UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT
TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): March 31, 2015
THE AES CORPORATION
(Exact name of registrant as specified in its charter)
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DELAWARE |
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001-12291 |
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54-11263725 |
(State or other jurisdiction
of incorporation) |
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(Commission
File Number) |
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(IRS Employer
Identification No.) |
4300 Wilson Boulevard, Suite 1100
Arlington, Virginia 22203
(Address of principal executive offices, including zip code)
Registrants telephone number, including area code: (703) 522-1315
NOT APPLICABLE
(Former
name or former address, if changed since last report)
Check the appropriate box below
if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01 Entry into a Material Definitive Agreement
On March 31, 2015, The AES Corporation (the Company or AES) announced an offering of $575,000,000 aggregate principal amount of
its 5.500% Senior Notes due 2025 (the Notes). Goldman, Sachs & Co. was sole book-running manager for the offering of the Notes.
The
public offering price of the Notes was 99.000% of the principal amount. AES received net proceeds of approximately $568.6 million, after deducting underwriting discounts and estimated offering expenses payable by the Company. AES intends to use the
net proceeds from the offering of the Notes to fund the concurrent tender offers to purchase certain series of AES outstanding senior notes and to pay certain related fees and expenses. If any net proceeds from this offering remain after
completion of the tender offers, AES intends to use such proceeds to retire certain outstanding indebtedness and for general corporate purposes.
The
Notes were offered and sold pursuant to an Underwriting Agreement (the Underwriting Agreement), dated March 31, 2015, between AES and Goldman, Sachs & Co., under AESs automatic shelf registration statement (the
Registration Statement) on Form S-3 (Registration No. 333-186888), filed with the Securities and Exchange Commission (the SEC) on February 27, 2013. AES has filed with the SEC a prospectus supplement,
dated March 31, 2015, together with the accompanying prospectus, dated February 27, 2013, relating to the offer and sale of the Notes.
The
Notes were issued on April 6, 2015 pursuant to a Senior Indenture, dated as of December 8, 1998 (the Base Indenture), as amended and supplemented by a ninth supplemental indenture, dated as of April 3, 2003 (the
Ninth Supplemental Indenture) and the nineteenth supplemental indenture, dated as of April 6, 2015 (the Nineteenth Supplemental Indenture, and together with the Base Indenture and the Ninth Supplemental Indenture, the
Indenture), between AES and Wells Fargo Bank, N.A., as successor to Bank One, National Association (formerly known as The First National Bank of Chicago), as Trustee.
Interest on the Notes accrues at a rate of 5.500% per annum, and interest is payable on April 15 and October 15 of each year, beginning
October 15, 2015. The Notes will mature on April 15, 2025. The Company may redeem all or a part of the Notes on or after April 15, 2020, on any one or more occasions, as described in the Indenture. In addition, at any time prior to
April 15, 2020, the Company may redeem all or a part of the Notes, on any one or more occasions, at a redemption price equal to 100% of the principal amount of the Notes to be redeemed plus a make-whole premium as of, and accrued
and unpaid interest, if any, to, but not including, the date of redemption, as described in the Indenture. In addition, at any time and on one or more occasions, on or prior to April 15, 2018, the Company may redeem, in the aggregate for all
such redemptions, up to 35% of the aggregate principal amount of the notes with the net cash proceeds from certain equity offerings at a redemption price equal to 105.500% of the principal amount of the notes to be redeemed, plus accrued and unpaid
interest, if any, to, but not including, the date of redemption, as described in the Indenture.
Upon the occurrence of a Change of Control (as defined in
the Indenture), the Company must offer to repurchase the Notes at a price equal to 101% of their principal amount, plus accrued and unpaid interest, if any, to, but not including, the date of repurchase. The Indenture also contains covenants,
subject to certain exceptions, restricting the ability of the Company to incur debt secured by any Principal Property (as defined in the Indenture) or by the debt or capital stock of any subsidiary held by the Company; to enter into any sale-lease
back transactions involving any Principal Property; or to consolidate, merge, convey or transfer substantially all of its assets; as well as other covenants that are customary for debt securities like the Notes. In addition, the Indenture contains
customary events of default.
The above description of the Underwriting Agreement, the Indenture and the Notes is qualified in its entirety by reference
to the Underwriting Agreement, the Indenture and the form of Notes, each of which is incorporated by reference into the Registration Statement. The Base Indenture has been incorporated by reference as Exhibit 4.3 to the Registration Statement.
The Underwriting Agreement, Nineteenth
Supplemental Indenture and form of Notes are attached to this Current Report on Form 8-K as Exhibit 1.1, Exhibit 4.1 and Exhibit 4.2, respectively, and are incorporated by
reference into the Registration Statement. An opinion regarding the legality of the Notes is incorporated by reference into the Registration Statement and is attached to this Current Report on Form 8-K as Exhibit 5.1.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of Registrant
The information set forth under Item 1.01 above is hereby incorporated into this Item 2.03 by reference.
Safe Harbor Disclosure
This Current Report on Form 8-K
contains forward-looking statements within the meaning of the Securities Act of 1933 and of the Securities Exchange Act of 1934. Such forward-looking statements include, but are not limited to, the intended use of proceeds from the offering of the
Notes, which are subject to risks and uncertainties, such as general economic conditions and other risks and uncertainties. Forward-looking statements are not intended to be a guarantee of future results, but instead constitute AESs current
expectations based on reasonable assumptions.
Actual results could differ materially from those projected in our forward-looking statements due to risks,
uncertainties and other factors. Important factors that could affect actual results are discussed in the prospectus supplement related to the offering and AESs filings with the SEC, including, but not limited to, the risks discussed under
Item 1A Risk Factors and Item 7 Managements Discussion & Analysis of Financial Condition and Results of Operations in AESs 2014 Annual Report on Form 10-K and in subsequent reports filed with
the SEC. Readers are encouraged to read AESs filings to learn more about the risk factors associated with AESs business. AES undertakes no obligation to update or revise any forward-looking statements, whether as a result of new
information, future events or otherwise.
Item 9.01 |
Financial Statements and Exhibits. |
(d) Exhibits
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Exhibit No. |
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Description |
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1.1 |
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Underwriting Agreement, dated March 31, 2015, between The AES Corporation and Goldman, Sachs & Co. |
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4.1 |
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Nineteenth Supplemental Indenture, dated April 6, 2015, between The AES Corporation and Wells Fargo Bank, N.A., as Trustee. |
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4.2 |
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Form of 5.500% Senior Notes due 2025 (included in Exhibit 4.1). |
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5.1 |
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Opinion of Davis Polk & Wardwell LLP. |
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23.1 |
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Consent of Davis Polk & Wardwell LLP (included in Exhibit 5.1). |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
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THE AES CORPORATION |
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By: |
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/s/ Thomas M. OFlynn |
Name: |
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Thomas M. OFlynn |
Title: |
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Executive Vice President and Chief Financial Officer |
Date: April 6, 2015
EXHIBIT INDEX
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Exhibit No. |
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Description |
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1.1 |
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Underwriting Agreement, dated March 31, 2015, between The AES Corporation and Goldman, Sachs & Co. |
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4.1 |
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Nineteenth Supplemental Indenture, dated April 6, 2015, between The AES Corporation and Wells Fargo Bank, N.A., as Trustee. |
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4.2 |
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Form of 5.500% Senior Notes due 2025 (included in Exhibit 4.1). |
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5.1 |
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Opinion of Davis Polk & Wardwell LLP. |
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23.1 |
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Consent of Davis Polk & Wardwell LLP (included in Exhibit 5.1). |
Exhibit 1.1
EXECUTION COPY
THE
AES CORPORATION
$575,000,000
Senior Notes Due 2025
Underwriting Agreement
March 31, 2015
Goldman, Sachs & Co.
200 West Street
New York, New York 10282-2198
Ladies and Gentlemen:
Introductory. The AES Corporation, a Delaware corporation (the Company), proposes to issue and sell to
Goldman, Sachs & Co. (the Underwriter), $575,000,000 principal amount of its Senior Notes due 2025 (the Securities). The Securities will be issued pursuant to an indenture dated as of December 8,
1998, as amended and supplemented (the Base Indenture), between the Company and Wells Fargo Bank, N.A., as trustee (the Trustee). Certain terms of the Securities will be established pursuant to a supplemental
indenture dated as of the Closing Date (as defined in Section 3 hereof) (the Supplemental Indenture and, together with the Base Indenture, the Indenture). The use of the neuter in this Underwriting
Agreement (the Agreement) shall include the feminine and masculine wherever appropriate.
1. Representations
and Warranties. The Company represents and warrants to, and agrees with, the Underwriter as of the date hereof that:
(a) The Company has prepared and filed with the Securities and Exchange Commission (the Commission) a
registration statement on Form S-3 (File No. 333-186888), which contains a base prospectus (the Base Prospectus), to be used in connection with the public offering and sale of the Securities. Such registration statement, as
amended, including the financial statements, exhibits and schedules thereto, at each time of effectiveness under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (collectively, the Securities
Act), including any required information deemed to be a part thereof at the time of effectiveness pursuant to Rule 430B or 430C under the Securities Act or the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder (collectively, the Exchange Act), is called the Registration Statement. Any preliminary prospectus supplement relating to the Securities that is filed with the Commission pursuant to Rule
424(b), together with the Base Prospectus, is hereafter called a Preliminary Prospectus. The term Prospectus shall mean the final prospectus supplement relating to the Securities that is first filed pursuant to
Rule 424(b) after the date and time that this Agreement is executed and delivered by the parties hereto, including the Base
Prospectus. Any reference herein to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Securities Act; any reference to any amendment or supplement to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after the date of such
Preliminary Prospectus or Prospectus, as the case may be, under the Exchange Act, and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall
be deemed to refer to and include any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date of the Registration Statement that is incorporated by reference in the Registration
Statement.
(b) Compliance with Registration Requirements. The Company meets the requirements for use of Form S-3
under the Securities Act. The Registration Statement has become effective upon filing with the Commission under the Securities Act. No stop order suspending the effectiveness of the Registration Statement is in effect, the Commission has not issued
any order or notice preventing or suspending the use of the Registration Statement, any Preliminary Prospectus or the Prospectus and no proceedings for such purpose or pursuant to Section 8A of the Securities Act have been instituted or are
pending or, to the best knowledge of the Company, are contemplated or threatened by the Commission.
Each of the
Preliminary Prospectus and the Prospectus when filed complied in all material respects with the Securities Act. Each of the Registration Statement and any post-effective amendment thereto, at each time of effectiveness, at the date hereof and at the
Closing Date, complied and will comply in all material respects with the Securities Act and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading. The Prospectus, as amended or supplemented, as of its date, at the time of any filing pursuant to Rule 424(b) and, at the Closing Date, did not and will not contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations and warranties set forth in the two immediately preceding sentences
do not apply to statements in or omissions from the Registration Statement or any post-effective amendment thereto, or the Preliminary Prospectus or the Prospectus, or any amendments or supplements thereto, made in reliance upon and in conformity
with written information furnished to the Company by the Underwriter expressly for use therein.
The documents incorporated
by reference in the Registration Statement, the Disclosure Package (as defined herein) and the Prospectus, when they were filed with the Commission conformed in all material respects to the requirements of the Exchange Act. Any further documents so
filed and incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus or any further amendment or supplement thereto, when such documents are filed with the Commission will conform in all material respects to
the requirements of the Exchange Act. All documents incorporated or deemed to be incorporated by reference in the Registration Statement, the
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Disclosure Package and the Prospectus, as of their respective dates, when taken together with the other information in the Disclosure Package, at the Applicable Time (as defined herein), and,
when taken together with the other information in the Prospectus, at the Closing Date, did not and will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(c) Well-Known Seasoned Issuer. (i) At
the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment,
incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) of the
Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 of the Securities Act, and (iv) at the Applicable Time (with such date and time being used as the determination date for purposes of this clause
(iv)), the Company was and is a well-known seasoned issuer as defined in Rule 405 of the Securities Act. The Registration Statement is an automatic shelf registration statement as defined in Rule 405 of the Securities Act
that has been filed with the Commission not earlier than three years prior to the Closing Date; the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the automatic shelf
registration statement form; and the Company has not otherwise ceased to be eligible to use the automatic shelf registration form.
(d) Disclosure Package. The term Disclosure Package shall mean (i) the Base Prospectus as
amended or supplemented by any Preliminary Prospectus, (ii) the issuer free writing prospectuses as defined in Rule 433 of the Securities Act (each, an Issuer Free Writing Prospectus), if any, identified in Schedule A hereto,
(iii) any other free writing prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package and (iv) the Final Term Sheet (as defined herein), which also shall be identified in
Schedule A hereto. As of 5:00 p.m., New York City time, on the date of this Agreement (the Applicable Time), the Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Disclosure Package made in reliance upon
and in conformity with written information furnished to the Company by the Underwriter expressly for use therein.
(e)
Company Not Ineligible Issuer. (i) At the earliest time after the filing of the Registration Statement relating to the Securities that the Company or another offering participant made a bona fide offer (within the meaning of Rule
164(h)(2) of the Securities Act) and (ii) as of the Applicable Time (with such date being used as the determination date for purposes of this clause (ii)), the Company was not and is not an ineligible issuer (as defined in Rule 405
of the Securities Act), without taking account of any determination by the Commission pursuant to Rule 405 of the Securities Act that it is not necessary that the Company be considered an ineligible issuer.
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(f) Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus,
as of its issue date and at all subsequent times through the completion of the offering of Securities under this Agreement or until any earlier date that the Company notified or notifies the Underwriter as described in the next sentence, did not,
does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement, the Disclosure Package or the Prospectus. If at any time following issuance of an Issuer Free
Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, the Disclosure Package or the
Prospectus, the Company has promptly notified or will promptly notify the Underwriter and has promptly amended or supplemented or will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such
conflict. Any Issuer Free Writing Prospectus not identified on Schedule A, when taken together with the Disclosure Package, did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The foregoing three sentences do not apply to statements in or omissions from any Issuer Free Writing Prospectus made in
reliance upon and in conformity with written information furnished to the Company by the Underwriter expressly for use therein.
(g) Distribution of Offering Material by the Company. The Company has not distributed nor will it distribute, prior to
the later of the Closing Date and the completion of the Underwriters distribution of the Securities, any offering material in connection with the offering and sale of the Securities other than the Preliminary Prospectus, the Prospectus and any
Issuer Free Writing Prospectus reviewed and consented to by the Underwriter.
