-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, SZgbUgVei8qkRC5nIccWLIi36BygGgJvG2LWgY6+WzYkBH3leL9OvtQe6AqFO82m q6CabW3skJDs4tL5Vg7zIw== 0000950103-01-501020.txt : 20010606 0000950103-01-501020.hdr.sgml : 20010606 ACCESSION NUMBER: 0000950103-01-501020 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 20010605 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 20010605 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AES CORPORATION CENTRAL INDEX KEY: 0000874761 STANDARD INDUSTRIAL CLASSIFICATION: COGENERATION SERVICES & SMALL POWER PRODUCERS [4991] IRS NUMBER: 541163725 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 001-12291 FILM NUMBER: 1654093 BUSINESS ADDRESS: STREET 1: 1001 N 19TH ST STREET 2: STE 2000 CITY: ARLINGTON STATE: VA ZIP: 22209 BUSINESS PHONE: 7035221315 8-K 1 jun0401_8k.txt SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 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): June 5, 2001 THE AES CORPORATION (exact name of registrant as specified in its charter) DELAWARE 001-12291 54-1163725 (State of Incorporation) (Commission File No.) (IRS Employer Identification No.)
1001 North 19th Street, Suite 2000 Arlington, Virginia 22209 (Address of principal executive offices, including zip code) Registrant's telephone number, including area code: (703) 522-1315 NOT APPLICABLE (Former Name or Former Address, if changed since last report) Item 5. Other Events The AES Corporation is filing the: (i) Form of Seventh Supplemental Indenture between The AES Corporation and Bank One, National Association, attached as Exhibit 4.1 to this report and incorporated by reference, (ii) Form of Eighth Supplemental Indenture between The AES Corporation and Bank One, National Association, attached as Exhibit 4.2 to this report and incorporated by reference, and (iii) Form of Remarketing Agreement between The AES Corporation and Banc of America Securities LLC, as Remarketing Dealer, attached as Exhibit 4.3 to this report and incorporated herein by reference. Item 7. Financial Statements, Pro Forma Financial Information and Exhibits (c) Exhibits No. Description - --- ----------- 4.1 Form of Seventh Supplemental Indenture between The AES Corporation and Bank One, National Association 4.2 Form of Eighth Supplemental Indenture between The AES Corporation and Bank One, National Association 4.3 Form of Remarketing Agreement between The AES Corporation and Banc of America Securities LLC, as Remarketing Dealer 2 SIGNATURES 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. THE AES CORPORATION Date: June 5, 2001 By: /s/ William R. Luraschi ----------------------------------- Name: William R. Luraschi Title: Vice President and Secretary 3 EXHIBIT INDEX No. Description - --- ----------- 4.1 Form of Seventh Supplemental Indenture between The AES Corporation and Bank One, National Association 4.2 Form of Eighth Supplemental Indenture between The AES Corporation and Bank One, National Association 4.3 Form of Remarketing Agreement between The AES Corporation and Banc of America Securities LLC, as Remarketing Dealer 4 EX-4.1 2 jun0401_ex0401.txt ================================================================================ THE AES CORPORATION AND BANK ONE, NATIONAL ASSOCIATION (FORMERLY KNOWN AS THE FIRST NATIONAL BANK OF CHICAGO) as Trustee ------------------ SEVENTH SUPPLEMENTAL INDENTURE Dated as of June 5, 2001 TO SENIOR INDENTURE Dated as of December 8, 1998 ------------------ 8.750% Senior Notes due 2008 ================================================================================ The SEVENTH SUPPLEMENTAL INDENTURE, is dated as of this 5th day of June, 2001 (the "Seventh 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 BANK ONE, NATIONAL ASSOCIATION (formerly known as THE FIRST NATIONAL BANK OF CHICAGO), a national banking association, as trustee (hereinafter sometimes referred to as the "Trustee"). WHEREAS, the Company entered into a Senior Indenture dated as of December 8, 1998 between the Company and the Trustee (the "Indenture") to provide for the future issuance of its senior debentures, notes or other evidences of indebtedness (collectively, the "Securities"), said Securities to be issued from time to time in series as might be determined by the Company pursuant to the Indenture and, in an unlimited aggregate principal amount; and 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 8.750% Senior Notes due 2008 (said series being hereinafter referred to as the "Series G Senior Notes"), the form and substance of such Series G Senior Notes and the terms, provisions and conditions thereof to be set forth as provided in the Indenture and this Seventh Supplemental Indenture; and WHEREAS, the Company desires and has requested the Trustee to join with it in the execution and delivery of this Seventh Supplemental Indenture, and all requirements necessary to make this Seventh Supplemental Indenture a valid instrument, in accordance with its terms, and to make the Series G Senior Notes, when executed by the Company and authenticated and delivered by the Trustee, the valid obligations of the Company; NOW, THEREFORE, in consideration of the purchase and acceptance of the Series G Senior Notes by the Holders thereof, and for the purpose of setting forth, as provided in the Indenture, the form and substance of the Series G Senior Notes and the terms, provisions and conditions thereof, the Company covenants and agrees with the Trustee as follows: Article One DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION