu Shaoda Electric Power Company Ltd. and Yangchun Fuyang
\nDiesel Engine Power Co. Ltd., and their respective successors, in each case, so
\nlong as such Person is a Project Company.<\/p>\n
“EXISTING PROJECT COMPANY NET CASH FLOW” means, for any period, (A) the
\naggregate amount (without duplication) of dividends, distributions, payments of
\ninterest and scheduled repayments of loans or advances (excluding any of such
\namounts that constitute Special Proceeds), in each case, that are received by
\nthe Company and its Wholly Owned Subsidiaries from Existing Joint Ventures and
\nExisting Subsidiaries during such period less (B) the sum of (i) Attributable
\nCosts for such period, (ii) the aggregate interest expense accrued with respect
\nto the Notes after June 15, 1998 and (iii) the aggregate principal amount of
\nNotes purchased from time to time by the Company (other than pursuant to an
\nOffer or a Change of Control Offer).<\/p>\n
“EXISTING SUBSIDIARY” means any of Sichuan Fuling Aixi Power Company
\nLtd., Hunan Xiangci-AES Hydro Power Company Ltd., Anhui Liyuan AES Power Company
\nLimited, the Hefei Zhongli Energy Company Ltd., Jiaozuo Wan Fang Power Ltd.,
\nWuxi-AES-CAREC Gas Turbine Power Company Ltd. and Wuxi-AES-Zhonghang Power
\nCompany Ltd., and their respective successors, in each case, so long as such
\nPerson is a Project Company.<\/p>\n
“FACILITY” means a power or steam generation facility or energy
\nproducing facility and related assets (including without limitation electric
\npower transmission facilities or lines).<\/p>\n
“FIXED CHARGE COVERAGE RATIO” as of any date of determination means the
\nratio of (i) Adjusted Cash Flow for the period of the most recent four
\nconsecutive fiscal quarters for which financial information is available to (ii)
\nthe Adjusted Interest Expense for such period plus the Adjusted Interest Expense
\nfor such period with respect to any Indebtedness proposed to be Incurred by the
\nCompany and its Wholly Owned Subsidiaries; PROVIDED, HOWEVER, that, in making
\nsuch computation, the Adjusted Interest Expense attributable to interest on any
\nIndebtedness bearing a floating interest rate shall be computed on a pro forma
\nbasis as if the rate in effect on the date of computation had been the
\napplicable rate for the entire period; and provided further, that in the event
\n(A) of the designation of any Restricted Subsidiary or Restricted Joint Venture
\nto be an Unrestricted Company during or after such period, or (B) the Company or
\nany Wholly Owned Subsidiary has made any Asset Sales, Designated Financings or
\nacquisitions of assets not in the ordinary course of business (including
\nacquisitions of other Persons by merger, consolidation or purchase of Capital
\nStock), or has Incurred or repaid any Indebtedness (or any guarantee thereof has
\nterminated), during or after such period, or any Project Company has been
\ndesignated to be an Unrestricted Company (or redesignated as a Project Company)
\nduring or after such period, such computation shall be made on a pro forma basis
\nas if such event had taken place on the first day of such period; and provided
\nfurther that the Adjusted Cash Flow with respect to any acquisitions shall not
\nexceed the net income attributable to the acquired assets for such period.<\/p>\n
“FULLY DILUTED BASIS” means after giving effect to the exercise of any
\noutstanding options, warrants or rights to purchase Voting Shares and the
\nconversion or exchange of any securities convertible into or exchangeable for
\nVoting Shares.<\/p>\n
“GAAP” means generally accepted accounting principles in the United
\nStates of America as in effect and, to the extent optional, adopted by the
\nCompany on the Issue Date, consistently applied, including, without limitation,
\nthose set forth in the opinions and pronouncements of the Accounting Principles
\nBoard of the American Institute of Certified Public Accountants and statements
\nand pronouncements of the Financial Accounting Standards Board.<\/p>\n
“GUARANTEE” means, as applied to any obligation, contingent or
\notherwise, of any Person, (i) a guarantee, direct or indirect, in any manner, of
\nany part or all of such obligation, (other than by endorsement of negotiable
\ninstruments for collection in the ordinary course of business) and (ii) an
\nagreement, direct or indirect, contingent or otherwise, the practical effect of
\nwhich is to ensure in any way the payment or performance (or payment of damages
\nin the event of nonperformance) of any part or all of such obligation, including
\nthe payment of amounts drawn down under letters of credit.<\/p>\n
“HOLDER” OR “NOTEHOLDER” means the Person in whose name a Note is
\nregistered on the Registrar’s books.<\/p>\n
“INCUR” means, as applied to any obligation, to create, incur, issue,
\nassume, guarantee or in any other manner become liable with respect to,
\ncontingently or otherwise, such obligation, and “INCURRED,” “INCURRENCE,” and
\n“INCURRING” shall each have a correlative meaning; PROVIDED, HOWEVER, that any
\nIndebtedness or Capital Stock of a Person existing at the time such Person
\nbecomes (after the Issue Date) a Project Company (whether by merger,
\nconsolidation, acquisition or otherwise) shall be deemed to be Incurred by such
\nProject Company at the time it becomes a Project Company, and PROVIDED, FURTHER,
\nthat any amendment, modification or waiver of any provision of any document
\npursuant to which Indebtedness was previously Incurred shall not be deemed to be
\nan Incurrence of Indebtedness as long as (i) such amendment, modification or
\nwaiver does not (A) increase the principal or premium thereof or interest rate
\nthereon, (B) change to an earlier date the Stated Maturity thereof or the date
\nof any scheduled or required principal payment thereon or the time or
\ncircumstances under which such Indebtedness may or shall be redeemed, (C) if
\nsuch Indebtedness is contractually subordinated in right of payment to the
\nNotes, modify or affect, in any manner adverse to the Holders, such
\nsubordination, (D) if the Company is the obligor thereon, provide that a Project
\nCompany shall be an obligor, (E) if such Indebtedness is Non-Recourse Debt,
\ncause such Indebtedness to no longer constitute Non-Recourse Debt or (F)
\nviolate, or cause the Indebtedness to violate, the provisions of Section 3.05 or
\n3.07 and (ii) such Indebtedness would, after giving effect to such amendment,
\nmodification or waiver as if it were an Incurrence, comply with clause (i) of
\nthe first proviso to the definition of “Refinancing Indebtedness.”<\/p>\n
“INDEBTEDNESS” of any Person means, without duplication, (i) the
\nprincipal of and premium (if any such premium is then due and owing) in respect
\nof (A) indebtedness of such Person for money borrowed and (B) indebtedness
\nevidenced by notes, debentures, bonds or other similar instruments for the
\npayment of which such Person is responsible or liable; (ii) all Capitalized
\nLease Obligations of such Person; (iii) all obligations of such Person Incurred
\nas the deferred purchase price of property, all conditional sale obligations of
\nsuch Person and all obligations of such Person under any title retention
\nagreement; (iv) all obligations of such Person for the reimbursement of any
\nobligor on any letter of credit, banker’s acceptance or similar credit
\ntransaction (other than obligations with respect to letters of credit securing
\nobligations (other than obligations described in (i) through (iii) above)
\nentered into in the ordinary course of business of such Person to the extent
\nsuch letters of credit are not drawn upon or, if and to the extent drawn upon,
\nsuch drawing is reimbursed no later than the tenth Business Day following
\nreceipt by such Person of a demand for reimbursement following payment on the
\nletter of credit); (v) Redeemable Stock of such Person and, in the case of any
\nSubsidiary, any other Preferred Stock not owned by the Company or a Wholly Owned
\nSubsidiary, in either case valued at, in the case of Redeemable Stock, the
\ngreater of its voluntary or involuntary maximum fixed repurchase price exclusive
\nof accrued and unpaid dividends or, in the case of Preferred Stock that is not
\nRedeemable Stock, its liquidation preference exclusive of accrued and unpaid
\ndividends; (vi) all obligations of such Person in respect of Interest Rate
\nAgreements and Currency Agreements; (vii) all obligations of the type referred
\nto in clauses (i) through (vi) of other Persons and all dividends of other
\nPersons for the payment of which, in either case, such Person is responsible or
\nliable, directly or indirectly, as obligor, guarantor or otherwise, including by
\nmeans of any guarantee; and (viii) all obligations of the type referred to in
\nclauses (i) through (vii) of other Persons secured by any Lien on any property
\nor asset of such Person (whether or not such obligation is assumed by such
\nPerson), the amount of such obligation being deemed to be the lesser of the
\nvalue of such property or assets or the amount of the obligation so secured;
\nPROVIDED, HOWEVER, that Indebtedness shall not include trade accounts payable
\narising in the ordinary course of business. For purposes hereof, the “maximum
\nfixed repurchase price” of any Redeemable Stock which does not have a fixed
\nrepurchase price shall be calculated in accordance with the terms of such
\nRedeemable Stock as if such Redeemable Stock were purchased on any date on which
\nIndebtedness shall be required to be determined pursuant to this Indenture, and
\nif such price is based upon, or measured by, the fair market value of such
\nRedeemable Stock, such fair market value to be determined in good faith by the
\nBoard of Directors as evidenced by a Board Resolution. The amount of
\nIndebtedness of any Person at any date shall be, with respect to unconditional
\nobligations, the outstanding balance at such date of all such obligations as
\ndescribed above and, with respect to any contingent obligations at such date,
\nthe maximum liability determined by such Person’s board of directors, in good
\nfaith, as, in light of the facts and circumstances existing at the time,
\nreasonably likely to be Incurred upon the occurrence of the contingency giving
\nrise to such obligation; provided that the amount outstanding at any time of any
\nIndebtedness issued with original issue discount is the face amount of such
\nIndebtedness less the remaining unamortized portion of the original issue
\ndiscount of such Indebtedness as determined in accordance with GAAP.<\/p>\n
“INTEREST PAYMENT DATE” means the stated maturity of an installment of
\ninterest on the Notes.<\/p>\n
“INTEREST RATE AGREEMENT” means any interest rate protection agreement,
\ninterest rate future agreement, interest rate option agreement, interest rate
\nswap agreement, interest rate cap agreement, interest rate collar agreement,
\ninterest rate hedge agreement or other similar agreement or arrangement designed
\nto protect against fluctuations in interest rates to or under which the Company
\nor any Project Company is a party on the Issue Date or becomes a party
\nthereunder.<\/p>\n
“INVESTMENT” means, with respect to any Person, any direct or indirect
\nadvance, loan or other extension of credit or capital contribution to (by means
\nof any transfer of cash or other property to others or any payment for property
\nor services for the account or use of others), or any other investment in any
\nother Person, or any purchase or acquisition by such Person of any Capital
\nStock, bonds, notes, debentures or other securities or assets issued or owned by
\nany other Person (whether by merger, consolidation, amalgamation, sale of assets
\nor otherwise). For purposes of the provisions set forth in Section , (i)
\n“Investment” shall include the portion (proportionate to the Company’s Equity
\nInterest in such Project Company) of the fair market value of the net assets of
\nany Project Company at the time such Project Company is designated an
\nUnrestricted Company and shall exclude the fair market value of the net assets
\nof any Unrestricted Company at the time that such Unrestricted Company is
\ndesignated a Project Company, as the case may be, and (ii) any property
\ntransferred to or from an Unrestricted Company shall be valued at its fair
\nmarket value at the time of such transfer, in each case as determined by the
\nBoard of Directors in good faith as evidenced by a Board Resolution.<\/p>\n
“ISSUE DATE” means the date on which the Notes are originally issued
\nunder this Indenture.<\/p>\n
“JOINT VENTURE” means a joint venture, partnership or other similar
\narrangement, whether corporation, partnership or other legal form.<\/p>\n
“LIEN” means any mortgage, lien, pledge, charge, or other security
\ninterest or encumbrance of any kind (including any conditional sale or other
\ntitle retention agreement and any lease in the nature thereof).<\/p>\n
“LINE OF BUSINESS” means the direct or indirect construction,
\ndevelopment, acquisition, servicing, ownership, improvement, operation and
\nmanagement of Facilities and consulting or advisory activities related thereto.<\/p>\n
“MOODY’S” means Moody’s Investors Service, Inc. and its successors.<\/p>\n
“NET AVAILABLE CASH” means, (A) with respect to any Designated
\nFinancing, the aggregate amount of cash received by the Company or a Restricted
\nSubsidiary in repayment of Shareholder Loans in connection therewith; (B) with
\nrespect to any Restricted Designation Event, an amount equal to the fair market
\nvalue of an Existing Subsidiary or Existing Joint Venture that is designated an
\nUnrestricted Company; and (C) with respect to any Asset Sale, the cash or cash
\nequivalent payments received by the Company or a Project Company in connection
\nwith such Asset Sale (including any cash received by way of deferred payment of
\nprincipal pursuant to a note or installment receivable or otherwise, but only as
\nor when received and also including the proceeds of other property received when
\nconverted to cash or cash equivalents) net of the sum of, without duplication,
\n(i) all reasonable legal, title and recording tax expenses, reasonable
\ncommissions, and other reasonable fees and expenses incurred directly relating
\nto such Asset Sale, (ii) all local, state, federal and foreign taxes required to
\nbe paid or accrued as a liability by the Company or any Project Company as a
\nconsequence of such Asset Sale, (iii) payments made to repay Indebtedness which
\nis secured by any assets subject to such Asset Sale in accordance with the terms
\nof any Lien upon or other security agreement of any kind with respect to such
\nassets, or which must by its terms, or by applicable law, be repaid out of the
\nproceeds from such Asset Sale and (iv) all distributions required by any
\ncontract entered into other than in contemplation of such Asset Sale to be paid
\nto any holder of an Equity Interest in such Project Company as a result of such
\nAsset Sale, so long as such distributions do not exceed such holder’s pro rata
\nportion (based on such holder’s proportionate Equity Interest) of the cash or
\ncash equivalent payments described above, net of the amounts set forth in
\nclauses (i)-(iii) above.<\/p>\n
“NET CASH PROCEEDS” means, with respect to any issuance or sale of
\nCapital Stock by any Person, the cash proceeds to such Person of such issuance
\nor sale net of attorneys’ fees, accountants’ fees, underwriters’ or placement
\nagents’ fees, discounts or commissions and brokerage, consultancy and other fees
\nactually incurred by such Person in connection with such issuance or sale and
\nnet of taxes paid or payable by such Person as a result thereof.<\/p>\n
“NON-CONVERTIBLE CAPITAL STOCK” means, with respect to any Person, any
\nCapital Stock of such Person which is not convertible into another security
\nother than non-convertible common stock of such Person; PROVIDED, HOWEVER, that
\nNon-Convertible Capital Stock shall not include any Redeemable Stock or
\nExchangeable Stock.<\/p>\n
“NON-RECOURSE DEBT” means Indebtedness of any Project Company (or of
\nany other Person that directly or indirectly owns the Capital Stock of such
\nProject Company as its sole assets) that is Incurred to acquire, develop,
\nimprove, construct or to provide working capital for a Facility owned by such
\nProject Company, PROVIDED that such Indebtedness is without recourse to any
\nassets of the Company or any Project Company other than the assets or Capital
\nStock of the Project Company Incurring such Indebtedness (or any other Person
\nthat, directly or indirectly owns such Capital Stock as its sole assets) and the
\nincome and proceeds therefrom. Indebtedness that does not comply with the
\nforegoing sentence because of a guarantee provided by the Company or another
\nProject Company will nevertheless qualify as Non-Recourse Debt so long as such
\nguarantee complies with the restrictions set forth under Section 3.04.<\/p>\n
“NOTES” means all series of the 10 1\/8 % Notes Due 2006 that are issued
\nunder and pursuant to the terms of this Indenture, as amended or supplemented
\nfrom time to time.<\/p>\n
“OFFERING” means the public offering and sale of the Notes.<\/p>\n
“OFFICERS’ CERTIFICATE” means a certificate signed by two Authorized
\nOfficers of the Company, one of whom must be the President or Chief Financial
\nOfficer of the Company. Each Officers’ Certificate (other than certificates
\nprovided pursuant to TIA Section 314(a)(4)) shall include the statements
\nprovided for in TIA Section 314(e).<\/p>\n
“OPERATING LEASE OBLIGATIONS” means any obligation of the Company and
\nits Restricted Subsidiaries on a Consolidated basis incurred or assumed under or
\nin connection with any lease of real or personal property which, in accordance
\nwith GAAP, is not required to be classified and accounted for as a capital
\nlease.<\/p>\n
“OPINION OF COUNSEL” means a written opinion from legal counsel who is
\nacceptable to the Trustee. The counsel, if so acceptable, may be an employee of
\nor counsel to the Company or the Trustee. Each such Opinion of Counsel shall
\ninclude the statements provided for in TIA Section 314(e).<\/p>\n
“PERMITTED INVESTMENTS” means (i) any Investment in any Restricted
\nSubsidiary (or any Person that would become a Restricted Subsidiary as a result
\nof such Investment) by the Company or any other Restricted Subsidiary or in the
\nCompany by any Restricted Subsidiary; (ii) any Restricted Joint Venture
\nInvestment; (iii) Investments in existence on the date of this Indenture and
\nInvestments pursuant to letters of intent or legally binding commitments in
\nexistence on the date of this Indenture; (iv) loans and advances made to
\nemployees of the Company in the ordinary course of business consistent with past
\npractices; (v) loans and advances made by a Project Company to any Person in
\nconnection with the provision of services by such Person to such Project
\nCompany, the construction by such Person of fuel transportation facilities for
\nsuch Project Company or the construction by such Person of transmission
\nfacilities or lines interconnecting such Project Company’s Facility with an
\nelectric power grid; (vi) any Investment in (a) obligations of the U.S.
\ngovernment and its agencies or instrumentalities; (b) bank deposits and bank
\nobligations (including certificates of deposit, time deposits and bankers’
\nacceptances); (c) floating rate securities and other instruments issued by
\ngovernments or international development agencies; (d) commercial paper and
\nother short-term corporate debt obligations; (e) money market funds; and (f)
\nrepurchase agreements with banks and broker-dealers with respect to securities
\ndescribed in clauses (a) through (d) above; (vii) Dollar Permitted Investments;
\nand (viii) any loan made to or deposit made with any commercial banking
\ninstitution rated “A-” or higher by S&P and “A3” or higher by Moody’s in
\nconnection with a substantially similar loan made by an affiliate of such
\ncommercial banking institution to the Company or a Wholly Owned Subsidiary.<\/p>\n
“PERSON” means any individual, corporation, partnership, joint venture,
\nassociation, joint stock company, trust, unincorporated organization, government
\nor any agency or political subdivision thereof or any other entity.<\/p>\n
“PREFERRED STOCK,” as applied to the Capital Stock of any corporation,
\nmeans Capital Stock of any class or classes (however designated) which is
\npreferred as to the payment of dividends, or as to the distribution of assets
\nupon any voluntary or involuntary liquidation or dissolution of such
\ncorporation, over shares of Capital Stock of any other class of such
\ncorporation.<\/p>\n
“PRINCIPAL” of a Note means the principal of the Note plus, if
\napplicable, the premium on the Note.<\/p>\n
“PROJECT COMPANIES” means the Restricted Subsidiaries and Restricted
\nJoint Ventures and “Project Company” means any of them.<\/p>\n
“RATING AGENCIES” means (i) S&P and Moody’s or (ii) if S&P or Moody’s
\nor both shall not make a rating of the Notes publicly available, an
\ninternationally recognized securities rating agency or agencies, as the case may
\nbe, selected by the Company which shall be substituted for S&P or Moody’s or
\nboth, as the case may be.<\/p>\n
“RATING CATEGORY” means (i) with respect to S&P, any of the following
\ncategories: AAA, AA, A, BBB, BB, B, CCC, CC, C and D (or equivalent successor
\ncategories, (ii) with respect to Moody’s, any of the following categories: Aaa,
\nAa, A, Baa, Ba, B, Caa, Ca, C and D (or equivalent successor categories) and
\n(iii) the equivalent of any such category used by another Rating Agency). In
\ndetermining whether the rating of the Notes has decreased by one or more
\ngradations, gradations within Rating Categories (+ and – for S&P; 1, 2 and 3 for
\nMoody’s) shall be taken into account (e.g., with respect to S&P, a decline in a
\nrating from BB+ to BB, as well as from BB- to B+, will constitute a decrease of
\none gradation).<\/p>\n
“RATING DECLINE” means the occurrence of (i) or (ii) below on, or
\nwithin 90 days after, the earliest of (A) the Company having become aware that a
\nChange of Control has occurred, (B) the date of public notice of the occurrence
\nof a Change of Control or (C) the date of public notice of the intention by AES
\nor the Company to approve, recommend or enter into, any transaction which, if
\nconsummated, would result in a Change of Control (which period shall be extended
\nso long as the rating of the Notes is under publicly announced consideration or
\npossible downgrade by either of the Rating Agencies), (i) a decrease of the
\nrating of the Notes by either Rating Agency by one or more rating gradations or
\n(ii) the failure by the Company to advise the Rating Agencies, in writing, of
\nsuch occurrence or any subsequent material developments or to use its best
\nefforts to obtain, from at least one Rating Agency, a written, publicly
\nannounced affirmation of its rating of the Notes, stating that it is not
\ndowngrading and is not considering downgrading the Notes.<\/p>\n
“REDEEMABLE STOCK” means any class or series of Capital Stock of any
\nPerson that (a) by its terms, by the terms of any security into which it is
\nconvertible or exchangeable or otherwise is, or upon the happening of an event
\nor passage of time would be, required to be redeemed (in whole or in part) on or
\nprior to the first anniversary of the Stated Maturity of the Notes, (b) is
\nredeemable at the option of the holder thereof at any time on or prior to the
\nfirst anniversary of the Stated Maturity of the Notes (other than on a Change of
\nControl or Asset Sale, provided that such Change of Control or Asset Sale shall
\nnot yet have occurred) or (c) is convertible into or exchangeable for Capital
\nStock referred to in clause (a) or clause (b) above or debt securities at any
\ntime prior to the first anniversary of the Stated Maturity of the Notes.<\/p>\n
“REFINANCING INDEBTEDNESS” means Indebtedness that refunds, refinances,
\nreplaces, renews, repays or extends (including pursuant to any defeasance or
\ndischarge mechanism) (collectively, “refinances,” and “refinanced” shall have a
\ncorrelative meaning) any Indebtedness of the Company or a Project Company
\nexisting on the Issue Date or Incurred in compliance with this Indenture
\n(including Indebtedness of the Company that refinances Indebtedness of any
\nProject Company and Indebtedness of any Project Company that refinances
\nIndebtedness of another Project Company) including Indebtedness that refinances
\nRefinancing Indebtedness; PROVIDED, HOWEVER, that (i) if the Indebtedness being
\nrefinanced is contractually subordinated in right of payment to the Notes, the
\nRefinancing Indebtedness shall be contractually subordinated in right of payment
\nto the Notes to at least the same extent as the Indebtedness being refinanced,
\n(ii) if the Indebtedness being refinanced is Non-Recourse Debt, such Refinancing
\nIndebtedness shall be Non-Recourse Debt, (iii) the Refinancing Indebtedness is
\nscheduled to mature either (a) no earlier than the Indebtedness being refinanced
\nor (b) after the Stated Maturity of the Notes, (iv) the Refinancing Indebtedness
\nhas an Average Life at the time such Refinancing Indebtedness is Incurred that
\nis equal to or greater than the Average Life of the Indebtedness being
\nrefinanced and (v) such Refinancing Indebtedness is in an aggregate principal
\namount (or if issued with original issue discount, an aggregate issue price)
\nthat is equal to or less than the aggregate principal amount (or if issued with
\noriginal issue discount, the aggregate accreted value) then outstanding (plus
\nfees and expenses, including any premium, swap breakage and defeasance costs)
\nunder the Indebtedness being refinanced; and PROVIDED, FURTHER, that (x)
\nRefinancing Indebtedness shall not include Indebtedness of a Project Company
\nthat refinances Indebtedness of the Company; (y) the provisions of clauses (iii)
\nand (iv) above shall not be applicable with respect to any Refinancing
\nIndebtedness that refinances Shareholder Loans; and (z) Refinancing Indebtedness
\nthat refinances Shareholder Loans of any Person other than the Company or any of
\nits Subsidiaries shall be PARI PASSU or subordinated to the Shareholder Loans
\nbeing refinanced.<\/p>\n
“RESTRICTED DESIGNATION EVENT” means the designation by the Board of
\nDirectors of the Company of any Existing Subsidiary or Existing Joint Venture to
\nbe an Unrestricted Company.<\/p>\n
“RESTRICTED JOINT VENTURE” means any Eligible Joint Venture of the
\nCompany that is not designated an Unrestricted Joint Venture by the Board of
\nDirectors.<\/p>\n
“RESTRICTED JOINT VENTURE INVESTMENT” means any Investment which is
\nmade by the Company or a Restricted Subsidiary in a Restricted Joint Venture;
\nPROVIDED that (i) at the time such Investment is made, no Default or Event of
\nDefault shall have occurred and be continuing (or would result therefrom); (ii)
\nthe aggregate Investment in one or more Restricted Joint Ventures operating the
\nsame Facility does not exceed 15% of Consolidated Net Tangible Assets; PROVIDED
\nTHAT such restriction shall not apply to any Investment in (A) Yangcheng
\nInternational Power Generating Company Ltd., or its successors and (B) Tianjin
\nTEDA-AES Power Co. Ltd. or its successors, and PROVIDED, FURTHER, that such
\nrestriction shall not apply to a single additional Investment of up to $100
\nmillion in the event that the Company does not make either of the Investments
\ndescribed in clauses (A) and (B); and (iii) any encumbrance or restriction on
\nthe ability of the Person in which the Investment is made to make the payments,
\ndistributions, loans, advances or transfers referred to in clauses (i) through
\n(iii) under Section that would apply immediately following the making of the
\nInvestment could be created or permitted to exist pursuant to clause (d), (g) or
\n(h) under Section 3.05 or in the written opinion of the President or Chief
\nFinancial Officer of the Company (x) are not materially more restrictive, taken
\nas a whole, than encumbrances and restrictions customarily accepted (or, in the
\nabsence of any industry custom, reasonably acceptable) in substantially
\nnon-recourse project financings and (y) apply only to the assets of the Person
\nin whom the Investment is made, the Capital Stock of such Person (or any other
\nPerson that, directly or indirectly owns such Capital Stock as its sole assets)
\nand the income and proceeds therefrom.<\/p>\n
“RESTRICTED SUBSIDIARY” means any Subsidiary of the Company that is not
\ndesignated an Unrestricted Subsidiary by the Board of Directors.<\/p>\n
“S&P” means Standard and Poor’s Corporation and its successors.<\/p>\n
“SECURITIES ACT” means the Securities Act of 1933, as amended from time
\nto time.<\/p>\n
“SECURITY AGREEMENT” means the security agreement dated as of the date
\nhereof among the Company, the Trustee and the Collateral Agent.<\/p>\n
“SERVICES AGREEMENT” means the Services Agreement dated as of December
\n29, 1993 between the Company and —————— AES.<\/p>\n
“SHAREHOLDER LOAN” means Indebtedness of a Project Company that is
\npayable to a holder of Equity Interests in such Project Company.<\/p>\n
“SPECIAL PROCEEDS EVENT” means (i) any Asset Sale of the assets,
\nproperty or Capital Stock of any Existing Subsidiary or Existing Joint Venture
\n(or any other Person that, directly or indirectly, owns such Capital Stock as
\nits sole assets), (ii) any Designated Financing or (iii) any Restricted
\nDesignation Event.<\/p>\n
“SPECIAL PROCEEDS” means, with respect to any Special Proceeds Event,
\nthe Net Available Cash from such Special Proceeds Event; PROVIDED that the Net
\nAvailable Cash from a Special Proceeds Event relating to an Existing Subsidiary
\nshall not constitute Special Proceeds if and to the extent that: (A) the
\naggregate amount of Net Available Cash from all Special Proceeds Events excluded
\nfrom the definition of Special Proceeds under this proviso after the Issue Date
\ndoes not exceed $30 million; (B) at the date of such Special Proceeds Event, the
\nFixed Charge Coverage Ratio is greater than 2.25:1.0; and (C) with respect to
\nany Asset Sale, the Facilities owned by each of the Existing Subsidiaries and
\neach of the Existing Joint Ventures have commenced commercial operation; and
\nPROVIDED FURTHER, that the Net Available Cash from any Special Proceeds Event
\nrelating to an Existing Joint Venture shall not constitute Special Proceeds if
\nand to the extent that (A) at the date thereof, the Fixed Charge Coverage Ratio
\nis greater than 2.25:1.0 and (B) with respect to any Asset Sale, the Facilities
\nowned by each of the Existing Subsidiaries and each of the Existing Joint
\nVentures have commenced commercial operation.<\/p>\n
“STATED MATURITY” means, with respect to any security, the date
\nspecified in such security as the fixed date on which the principal is due and
\npayable, including pursuant to any mandatory redemption provision (but excluding
\nany provision providing for the repurchase of such security at the option of the
\nholder thereof upon the happening of any contingency).<\/p>\n
“SUBORDINATED INDEBTEDNESS” means any Indebtedness of the Company
\n(whether outstanding on the Issue Date or thereafter Incurred) which is
\ncontractually subordinated or junior in right of payment to the Notes or any
\nother Indebtedness of the Company.<\/p>\n
“SUBSIDIARY” means, as applied to any Person, any corporation or other
\nentity of which a majority of the outstanding Voting Shares is, at the time,
\ndirectly or indirectly, owned by such Person.<\/p>\n
“TAX” means any tax, duty, levy, impost, assessment or other
\ngovernmental charge of a similar nature (including penalties, interest and any
\nother liabilities related thereto.<\/p>\n
“TAXING AUTHORITY” means any government or political subdivision or
\nterritory or possession of any government or any authority or agency therein or
\nthereof having power to tax.<\/p>\n
“TIA” means the Trust Indenture Act of 1939 (15 U.S. Code ss.ss.