(h) No Applicable Registration or Other
Similar Rights. There are no persons with registration or other similar rights to have any equity or debt securities registered for sale under the Registration Statement or included in the offering contemplated by this Agreement, except for such
rights as have been duly waived.
(i) No Material Adverse Change. Except as otherwise disclosed in the Disclosure
Package and the Prospectus (exclusive of any amendment or supplement thereto), there has not been a material adverse change, or any development that could reasonably be expected to result in a material adverse change, in the condition, financial or
otherwise, earnings, business or prospects, whether or not arising from transactions in the ordinary course of business, of the Company and its subsidiaries, taken as a whole.
(j) Exchange Act Compliance. The Company is subject to Section 13 or Section 15(d) of the Exchange Act and has
filed all periodic reports required to be filed pursuant to the rules and regulations thereunder.
(k) Brokers.
Other than the discount provided for pursuant to Section 2 of this Agreement, the Company has not paid or agreed to pay to any person any compensation for soliciting another to purchase any of its debt securities.
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(l) No Price Stabilization or Manipulation. None of the Company, its
affiliates (as defined in Rule 501(b) of Regulation D under the Securities Act) (Affiliates) or any of its or their respective directors, officers or controlling persons has taken, directly or indirectly, any action designed to
cause or which has constituted or which might reasonably be expected to cause or result, under the Exchange Act or otherwise, in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the
Securities.
(m) Incorporation and Good Standing of the Company and Its Subsidiaries. Each of the Company and each
of its subsidiaries and affiliates which meets the criteria in the definition of significant subsidiary pursuant to Rule 1-02(w) of Regulation S-X under the Securities Act that is an operating subsidiary (each, a Principal
Subsidiary) is listed in Exhibit B to this Agreement and has been duly incorporated or formed, is validly existing as a corporation or other entity in good standing under the laws of the jurisdiction of incorporation or organization and
has the corporate or other power and authority required to carry on its business as it is currently being conducted and to own, lease and operate its properties, and each is duly qualified and is in good standing as a foreign corporation or other
entity authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified would not have a material adverse effect on
the business, financial condition or results of operations of the Company and its subsidiaries, taken as a whole.
(n)
Capitalization of Subsidiaries. All of the outstanding shares of capital stock of, or other ownership interests in Principal Subsidiaries that are owned directly or indirectly by the Company have been duly and validly authorized and issued
and are fully paid and non-assessable, and are owned directly or indirectly by the Company.
(o) The Securities. The
Securities have been duly authorized by the Company, and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriter, will be entitled to the benefits of the Indenture, and
will be valid and binding obligations of the Company, enforceable in accordance with their terms except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws affecting
creditors rights generally and by equitable principles of general applicability.
(p) The Indenture. The
Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission promulgated thereunder. The Base Indenture and the Supplemental Indenture have been duly authorized by the Company
and when the Supplemental Indenture is executed and delivered by the Company and the Trustee, the Indenture will be a valid and binding agreement of the Company, enforceable in accordance with its terms except as the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors rights generally and by equitable principles of general applicability.
(q) The Underwriting Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
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(r) Description of Documents. The Securities and the Indenture conform in
all material respects as to legal matters to the description thereof contained in the Prospectus and the Disclosure Package.
(s) Common Stock of the Company. All of the outstanding shares of common stock of the Company have been duly authorized
and validly issued, are fully paid and non-assessable and were not issued in violation of any preemptive or similar right.
(t) Non-Violation of Existing Instruments. The Company is not in violation of its charter or its by-laws, and none of
its Principal Subsidiaries is in violation of its respective charter or corresponding formation document or, except for any such violations which would not have a material adverse effect on the business, financial condition or results of operations
of the Company and its subsidiaries, taken as a whole, is not in violation of its by-laws or corresponding organizational document nor is the Company or any of the Principal Subsidiaries, except as set forth in the Prospectus and the Disclosure
Package, in default in the performance of any obligation, agreement or condition contained in any bond, debenture, note or any other evidence of indebtedness or in any other agreement, indenture or instrument to which the Company or any of its
Principal Subsidiaries is a party or by which it or any of its Principal Subsidiaries or its or their respective property is bound except for any such defaults which have been waived or which, individually or in the aggregate, would not have a
material adverse effect on the business, financial condition or results of operations of the Company and its subsidiaries, taken as a whole.
(u) No Further Authorizations or Approvals Required. The execution, delivery and performance by the Company of this
Agreement, the Indenture and the Securities and the compliance by the Company with all the provisions hereof and thereof, the consummation of the transactions contemplated hereby or by the Prospectus and the Disclosure Package (i) will not
require any consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body under any federal or state law, including, but not limited to, the Energy Policy Act of 2005, as amended,
except such as may be required by state securities or blue sky laws and (ii) will not conflict with or constitute a breach of any of the terms or provisions of, or a default under, the charter, by-laws or other organizational documents of the
Company or any of the Principal Subsidiaries or any agreement, indenture or other instrument to which it or any of the Principal Subsidiaries is a party or by which it or any of the Principal Subsidiaries or its or their respective property is
bound, and will not violate or conflict with any laws, administrative regulations or rulings or court decrees applicable to the Company, any of the Principal Subsidiaries or its or their respective property, except with respect to state securities
or blue sky laws and except (other than with respect to the charter and by-laws or other organizational documents of the Company) for any such conflicts, breaches, defaults or violations which, individually or in the aggregate, would not have a
material adverse effect on the business, financial condition or results of operations of the Company and its subsidiaries, taken as a whole.
(v) No Material Actions or Proceedings. Except as set forth in the Prospectus and the Disclosure Package, there are no
material legal or governmental proceedings
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pending to which the Company or any of the Principal Subsidiaries is a party or to which any of their respective property is the subject, and, to the best of the Companys knowledge, no such
proceedings are threatened or contemplated.
(w) SEC Correspondence. The Company has not received from the
Commission any written comments, questions or requests for modification of disclosure in respect of any reports filed with the Commission pursuant to the Exchange Act and incorporated by reference into the Prospectus and the Disclosure Package,
except for comments, questions or requests (i) that have been satisfied by the provision of supplemental information to the staff of the Commission, (ii) in respect of which the Company has complied through appropriate disclosure in
reports subsequently filed by it with the Commission pursuant to the Exchange Act, or (iii) copies of which the Company has provided to you.
(x) ERISA Compliance. Except as set forth in the Prospectus and the Disclosure Package, neither the Company nor any of
the Principal Subsidiaries has violated any U.S. federal or state law relating to discrimination in the hiring, promotion or pay of employees nor any applicable U.S. federal or state wages and hours laws, or any provisions of the Employee Retirement
Income Security Act of 1974, as amended, or the rules and regulations promulgated thereunder, except for any such violations which would not have a material adverse effect on the business, financial condition or results of operations of the Company
and its subsidiaries, taken as a whole.
(y) Title to Properties. Except as set forth in the Prospectus and the
Disclosure Package, the Company and each of the Principal Subsidiaries has good and marketable title, free and clear of all liens, claims, encumbrances and restrictions, except liens for taxes not yet due and payable, to all property and assets
described in the Prospectus and the Disclosure Package as being owned by it, except for any such instances which would not have a material adverse effect on the business, financial condition or results of operations of the Company and its
subsidiaries, taken as a whole. All leases to which the Company or any of the Principal Subsidiaries is a party are valid and binding and no default by the Company or any such Principal Subsidiary, or, to the best of the Companys knowledge, by
any other party to any such leases, has occurred or is continuing thereunder, except for any such defaults which would not have a material adverse effect on the business, financial condition or results of operations of the Company and its
subsidiaries, taken as a whole; and the Company and the Principal Subsidiaries enjoy peaceful and undisturbed possession under all such leases to which any of them is a party as lessee with such exceptions as do not materially interfere with the use
made by the Company or such Principal Subsidiary.
(z) Independent Accountants of the Company. Ernst &
Young LLP is an independent registered public accounting firm with respect to the Company as required by the Securities Act and the Exchange Act and the rules and regulations of the Public Company Accounting Oversight Board (United States).
(aa) Preparation of Financial Statements of the Company. The financial statements of the Company, together with related
schedules and notes, filed with the
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Commission as a part of or incorporated by reference in the Prospectus and the Disclosure Package (and any amendment or supplement thereto), present fairly the consolidated financial position or
results of operations and statements of cash flow of the Company and its consolidated subsidiaries on the basis stated therein at the respective dates and for the respective periods to which they apply; such statements and related schedules and
notes have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved, except as disclosed therein; and the other financial and statistical information and data set forth in the
Prospectus and the Disclosure Package (and any amendment or supplement thereto), in all material respects, present fairly the information purported to be shown thereby at the respective dates or for the respective periods to which they apply and
have been prepared on a basis consistent with such financial statements and the books and records of the Company. Such financial statements and supporting schedules comply as to form with the applicable accounting requirements of Regulation S-X and
have been prepared in conformity with generally accepted accounting principles as applied in the United States applied on a consistent basis throughout the periods involved, except as may be expressly stated in the related notes thereto. No other
financial statements or supporting schedules are required to be included or incorporated by reference in the Registration Statement. The financial data set forth in the Preliminary Prospectus and the Prospectus under the caption
SummarySummary Historical Consolidated Financial Information, fairly present the information set forth therein on a basis consistent with that of the audited financial statements contained or incorporated by reference in the
Registration Statement. The Companys ratios of earnings to fixed charges set forth in each of the Preliminary Prospectus and the Prospectus under the caption Ratio of Earnings to Fixed Charges, and in Exhibit 12 to the Registration
Statement have been calculated in compliance in all material respects with the requirements of Item 503(d) of Regulation S-K under the Securities Act. The interactive data in eXtensbile Business Reporting Language included or incorporated by
reference in the Prospectus and the Disclosure Package (and any amendment or supplement thereto) fairly presents the information called for in all material respects and has been prepared in accordance with the Commissions rules and guidelines
applicable thereto.
(bb) All Necessary Permits, etc. Each of the Company and the Principal Subsidiaries has such
permits, licenses, franchises and authorizations of governmental or regulatory authorities (permits) which are required to have been obtained by it prior to the date hereof and which are material to the ownership or leasing and
operation of or construction of its respective properties and to the conduct of its business in the manner described in the Prospectus and the Disclosure Package, except for any such permits, the failure of which to have, individually or in the
aggregate, would not have a material adverse effect on the business, financial condition or results of operations of the Company and its subsidiaries, taken as a whole, and subject to such qualifications as may be set forth in the Prospectus and the
Disclosure Package; each of the Company and the Principal Subsidiaries has fulfilled and performed all of its material obligations with respect to such permits required to have been fulfilled and performed prior to the date hereof and no event has
occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or result in any other material impairment of the rights of the holder of any such permit, subject in each case to such qualification as may
8
be set forth in the Prospectus and the Disclosure Package; and, except as described in the Prospectus and the Disclosure Package, such permits do not materially interfere with the use or
operation of the electric power generation facilities of the Principal Subsidiaries as currently used or operated or as contemplated to be used or operated.
(cc) Compliance with Utilities Regulations. Each of the Companys domestic generating facilities (other than the
generating facilities of Indianapolis Power & Light Company and The Dayton Power and Light Company) is either a qualifying small power production facility or a qualifying cogeneration facility under the Federal Power
Act, as amended by Section 201 of the Public Utility Regulatory Policies Act of 1978 and the regulations of the Federal Energy Regulatory Commission promulgated thereunder or is owned by an exempt wholesale generator under the
Public Utility Holding Company Act of 2005 and the regulations of the Federal Energy Regulatory Commission promulgated thereunder, and each such facilitys current use, operation and ownership are consistent with such facilitys status as
a qualifying facility or as being owned by an exempt wholesale generator, as the case may be.
(dd)
Company Not an Investment Company. The Company is not, and after giving effect to the offering and issuance of the Securities and the application of the proceeds thereof will not be required to register as an investment
company within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission promulgated thereunder (the Investment Company Act).
(ee) Compliance with and Liability Under Environmental Laws. Except as set forth in the Prospectus and the Disclosure
Package, each of the Company, each Principal Subsidiary and any other subsidiary or entity which the Company may be deemed to operate is in compliance with all applicable foreign, federal, state and local environmental (including, without
limitation, the Comprehensive Environmental Response, Compensation & Liability Act of 1980, as amended), safety or similar law, rule and regulation, and there are no costs or liabilities associated with any such law, rule or regulation,
except for any such non-compliances, costs or liabilities which, individually or in the aggregate, would not have a material adverse effect on the business, financial condition or results of operations of the Company and its subsidiaries, taken as a
whole.
(ff) Capitalization. The Companys authorized capitalization as of December 31, 2014 is as set
forth in the Prospectus and the Disclosure Package.
(gg) Internal Controls and Procedures; Disclosure Controls.
Except as disclosed in the Prospectus and the Disclosure Package, the Company and each of its Principal Subsidiaries maintain (i) effective internal control over financial reporting as defined in Rule 13a-15 and Rule 15d-15 under the Exchange
Act, and (ii) a system of internal accounting controls sufficient to provide reasonable assurances that (A) transactions are executed in accordance with managements general or specific authorization; (B) transactions are
recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets;
9
(C) access to assets is permitted only in accordance with managements general or specific authorization; and (D) the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as disclosed in the Prospectus and the Disclosure Package, the Company and each of its Principal Subsidiaries maintain an effective system of
disclosure controls and procedures (as defined in Rule 13a-15(e) of the Exchange Act) that is designed to ensure that information required to be disclosed by the Company in reports that it files or submits under the Exchange Act is
recorded, processed, summarized and reported within the time periods specified in the Commissions rules and forms, including controls and procedures designed to ensure that such information is accumulated and communicated to the Companys
management as appropriate to allow timely decisions regarding required disclosure. The Company and its Principal Subsidiaries have carried out evaluations of the effectiveness of their disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act.
(hh) Sarbanes-Oxley Compliance. Except as
otherwise disclosed in the Disclosure Package and the Prospectus, there is and has been no failure on the part of the Company or any of the Companys directors or officers, in their capacities as such, to comply in all material respects with
any provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith (the Sarbanes-Oxley Act), including Section 402 related to loans and Sections 302 and 906 related to
certifications.
(ii) No Unlawful Contributions or Other Payments. Neither the Company nor any of its subsidiaries
nor, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the
FCPA that would be material to this transaction, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the
payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any foreign official (as such term is defined in the FCPA) or any foreign political party or official thereof or any
candidate for foreign political office, and the Company, its subsidiaries and, to the knowledge of the Company, its affiliates have conducted their businesses in a manner reasonably expected to ensure compliance with the FCPA and have instituted and
maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith. FCPA means the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations
thereunder.