Section 1.1 TERMS DEFINED IN THE INDENTURE. Each capitalized term used not but defined in this Seventh Supplemental Indenture shall have the meaning assigned to such term in the Indenture. Section 1.2 CERTAIN DEFINITIONS. The following definitions are hereby added to the definitions contained in Section 1.1 of the Indenture, but only with respect to the Series G Senior Notes issued in accordance with the provisions hereof: "Attributable Debt" means the present value (discounted at the rate of 8.750% per year compounded monthly) of the obligations for rental payments required to be paid during the remaining term of any lease of more than 12 months. "Consolidated Net Assets" means the aggregate amount of assets (less reserves and other deductible items) after deducting current liabilities, as shown on the consolidated balance sheet of the Company and its Subsidiaries contained in the latest annual report to the stockholders of the Company and prepared in accordance with GAAP. "DTC" shall have the meaning provided in Section 2.1 hereof. "Funded Debt" means indebtedness for borrowed money having a maturity of, or by its terms extendible or renewable for, a period of more than 12 months after the date of the determination of the amount thereof. "Principal Property" means any building, structure or other facility (together with the land on which it is erected and fixtures comprising a part thereof) used primarily for manufacturing, processing, research, warehousing or distribution, owned or leased by the Company and having a net book value in excess of 2% of Consolidated Net Assets, other than any such building, structure or other facility or portion thereof which is a pollution control facility financed by state or local governmental obligations or which the principal executive officer, president and principal financial officer of the Company determine in good faith is not of material importance to the total business conducted or assets owned by the Company and its Subsidiaries as an entirety. Article Two THE Series G SENIOR NOTES Section 2.1 FORM. The Series G Senior Notes shall be substantially in the form of Exhibit A hereto, which is a part of this Seventh Supplemental Indenture, with such appropriate insertions, 2 omissions, substitutions and other variations as are required or permitted by the Indenture and this Seventh Supplemental Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the Officers of the Company executing such Series G Senior Notes, as evidenced by their execution of the Series G Senior Notes. The Series G Senior Notes will initially be issued as Registered Global Securities. The Company initially appoints The Depository Trust Company ("DTC") and the Trustee to act as Depositary and custodian, respectively, with respect to the Series G Senior Notes. Section 2.2 DESIGNATION AND AMOUNT. (a) The Series G Senior Notes shall be entitled the "8.750% Senior Notes due 2008" of the Company. (b) The Trustee shall authenticate and deliver Series G Senior Notes for original issue on the date hereof in an initial aggregate principal amount of $400,000,000. (c) The Company may, subject to Article 4 of this Seventh Supplemental Indenture and applicable law, issue additional Series G Senior Notes under this Seventh Supplemental Indenture. The Series G Senior Notes issued on the Closing Date and any additional Series G Senior Notes subsequently issued shall be treated as a single class for all purposes of this Seventh Supplemental Indenture. Section 2.3 INTEREST. Interest on the Series G Senior Notes shall be payable in the amount, on the dates and in the manner provided for in the form of the Series G Senior Note attached hereto as Exhibit A. Section 2.4 DENOMINATIONS. The Series G Senior Notes shall be Registered Securities in denominations of $1,000 or any integral multiple thereof. Section 2.5 PLACE OF PAYMENT. The places of payment for the Series G Senior Notes shall be the Borough of Manhattan, The City of New York. So long as the Series G Senior Notes are in the form of Registered Global Securities, the Company agrees that payments of interest on, and any portion of the Principal of, the Series G Senior Notes shall be made by the Paying Agent, upon receipt from the Company of immediately available funds (by Federal Funds or wire transfer). 3 Article Three OPTIONAL REDEMPTION OF THE Series G SENIOR NOTES Section 3.1 OPTIONAL REDEMPTION. The Series G Senior Notes may be redeemed at the option of the Company, as a whole or from time to time in part, at the times and at the Redemption Price specified in the form of the Series G Senior Note attached hereto as Exhibit A. Article Four ADDITIONAL COVENANTS APPLICABLE TO THE Series G SENIOR NOTES Section 4.1 RESTRICTIONS ON SECURED DEBT. If the Company shall incur, issue, assume or guarantee any indebtedness for borrowed money represented by notes, bonds, debentures or other similar evidences of indebtedness, secured by a mortgage, pledge or other lien on any Principal Property or any capital stock or indebtedness held directly by the Company of any Subsidiary of the Company, the Company shall secure the Series G Senior Notes equally and ratably with (or prior to) such indebtedness, so long as such indebtedness shall be so secured, unless after giving effect thereto the aggregate amount of all such indebtedness so secured, together with all Attributable Debt in respect of sale and leaseback transactions involving Principal Properties, would not exceed 15% of