\n77aaa-77bbbb) as in effect on the date first above written.<\/p>\n
“TRUSTEE” means the party named as such above until a successor
\nreplaced it and thereafter means the successor.<\/p>\n
“TRUST OFFICER” means any officer of the Trustee within its Corporate
\nTrust and Agency Group assigned by the Trustee to administer its corporate trust
\nmatters or to whom any corporate trust matter is referred because of that
\nofficer’s knowledge of and familiarity with the particular subject.<\/p>\n
“UNIFORM COMMERCIAL CODE” means the New York Uniform Commercial Code as
\nin effect from time to time.<\/p>\n
“UNRELATED BUSINESS” means any business other than the Line of
\nBusiness.<\/p>\n
“UNRESTRICTED COMPANIES” means the Unrestricted Subsidiaries and
\nUnrestricted Joint Ventures and “Unrestricted Company” means any of them.<\/p>\n
“UNRESTRICTED JOINT VENTURE” means: (i) any Eligible Joint Venture that
\nat the time of determination shall be designated an Unrestricted Joint Venture
\nby the Board of Directors in the manner provided below; (ii) any Joint Venture
\nof an Unrestricted Subsidiary; or (iii) any Joint Venture of the Company that is
\nnot an Eligible Joint Venture. The Board of Directors may designate any Eligible
\nJoint Venture (including any newly acquired or newly formed Eligible Joint
\nVenture) to be an Unrestricted Joint Venture unless such Eligible Joint Venture
\nowns any Capital Stock of, or owns or holds any Lien on any property of, the
\nCompany or any other Restricted Joint Venture; provided, that either (A) the
\nEligible Joint Venture to be so designated has total assets of $1,000 or less or
\n(B) if such Eligible Joint Venture has assets greater than $1,000, that such
\ndesignation would be an investment permitted pursuant to the provisions under
\nSection 3.03. The Board of Directors may designate any Unrestricted Joint
\nVenture to be a Restricted Joint Venture; PROVIDED, HOWEVER, that immediately
\nafter giving effect to such designation (x) the Company could Incur $1.00 of
\nadditional Indebtedness pursuant to Subsection 3.04(a) and no Default or Event
\nof Default shall have occurred and be continuing. Any such designation by the
\nBoard of Directors shall be evidenced to the Trustee by promptly filing with the
\nTrustee a copy of the Board Resolution giving effect to such designation and an
\nOfficers’ Certificate certifying that such designation complied with the
\nforegoing provisions; PROVIDED, HOWEVER, that the failure to so file such
\nresolution and\/or Officers’ Certificate with the Trustee shall not impair or
\naffect the validity of such designation.<\/p>\n
“UNRESTRICTED SUBSIDIARY” means (i) any Subsidiary of the Company that
\nat the time of determination shall be designated an Unrestricted Subsidiary by
\nthe Board of Directors in the manner provided below and (ii) any Subsidiary of
\nan Unrestricted Subsidiary. The Board of Directors may designate any Subsidiary
\n(including any newly acquired or newly formed Subsidiary) to be an Unrestricted
\nSubsidiary unless such Subsidiary owns any Capital Stock of, or owns or holds
\nany Lien on any property of, the Company or any Project Company that is not a
\nSubsidiary or Joint Venture of the Subsidiary to be so designated; provided,
\nthat either (A) the Subsidiary to be so designated has total assets of $1,000 or
\nless or (B) if such Subsidiary has assets greater than $1,000, that such
\ndesignation would be permitted pursuant to Section 3.03. The Board of Directors
\nmay designate any Unrestricted Subsidiary to be a Restricted Subsidiary of the
\nCompany; PROVIDED, HOWEVER, that immediately after giving effect to such
\ndesignation (x) the Company could Incur $1.00 of additional Indebtedness
\npursuant to Section 3.04(a) and (y) no Default or Event of Default shall have
\noccurred and be continuing. Any such designation by the Board of Directors shall
\nbe evidenced to the Trustee by promptly filing with the Trustee a copy of the
\nBoard Resolution giving effect to such designation and an Officers’ Certificate
\ncertifying that such designation complied with the foregoing provisions;
\nPROVIDED, HOWEVER, that the failure to so file such resolution and\/or Officers’
\nCertificate with the Trustee shall not impair or affect the validity of such
\ndesignation.<\/p>\n
“U.S. GOVERNMENT OBLIGATIONS” means securities that are (i) direct
\nobligations of the United States of America for the payment of which its full
\nfaith and credit is pledged or (ii) obligations of a Person controlled or
\nsupervised by and acting as an agency or instrumentality of the United States of
\nAmerica the payment of which is unconditionally guaranteed as a full faith and
\ncredit obligation by the United States of America which, in either case under
\nclauses (i) or (ii) are not callable or redeemable before the maturity thereof.<\/p>\n
“VOTING SHARES,” with respect to any Person, means the Capital Stock
\nhaving the general voting power under ordinary circumstances to vote on the
\nelection of the members of the board of directors or other governing body of
\nsuch Person (irrespective of whether or not at the time stock of any other class
\nor classes shall have or might have voting power by reason of the happening of
\nany contingency) and, with respect to the Company, shall include the Class A
\nCommon Stock and the Class B Common Stock and any other Voting Shares of the
\nCompany.<\/p>\n
“WHOLLY OWNED SUBSIDIARY” means a Subsidiary (other than an
\nUnrestricted Subsidiary) all the Capital Stock of which (other than directors’
\nqualifying shares) is owned by the Company or another Wholly Owned Subsidiary.<\/p>\n
SECTION 1.02. OTHER DEFINITIONS.<\/p>\n
TERM DEFINED IN SECTION
\n —- ——————<\/p>\n
“Additional Amounts”…………………………. 3.06
\n “Change of Control Offer”…………………….. 3.08
\n “Change of Control Purchase Date”……………… 3.08
\n “Event of Default”…………………………… 5.01
\n “Excess Proceeds”……………………………. 3.12(b)
\n “Excess Proceeds Offer”………………………. 3.12(b)
\n “Global Note”……………………………….. 2.01
\n “Intermediate Holding Company”………………… 3.20
\n “Notice of Default”………………………….. 5.01
\n “Offer”…………………………………….. 3.12(d)
\n “Offer Amount”………………………………. 3.12(d)
\n “Paying Agent”………………………………. 2.03
\n “Purchase Date”……………………………… 3.12(d)
\n “Registrar”…………………………………. 2.03
\n “Restricted Payment”…………………………. 3.03(a)
\n “Successor Corporation”………………………. 4.01
\n “Special Proceeds Offer”……………………… 3.12(d)<\/p>\n
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.<\/p>\n
Whenever this Indenture refers to a provision of the TIA, the provision
\nis incorporated by reference in and made a part of this Indenture.<\/p>\n
The following TIA terms used in this Indenture have the following
\nmeanings:<\/p>\n
“INDENTURE SECURITIES” means the Notes;<\/p>\n
“INDENTURE SECURITY HOLDER” means a Holder or Noteholder;<\/p>\n
“INDENTURE TO BE QUALIFIED” means this Indenture;<\/p>\n
“INDENTURE TRUSTEE” or “INSTITUTIONAL TRUSTEE” means the Trustee; and<\/p>\n
“OBLIGOR” on the indenture securities means the Company.<\/p>\n
All other terms used in this Indenture that are defined by the TIA,
\ndefined by TIA reference to another statute or defined by Commission rule under
\nthe TIA have the meanings assigned to them.<\/p>\n
SECTION 1.04. RULES OF CONSTRUCTION.<\/p>\n
Unless the context otherwise requires:<\/p>\n
(a) a term has the meaning assigned to it;<\/p>\n
(b) “GENERALLY ACCEPTED ACCOUNTING PRINCIPLES” means, and any
\naccounting term not otherwise defined has the meaning assigned to it and shall
\nbe construed in accordance with, GAAP;<\/p>\n
(c) “OR” is not exclusive<\/p>\n
(d) words in the singular include the plural, and in the plural include
\nthe singular;<\/p>\n
(e) provisions apply to successive events and transactions;<\/p>\n
(f) “INCLUDING” means including, without limitation; (g) unsecured debt
\nshall not be deemed to be subordinate or junior to secured debt merely by virtue
\nof its nature as unsecured debt;<\/p>\n
(h) the principal amount of any non-interest bearing or other discount
\nsecurity at any date shall be the principal amount thereof that would be shown
\non a balance sheet of the issuer dated such date prepared in accordance with
\ngenerally accepted accounting principles and accretion of principal on such
\nsecurity shall be deemed to be the Incurrence of Indebtedness; and<\/p>\n
(i) the principal amount (if any) of any Preferred Stock shall be the
\ngreatest of (i) the stated value, (ii) the redemption price or (iii) the
\nliquidation preference of such Preferred Stock.<\/p>\n
ARTICLE 2<\/p>\n
THE NOTES<\/p>\n
SECTION 2.01. FORM AND DATING.<\/p>\n
The Notes and the Trustee’s certificate of authentication, shall be
\nsubstantially in the form of Exhibit A annexed hereto, which is part of this
\nIndenture. The Notes may have notation, legends or endorsements required by law,
\nstock exchange rule or usage. Each Note shall be dated the date of its
\nauthentication.<\/p>\n
The terms and provisions contained in the form of Note annexed hereto
\nas Exhibit A shall constitute, and are expressly made, a part of this Indenture.
\nTo the extent applicable, the Company and the Trustee, by their execution and
\ndelivery of this Indenture, expressly agree to such terms and provisions and to
\nbe bound thereby.<\/p>\n
The Notes shall be issued initially in the form of a single permanent
\nglobal note in fully registered form without interest coupons substantially in
\nthe form of Exhibit A with such legends as may be applicable thereto, only in
\ndenominations of $1,000 and integral multiples thereof (the “Global Note”),
\ndeposited with the Trustee as custodian for the Depositary and registered in the
\nname of Cede & Co., as nominee of the Depositary, duly executed by the Company
\nand authenticated by the Trustee as hereinafter provided. The Global Note shall
\nbear such legend as may be required or reasonably requested by the Depositary.<\/p>\n
The definitive Notes shall be typed, printed, lithographed or engraved
\nor produced by any combination of these methods or may be produced in any other
\nmanner permitted by the rules of any securities exchange on which the Notes may
\nbe listed, all as determined by the officers executing such Notes, as evidenced
\nby their execution of such Notes.<\/p>\n
SECTION 2.02. EXECUTION AND AUTHENTICATION.<\/p>\n
An Authorized Officer shall sign the Notes for the Company by manual or
\nfacsimile signature. The Company’s seal shall be reproduced on the Notes.<\/p>\n
If an Authorized Officer whose signature is on a Note no longer holds
\nthat office at the time the Note is authenticated, the Note shall nevertheless
\nbe valid.<\/p>\n
A Note shall not be valid until authenticated by the manual signature
\nof an authorized signatory of the Trustee. The signature shall be conclusive
\nevidence that the Note has been authenticated under this Indenture.<\/p>\n
The Trustee shall authenticate Notes for original issue up to the
\naggregate principal amount stated in paragraph 1 of Exhibit A upon a written
\norder of the Company signed by two Authorized Officers (except as otherwise
\nprovided in Section 2.07). Such order shall specify the amount of the Notes to
\nbe authenticated and the date on which the original issue of Notes is to be
\nauthenticated. The aggregate principal amount of Notes outstanding at any time
\nmay not exceed that amount except as provided in Section 2.07.<\/p>\n
The Trustee shall initially act as authenticating agent and may
\nsubsequently appoint another Person acceptable to the Company as authenticating
\nagent to authenticate Notes. Unless limited by the terms of such appointment, an
\nauthenticating agent may authenticate Notes whenever the Trustee may do so. Each
\nreference in this Indenture to authentication by the Trustee includes
\nauthentication by such agent. An authenticating agent has the same rights as an
\nAgent to deal with the Company or an Affiliate of the Company. Provided that the
\nauthenticating agent has entered into an agreement with the Company concerning
\nauthentication agent’s duties, the Trustee shall not be liable for any act or
\nany failure of the authenticating agent to perform any duty either required
\nherein or authorized herein to be performed by such person in accordance with
\nthis Indenture.<\/p>\n
Typographical and other minor errors or defects in any such
\nreproduction of the seal or any such signature shall not affect the validity or
\nenforceability of any Note which has been duly authenticated and delivered by
\nthe Trustee.<\/p>\n
SECTION 2.03. REGISTRAR AND PAYING AGENT.<\/p>\n
The Company shall maintain an office or agency where Notes may be
\npresented for registration of transfer or for exchange (“REGISTRAR”) and an
\noffice or agency where Notes may be presented for payment (“PAYING AGENT”). The
\nRegistrar shall keep a register of the Notes and of their transfer and exchange.
\nThe Company may appoint one or more co-registrars and one or more additional
\npaying agents. The term “PAYING AGENT” includes any additional paying agent and
\nthe term “REGISTRAR” includes any co-registrar.<\/p>\n
The Company shall enter into an appropriate agency agreement with any
\nRegistrar, Paying Agent or co-registrar not a party to this Indenture. The
\nagreement shall implement the provisions of this Indenture that relate to such
\nagent. The Company shall promptly notify the Trustee of the name and address of
\nany such agent and change in the address of such agent. If the Company fails to
\nmaintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
\nentitled to appropriate compensation therefor pursuant to Section 6.07. The
\nCompany or any Subsidiary or Affiliate of the Company may act as Paying Agent,
\nRegistrar, co-registrar or transfer agent.<\/p>\n
The Company initially appoints the Trustee as Registrar and Paying
\nAgent.<\/p>\n
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.<\/p>\n
On or prior to 11:00 a.m., eastern standard time, on each due date of
\nthe principal and interest on any Note (including any redemption date fixed
\nunder the terms of such Note or this Indenture) the Company shall deposit with
\nthe Paying Agent a sum of money, in immediately available funds, sufficient to
\npay such principal and interest in funds available when such becomes due. The
\nCompany shall require each Paying Agent (other than the Trustee) to agree in
\nwriting that the Paying Agent shall hold in trust for the benefit of Noteholders
\nor the Trustee all money held by the Paying Agent for the payment of principal
\nof or interest on the Notes (whether such money has been paid to it by the
\nCompany or any other obligor on the Notes) and shall notify the Trustee of any
\ndefault by the Company (or any other obligor on the Notes) in making any such
\npayment. If the Company or a Subsidiary or an affiliate of the Company acts as
\nPaying Agent, it shall segregate the money held by it as Paying Agent and hold
\nit as a separate trust fund for the benefit of the Noteholders. If the Company
\ndefaults in its obligation to deposit funds for the payment of principal and
\ninterest the Trustee may, during the continuation of such default, require a
\nPaying Agent to pay all money held by it to the Trustee. The Company at any time
\nmay require a Paying Agent to pay all money held by it to the Trustee and to
\naccount for any funds disbursed by it. Upon doing so, the Paying Agent (other
\nthan the Company or a Subsidiary or Affiliate of the Company) shall have no
\nfurther liability for the money delivered to the Trustee.<\/p>\n
SECTION 2.05. NOTEHOLDER LISTS.<\/p>\n
The Trustee shall preserve in as current a form as reasonably
\npracticable the most recent list available to it of the names and addresses of
\nNoteholders. If the Trustee is not the Registrar, the Company shall furnish to
\nthe Trustee at least five Business Days before each Interest Payment Date and at
\nsuch other times as the Trustee may request in writing a list in such form and
\nas of such date as the Trustee may reasonably require of the names and addresses
\nof the Noteholders and the Company shall otherwise comply with TIA ss. 312(a).<\/p>\n
SECTION 2.06. TRANSFER AND EXCHANGE; DEFINITIVE NOTE.<\/p>\n
(a) The Notes shall be transferable only upon the surrender of a Note
\nfor registration of transfer. When a Note is presented to the Registrar or a
\nco-registrar with a request to register a transfer, the Registrar shall register
\nthe transfer as requested if the requirements of Section 8-401(1) of the Uniform
\nCommercial Code are met (and the Registrar shall be entitled to assume such
\nrequirements have been met unless it receives written notice to the contrary)
\nand, if so required by the Trustee or the Company, if the Note presented is
\naccompanied by a written instrument of transfer in form satisfactory to the
\nTrustee and the Company, duly executed by the registered owner or by his or her
\nattorney duly authorized in writing. When Notes are presented to the Registrar
\nor a co-registrar with a request to exchange them for an equal principal amount
\nof Notes of other denominations, the Registrar shall make the exchange as
\nrequested if the same requirements are met. To permit registration of transfers
\nand exchanges, the Company shall execute and the Trustee shall authenticate
\nNotes at the Registrar’s or co-registrar’s request. No service charge shall be
\nmade for any registration of transfer or exchange of the Notes, but the Company
\nmay require payment of a sum sufficient to cover any transfer tax or similar
\ngovernmental charge payable in connection therewith (other than any such
\ntransfer taxes or similar governmental charge payable upon exchange pursuant to
\nSection 2.10 or 8.05 of this Indenture). The Company shall not be required to
\nmake and the Registrar need not register transfers or exchanges of Notes
\nselected for redemption (except, in the case of Notes to be redeemed in part,
\nthe portion thereof not to be redeemed) or for a period of 15 days before a
\nselection of Notes to be redeemed or 15 days before an interest payment date.<\/p>\n
(b) Prior to the due presentation for registration of transfer of any
\nNote, the Company, the Trustee, the Paying Agent, the Registrar or any
\nco-registrar may deem and treat the person in whose name a Note is registered as
\nthe absolute owner of such Note for the purpose of receiving payment of
\nprincipal of and interest on such Note and for all other purposes whatsoever,
\nwhether or not such Note is overdue, and none of the Company, the Trustee, the
\nPaying Agent, the Registrar or any co-registrar shall be affected by notice to
\nthe contrary.<\/p>\n
(c) Notwithstanding any other provisions of this Section 2.06, unless
\nand until it is exchanged in whole or in part for Notes in definitive registered
\nform, the Global Note representing all or a portion of the Notes may not be
\ntransferred except as a whole by the Depositary to a nominee of such Depositary
\nor by a nominee of such Depositary to such Depositary or another nominee of such
\nDepositary or by such Depositary or any such nominee to a successor Depositary
\nor a nominee of such successor Depositary.<\/p>\n
(d) If the Depositary notifies the Company that it is unwilling or
\nunable to continue as Depositary for the Global Notes or if at any time the
\nDepositary shall no longer be registered under the next sentence of this
\nparagraph, the Company shall appoint a successor Depositary with respect to the
\nNotes. Each Depositary appointed pursuant to this Section 2.06 must, at the time
\nof its appointment and at all times while it serves as Depositary, be a clearing
\nagency registered under the Exchange Act and any other applicable statute or
\nregulation. The Company will execute, and the Trustee will authenticate and
\ndeliver upon a written order of the Company signed by two Authorized Officers,
\nNotes in definitive registered form in any authorized denominations representing
\nsuch Notes in exchange for the Global Note if (i) the Depositary notifies the
\nCompany that it is unwilling or unable to continue as Depositary for the Global
\nNote or if at any time the Depositary ceases to be a clearing agency registered
\nunder the Exchange Act at any time when it is required to be and, in either
\ncase, a successor Depositary for the Notes is not appointed by the Company
\nwithin 90 days after the Company receives such notice or becomes aware that the
\nDepositary is no longer so registered, (ii) the Company determines in accordance
\nwith the next paragraph of this subsection (d) that the Global Note shall be
\nexchanged or exchangeable for Notes in definitive registered form or (iii) an
\nEvent of Default has occurred and is continuing.<\/p>\n
The Company may at any time and in its sole discretion determine that
\nthe Notes shall no longer be represented by the Global Note. In such event the
\nCompany will execute, and the Trustee will authenticate and deliver upon a
\nwritten order of the Company signed by two Authorized Officers, Notes in
\ndefinitive registered form in any authorized denominations representing such
\nNotes in exchange for such Global Note.<\/p>\n
(e) Upon the exchange of the Global Note for Notes in definitive
\nregistered form without coupons, in authorized denominations, such Global Note
\nshall be canceled by the Trustee. Notes in definitive registered form issued in
\nexchange for the Global Note pursuant to this Section 2.06 shall be registered
\nin such names and in such authorized denominations as the Depositary for the
\nGlobal Note pursuant to instructions from its direct or indirect participants or
\notherwise, shall instruct the Trustee. The Trustee shall deliver such Notes to
\nor as directed by the Persons in whose names such Notes are so registered.<\/p>\n
All Notes issued upon any transfer or exchange pursuant to the terms of
\nthis Indenture will evidence the same debt and will be entitled to the same
\nbenefits under this Indenture as the Notes surrendered upon such transfer or
\nexchange.<\/p>\n
SECTION 2.07. REPLACEMENT NOTES.<\/p>\n
If a mutilated security is surrendered to the Registrar or if the
\nHolder of a Note claims that the Note has been lost, destroyed or wrongfully
\ntaken and the Holder furnishes to the Company and the Trustee evidence to their
\nsatisfaction of such loss, destruction or wrongful taking, the Company shall
\nissue and the Trustee shall, in the absence of notice to the Company or the
\nTrustee that such Note has been acquired by a bona fide purchaser, authenticate
\na replacement Note if the requirements of Section 8-405 of the Uniform
\nCommercial Code are met (and the Registrar shall be entitled to assume such
\nrequirements have been met unless it receives written notice to the contrary)
\nand if there is delivered to the Company and the Trustee such security or
\nindemnity as may be required to save each of them harmless, satisfactory to the
\nCompany or the Trustee, as the case may be. The Company and the Trustee may
\ncharge the Holder for their expenses in replacing a Note.<\/p>\n
Every replacement Note is an additional obligation of the Company and
\nshall be entitled to the benefits of (but shall be subject to all the
\nlimitations of rights set forth in) this Indenture.<\/p>\n
SECTION 2.08. OUTSTANDING NOTES.<\/p>\n
The Notes outstanding at any time are all the Notes authenticated by
\nthe Trustee except for those canceled by it, those delivered to it for
\ncancellation, and those described in this section as not outstanding.<\/p>\n
If a Note is replaced pursuant to Section 2.07, it ceases to be
\noutstanding unless the Trustee and the Company receive proof satisfactory to
\nthem that the replaced Note is held by a bona fide purchaser.<\/p>\n
If all the principal and interest on any Notes are considered paid
\nunder Section 3.01, such Notes cease to be outstanding under this Indenture and
\ninterest on such Notes shall cease to accrue. If the Paying Agent (other than
\nthe Company or a Subsidiary or an Affiliate of the Company) holds in accordance
\nwith this Indenture on a redemption date or maturity date money sufficient to
\npay all principal and interest due on that date then on and after that date such
\nNotes cease to be outstanding and interest on them ceases to accrue (unless
\nthere shall be a default in such payment).<\/p>\n
If a Note is called for redemption, the Company and the Trustee need
\nnot treat the Note as outstanding in determining whether Holders of the required
\nprincipal amount of Notes have concurred in any direction, waiver or consent.<\/p>\n
Subject to Section 2.09, a Note does not cease to be outstanding
\nbecause the Company or an Affiliate thereof holds the Note.<\/p>\n
SECTION 2.09. DETERMINATION OF HOLDERS’ ACTION.<\/p>\n
In determining whether the Holders of the required principal amount of
\nNotes have concurred in any direction, amendment, waiver or consent, Notes owned
\nby or pledged to the Company, any other obligor upon the Notes or any Affiliate
\nof the Company or such other obligor shall be disregarded and deemed not to be
\noutstanding, except that for the purposes of determining whether the Trustee
\nshall be protected in relying on any such direction, waiver or consent, only
\nNotes which the Trustee knows are so owned or pledged shall be so disregarded.<\/p>\n
SECTION 2.10. TEMPORARY NOTES.<\/p>\n
Until definitive Notes are ready for delivery, the Company may prepare
\nand the Trustee shall authenticate temporary Notes. Temporary Notes shall be
\nsubstantially in the form of definitive Notes but may have variations that the
\nCompany considers appropriate for temporary Notes. Without unreasonable delay,
\nthe Company shall prepare and the Trustee, upon the written order of the Company
\nsigned by two Authorized Officers, shall authenticate definitive Notes in
\nexchange for temporary Notes. Until such exchange, temporary Notes shall be
\nentitled to the same rights, benefits and privileges as definitive Notes.<\/p>\n
SECTION 2.11. CANCELLATION.<\/p>\n
The Company at any time may deliver Notes to the Trustee for
\ncancellation. The Registrar and Paying Agent shall forward to the Trustee any
\nNotes surrendered to them for registration of transfer, exchange or payment. The
\nTrustee shall cancel all Notes surrendered for registration of transfer,
\nexchange, payment or cancellation and shall destroy the same or otherwise
\ndispose of canceled Notes as the Company directors by written order signed by