(jj) No Conflict with Money Laundering Laws. The operations of the Company and its subsidiaries are and
have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (USA Patriot Act), and the applicable anti-money laundering statutes of
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jurisdictions where the Company and its subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or
enforced by any governmental agency (collectively, the Anti-Money Laundering Laws), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any
of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.
(kk) No Conflict with OFAC Laws. Neither the Company nor any of its subsidiaries, directors, officers nor, to the
Companys knowledge, any agent, employee or affiliate of the Company or any of its subsidiaries is currently the subject of any sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department
(OFAC); and the Company will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds, to any subsidiary, joint venture partner or other person or entity, for the
purpose of financing the activities of or with any person or entity or in any country or territory that, at the time of such financing, is the subject of OFAC.
Any certificate signed by any officer of the Company and delivered to the Underwriter or counsel for the Underwriter in connection with the
offering of the Securities shall be deemed a representation and warranty by the Company to the Underwriter as to matters covered thereby.
2. Purchase and Sale. Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to the Underwriter, and the Underwriter agrees, to purchase from the Company, at a purchase price of 99.000% of the principal amount thereof, plus accrued interest, if any, from April 6, 2015 to the Closing Date,
$575,000,000 principal amount of Securities.
3. Delivery and Payment
(a) Delivery and Payment. Delivery of and payment for the Securities shall be made at or about 10:00 a.m., New York City
time, on April 6, 2015, which date and time may be postponed by agreement among the Underwriter and the Company (such date and time of delivery and payment for the Securities being herein called the Closing Date). Delivery of
the Securities shall be made to the Underwriter for its account against payment by the Underwriter of the purchase price thereof to or upon the order of the Company by wire transfer payable in same-day funds to the account specified by the Company.
Delivery of the Securities shall be made through the facilities of The Depository Trust Company (DTC) unless the Underwriter shall otherwise instruct.
(b) Public Offering of the Securities. The Underwriter hereby advises the Company that it intends to offer for sale to
the public, as described in the Disclosure Package and the Prospectus, the Securities as soon after this Agreement has been executed as the Underwriter, in its sole judgment, has determined is advisable and practicable.
(c) Delivery of Prospectus to the Underwriter. Not later than 10:00 a.m., New York City time, on the second business day
following the date the Securities are first released by the Underwriter for sale to the public, the Company shall deliver or cause to be delivered, copies of the Prospectus in such quantities and at such places as the Underwriter shall reasonably
request.
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4. Covenants. The Company covenants and agrees with the Underwriter as follows:
(a) Underwriter Review of Proposed Amendments and Supplements. During the period beginning at the Applicable Time and
ending on the later of the Closing Date or such date, as in the opinion of counsel for the Underwriter, the Prospectus is no longer required by law to be delivered in connection with sales by the Underwriter or a dealer, including in circumstances
where such requirement may be satisfied pursuant to Rule 172 (the Prospectus Delivery Period), prior to amending or supplementing the Registration Statement, the Disclosure Package or the Prospectus, the Company shall furnish to
the Underwriter for review a copy of each such proposed amendment or supplement, and the Company shall not file or use any such proposed amendment or supplement to which the Underwriter reasonably objects.
(b) Securities Act Compliance. After the date of this Agreement and during the Prospectus Delivery Period, the Company
shall promptly advise the Underwriter in writing (i) when the Registration Statement, if not effective at the Applicable Time, shall have become effective, (ii) of the receipt of any comments of, or requests for additional or supplemental
information from, the Commission, (iii) of the time and date of any filing of any post-effective amendment to the Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus, (iv) of the time and
date that any post-effective amendment to the Registration Statement becomes effective, and (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order or notice preventing
or suspending the use of the Registration Statement, any Preliminary Prospectus or the Prospectus, or of any receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any
jurisdiction or of the threatening or initiation of any proceedings for any of such purposes (including any notice or order pursuant to Section 8A or Rule 401(g)(2) of the Securities Act). The Company shall use commercially reasonable efforts
to prevent the issuance of any such stop order or notice of prevention or suspension of such use. If the Commission shall enter any such stop order or issue any such notice at any time, the Company will use commercially reasonable efforts to obtain
the lifting or reversal of such order or notice at the earliest possible moment, or, subject to Section 4(a), will file an amendment to the Registration Statement or will file a new registration statement and use its best efforts to have such
amendment or new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b) and 430B, as applicable, under the Securities Act, including with respect to
the timely filing of documents thereunder, and will use commercially reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) were received in a timely manner by the Commission.
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(c) Amendments and Supplements to the Registration Statement, Disclosure
Package and Prospectus and Other Securities Act Matters. If, during the Prospectus Delivery Period, any event or development shall occur or condition exist as a result of which the Disclosure Package or the Prospectus as then amended or
supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein in the light of the circumstances under which they were made or then prevailing, as the case may
be, not misleading, or if it shall be necessary to amend or supplement the Disclosure Package or the Prospectus, or to file under the Exchange Act any document incorporated by reference in the Disclosure Package or the Prospectus, in order to make
the statements therein, in the light of the circumstances under which they were made or then prevailing, as the case may be, not misleading, or if in the opinion of the Underwriter it is otherwise necessary to amend or supplement the Registration
Statement, the Disclosure Package or the Prospectus, or to file under the Exchange Act any document incorporated by reference in the Disclosure Package or the Prospectus, or to file a new registration statement containing the Prospectus, in order to
comply with law, including in connection with the delivery of the Prospectus, the Company agrees to (i) notify the Underwriter of any such event or condition and (ii) promptly prepare (subject to Section 4(a) hereof), file with the
Commission (and use its best efforts to have any amendment to the Registration Statement or any new registration statement to be declared effective) and furnish at its own expense to the Underwriter and to dealers, amendments or supplements to the
Registration Statement, the Disclosure Package or the Prospectus, or any new registration statement, necessary in order to make the statements in the Registration Statement not misleading or the statements in the Disclosure Package or the Prospectus
as so amended or supplemented, in the light of the circumstances under which they were made or then prevailing, as the case may be, not misleading or so that the Registration Statement, the Disclosure Package or the Prospectus, as amended or
supplemented, will comply with law.
(d) Blue Sky Compliance. The Company shall cooperate with the Underwriter and
its counsel to qualify or register the Securities for sale by the Underwriter under (or obtain exemptions from the application of) the state securities or blue sky laws or Canadian provincial securities laws or other foreign laws of those
jurisdictions designated by the Underwriter and consented to by the Company, and the Company shall comply in all material respects with such laws and shall continue such qualifications, registrations and exemptions in effect so long as required for
the distribution of the Securities by the Underwriter. The Company shall not be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to
so qualify, (ii) file any general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject. The Company will advise the Underwriter promptly of
the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the
issuance of any order suspending such qualification, registration or exemption, the Company shall use their best efforts to obtain the withdrawal thereof at the earliest possible moment.
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(e) DTC. The Company will cooperate with the Underwriter and use its best
efforts to permit the Securities to be eligible for clearance and settlement through DTC.
(f) No Manipulation of
Price. The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, under the Exchange Act or otherwise, the stabilization or manipulation of
the price of any securities of the Company to facilitate the sale or resale of the Securities.
(g) Exchange Act
Compliance. During the Prospectus Delivery Period, the Company will file all documents required to be filed with the Commission and the New York Stock Exchange pursuant to Section 13, 14 or 15 of the Exchange Act in the manner and within
the time periods required by the Exchange Act.
(h) Final Term Sheet. The Company will prepare a final term sheet in
a form approved by the Underwriter, and will file such term sheet pursuant to Rule 433(d) under the Securities Act within the time required by such rule (such term sheet, the Final Term Sheet).
(i) Permitted Free Writing Prospectuses. The Company represents that it has not made, and agrees that, unless it obtains
the prior written consent of the Underwriter, it will not make, any offer relating to the Securities that constitutes or would constitute an Issuer Free Writing Prospectus or that otherwise constitutes or would constitute a free writing
prospectus (as defined in Rule 405 of the Securities Act) or a portion thereof required to be filed by the Company with the Commission or retained by the Company under Rule 433 of the Securities Act; provided that the prior written
consent of the Underwriter shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule A hereto and any electronic road show. Any such free writing prospectus consented to by the Underwriter is hereinafter
referred to as a Permitted Free Writing Prospectus. The Company agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) has
complied and will comply, as the case may be, with the requirements of Rules 164 and 433 of the Securities Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record
keeping. The Company consents to the use by the Underwriter of a free writing prospectus that (a) is not an issuer free writing prospectus as defined in Rule 433, or (b) contains only (1) information describing the
preliminary terms of the Securities or the offering, (2) information that describes the final terms of the Securities or the offering and that is included in the Final Term Sheet of the Company contemplated in Section 1(d) hereof or
(3) information permitted under Rule 134 under the Securities Act; provided that the Underwriter covenants with the Company not to take any action without the Companys consent, which consent shall be confirmed in writing, that
would result in the Company being required to file with the Commission under Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company
thereunder, but for the action of the Underwriter.
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(j) Copies of Any Amendments and Supplements to the Prospectus. The
Company agrees to furnish to the Underwriter, without charge, during the Prospectus Delivery Period, as many copies of the Prospectus and any amendments and supplements thereto (including any documents incorporated or deemed incorporated by
reference therein) and the Disclosure Package as the Underwriter may request.
(k) Copies of the Registration Statements
and the Prospectus. The Company will furnish to the Underwriter and its counsel signed copies of the Registration Statement and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents
incorporated or deemed to be incorporated by reference therein) and, during the Prospectus Delivery Period, as many copies of each Preliminary Prospectus, the Prospectus and any supplement thereto and the Disclosure Package as the Underwriter may
reasonably request.
(l) Earnings Statement. As soon as practicable, the Company will make generally available to
its security holders and to the Underwriter an earnings statement (which need not be audited) covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the effective date (as
defined in Rule 158 under the Securities Act) of the Registration Statement.
(m) Periodic Reporting Obligations.
During the Prospectus Delivery Period the Company shall file, on a timely basis, with the Commission and the New York Stock Exchange all reports and documents required to be filed under the Exchange Act.
(n) Filing Fees. The Company agrees to pay the required Commission filing fees relating to the Securities within the
time required by Rule 456(b)(1) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act.
(o) Compliance with Sarbanes-Oxley Act. During the Prospectus Delivery Period, the Company will comply with all
applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes-Oxley Act, and use its best efforts to cause the Companys directors and officers, in their capacities as such, to comply with such laws,
rules and regulations, including, without limitation, the provisions of the Sarbanes-Oxley Act.
(p) Future Reports to
the Underwriter. During the period of two years hereafter the Company will furnish to the Underwriter (i) to the extent not available on the Commissions Next-Generation EDGAR filing system, as soon as practicable after the end of each
fiscal year, copies of the Annual Report of the Company containing the balance sheet of the Company as of the close of such fiscal year and statements of income, stockholders equity and cash flows for the year then ended and the opinion
thereon of the Companys independent public or certified public accountants; and (ii) to the extent not available on the Commissions Next-Generation EDGAR filing system, as soon as practicable after the filing thereof, copies of each
proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other report filed by the Company with the Commission, the Financial Industry Regulatory Authority (FINRA) or any securities
exchange.
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(q) Investment Limitation. The Company shall not invest, or otherwise use
the proceeds received by the Company from its sale of the Securities in such a manner as would require the Company or any of its subsidiaries to register as an investment company under the Investment Company Act.
(r) Notice of Inability to Use Automatic Shelf Registration Statement Form. If at any time during the Prospectus
Delivery Period, the Company receives from the Commission a notice pursuant to Rule 401(g)(2) or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company will (i) promptly notify the Underwriter,
(ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Securities, in a form satisfactory to the Underwriter, (iii) use its best efforts to cause such registration statement or
post-effective amendment to be declared effective and (iv) promptly notify the Underwriter of such effectiveness. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Securities to
continue as contemplated in the registration statement that was the subject of the Rule 401(g)(2) notice or for which the Company has otherwise become ineligible. References herein to the Registration Statement shall include such new registration
statement or post-effective amendment, as the case may be.
(s) Use of Proceeds. The Company will use the net
proceeds received by it from the sale of the Securities in the manner specified in each of the Disclosure Package and the Prospectus under Use of Proceeds.
5. Payment of Expenses. The Company agrees to pay all costs, fees and expenses incurred in connection with the performance of
its obligations hereunder and in connection with the transactions contemplated hereby, including without limitation (i) all expenses incident to the issuance and delivery of the Securities (including all printing and engraving costs),
(ii) all necessary issue, transfer and other stamp taxes in connection with the original issuance and sale of the Securities to the Underwriter, (iii) all fees and expenses of the Companys counsel, independent public or certified
public accountants and other advisors, (iv) all costs and expenses incurred in connection with the preparation, printing, filing, shipping and distribution of the Registration Statement (including financial statements, exhibits, schedules,
consents and certificates of experts), each Issuer Free Writing Prospectus, each Preliminary Prospectus and the Prospectus, and all amendments and supplements thereto, and the mailing and delivering of copies thereof to the Underwriter and dealers,
this Agreement, the Indenture and the Securities, (v) all filing fees, attorneys fees and expenses incurred by the Company or the Underwriter in connection with qualifying or registering (or obtaining exemptions from the qualification or
registration of) all or any part of the Securities for offer and sale under the securities laws of the several states of the United States, the provinces of Canada or other jurisdictions designated by the Underwriter (including, without limitation,
the cost of preparing, printing and mailing preliminary and final blue sky or legal investment memoranda), (vi) the fees and expenses of the Trustee, including the fees and disbursements of counsel for the Trustee in connection with the
Indenture and the Securities, (vii) any fees payable in connection with the rating of the Securities with the ratings agencies, (viii) the filing fees, if any, for FINRAs review of the offering of the
16
Securities, and the reasonable fees and disbursements of counsel to the Underwriter in connection with compliance with FINRAs rules and regulations, (ix) all fees and expenses
(including reasonable fees and expenses of counsel) of the Company in connection with approval of the Securities by DTC for book-entry transfer, and the performance by the Company of its other obligations under this Agreement and
(x) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Securities, (xi) all other fees, costs and expenses referred to in Item 14
of Part II of the Registration Statement, and (xii) all other costs and expenses incident to the performance by the Company of its obligations hereunder which are not otherwise specifically provided for in this Section 5. It is understood,
however, that, except as provided in this Section 5, Section 7, Section 8 and Section 9 hereof, the Underwriter will pay all of its own costs and expenses, including the fees and expenses of its counsel.