the Consolidated Net Assets of the Company. The foregoing restriction shall not apply to, and there shall be excluded in computing secured indebtedness for the purpose of such restriction, indebtedness secured by (a) property of any Subsidiary of the Company, (b) liens on property of, or on any shares of stock or debt of, any corporation existing at the time such corporation becomes a Subsidiary, (c) liens in favor of the Company or any Subsidiary, (d) liens in favor of U.S. or foreign governmental bodies to secure partial, progress, advance or other payments, (e) liens on property, shares of stock or debt existing at the time of acquisition thereof (including acquisition through merger or consolidation), purchase money mortgages and construction cost mortgages existing at or incurred within 180 days of the time of acquisition thereof, (f) liens existing on the first date on which any Series G Senior 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 4.2 RESTRICTIONS ON SALES AND LEASEBACKS. The Company shall not enter into any sale and leaseback transaction involving any Principal Property, the acquisition or completion of construction and commencement of full operation of which has occurred more than 180 days prior thereto, unless (a) the Company could incur a lien on such property under the restrictions described in Section 4.1 hereof in an amount 4 equal to the Attributable Debt with respect to the sale and leaseback transaction without equally and ratably securing the Series G Senior Notes or (b) the Company, within 180 days after the sale or transfer by the Company, applies to the retirement of its Funded Debt an amount equal to the greater of (i) the net proceeds of the sale of the Principal Property sold and leased pursuant to such arrangement or (ii) the fair market value of the Principal Property so sold and leased as determined by the board of directors of the Company; provided that the amount to be applied to the retirement of Funded Debt of the Company shall be reduced by (A) the principal amount of any Series G Senior Notes delivered within 180 days after such sale or transfer to the Trustee for retirement and cancellation, and (B) the principal amount of Funded Debt, other than Series G Senior Notes, voluntarily retired by the Company within 180 days after such sale or transfer; provided further that no retirement referred to in this clause (b) may be effected by payment at maturity or pursuant to any mandatory sinking fund payment or any mandatory prepayment provision. Article Five ADDITIONAL EVENTS OF DEFAULT APPLICABLE TO THE Series G SENIOR NOTES Section 5.1 ADDITIONAL EVENTS OF DEFAULT. Pursuant to Section 6.1 (f) of the Indenture, an "Event of Default" shall be deemed to occur with respect to the Series G Senior 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 Seventh Supplemental Indenture or shall thereafter have outstanding any indebtedness, shall happen and be continuing and either (a) 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 (b) 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 by the holders of not less than 25% in the aggregate principal amount of the Series G Senior Notes at the time outstanding; and provided further that if such default shall be remedied or cured by the Company or waived by the holder of such indebtedness, then the Event of Default described under this Seventh 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 Series G Senior Notes or any other person. 5 Article Six MISCELLANEOUS PROVISIONS Section 6.1 RATIFICATION. The Indenture, as supplemented by this Seventh Supplemental Indenture, is in all respects ratified and confirmed. This Seventh Supplemental Indenture shall be deemed part of the Indenture in the manner and to the extent provided herein and therein. Section 6.2 COUNTERPARTS. This Seventh 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. 6 IN WITNESS WHEREOF, the parties hereto have caused this Seventh 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. THE AES CORPORATION, as the Company By: ---------------------------------- Name: Title: Attest: By: ------------------------------- Name: Title: BANK ONE, NATIONAL ASSOCIATION (formerly known as THE FIRST NATIONAL BANK OF CHICAGO), as Trustee By: ---------------------------------- Name: Title: Attest: By: --------------------------------- Name: Title: EXHIBIT A FORM OF FACE OF SERIES G SENIOR NOTE This Series G Senior Note is a Registered Global Security within the meaning of the Indenture hereinafter referred to and is registered in the name of a Depositary or a nominee of a Depositary. This Series G Senior Note is exchangeable for Series G Senior Notes registered in the name of a person other than the Depositary or its nominee only in the limited circumstances described in the Indenture. Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depositary to the nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. Unless this Series G Senior Note is presented by an authorized representative of The Depository Trust Company (55 Water Street, New York, NY) to the issuer or its agent for registration of transfer, exchange or payment, and any Series G Senior Note issued is registered in the name of Cede & Co. or such other name as requested by an authorized representative of The Depository Trust Company and any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein. A-1 No. 1 CUSIP NO.: 00130H AV 7 $400,000,000 8.750% SENIOR NOTE DUE 2008 THE AES CORPORATION promises to pay to Cede and Co., or registered assigns the principal sum of FOUR HUNDRED MILLION Dollars ($400,000,000) on June 15, 2008. Interest Payment Dates: June 15 and December 15 of each year, commencing December 15, 2001 Record Dates: June 1 and December 1 By: ---------------------------------- Authorized Signature By: ---------------------------------- Authorized Signature Dated: June 5, 2001 Certificate of Authentication This is one of the 8.750% Senior Notes due 2008 referred to in the within-mentioned Indenture. Bank One, National Association (formerly known as The First National Bank of Chicago), as Trustee By: ---------------------------------- Authorized Signatory [FORM OF REVERSE OF SERIES G SENIOR NOTE] THE AES CORPORATION 8.750% SENIOR NOTE DUE 2008 i. Principal and 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 8.750% per annum. Interest on the Series G Senior Notes will accrue from and including the most recent date to which interest has been paid or, if no interest has been paid, from June 5, 2001 through but excluding the date on which interest is paid. Interest shall be payable in arrears on June 15 and December 15 of each year (each an "Interest Payment Date"), commencing December 15, 2001. Interest will be computed on the basis of a 360-day year of twelve 30-day months. ii. Method of Payment. The Company will pay interest on the Series G Senior Notes (except defaulted interest) to the Persons who are registered Holders of Series G Senior Notes at the close of business on the fifteenth calendar day preceding each Interest Payment Date (each, a "Regular Record Date"). Holders must surrender Series G Senior 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 Company's option, interest may be paid by check mailed to the registered address of the Holder of this Series G Senior Note. iii. Paying Agent and Registrar. Initially, Bank One, National Association (formerly known as The First National Bank of Chicago) (the "Trustee") will act as Paying Agent and Registrar. The Company may change any Paying Agent, Registrar or co-Registrar without notice. iv. Indenture. The Company issued the Series G Senior Notes under an Indenture dated as of December 8, 1998 between the Company and the Trustee as supplemented by the Seventh Supplemental Indenture dated as of June 5, 2001 between the Company and the Trustee (said Indenture, as so supplemented, the "Indenture"). This Series G Senior Note is one of an issue of Securities of the Company issued under the Indenture. The terms of the Series G Senior 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 ss.ss. 77aaa-77bbbb) as amended from time to time. The Series G Senior Notes are subject to all such terms, and Holders of the Series G Senior 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 Series G Senior Notes are general unsecured and unsubordinated obligations of the Company ranking pari passu with all of the Company's unsecured and unsubordinated obligations. The Company may, subject to Article Four of the Seventh Supplemental Indenture and applicable law, issue additional Series G Senior Notes under the Seventh Supplemental Indenture. The A-3 Series G Senior Notes issued on the Closing Date and any additional Series G Senior Notes subsequently issued shall be treated as a single class for all purposes of the Seventh Supplemental Indenture. The Indenture limits the ability of the Company to incur certain secured indebtedness and to enter into certain sale and leaseback transactions. v. Optional Redemption. The Series G Senior Notes are subject to redemption upon not less than 30 nor more than 60 days notice mailed to each holder of Series G Senior Notes to be redeemed at its address appearing in the Security Register, at any time prior to maturity as a whole or in part, at the election of the Company at a price (the "Redemption Price") equal to the sum of (i) 100% of the principal amount thereof plus accrued interest to the redemption date plus (ii) the Make-Whole Amount, if any. "Make-Whole Amount" means the excess, if any, of (i) the aggregate present value as of the date of such redemption of the principal amount being redeemed and the amount of interest (exclusive of interest accrued to the redemption date) that would have been payable in respect of such principal amount if such prepayment had not been made, determined by discounting, on a semiannual basis, such principal and interest at the Reinvestment Rate (determined on the Business Day preceding the date of such redemption) from the respective dates on which such principal and interest would have been payable if such payment had not been made, over (ii) the aggregate principal amount of the Series G Senior Notes being redeemed. "Reinvestment Rate" means 0.50% (one-half of one percent) plus the arithmetic mean of the yields under the respective headings "This Week" and "Last Week" published in the Statistical Release under the caption "Treasury Constant Maturities" for the maturity (rounded to the nearest month) of the principal being prepaid. If no maturity exactly corresponds to such maturity, yields for the two published maturities most closely corresponding to such maturity shall be calculated pursuant to the immediately preceding sentence and the Reinvestment Rate shall be interpolated or extrapolated from such yields on a straight-line basis, rounding in each of such relevant periods to the nearest month. For the purpose of calculating the Reinvestment Rate, the most recent Statistical Release published prior to