\ntwo Authorized Officers. The Company may not issue new Notes to replace Notes
\nthat it has paid or delivered to the Trustee for cancellation.<\/p>\n
SECTION 2.12. DEFAULTED INTEREST.<\/p>\n
If the Company defaults in a payment of interest on the Notes, it shall
\npay defaulted interest, plus any interest payable on the defaulted interest to
\nthe extent permitted by law, in any lawful manner. The Company may pay the
\ndefaulted interest to the Persons who are Noteholders on a subsequent special
\nrecord date which date shall be at least five Business Days prior to the payment
\ndate. The Company shall fix the special record date and payment date. At least
\n15 days before the special record date, the Company (or the Trustee, in the name
\nof and at the expense of the Company) shall mail to Noteholders a notice that
\nstates the special record date, payment date and amount of interest to be paid.<\/p>\n
ARTICLE 3<\/p>\n
COVENANTS<\/p>\n
SECTION 3.01. PAYMENT OF NOTES.<\/p>\n
(a) The Company shall pay the principal of and interest on the Notes on
\nthe dates and in the manner provided in the Notes. The Company shall pay
\ninterest on overdue principal at the rate borne by the Notes; it shall pay
\ninterest on overdue installments of interest at the rate borne by the Notes to
\nthe extent lawful. Principal and interest shall be considered paid on the date
\ndue (including a redemption date) if the Trustee or the Paying Agent (other than
\nthe Company or a Subsidiary or an Affiliate of the Company) has received from or
\non behalf of the Company on or prior to 11:00 a.m., eastern standard time, on
\nthat date, in immediately available funds, money sufficient to pay all principal
\nand interest then due. To the extent that the Trustee or the Paying Agent shall
\nnot have received all or any part of such money at such time, the Trustee shall
\nrequest the Collateral Agent to transfer to the Trustee from the Debt Service
\nReserve Account an amount equal to any such defficiency.<\/p>\n
(b) At least five Business Days prior to the first interest payment
\ndate and, if there has been any change with respect to the matters set forth in
\nthe below-mentioned certificate, at least five Business Days prior to each
\ninterest payment date thereafter, the Company shall furnish the Trustee with an
\nOfficers’ Certificate instructing the Trustee as to any circumstances in which
\npayments of principal of or interest on the Notes due on such date shall be
\nsubject to deduction or withholding for or on account of any taxes described in
\nSection 3.06 and the rate of any such deduction or withholding. If any such
\ndeduction or withholding shall be required and if the Company therefore becomes
\nliable to pay Additional Amounts, if any, pursuant to Section 3.06, then, at
\nleast five Business Days prior to each interest payment date, the Company will
\nfurnish the Trustee with a certificate which specifies the amount required to be
\nwithheld on such payment to Holders of the Notes and the Additional Amounts, if
\nany, due to Holders of the Notes, and will pay to the Trustee such Additional
\nAmounts, if any, as shall be required to be paid to such Holders.<\/p>\n
SECTION 3.02. MAINTENANCE OF OFFICE OR AGENCY.<\/p>\n
The Company shall maintain in the Borough of Manhattan, the City of New
\nYork, an office or agency where Notes may be surrendered for registration of
\ntransfer or exchange or for presentation for payment and where notices and
\ndemands to or upon the Company in respect of the Notes and this Indenture may be
\nserved. The Company will give prompt written notice to the Trustee of the
\nlocation, and any change in the location, of such office or agency. If at any
\ntime the Company shall fail to maintain any such required office or agency or to
\nfurnish the Trustee with the address thereof, such presentations, surrenders,
\nnotices and demands may be made or served at the address of the Trustee set
\nforth in Section 11.02 of this Indenture.<\/p>\n
The Company may also from time to time designate one or more other
\noffices or agencies where the Notes may be presented or surrendered for any or
\nall such purposes and may from time to time rescind such designations; provided,
\nhowever, that no such designation or rescission shall in any manner relieve the
\nCompany of its obligation to maintain an office or agency in the Borough of
\nManhattan, the City of New York, for such purposes. The Company will give prompt
\nwritten notice to the Trustee of any such designation or rescission and of any
\nchange in the location of any such other office or agency.<\/p>\n
The Company hereby initially designates the office of Bankers Trust
\nCompany in the Borough of Manhattan, the City of New York, as such office of the
\nCompany in accordance with Section 2.03.<\/p>\n
SECTION 3.03. LIMITATION ON RESTRICTED PAYMENTS.<\/p>\n
(a) So long as any of the Notes are outstanding, the Company shall not,
\nand shall not permit any Project Company to, directly or indirectly, (i) declare
\nor pay (either in cash or property) any dividend on or make any distribution or
\nsimilar payment of any sort in respect of its Equity Interests (including any
\npayment in connection with any merger or consolidation involving the Company) to
\nthe direct or indirect holders of its Equity Interests (other than dividends or
\ndistributions payable solely in its Non-Convertible Capital Stock or rights to
\nacquire its Non-Convertible Capital Stock and dividends or distributions by a
\nProject Company that are paid to the Company or a Wholly Owned Subsidiary and to
\nthe other holders of Equity Interests in such Project Company (A) in accordance
\nwith the joint venture contract, articles of association or other constituent
\ndocument governing such Project Company or (B) as permitted by applicable law),
\n(ii) purchase, redeem, defease or otherwise acquire or retire for value any
\nEquity Interests of the Company or AES, or, with respect to the Company,
\nexercise any option to exchange any Equity Interests that by their terms are
\nexchangeable solely at the option of the Company (other than into Capital Stock
\nof the Company which is neither Exchangeable Stock nor Redeemable Stock), (iii)
\npurchase, repurchase, redeem, defease or otherwise acquire or retire for value,
\nprior to scheduled maturity or scheduled repayment thereof or scheduled sinking
\nfund payment thereon, any Subordinated Indebtedness or (iv) make any Investment,
\nother than a Permitted Investment (each such payment described in clauses
\n(i)-(iv) of this paragraph, a “Restricted Payment”), unless at the time of and
\nafter giving effect to the proposed Restricted Payment:<\/p>\n
(1) no Default or Event of Default shall have occurred and be
\ncontinuing (or would result therefrom);<\/p>\n
(2) the Company would be permitted to Incur an additional $1.00 of
\nIndebtedness pursuant to the provisions of Section 3.04(a); and<\/p>\n
(3) the aggregate amount of all such Restricted Payments subsequent to
\nthe Issue Date shall not exceed the sum of<\/p>\n
(A) 50% of aggregate Consolidated Net Income accrued during
\n the period (treated as one accounting period) from December 1, 1996
\n to the end of the most recent fiscal quarter for which financial
\n statements are available (or if such Consolidated Net Income is a
\n deficit, minus 100% of such deficit);<\/p>\n
(B) the aggregate Net Cash Proceeds received by the Company
\n after the Issue Date from the sale of Equity Interests (other than
\n Redeemable Stock or Exchangeable Stock) of the Company to any person
\n other than the Company, any of its Subsidiaries or an employee stock
\n ownership plan;<\/p>\n
(C) the amount by which the principal amount of, and any
\n accrued interest on, Indebtedness of the Company or its Restricted
\n Subsidiaries (other than Shareholder Loans) is reduced on the
\n Company’s Consolidated balance sheet upon the conversion or exchange
\n (other than by a Subsidiary) subsequent to the Issue Date of any
\n Indebtedness of the Company or any Restricted Subsidiary converted
\n or exchanged for Capital Stock (other than Redeemable Stock or
\n Exchangeable Stock) of the Company (less the amount of any cash, or
\n the value of any other property, distributed by the Company or any
\n such Restricted Subsidiary upon such conversion or exchange); and<\/p>\n
(D) an amount equal to the net reduction in Investments after
\n the Issue Date in Unrestricted Companies resulting from payments of
\n interest on Indebtedness, dividends, repayments of loans or
\n advances, or other transfers of assets, in each case to the Company
\n or any Project Company from Unrestricted Companies or from
\n redesignations of Unrestricted Companies as Project Companies
\n (valued in each case as provided in the definition of
\n “Investments”), not to exceed in the case of any Unrestricted
\n Company the amount of Investments previously made by the Company or
\n any Project Company in such Unrestricted Company.<\/p>\n
(b) The failure to satisfy the conditions set forth in clauses (2) and
\n(3) of Subsection 3.03(a) shall not prohibit any of the following as long as the
\ncondition set forth in clause (1) of Subsection 3.03(a) is satisfied (except as
\nset forth below):<\/p>\n
(i) dividends paid within 60 days after the date of declaration
\n thereof if at such date of declaration such dividend would have complied
\n with Subsection 3.03(a); PROVIDED that, solely for purposes of this clause
\n (i), it shall not be necessary to satisfy the condition set forth in clause
\n (1) of Subsection 3.03(a) at the date of payment if such clause is
\n satisfied at the date of declaration;<\/p>\n
(ii) any purchase, redemption, defeasance, or other acquisition or
\n retirement for value of Capital Stock of the Company or Subordinated
\n Indebtedness made by exchange for, or out of the proceeds of the
\n substantially concurrent sale of, Capital Stock of the Company (other than
\n Redeemable Stock or Exchangeable Stock and other than stock issued or sold
\n to a Subsidiary or to an employee stock ownership plan), PROVIDED, that
\n such purchase, redemption, defeasance or other acquisition or retirement
\n shall not be included in the calculation of Restricted Payments made for
\n purposes of clause (3) of Subsection and PROVIDED, FURTHER, that the Net
\n Cash Proceeds from such sale shall be excluded from sub-clause B of clause
\n (3) of Subsection 3.03(a);<\/p>\n
(iii) any purchase, redemption, defeasance or other acquisition or
\n retirement for value of Subordinated Indebtedness made by exchange for, or
\n out of the proceeds of the substantially concurrent Incurrence of for cash
\n (other than to a Subsidiary), new Indebtedness of the Company, PROVIDED,
\n HOWEVER, that (A) such new Indebtedness shall be contractually subordinated
\n in right of payment to the Notes at least to the same extent as the
\n Indebtedness being so redeemed, repurchased, defeased, acquired or retired,
\n (B) such new Indebtedness has a Stated Maturity either (1) no earlier than
\n the Stated Maturity of the Indebtedness redeemed, repurchased, defeased,
\n acquired or retired or (2) after the Stated Maturity of the Notes and (C)
\n such Indebtedness has an Average Life equal to or greater than the Average
\n Life of the Indebtedness redeemed, repurchased, defeased, acquired or
\n retired, and provided further, that such purchase, redemption, defeasance
\n or other acquisition or retirement shall not be included in the calculation
\n of Restricted Payments made for purposes of clause (3) of Subsection
\n 3.03(a); and<\/p>\n
(iv) any purchase, redemption, defeasance or other acquisition or
\n retirement for value of Subordinated Indebtedness upon a Change of Control
\n or an Asset Sale to the extent required by this Indenture or other
\n agreement pursuant to which such Subordinated Indebtedness was issued, but
\n only if (A) in the case of a Change of Control, the Company has made an
\n offer to repurchase the Notes as described under Section 3.08 or (B) in the
\n case of an Asset Sale, the Company or the applicable Project Company, as
\n the case may be, has applied the Net Available Cash from such Asset Sale in
\n accordance with the provisions of Section 3.12; and<\/p>\n
(v) Restricted Payments not otherwise permitted by the foregoing
\n provisions in an aggregate amount not in excess of $10 million.<\/p>\n
SECTION 3.04. LIMITATION ON INCURRENCE OF INDEBTEDNESS.<\/p>\n
(a) The Company shall not, and shall not permit any Project Company to,
\ndirectly or indirectly, Incur any Indebtedness, except that the Company may
\nIncur Indebtedness if, after giving effect thereto, the Fixed Charge Coverage
\nRatio would be greater than (i) 1.75:1.0 through November 30, 1998, (ii)
\n2.00:1.0 from December 1, 1998 through November 30, 2001, and (iii) 2.25:1.0
\nthereafter.<\/p>\n
(b) Notwithstanding the foregoing, this section shall not limit the
\nability of the Company or any Project Company to Incur the following
\nIndebtedness:<\/p>\n
(i) Indebtedness under the Notes and this Indenture;<\/p>\n
(ii) Refinancing Indebtedness;<\/p>\n
(iii) Indebtedness of the Company which is owned to and held by a
\n Wholly Owned Subsidiary and Indebtedness of a Project Company which is owed
\n to and held by the Company or a Wholly Owned Subsidiary, provided, however,
\n that any subsequent issuance or transfer of any Capital Stock which results
\n in any such Wholly Owned Subsidiary ceasing to be a Wholly Owned Subsidiary
\n or any transfer of such Indebtedness (other than to the Company or a Wholly
\n Owned Subsidiary) shall be deemed, in each case, to constitute the
\n Incurrence of such Indebtedness by the Company or by a Project Company, as
\n the case may be;<\/p>\n
(iv) Acquired Indebtedness that is Non-Recourse Debt;<\/p>\n
(v) Indebtedness of the Company or a Project Company outstanding on
\n the Issue Date;<\/p>\n
(vi) Indebtedness under any Currency Agreement or Interest Rate
\n Agreement in each case entered into in the ordinary course of the financial
\n management of the Company and the Project Companies and not for speculative
\n purposes; provided that, in the case of any Currency Agreement, such
\n Currency Agreement does not increase the Indebtedness of the obligor
\n outstanding at any time other than as a result of fluctuations in foreign
\n currency exchange rates or by reason of fees, indemnities and compensation
\n payable thereunder;<\/p>\n
(vii) Indebtedness incurred in connection with a purchase of the
\n Notes as required in connection with a Change of Control Triggering Event;
\n provided that the aggregate principal amount of such indebtedness does not
\n exceed 101% of the aggregate principal amount of the Notes purchased
\n pursuant to such Change of Control Triggering Event (plus the amount of
\n reasonable fees and expenses, including underwriting discounts and
\n commissions, incurred by the Company in connection with obtaining such
\n Indebtedness) and that such Indebtedness does not mature prior to the
\n Stated Maturity of the Notes so purchased;<\/p>\n
(viii) Indebtedness referred to in clause (viii) of the
\n definition of Permitted Investments;<\/p>\n
(ix) Non-Recourse Debt of a Project Company (other than any
\n Existing Subsidiary);<\/p>\n
(x) Shareholder Loans to the extent that the aggregate principal
\n amount of Shareholder Loans of a Project Company is not greater than an
\n amount equal to the principal amount of Shareholder Loans of such Project
\n Company payable to the Company or a Wholly Owned Subsidiary divided by the
\n Company’s percentage ownership of the Capital Stock of such Project
\n Company;<\/p>\n
(xi) Non-Recourse Debt of any Existing Subsidiary Incurred to pay
\n for construction cost overruns; provided that the aggregate principal
\n amount of all such Non-Recourse Debt incurred under this clause (xi) shall
\n not exceed $15 million;<\/p>\n
(xii) Non-Recourse Debt of any Existing Subsidiary Incurred to
\n provide for working capital; provided that the aggregate principal amount
\n outstanding at any time of all such Non-Recourse Debt under this clause
\n (xii) shall not exceed $10 million; and<\/p>\n
(xiii) other Indebtedness Incurred by the Company or any Project
\n Company (other than an Existing Subsidiary) in an aggregate principal
\n amount outstanding at any time of not more than 5% of Consolidated Net
\n Worth.<\/p>\n
(c) Notwithstanding Sections 3.04(a) and (b), the Company shall not
\nIncur any Indebtedness if the proceeds thereof are used, directly or indirectly,
\nto repay, prepay, redeem, defease, retire, refund or refinance any Subordinated
\nIndebtedness unless such repayment, prepayment, redemption, defeasance,
\nretirement, refunding or refinancing is not prohibited by Section 3.03 or unless
\nsuch Indebtedness shall be contractually subordinated to the Notes at least to
\nthe same extent as such Subordinated Indebtedness.<\/p>\n
SECTION 3.05. LIMITATION ON PAYMENT RESTRICTIONS AFFECTING PROJECT
\nCOMPANIES.<\/p>\n
The Company shall not, and shall not permit any Project Company to,
\ncreate or otherwise cause or permit to exist or become effective any consensual
\nencumbrance or restriction on the ability of any Project Company to (i) pay
\ndividends to or make any other distributions on its Capital Stock, or pay any
\nIndebtedness or other obligations owed to the Company or any other Project
\nCompany, (ii) make any loans or advances to the Company or any Project Company
\nor (iii) transfer any of its property or assets to the Company or any other
\nProject Company; PROVIDED, HOWEVER, that the foregoing shall not apply to:<\/p>\n
(a) any encumbrance or restriction existing pursuant to this Indenture
\nor any other agreement or instrument as in effect or entered into on the Issue
\nDate;<\/p>\n
(b) any encumbrance or restriction with respect to any Person or the
\nassets of such Person acquired by the Company or any Project Company and
\nexisting at the time of such acquisition; PROVIDED, HOWEVER, that such
\nencumbrance or restriction was not Incurred in connection with or in
\ncontemplation of such Project Company becoming a Project Company;<\/p>\n
(c) any encumbrance or restriction pursuant to an agreement effecting a
\nrefinancing of Indebtedness referred to in clause (a) or (b) above or contained
\nin any amendment or modification with respect to such Indebtedness; provided,
\nhowever, that the encumbrances and restrictions contained in any such agreement,
\namendment or modification are no less favorable in any material respect with
\nrespect to the matters referred to in clauses (i), (ii) and (iii) above than the
\nencumbrances and restrictions with respect to the Indebtedness being refinanced,
\namended or modified;<\/p>\n
(d) in the case of clause (iii) above, customary non-assignment
\nprovisions of (A) any leases governing a leasehold interest or (B) any supply,
\nlicense or other agreement entered into in the ordinary course of business of
\nthe Company or any Project Company;<\/p>\n
(e) any restrictions with respect to a Project Company imposed pursuant
\nto an agreement entered into for the sale or disposition of all or substantially
\nall of the Capital Stock or assets of such Project Company pending the closing
\nof such sale or disposition;<\/p>\n
(f) any encumbrances or restrictions imposed pursuant to the terms of
\nNon-Recourse Debt incurred pursuant to Section 3.04(b)(x), provided that such
\nencumbrances or restrictions, in the written opinion of the President or Chief
\nFinancial Officer of the Company, (x) are required in order to obtain such
\nfinancing, (y) are not materially more restrictive, taken as a whole, than
\nencumbrances and restrictions customarily accepted (or, in the absence of any
\nindustry custom, reasonably acceptable), in substantially non-recourse project
\nfinancings and (z) apply only to the assets of the Project Company that has
\nIncurred such Non-Recourse Debt, the Capital Stock of such Person (or any other
\nPerson that, directly or indirectly, owns such Capital Stock as its sole assets)
\nand the income and proceeds therefrom;<\/p>\n
(g) any encumbrance or restriction existing by reason of applicable
\nlaw; and<\/p>\n
(h) any restriction under a joint venture, shareholders’ or similar
\nagreement to pay dividends or make other distributions, so long as there is a
\ncontemporaneous agreement providing for the payment of dividends or the making
\nof distributions according to a schedule or calculation notwithstanding such
\nrestriction.<\/p>\n
Nothing contained in this Section 3.05 shall prevent the Company or any
\nProject Company from (1) creating, incurring, assuming or suffering to exist any
\nLiens otherwise permitted in Section 3.07 or (2) restricting the sale or other
\ndisposition of property or assets of the Company or any Project Company that
\nsecure Indebtedness.<\/p>\n
SECTION 3.06. PAYMENT OF ADDITIONAL AMOUNTS.<\/p>\n
All payments of principal and interest in respect of each Note shall be
\nmade free and clear of, and without withholding or deduction for, any taxes,
\nduties, assessments or governmental charges of whatever nature imposed, levied,
\ncollected, withheld or assessed by or within Bermuda or any other jurisdiction
\nin which the Company is organized or any authority therein or thereof having
\npower to tax or from which any payment is made with respect to the Notes, unless
\nsuch withholding or deduction is required by law or by regulation or
\ngovernmental policy having the force of law. In the event that any such
\nwithholding or deduction in respect of principal or interest is so required, the
\nCompany shall pay such additional amounts (“Additional Amounts”) as will result
\nin receipt by each Holder of any Note of such amounts as would have been
\nreceived by such Holder or the beneficial owner with respect to such Note had no
\nsuch withholding or deduction been required, except that no Additional Amounts
\nshall be payable:<\/p>\n
(a) for or on account of:<\/p>\n
(i) any tax, duty, assessment or other governmental charge
\n that would not have been imposed but for<\/p>\n
(A) the existence of any present or former connection
\n between such Holder or the beneficial owner of such Note and
\n Bermuda or such other jurisdiction in which the Company is
\n organized, as the case may be, other than merely holding
\n such Note, including, without limitation, such Holder or the
\n beneficial owner of such Note being or having been a
\n national, domiciliary or resident of or treated as a
\n resident thereof or being or having been present or engaged
\n in a trade or business therein or having or having had a
\n permanent establishment therein;<\/p>\n
(B) presentation of such Note (where presentation is
\n required) more than thirty (30) days after the date on which
\n the payment in respect of such Note became due and payable
\n or provided for, whichever is later, except to the extent
\n that such Holder would have been entitled to such Additional
\n Amounts if it had presented such Note for payment on any day
\n within such period of thirty (30) days; or<\/p>\n
(C) the presentation of such Note for payment in
\n Bermuda or any political subdivision thereof or therein,
\n unless such Note could not have been presented for payment
\n elsewhere;<\/p>\n
(ii) any estate, inheritance, gift, sale, transfer, personal
\n property or similar tax, assessment or other governmental charge;<\/p>\n
(iii) any tax, assessment or other governmental charge that
\n is imposed or withheld by reason of the failure of such Holder or the
\n beneficial owner of such Note to comply with a request by the Company
\n addressed to such Holder (A) to provide information concerning the
\n nationality, residence or identity of such Holder or such beneficial owner
\n or (B) to make any declaration or other similar claim or satisfy any
\n information or reporting requirement, which, in the case of (A) or (B), is
\n required or imposed by a statute, treaty, regulation or administrative
\n practice of the taxing jurisdiction as a precondition to exemption from all
\n or part of such tax, assessment or other governmental charge;<\/p>\n
(iv) any tax, duty, assessment or governmental charge which
\n is payable other than by withholding or deduction from payments with
\n respect to the Notes; or<\/p>\n
(v) any combination of items (1), (2), (3) and (4);<\/p>\n
(b) with respect to any payment of the principal of or interest on such
\nNote to such Holder (including a fiduciary or partnership) to the extent that
\nthe beneficial owner of such Note would not have been entitled to such
\nAdditional Amounts had it been the Holder of the Note.<\/p>\n
Whenever there is mentioned, in any context, the payment of principal
\nor interest in respect of any Note or the net proceeds received on the sale or
\nexchange of any Note, such mention shall be deemed to include the payment of
\nAdditional Amounts provided for in this Indenture to the extent that, in such
\ncontext, Additional Amounts are, were or would be payable in respect thereof
\npursuant to this Indenture.<\/p>\n
SECTION 3.07. LIMITATION ON LIENS.<\/p>\n
The Company shall not, and shall not permit any Project Company to
\ndirectly or indirectly, incur or permit to exist any Lien of any nature
\nwhatsoever on any of its properties (including, without limitation, Capital
\nStock), whether owned at the date of such Indenture or thereafter acquired,
\nunless contemporaneously therewith or prior thereto the Notes are equally and
\nratably secured other than:<\/p>\n
(a) pledges or deposits made by such Person under workers’
\ncompensation, unemployment insurance laws or similar legislation, or good faith
\ndeposits in connection with bids, tenders, contracts (other than for payment of
\nIndebtedness) or leases to which such Person is a party, or deposits to secure
\nstatutory or regulatory obligations of such Person or deposits of cash or United
\nStates government bonds to secure surety, appeal or performance bonds to which
\nsuch Person is a party, or deposits as security for contested taxes or import
\nduties or for the payment of rent, in each case Incurred in the ordinary course
\nof business;<\/p>\n
(b) Liens imposed by law such as carriers’, warehousemen’s and
\nmechanics’ Liens, in each case, arising in the ordinary course of business and
\nwith respect to amounts not yet due or being contested in good faith by
\nappropriate legal proceedings promptly instituted and diligently conducted and