Notwithstanding anything to the contrary contained within this Section 5, the Underwriter agrees to reimburse the Company for certain
bona fide and documented out-of-pocket expenses incurred by the Company in connection with the issuance and sale of the Securities in an amount up to $687,500.
6. Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company contained herein at the Applicable Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof,
to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) No
Ratings Downgrade. Subsequent to the Applicable Time, there shall not have been any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded any of the Companys securities by any nationally recognized statistical rating organization, as such term is defined for purposes of Section 3(a)(62) of the Exchange
Act.
(b) No Material Adverse Change; Officers Certificate. (i) Since the date of the latest balance
sheet included in the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been any material adverse change, or any development involving a prospective material adverse change, in (A) the condition, financial or
otherwise, or in the earnings, affairs or business prospects, whether or not arising in the ordinary course of business, of the Company and its subsidiaries, taken as a whole, from that described in the Disclosure Package (exclusive of any amendment
or supplement thereto), and (B) the capital stock or in the long-term debt of the Company from that set forth in the Disclosure Package (exclusive of any amendment or supplement thereto); (ii) the Company shall have no liability or
obligation, direct or contingent, which is material to the Company and its subsidiaries, taken as a whole, other than those reflected in the Disclosure Package (exclusive of any amendment or supplement thereto); and (iii) the Underwriter shall
have received a certificate dated the Closing Date, signed by the Chairman of the Board, Chief Executive Officer, President or Treasurer of the Company and the Chief Financial Officer or Chief Accounting Officer of the Company,
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confirming (x) the matters set forth in paragraphs (a) and (b) of this Section 6; and (y) the representations and warranties of the Company in this Agreement are true and
correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date.
(c) Accountants Comfort Letter for the Company. On the
date hereof, the Underwriter shall have received from Ernst & Young LLP, independent public accountants for the Company, a letter dated the date hereof addressed to the Underwriter, in form and substance satisfactory to the Underwriter,
covering certain financial information included in or incorporated by reference in the Disclosure Package and other customary information.
(d) Compliance with Registration Requirements; No Stop Order; No Objection from FINRA. For the period from and after the
date of this Agreement and prior to the Closing Date and, with respect to the Securities:
(i) the Company shall have filed
the Prospectus with the Commission (including the information required by Rules 430B and 430C under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act;
(ii) the Final Term Sheet, and any other material required to be filed by the Company pursuant to Rule 433(d) under the
Securities Act shall have been filed with the Commission within the applicable time periods prescribed for such filings under such Rule 433;
(iii) no stop order suspending the effectiveness of the Registration Statement, or any post-effective amendment to the
Registration Statement, shall be in effect and no proceedings for such purpose or pursuant to Section 8A of the Securities Act shall have been instituted or threatened by the Commission; and the Company shall not have received from the
Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the automatic shelf registration statement form; and
(iv) to the extent any filing with FINRA is required, FINRA shall have advised the Underwriter in writing that it has no
objection to the underwriting and other terms and arrangements related to the offering of the Securities.
(e) Opinion
of General Counsel or Assistant General Counsel for the Company. The Underwriter shall have received on the Closing Date an opinion (reasonably satisfactory to the Underwriter and its counsel), dated the Closing Date, of Zafar Hasan, Assistant
General Counsel for the Company or Brian Miller, General Counsel for the Company, with respect to the matters listed in Exhibit A-1 hereto.
(f) Opinion of Counsel for the Company. The Underwriter shall have received on the Closing Date an opinion and letter
(reasonably satisfactory to the
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Underwriter and its counsel), dated the Closing Date, of Davis Polk & Wardwell LLP, counsel for the Company, and addressed to the Underwriter, with respect to the matters listed in
Exhibit A-2 hereto.
(g) Opinion of Counsel for the Underwriter. The Underwriter shall have received from
Kirkland & Ellis LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the
Prospectus (as amended or supplemented), the Disclosure Package and other related matters as the Underwriter may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(h) Bring-down Comfort Letter for the Company. On the Closing Date, the
Underwriter shall have received from Ernst & Young LLP, independent public accountants for the Company, a letter dated such date, in form and substance satisfactory to the Underwriter, to the effect that they reaffirm the statements made in
the letter furnished by them pursuant to subsection (c) of this Section 6, except that (i) it shall cover certain financial information included in or incorporated by reference into the Prospectus and any amendment or supplement
thereto and (ii) the specified date referred to therein for the carrying out of procedures shall be no more than three business days prior to the Closing Date, as the case may be.
(i) The Form of Securities. The Securities shall be executed by the Company in form and substance reasonably
satisfactory to the Underwriter. The Securities shall be eligible for clearance and settlement through DTC.
(j)
Consents and Approvals. On or prior to the Closing Date, the Company shall have obtained all consents, approvals, authorizations and orders of, and shall have duly made all registrations, qualifications and filings with, any court or
regulatory authority or other governmental agency or instrumentality required in connection with the execution, delivery and performance of this Agreement.
(k) Indenture. The Company shall have executed and delivered the Indenture, in form and substance reasonably
satisfactory to the Underwriter, and the Underwriter shall have received executed copies thereof.
(l) Closing
Documents. Prior to the Closing Date, the Company shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
If any condition specified in this Section 6 is not satisfied when and as required to be satisfied, this Agreement may be terminated by
the Underwriter by notice to the Company at any time on or prior to the Closing Date, which termination shall be without liability on the part of any party to any other party, except that Section 5, Section 7, Section 8,
Section 13 and Section 16 shall at all times be effective and shall survive such termination.
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The documents required to be delivered by this Section 6 will be delivered at the office of
counsel for the Underwriter, at 601 Lexington Avenue, New York, NY 10022 on the Closing Date.
7. Reimbursement of Underwriters
Expenses. If the sale of the Securities provided for herein is not consummated because of any failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, the Company will
reimburse the Underwriter on demand for all out-of-pocket expenses (including reasonable fees and disbursements of counsel) that shall have been incurred by them in connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution.
(a) Indemnification of the Underwriter. The Company agrees to indemnify and hold harmless the Underwriter, its directors,
officers, employees, agents and affiliates, and each person, if any, who controls the Underwriter within the meaning of the Securities Act and the Exchange Act against any loss, claim, damage, liability or expense, as incurred, to which the
Underwriter or such controlling person may become subject, insofar as such loss, claim, damage, liability or expense (or actions in respect thereof as contemplated below) arises out of or is based (i) upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430B or 430C under the Securities Act, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) upon any untrue statement or alleged untrue statement of a material fact contained in any Issuer Free Writing
Prospectus, any Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact, in each case, necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and to reimburse the Underwriter, its officers, directors, employees, agents and each such controlling person for any and all expenses (including, subject to Section 8(c), the fees and
disbursements of counsel chosen by the Underwriter as such expenses are reasonably incurred by the Underwriter, or its officers, directors, employees, agents and affiliates or such controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity agreement shall not apply to any loss, claim, damage, liability or expense to the extent, but
only to the extent, arising out of or based upon any untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with written information furnished to the Company by the Underwriter expressly
for use in the Registration Statement, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto). The indemnity agreement set forth in this Section 8(a) shall be in addition to any
liabilities that the Company may otherwise have.
(b) Indemnification of the Company, Directors and Officers. The
Underwriter agrees to indemnify and hold harmless the Company, each of its directors and officers
20
who sign the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act or the Exchange Act, to the same extent as the foregoing indemnity
from the Company to the Underwriter, but only with reference to written information relating to the Underwriter furnished to the Company by the Underwriter specifically for inclusion in the Registration Statement, any Issuer Free Writing Prospectus,
any Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto). The Company hereby acknowledges that the only information that the Underwriter has furnished to the Company expressly for use in the Registration Statement, any
Issuer Free Writing Prospectus, any Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto) are the statements set forth in the seventh paragraph concerning stabilization under the caption Underwriting in the
Preliminary Prospectus and the Prospectus. The indemnity agreement set forth in this Section 8(b) shall be in addition to any liabilities that the Underwriter may otherwise have.
(c) Notifications and Other Indemnification Procedures. Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against an indemnifying party under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure to so notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. In case any such action is brought against any indemnified party and such indemnified party seeks or intends to seek indemnity from an indemnifying party, the indemnifying party will be entitled to
participate in, and, to the extent that it shall elect, jointly with all other indemnifying parties similarly notified, by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party,
to assume the defense thereof with counsel satisfactory to such indemnified party; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that a conflict may arise between the positions of the indemnifying party and the indemnified party in conducting the defense of any such action or that there may be legal defenses available to it and/or the other
indemnified parties that are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assume such legal defenses and to otherwise participate in
the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of such indemnifying partys election so to assume the defense of such action and approval
by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under this Section 8 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof
unless (i) the indemnified party shall have employed separate counsel in accordance with the proviso to the preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one
separate counsel (other than local counsel), reasonably
21
approved by the indemnifying party (or by the Underwriter in the case of Section 8(a)), representing all indemnified parties who are parties to such action) or (ii) the indemnifying
party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action, in each of which cases the fees and expenses of counsel shall be at
the expense of the indemnifying party.
(d) Settlements. The indemnifying party under this Section 8 shall not
be liable for any settlement of any proceeding effected without its written consent, which shall not be withheld unreasonably, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party against any loss, claim, damage, liability or expense by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated by Section 8(c) hereof, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if
(i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior
to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement, compromise or consent to the entry of judgment in any pending or threatened action, suit or proceeding in
respect of which any indemnified party is or could have been a party and indemnity was or could have been sought hereunder by such indemnified party (whether or not the indemnified parties are actual or potential parties to such claim or action),
unless such settlement, compromise or consent (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such action, suit or proceeding and (ii) does not include a statement
as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(e)
Contribution. If the indemnification provided for in this Section 8 is for any reason unavailable to or otherwise insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then each indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified party, as incurred, as a result of any losses, claims, damages, liabilities or expenses referred to therein (i) in
such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and the Underwriter, on the other hand, from the offering of the Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, on the one hand,
and the Underwriter, on the other hand, in connection with the statements or omissions or inaccuracies in the representations and warranties herein which resulted in such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits received by the Company, on the one hand, and the Underwriter, on the other hand, in connection with the offering of the Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from
22
the offering of the Securities pursuant to this Agreement (before deducting expenses) received by the Company, and the total underwriting discount received by the Underwriter, in each case as set
forth on the front cover page of the Prospectus bear to the aggregate initial public offering price of the Securities as set forth on such cover. The relative fault of the Company, on the one hand, and the Underwriter, on the other hand, shall be
determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact or any such inaccurate or alleged inaccurate representation or warranty
relates to information supplied by the Company, on the one hand, or the Underwriter, on the other hand, and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above
shall be deemed to include, subject to the limitations set forth in Section 8(c), any legal or other fees or disbursements reasonably incurred by such party in connection with investigating or defending any action or claim.
The Company and the Underwriter agree that it would not be just and equitable if contribution pursuant to this
Section 8(e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in this Section 8(e).
Notwithstanding the provisions of this Section 8(e), the Underwriter shall not be required to contribute any amount in
excess of the underwriting commissions received by the Underwriter in connection with the Securities underwritten by it and distributed to the public. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 8(e), each affiliate, director, officer, employee and agent of the Underwriter and each
person, if any, who controls the Underwriter within the meaning of the Securities Act and the Exchange Act shall have the same rights to contribution as the Underwriter, and each director of the Company, each officer of the Company who signed the
Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act and the Exchange Act shall have the same rights to contribution as the Company.
9. Termination of this Agreement. This Agreement shall be subject to termination in the absolute discretion of the Underwriter, by
notice given to the Company prior to delivery of and payment for the Securities, if at any time prior to such time (i) trading in the Companys Common Stock shall have been suspended by the Commission or the New York Stock Exchange or
trading in securities generally on the New York Stock Exchange shall have been suspended or limited or minimum prices shall have been established on such Exchange; (ii) a banking moratorium shall have been declared either by Federal or New York
State authorities; or (iii) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States of a national emergency or war or other calamity or crisis the effect of which on financial markets is such as to
make it, in the reasonable judgment of the Underwriter, impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities as contemplated by the
23
Prospectus and the Disclosure Package (exclusive of any amendment or supplement thereto). Any termination pursuant to this Section 9 shall be without liability on the part of (a) the
Company to the Underwriter, except that the Company shall be obligated to reimburse the expenses of the Underwriter pursuant to Sections 5, 7 and 8 hereof or (b) the Underwriter to the Company.
10. Representations and Indemnities to Survive Delivery. The respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Underwriter set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of the Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 8 hereof, and will survive delivery of and payment for the Securities. The provisions of Sections 7 and 8 hereof shall survive the termination or cancellation of this
Agreement.
11. Notices. All communications hereunder shall be in writing and shall be mailed, hand delivered or telecopied and
confirmed to the parties hereto as follows:
If to the Underwriter:
Goldman, Sachs & Co.
200 West Street
New York, New
York 10282
Attention: Registration Department
with a copy to:
Kirkland & Ellis LLP
601 Lexington Avenue
New York,
New York 10022
Attention: Richard B. Aftanas, Esq.
If to the Company:
The AES
Corporation
4300 Wilson Boulevard
Arlington, Virginia 22203
Attention: Legal Department
with a copy to:
Davis
Polk & Wardwell LLP
450 Lexington Avenue
New York, New York 10027
Attention: Richard D. Truesdell, Jr., Esq.
Any
party hereto may change the address for receipt of communications by giving written notice to the others.
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12. Successors. This Agreement will inure to the benefit of and be binding upon the
parties hereto, and to the benefit of (i) the Company, its directors, any person who controls the Company within the meaning of the Securities Act and the Exchange Act and any officer of the Company who signed the Registration Statement,
(ii) the Underwriter, the officers, directors, employees, agents and affiliates of the Underwriter, and each person, if any, who controls the Underwriter within the meaning of the Securities Act and the Exchange Act, and (iii) the
respective successors and assigns of any of the above, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The term successors and assigns shall
not include a purchaser of any of the Securities from the Underwriter merely because of such purchase.
13. Applicable Law. This
Agreement and any claim, controversy or dispute arising under or related to this Agreement will be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed within the State of
New York.