the date of determination of the Make-Whole Amount shall be used. "Statistical Release" shall mean the statistical release designated "H.15(519)" or any successor publication which is published weekly by the Federal Reserve System and which establishes yields on actively traded U.S. government securities adjusted to constant maturities or, if such statistical release is not published at the time of any determination under the Indenture, then such other reasonably comparable index which shall be designated by the Company. vi. Sinking Fund. No sinking fund is provided for the Series G Senior Notes. vii. Denominations, Transfer, Exchange. The Series G Senior Notes are in registered form without coupons in denominations of $1,000 and integral multiples of $1,000. A Holder may transfer or exchange Series G Senior 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 Series G Senior Notes or portion of a A-4 Series G Senior Note selected for redemption, or transfer or exchange any Series G Senior Notes for a period of 15 days before selection of such Series G Senior Notes to be redeemed. viii. Persons Deemed Owners. The registered holder of a Series G Senior Note may be treated as the owner of it for all purposes. ix. 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. x. Amendment, Supplement, Waiver. The Company and the Trustee may, without the consent of the holders of any outstanding Series G Senior Notes, amend, waive or supplement the Indenture or the Series G Senior 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 Series G Senior 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 Series G Senior Notes. xi. Successor Corporation. When a successor corporation assumes all the obligations of its predecessor under the Series G Senior Notes and the Indenture and the transaction complies with the terms of Article 5 of the Indenture, the predecessor corporation, subject to certain exceptions, will be released from those obligations. xii. 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 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 Series G Senior Notes may, or the Trustee may, 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 Indenture with respect to the Company occurs and is continuing, the principal of and accrued interest on all of the Series G Senior 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 Series G Senior Notes may not enforce the Indenture or the Series G Senior Notes except as provided in the Indenture. The Trustee may require indemnity reasonably satisfactory to it before it enforces the Indenture or the Series G Senior Notes. Subject to certain limitations, Holders of a majority in principal amount of the then outstanding Series G Senior Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of the Series G Senior Notes notice of any continuing default (except a default in payment of principal or interest or a failure to comply with Article 5 of the Indenture) if it determines in good faith that withholding notice is in their interests. The Company must furnish an annual compliance certificate to the Trustee. A-5 xiii. 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. xiv. 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 Series G Senior 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 Series G Senior Notes by accepting a Series G Senior Note waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Series G Senior Notes. xv. Defeasance. The Indenture contains provisions (which provisions apply to this Series G Senior Note) for defeasance at any time of (a) the entire indebtedness of the Company in respect of this Series G Senior 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. xvi. Authentication. This Series G Senior Note shall not be valid until the Trustee signs the certificate of authentication on the other side of this Series G Senior Note. xvii. Abbreviations. Customary abbreviations may be used in the name of a Holder of Series G Senior 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). xviii. GOVERNING LAW. THE INDENTURE AND THIS SERIES G SENIOR 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. The Company will furnish to any Holder of Series G Senior Notes upon written request and without charge a copy of the Indenture. Requests may be made to: THE AES CORPORATION 1001 North 19th Street, Suite 2000 Arlington, Virginia 22209 Telephone: (703) 522-1315 Telecopy: (703) 528-4510 Attention: General Counsel ASSIGNMENT FORM If you the holder want to assign this Series G Senior Note, fill in the form below and have your signature guaranteed: I or we assign and transfer this Series G Senior Note to ------------------- - -------------------------------------------------------------------------------- (Insert assignee's social security or tax ID number) ----------------------------- - -------------------------------------------------------------------------------- (Print or type assignee's name, address and zip code) and irrevocably appoint ______________________________ agent to transfer this Series G Senior Note on the books of the Company. The agent may substitute another to act for him. - -------------------------------------------------------------------------------- Date: Your signature: -------------------------- ---------------------------- (Sign exactly as your name appears on the other side of this Series G Senior Note) Signature Guarantee: ------------------------------------------------------------ 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-1 