\nfor which a reserve or other appropriate provision, if any, as shall be required
\nin conformity with GAAP shall have been made; or other Liens arising out of
\njudgments or awards against such Person with respect to which such Person shall
\nthen be diligently prosecuting appeal or other proceedings for review;<\/p>\n
(c) Liens for property taxes not yet subject to penalties for
\nnon-payment or which are being contested in good faith and for which appropriate
\nprovision as shall be required in conformity with GAAP, if any, shall have been
\nmade;<\/p>\n
(d) Liens in favor of issuers or surety bonds or letters of credit
\nissued pursuant to the request of and for the account of such Person in the
\nordinary course of its business; PROVIDED, HOWEVER, that such letters of credit
\nmay not constitute Indebtedness;<\/p>\n
(e) minor survey exceptions, minor encumbrances, easements or
\nreservations of, or rights of others for, rights of way, sewers, electric lines,
\ntelegraph and telephone lines and other similar purposes, or zoning or other
\nrestrictions as to the use of real properties or liens incidental to the conduct
\nof the business of such Person or to the ownership of its properties which were
\nnot Incurred in connection with Indebtedness or other extensions of credit and
\nwhich do not in the aggregate materially adversely affect the value of said
\nproperties or materially impair their use in the operation of the business of
\nsuch Person;<\/p>\n
(f) Liens securing Indebtedness Incurred to finance the construction or
\npurchase of, or repairs, improvements or additions to, property; provided,
\nhowever, that the Lien may not extend to any other property owned by the Company
\nor a Project Company and the Indebtedness secured by the Lien may not be issued
\nmore than 270 days after the later of the acquisitions, completion of
\nconstruction, repair, improvement, addition or commencement of full operation of
\nthe property subject to the Lien;<\/p>\n
(g) Liens existing on the Issue Date;<\/p>\n
(h) Liens on property or shares of stock of a Person at the time such
\nPerson becomes a Project Company, PROVIDED, HOWEVER, that any such Lien may not
\nextend to any other property owned by the Company or any Project Company;<\/p>\n
(i) Liens on property at the time the Company or a Project Company
\nacquires the property, including any acquisitions by means of a merger or
\nconsolidation with or into the Company or a Project Company; PROVIDED, HOWEVER,
\nthat such Liens are not incurred in connection with, or in contemplation of,
\nsuch merger or consolidation; and PROVIDED, FURTHER, that the Lien may not
\nextend to any other property owned by the Company or any Project Company;<\/p>\n
(j) Liens securing Indebtedness or other obligations of a Project
\nCompany owing to the Company or a Wholly Owned Subsidiary;<\/p>\n
(k) Liens incurred by a Person other than the Company or a Project
\nCompany on assets that are the subject of a Capitalized Lease Obligation to
\nwhich the Company or a Project Company is a party; PROVIDED, HOWEVER, that any
\nsuch Lien may not secure Indebtedness of the Company or Project Company (except
\nby virtue of clause (viii) of the definition of “Indebtedness”) and may not
\nextend to any other property owned by the Company or any Project Company;<\/p>\n
(l) Liens Incurred by a Project Company to secure Non-Recourse Debt
\nIncurred pursuant to paragraphs (ix), (xi) or (xii) of Section 3.04(b), provided
\nthat such Liens (x) are required in order to obtain such financing, (y) are not
\nmaterially more restrictive, taken as a whole, than Liens customarily accepted
\n(or, in the absence of any industry custom, reasonably acceptable), in
\nsubstantially non-recourse project financings and (z) apply only to the assets
\nof the Person that has incurred such Non-Recourse Debt, the Capital Stock of
\nsuch Person (or any other Person that, directly or indirectly, owns such Capital
\nStock as its sole assets) and the income and proceeds therefrom;<\/p>\n
(m) Liens not in respect of Indebtedness consisting of the interest of
\nthe lessor under any lease Incurred in the ordinary course of business and not
\notherwise prohibited by this Indenture;<\/p>\n
(n) Liens which constitute banker’s liens, rights of set-off or similar
\nrights and remedies as to deposit accounts or other funds maintained with any
\nbank or other financial institution, whether arising by operation of law or
\npursuant to contract;<\/p>\n
(o) Liens Incurred pursuant to the Security Agreement; and<\/p>\n
(p) Liens to secure any refinancing, refunding, extension, renewal or
\nreplacement (or successive refinancings, refundings, extensions, renewals or
\nreplacements) as a whole, or in part, of any Indebtedness secured by any Lien
\nreferred to in the foregoing clauses (f), (g), (h) and (i), PROVIDED, HOWEVER,
\nthat (x) such new Lien shall be limited to all or part of the same property that
\nsecured the original Lien (plus improvements on such property) and (y) the
\nIndebtedness secured by such Lien at such time is not increased (other than by
\nan amount necessary to pay fees and expenses, including premiums, related to the
\nrefinancing, refunding, extension, renewal or replacement of such Indebtedness).<\/p>\n
SECTION 3.08. CHANGE OF CONTROL.<\/p>\n
In the event of a Change of Control Triggering Event, the Company shall
\nmake an offer to purchase (the “CHANGE OF CONTROL OFFER”) the Notes then
\noutstanding at a purchase price of not less than 101% of the principal amount
\n(excluding any premium) thereof plus accrued and unpaid interest to the Change
\nof Control Purchase Date (as defined below) on the terms set forth in this
\nsection. The date on which the Company shall purchase the Notes pursuant to this
\nsection (the “CHANGE OF CONTROL PURCHASE DATE”) shall be no earlier than 30
\ndays, nor later than 60 days, after the notice referred to below is mailed,
\nunless a longer period shall be required by law. The Company shall notify the
\nTrustee in writing promptly after any Change of Control Triggering Event of the
\nCompany’s obligation to offer to purchase all of the Notes.<\/p>\n
Notice of a Change of Control Offer shall be mailed by the Company to
\nthe Holders of the Notes at their last registered address (with a copy to the
\nTrustee and the Paying Agent) within thirty (30) days after a Change of Control
\nTriggering Event has occurred. The Change of Control Offer shall remain open
\nfrom the time of mailing until a date not more than five (5) Business Days
\nbefore the Change of Control Purchase Date. The notice shall contain all
\ninstructions and materials necessary to enable such Holders to tender (in whole
\nor in part) the Notes pursuant to the Change of Control Offer. The notice, which
\nshall govern the terms of the Change of Control Offer, shall state:<\/p>\n
(a) that the Change of Control Offer is being made pursuant to this
\nsection;<\/p>\n
(b) the purchase price and the Change of Control Purchase Date;<\/p>\n
(c) that any Note not surrendered or accepted for payment will continue
\nto accrue interest;<\/p>\n
(d) that any Note accepted for payment pursuant to the Change of
\nControl Offer shall cease to accrue interest after the Change of Control
\nPurchase Date;<\/p>\n
(e) that any Holder electing to have a Note purchased (in whole or in
\npart) pursuant to a Change of Control Offer will be required to surrender the
\nNote, with the form entitled “Option of Holder to Elect Purchase” on the reverse
\nof the Note completed, to the Paying Agent at the address specified in the
\nnotice (or otherwise make effective delivery of the Note pursuant to book-entry
\nprocedures and the related rules of the applicable depositories) at least five
\n(5) Business Days before the Change of Control Purchase Date; and<\/p>\n
(f) that any Holder will be entitled to withdraw his or her election if
\nthe Paying Agent receives, not later than three (3) Business Days prior to the
\nChange of Control Purchase Date, a telegram, telex, facsimile transmission or
\nletter setting forth the name of the Holder, the principal amount of the Note
\nthe Holder delivered for purchase and a statement that such Holder is
\nwithdrawing his or her election to have the Note purchased.<\/p>\n
On the Change of Control Purchase Date, the Company shall (i) accept
\nfor payment the Notes, or portions thereof, surrendered and properly tendered,
\nand not withdrawn, pursuant to the Change of Control Offer, (ii) deposit with
\nthe Paying Agent, no later than 11:00 a.m. eastern standard time, money, in
\nimmediately available funds, sufficient to pay the purchase price of all Notes
\nor portions thereof so accepted and (iii) deliver to the Trustee, no later than
\n11:00 a.m. eastern standard time, Notes so accepted together with an Officers’
\nCertificate stating that such Notes have been accepted for payment by the
\nCompany. The Paying Agent shall promptly mail or deliver to Holders of Notes so
\naccepted payment in an amount equal to the purchase price. Holders whose Notes
\nare purchased only in part will be issued new Notes equal in principal amount to
\nthe unpurchased portion of the Notes surrendered.<\/p>\n
The Company shall comply, to the extent applicable, with the
\nrequirements of Section 14(e) of the Exchange Act and any other securities laws
\nor regulations in connection with the repurchase of Notes pursuant to this
\nsection. To the extent that the provisions of any securities laws or regulations
\nconflict with provisions of this section, the Company shall comply with the
\napplicable securities laws and regulations and shall not be deemed to have
\nbreached its obligations under this section by virtue thereof.<\/p>\n
SECTION 3.09. COMPLIANCE CERTIFICATE.<\/p>\n
(a) The Company shall, within 120 days after the close of each fiscal
\nyear following the issuance of the Notes, file with the Trustee an Officer’s
\nCertificate, covering the period from the date of issuance of the Notes to the
\nend of the fiscal year in which the Notes were issued, in the case of the first
\nsuch certificate, and covering the preceding fiscal year in the case of each
\nsubsequent certificate, and stating whether or not, to the knowledge of each
\nsuch executing Officer, the Company has complied with and performed and
\nfulfilled all covenants on its part contained in this Indenture and is not in
\ndefault in the performance or observance of any of the terms or provisions
\ncontained in this Indenture, and, if any such signer has obtained knowledge of
\nany default by the Company in the performance, observance or fulfillment of any
\nsuch covenant, term or provision specifying each such default and the nature
\nthereof. For the purpose of this Section 3.09, compliance shall be determined
\nwithout regard to any grace period or requirement of notice provided pursuant to
\nthe terms of this Indenture.<\/p>\n
(b) The Officers’ Certificate described in Section 3.09(a) shall also
\nset forth (i) a calculation of the Fixed Charge Coverage Ratio as of the date of
\nsuch certificate and (ii) a calculation of the amount required to be maintained
\nby the Company pursuant to Section 3.13, as of the end of the most recent fiscal
\nquarter for which financial information is available, setting forth, in each
\nsuch case, each component of the calculation thereof.<\/p>\n
SECTION 3.10. COMMISSION REPORTS.<\/p>\n
The Company shall deliver to the Trustee and to the Holders, within 30
\ndays after the filing with the Commission, copies of the annual and quarterly
\nreports and of the information, documents and other reports (or copies of such
\nportions of any of the foregoing as the Commission may by rules and regulations
\nprescribe) which the Company is required to file with the Commission pursuant to
\nSection 13 or 15(d) of the Exchange Act. In the event the Company is at any time
\nno longer subject to the reporting requirements of Section 13 or 15(d) of the
\nExchange Act or otherwise report on an annual and quarterly basis on forms
\nprovided for such annual and quarterly reporting pursuant to rules and
\nregulations promulgated by the Commission, it shall, for so long as the Notes
\nremain outstanding, file with the Trustee and the Commission and mail to each
\nHolder at such Holder’s registered address, within 30 days after the Company
\nwould have been required to file such documents with the Commission, copies of
\nthe annual audited financial statements and quarterly unaudited financial
\nstatements, along in each case with a discussion and analysis thereof, all in
\nthe form the Company would have been required to file with the Commission if the
\nCompany had continued to be subject to such Section 13 or 15(d). The Company
\nshall not be obligated to file any such reports with the Commission if the
\nCommission does not permit such filings. The Company shall also be required to
\ndeliver, together with each annual and quarterly financial statements delivered
\npursuant to this paragraph, a calculation of the Fixed Charge Coverage Ratio as
\nof the date such financial statements are filed or otherwise released. The
\nCompany also shall comply with the other provisions of TIA ss.314(a).<\/p>\n
SECTION 3.11. LIMITATION ON TRANSACTIONS WITH AFFILIATES.<\/p>\n
The Company shall not, and shall not permit any Project Company to,
\ndirectly or indirectly, enter into, permit to exist, renew or extend any
\ntransaction or series of related transactions (including, without limitation,
\nthe sale, purchase, exchange or lease of any assets or property or the rendering
\nof any services) with any Affiliate of the Company (other than a Project
\nCompany) unless (i) the terms of such transaction or series of related
\ntransactions are (A) no less favorable to the Company or such Project Company,
\nas the case may be, than would be obtainable in a comparable transaction or
\nseries of related transactions in arm’s-length dealings with an unrelated third
\nparty and (B) set forth in writing, if such transaction or series of related
\ntransactions involve aggregate payments or consideration in excess of
\n$1,000,000, and (ii) with respect to a transaction or series of related
\ntransactions involving the sale, purchase, lease or exchange of property or
\nassets having a value in excess of $5,000,000, such transaction or series of
\ntransactions has been approved by a majority of the disinterested members of the
\nBoard of Directors or, if there are no disinterested members of the Board of
\nDirectors, the Board of Directors shall have received a written opinion of a
\ninternationally recognized investment banking firm stating that such transaction
\nor series of transactions is fair to the Company or such Project Company from a
\nfinancial point of view.<\/p>\n
The foregoing provisions do not prohibit:<\/p>\n
(i) the payment of reasonable fees to directors of the Company
\n and the Project Companies who are not employees of the Company or a
\n Project Company;<\/p>\n
(ii) any transaction between the Company and a Wholly Owned
\n Subsidiary or between Wholly Owned Subsidiaries not otherwise
\n prohibited by the terms of this Indenture;<\/p>\n
(iii) the payment of any Restricted Payment which is expressly
\n permitted to be paid pursuant to Section 3.03(b);<\/p>\n
(iv) any issuance of securities or other reasonable payments,
\n awards or grants, in cash or otherwise, pursuant to, or the funding of,
\n employment arrangements approved by the Board of Directors;<\/p>\n
(v) the grant of stock options or similar rights to employees
\n and directors of the Company pursuant to plans approved by the Board of
\n Directors;<\/p>\n
(vi) loans or advances to employees in the ordinary course of
\n business;<\/p>\n
(vii) any repurchase, redemption or other retirement of Equity
\n Interests of the Company held by employees of the Company or any of the
\n Project Companies upon death, disability or termination of employment
\n at a price not in excess of the fair market value thereof approved by
\n the Board of Directors or other governing body of such Project Company;<\/p>\n
(viii) the extension, renewal, entry into or payment pursuant
\n to any services agreement with AES that provides for the payment by the
\n Company to AES of fees on terms that are not more advantageous to AES
\n than as provided under the Services Agreement as in effect on the Issue
\n Date; and<\/p>\n
(ix) any agreement to do any of the foregoing.<\/p>\n
Any transaction which has been determined, in the written opinion of an
\nindependent internationally recognized investment banking firm, to be fair, from
\na financial point of view, to the Company or the applicable Project Company,
\nshall be deemed to be in compliance with this section.<\/p>\n
SECTION 3.12. LIMITATION ON SALES OF ASSETS AND REFINANCINGS.<\/p>\n
(a) The Company shall not, and shall not permit any Project Company to,
\nconsummate any Asset Sale other than to the Company or a Wholly Owned Subsidiary
\nunless (i) the Company or such Project Company, as the case may be, receives
\nconsideration at the time of such Asset Sale at least equal to the fair market
\nvalue, as determined in good faith by the Board of Directors, as evidenced by a
\nBoard Resolution, of the shares or assets disposed of pursuant to such Asset
\nSale, (ii) at least 75% of the consideration thereof received by the Company or
\nsuch Project Company is in the form of cash or cash equivalents which are
\npromptly converted into cash by the Person receiving such payment and (iii) an
\namount equal to 100% of the Net Available Cash is applied by the Company (or
\nsuch Project Company, as the case may be) as set forth herein.<\/p>\n
(b) To the extent that the fair market value (as determined in good
\nfaith by the Board of Directors, as evidence by a Board Resolution) of any
\nasset, property or Capital Stock disposed of in any Asset Sale (other than an
\nAsset Sale of the assets, property or Capital Stock of any Existing Subsidiary
\nor Existing Joint Venture), together with the fair market value of all other
\nassets, property, or Capital Stock sold, transferred or otherwise disposed of in
\nsuch Asset Sales received during the twelve month period preceding the date of
\nsuch Asset Sale, exceeds 5% of Consolidated Net Tangible Assets, then within
\nthree hundred sixty-five (365) days (such period being the “APPLICATION PERIOD”)
\nfollowing the consummation of an Asset Sale, the Company or such Project Company
\nshall apply the Net Available Cash from such Asset Sale as follows: (i) to the
\nextent the Company or such Project Company elects, to reinvest in Additional
\nAssets (including by means of an investment in Additional Assets by a Project
\nCompany with Net Available Cash received by the Company or another Project
\nCompany or by means of an exchange of assets that achieves a similar effect);
\n(ii) to the extent of the balance of such Net Available Cash after application
\nin accordance with clause (i) and to the extent the Company or such Project
\nCompany elects (or is required by the terms of any Indebtedness or any
\nIndebtedness of such Project Company), to prepay, repay or purchase Indebtedness
\nof the Company (other than Notes or Subordinated Indebtedness) or Indebtedness
\nof any Project Company (other than Non-Recourse Debt, Indebtedness owed to the
\nCompany or an Affiliate of the Company or Preferred Stock); PROVIDED, that in
\nconnection with any prepayment, repayment or purchase of Indebtedness pursuant
\nto clause (ii) above, the Company or such Project Company shall retire such
\nIndebtedness and cause the related loan commitment (if any) to be permanently
\nreduced in an amount equal to the principal amount so prepaid, repaid or
\npurchased; or (iii) to the extent of the balance of the Net Available Cash after
\napplication in accordance with the preceding clauses (i) and (ii) (the “EXCESS
\nPROCEEDS”), the Company shall, within 30 days after the end of the Application
\nPeriod, except as provided below, make an offer to purchase the Notes (an
\n“EXCESS PROCEEDS OFFER”) at a purchase price of not less than 100% of the
\nprincipal amount (excluding any premium) plus accrued and unpaid interest
\npursuant to and subject to the conditions set forth in this Indenture. To the
\nextent that any Net Available Cash from any Asset Sale remains after an Excess
\nProceeds Offer, the Company or such Project Company may utilize such remaining
\nNet Available Cash in any manner not otherwise prohibited by this Indenture.<\/p>\n
In the event of the transfer of substantially all (but not all) of the
\nproperty and assets of the Company as an entirety to a Person in a transaction
\npermitted under Article 4, the Successor Corporation shall be deemed to have
\nsold the properties and assets of the Company not so transferred for purposes of
\nthis Section 3.12; and shall comply with the provisions of this Section 3.12
\nwith respect to such deemed sale as if it were an Asset Sale.<\/p>\n
(c) The Company shall not be required to make an Excess Proceeds Offer
\nif the amount of Excess Proceeds is less than $5,000,000 for any particular
\nAsset Sale (which lesser amounts shall not be carried forward for purposes of
\ndetermining whether an Excess Proceeds Offer is required with respect to the Net
\nAvailable Cash from any subsequent Asset Sale).<\/p>\n
(d) (1) The Company shall, within 30 days after the occurrence of any
\nSpecial Proceeds Event, cause all Special Proceeds with respect to such Special
\nProceeds Event to be deposited into the Special Proceeds Account held by the
\nCollateral Agent and the Company shall, to the extent of the amounts on deposit
\nin the Special Proceeds Account, except as provided below, make an offer to
\npurchase the Notes (a “SPECIAL PROCEEDS OFFER,” and together with an Excess
\nProceeds Offer, an “OFFER”), at a purchase price of not less than 101% of the
\nprincipal amount (excluding any premium) plus accrued and unpaid interest
\npursuant to and subject to the conditions set forth in this Indenture. To the
\nextent that any Special Proceeds remain after a Special Proceeds Offer, the
\nCollateral Agent shall retain such amounts on deposit in the Special Proceeds
\nAccount in the form of cash or Dollar Permitted Investments. Under this
\nIndenture, the Company shall not be required to make a Special Proceeds Offer
\nunless the amount held by the Collateral Agent in the Special Proceeds Account
\nis greater than $5,000,000.<\/p>\n
(2) The Company will make an Offer by mailing by first class mail to
\neach Holder, with a copy to the Trustee, within 30 days after the end of the
\nrelevant Application Period or Special Proceeds Event, a written notice stating
\nthat the Holder may elect to have his Notes purchased by the Company either in
\nwhole or in part (subject to proration as hereinafter described in the event the
\nOffer is oversubscribed) in integral multiples of $1,000 of principal amount, at
\nthe applicable purchase price. The notice shall specify a purchase date not less
\nthan 30 days, nor more than 60 days, after the date of such notice (the
\n“PURCHASE DATE”) and shall contain the information required in a notice for a
\nChange of Control Offer, to the extent applicable.<\/p>\n
(3) Not later than the date upon which written notice of an Offer is
\ndelivered to the Trustee as provided above, the Company shall deliver to the
\nTrustee an Officers’ Certificate as to (i) the amount of the Offer (the “OFFER
\nAMOUNT”) and (ii) (A) in the case of an Excess Proceeds Offer, the allocation
\npursuant to which such Offer is being made and the compliance of such allocation
\nwith the provisions of Section 3.12(a) or (B) in the case of a Special Proceeds
\nOffer, the calculation of Special Proceeds arising from such Special Proceeds
\nEvent. On such date, the Company shall also deposit with the Collateral Agent,
\nin the case of a Special Proceeds offer or with a Paying Agent (or, if the
\nCompany is acting as its own Paying Agent, segregate and hold in trust), in the
\ncase of an Excess Proceeds Offer funds in an amount equal to the Offer Amount to
\nbe held for payment in accordance with the provisions of this section and the
\nSecurity Agreement. Upon the expiration of the period for which the Offer
\nremains open (the “OFFER PERIOD”), the Company shall deliver, or cause to be
\ndelivered, to the Trustee the Notes or portions thereof which have been properly
\ntendered to and are to be accepted by the Company. The Collateral Agent or the
\nPaying Agent, as the case may be, shall promptly, and in any event within one
\n(1) Business Day following the Purchase Date, mail or deliver payment to each
\ntendering Holder in the amount of the purchase price. In the event that the
\naggregate purchase price of the Notes delivered, or caused to be delivered, by
\nthe Company to the Trustee is less than the Offer Amount, the Collateral Agent
\nor the Paying Agent, as the case may be, shall deliver the excess to the Company
\nimmediately after the expiration of the Offer Period and the delivery to the
\nTrustee of the Notes or portions thereof that have been properly tendered to and
\nare to be accepted for payment by the Company.<\/p>\n
(4) Holders electing to have a Note purchased will be required to
\nsurrender the Note, with the form entitled “Option of Holder to Elect Purchase”
\non the reverse of the Note duly completed, to the Company or the Paying Agent,
\nas specified in, and at the address specified in, the notice at least ten (10)
\nBusiness Days prior to the Purchase Date. Holders will be entitled to withdraw
\ntheir election if the Trustee or the Paying Agent receives, not later than three
\nBusiness Days prior to the Purchase Date, a telegram, telex, facsimile
\ntransmission or letter setting forth the name of the Holder, the principal
\namount of the Note which was delivered for purchase by the Holder and a
\nstatement that such Holder is withdrawing his election to have such Note
\npurchased. If at the expiration of the Offer Period the aggregate principal
\namount of Notes surrendered by Holders exceeds the Offer Amount, the Company
\nshall elect the Notes to be purchased on a pro rata basis (with such adjustments
\nas may be deemed appropriate by the Company so that only Notes in denominations
\nof $1,000, or integral multiples thereof, shall be purchased) and shall notify
\nthe Trustee of its selection in a writing signed by two Authorized Officers.