14. Headings. The section headings used herein are for convenience only and shall not affect the construction hereof.
15. Tax Disclosure. Notwithstanding any other provision of this Agreement, immediately upon commencement of discussions with
respect to the transactions contemplated hereby, the Company (and each employee, representative or other agent of the Company) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the
transactions contemplated by this Agreement and all materials of any kind (including opinions or other tax analyses) that are provided to the Company relating to such tax treatment and tax structure. For purposes of the foregoing, the term tax
treatment is the purported or claimed federal income tax treatment of the transactions contemplated hereby, and the term tax structure includes any fact that may be relevant to understanding the purported or claimed federal income
tax treatment of the transactions contemplated hereby.
16. No Advisory or Fiduciary Relationship. The Company acknowledges and
agrees that (a) the purchase and sale of the Securities pursuant to this Agreement, including the determination of the public offering price of the Securities and any related discounts and commissions, is an arms-length commercial
transaction between the Company, on the one hand, and the Underwriter, on the other hand, (b) in connection with the offering contemplated hereby and the process leading to such transaction each Underwriter is and has been acting solely as a
principal and is not the agent or fiduciary of the Company, or its stockholders, creditors, employees or any other party, (c) the Underwriter has not assumed and will not assume an advisory or fiduciary responsibility in favor of the Company
with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether the Underwriter has advised or is currently advising the Company on other matters) and the Underwriter has no obligation to the Company with
respect to the offering contemplated hereby except the obligations expressly set forth in this Agreement, (d) the Underwriter and its affiliates may be engaged in a broad range of transactions that involve interests that differ from those of
the Company, and (e) the Underwriter has not provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby and the Company has consulted its own legal, accounting, regulatory and tax advisors to the
extent it deemed appropriate.
25
17. Partial Unenforceability. The invalidity or unenforceability of any Section,
paragraph or provision of this Agreement shall not affect the validity or enforceability of any other Section, paragraph or provision hereof. If any Section, paragraph or provision of this Agreement is for any reason determined to be invalid or
unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as are necessary to make it valid and enforceable.
18. General Provisions. This Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all
prior written or oral and all contemporaneous oral agreements, understandings and negotiations with respect to the subject matter hereof. This Agreement may be executed in two or more counterparts, each one of which shall be an original, with the
same effect as if the signatures thereto and hereto were upon the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by telecopier, facsimile, email or other electronic transmission (i.e., pdf or
tif) shall be effective as delivery of a manually executed counterpart of this Agreement. This Agreement may not be amended or modified unless in writing by all of the parties hereto, and no condition herein (express or implied) may be
waived unless waived in writing by each party whom the condition is meant to benefit. The Section headings herein are for the convenience of the parties only and shall not affect the construction or interpretation of this Agreement.
Each of the parties hereto acknowledges that it is a sophisticated business person who was adequately represented by counsel during
negotiations regarding the provisions hereof, including, without limitation, the indemnification and contribution provisions of Section 8, and is fully informed regarding said provisions. Each of the parties hereto further acknowledges that the
provisions of Sections 8 hereto fairly allocate the risks in light of the ability of the parties to investigate the Company, its affairs and its business in order to assure that adequate disclosure has been made in the Registration Statement, the
Disclosure Package and the Prospectus (and any amendments and supplements thereto), as required by the Securities Act and the Exchange Act.
In accordance with the requirements of the USA Patriot Act, the Underwriter is required to obtain, verify and record information that
identifies its clients, including the Company, which information may include the name and address of its clients, as well as other information that will allow the Underwriter to properly identify its clients.
26
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this Agreement and your acceptance shall represent a binding agreement between the Company and the Underwriter.
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Very truly yours, |
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THE AES CORPORATION |
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By: |
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/s/ Daniel Stadelmann |
Name: |
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Daniel Stadelmann |
Title: |
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Vice President and Treasurer |
The foregoing Agreement is hereby confirmed and accepted by the Underwriter as of the date first
above written.
GOLDMAN, SACHS & CO.
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By: |
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/s/ Michael Hickey |
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Name: |
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Michael Hickey |
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Title: |
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Managing Director |
THE AES CORPORATION - UNDERWRITING AGREEMENT
UNDERWRITER SIGNATURE PAGE
SCHEDULE A
Issuer Free Writing Prospectuses
|
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Final Term Sheet dated as of March 31, 2015 |
Exhibit A-1
Form of Opinion of In-House Counsel for the Company
(i) |
the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority required to carry on its
business as it is currently being conducted and to own, lease or operate its properties; |
(ii) |
the Company is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified would not have a material adverse effect on the business, financial condition or results of operations of the Company and its subsidiaries, taken as a whole; |
(iii) |
the execution, delivery and performance of the Underwriting Agreement, the Indenture and the Notes by the Company, compliance by the Company with all the provisions thereof and the consummation of any other transactions
as contemplated thereby (a) will not require any consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body (except such as may be required under the Act, the Securities
Exchange Act of 1934, as amended (the Exchange Act), or other securities or Blue Sky laws), and (b) will not conflict with or constitute a breach of any of the terms or provisions of, or a default under, the charter or
by-laws of the Company or any agreement, indenture or other instrument known to me, to which the Company or any of the Applicable Principal Subsidiaries is a party or by which the Company or any of its Applicable Principal Subsidiaries are bound or
by which the respective properties of the Company or any of its Applicable Principal Subsidiaries are bound that is material to the business, financial condition or results of operations of the Company and its subsidiaries, taken as a whole, or
violate or conflict with any laws, administrative regulations or rulings or court decrees known to me applicable to the Company or any of the Applicable Principal Subsidiaries or their respective properties, in each case described in this clause
(b) (other than with respect to the charter and by-laws of the Company), except for any such conflicts, breaches, defaults or violations which, individually or in the aggregate, would not have a material adverse effect on the business,
financial condition or results of operations of the Company and its subsidiaries, taken as a whole; and |
(iv) |
to my knowledge, there is not any material legal or governmental proceeding pending or threatened to which the Company or any of the Applicable Principal Subsidiaries is a party or to which any of their respective
property is subject which is not adequately described in the Prospectus and the Disclosure Package. |
As used herein, the term
Applicable Principal Subsidiaries shall mean DPL Inc. and Indianapolis Power & Light Company.
I have participated in conferences
with directors, officers and other representatives of the Company, and representatives of the independent public accountants for the Company, at which
Exhibit A-1-1
conferences the contents of the Prospectus and the Disclosure Package, including the documents incorporated by reference therein, and related matters were discussed, and, although I have not
independently verified and am not passing upon and assume no responsibility for the accuracy, completeness or fairness of the statements contained in the documents incorporated by reference into the Prospectus and the Disclosure Package, no facts
have come to my attention which caused me to believe that any of the documents filed pursuant to the Exchange Act and incorporated by reference into the Prospectus and the Disclosure Package (except for financial statements and financial or
statistical information included or incorporated by reference therein, as to which I do not express a belief) did not comply when so filed as to form in all material respects with the Exchange Act, and (i) no facts have come to my attention
which caused me to believe that, on the date of the Underwriting Agreement, the Registration Statement contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) no facts have come to my attention which caused me to believe that the Prospectus, including the documents incorporated by reference therein, or any amendment or supplement thereto (other than any
financial statements or other financial or statistical information included or incorporated by reference therein, as to which I do not express a belief), as of its date and the date hereof, contained or contains any untrue statement of a material
fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements contained therein, in the light of the circumstances under which they were made, not misleading and (iii) no facts have come
to my attention which caused me to believe that as of the Applicable Time, the Disclosure Package (other than any financial statements or other financial or statistical information included or incorporated by reference therein, as to which I do not
express a belief) contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading.
Exhibit A-1-2
Exhibit A-2
Form of Opinion of Outside Counsel for the Company
Legal Opinions
1. The Company has the corporate power
and authority to issue the Securities, to enter into the Underwriting Agreement and the Nineteenth Supplemental Indenture and to perform its obligations thereunder.
2. The Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors rights generally, concepts of reasonableness and equitable principles of general applicability, provided that we express no opinion as
to (y) the enforceability of any waiver of rights under any usury or stay law or (z) the validity, legally binding effect or enforceability of any provision that permits holders to collect any portion of stated principal amount upon
acceleration of the Securities to the extent determined to constitute unearned interest.,
3. The
Securities have been duly authorized by the Company and when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriter pursuant to the Underwriting Agreement, will be valid and
binding obligations of the Company, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors rights generally, concepts of reasonableness and equitable principles of general
applicability, and will be entitled to the benefits of the Indenture pursuant to which such Securities are to be issued, provided that we express no opinion as to the (y) enforceability of any waiver of rights under any usury or stay law or
(z) validity, legally binding effect or enforceability of any provision that permits holders to collect any portion of stated principal amount upon acceleration of the Securities to the extent determined to constitute unearned interest.
4. The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
5. The Company is not, and after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the
Prospectus will not be, required to register as an investment company as such term is defined in the Investment Company Act of 1940, as amended.
6. No consent, approval, authorization, or order of, or qualification with, any governmental body or agency under the laws of the State of New York or any
federal law of the United States of America that in our experience is normally applicable to general business corporations in relation to transactions of the type contemplated by the Indenture, the Securities and the Underwriting Agreement
(collectively, the Documents), or the General Corporation Law of the State of Delaware is required for the execution, delivery and performance by the Company of its obligations under the Documents, except such as may be required under
federal or state securities or Blue Sky laws as to which we express no opinion.
Exhibit A-2-1
We have considered the statements included in the Disclosure Package under the captions Description of the
Notes and Description of Securities, as supplemented by the information set forth in the Final Term Sheet, and in the Prospectus under the captions Description of the Notes and Description of Securities
insofar as they summarize provisions of the Indenture and the Securities. In our opinion, such statements fairly summarize these provisions in all material respects. The statements included in the Disclosure Package and the Prospectus under the
caption U.S. Federal Income Tax Consequences, insofar as they purport to describe provisions of U.S. federal income tax laws or legal conclusions with respect thereto, and subject to the limitations, qualifications and assumptions set
forth therein, in our opinion fairly and accurately summarize the matters referred to therein in all material respects.
Negative Assurance Letter
On the basis of the information gained in the course of the performance of the services rendered above, but without independent check
or verification except as stated above:
(i) the Registration Statement and the Prospectus appear on their face to be appropriately responsive in all
material respects to the requirements of the Act and the applicable rules and regulations of the Commission thereunder; and
(ii) nothing has come to our
attention that causes us to believe that, insofar as relevant to the offering of the Securities:
(a) on the date of the Underwriting Agreement, the
Registration Statement contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading,
(b) at [] [A.M./P.M.] New York City time on March 31, 2015, the Disclosure Package contained any
untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or
(c) the Prospectus as of the date of the Underwriting Agreement or as of the date hereof contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Exhibit A-2-2
Exhibit B
Principal Subsidiaries of the Company (and Jurisdiction of Incorporation or Formation)
AES Chivor & Cia S.C.A. E.S.P. (Colombia)
AES Argentina Generacion S.A. (Argentina)
AES-3C Maritza East 1 Ltd. (Bulgaria)
AES Andres BV (Netherlands)
Indianapolis Power & Light Company (Indiana)
AES Sul Distribuidora Gaucha de Energia S.A. (Brazil)
Exhibit B-1
Exhibit 4.1
THE AES CORPORATION
as Issuer
AND
WELLS FARGO BANK, N.A.
as
Trustee
NINETEENTH SUPPLEMENTAL INDENTURE
Dated as of April 6, 2015
TO
SENIOR INDENTURE
Dated as of December 8, 1998
5.500% Senior
Notes due 2025
The NINETEENTH SUPPLEMENTAL INDENTURE, is dated as of this 6th day of April, 2015 (the
Nineteenth Supplemental Indenture), between THE AES CORPORATION, a corporation duly organized and existing under the laws of the State of Delaware (hereinafter sometimes referred to as the Company), and WELLS FARGO BANK,
N.A., a national banking association, as trustee (hereinafter referred to as the Trustee), as successor trustee to BANK ONE, NATIONAL ASSOCIATION.
WHEREAS, the Company entered into a Senior Indenture dated as of December 8, 1998 (the Senior Indenture) between the
Company and the Trustee to provide for the future issuance of its senior debentures, notes or other evidences of indebtedness (collectively, the Securities), said Securities to be issued from time to time in series as might be
determined by the Company pursuant to the Senior Indenture and, in an unlimited aggregate principal amount;
WHEREAS, the Company and the
Trustee have entered into a First Supplemental Indenture, a Second Supplemental Indenture, a Third Supplemental Indenture, a Fourth Supplemental Indenture, a Fifth Supplemental Indenture, a Sixth Supplemental Indenture, a Seventh Supplemental
Indenture, an Eighth Supplemental Indenture, a Ninth Supplemental Indenture, a Tenth Supplemental Indenture, an Eleventh Supplemental Indenture, a Twelfth Supplemental Indenture, a Thirteenth Supplemental Indenture, a Fourteenth Supplemental
Indenture, a Fifteenth Supplemental Indenture, a Sixteenth Supplemental Indenture, a Seventeenth Supplemental Indenture and an Eighteenth Supplemental Indenture providing for the creation and issuance of various series of Securities and/or
amendments to the Senior Indenture (the Senior Indenture, as so amended and supplemented by the forgoing supplemental indentures and this Nineteenth Supplemental Indenture is hereinafter referred to as, the Indenture);
WHEREAS, pursuant to the terms of the Indenture, the Company desires to provide for the establishment of a new series of its Securities to be
known as its 5.500% Senior Notes due 2025, the form and substance of such Notes and the terms, provisions and conditions thereof to be set forth as provided in the Senior Indenture and this Nineteenth Supplemental Indenture; and
WHEREAS, the Company desires and has requested the Trustee to join with it in the execution and delivery of this Nineteenth Supplemental
Indenture, and all requirements necessary to make this Nineteenth Supplemental Indenture a valid instrument, in accordance with its terms, and to make the 5.500% Senior Notes due 2025, when executed by the Company and authenticated and delivered by
the Trustee, the valid obligations of the Company have been satisfied;
NOW, THEREFORE, in consideration of the purchase and acceptance of
the Notes by the Holders thereof, and for the purpose of setting forth, as provided in the Indenture, the form and substance of the 5.500% Senior Notes due 2025 and the terms, provisions and conditions thereof, the Company covenants and agrees with
the Trustee as follows:
2
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 TERMS DEFINED IN THE INDENTURE.
Each capitalized term used but not defined in this Nineteenth Supplemental Indenture shall have the meaning assigned to such term in the
Senior Indenture.
SECTION 1.2 CERTAIN DEFINITIONS.