EX-4.2 3 jun0401_ex0402.txt ================================================================================ THE AES CORPORATION AND BANK ONE, NATIONAL ASSOCIATION (FORMERLY KNOWN AS THE FIRST NATIONAL BANK OF CHICAGO) as Trustee ------------------ EIGHTH SUPPLEMENTAL INDENTURE Dated as of June 5, 2001 TO SENIOR INDENTURE Dated as of December 8, 1998 ------------------ 7.375% Remarketable or Redeemable Securities (ROARSSM) due 2013 ================================================================================ The EIGHTH SUPPLEMENTAL INDENTURE, is dated as of this 5th day of June, 2001 (the "Eighth 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 BANK ONE, NATIONAL ASSOCIATION (formerly known as THE FIRST NATIONAL BANK OF CHICAGO), a national banking association, as trustee (hereinafter sometimes referred to as the "Trustee"). WHEREAS, the Company entered into a Senior Indenture dated as of December 8, 1998 between the Company and the Trustee (the "Indenture") to provide for the future issuance of its senior debentures, notes or other evidences of indebtedness (collectively, the "Securities"), said Securities to be issued from time to time in series as might be determined by the Company pursuant to the Indenture and, in an unlimited aggregate principal amount; and WHEREAS, pursuant to the terms of the Indenture, the Company desires to provide for the establishment of a new series of its Securities to be known as its 7.375% Remarketable or Redeemable Securities (ROARSSM) due 2013 (said series being hereinafter referred to as the "ROARS"), the form and substance of such ROARS and the terms, provisions and conditions thereof to be set forth as provided in the Indenture and this Eighth Supplemental Indenture; and WHEREAS, the Company desires and has requested the Trustee to join with it in the execution and delivery of this Eighth Supplemental Indenture, and all requirements necessary to make this Eighth Supplemental Indenture a valid instrument, in accordance with its terms, and to make the ROARS, when executed by the Company and authenticated and delivered by the Trustee, the valid obligations of the Company; NOW, THEREFORE, in consideration of the purchase and acceptance of the ROARS by the Holders thereof, and for the purpose of setting forth, as provided in the Indenture, the form and substance of the ROARS and the terms, provisions and conditions thereof, the Company covenants and agrees with the Trustee as follows: Article One DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION Section 1.1 TERMS DEFINED IN THE INDENTURE. Each capitalized term used not but defined in this Eighth Supplemental Indenture shall have the meaning assigned to such term in the Indenture. Section 1.2 CERTAIN DEFINITIONS. The following definitions are hereby added to the definitions contained in Section 1.1 of the Indenture, but only with respect to the ROARS issued in accordance with the provisions hereof: "Applicable Spread" means the lowest Fixed Rate Bid, expressed as a spread (in the form of a percentage or in basis points) above the Base Rate for the ROARS, obtained by the Remarketing Dealer by 3:30 p.m., New York City time, on the Fixed Rate Determination Date, from the Fixed Rate Bids quoted to the Remarketing Dealer by up to five Reference Corporate Dealers. "Attributable Debt" means the present value (discounted at the rate of 7.375% per year compounded monthly) of the obligations for rental payments required to be paid during the remaining term of any lease of more than 12 months. "Base Rate" means 5.50%. "Bid" means a Fixed Rate Bid or a Floating Rate Bid. "Business Day" means any day other than a Saturday or Sunday or a day on which banking institutions in New York City are authorized or obligated by law or executive order to close. "Comparable Treasury Issues" for the ROARS means the U.S. Treasury security or securities selected by the Remarketing Dealer, as of the first Determination Date, as having an actual or interpolated maturity or maturities comparable to the remaining term of the ROARS being purchased by the Remarketing Dealer. "Comparable Treasury Price" means, with respect to the first Remarketing Date: (a) the offer prices for the Comparable Treasury Issues (expressed, in each case, as a percentage of its principal amount) at 12:00 noon, New York City time, on the first Determination Date, as set forth on Telerate Page 500 (or such other page as may replace Telerate Page 500); or (b) if such page (or any successor page) is not displayed or does not contain such offer prices on such Determination Date, (1) the average of the Reference Treasury Dealer Quotations for such Determination Date, after excluding the highest and lowest such Reference 2 Treasury Dealer Quotations, or (2) if the Remarketing Dealer obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such Reference Treasury Dealer Quotations. "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. "Determination Date" means either the Fixed Rate Determination Date or the Floating Rate Spread Determination Date, as applicable. "Dollar Price" means, with respect to the ROARS, (1) the principal amount of such ROARS, plus (2) the premium equal to the excess, if any, of (A) the present value, as of the first Remarketing Date, of the Remaining Scheduled Payments for such ROARS, discounted to such first Remarketing Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate, over (B) the principal amount of such ROARS. "DTC" shall have the meaning provided in