\nHolders whose Notes are purchased only in part will be issued new Notes equal in
\nprincipal amount to the unpurchased portion of the Notes surrendered.<\/p>\n
(e) At the time the Company delivers Notes to the Trustee which are to
\nbe accepted for purchase, the Company will also deliver an Officers’ Certificate
\nstating that such Notes are to be accepted by the Company pursuant to and in
\naccordance with the terms of this section. A Note shall be deemed to have been
\naccepted for purchase at the time the Collateral Agent or the Paying Agent, as
\nthe case may be, directly or through an agent, mails or delivers payment
\ntherefor to the surrendering Holder.<\/p>\n
(f) The Company shall comply to the extent applicable, with the
\nrequirements of Section 14(e) of the Exchange Act and other securities laws or
\nregulations in connection with the repurchase of Notes pursuant to this section.
\nTo the extent that the provisions of any securities laws or regulations conflict
\nwith provisions of this section, the Company shall comply with the applicable
\nsecurities laws and regulations and shall not be deemed to have breached its
\nobligations under this section by virtue thereof. If the Company is prohibited
\nby applicable law from making the Offer or purchasing Notes thereunder, the
\nCompany need not make an Offer pursuant to this section for so long as such
\nprohibition is in effect.<\/p>\n
SECTION 3.13. MAINTENANCE OF CERTAIN CASH PROCEEDS.<\/p>\n
At any time (x) prior to the later to occur of (i) the commencement of
\ncommercial operation of each of the Existing Joint Ventures and Existing
\nSubsidiaries and (ii) January 1, 2000 or (y) at which the Fixed Charge Coverage
\nRatio is less than 2.0:1.0, the Company shall maintain (on an unconsolidated
\nbasis) cash and Permitted Investments of the type referred to in clauses (vi)
\nand (vii) of the definition thereof (exclusive of any amounts held in the Debt
\nService Reserve Account or the Special Proceeds Account) in an amount equal to
\nor greater than the Existing Project Company Net Cash Flow for the period from
\nthe Restricted Date to the date of determination. For purposes hereof, the
\n“Restricted Date” means December 1, 1996 or, if the Fixed Charge Coverage Ratio
\nshall at any time have been equal to or greater than 2.0:1.0, then the most
\nrecent date on which the Fixed Charge Coverage Ratio shall have decreased to
\nbelow 2.0:1.0.<\/p>\n
SECTION 3.14. PAYMENT OF STAMP DUTY AND OTHER TAXES.<\/p>\n
The Company will pay any present or future stamp, court or documentary
\ntaxes, or any other excise or property taxes, charges or similar levies which
\narise under the laws of Bermuda from the execution, delivery or registration of
\nthe Notes or any other document or instrument referred to herein.<\/p>\n
SECTION 3.15 PAYMENT OF TAXES AND OTHER CLAIMS.<\/p>\n
The Company shall pay or discharge, or cause to be paid or discharged,
\nbefore any material penalty accrues thereon all material taxes, assessments and
\ngovernmental charges levied or imposed upon the Company or any Restricted
\nSubsidiary or upon the income, profits or property of the Company or any
\nRestricted Subsidiary; PROVIDED, HOWEVER, that the Company shall not be required
\nto pay or discharge, or cause to be paid or discharged, any such tax,
\nassessment, charge or claim the amount, applicability or validity of which is
\nbeing contested in good faith by appropriate proceedings and for which adequate
\nreserves, if the same shall be required in accordance with GAAP, have been made.<\/p>\n
SECTION 3.16. NOTICE OF DEFAULTS AND OTHER EVENTS.<\/p>\n
In the event that any Indebtedness of the Company or any Project
\nCompany having an outstanding principal amount in excess of $5,000,000 (or its
\nforeign currency equivalent) individually or in the aggregate has been or could
\nbe declared due and payable before its maturity because of the occurrence of any
\nevent of default under such Indebtedness (including any Default under this
\nIndenture), the Company, promptly after it becomes aware thereof, will give
\nwritten notice thereof to the Trustee.<\/p>\n
SECTION 3.17. MAINTENANCE OF INSURANCE.<\/p>\n
The Company shall cause each Project Company to maintain insurance
\npolicies covering such risks, in such amounts and with such terms as are
\nnormally carried by similarly situated foreign invested companies engaged in the
\nLine of Business in the country in which such Project Company is located.<\/p>\n
SECTION 3.18. LIMITATION ON ISSUANCE OF SUBSIDIARY CAPITAL STOCK.<\/p>\n
The Company shall not permit any Restricted Subsidiary, directly or
\nindirectly, to issue or sell any shares of such Restricted Subsidiary’s Capital
\nStock (including options, warrants or other rights to purchase shares of Capital
\nStock) except, to the extent not otherwise prohibited by this Indenture, (i) to
\nthe Company or another Restricted Subsidiary that is a Wholly Owned Subsidiary
\nof the Company, or (ii) if the Net Cash Proceeds from such issuance or sale are
\napplied, to the extent required to be applied, pursuant to Section 3.12.<\/p>\n
SECTION 3.19. LIMITATION ON CHANGES IN THE NATURE OF THE BUSINESS.<\/p>\n
The Company and the Project Companies shall engage only in the Line of
\nBusiness as well as any other activities reasonably related to the Line of
\nBusiness.<\/p>\n
SECTION 3.20. LIMITATION ON CERTAIN SUBSIDIARY INVESTMENTS.<\/p>\n
The Company will not permit any Project Company with an interest in a
\nFacility to make any Investment in or merge with any other Person with an
\ninterest in another Facility or in an Unrelated Business.<\/p>\n
Notwithstanding the foregoing, subject to any applicable restrictions
\nimposed by Section 3.03 the Company may permit one or more of its Subsidiaries
\n(each, an “Intermediate Holding Company”) to serve as a holding company for the
\nCompany’s direct and indirect interests in Facilities and Unrelated Businesses;
\nprovided that: (i) each such Intermediate Holding Company’s direct and indirect
\ninterest in any Facility or Unrelated Business shall be limited to the ownership
\nof Capital Stock or Indebtedness of a Person with a direct or indirect interest
\nin such Facility or Unrelated Business; (ii) no consensual encumbrance or
\nrestriction of any kind shall exist on the ability of any Intermediate Holding
\nCompany to make the payments, distributions, loans, advances or transfers
\nreferred to in clauses (i) through (iii) of the first paragraph of Section 3.05;
\n(iii) no Intermediate Holding Company shall incur, assume, create or suffer to
\nexist any Indebtedness other than Indebtedness to the Company; and (iv) no Lien
\nshall exist upon any assets of such Intermediate Holding Company whether now or
\nhereafter acquired, except for Liens upon the Capital Stock of a Subsidiary of
\nan Intermediate Holding Company securing Indebtedness of such Subsidiary.<\/p>\n
SECTION 3.21. GOVERNMENT APPROVALS.<\/p>\n
The Company shall, and shall cause each Project Company to, at all
\ntimes (i) obtain and maintain in full force and effect all government
\nauthorizations, approvals and consents relating to any Project Company or
\nFacility and (ii) preserve and maintain good and valid title to its properties
\nand assets (subject to Section 3.07 hereof), except in any such case where any
\nfailure to comply with clause (i) or (ii) would not reasonably be expected to
\nhave a material adverse effect on the business or results of operations of the
\nCompany and its Restricted Subsidiaries, taken as a whole, or the ability of the
\nCompany to perform its obligations under this Indenture or the Notes.<\/p>\n
SECTION 3.22. COMPLIANCE WITH LAWS.<\/p>\n
The Company shall, and shall cause each Project Company to, comply with
\nall applicable laws, rules, regulations and orders of, and all applicable
\nrestrictions imposed by, any governmental authority or regulatory body in
\nrespect of the conduct of its business and the ownership of its properties,
\nexcept to the extent that any failure to comply therewith would not reasonably
\nbe expected to have a material adverse effect on the business or results of
\noperations of the Company and its Restricted Subsidiaries, taken as a whole, or
\nthe ability of the Company to perform its obligations under this Indenture or
\nthe Notes.<\/p>\n
SECTION 3.23 OPERATIONS AND MAINTENANCE.<\/p>\n
The Company shall, and shall cause each Project Company to, in all
\nmaterial respects operate and maintain each Facility in accordance with prudent
\nindustry operating and maintenance practices generally accepted in the Line of
\nBusiness.<\/p>\n
ARTICLE 4<\/p>\n
CONSOLIDATION AND MERGER<\/p>\n
SECTION 4.01. MERGER AND CONSOLIDATION .<\/p>\n
The Company shall not, in a single transaction or through a series of
\nrelated transactions, consolidate, merge or amalgamate with or into any other
\ncorporation or sell, assign, convey, transfer or lease or otherwise dispose of
\nall or substantially all of its properties and assets as an entirety to any
\nPerson or group of affiliated Persons, unless:<\/p>\n
(i) either (A) the Company shall be the continuing Person, or
\n (B) the Person (if other than the Company) formed by such consolidation
\n or into which the Company is merged or to which the properties and
\n assets of the Company as an entirety are transferred (the “Successor
\n Corporation”) shall be a corporation organized and existing under the
\n laws of Bermuda, the United States (or any State thereof or the
\n District of Columbia) or any other member country of the Organization
\n for Economic Cooperation and Development and shall expressly assume, by
\n an indenture supplemental hereto, executed and delivered to the
\n Trustee, in form and substance reasonably satisfactory to the Trustee,
\n all the obligations of the Company under this Indenture and the Notes;<\/p>\n
(ii) immediately before and immediately after giving effect to
\n such transaction on a pro forma basis (and treating any Indebtedness
\n which becomes an obligation of the Company (or the Successor
\n Corporation if the Company is not the continuing obligor under this
\n Indenture) or any Restricted Subsidiary as a result of such transaction
\n as having been Incurred by such Person at the time of such
\n transaction), no Default shall have occurred and be continuing;<\/p>\n
(iii) the Company shall have delivered or caused to be
\n delivered, to the Trustee: (A) an Officers’ Certificate stating that
\n such consolidation, merger or amalgamation or such transfer complies
\n with Article 4 hereof and that all conditions precedent under this
\n Indenture provided for or relating to such transaction have been
\n complied with; (B) an Opinion of Counsel of local counsel of recognized
\n standing as to the legal issues relating thereto; and (C) an Opinion of
\n Counsel of United States independent counsel of recognized standing to
\n the effect that the Holders of the Notes will not recognize income,
\n gain or loss for United States federal income tax purposes as a result
\n of such consolidation, merger or amalgamation or such transfer and will
\n be subject to United States federal income tax (if subject to United
\n States federal income tax at all either before or after such
\n consolidation, merger or amalgamation or such transfer) on the same
\n amount and in the same manner and at the same time as would have been
\n the case if such consolidation, merger or amalgamation or such transfer
\n had not occurred;<\/p>\n
(iv) the Successor Corporation shall expressly agree to
\n indemnify each Holder of a Note against any tax, assessment or
\n governmental charge payable by withholding or deduction thereafter
\n imposed on such Holder or with respect to the payment of principal and
\n interest on the Notes solely as a consequence of such consolidation,
\n merger or amalgamation or such transfer;<\/p>\n
(v) immediately after giving effect to such transaction on a
\n pro forma basis (and treating any Indebtedness which becomes an
\n obligation of the Company (or the Successor Corporation if the Company
\n is not the continuing obligor under this Indenture) or a Restricted
\n Subsidiary in connection with or as a result of such transaction as
\n having been Incurred by such Person at the time of such transaction),
\n the Company (or the Successor Corporation if the Company is not the
\n continuing obligor under this Indenture) shall have Consolidated Net
\n Worth in an amount which is not less than the Consolidated Net Worth of
\n the Company immediately prior to such transaction; and<\/p>\n
(vi) immediately after giving effect to such transaction on a
\n pro forma basis the Company (or the Successor Corporation if the
\n Company is not the continuing obligor under this Indenture) would be
\n able to Incur at least $1.00 of additional Indebtedness pursuant to
\n Section 3.04(a).<\/p>\n
SECTION 4.02. SUCCESSOR SUBSTITUTED.<\/p>\n
(a) Upon any such consolidation, merger or amalgamation, or any
\nconveyance, transfer, or disposition of all or substantially all of the
\nproperties or assets of the Company in accordance with Section 4.01, but not in
\nthe case of a lease, the Successor Corporation shall succeed to and be
\nsubstituted for the Company under this Indenture and the Notes, and the Company
\nshall thereupon be released from all obligations hereunder and under the Notes
\nand the Company, as the predecessor corporation, may thereupon or at any time
\nthereafter be dissolved, wound up or liquidated. The Successor Corporation
\nthereupon may cause to be signed, and may issue either in its own name or in the
\nname of the Company, all or any of the Notes issuable hereunder which
\ntheretofore shall not have been signed by the Company and delivered to the
\nTrustee; and, upon the order of the Successor Corporation instead of the Company
\nand subject to all the terms, conditions and limitations prescribed in this
\nIndenture, the Trustee shall authenticate and shall deliver any Notes which the
\nSuccessor Corporation thereafter shall cause to be signed and delivered to the
\nTrustee for that purpose. All the Notes so issued shall in all respects have the
\nsame legal rank and benefit under this Indenture as the Notes theretofore or
\nthereafter issued in accordance with the terms of this Indenture as though all
\nsuch Notes had been issued at the date of the execution hereof.<\/p>\n
(b) In the case of any consolidation, merger, amalgamation or transfer
\ndescribed in Section 4.02(a) above, such changes in form (but not in substance)
\nmay be made in the Notes thereafter to be issued as may be appropriate.<\/p>\n
ARTICLE 5<\/p>\n
DEFAULTS AND REMEDIES<\/p>\n
SECTION 5.01. EVENTS OF DEFAULT.<\/p>\n
An “EVENT OF DEFAULT” means any of the following events:<\/p>\n
(a) default in the payment of interest on any Note when the same
\nbecomes due and payable, and such default continues for a period of 30 days;<\/p>\n
(b) default in the payment of the principal of any Note when the same
\nbecomes due and payable at maturity or otherwise or a failure to redeem or
\npurchase Notes when required pursuant to this Indenture or the Notes;<\/p>\n
(c) default in performance of any other covenants or agreements in this
\nIndenture, the Notes or the Security Agreement and the default continues for 30
\ndays after the date on which written notice of such default is given to the
\nCompany by the Trustee or to the Company and the Trustee by Holders of at least
\n25% in aggregate principal amount of the Notes then outstanding hereunder;<\/p>\n
(d) there shall have occurred either (i) a default by the Company or
\nany Project Company under any instrument or instruments under which there is or
\nmay be secured or evidenced any Indebtedness of the Company or any Project
\nCompany (other than the Notes or any Non-Recourse Debt) having an outstanding
\nprincipal amount of $5,000,000 (or its foreign currency equivalent) or more
\nindividually or in the aggregate that has caused the holders thereof to declare
\nsuch Indebtedness to be due and payable prior to its Stated Maturity or (ii) a
\ndefault by the Company or any Project Company in the payment when due or any
\nportion of the principal under any instrument or instruments under which there
\nis or may be secured or evidenced any Indebtedness of the Company or any Project
\nCompany (other than the Notes or any Non-Recourse Debt), and such unpaid portion
\nexceeds $5,000,000 (or its foreign currency equivalent) individually or in the
\naggregate and is not paid, or such default is not cured or waived, within any
\ngrace period applicable thereto, unless such Indebtedness is discharged within
\n20 days of the Company or a Project Company becoming aware of such default;
\nPROVIDED, HOWEVER, that the foregoing shall not apply to any default on
\nNon-Recourse Indebtedness;<\/p>\n
(e) any final judgment or order (not covered by insurance) for the
\npayment of money shall be rendered against the Company or any Project Company in
\nan amount in excess of $5,000,000 (or its foreign currency equivalent)
\nindividually or in the aggregate for all such final judgments or orders against
\nall such Persons (treating any deductibles, self-insurance or retention as not
\nso covered) and shall not be discharged, and there shall be any period of 60
\nconsecutive days following entry of the final judgment or order in excess of
\n$5,000,000 (or its foreign currency equivalent) individually or in the aggregate
\nduring which a stay of enforcement of such final judgment or order, by reason of
\na pending appeal or otherwise, shall not be in effect;<\/p>\n
(f) (i) other than in accordance with the provisions of this Indenture
\nor the Security Agreement, for any reason, other than the satisfaction in full
\nand discharge of the obligations secured thereby, the Collateral Agent shall
\ncease to have a first priority security interest in the Collateral or (ii) other
\nthan in accordance with the provisions of this Indenture, the Company asserts in
\nwriting that the Security Agreement has ceased to be or is not in full force and
\neffect;<\/p>\n
(g) the Company or any Restricted Subsidiary pursuant to any Bankruptcy
\nLaw:<\/p>\n
(i) commences a voluntary case,<\/p>\n
(ii) consents to the entry of an order for relief against it in
\nan involuntary case,<\/p>\n
(iii) consents to the appointment or taking possession by a
\nBankruptcy Custodian of the Company or such Restricted Subsidiary or for any
\nsubstantial part of the property of any of them.<\/p>\n
(iv) make a general assignment for the benefit of its creditors,
\nor<\/p>\n
(v) admits in writing its inability to generally pay its debts as
\nsuch debts become due;<\/p>\n
or takes any comparable action under any foreign laws relating to
\ninsolvency; and<\/p>\n
(h) a court of competent jurisdiction enters an order or decree under
\nany Bankruptcy Law, that:<\/p>\n
(i) is for relief against the Company or any Restricted
\nSubsidiary in an involuntary case,<\/p>\n
(ii) appoints a Bankruptcy Custodian of any of the Company or any
\nRestricted Subsidiary or for all or substantially all of its property, or<\/p>\n
(iii) orders the winding up or liquidation of the Company or any
\nRestricted Subsidiary;<\/p>\n
or any similar relief is granted under any similar laws of another
\njurisdiction; and the order or decree remains unstayed and in effect for 60
\ndays.<\/p>\n
Any notice of Default given by the Trustee or Noteholders under this
\nsection must specify the Default, demand that it be remedied and state that the
\nnotice is a “Notice of Default.”<\/p>\n
The Company shall file annually with the Trustee a certificate
\ndescribing any Default by the Company in the performance of any conditions or
\ncovenants that has occurred under this Indenture and its status. The Company
\nshall deliver to the Trustee, within 30 days after the occurrence thereof,
\nwritten notice of any event which with the giving of notice or the lapse of time
\nor both would become an Event of Default under clause (c), (d), (e) or (h)
\nhereof.<\/p>\n
Subject to the provisions of Sections 6.01 and 6.02, the Trustee shall
\nnot be charged with knowledge of any Event of Default unless written notice
\nthereof shall have been given to the Trustee by the Company, the Paying Agent,
\nany Holder or an agent of any Holder.<\/p>\n
SECTION 5.02. ACCELERATION.<\/p>\n
If an Event of Default (other than an Event of Default specified in
\nclauses (g) and (h) of Section 5.01 with respect to the Company or any
\nRestricted Subsidiary) occurs and is continuing, the Trustee by notice to the
\nCompany, or the Holders of at least 25% in principal amount of the Notes then
\noutstanding by notice to the Company and the Trustee, may declare the principal
\nof and any accrued and unpaid interest on all the Notes to be due and payable.
\nUpon such declaration the principal and interest shall be due and payable
\nimmediately. If an Event of Default specified in clause (g) or (h) of Section
\n5.01 with respect to the Company or any Restricted Subsidiary occurs, the
\nprincipal of and interest on all the Notes shall ipso facto become and be
\nimmediately due and payable without any declaration or other act on the part of
\nthe Trustee or any Noteholders. The Holders of a majority in principal amount of
\nthe Notes then outstanding by notice to the Trustee may rescind any such
\ndeclaration and its consequences if the rescission would not conflict with any
\njudgment or decree and if all existing Events of Default have been cured or
\nwaived, except nonpayment of principal or interest that has become due solely
\nbecause of such declaration. No such rescission shall affect any subsequent or
\nother Default or Event of Default or impair any consequent right.<\/p>\n
SECTION 5.03. OTHER REMEDIES.<\/p>\n
If an Event of Default occurs and is continuing, the Trustee may pursue
\nany available remedy to collect the payment of principal or interest on the
\nNotes or to enforce the performance of any provision of the Notes or this
\nIndenture.<\/p>\n
The Trustee may maintain a proceeding even if it does not possess any
\nof the Notes or does not produce any of them in the proceeding. A delay or
\nomission by the Trustee or any Noteholder in exercising any right or remedy
\naccruing upon an Event of Default shall not impair the right or remedy or
\nconstitute a waiver of or acquiescence in the Event of Default. All remedies are
\ncumulative to the extent permitted by law.<\/p>\n
SECTION 5.04. WAIVER OF PAST DEFAULTS.<\/p>\n
The Holders of a majority in principal amount of the Notes then
\noutstanding by notice to the Trustee may waive an existing Default and its
\nconsequences except (a) a Default in the payment of the principal of or interest
\non any Note or (b) a Default in respect of a provision that under Section 8.02
\ncannot be amended without the consent of each Noteholder affected. When a
\nDefault is waived, it is deemed cured, but no such waiver shall extend to any
\nsubsequent or other Default or Event of Default or impair any consequent right.<\/p>\n
SECTION 5.05. CONTROL BY MAJORITY.<\/p>\n
The Holders of a majority in principal amount of the Notes then
\noutstanding may direct the time, method and place of conducting any proceeding
\nfor any remedy available to the Trustee or exercising any trust or power
\nconferred on it. However, the Trustee may refuse to follow any direction that
\nconflicts with law or this Indenture, or, subject to Section 6.01, that the
\nTrustee determines is unduly prejudicial to the rights of other Noteholders, or
\nwould involve the Trustee in personal liability; PROVIDED, HOWEVER, that the
\nTrustee may take any other action deemed proper by the Trustee that is not
\ninconsistent with such direction. Prior to taking any action hereunder, the
\nTrustee shall be entitled, subject to the duty of the Trustee during a Default
\nto act with the required standard of care, to indemnification reasonably
\nsatisfactory to it against all risk, losses and expenses caused by taking or not
\ntaking such action. Subject to Section 6.01, the Trustee shall be under no
\nobligation to exercise any of the rights or powers vested in it by this
\nIndenture at the request or direction of the Noteholders pursuant to this
\nIndenture, unless such Noteholders shall have provided to the Trustee security
\nor indemnity reasonably satisfactory to it against the costs, expenses and
\nliabilities which might be incurred in compliance with such request or
\ndirection.<\/p>\n
SECTION 5.06. LIMITATION ON SUITS.<\/p>\n
A Noteholder may pursue a remedy with respect to this Indenture or the
\nNotes only if:<\/p>\n
(a) the Holder gives to the Trustee written notice of a continuing
\nEvent of Default;<\/p>\n
(b) the Holders of at least 25% in principal amount of the Notes then
\noutstanding make a written request to the Trustee to pursue the remedy;<\/p>\n
(c) such Holder or Holders offer to the Trustee security reasonably
\nsatisfactory to it or indemnity against any loss, liability or expense;<\/p>\n
(d) the Trustee does not comply with the request within 60 days after
\nreceipt of the request and the offer of security or indemnity; and<\/p>\n
(e) the Holders of a majority in principal amount of the Notes then
\noutstanding do not give the Trustee a direction inconsistent with the request
\nduring such 60-day period.<\/p>\n
A Noteholder may not use this Indenture to prejudice the rights of
\nanother Noteholder or to obtain a preference or priority over another
\nNoteholder.<\/p>\n
SECTION 5.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.<\/p>\n
Notwithstanding any other provision of this Indenture, the right of any
\nHolder of a Note to receive payment of principal and interest on the Note, on or
\nafter the respective due dates expressed in the Note, or to bring suit for the
\nenforcement of any such payment on or after such respective dates, shall not be
\nimpaired or affected without the consent of the Holder, except to the extent
\nthat the institution or prosecution of any such suit or the entry of judgment
\ntherein would result in the surrender, impairment, waiver or loss of the Lien on
\nthe Collateral.<\/p>\n
SECTION 5.08. COLLECTION SUIT BY TRUSTEE.<\/p>\n
If an Event of Default specified in Section 5.01(a) or (b) occurs and
\nis continuing, the Trustee may recover judgment in its own name and as trustee
\nof an express trust against the Company for the whole amount of principal and
\ninterest remaining unpaid (together with interest on such unpaid interest to the
\nextent lawful) and the amounts provided for in Section 6.07.<\/p>\n
SECTION 5.09. TRUSTEE MAY FILE PROOFS OF CLAIM.<\/p>\n
The Trustee may file such proofs of claim and other papers or documents
\nand take such other actions including participating as a member or otherwise in
\nany committees of creditors appointed in the matter as may be necessary or
\nadvisable in order to have the claims of the Trustee (including any claim for
\nthe amounts provided in Section 6.07) and the Noteholders allowed in any
\njudicial proceedings relative to the Company, its creditors or its property and,
\nunless prohibited by law or applicable regulations, may vote on behalf of the
\nHolders in any election of a trustee in bankruptcy or other Person performing
\nsimilar functions, and any custodian in any such judicial proceeding is hereby
\nauthorized by each Holder to make payments to the Trustee and, in the event that
\nthe Trustee shall consent to the making of such payments directly to the
\nHolders, to pay to the Trustee any amount due it for the reasonable
\ncompensation, expenses, disbursements and advances of the Trustee, its agents
\nand its counsel, and any other amounts due the Trustee under Section 6.07. To
\nthe extent that the payment of any such amount due to the Trustee under Section
\n6.07 out of the estate in any such proceeding shall be denied for any reason,
\npayment of the same shall be secured by a Lien on, and shall be paid out of, any
\nand all distributions, dividends, money, securities and other properties which
\nthe Holders of the Notes may be entitled to receive in such proceeding whether
\nin liquidation or under any plan of reorganization or arrangement or otherwise.<\/p>\n
SECTION 5.10. PRIORITIES.<\/p>\n
If the Trustee collects any money pursuant to this Article, it shall
\npay out the money in the following order:<\/p>\n
First: to the Trustee for amounts due under Section 6.07;<\/p>\n
Second: to Noteholders for amounts due and unpaid on the Notes for
\nprincipal and interest, ratably, without preference or priority of any kind,
\naccording to the amounts due and payable on the Notes for principal and
\ninterest, respectively; and<\/p>\n
Third: to the Company.<\/p>\n
The Trustee may fix a record date and payment date for any payment to
\nNoteholders pursuant to this section. At least 15 days before such record date,
\nthe Company shall give written notice to each Noteholder and the Trustee of the
\nrecord date, the payment date and amount to be paid.<\/p>\n
SECTION 5.11. UNDERTAKING FOR COSTS.<\/p>\n
In any suit for the enforcement of any right or remedy under this
\nIndenture or in any suit against the Trustee for any action taken or omitted by
\nit as Trustee, a court in its discretion may require the filing by any party
\nlitigant in the suit of an undertaking to pay the costs of the suit, and the
\ncourt in its discretion may assess reasonable costs, including reasonable
\nattorneys’ fees, against any party litigant in the suit, having due regard to
\nthe merits and good faith of the claims or defenses made by the party litigant.