The following definitions are hereby added to the definitions contained in Section 1.1 of the Senior Indenture, but only with respect to
the 5.500% Senior Notes due 2025 issued in accordance with the provisions hereof:
Additional Notes means any notes
issued under this Nineteenth Supplemental Indenture in addition to the Initial Notes having the same terms in all respects as the Initial Notes, provided that, if Additional Notes are not fungible with the Initial Notes for U.S. federal income tax
purposes, the Additional Notes will have a separate CUSIP number.
Applicable Premium means, with respect to any Note
on any redemption date, the excess, if any, of (i) the present value on such redemption date of (A) the redemption price of such Note on April 15, 2020 (such redemption price being that set forth in the table in
Section 3.1(a)), plus (B) all required remaining scheduled interest payments due on such Note through April 15, 2020 (excluding accrued but unpaid interest, if any, to, but not including, the redemption date) computed using a
discount rate equal to the Treasury Rate as of such redemption date plus 50 basis points, over (ii) the principal amount of such Note.
Attributable Debt means the present value (discounted at the rate of 8.0% per annum compounded monthly) of the
obligations for rental payments required to be paid during the remaining term of any lease of more than 12 months.
Board of
Directors means either the Board of Directors of the Company or (except for the purposes of clause (iii) of the definition of Change of Control) any committee of such Board duly authorized to act under the Indenture.
Capital Stock means, with respect to any Person, any and all shares, interests, participations or other equivalents
(however designated, whether voting or non-voting) of, or interests in (however designated), the equity of such Person which is outstanding or issued on or after the date of the Indenture, including, without limitation, all Common Stock and
Preferred Stock and partnership and joint venture interests of such Person.
Change of Control means the occurrence of
one or more of the following events: (i) any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all, or substantially all, of the assets of the Company (determined on a consolidated basis) to any
Person or group (as that term is used in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) of Persons, (ii) a Person or group (as so defined) of Persons shall have become the beneficial owner of more than 50% of the
outstanding Voting
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Stock of the Company, or (iii) during any one-year period, individuals who at the beginning of such period constituted the Board of Directors (together with any new director whose election
or nomination was approved by a majority of the directors then in office who were either directors at the beginning of such period or who were previously so approved) cease to constitute a majority of the Board of Directors.
Change of Control Offer has the meaning provided in Section 4.1.
Common Stock means, with respect to any Person, any and all shares, interests, participations or other equivalents (however
designated, whether voting or non-voting) of common stock of such Person which is outstanding or issued on or after the date of the Indenture, including, without limitation, all series and classes of such common stock.
Comparable Treasury Issue means the United States Treasury security selected by the Independent Investment Banker as having
a maturity comparable to April 15, 2020 that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity.
Comparable Treasury Price means, with respect to any redemption date: (a) the average of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) on the third Business Day preceding such redemption date, as set forth in the most recently published statistical release designated H.15
(519) (or any successor release) published by the Board of Governors of the Federal Reserve System and which establishes yields on actively traded United States treasury securities adjusted to constant maturity under the caption Treasury
Constant Maturities, or (b) if such release (or any successor release) is not published or does not contain such prices on such Business Day, the average of the Reference Treasury Dealer Quotations for such redemption date.
Consolidated Net Assets means the aggregate amount of assets (less reserves and other deductible items) after deducting
current liabilities, as shown on the consolidated balance sheet of the Company and its Subsidiaries contained in the latest annual report to the stockholders of the Company and prepared in accordance with GAAP.
Corporate Trust Office means the office of the Trustee at which at any particular time its corporate trust business with
respect to this Supplemental Indenture shall be administered, which office at the date of execution of this Supplemental Indenture is located at Wells Fargo Bank, N.A., 150 East 42nd Street, 40th Floor, New York, New York 10017, Attn: Corporate,
Municipal and Escrow Solutions, and for purposes of Section 2.5 and 4.2 of the Senior Indenture, shall also mean the office or agency of the Trustee located at 608 Second Avenue South, N9303-121, Minneapolis, MN 55479, Attn: Corporate Trust
Operations.
Disqualified Capital Stock means that portion of any Capital Stock that, by its terms (or by the terms of
any security into which it is convertible or for which it is exchangeable at the option of the holder thereof), or upon the happening of any event (other than an event which would constitute a Change of Control), matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the sole option of the holder thereof (except, in each case, upon the occurrence of a Change of Control) on or prior to the date 91 days after the final maturity
date of the Notes.
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DTC has the meaning provided in Section 2.1.
Equity Interests means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any
debt security that is convertible into, or exchangeable for, Capital Stock).
Equity Offering means a public or private
sale of Equity Interests of the Company (other than Disqualified Capital Stock and other than to a Subsidiary of the Company) by the Company.
Funded Debt means indebtedness for borrowed money having a maturity of, or by its terms extendible or renewable for, a
period of more than 12 months after the date of the determination of the amount thereof.
Global Securities has the
meaning provided in Section 2.1.
Independent Investment Banker means one of the Reference Treasury Dealers
appointed by the Company.
Initial Notes means the 5.500% Senior Notes due 2025 of the Company issued on April 6,
2015 and delivered under this Nineteenth Supplemental Indenture.
Issue Date means April 6, 2015, the date of the
original issuance of the Initial Notes.
Notes means the Initial Notes and any Additional Notes issued on or after the
Issue Date in accordance with clause (ii) of Section 2.2(a) treated as a single class of securities, as amended or supplemented from time to time in accordance with the terms hereof, that are issued pursuant to this Indenture.
Physical Securities has the meaning provided in Section 2.1.
Preferred Stock means, with respect to any Person, any and all shares, interests, participations or other equivalents
(however designated, whether voting or non-voting) of preferred or preference stock of such Person which is outstanding or issued on or after the date of the Indenture.
Principal Property means any building, structure or other facility (together with the land on which it is erected and
fixtures comprising a part thereof) used primarily for manufacturing, processing, research, warehousing or distribution, owned or leased by the Company and having a net book value in excess of 2% of Consolidated Net Assets, other than any such
building, structure or other facility or portion thereof which is a pollution control facility financed by state or local governmental obligations or which the principal executive officer, president and principal financial officer of the Company
determine in good faith is not of material importance to the total business conducted or assets owned by the Company and its Subsidiaries as an entirety.
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Reference Treasury Dealer means Goldman, Sachs & Co. and two other
Primary Treasury Dealers (as defined below) selected by the Company; provided, however, that if any of the foregoing shall cease to be a primary U.S. Government securities dealer in New York City (a Primary Treasury
Dealer), the Company shall substitute therefor another Primary Treasury Dealer.
Reference Treasury Dealer
Quotations means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Independent Investment Banker, of the bid and asked prices for the Comparable Treasury Issue (expressed in each
case as a percentage of its principal amount) quoted in writing to the Independent Investment Banker by such Reference Treasury Dealer at 5:00 p.m. on the third Business Day preceding such redemption date.
Repurchase Date shall have the meaning provided in Section 4.1 hereof.
Treasury Rate means, with respect to any redemption date, the rate per annum equal to the yield to maturity of the
Comparable Treasury Issue, compounded semi-annually, assuming a price for such Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date.
Voting Stock means, with respect to any Person, Capital Stock of any class or kind ordinarily having the power to vote for
the election of directors of such Person or other Persons performing similar functions.
ARTICLE TWO
THE NOTES
SECTION 2.1 FORM AND DATING.
(a) The Notes shall be substantially in the form of Exhibit A hereto, which is a part of this Nineteenth Supplemental Indenture, with such
appropriate insertions, omissions, substitutions and other variations as are required or permitted by the Senior Indenture and this Nineteenth Supplemental Indenture, and may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the Officers of the Company executing such Notes, as evidenced by their execution of the
Notes. The Notes will initially be issued as Global Securities. The Company initially appoints The Depository Trust Company (DTC) and the Trustee to act as Depositary and custodian, respectively, with respect to the Notes. The
Company initially appoints the Trustee to act as Paying Agent and Registrar with respect to the Notes. The Notes shall be issued initially in the form of one or more permanent global Notes in registered form, substantially in the form set forth in
Exhibit A (the Global Securities), registered in the name of the nominee of the Depositary, deposited with the Trustee, as custodian for the Depositary, duly executed by the Company and authenticated by the Trustee as hereinafter
provided, and shall bear the legend set
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forth in Section 2.5. The aggregate principal amount of the Global Securities may from time to time be increased or decreased by adjustments made on the records of the Trustee, as
custodian for the Depositary, as hereinafter provided.
(b) Securities issued in exchange for interests in the Global Securities pursuant
to Section 2.6 may be issued in the form of Physical Securities (Physical Securities).
SECTION 2.2
EXECUTION AND AUTHENTICATION.
(a) The Trustee shall authenticate (i) Initial Notes for original issue on the Issue Date in the
aggregate principal amount of $575,000,000 and (ii) any Additional Notes, (such Notes to be substantially in the form of Exhibit A) in an unlimited amount, in each case, upon written orders of the Company signed by two Officers. Each such
Officers Certificate shall specify the amount of Notes to be authenticated, the date on which the Notes are to be authenticated, whether the Notes are to be Initial Notes or Additional Notes issued under clause (i) or (ii), respectively,
of the preceding sentence, and the aggregate principal amount of Notes outstanding on the date of authentication, and shall further specify the amount of such Notes to be issued as a Global Security or Physical Securities. Such Notes shall initially
be in the form of one or more Global Securities, which (i) shall represent, and shall be denominated in an amount equal to the aggregate principal amount of, the Notes to be issued, (ii) shall be registered in the name of the Depositary
for such Global Security or Securities or its nominee and (iii) shall be held by the Trustee as custodian for the Depositary or pursuant to the Depositarys instruction.
(b) The Notes shall be issuable only in registered form without coupons in the principal amount of at least $2,000 and integral multiples of
$1,000 thereafter.
SECTION 2.3 INTEREST.
Interest on the Notes shall be payable in the amount, on the dates and in the manner provided for in the form of the Note attached hereto as
Exhibit A.
SECTION 2.4 PLACE OF PAYMENT.
(a) The place of payment for the Notes shall be the at the Trustees Corporate Trust Office as Paying Agent . So long as the Notes are in
the form of Registered Global Securities, the Company agrees that payments of interest on, and any portion of the Principal of, the Notes shall be made by the Paying Agent, upon receipt from the Company of immediately available funds, directly to
the Depositary (by Federal funds wire transfer).
SECTION 2.5 RESTRICTIVE LEGEND.
(a) Each Global Security shall bear the following legend on the face thereof:
UNLESS AND UNTIL THIS NOTE IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY ANY SUCH NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
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DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (DTC), TO THE COMPANY OR THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSORS NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.6 OF THE SUPPLEMENTAL INDENTURE GOVERNING THIS NOTE.
SECTION 2.6 SPECIAL TRANSFER PROVISIONS.
(a) The following provisions shall apply with respect to the registration of any proposed transfer of a Note:
(i) If the proposed transferor is a member of, or participant in, the Depositary (an Agent Member) holding a
beneficial interest in a Global Security, upon receipt by the Registrar of instructions given in accordance with the Depositarys and the Registrars procedures, whereupon the Registrar shall reflect on its books and records the date and a
decrease in the principal amount of the applicable Global Security in an amount equal to the principal amount of the beneficial interest in such Global Security to be transferred, and an increase in the applicable Global Security to which the
beneficial interest is to be transferred or shall authenticate and deliver one or more Physical Securities of like tenor and amount.
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ARTICLE THREE
OPTIONAL REDEMPTION OF THE NOTES
SECTION 3.1 OPTIONAL REDEMPTION.
(a) On or after April 15, 2020, the Company may redeem all or a part of the Notes, on any one or more occasions, at the redemption prices
(expressed as percentages of principal amount) set forth below plus accrued and unpaid interest thereon, if any, to, but not including, the applicable redemption date, if redeemed during the twelve-month period beginning on April 15th of the
years indicated below:
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Year |
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Percentage |
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2020 |
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102.750 |
% |
2021 |
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101.833 |
% |
2022 |
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100.917 |
% |
2023 and thereafter |
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100.000 |
% |
(b) At any time prior to April 15, 2020, the Company may also redeem all or a part of the Notes, on any
one or more occasions, at a redemption price equal to 100% of the principal amount of Notes to be redeemed plus the Applicable Premium as of, and accrued and unpaid interest, if any, to, but not including, the redemption date, subject to the rights
of holders of record of the Notes on the relevant record date to receive interest due on the relevant interest payment date falling prior to or on the redemption date. Calculation of the Applicable Premium is the responsibility of the Company and
the Trustee shall have no duty to calculate or verify the calculation of the Applicable Premium.
(c) At any time prior to April 15,
2018, the Company may, on any one or more occasions, use the net cash proceeds from one or more Equity Offerings, to redeem in the aggregate for all such redemptions up to 35.0% of the aggregate principal amount of Notes issued (including the
aggregate principal amount of any Additional Notes) at a redemption price equal to 105.500% of the aggregate principal amount of the Notes redeemed, plus accrued and unpaid interest thereon, if any, to, but not including, the applicable redemption
date (subject to the right of Holders of record of the Notes on the relevant record date to receive interest due on the relevant interest payment date falling prior to or on the redemption date), provided that: (A) at least 65.0% of the
aggregate principal amount of Notes originally issued (including any Additional Notes) remains outstanding immediately after the occurrence of such redemption and (B) each such redemption occurs within 90 days of the date of, and may be
conditioned on, the closing of each such Equity Offering.
(d) A redemption pursuant to Section 3.1(c) may, at the
Companys discretion, be subject to one or more conditions precedent. The Company will provide prompt written notice to the Trustee in the event that any such condition precedent shall not have occurred, and such redemption shall be rescinded
and of no force or effect, if specified in such notice. Upon receipt of such notice from the Company rescinding such redemption, the Trustee will promptly send a copy of such notice to the Holders of the Notes to be redeemed in the same manner
in which the original notice of redemption was given.
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ARTICLE FOUR
REPURCHASE OF NOTES UPON CHANGE OF CONTROL
SECTION 4.1 REPURCHASE OF NOTES UPON A CHANGE OF CONTROL.
(a) Upon a Change of Control, each holder of the Notes shall have the right to require that the Company repurchase such holders Notes at
a repurchase price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest, if any, to, but not including, the date of repurchase.