Section 2.1 hereof. "Fixed Rate Bid" means an irrevocable offer to purchase the aggregate outstanding principal amount of the ROARS at the Dollar Price, but assuming: (a) a settlement date that is the Fixed Rate Remarketing Date applicable to such ROARS, without accrued interest; (b) a maturity date that is the tenth anniversary of the Fixed Rate Remarketing Date or, if the Company elects to shorten the maturity of the ROARS pursuant to Section 2.7 hereof, the Modified Maturity Date; and (c) a stated annual interest rate equal to the Base Rate plus the spread bid by the applicable Reference Corporate Dealer. "Fixed Rate Determination Date" means the third Business Day prior to the Fixed Rate Remarketing Date. "Fixed Rate Remarketing Date" means (i) June 15, 2003, in the event that the Remarketing Dealer has elected to purchase the ROARS and the Company has not elected to exercise its Floating Period Option, or (ii) the subsequent Remarketing Date on which the Floating Period Termination Date occurs in the event that the Company has elected to exercise its Floating Period Option. "Floating Period Interest Rate" means the sum of the Reference Rate and the Floating Rate Spread. "Floating Period Notification Date" means a date prior to the fourth Business Day immediately preceding the first Remarketing Date on which the Company elects to exercise its Floating Period Option. 3 "Floating Period Option" means the Company's right, on any date subsequent to the Remarketing Dealer's election to purchase the ROARS in connection with the first Remarketing Date but prior to the fourth Business Day immediately preceding the first Remarketing Date, to require the Remarketing Dealer to remarket the ROARS at the Floating Period Interest Rate. "Floating Period Termination Date" means the earlier of (i) June 15, 2004 or (ii) the date that otherwise would have been the Reference Rate Reset Date following the date on which the Company elects to terminate the Floating Rate Period. "Floating Rate Bid" means an irrevocable offer to purchase the aggregate outstanding principal amount of the ROARS at the Dollar Price, but assuming: (a) a settlement date that is the Floating Rate Remarketing Date applicable to such ROARS, without accrued interest; (b) a maturity date equal to the Floating Period Termination Date; (c) a stated annual interest rate equal to the Reference Rate plus the spread bid by the applicable Reference Money Market Dealer; (d) that the ROARS are callable by the Remarketing Dealer at the Dollar Price on the Floating Period Termination Date; and (e) that the Company will redeem the ROARS at the Dollar Price on the Floating Period Termination Date, if not previously purchased by the Remarketing Dealer. "Floating Rate Period" means the period from and including the Floating Rate Remarketing Date to but excluding the Floating Period Termination Date. "Floating Rate Period Termination Notification Date" means a date during the Floating Rate Period on which the Company elects to terminate the Floating Rate Period, which date shall be at least four Business Days prior to the Reference Reset Date on which such termination of the Floating Rate Period shall occur. "Floating Rate Remarketing Date" means June 15, 2003 in the event that the Company has elected to exercise its Floating Period Option. "Floating Rate Reset Period" means the period from and including the first Reference Rate Reset Date, to but excluding the next following Reference Rate Reset Date, and thereafter, the period from and including a Reference Rate Reset Date to but excluding the next following Reference Rate Reset Date; provided that the final Floating Rate Reset Period shall run to but exclude the Floating Period Termination Date. "Floating Rate Spread" means the lowest Floating Rate Bid expressed as a spread (in the form of a percentage or in basis points) above the Reference Rate for the ROARS, obtained by the Remarketing Dealer by 3:30 p.m., New York City time, on the Floating Rate 4 Spread Determination Date, from the Floating Rate Bids quoted to the Remarketing Dealer by up to five Reference Money Market Dealers. "Floating Rate Spread Determination Date" means the third Business Day prior to the Floating Rate Remarketing Date. "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 determination of the amount thereof. "Interest Payment Date" means: (a) with respect to the period from the Original Issue Date to but excluding the first Remarketing Date, June 15 and December 15 of each year, commencing December 15, 2001; (b) with respect to the period from and after the Fixed Rate Remarketing Date to the Stated Maturity Date, each day that is a six-month anniversary of such Fixed Rate Remarketing Date; and (c) with respect to the Floating Rate Period (if the Company exercises its Floating Period Option), each Reference Rate Reset Date following the first Remarketing Date. "Interest Rate to Maturity" means the sum of the Base Rate and the Applicable Spread. "London Business Day" means any day on which dealings in U.S. dollars are transacted in the London Inter-Bank Market. "Make-Whole Amount" means the excess, if any, of (i) the aggregate present value as of the date of such redemption of each dollar of principal being redeemed and the amount of interest (exclusive of interest accrued to the redemption date) that would have been payable in respect of such dollar if such prepayment had not been made, determined by discounting, on a semiannual basis, such principal and