\nThis section does not apply to a suit by the Trustee, a suit by a Holder
\npursuant to Section 5.07, or a suit by Holders of more than 10% in principal
\namount of the Notes.<\/p>\n
SECTION 5.12. WAIVER OF STAY OR EXTENSION LAWS.<\/p>\n
The Company shall not at any time insist upon, or plead, or in any
\nmanner whatsoever claim or take the benefit or advantage of, any stay or
\nextension law wherever enacted, now or at any time hereafter in force, which may
\naffect the covenants or the performance of this Indenture; and the Company
\nhereby expressly waives all benefit or advantage of any such law, and shall not
\nhinder, delay or impede the execution of any power herein granted to the
\nTrustee, but shall suffer and permit the execution of every such power as though
\nno such law has been enacted.<\/p>\n
ARTICLE 6<\/p>\n
TRUSTEE<\/p>\n
SECTION 6.01. DUTIES OF TRUSTEE.<\/p>\n
(a) If an Event of Default has occurred and is continuing, the Trustee
\nshall exercise such of the rights and powers vested in it by this Indenture, and
\nuse the same degree of care and skill in their exercise, as a prudent Person
\nwould exercise or use under the circumstances in the conduct of his own affairs.<\/p>\n
(b) Except during the continuance of an Event of Default:<\/p>\n
(i) The Trustee need perform only those duties that are
\n specifically set forth in this Indenture and no others and no implied
\n covenants or obligations shall be read into this Indenture against the
\n Trustee.<\/p>\n
(ii) In the absence of bad faith on its part, the Trustee may
\n conclusively rely, as to the truth of the statements and the correctness of
\n the opinions expressed therein, upon certificates or opinions furnished to
\n the Trustee and conforming to the requirements of this Indenture. However,
\n the Trustee shall examine the certificates and opinions to determine
\n whether or not they conform to the requirement of this Indenture.<\/p>\n
(c) The Trustee may not be relieved from liability for its own
\nnegligent action, its own negligent failure to act, or its own willful
\nmisconduct, except that:<\/p>\n
(i) This paragraph does not limit the effect of paragraph (b) of
\n this section.<\/p>\n
(ii) The Trustee shall not be liable for any error of judgment
\n made in good faith by a Trust Officer, unless it is proved that the
\n Trustee was negligent in ascertaining the pertinent facts.<\/p>\n
(iii) The Trustee shall not be liable with respect to any action
\n it takes or omits to take in good faith in accordance with a direction
\n received by it pursuant to Section 5.02, 5.04 or 5.05.<\/p>\n
(iv) No provision of this Indenture shall require the Trustee to
\n expend or risk its own funds or otherwise incur any financial
\n liability in the performance of any of its duties hereunder, or in the
\n exercise of any of its rights or powers, unless it receives indemnity
\n satisfactory to it against any risk, loss, liability or expense.<\/p>\n
(d) Every provision of this Indenture that in any way relates to the
\nTrustee is subject to paragraphs (a), (b) and (c) of this section.<\/p>\n
(e) The Trustee, in its capacity as Trustee and Registrar and Paying
\nAgent, shall not be liable to the Company, the Noteholders or any other Person
\nfor interest on any money received by it, including, but not limited to, money
\nwith respect to principal of or interest on the Notes, except as the Trustee may
\nagree with the Company.<\/p>\n
(f) Money held in trust by the Trustee need not be segregated from
\nother funds except to the extent required by law.<\/p>\n
SECTION 6.02. RIGHTS OF TRUSTEE.<\/p>\n
(a) The Trustee may rely on any document reasonably believed by it to
\nbe genuine and to have been signed or presented by the proper Person. The
\nTrustee need not investigate any fact or matter stated in the document.<\/p>\n
(i) Before the Trustee acts or refrains from acting, it may
\n require an Officers’ Certificate, an Opinion of Counsel or both. The
\n Trustee shall not be liable for any action it takes or omits to take
\n in good faith in reliance on any such Officers’ Certificate or Opinion
\n of Counsel.<\/p>\n
(ii) The Trustee may act through agents and shall not be
\n responsible for the misconduct or negligence of any agent appointed
\n with due care.<\/p>\n
(iii) The Trustee shall not be liable for any action it takes or
\n omits to take in good faith which it believes to be authorized or
\n within its rights or powers PROVIDED, HOWEVER, that the Trustee’s
\n conduct does not constitute wilful misconduct, negligence or bad
\n faith.<\/p>\n
(iv) The Trustee may consult with counsel, and the advice or
\n opinion of such counsel as to matters of law shall be full and
\n complete authorization and protection from liability in respect of any
\n action taken, omitted or suffered by it hereunder in good faith and in
\n accordance with the advice of such counsel.<\/p>\n
(v) The Trustee shall not be obligated to make any investigation
\n into the facts or matters stated in any resolution, certificate,
\n statement, instrument, opinion, report, notice, request, direction,
\n consent, order, bond, debenture or any other paper or document.<\/p>\n
SECTION 6.03. INDIVIDUAL RIGHTS OF TRUSTEE.<\/p>\n
The Trustee in its individual or any other capacity may become the
\nowner or pledgee of Notes and may otherwise deal with the Company or an
\nAffiliate with the same rights it would have if it were not Trustee. Any Agent
\nmay do the same with like rights. However, the Trustee is subject to Sections
\n6.04 and 6.11.<\/p>\n
SECTION 6.04. TRUSTEES DISCLAIMER.<\/p>\n
The Trustee shall not be responsible for and makes no representation as
\nto the validity or adequacy of this Indenture or the Notes, it shall not be
\naccountable for the Company’s use of the proceeds from the Notes, it shall not
\nbe responsible for any statement in the Notes other than its authentication. The
\nTrustee shall have no duty to ascertain or inquire as to the performance of the
\nCompany’s covenants in Article 3 hereof.<\/p>\n
SECTION 6.05. NOTICE OF DEFAULTS.<\/p>\n
If a Default or an Event of Default occurs and is continuing and if it
\nis known to a Trust Officer of the Trustee, the Trustee shall mail to
\nNoteholders a notice of the Default or Event of Default within 90 days after a
\nTrust Officer of the Trustee has actual knowledge of the occurrence thereof.
\nExcept in the case of a Default in any payment on any Note, the Trustee may
\nwithhold the notice if and so long as a committee of its Trust Officers in good
\nfaith determines that withholding the notice is in the interests of Noteholders.<\/p>\n
SECTION 6.06. REPORTS BY TRUSTEE TO HOLDERS.<\/p>\n
Within 60 days after the reporting date stated in Section 11.09, the
\nTrustee shall mail to Noteholders a brief report dated as of such date that
\ncomplies with TIA ss. 313(a) if required by that Section. The Trustee also shall
\ncomply with TIA ss. 313(b)(2).<\/p>\n
A copy of each report at the time of its mailing to Noteholders shall
\nbe filed with the Commission and each stock exchange on which the Notes are
\nlisted. The Company shall promptly notify the Trustee when the Notes are listed
\non any stock exchange and of any delisting thereof.<\/p>\n
SECTION 6.07. COMPENSATION AND INDEMNITY.<\/p>\n
The Company shall pay to the Trustee from time to time reasonable
\ncompensation for its services. The Trustee’s compensation shall not be limited
\nby any law on compensation of a trustee of an express trust. The Company shall
\nreimburse the Trustee upon request for all reasonable out-of-pocket
\ndisbursements, expenses and advances incurred by it. Such expenses shall include
\nthe reasonable compensation and out-of-pocket disbursements and expenses of the
\nTrustee’s agents and counsel.<\/p>\n
The Company shall indemnify the Trustee and its officers, directors,
\nemployees and agents for, and hold it and them harmless against, any claim,
\nloss, liability or expense, including, but not limited to, reasonable attorneys’
\nfees, disbursements and expenses, incurred by it or them arising out of or in
\nconnection with the administration of this trust and the performance of its or
\ntheir duties hereunder including the costs and expenses of defending itself or
\nthemselves against any claim or liability in connection with the exercise or
\nperformance of any of its or their powers or duties hereunder or under the
\nSecurity Agreement. The Trustee shall notify the Company promptly of any claim
\nfor which it may seek indemnity. Failure by the Trustee to so notify the Company
\nshall not relieve the Company of its obligations hereunder. The Company shall
\ndefend the claim and the Trustee shall cooperate in the defense. The Trustee may
\nhave separate counsel and the Company shall pay the reasonable fees and expenses
\nof such counsel. The Company need not pay for any settlement made without its
\nconsent, which consent shall not be unreasonably withheld.<\/p>\n
The Company need not reimburse any expense or indemnify against any
\nloss or liability incurred by the Trustee as a result of the negligence or
\nwilful misconduct of the Trustee.<\/p>\n
To secure the Company’s payment obligations in this section, the
\nTrustee shall have a Lien prior to the Notes on all money or property held or
\ncollected by the Trustee, except that held in trust to pay principal and
\ninterest on particular Notes.<\/p>\n
When the Trustee incurs expenses or renders services after an Event of
\nDefault specified in Section 5.01(g) or (h) occurs, the expenses and the
\ncompensation for the services are intended to constitute expenses of
\nadministration under any Bankruptcy Law.<\/p>\n
The Company’s obligations under this Section 6.07 with respect to any
\nLien arising hereunder shall survive the resignation or removal of the Trustee,
\nthe discharge of such obligations pursuant to Article F of this Indenture and
\nthe termination of this Indenture.<\/p>\n
SECTION 6.08. REPLACEMENT OF TRUSTEE.<\/p>\n
A resignation or removal of the Trustee and appointment of a successor
\nTrustee shall become effective only upon the successor Trustee’s acceptance of
\nappointment as provided in this section.<\/p>\n
The Trustee may resign at any time by so notifying the Company. The
\nHolders of a majority in principal amount of the Notes then outstanding may, by
\nwritten notice to the Trustee, remove the Trustee by so notifying the Trustee
\nand the Company. The Company, by notice to the Trustee, shall remove the Trustee
\nif:<\/p>\n
(a) the Trustee fails to comply with Section 6.10;<\/p>\n
(b) the Trustee is adjudged a bankrupt or an insolvent;<\/p>\n
(c) a receiver or public officer takes charge of the trustee or its
\nproperty; or<\/p>\n
(d) the Trustee becomes incapable of acting.<\/p>\n
If the Trustee resigns or is removed or if a vacancy exists in the
\noffice of Trustee for any reason, the Company shall promptly appoint a successor
\nTrustee. Within one year after the successor Trustee takes office, the Holders
\nof a majority in principal amount of the Notes then outstanding may appoint a
\nsuccessor Trustee to replace the successor Trustee appointed by the Company.<\/p>\n
If a successor Trustee does not take office within 60 days after the
\nretiring Trustee resigns or is removed, the retiring Trustee, the Company or the
\nHolders of at least 10% in principal amount of the Notes may petition any court
\nof competent jurisdiction for the appointment of a successor Trustee.<\/p>\n
If the Trustee fails to comply with Section 6.10 any Noteholder may
\npetition any court of competent jurisdiction for the removal of the Trustee and
\nthe appointment of a successor Trustee.<\/p>\n
A successor Trustee shall deliver a written acceptance of its
\nappointment to the retiring Trustee and the Company. Thereupon the resignation
\nor removal of the retiring Trustee shall become effective, and the successor
\nTrustee shall have all the rights, powers and duties of the Trustee under this
\nIndenture. The successor Trustee shall mail a notice of its succession to
\nNoteholders. The retiring Trustee shall promptly transfer all property held by
\nit as Trustee to the successor Trustee, subject to the Lien provided for in
\nSection 6.07.<\/p>\n
SECTION 6.09. SUCCESSOR TRUSTEE BY MERGER, ETC.<\/p>\n
If the Trustee consolidates, merges or converts into, or transfers all
\nor substantially all of its corporate trust business to, another corporation,
\nthe successor corporation without any further act shall be the successor
\nTrustee.<\/p>\n
SECTION 6.10. ELIGIBILITY; DISQUALIFICATION.<\/p>\n
This Indenture shall always have a Trustee who satisfies the
\nrequirements of TIA ss. 310(a)(1). The Trustee shall always have a combined
\ncapital and surplus of at least $50,000,000 as set forth in its most recent
\npublished annual report of condition. The Trustee shall comply with TIA ss.
\n310(b). Nothing herein shall prevent the Trustee from filing with the Commission
\nthe application referred to in the second-to-last paragraph of TIA ss. 310(b).<\/p>\n
SECTION 6.11. PREFERENTIAL COLLECTIONS OF CLAIMS AGAINST COMPANY.<\/p>\n
The Trustee shall comply with TIA ss. 311(a), except with respect to
\nany creditor relationship listed in TIA ss. 311(b). A Trustee who has resigned
\nor been removed is subject to TIA ss. 311(a) to the extent indicated.<\/p>\n
ARTICLE 7<\/p>\n
SATISFACTION AND DISCHARGE OF INDENTURE<\/p>\n
SECTION 7.01. DISCHARGE OF LIABILITY ON NOTES; DEFEASANCE.<\/p>\n
If (a) the Company delivers to the Trustee all outstanding Notes (other
\nthan Notes replaced pursuant to Section 2.07) for cancellation or (b) all
\noutstanding Notes have become due and payable and the Company irrevocably
\ndeposits with the Trustee as trust funds solely for the benefit of the Holders
\nfor that purpose funds sufficient to pay at maturity the principal of and all
\naccrued interest on all outstanding Notes (other than Notes replaced pursuant to
\nSection 2.07), and if, in either case, the Company pays all other sums payable
\nhereunder by the Company, then, subject to Section 7.06, this Indenture shall
\ncease to be of further effect. The Trustee shall acknowledge satisfaction and
\ndischarge of this Indenture on demand of the Company accompanied by an Officers’
\nCertificate and an Opinion of Counsel and at the cost and expense of the
\nCompany.<\/p>\n
SECTION 7.02. DEFEASANCE AND DISCHARGE OF INDENTURE.<\/p>\n
The Company will be deemed to have paid and will be discharged from any
\nand all obligations in respect of the Notes on the 123rd day after the date of
\nthe deposit referred to in clause (i) hereof, and the provisions of this
\nIndenture will no longer be in effect with respect to the Notes, in each case
\nsubject to the penultimate paragraph of this Section 7.03, and the Trustee, at
\nthe reasonable request of and at the expense of the Company, shall execute
\nproper instruments acknowledging the same, except as to (a) rights of
\nregistration of transfer and exchange, (b) substitution of apparently mutilated,
\ndefaced, destroyed, lost or stolen Notes, (c) rights of Holders to receive
\npayments of principal thereof and interest thereon, (d) the Company’s
\nobligations under Section 3.02, (e) the rights, obligations and immunities of
\nthe Trustee hereunder including, without limitation, those arising under Section
\n6.07 hereof, (f) the rights of the Holders as beneficiaries of this Indenture
\nwith respect to the property so deposited with the Trustee payable to all or any
\nof them and (g) the rights, obligations and immunities which survive as provided
\nin the penultimate paragraph of this Section 7.02; provided that the following
\nconditions shall have been satisfied:<\/p>\n
(i) with reference to this Section 7.02, the Company has
\n irrevocably deposited or caused to be irrevocably deposited with the
\n Trustee (or another trustee satisfying the requirement of Section 6.10) or
\n Paying Agent (other than the Company or a Subsidiary or Affiliate of the
\n Company) and conveyed all right, title and interest for the benefit of the
\n Holders, under the terms of an irrevocable trust agreement in form and
\n substance satisfactory to the Trustee as trust funds in trust, specifically
\n pledged as security for, and dedicated solely to, the benefit of the
\n Holders, in and to, (A) money in an amount, (B) U.S. Government Obligations
\n that, through the payment of interest and principal in respect thereof in
\n accordance with their terms, will provide, not later than one Business Day
\n before the due date of any payment referred to in this clause (i), money in
\n an amount or (C) a combination thereof in an amount sufficient, in the
\n opinion of a nationally recognized firm of independent public accountants
\n expressed in a written certification thereof delivered to the Trustee, to
\n pay and discharge, without consideration of any reinvestment of interest
\n and after payment of all federal, state and local taxes or other fees,
\n charges and assessments in respect thereof payable by the Trustee or Paying
\n Agent, the principal of and interest on the outstanding Notes when due;
\n provided that the Trustee or Paying Agent shall have been irrevocably
\n instructed to apply such money or the proceeds of such U.S. Government
\n Obligations to the payment of such principal and interest with respect to
\n the Notes;<\/p>\n
(ii) such deposit shall not result in or constitute a Default or
\n result in a breach or violation of, or constitute a Default under, any
\n other agreement or instrument to which the Company is a party or by which
\n it is bound;<\/p>\n
(iii) no Default shall have occurred and be continuing on the
\n date of such deposit or during the period ending on the 123rd day after
\n such date of deposit;<\/p>\n
(iv) the Company shall have delivered to the Trustee (A) either
\n (1) a ruling directed to the Trustee received from the Internal Revenue
\n Service to the effect that the Holders will not recognize income, gain or
\n loss for federal income tax purposes as a result of the Company’s exercise
\n of its option under this Section 7.02 and will be subject to federal income
\n tax on the same amount and in the same manner and at the same times as
\n would have been the case if such option had not been exercised or (2) an
\n Opinion of Counsel from recognized tax counsel licensed to practice law in
\n the United States (who may not be an employee of the Company) to the same
\n effect as the ruling described in clause (1), which must refer to and be
\n based upon a ruling to that effect published by the Internal Revenue
\n Service, unless there has been a change in the applicable federal income
\n tax law since the date of this Indenture such that a ruling from the
\n Internal Revenue Service is no longer required and (B) an Opinion of
\n Counsel to the effect that (1) the creation of the defeasance trust does
\n not violate the Investment Company Act of 1940, and (2) the Holders of the
\n Notes have a valid security interest in the trust funds subject to no prior
\n Liens under the New York Uniform Commercial Code;<\/p>\n
(v) the Company shall have delivered to the Trustee an Opinion of
\n Counsel licensed to practice law in Bermuda to the effect that under the
\n laws of Bermuda, the Holders of the Notes (other than Bermuda Persons) will
\n not recognize gain for Bermuda tax purposes and payments from the
\n defeasance trust to any such Holder will not be subject to withholding
\n payments under the laws of Bermuda; and<\/p>\n
(vi) the Company shall have delivered to the Trustee an Officers’
\n Certificate and an Opinion of Counsel, in each case stating that all
\n conditions precedent provided for herein relating to the defeasance
\n contemplated by this Section 7.02 have been complied with.<\/p>\n
Notwithstanding the foregoing clause (i), prior to the end of the 123
\nday period referred to in clause (iv)(B)(2) above, none of the Company’s
\nobligations under this Indenture shall be discharged. Subsequent to the end of
\nsuch 123-day period with respect to this Section 7.02, the Company’s obligations
\nin Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.12, 3.01, 3.02, 3.06, 6.07,
\n7.04, 7.05 and 7.06 shall survive until the Notes are no longer outstanding.
\nThereafter, only the Company’s obligations in Sections 6.07, 7.04, 7.05 and 7.06
\nshall survive. If and when a ruling from the Internal Revenue Service or Opinion
\nof Counsel referred to in clause (iv)(A) above is able to be provided
\nspecifically without regard to, and not in reliance upon, the continuance of the
\nCompany’s obligations under Section 3.01, then the Company’s obligations under
\nsuch Section 3.01 shall cease upon delivery to the Trustee of such ruling or
\nOpinion of Counsel and compliance with the other conditions precedent provided
\nfor herein relating to the defeasance contemplated by this Section 7.02.<\/p>\n
After any such irrevocable deposit and the fulfillment of the other
\nrequirements of this Section 7.02, the Trustee upon request shall acknowledge in
\nwriting the discharge of the Company’s obligations under the Notes and this
\nIndenture except for those surviving obligation in the immediately preceding
\nparagraph.<\/p>\n
SECTION 7.03. DEFEASANCE OF CERTAIN OBLIGATIONS.<\/p>\n
The Company may omit to comply with any term, provision or condition
\nset forth in clauses (v) and (vi) of Section 4.01 and Section 3.03 through 3.23,
\nand clause (c) of Section 5.01 with respect to clauses (v) and (vi) of Section
\n4.01 and Sections 3.03 through 3.23, and clauses (d), (e) and (f) of Section
\n5.01 shall be deemed not to be Events of Default, in each case with respect to
\nthe outstanding Notes if:<\/p>\n
(i) with reference to this Section 7.03, the Company has
\n irrevocably deposited or caused to be irrevocably deposited with the
\n Trustee (or another trustee satisfying the requirements of Section 6.10) or
\n Paying Agent (other than the Company or a Subsidiary or Affiliate of the
\n Company) and conveyed all right, title and interest for the benefit of the
\n Holders, under the terms of an irrevocable trust agreement in form and
\n substance satisfactory to the Trustee as trust funds in trust, specifically
\n pledged as security for, and dedicated solely to, the benefit of the
\n Holders, in and to, (A) money in an amount, (B) U.S. Government Obligations
\n that, through the payment of interest and principal in respect thereof in
\n accordance with their terms, will provide, not later than one Business Day
\n before the due date of any payment referred to in this clause (i), money in
\n an amount or (C) a combination thereof in an amount, sufficient, in the
\n opinion of a nationally recognized firm of independent public accountants
\n expressed in a written certification thereof delivered to the Trustee, to
\n pay and discharge, without consideration of any reinvestment of interest
\n and after payment of all federal, state and local taxes or other fees,
\n charges and assessments in respect thereof payable by the Trustee or Paying
\n Agent, the principal of and interest on the outstanding Notes when due;
\n provided that the Trustee or Paying Agent shall have been irrevocably
\n instructed to apply such money or the proceeds of such U.S. Government
\n Obligations to the payment of such principal and interest with respect to
\n the Notes;<\/p>\n
(ii) such deposit will not result in or constitute a Default or
\n result in a breach or violation of, or constitute a default under, any
\n other agreement or instrument to which the Company is a party or by which
\n it is bound;<\/p>\n
(iii) no Default shall have occurred and be continuing on the
\n date of such deposit;<\/p>\n
(iv) the Company has delivered to the Trustee (A) an Opinion of
\n Counsel from recognized tax counsel licensed to practice law in the United
\n States (who may not be an employee of the Company) to the effect that the
\n Holders will not recognize income, gain or loss for federal income tax
\n purposes as a result of such deposit and defeasance of certain obligations
\n and will be subject to federal income tax on the same amount and in the
\n same manner and at the same times as would have been the case if such
\n deposit and defeasance had not occurred; and (B) an Opinion of Counsel to
\n the effect that (1) the creation of the defeasance trust does not violate
\n the Investment Company Act of 1940, and (2) the Holders of the Notes have a
\n valid security interest in the trust funds subject to no prior Liens under
\n the New York Uniform Commercial Code;<\/p>\n
(v) the Company shall have delivered to the Trustee an Opinion of
\n Counsel licensed to practice law in Bermuda to the effect that under the
\n laws of Bermuda the Holders of the Notes (other than Bermuda Persons) will
\n not recognize gain for Bermuda tax purposes and payments from the
\n defeasance trust to any such Holder will not be subject to withholding
\n payments under the laws of Bermuda; and<\/p>\n
(vi) the Company has delivered to the Trustee an Officers’
\n Certificate and an Opinion of Counsel, in each case stating that all
\n conditions precedent provided for herein relating to the defeasance
\n contemplated by this Section 7.03 have been complied with.<\/p>\n
SECTION 7.04. APPLICATION OF TRUST MONEY.<\/p>\n
Subject to Section 7.06 of this Indenture, the Trustee or Paying Agent
\nshall hold in trust money or U.S. Government Obligations deposited with it
\npursuant to Section 7.02 or 7.03 of this Indenture, as the case may be, and
\nshall apply the deposited money and the money from U.S. Government Obligations
\nin accordance with this Indenture to the payment of principal of and interest on
\nthe Notes. The Trustee shall be under no obligation to invest such money or U.S.