(b) Within 30 days following any Change of Control, the Company shall send a notice to each Holder of the Notes with a copy to the Trustee
stating:
(i) that a Change of Control has occurred and that such Holder has the right to require the Company to repurchase
such Holders Notes at a repurchase price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest, if any, to, but not including, the date of repurchase (the Change of Control Offer),
(ii) the circumstances and relevant facts regarding such Change of Control (including information with respect to pro forma
historical income, cash flow and capitalization after giving effect to such Change of Control),
(iii) the repurchase date
(which shall be not earlier than 30 days or later than 60 days from the date such notice is sent) (the Repurchase Date),
(iv) that any Notes not tendered shall continue to accrue interest,
(v) that any Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the
Repurchase Date, unless the Company defaults in depositing the purchase amount,
(vi) that Holders electing to have a Note
purchased pursuant to a Change of Control Offer will be required to surrender the Note, with the form entitled Option of Holder to Elect Purchase on the reverse of the Notes completed, to the Paying Agent at the address specified in the
notice prior to the close of business on the Repurchase Date,
(vii) that Holders will be entitled to withdraw their
election if the Paying Agent receives, not later than the close of business on the third Business Day (or such shorter periods as may be required by applicable law) preceding the Repurchase Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of Notes the Holder delivered for purchase, and a statement that such Holder is withdrawing his election to have such Notes purchased, and
(viii) that Holders which elect to have their Notes purchased only in part will be issued new Notes in a principal amount equal
to the unpurchased portion of the Notes surrendered.
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(c) On the Repurchase Date, the Company shall (i) accept for payment Notes or portions
thereof tendered pursuant to the Change of Control Offer; (ii) deposit with the Trustee money sufficient to pay the purchase price of all Notes or portions thereof so tendered and (iii) deliver or cause to be delivered to the Trustee Notes
so accepted together with an Officers Certificate identifying the Notes or portions thereof tendered to the Company.
(d) The
Trustee shall promptly deliver to the Holders of the Notes so accepted payment in an amount equal to the purchase price, and promptly authenticate and deliver to such Holders a new Note in a principal amount equal to any unpurchased portion of the
Notes surrendered (or through book-entry transfer for global Notes). The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Repurchase Date.
(e) The Company shall comply with all applicable tender offer rules, including without limitation Rule 14e-1 under the Exchange Act, in
connection with a Change of Control Offer.
ARTICLE FIVE
ADDITIONAL COVENANTS APPLICABLE TO THE NOTES
SECTION 5.1 RESTRICTIONS ON SECURED DEBT.
(a) If the Company shall incur, issue, assume or guarantee any indebtedness for borrowed money represented by notes, bonds, debentures or other
similar evidences of indebtedness, secured by a mortgage, pledge or other lien on any Principal Property or any capital stock or indebtedness held directly by the Company of any Subsidiary of the Company, the Company shall secure the Notes equally
and ratably with (or prior to) such indebtedness, so long as such indebtedness shall be so secured, unless after giving effect thereto the aggregate amount of all such indebtedness so secured, together with all Attributable Debt in respect of sale
and leaseback transactions involving Principal Properties, would not exceed 15% of the Consolidated Net Assets of the Company.
(b) The
foregoing restriction shall not apply to, and there shall be excluded in computing secured indebtedness for the purpose of such restriction, indebtedness secured by (a) property of any Subsidiary of the Company, (b) liens on property of,
or on any shares of stock or debt of, any corporation existing at the time such corporation becomes a Subsidiary, (c) liens in favor of the Company or any Subsidiary, (d) liens in favor of U.S. or foreign governmental bodies to secure
partial, progress, advance or other payments, (e) liens on property, shares of stock or debt existing at the time of acquisition thereof (including acquisition through merger or consolidation), purchase money mortgages and construction cost
mortgages existing at or
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incurred within 180 days of the time of acquisition thereof, (f) liens existing on the first date on which any Note is authenticated by the Trustee, (g) liens under one or more credit
facilities for indebtedness in an aggregate principal amount not to exceed $900,000,000 at any time outstanding, (h) liens incurred in connection with pollution control, industrial revenue or similar financings, and (i) any extension,
renewal or replacement of any debt secured by any liens referred to in the foregoing clauses (a) through (h), inclusive.
SECTION 5.2 RESTRICTIONS ON SALES AND LEASEBACKS.
(a) The Company shall not enter into any sale and leaseback transaction involving any Principal Property, the acquisition or completion of
construction and commencement of full operation of which has occurred more than 180 days prior thereto, unless (a) the Company could incur a lien on such property under the restrictions described in Section 5.1 hereof in an amount
equal to the Attributable Debt with respect to the sale and leaseback transaction without equally and ratably securing the Notes or (b) the Company, within 180 days after the sale or transfer by the Company, applies to the retirement of its
Funded Debt an amount equal to the greater of (i) the net proceeds of the sale of the Principal Property sold and leased pursuant to such arrangement or (ii) the fair market value of the Principal Property so sold and leased as determined
by the board of directors of the Company; provided that the amount to be applied to the retirement of Funded Debt of the Company shall be reduced by (A) the principal amount of any Notes delivered within 180 days after such sale or
transfer to the Trustee for retirement and cancellation, and (B) the principal amount of Funded Debt, other than Notes, voluntarily retired by the Company within 180 days after such sale or transfer; provided further that no retirement referred
to in this clause (b) may be effected by payment at maturity or pursuant to any mandatory sinking fund payment or any mandatory prepayment provision.
ARTICLE SIX
ADDITIONAL EVENTS
OF DEFAULT APPLICABLE TO THE NOTE
SECTION 6.1 ADDITIONAL EVENTS OF DEFAULT.
(a) Pursuant to Section 6.1 (f) of the Senior Indenture, an Event of Default shall be deemed to occur with respect to the
Notes if an event of default, as defined in any indenture or instrument evidencing or under which the Company has as of the date of this Nineteenth Supplemental Indenture or shall thereafter have outstanding any indebtedness, shall happen and be
continuing and either (i) such default results from the failure to pay the principal of such indebtedness in excess of $50 million at final maturity of such indebtedness or (ii) as a result of such default the maturity of such indebtedness
shall have been accelerated so that the same shall be or become due and payable prior to the date on which the same would otherwise have become due and payable, and such acceleration shall not be rescinded or annulled within 60 days and the
principal amount of such indebtedness, together with the principal amount of any other indebtedness of the Company in default, or the maturity of which has been accelerated, aggregates $50 million or more; provided that the Trustee shall not
be charged with knowledge of any such default unless written notice thereof shall have been given to the Trustee by the Company, by the holder or an agent of the holder of any such indebtedness, by the trustee then acting under any indenture or
other instrument under which such default shall have occurred, or
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by the holders of not less than 25% in the aggregate principal amount of the Notes at the time outstanding; and provided further that if such default shall be remedied or cured by
the Company or waived by the requisite number of percentage of holder of such indebtedness as provided in such indenture or instrument, then the Event of Default described under this Nineteenth Supplemental Indenture shall be deemed likewise to have
been remedied, cured or waived without further action on the part of the Trustee, any Holder of Notes or any other person.
ARTICLE SEVEN
MISCELLANEOUS PROVISIONS
SECTION 7.1 RATIFICATION.
(a) The Senior Indenture, as supplemented by this Nineteenth Supplemental Indenture, is in all respects ratified and confirmed. This Nineteenth
Supplemental Indenture shall be deemed part of the Indenture in the manner and to the extent provided herein and therein.
SECTION 7.2 COUNTERPARTS.
(a) This Nineteenth Supplemental Indenture may be executed in any number of counterparts each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument. The exchange of copies of this Nineteenth Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of
this Indenture as to the parties hereto and may be used in lieu of the original Nineteenth Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for
all purposes.
SECTION 7.3 NOTICE TO HOLDERS.
(a) Notwithstanding any other provision of the Senior Indenture, this Nineteenth Supplemental Indenture, or any Note, where the Senior
Indenture, this Nineteenth Supplemental Indenture or any Note provides for notice of any event (including any notice of redemption or repurchase) to a Holder of a global Note (whether by mail or otherwise), such notice shall be sufficiently given if
given to DTC (or its designee) pursuant to the standing instructions from DTC or its designee, including by electronic mail in accordance with DTC operational arrangements or other applicable DTC requirements.
SECTION 7.4 REPORTS
(a) In connection with Section 4.5 of the Senior Indenture, the Company shall be deemed to have furnished such information, documents or
reports to the Trustee, the Holders and/or prospective purchasers of the notes, if the Company has filed such information, documents or reports with the Commission via the EDGAR filing system (or any successor system) and/or posted such information,
documents or reports on the Companys website and such information, documents or reports are publicly available; provided, however, that the Trustee shall have no obligation whatsoever to determine whether or not such materials
have been filed pursuant to the EDGAR system (or its successor) or posted on any website. Delivery
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of such information to the Trustee is for informational purposes only and the Trustees receipt of such shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Companys compliance with any of their covenants under the Senior Indenture (as to which the Trustee is entitled to rely exclusively on Officers Certificates).
SECTION 7.5 PATRIOT ACT
(a) The Company acknowledges that in accordance with Section 326 of the U.S.A. PATRIOT Act, the Trustee, like all financial institutions
and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The
parties to this Supplemental Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A. PATRIOT Act.
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IN WITNESS WHEREOF, the parties hereto have caused this Nineteenth Supplemental Indenture to be
duly executed and attested, on the date or dates indicated in the acknowledgments and as of the day and year first above written.
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THE AES CORPORATION, as the Issuer |
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By: |
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/s/ Daniel Stadelmann |
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Name: |
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Daniel Stadelmann |
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Title: |
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Vice President and Treasurer |
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Attest: |
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By: |
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/s/ Thomas M. OFlynn |
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Name: |
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Thomas M. OFlynn |
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Title: |
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Executive Vice President and Chief Financial Officer |
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WELLS FARGO BANK, N.A., as Trustee |
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By: |
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/s/ Gregory S. Clarke |
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Name: |
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Gregory S. Clarke |
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Title: |
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Vice President |
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Attest: |
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By: |
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/s/ Scott Hagwell |
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Name: |
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Scott Hagwell |
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Title: |
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Vice President |
[Signature Page to the Nineteenth Supplemental Indenture]
Exhibit A
[FORM OF NOTE]*
[FACE OF NOTE]
THE AES CORPORATION.
5.500%
Senior Note due 2025
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CUSIP No. ISIN No.
No. |
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Principal Amount $ |
THE AES CORPORATION, a Delaware corporation (the Company), for value received promises to
pay to or registered assigns, the principal sum of Dollars ($ ) on
April 15, 2025.
Interest Payment Dates: April 15, and October 15; commencing October 15, 2015.
Record Dates: Each April 1 and October 1 immediately preceding each Interest Payment Date.
Reference is made to the further provisions of this Note contained herein, which shall for all purposes have the same effect as if set forth
at this place.
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If applicable, add Global Security Legend. |
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By: |
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Authorized Signature |
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By: |
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Authorized Signature |
Dated:
Certificate of
Authentication
This is one of the 5.500% Senior Notes due 2025 referred to in the within-mentioned Indenture.
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WELLS FARGO BANK, N.A., |
as Trustee |
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By: |
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Authorized Signatory |
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[REVERSE OF FORM OF NOTE]
THE AES CORPORATION
5.500%
SENIOR NOTE DUE 2025
1. Interest. THE AES CORPORATION, a Delaware corporation (the Company, which definition
shall include any successor thereto in accordance with the Indenture (as defined below)), promises to pay, until the principal hereof is paid or made available for payment, interest on the principal amount set forth on the reverse side hereof at a
rate of 5.500% per annum. Interest on the Notes will accrue from and including the most recent date to which interest has been paid or, if no interest has been paid, from April 6, 2015 through but excluding the date on which
interest is paid. Interest shall be payable in arrears on April 15, and October 15 of each year (each an Interest Payment Date), commencing October 15, 2015. Interest will be computed on the basis of a 360-day year
of twelve 30-day months. In the event that any date on which interest is payable on the Notes is not a Business Day, then payment of the interest payable on such date will be made on the next succeeding day which is a Business Day (and without any
interest or other payment in respect of any such delay), except that, if such Business Day is in the next succeeding calendar year, such payment shall be made on the immediately preceding Business Day, in each case with the same force and effect as
if made on such date.
2. Method of Payment. The Company will pay interest on the Notes (except defaulted interest) to the Persons
who are registered Holders of Notes at the close of business on each April 1 and October 1 immediately preceding each Interest Payment Date (each, a Regular Record Date). Holders must surrender Notes to a Paying Agent to
collect principal payments. The Company will pay principal and interest in money of the United States that at the time of payment is legal tender for payment of public and private debts. At the Companys option, interest may be paid by check
sent to the registered address of the Holder of this Note.
3. Paying Agent and Registrar. Initially, Wells Fargo Bank, N.A. (the
Trustee) will act as Paying Agent and Registrar. The Company may change any Paying Agent, Registrar or co-Registrar without notice.
4. Indenture. The Company issued the Notes under an Indenture dated as of December 8, 1998 between the Company and the Trustee as
supplemented by the Ninth Supplemental Indenture dated as of April 3, 2003 and the Nineteenth Supplemental Indenture dated as of April 6, 2015 between the Company and the Trustee (said Indenture, as so supplemented, the
Indenture). This Note is one of an issue of Securities of the Company issued under the Indenture. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb) as amended from time to time. The Notes are subject to all such terms, and Holders of the Notes are referred to the Indenture and such Act for a statement of them. Capitalized terms used
herein and not otherwise defined have the meanings set forth in the Indenture. The Notes are general unsecured and unsubordinated obligations of the Company ranking pari passu with all of the Companys unsecured and unsubordinated obligations.
The Company may, subject to the terms of the Indenture and applicable law, issue Additional Notes
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under the Nineteenth Supplemental Indenture. The Notes issued on April 6, 2015 and any Additional Notes subsequently issued shall be treated as a single class for all purposes of the
Nineteenth Supplemental Indenture. The Indenture limits the ability of the Company to incur certain secured indebtedness and to enter into certain sale and leaseback transactions.
5. Optional Redemption.
(a) On or after April 15, 2020, the Company may redeem all or a part of the Notes, on any one or more occasions, at the redemption prices
(expressed as percentages of principal amount) set forth below plus accrued and unpaid interest thereon, if any, to, but not including, the applicable redemption date, if redeemed during the twelve-month period beginning on April 15th of the
years indicated below:
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Year |
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Percentage |
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2020 |
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102.750 |
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2021 |
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101.833 |
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2022 |
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100.917 |
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2023 and thereafter |
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100.000 |
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(b) At any time prior to April 15, 2020, the Company may also redeem all or a part of the Notes, on any
one or more occasions, at a redemption price equal to 100% of the principal amount of Notes to be redeemed plus the Applicable Premium as of, and accrued and unpaid interest, if any, to, but not including, the redemption date, subject to the rights
of holders of record of the Notes on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date falling prior to or on the redemption date. Calculation of the Applicable Premium is the responsibility of the
Company and the Trustee shall have no duty to calculate or verify the calculation of the Applicable Premium.