\nGovernment Obligations except as it may agree with the Company and in no event
\nshall the Trustee have any liability for, or in respect of, any such investment
\nmade as agreed with the Company.<\/p>\n
SECTION 7.05. REPAYMENT TO COMPANY.<\/p>\n
Subject to Sections 6.07, 7.02 and 7.03 of this Indenture, the Trustee
\nand the Paying Agent shall promptly pay to the Company upon written request any
\nexcess money held by them at any time and thereupon shall be relieved from all
\nliability with respect to such money. The Trustee and the Paying Agent shall pay
\nto the Company upon written request any money held by them for the payment of
\nprincipal or interest that remains unclaimed for two years; PROVIDED, HOWEVER,
\nthat the Company shall if requested by the Trustee or the Paying Agent, give the
\nTrustee or such Paying Agent indemnification reasonably satisfactory to it
\nagainst any and all liability which may be incurred by it by reason of such
\npayment; and provided, further, that the Trustee or such Paying Agent before
\nbeing required to make any payment may cause to be published at the request and
\nexpense of the Company once in a newspaper of general circulation in the City of
\nNew York or mail to each Holder entitled to such money at such Holder’s address
\nas set forth in the Note Register notice that such money remains unclaimed and
\nthat after a date specified therein (which shall be at least 30 days from the
\ndate of such publication or mailing) any unclaimed balance of such money then
\nremaining will be repaid to the Company. After payment to the Company, Holders
\nentitled to such money must look to the Company for payment as general creditors
\nunless an applicable law designates another person, and all liability of the
\nTrustee and such Paying Agent with respect to such money shall cease.<\/p>\n
SECTION 7.06. REINSTATEMENT.<\/p>\n
If the Trustee or Paying Agent is unable to apply any money or U.S.
\nGovernment Obligations in accordance with Section 7.02 or 7.03 of this
\nIndenture, as the case may be, by reason of any legal proceedings or by reason
\nof any order or judgment of any court or governmental authority enjoining,
\nrestraining or otherwise prohibiting such application, the Company’s obligations
\nunder this Indenture and the Notes shall be revived and reinstated as though no
\ndeposit had occurred pursuant to Section 7.02 or 7.03 of this Indenture, as the
\ncase may be, until such time as the Trustee or Paying Agent is permitted to
\napply all such money or U.S. Government Obligations in accordance with Section
\n7.02 or 7.03 of this Indenture, as the case may be; provided that, if the
\nCompany has made any payment of principal of or interest on any Notes because of
\nthe reinstatement of its obligations, the Company shall be subrogated to the
\nrights of the Holders of such Notes to receive such payment from the money or
\nU.S. Government Obligations held by the Trustee or Paying Agent.<\/p>\n
ARTICLE 8<\/p>\n
AMENDMENTS AND SUPPLEMENTS<\/p>\n
SECTION 8.01. WITHOUT CONSENT OF HOLDERS.<\/p>\n
(a) The Company and the Trustee may amend or supplement the Indenture
\nwithout notice to or the consent of any Noteholder:<\/p>\n
(1) to cure any ambiguity, omission, defect or inconsistency;<\/p>\n
(2) to comply with Article 4;<\/p>\n
(3) to provide for uncertificated Notes in addition to
\n certificated Notes; provided, however, that the uncertificated
\n Notes are issued, in registered form for purposes of Section
\n 163(f) of the Internal Revenue Code of 1986, as amended, or in a
\n manner such that the uncertificated Notes are described in Section
\n 163(f)(2)(b) of the Code;<\/p>\n
(4) to add guarantees with respect to the Notes or to further
\n secure the Notes;<\/p>\n
(5) to add to the covenants of the Company for the benefit of
\n the Holders or to surrender any right or power herein conferred
\n upon the Company;<\/p>\n
(6) to comply with the requirements of the Commission in
\n connection with qualification of this Indenture under the TIA;<\/p>\n
(7) to establish and maintain the Liens of the Security
\n Agreement; or<\/p>\n
(8) to make any change that does not adversely affect the
\n rights of any Noteholder.<\/p>\n
(b) The Company and the Trustee may amend or supplement the Security
\nAgreement without notice to or the consent of any Noteholder:<\/p>\n
(1) to cure any ambiguity, omission, defect or inconsistency;<\/p>\n
(2) to comply with Article 4;<\/p>\n
(3) to add additional guarantees with respect to the Notes or
\n to further secure the Notes;<\/p>\n
(4) to add to the covenants of the Company for the benefit of
\n the Holders or to surrender any right or power herein conferred
\n upon the Company;<\/p>\n
(5) to comply with the requirements of the Commission in
\n connection with qualification of this Indenture under the TIA;<\/p>\n
(6) to establish and maintain the Liens of the Security
\n Agreement; or<\/p>\n
(7) to make any change that does not adversely affect the
\n rights of any Noteholder.<\/p>\n
(c) After an amendment or supplement under this Section becomes
\neffective, the Company shall mail to Noteholders a notice briefly describing
\nsuch amendment or supplement. The failure to give such notice to all
\nNoteholders, or any defect therein, shall not impair or affect the validity of
\nan amendment or supplement under this section.<\/p>\n
SECTION 8.02. WITH CONSENT OF HOLDERS.<\/p>\n
The Company and the Trustee may amend or supplement this Indenture, the
\nNotes or the Security Agreement with the written consent of the Holders of a
\nmajority in principal amount of the Notes then outstanding. However, without the
\nconsent of each Noteholder affected, an amendment or supplement under this
\nSection may not<\/p>\n
(a) reduce the amount of Notes the Holders of which must consent to an
\namendment or supplement;<\/p>\n
(b) reduce the rate of or change the time for payment of interest on
\nany Note;<\/p>\n
(c) change the currency or consideration of payment of the Notes;<\/p>\n
(d) reduce the principal of or change the Stated Maturity of any Note;<\/p>\n
(e) reduce the premium payable upon the redemption of any Note or
\nchange the time at which any Note may or shall be redeemed in accordance with
\nArticle 10;<\/p>\n
(f) amend, change or modify the obligations of the Company to make or
\nconsummate any offer pursuant to Section 3.08 or 3.12 or modify any of the
\nprovisions or definitions with respect thereto;<\/p>\n
(g) permit the release or termination of all or substantially all of
\nthe Liens of the Collateral Agent on the Collateral or deprive the Holders of
\nall or substantially all of the security afforded by the Liens of the Security
\nAgreement or this Indenture;<\/p>\n
(h) release the Company from its obligations under this Indenture other
\nthan pursuant to Article 4 hereof;<\/p>\n
(i) permit the creation of any Lien (other than Liens permitted under
\nSection 3.07) on the Collateral or any part thereof or terminate the Liens of
\nthe Collateral Agent on the Collateral or any part thereof or deprive the
\nholders of the security afforded by the Liens of the Security Agreement or this
\nIndenture;<\/p>\n
(j) change the obligation of the Company to pay Additional Amounts; and<\/p>\n
(k) make any change in Section 5.04, Section 5.07 or this second
\nsentence of this Section 8.02.<\/p>\n
It shall not be necessary for the consent of the Holders under this
\nSection 8.02 to approve the particular form of any proposed amendment,
\nsupplement or waiver, but it shall be sufficient if such consent approves the
\nsubstance thereof. After an amendment or supplement under this Section becomes
\neffective, the Company shall mail to Noteholders a notice briefly describing
\nsuch amendment or supplement. The failure to give such notice to all
\nNoteholders, or any defect therein, shall not impair or affect the validity of
\nan amendment or supplement under this section.<\/p>\n
SECTION 8.03. SUPPLEMENTAL INDENTURES.<\/p>\n
Every amendment or supplement to this Indenture or the Notes shall be
\nset forth in a supplemental indenture that complies with the TIA as then in
\neffect.<\/p>\n
SECTION 8.04. REVOCATION AND EFFECT OF CONSENTS.<\/p>\n
Until an amendment or supplement under this Article or a waiver under
\nArticle 6 becomes effective, a consent to it by a Holder of a Note is a
\ncontinuing consent by the Holder and every subsequent Holder of a Note or
\nportion of a Note that evidences the same debt as the consenting Holder’s Note,
\neven if notation of the consent is not made on any Note. However, any such
\nHolder or subsequent Holder may revoke the consent as to his Note or portion of
\na Note if the Trustee receives the notice of revocation before the date the
\namendment, supplement or waiver becomes effective.<\/p>\n
After an amendment or supplement becomes effective, it shall bind every
\nNoteholder.<\/p>\n
SECTION 8.05. NOTATION ON OR EXCHANGE OF NOTES.<\/p>\n
If an amendment changes the terms of a Note, the Trustee may require
\nthe Holder of the Note to deliver it to the Trustee. The Trustee may place an
\nappropriate notation on the Note regarding the changed terms and return it to
\nthe Holder. Alternatively, if the Company or the Trustee so determines, the
\nCompany in exchange for the Note shall issue and the Trustee shall authenticate
\na new Note that reflects the changed terms. Failure to make the appropriate
\nnotation or to issue a new Note shall not affect the validity of such amendment.<\/p>\n
SECTION 8.06. TRUSTEE TO SIGN AMENDMENTS.<\/p>\n
The Trustee shall sign any supplemental indenture which sets forth an
\namendment or supplement authorized pursuant to this Article if the amendment or
\nsupplement does not adversely affect the rights, duties, liabilities or
\nimmunities of the Trustee. If it does, the Trustee may but need not sign it. In
\nsigning such supplemental indenture the Trustee shall be entitled to receive,
\nand (subject to Section 6.01) shall be fully protected in relying upon, an
\nOfficers’ Certificate and an Opinion of Counsel stating that such supplemental
\nindenture is authorized or permitted by this Indenture and, with respect to an
\namendment or supplement pursuant to Section 8.02, evidence of the consents of
\nHolders required in connection therewith.<\/p>\n
SECTION 8.07. FIXING OF RECORD DATES.<\/p>\n
The Company may, but shall not be obligated to, fix a record date for
\nthe purpose of determining the Holders entitled to take any action under this
\nIndenture by vote or consent. Except as provided herein, such record date shall
\nbe the later of 30 days prior to the first solicitation of such consent or vote
\nor the date of the most recent list of Noteholders furnished to the Trustee
\npursuant to Section 2.05 prior to such solicitation. If a record date is fixed,
\nthose Persons who were Noteholders at such record date (or their duly designated
\nproxies), and only those Persons, shall be entitled to take such action by vote
\nor consent or to revoke any vote or consent previously given, whether or not
\nsuch Persons continue to be Holders after such record date; PROVIDED, HOWEVER,
\nthat unless such vote or consent is obtained from the Holders (or their duly
\ndesignated proxies) of the requisite principal amount of outstanding Notes prior
\nto the date which is the 120th day after such record date, any such vote or
\nconsent previously given shall automatically and without further action by any
\nHolder be canceled and of no further effect.<\/p>\n
ARTICLE 9<\/p>\n
SECURITY AGREEMENT<\/p>\n
SECTION 9.01. SECURITY AGREEMENT. (a) In order to secure the
\nobligations of the Company under this Indenture, the Company, the Collateral
\nAgent and the Trustee have entered into the Security Agreement to create the
\nLiens of the Security Agreement and for related matters.<\/p>\n
(b) The Company covenants and agrees that it has full right, power and
\nlawful authority to grant, bargain, sell, release, convey, hypothecate, assign,
\nmortgage, pledge and transfer the Collateral, in the manner and form done, or
\nintended to be done, in this Indenture and the Security Agreement. The Company
\nfurther covenants and agrees that the Security Agreement and the actions taken
\nhereunder and thereunder create, or will create, a perfected first priority Lien
\non the Collateral which they purport to create, prior to all other Liens.<\/p>\n
(c) As among the Holders, the Collateral as now or hereafter
\nconstituted shall be held for the equal and ratable benefit of the Holders
\nwithout preference, priority or distinction of any thereof over any other by
\nreason of difference in time of issuance, sale or otherwise, as security for the
\nCompany’s obligations under this Indenture and the Notes.<\/p>\n
SECTION 9.02. HOLDERS’ CONSENT. Each Holder, by its acceptance of a
\nNote, (i) consents and agrees to the terms of the Security Agreement and
\nauthorizes and approves the Trustee’s execution thereof, and (ii) agrees that
\nsuch Holder is bound by the terms thereof and that such Holder may not take any
\naction contrary thereto.<\/p>\n
SECTION 9.03. TRUST INDENTURE ACT OF 1939 REQUIREMENTS. The release of
\nany Collateral from the terms of the Security Agreement or the release of, in
\nwhole or in part, the Liens created by the Security Agreement, will not be
\ndeemed to impair the Liens of the Security Agreement in contravention of the
\nprovisions hereof and of the Security Agreement if and to the extent the
\nCollateral or Liens are released pursuant to the terms of the Security
\nAgreement. Each of the Holders acknowledges that a release of Collateral or
\nLiens strictly in accordance with the terms of the Security Agreement will not
\nbe deemed for any purpose to be an impairment of the Liens in contravention of
\nthe terms of this Indenture or the Security Agreement.<\/p>\n
SECTION 9.04. RELEASE UPON TERMINATION OF THE COMPANY’S OBLIGATIONS.<\/p>\n
(a) In the event that the Company delivers an Officers’ Certificate
\ncertifying that the Company has complied with Sections 7.01 and, if applicable,
\nSection 7.02 with respect to the Notes, or that all obligations under this
\nIndenture have been satisfied and discharged in accordance with this Indenture,
\nthe Trustee shall deliver to the Company and the Collateral Agent on behalf of
\nthe Holders, a notice disclaiming, relinquishing and releasing (without recourse
\nor warranty) any and all rights it has in respect of the Collateral and any
\nother instruments or documents evidencing or effecting such release in such form
\nas the Company may reasonably request.<\/p>\n
(b) Any release of any portion of the Collateral made strictly in
\ncompliance with the provisions of this Section 9.04 shall not be deemed to
\nimpair the Liens created by the Security Agreement in contravention of the
\nprovisions of this Indenture.<\/p>\n
(c) RELEASE OF COLLATERAL. To the extent applicable, the Company shall
\ncomply with clause Section 314(d) of the TIA relating to the release of property
\nfrom the Lien of the Security Agreement.<\/p>\n
SECTION 9.05. RETIREMENT OF NOTES. The Trustee shall direct the
\nCollateral Agent to release such amounts held in the Special Proceeds Account
\nand the Trustee shall apply such amounts from time to time to the payment
\n(including any premium) of the principal on the Notes, at maturity or to the
\npurchase thereof pursuant to a Special Proceeds Offer together with accrued
\ninterest, if any, required to be paid in connection with any such purchase or
\npayment at maturity as the Company shall request, upon receipt by the Trustee of
\nthe following:<\/p>\n
(a) a Board Resolution directing the application pursuant to this
\nSection 9.05 of the Collateral and prescribing the method of purchase, the price
\nor prices to be paid and the maximum principal (including any premium) amount of
\nNotes of such Series to be purchased and any other provisions of this Indenture
\ngoverning such purchase;<\/p>\n
(b) an Officers’ Certificate dated not more than five days prior to the
\ndate of the relevant application, stating that all conditions precedent and
\ncovenants herein and in the Security Agreement provided for relating to such
\napplication of the Collateral have been complied with; and<\/p>\n
(c) an Opinion of Counsel stating that the documents and the amounts in
\nsuch coin or currency of the United States of America as at the time of payment
\nshall be legal tender for the payment of public and private debts, in
\nimmediately available funds, if any, which have been or are therewith delivered
\nto and deposited with the Collateral Agent or the Trustee, as the case may be,
\nfor the purposes of payment of the principal (including any premium) and
\ninterest on the Notes at maturity or to purchase thereof pursuant to a Special
\nProceeds Offer conform to the requirements of this Indenture and the Security
\nAgreement and that all conditions precedent herein and in the Security Agreement
\nprovided for relating to such application of Collateral have been complied with.<\/p>\n
Upon compliance with the foregoing provisions of this Section 9.05, the
\nTrustee shall apply funds released from the Collateral Accounts as directed and
\nspecified by such Board Resolution up to, but not exceeding, the principal
\namount (including any premium) of the Notes so paid or purchased together with
\naccrued interest, if any, required to be paid in connection with any such
\npurchase or payment at maturity.<\/p>\n
A Board Resolution expressed to be irrevocable directing the
\napplication of funds from the Collateral Accounts under this Section 9.05 to the
\npayment of the principal (including any premium), and accrued interest if any,
\nshall, for all purposes of this Indenture, be deemed the equivalent of the
\ndeposit of money with the Trustee in trust for such purpose. Such funds from the
\nCollateral Accounts shall not, after compliance with the foregoing provisions of
\nthis Section 9.05, be deemed to be part of the Collateral.<\/p>\n
ARTICLE 10<\/p>\n
REDEMPTION<\/p>\n
SECTION 10.01. NOTICE TO TRUSTEE.<\/p>\n
If the Company elects to redeem Notes pursuant to paragraph 7 or 8 of
\nthe Notes, it shall notify the Trustee of the redemption date and the principal
\namount (not including any premium in respect thereof) of Notes to be redeemed
\nand the paragraph of the Notes pursuant to which the redemption will occur.<\/p>\n
The Company shall give the notices provided for in this Section at
\nleast 40 days before the redemption date (unless a shorter period shall be
\nsatisfactory to the Trustee). Such notice shall be accompanied by an Officers’
\nCertificate to the effect that such redemption will comply with the conditions
\nherein. If fewer than all the Notes are to be redeemed, the record date relating
\nto such redemption shall be selected by the Company and given to the Trustee,
\nwhich record date shall be not less than 15 days after the date of notice to the
\nTrustee.<\/p>\n
SECTION 10.02. SELECTION OF NOTES TO BE REDEEMED.<\/p>\n
If fewer than all the Notes are to be redeemed, the Trustee shall
\nselect the Notes to be redeemed on a pro rata basis or by lot or by any other
\nmethod that complies with applicable legal and securities exchange requirements,
\nif any, and that the Trustee consider fair and appropriate and in accordance
\nwith methods generally used at the time of selection by fiduciaries in similar
\ncircumstances, PROVIDED, HOWEVER, that no Note of $1,000 in original principal
\namount or less shall be redeemed in part. The Trustee shall make the selection
\nnot more than 45 days before the redemption date from outstanding Notes not
\npreviously called for redemption. The Trustee may select for redemption portions
\nof the principal of Notes that have denominations larger than $1,000. Notes and
\nportions of them selected by the Trustee shall be in amounts of $1,000 or whole
\nmultiples of $1,000. Provisions of this Indenture that apply to Notes called for
\nredemption also apply to portions of Notes called for redemption.<\/p>\n
SECTION 10.03. NOTICE OF REDEMPTION.<\/p>\n
At least 30 days but not more than 60 days before a redemption date,
\nthe Company shall mail a notice of redemption to each Holder whose Notes are to
\nbe redeemed at the address set forth for such Holder on the register referred to
\nin Section 2.03. Such notice, once delivered by the Company or to the Trustee,
\nwill be irrevocable.<\/p>\n
The notice shall identify the Notes to be redeemed and shall state:<\/p>\n
(a) the redemption date;<\/p>\n
(b) the redemption price;<\/p>\n
(c) the name and address of the Paying Agent;<\/p>\n
(d) that Notes called for redemption must be surrendered to the Paying
\nAgent to collect the redemption price;<\/p>\n
(e) if fewer than all the outstanding Notes are to be redeemed, the
\naggregate principal amount of the Notes to be redeemed together with the
\nidentification and principal amounts of the particular Notes to be redeemed;<\/p>\n
(f) that, unless the Company defaults in making the redemption payment,
\ninterest accrued to the date fixed for redemption and any Additional Amounts
\nwill be paid as specified in the notice and that interest on Notes called for
\nredemption ceases to accrue on and after the redemption date; and<\/p>\n
(g) that no representation is made as to the correctness or accuracy of
\nthe CUSIP number, if any, listed in such notice or printed on the Notes.<\/p>\n
At the Company’s written request, made at least 45 days before a
\nredemption date, unless a shorter period shall be satisfactory to the Trustee,
\nthe Trustee shall give the notice of redemption provided for in this section in
\nthe Company’s name and at its expense.<\/p>\n
SECTION 10.04. EFFECT OF NOTICE OF REDEMPTION.<\/p>\n
Once notice of redemption is mailed, Notes called for redemption become
\ndue and payable on the redemption date at the redemption price. Upon surrender
\nto the Paying Agent, such Notes shall be paid at the redemption price stated in
\nthe notice, plus accrued and unpaid interest to the redemption date.<\/p>\n
SECTION 10.05. DEPOSIT OF REDEMPTION PRICE.<\/p>\n
Prior to 11:00 a.m., eastern standard time, the redemption date, the
\nCompany shall deposit with the Paying Agent (or, if the Company or a Subsidiary
\nof the Company is the Paying Agent, shall segregate and hold in trust) money
\nsufficient to pay the redemption price of and accrued and unpaid interest on all
\nNotes to be redeemed on that date other than Notes or portions of Notes called
\nfor redemption which have been delivered by the Company to the Trustee for
\ncancellation.<\/p>\n
SECTION 10.06. NOTES REDEEMED IN PART.<\/p>\n
Upon surrender of a Note that is redeemed in part, the Company shall
\nexecute and the Trustee shall authenticate for the Holder (at the Company’s
\nexpense) a new Note equal in principal amount to the unredeemed portion of the
\nNote surrendered.<\/p>\n
SECTION 10.07. OPTIONAL REDEMPTION FOR CHANGES IN WITHHOLDING TAXES.<\/p>\n
The Notes may be redeemed, in whole but not in part, at the option of
\nthe Company, at any time, upon giving of notice as provided in Section 10.03 at
\na redemption price equal to 100% of the principal amount at maturity thereof,
\ntogether with accrued and unpaid interest to the date fixed by the Company for
\nredemption, if the Company determines and certifies to the Trustee in an
\nOfficers’ Certificate immediately prior to the giving of such notice that, as a
\nresult of any change in, or amendment to, the laws or treaties (including any
\nregulations or rulings promulgated thereunder) of Bermuda or such other
\njurisdiction in which the Company is then organized, as the case may be (or any
\npolitical subdivision or taxing authority thereof or therein), affecting
\ntaxation, or any change in official position regarding the application,
\ninterpretation or administration of such laws, treaties, regulations or rulings
\n(including a holding, judgment or order by a court of competent jurisdiction),
\nwhich change, amendment, application, interpretation or administration is
\nannounced or becomes effective on or after the date hereof with respect to any
\npayment due or to become due under the Notes or this Indenture, the Company is,
\nor on the next interest payment date would be, required to pay Additional
\nAmounts on or in respect thereof and such obligation to pay Additional Amounts
\ncannot be avoided by the taking of reasonable measures by the Company; provided
\nthat no such notice of redemption shall be given earlier than 90 days prior to
\nthe earliest date on which the Company would be obligated to make such
\nwithholding if a payment in respect of the Notes were then due.<\/p>\n
Prior to the publication and mailing of any notice of redemption of the
\nNotes pursuant to Section 10.03, the Company will deliver to the Trustee an
\nOpinion of Counsel or written advice of a qualified tax expert, such counsel or
\ntax expert being reasonably acceptable to the Trustee, that the Company has or
\nwill become obligated to pay Additional Amounts as a result of such change,
\namendment, application, interpretation or administration.<\/p>\n
ARTICLE 11<\/p>\n
MISCELLANEOUS<\/p>\n
SECTION 11.01. TRUST INDENTURE ACT CONTROLS.<\/p>\n
If any provision of this Indenture limits, qualifies or conflicts with
\nthe duties imposed by any of TIA ss. 310 to 317, inclusive, through operation of
\nTIA ss. 318(c), such imposed duties shall control.<\/p>\n
SECTION 11.02. NOTICES.<\/p>\n
Any notice or communication shall be in writing and delivered in
\nperson, or mailed by first-class mail (certified, return receipt requested),
\naddressed as follows:<\/p>\n
if to the Company:<\/p>\n
AES China Generating Co., Ltd.