(c) At any time prior to
April 15, 2018, the Company may, on any one or more occasions, use the net cash proceeds from one or more Equity Offerings, to redeem in the aggregate for all such redemptions up to 35.0% of the aggregate principal amount of Notes issued
(including the aggregate principal amount of any Additional Notes) at a redemption price equal to 105.500% of the aggregate principal amount of the Notes redeemed, plus accrued and unpaid interest thereon, if any, to, but not including, the
applicable redemption date (subject to the right of Holders of record of the Notes on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date falling prior to or on the redemption date), provided that:
(A) at least 65.0% of the aggregate principal amount of Notes originally issued (including any Additional Notes) remains outstanding immediately after the occurrence of such redemption and (B) each such redemption occurs within 90 days of
the date of, and may be conditioned on, the closing of each such Equity Offering.
(d) A redemption pursuant to Section 5(c)
may, at the Companys discretion, be subject to one or more conditions precedent.
Applicable Premium means, with
respect to any Note on any redemption date, the excess, if any, of (i) the present value on such redemption date of (A) the redemption price of such Note on April 15, 2020 (such redemption price being that set forth in the table
above), plus
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(B) all required remaining scheduled interest payments due on such Note through April 15, 2020 (excluding accrued but unpaid interest, if any, to, but not including, the redemption date)
computed using a discount rate equal to the Treasury Rate as of such redemption date plus 50 basis points, over (ii) the principal amount of such Note.
Comparable Treasury Issue means the United States Treasury security selected by the Independent Investment Banker as having
a maturity comparable to April 15, 2020 that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity.
Comparable Treasury Price means, with respect to any redemption date: (a) the average of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) on the third Business Day preceding such redemption date, as set forth in the most recently published statistical release designated H.15
(519) (or any successor release) published by the Board of Governors of the Federal Reserve System and which establishes yields on actively traded United States treasury securities adjusted to constant maturity under the caption Treasury
Constant Maturities, or (b) if such release (or any successor release) is not published or does not contain such prices on such Business Day, the average of the Reference Treasury Dealer Quotations for such redemption date.
Disqualified Capital Stock means that portion of any Capital Stock that, by its terms (or by the terms of any security into
which it is convertible or for which it is exchangeable at the option of the holder thereof), or upon the happening of any event (other than an event which would constitute a Change of Control), matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or is redeemable at the sole option of the holder thereof (except, in each case, upon the occurrence of a Change of Control) on or prior to the date 91 days after the final maturity date of the Notes.
Equity Interests means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any
debt security that is convertible into, or exchangeable for, Capital Stock).
Equity Offering means a public or private
sale of Equity Interests of the Company (other than Disqualified Capital Stock and other than to a Subsidiary of the Company) by the Company.
Independent Investment Banker means one of the Reference Treasury Dealers appointed by the Company.
Reference Treasury Dealer means Goldman, Sachs & Co. and two other Primary Treasury Dealers (as defined below)
selected by the Company; provided, however, that if any of the foregoing shall cease to be a primary U.S. Government securities dealer in New York City (a Primary Treasury Dealer), the Company shall substitute
therefor another Primary Treasury Dealer.
Reference Treasury Dealer Quotations means, with respect to each Reference
Treasury Dealer and any redemption date, the average, as determined by the Independent Investment Banker, of the bid and asked prices for the Comparable Treasury Issue (expressed in
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each case as a percentage of its principal amount) quoted in writing to the Independent Investment Banker by such Reference Treasury Dealer at 5:00 p.m. on the third Business Day preceding such
redemption date.
Treasury Rate means, with respect to any redemption date, the rate per annum equal to the yield to
maturity of the Comparable Treasury Issue, compounded semi-annually, assuming a price for such Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date.
6. Change of Control Offer. Upon the occurrence of a Change of Control, the Company shall be required, as and to the extent set forth
in the Indenture, to offer to purchase all of the outstanding Notes at a purchase price equal to 101% of the principal amount thereof, plus accrued and unpaid interest, if any, thereon to, but not including, the date of repurchase (subject to the
right of the Holders of record on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date falling prior to or on the repurchase date).
7. Sinking Fund. No sinking fund is provided for the Notes.
8. Denominations, Transfer, Exchange. The Notes are in registered form without coupons in denominations of $2,000 and integral
multiples of $1,000 thereafter. A Holder may transfer or exchange Notes in accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay to it any taxes
and fees required by law or permitted by the Indenture. The Registrar need not transfer or exchange any Notes or portion of a Note selected for redemption, or transfer or exchange any Notes for a period of 15 days before selection of such Notes to
be redeemed.
9. Persons Deemed Owners. The registered holder of a Note may be treated as the owner of it for all purposes.
10. Unclaimed Money. If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent
will pay the money back to the Company at its written request. After that, Holders entitled to the money must look to the Company for payment as general creditors unless an abandoned property law designates another Person.
11. Amendment, Supplement, Waiver. The Company and the Trustee may, without the consent of the holders of any outstanding Notes, amend,
waive or supplement the Indenture or the Notes for certain specified purposes, including, among other things, curing ambiguities, defects or inconsistencies, maintaining the qualification of the Indenture under the Trust Indenture Act of 1939 or
making any other change that does not adversely affect the rights of any Holder in any material respect. Other amendments and modifications of the Indenture or the Notes may be made by the Company and the Trustee with the consent of the Holders of
not less than a majority of the aggregate principal amount of the outstanding Securities of all series affected, subject to certain exceptions requiring the consent of the Holders of the particular Securities.
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12. Successor Corporation. When a successor corporation assumes all the obligations of its
predecessor under the Notes and the Indenture and the transaction complies with the terms of Article 5 of the Senior Indenture, the predecessor corporation, subject to certain exceptions, will be released from those obligations.
13. Defaults and Remedies. Events of Default are set forth in the Indenture. Subject to certain limitations in the Indenture, if an
Event of Default (other than an Event of Default specified in Section 6.1(d) or (e) of the Senior Indenture with respect to the Company) occurs and is continuing, then the holders of not less than 25% in aggregate principal amount of the
outstanding Notes may, or the Trustee may, by written notice to the Company, and the Trustee at the request of not less than 25% in aggregate principal amount of the outstanding Notes will, declare the principal of, plus accrued interest, if any, to
be due and payable immediately. If an Event of Default specified in Section 6.1(d) or (e) of the Senior Indenture with respect to the Company occurs and is continuing, the Principal of and accrued interest on all of the Notes shall ipso
facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder. Holders of the Notes may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee may
require indemnity reasonably satisfactory to it before it enforces the Indenture or the Notes. Subject to certain limitations, Holders of a majority in principal amount of the then outstanding Securities of all series issued under the Indenture that
are affected may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of the Notes notice of any continuing default (except a default in payment of principal or interest) if it determines in good faith that
withholding notice is in their interests. The Company must furnish an annual compliance certificate to the Trustee.
14. Trustee
Dealing with Company. The Trustee, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were
not Trustee.
15. No Recourse Against Others. A director, officer, employee, stockholder or beneficiary, as such, of the Company
shall not have any liability for any obligations of the Company under the Notes or the Indenture or for any claim based on, in respect of or by reason of, such obligations or their creation. Each Holder of the Notes by accepting a Note waives and
releases all such liability. The waiver and release are part of the consideration for the issue of the Notes.
16. Defeasance. The
Indenture contains provisions (which provisions apply to this Note) for defeasance at any time of (a) the entire indebtedness of the Company in respect of this Note and (b) certain restrictive covenants and Defaults and Events of Default,
in each case upon compliance by the Company with certain conditions set forth therein.
17. Authentication. This Note shall not be
valid until the Trustee signs the certificate of authentication on the other side of this Note.
18. Abbreviations. Customary
abbreviations may be used in the name of a Holder of Notes or an assignee, such as: TEN COM (= tenants in common), TENANT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
19. GOVERNING LAW. THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
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The Company will furnish to any Holder of Notes upon written request and without charge a copy of
the Indenture. Requests may be made to:
THE AES CORPORATION
4300 Wilson Boulevard
Arlington,
Virginia 22203
Telephone: (703) 522-1315
Telecopy: (703) 528-4510
Attention: Legal Department
A-8
ASSIGNMENT FORM
If you the holder want to assign this Note, fill in the form below and have your signature guaranteed:
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I or we assign and transfer this Note to |
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(Insert assignees social security or tax ID number) |
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(Print or type assignees name, address and zip code) and irrevocably appoint agent to
transfer this Note on the books of the Company. The agent may substitute another to act for him. |
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Date: |
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Your signature: |
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(Sign exactly as your name appears on the other side of this Note) |
Signatures must be guaranteed by an eligible guarantor institution meeting the requirements of the
Registrar, which requirements include membership or participation in the Securities Transfer Agents Medallion Program (STAMP) or such other signature guarantee program as may be determined by the Registrar in addition
to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
A-9
OPTION OF HOLDER TO ELECT TO PURCHASE
[Date]
Wells Fargo Bank, N.A.
Corporate, Municipal and Escrow Solutions
150 East 42nd Street,
40th Floor
New York, New York 10017
Attention: AES
Corporate Trust Administrator
5.500% Senior Notes due 2025 (the Notes)
The undersigned hereby elects to have [all] [a portion of] its Notes purchased by the Company pursuant to Section 4.1 of the Nineteenth
Supplemental Indenture.
If the undersigned elects to have only part of its Notes purchased by the Company pursuant to Section 4.1 of
the Nineteenth Supplemental Indenture, state the principal amount (minimum amount of $2,000; multiples of $1,000 in excess of $2,000):
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$ |
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Dated: |
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Signed: |
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(Sign exactly as name appears on the other side of this Security) |
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Signature Guarantee: |
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Participant in a recognized Signature
Guarantee Medallion Program (or other signature guarantor program reasonably acceptable to the Trustee) |
A-10
Exhibit 5.1
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New York Menlo Park
Washington DC São
Paulo London |
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Paris Madrid
Tokyo Beijing
Hong Kong |
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Davis Polk & Wardwell LLP
450 Lexington Avenue New York, NY 10017 |
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212 450 4000 tel 212 701 5800 fax |
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April 6, 2015
The AES
Corporation
4300 Wilson Boulevard
Arlington, Virginia 22203
Ladies and Gentlemen:
The AES Corporation, a Delaware
corporation (the Company) has filed with the Securities and Exchange Commission a Registration Statement on Form S-3 (File No. 333-186888) (the Registration Statement) for the purpose of registering under the Securities
Act of 1933, as amended (the Securities Act), certain securities, including $575,000,000 aggregate principal amount of its 5.500% Senior Notes due 2025 (the Securities). The Securities are to be issued pursuant to the
provisions of the Indenture dated as of December 8, 1998 (the Base Indenture) between the Company and Wells Fargo Bank, N.A., as trustee (the Trustee), as amended and supplemented by the Ninth Supplemental Indenture
dated as of April 3, 2003 between the Company and the Trustee (the Ninth Supplemental Indenture). Certain terms of the Securities will be established pursuant to a Nineteenth Supplemental Indenture dated as of the date hereof
between the Company and the Trustee (the Nineteenth Supplemental Indenture together with the Base Indenture and the Ninth Supplemental Indenture, the Indenture). The Securities are to be sold pursuant to the Underwriting
Agreement dated March 31, 2015 (the Underwriting Agreement) between the Company and Goldman, Sachs & Co. (the Underwriter).
We, as your counsel, have examined originals or copies of such documents, corporate records, certificates of public officials and other instruments as we have
deemed necessary or advisable for the purpose of rendering this opinion.
In rendering the opinion expressed herein, we have, without independent inquiry
or investigation, assumed that (i) all documents submitted to us as originals are authentic and complete, (ii) all documents submitted to us as copies conform to authentic, complete originals, (iii) all signatures on all documents
that we reviewed are genuine, (iv) all natural persons executing documents had and have the legal capacity to do so, (v) all statements in certificates of public officials and officers of the Company that we reviewed were and are accurate
and (vi) all representations made by the Company as to matters of fact in the documents that we reviewed were and are accurate.
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The AES Corporation |
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April 6, 2015 |
Based upon the
foregoing, and subject to the additional assumptions and qualifications set forth below, we advise you that, in our opinion, when the Securities have been duly executed and authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriter pursuant to the Underwriting Agreement, the Securities will constitute valid and binding obligations of the Company, enforceable in accordance with their terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors rights generally, concepts of reasonableness and equitable principles of general applicability, provided that we express no opinion as to (x) the enforceability of any waiver of rights under
any usury or stay law or (y) the validity, legally binding effect or enforceability of any provision that permits holders to collect any portion of stated principal amount upon acceleration of the Securities to the extent determined to
constitute unearned interest.
In connection with the opinion expressed above, we have assumed that the Indenture and the Securities (collectively, the
Documents) are valid, binding and enforceable agreements of the Trustee. We have also assumed that the execution, delivery and performance by each party to each Document to which it is a party (a) are within its corporate powers,
(b) do not contravene, or constitute a default under, the certificate of incorporation or bylaws or other constitutive documents of such party, (c) require no action by or in respect of, or filing with, any governmental body, agency or
official and (d) do not contravene, or constitute a default under any provision of applicable law or regulation or any judgment, injunction, order or decree or any agreement or other instrument binding upon such party, provided that we make no
such assumption to the extent that we have specifically opined as to such matters with respect to the Company.
We are members of the Bar of the State of
New York and the foregoing opinion is limited to the laws of the State of New York and the General Corporation Law of the State of Delaware, except that we express no opinion as to any law, rule or regulation that is applicable to the Company, the
Documents or such transactions solely because such law, rule or regulation is part of a regulatory regime applicable to any party to any of the Documents or any of its affiliates due to the specific assets or business of such party or such
affiliates.
We hereby consent to the filing of this opinion as an exhibit to the Current Report on Form 8-K to be filed by the Company on the date hereof
and to its incorporation by reference into the Registration Statement. In addition, we consent to the reference to our name under the caption Legal Matters in the preliminary prospectus supplement dated March 31, 2015 and the
prospectus supplement dated March 31, 2015, and under the caption Validity of Securities in the base prospectus dated February 27, 2013, each of which is a part of the Registration Statement. In giving this consent, we do not
admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
Very truly yours,
/s/ Davis Polk & Wardwell LLP
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