\n 3\/f(w) Golden Bridge Plaza
\n No. 1(A) Jianguomenwai Avenue
\n Beijing, 10020, People’s Republic of China
\n Attention: Chief Financial Officer<\/p>\n
if to the Trustee:<\/p>\n
Bankers Trust Company
\n Four Albany Street
\n New York, New York 10006
\n Attention: Corporate Trust and Agency Group \/ Debt Administration<\/p>\n
The Company or the Trustee by notice to the others may designate
\nadditional or different addresses for subsequent notices or communications. Any
\nnotice to the Trustee under this Indenture shall be deemed given only when
\nreceived by the Trustee at the address specified in this Section 11.02.<\/p>\n
Any notice or communication to a Noteholder shall be mailed by
\nfirst-class mail to the Noteholder’s address shown on the register kept by the
\nRegistrar. Failure to mail a notice or communication to a Noteholder or any
\ndefect in it shall not affect its sufficiency with respect to other Noteholders.<\/p>\n
If a notice or communication is mailed in the manner provided above
\nwithin the time prescribed, it is duly given, whether or not the addressee
\nreceives it.<\/p>\n
If the Company mails a notice or communication to Noteholders, it shall
\nmail a copy to the Trustee and each Agent at the same time.<\/p>\n
SECTION 11.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.<\/p>\n
Noteholders may communicate pursuant to TIA ss. 312(b) with other
\nNoteholders with respect to their rights under this Indenture or the Notes. The
\nCompany, the Trustee, the Registrar and anyone else shall have the protection of
\nTIA ss. 312(c).<\/p>\n
SECTION 11.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.<\/p>\n
Upon any request or application by the Company to the Trustee to take
\nany action under this Indenture, the Company shall, if requested by the Trustee,
\nfurnish to the Trustee:<\/p>\n
(a) an Officers’ Certificate in form and substance reasonably
\nsatisfactory to the Trustee stating that, in the opinion of the signers, all
\nconditions precedent (including any covenants compliance with which constitutes
\na condition precedent), if any, provided for in this Indenture relating to the
\nproposed action have been complied with; and<\/p>\n
(b) an Opinion of Counsel in form and substance reasonably satisfactory
\nto the Trustee stating that, in the opinion of such counsel (which may rely upon
\nan Officers’ Certificate as to factual matters), all such conditions precedent
\nhave been complied with.<\/p>\n
SECTION 11.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.<\/p>\n
Each Officers’ Certificate or Opinion of Counsel with respect to
\ncompliance with a condition or covenant provided for in this Indenture other
\nthan certificates provided pursuant to Section 3.09 shall include:<\/p>\n
(a) a statement that the Person making such certificate or opinion has
\nread such covenant or condition;<\/p>\n
(b) a brief statement as to the nature and scope of the examination or
\ninvestigation upon which the statements or opinions contained in such
\ncertificate or opinion are based;<\/p>\n
(c) a statement that, in the opinion of such Person, he or she has made
\nsuch examination or investigation as is necessary to enable him or her to
\nexpress an informed opinion as to whether or not such covenant or condition has
\nbeen complied with; and<\/p>\n
(d) a statement as to whether or not, in the opinion of such Person,
\nsuch condition or covenant has been complied with.<\/p>\n
SECTION 11.06. RULES BY TRUSTEE AND AGENTS.<\/p>\n
The Trustee may make reasonable rules for action by or a meeting of
\nNoteholders. The Registrar or Paying Agent may make reasonable rules and set
\nreasonable requirements for its functions.<\/p>\n
SECTION 11.07. SUCCESSORS; NO RECOURSE AGAINST OTHERS.<\/p>\n
(a) All agreements of the Company in this Indenture and the Notes shall
\nbind its successor. All agreements of the Trustee in this Indenture shall bind
\nits successor.<\/p>\n
(b) All liability of the Company described in the Notes insofar as it
\nrelates to any director, officer, employee or stockholder, as such, of the
\nCompany is waived and released by each Noteholder.<\/p>\n
SECTION 11.08. DUPLICATE ORIGINALS.<\/p>\n
The parties may sign any number of copies of this Indenture. One signed
\ncopy is enough to prove this Indenture.<\/p>\n
SECTION 11.09. OTHER PROVISIONS.<\/p>\n
The first certificate pursuant to Section 3.09 shall be for the fiscal
\nyear ending November 30, 1997.<\/p>\n
The reporting date for Section 6.06 is November 30 of each year. The
\nfirst reporting date is November 30, 1997.<\/p>\n
SECTION 11.10. GOVERNING LAW.<\/p>\n
The laws of the State of New York govern this Indenture and the Notes,
\nwithout regard to the conflicts of laws rules thereof.<\/p>\n
SECTION 11.11. CONSENT TO JURISDICTION.<\/p>\n
The Company irrevocably submits to the jurisdiction of the United
\nStates District Court for the Southern District of New York, any court in the
\nState of New York located in the city and county of New York, and any appellate
\ncourt from any thereof, in any action, suit or proceeding brought against it and
\nrelated to or in connection with the Notes or this Indenture or for recognition
\nor enforcement of any judgment and the Company irrevocably and unconditionally
\nagrees that all claims in respect of any such suit or action or proceeding may
\nbe heard or determined in such New York State court or, to the extent permitted
\nby law, in such federal court. The Company agrees that a final judgment in any
\nsuch action, suit or proceeding shall be conclusive and may be enforced in other
\njurisdictions by suit on the judgment or in any other manner provided by law. To
\nthe extent permitted by applicable law, the Company hereby waives and agrees not
\nto assert by way of motion, as a defense or otherwise in any such suit, action
\nor proceeding, any claim that it is not personally subject to the jurisdiction
\nof such courts, that the suit, action or proceeding is brought in an
\ninconvenient forum, that the venue of the suit, action or proceeding is improper
\nor that the Notes or this Indenture or the subject matter hereof or thereof may
\nnot be litigated in or by such courts. The Company hereby irrevocably appoints
\nand designates The Prentice-Hall Corporation System, Inc., as its true and
\nlawful attorney and duly authorized agent for acceptance of service of legal
\nprocess. The Company agrees that service of such process upon The Prentice-Hall
\nCorporation System, Inc. at 375 Hudson Street, New York, New York 10014-3660,
\nshall constitute personal service of such process upon the Company. Nothing
\ncontained in this Agreement shall limit or affect the rights of any party hereto
\nto serve process in any other manner permitted by law or (other than the
\nCompany) to initiate legal proceedings against the Company or its property in
\nthe courts of any jurisdiction.<\/p>\n
SECTION 11.12. JUDGMENT CURRENCY.<\/p>\n
If for the purpose of obtaining judgement in any court it is necessary
\nto convert a sum due hereunder to the Holder of a Note in U.S. dollars into
\nanother currency (the “judgment currency”), the parties hereto agree, to the
\nfullest extent that they may effectively do so, that the rate of exchange used
\nshall be that at which in accordance with normal banking procedures such Holder
\ncould purchase U.S. dollars with the judgment currency in New York City two
\nBusiness Days preceding the day on which final judgment is given. The obligation
\nof the Company in respect of any sum payable by it to the Holder of a Note
\nhereunder shall, notwithstanding any judgment in a judgment currency other than
\nU.S. dollars, be discharged only to the extent that on the Business Day
\nfollowing receipt by such Holder of any sum adjudged to be so due in the
\njudgment currency, such Holder may in accordance with normal banking procedures
\npurchase U.S. dollars with the judgment currency; if the amount of the U.S.
\ndollars so purchased is less than the sum originally due upon the Note, the
\nCompany agrees, as a separate obligation and notwithstanding any such judgment,
\nto indemnify such Holder against such loss, and if the amount of the U.S.
\ndollars so purchase exceeds the sum originally due to such Holder, such Holder
\nagrees to remit to the Company such excess, provided that such Holder shall have
\nno obligation to remit any such excess as long as the Company shall have failed
\nto pay such Holder any obligations due and payable under this Indenture or such
\nNote, in which case such excess may be applied to such obligations of the
\nCompany hereunder in accordance with the terms of this Indenture or such Note.<\/p>\n
SECTION 11.13. EFFECT OF HEADINGS.<\/p>\n
The Article and Section headings herein and the Table of Contents are
\nfor convenience only and shall not affect the construction hereof.<\/p>\n
SECTION 11.14. WAIVER OF IMMUNITY.<\/p>\n
To the extent that the Company has or hereafter may acquire any
\nimmunity from jurisdiction of any court or from any legal process (whether
\nthrough service or notice, attachment prior to judgement, attachment in aid or
\nexecution, or otherwise) with respect to itself or its property, such party
\nhereby irrevocably waives such immunity in respect of its obligations hereunder
\nto the extent permitted by applicable law and, without limiting the generality
\nof the foregoing, agrees that the waivers set forth in this paragraph shall have
\neffect to the fullest extent permitted under the Foreign Sovereign Immunities
\nAct of 1976 of the United States and are intended to be irrevocable for purposes
\nof such Act.<\/p>\n
SECTION 11.15. TAX CONSIDERATIONS.<\/p>\n
It is the intention of the Company that for U.S. Federal, state and
\nlocal income tax purposes: (i) neither the Noteholders nor the Trustee shall be
\nat any time the owner of the Collateral for U.S. Federal, state or local tax
\npurposes and (ii) the trust estate created hereby is intended solely to be a
\nsecurity arrangement and not a trust and neither the Trustee nor the Noteholders
\nshall file any returns, reports or other documents or take any position
\ninconsistent therewith for U.S. Federal, state or local tax law purposes.<\/p>\n
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
\nduly executed as set forth on the first page hereof.<\/p>\n
(SEAL) AES CHINA GENERATING CO. LTD.<\/p>\n
By: \/s\/ Jeffrey A. Safford
\n ———————————
\n Jeffrey A. Safford
\n Vice President, Chief Financial
\n Officer and Secretary
\nAttest:<\/p>\n
\/s\/ Paul T. Hanrahan
\n ———————————
\n Paul AT. Hanrahan
\n President and Chief Executive
\n Officer<\/p>\n
BANKERS TRUST COMPANY,
\n as Trustee<\/p>\n
By: \/s\/ Dorothy Robinson
\n ———————————
\n Dorothy Robinson
\n Assistant Secretary<\/p>\n
Attest:<\/p>\n
\/s\/ Peter M. Lagatta
\n ———————————
\n Peter M. Lagatta
\n Assistant Treasurer<\/p>\n
EXHIBIT A<\/p>\n
(Form of Face of Note)<\/p>\n
[The following two paragraphs are to be reproduced on the Global Note.]<\/p>\n
Unless this certificate is presented by an authorized representative of
\nThe Depository Trust Company, a New York corporation (“DTC”), to the Company (as
\ndefined below) or its agent for registration of transfer, exchange or payment,
\nand any certificate issued is registered in the name of Cede & Co., or such
\nother name as is requested by an authorized representative of DTC (and any
\npayment is made to Cede & Co., or to such other entity as is requested by an
\nauthorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
\nVALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
\nowner hereof, Cede & Co., has an interest herein.<\/p>\n
Unless and until it is exchanged in whole or in part for Notes in
\ndefinitive registered form, this certificate may not be transferred except as a
\nwhole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another
\nnominee of DTC or by DTC or any such nominee to a successor Depositary or a
\nnominee of such successor Depositary.<\/p>\n
AES CHINA GENERATING CO. LTD.
\n 10 1\/8% Notes Due 2006
\n $180,000,000<\/p>\n
No. CUSIP No.: 000983AA4<\/p>\n
AES China Generating Co. Ltd., a corporation organized under the laws
\nof Bermuda (the “Company”), promises to pay to Cede & Co., or registered
\nassigns, the principal sum of One Hundred Eighty Million United States dollars
\n(US$180,000,000) on December 15, 2006.<\/p>\n
Interest Payment Dates: June 15 and December 15
\n Record Dates: June 1 and December 1<\/p>\n
Additional provisions of this Note are set forth on the reverse hereof.
\nSuch provisions shall for all purposes have the same effect as though fully set
\nforth at this place.<\/p>\n
This Note shall not be valid or obligatory until the certificate of
\nauthentication hereon shall have been duly signed by the Trustee acting under
\nthe Indenture.<\/p>\n
A-1<\/p>\n
IN WITNESS WHEREOF, the Company has caused this Note to be signed
\nmanually or by facsimile by its duly authorized officer under its corporate
\nseal.<\/p>\n
Date: December 19, 1996<\/p>\n
AES CHINA GENERATING CO. LTD.<\/p>\n
By:—————————
\n Name:
\n Title:<\/p>\n
TRUSTEE’S CERTIFICATE
\n OF AUTHENTICATION:<\/p>\n
BANKERS TRUST COMPANY, as Trustee,
\n certifies that this is one
\n of the Notes
\n referred to in the Indenture.<\/p>\n
By:——————————–
\n Authorized Signature<\/p>\n
A-2<\/p>\n
(Form of Reverse of Note)<\/p>\n
AES CHINA GENERATING CO. LTD.
\n 10 1\/8% Notes Due 2006<\/p>\n
(1) INDENTURE. The Note is one of a duly authorized issue of debt
\nsecurities (the “Notes”) of the Company limited to $180,000,000 in aggregate
\nprincipal amount issued under an Indenture dated as of December 19, 1996 (the
\n“Indenture”) among the Company and Bankers Trust Company, a New York banking
\nCorporation, as trustee (the “Trustee”). The terms of the Notes include those
\nstated in the Indenture and those made part of the Indenture by reference to the
\nTrust Indenture Act of 1939 (15 U.S. Code ss.ss.77aaa-77bbbb) (the “TIA”).
\nCapitalized terms used herein but not defined are used as defined in the
\nIndenture. The Notes are subject to all such terms, and Noteholders are referred
\nto the Indenture and the TIA for a statement of such terms.<\/p>\n
(2) RANKING. The Notes rank at least pari passu in right of payment
\nwith all existing and future unsecured Indebtedness of the Company.<\/p>\n
(3) SECURITY AGREEMENT. As provided in the Security Agreement dated as
\nof December 19, 1996, among the Company, Bankers Trust Company, as Trustee, and
\nBankers Trust Company, as collateral agent (the “Collateral Agent”), the
\nCompany’s obligations under the Indenture and the Notes are secured by a lien
\non, and a security interest in, the Collateral granted in favor of the
\nCollateral Agent for the benefit of the Trustee on behalf of the Noteholders.
\nThe rights of the Trustee in and to the Collateral are governed by the terms of
\nthe Security Agreement.<\/p>\n
(4) INTEREST. The Company promises to pay interest on the principal
\namount of this Note at the rate per annum shown above. The Company will pay
\ninterest semiannually on June 15 and December 15 of each year, commencing June
\n15, 1997, to Holders of record on June 1 and December 1 of each year,
\nrespectively. Interest on the Notes will accrue from the most recent date to
\nwhich interest has been paid or, if no interest has been paid, from December 19,
\n1996. Interest will be computed on the basis of a 360-day year consisting of
\ntwelve 30-day months.<\/p>\n
(5) METHOD OF PAYMENT. The Company will pay interest on the Notes
\n(except defaulted interest) to the persons who are registered Holders of Notes
\nat the close of business on the record date next preceding the interest payment
\ndate even though Notes are canceled after the record date and on or before the
\ninterest payment date. Holders must surrender Notes to a Paying Agent to collect
\nprincipal payments. The Company will pay principal and interest in money of the
\nUnited States that at the time of payment is legal tender for payment of public
\nand private debts. However, the Company may pay principal and interest by check
\npayable in such money. It may mail an interest check to a Holder’s registered
\naddress.<\/p>\n
A-3<\/p>\n
(6) PAYING AGENT, REGISTRAR. Initially, Bankers Trust Company, a New
\nYork banking corporation, will act as Paying Agent and Registrar. The Company
\nmay change any Paying Agent or Registrar without notice. The Company may act as
\nPaying Agent or Registrar.<\/p>\n
(7) OPTIONAL REDEMPTION. Except as set forth in the following
\nparagraph, the Company may not redeem the Notes prior to December 15, 2001. On
\nand after such date, the Company may redeem the Notes at any time, in whole, or
\nfrom time to time in part, at the following redemption prices (expressed in
\npercentages of principal amount), plus accrued interest to the redemption date,
\nif redeemed during the 12-month period beginning December 15:<\/p>\n
YEAR REDEMPTION PRICE
\n —- —————-
\n 2001 105.063%<\/p>\n
2002 102.531%<\/p>\n
2003 and thereafter 100.000%<\/p>\n
(8) OPTIONAL REDEMPTION FOR CHANGES IN WITHHOLDING TAXES. The Notes may
\nbe redeemed, in whole but not in part, at the option of the Company, at any
\ntime, at a redemption price equal to 100% of the principal amount at maturity
\nthereof, together with accrued and unpaid interest to the date fixed by the
\nCompany for redemption, if as a result of any change in, or amendment to, the
\nlaws or treaties (including any regulations or rulings promulgated thereunder)
\nof Bermuda or such other jurisdiction in which the Company is then organized, as
\nthe case may be (or any political subdivision or taxing authority thereof or
\ntherein), affecting taxation, or any change in official position regarding the
\napplication, interpretation or administration of such laws, treaties,
\nregulations or rulings (including a holding, judgment or order by a court of
\ncompetent jurisdiction), which change, amendment, application, interpretation or
\nadministration is announced or becomes effective on or after the Date hereof
\nwith respect to any payment due or to become due under the Notes or the
\nIndenture, the Company is, or on the next interest payment date would be,
\nrequired to pay Additional Amounts on or in respect thereof.<\/p>\n
(9) NOTICE OF REDEMPTION. Notice of redemption will be mailed at least
\n30 days but not more than 60 days before the redemption date to each Holder of
\nNotes to be redeemed at the address set forth for such Holder on the register
\nreferred to in Section 2.03 of the Indenture. Unless the Company shall default
\nin payment of the redemption price plus accrued interest, on and after the
\nredemption date interest ceases to accrue on such Notes or portions of them
\ncalled for redemption. Notes in denominations larger than $1,000 may be redeemed
\nin part but only in whole multiples of $1,000.<\/p>\n
(10) DENOMINATIONS; TRANSFER; EXCHANGE. The Notes are in registered
\nform without coupons in denominations of $1,000 and whole multiples of $1,000.
\nThe transfer of Notes may be registered and Notes may be exchanged as provided
\nin the Indenture. The Registrar may require a Holder, among other things, to
\nfurnish appropriate endorsements and transfer documents and to pay any taxes and
\nfees required by law or permitted by the Indenture. The Registrar need not
\nexchange or register the transfer of any Note or portion of a Note selected for
\nredemption (except, in the case of a Note to be redeemed in part, the portion
\nthereof not to be<\/p>\n
A-4<\/p>\n
redeemed) or for a period of 15 days before a selection of Notes to be redeemed
\nor 15 days before an interest payment date.<\/p>\n
(11) CHANGE OF CONTROL OFFER. Upon a Change of Control Triggering
\nEvent, the Company shall make an offer to purchase the Notes then outstanding at
\na purchase price of not less that 101% of the principal amount thereof
\n(excluding any premium), plus accrued and unpaid interest to the date of
\npurchase.<\/p>\n
(12) EXCESS PROCEEDS OFFER. To the extent of the balance of the Net
\nAvailable Cash after application thereof after certain Asset Sales in accordance
\nwith the Indenture, the Company shall make an offer to purchase the Notes at a
\npurchase price of not less than 100% of the principal amount (excluding any
\npremium), plus accrued and unpaid interest to the date of purchase.<\/p>\n
(13) SPECIAL PROCEEDS OFFER. The Company shall, within 30 days after
\nthe occurrence of any Special Proceeds Event, cause all Special Proceeds with
\nrespect to such Special Proceeds Event to be deposited into a Collateral Account
\nwith the Collateral Agent and the Company shall, to the extent of the amounts on
\ndeposit in the Special Proceeds collateral account, subject to certain
\nexceptions, make an offer to purchase the Notes at a purchase price of not less
\nthat 101% of the principal amount (excluding any premium), plus accrued and
\nunpaid interest to the date of purchase.<\/p>\n
(14) DEFEASANCE. Subject to certain conditions, the obligations under
\nthe Notes and the Indenture may be terminated, at any time, if the Company
\ndeposits with the Trustee money, U.S. Government Obligations or a combination
\nthereof for the payment of principal and interest on the Notes to redemption or
\nmaturity, as the case may be.<\/p>\n
(15) PERSONS DEEMED OWNERS. The registered Holder of a Note may be
\ntreated as its owner for all purposes, except that interest (other than
\ndefaulted interest) will be paid to the person that was the registered Holder on
\nthe relevant record date for such payment of interest.<\/p>\n
(16) AMENDMENTS AND WAIVERS. Subject to certain exceptions, (i) the
\nIndenture or the Notes may be amended or supplemented with the consent of the
\nHolders of a majority in principal amount of the Notes then outstanding; and
\n(ii) any existing default may be waived with the consent of the Holders of a
\nmajority in principal amount of the Notes then outstanding. Without the consent
\nof any Noteholder, the Indenture or the Notes may be amended or supplemented to
\ncure any ambiguity, omission, defect or inconsistency, to provide for assumption
\nof Company’s obligations to Noteholders, to provide for uncertificated Notes in
\naddition to or in place of certificated Notes (subject to certain conditions),
\nto provide for additional guarantees with respect to the Notes or to further
\nsecure the Notes, to add additional covenants or surrender any of the Company’s
\nrights, to comply with the requirements of the Commission in connection with
\nqualification under the TIA, to establish or maintain the Liens of the Security
\nAgreement or to make any change that does not adversely affect the rights of any
\nNoteholder.<\/p>\n
(17) REMEDIES. If an Event of Default occurs and is continuing, the
\nTrustee or Holders of at least 25% in aggregate principal amount of the Notes
\nthen outstanding may declare<\/p>\n
A-5<\/p>\n
all the Notes to be due and payable immediately. Noteholders may not enforce the
\nIndenture or the Notes except as provided in the Indenture. The Trustee may
\nrequire an indemnity before it enforces the Indenture or the Notes. Subject to
\ncertain limitations, Holders of a majority in principal amount of the Notes then
\noutstanding may direct the Trustee in its exercise of any trust or power. The
\nTrustee may withhold from Noteholders notice of any continuing default (except a
\nDefault in payment of principal or interest) if it determines that withholding
\nnotice is in their interest. The Company must furnish an annual compliance
\ncertificate to the Trustee.<\/p>\n
(18) NO RECOURSE AGAINST OTHERS. A director, officer, employee or
\nstockholder, as such, of the Company shall not have any liability for any
\nobligations of the Company under the Notes or the Indenture or for any claim
\nbased thereon or, in respect thereof. Each Noteholder by accepting a Note waives
\nand releases all such liability. The waiver and release are part of the
\nconsideration for the issue of the Notes.<\/p>\n
(19) AUTHENTICATION. This Note shall not be valid until authenticated
\nby the manual signature of an authorized signatory of the Trustee or an
\nauthenticating agent thereof.<\/p>\n
(20) ABBREVIATIONS. Customary abbreviations may be used in the name of
\na Noteholder or an assignee, such as: TEN COM (= tenants in common), TENANT (=
\ntenants by the entireties), JT TEN (= joint tenants with right of survivorship
\nand not as tenants in common), CUST (= Custodian) and U\/G\/M\/A (= Uniform Gifts
\nto Minors Act).<\/p>\n
Pursuant to a recommendation promulgated by the Committee on Uniform
\nNote Identification Procedures the Company has caused CUSIP numbers to be
\nprinted on the Notes and has directed the Trustee to use CUSIP numbers in
\nnotices of redemption as a convenience to Noteholders. No representation is made
\nas to the accuracy of such numbers either as printed on the Notes or as
\ncontained in any notice of redemption and reliance may be placed only on the
\nother identification numbers placed thereon.<\/p>\n
THE COMPANY WILL FURNISH TO ANY NOTEHOLDER UPON WRITTEN REQUEST AND
\nWITHOUT CHARGE A COPY OF THE INDENTURE, WHICH HAS IN IT THE TEXT OF THIS NOTE.
\nREQUESTS MAY BE MADE TO: AES CHINA GENERATING CO. LTD., 9\/F., ALLIED CAPITAL
\nRESOURCES BLDG., 32-38 ICE HOUSE STREET, CENTRAL, HONG KONG, ATTN.: CHIEF
\nFINANCIAL OFFICER.<\/p>\n
A-6<\/p>\n
ASSIGNMENT FORM<\/p>\n
To assign this Note, fill in the form below:
\n I or we assign and transfer this Note to<\/p>\n
(Insert assignee’s soc. sec. or tax I.D. no.)<\/p>\n
——————————————————————————–<\/p>\n
——————————————————————————–<\/p>\n
——————————————————————————–
\n (Print or type assignee’s name, address and zip code)<\/p>\n
and irrevocably appoint ——————– agent to transfer this Note on the
\nbooks of the Company. The agent may substitute another to act for him.<\/p>\n
——————————————————————————–<\/p>\n
Date:———————— Signed:——————————-<\/p>\n
——————————-
\n (Sign exactly as your name
\n appears on the other side of
\n this Note)<\/p>\n
Signature Guarantee:————————————————————<\/p>\n
——————————————————————————–<\/p>\n
——————————————————————————–<\/p>\n
OPTION OF HOLDER TO ELECT PURCHASE FORM<\/p>\n
If you wish to elect to have this Note purchased by the Company pursuant to
\nSection 3.08 or 3.12 of the Indenture, check this box: [ ]<\/p>\n
If you wish to elect to have only part of this Note purchased by the Company
\npursuant to Section 3.08 or 3.12 of the Indenture, state the amount: $———-<\/p>\n
A-7<\/p>\n
*As set forth in the Indenture, any purchase pursuant to Section 3.08
\nor 3.12 is subject to proration in the event the offer is oversubscribed.<\/p>\n
Date:———————— Signed:——————————-<\/p>\n
——————————-
\n (Sign exactly as your name
\n appears on the other side of
\n this Note)<\/p>\n
Signature Guarantee:————————————————————<\/p>\n
A-8<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6852],"corporate_contracts_industries":[9415],"corporate_contracts_types":[9560,9566],"class_list":["post-41058","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-bankers-trust-corp","corporate_contracts_industries-financial__banks","corporate_contracts_types-finance","corporate_contracts_types-finance__indenture"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41058","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41058"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41058"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41058"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41058"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}