interest at the Reinvestment Rate (determined on the Business Day preceding the date of such redemption) from the respective dates on which such principal and interest would have been payable if such payment had not been made, over (ii) the aggregate principal amount of ROARS being redeemed. "Modified Maturity Date" shall have the meaning provided in Section 2.7 hereof. "Notification Date" means, with respect to the first Remarketing Date, a Business Day not earlier than 20 Business Days prior to the first Remarketing Date, and not later than 4:00 p.m., New York City time, on the fifteenth Business Day prior to the first Remarketing Date, or, with respect to the subsequent Remarketing Date, not later than four Business Days prior to the occurrence of the subsequent Remarketing Date, on which the Remarketing Dealer may notify the Company and the Trustee as to whether it elects to purchase the ROARS on such Remarketing Date. 5 "Original Issue Date" means June 5, 2001. "Primary Treasury Dealer" means a primary U.S. Government securities dealer. "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. "Reference Corporate Dealer" means each of up to five leading dealers of publicly traded debt securities, including the Company's debt securities, which shall be selected by the Company. The Company shall advise the Remarketing Dealer of its selection of Reference Corporate Dealers no later than five Business Days prior to the Fixed Rate Remarketing Date. One of such Reference Corporate Dealers selected by the Company will be Banc of America, if Banc of America is then the Remarketing Dealer. "Reference Dealer" means a Reference Corporate Dealer or a Reference Money Market Dealer. "Reference Money Market Dealer" means each of up to five leading dealers of publicly traded debt securities, including the Company's debt securities, which the Company shall select, who are also leading dealers in money market instruments. The Company shall advise the Remarketing Dealer of its selection of Reference Money Market Dealers no later than five Business Days prior to the Floating Rate Remarketing Date. One of such Reference Money Market Dealers selected by the Company will be Banc of America, if Banc of America is then the Remarketing Dealer. "Reference Rate" means the rate for each Floating Rate Reset Period which shall be the rate for deposits in U.S. dollars for a period of one month which appears on the Telerate Page 3750 (or any successor page) as of 11:00 a.m., London time, on the applicable Reference Rate Determination Date. If no rate appears on Telerate Page 3750 on the Reference Rate Determination Date, the Remarketing Dealer will request the principal London offices of four major reference banks in the London Inter-Bank Market, to provide the Remarketing Dealer, in the case of each such bank, with its offered quotations for deposits in U.S. dollars for the period of one month, commencing on the first day of the Floating Rate Reset Period, to prime banks in the London Inter-Bank Market at approximately 11:00 a.m., London time, on that Reference Rate Determination Date and in a principal amount that is representative for a single transaction in U.S. dollars in that market at that time. If at least two quotations are provided, then the Reference Rate will be the average of those quotations. If fewer than two quotations are provided, then the Reference Rate will be the average (rounded, if necessary, to the nearest one hundredth of a percent) of the rates quoted at approximately 11:00 a.m., New York City time, on the Reference Rate Determination Date by three major banks in New York City selected by the 6 Remarketing Dealer for loans in U.S. dollars to leading European banks, having a one-month maturity and in a principal amount that is representative for a single transaction in U.S. dollars in that market at that time. If the banks selected by the Remarketing Dealer are not providing quotations in the manner described in this paragraph, the rate for the Floating Rate Reset Period following the Reference Rate Determination Date will be the rate in effect on that Reference Rate Determination Date. "Reference Rate Determination Date" means the second London Business Day preceding each Reference Rate Reset Date. "Reference Rate Reset Date" means June 15, 2003 and the 15th day of each month thereafter until, but excluding, the Floating Period Termination Date, or, if such day does not fall on a Business Day, the next succeeding Business Day. "Reference Treasury Dealer" means each of up to five Primary Treasury Dealers to be selected by the Company, and their respective successors; provided that if any of the foregoing ceases to be, and has no affiliate that is, a Primary Treasury Dealer, the Company shall substitute for it another Primary Treasury Dealer. One of such Reference Treasury Dealers selected by the Company will be Banc of America, if Banc of America is then the Remarketing Dealer. "Reference Treasury Dealer Quotations" means, with respect to each Reference Treasury Dealer, the offer prices for the Comparable Treasury Issues (expressed in each case as a percentage of its principal amount) quoted in writing to the Remarketing Dealer by such Reference Treasury Dealer, by 3:30 p.m., New York City time, on the first Determination Date. "Regular Record Date" means, with respect to each Interest Payment Date, the close of business on the 15th calendar day, whether or not a Business Day, prior to such Interest Payment Date. "Reinvestment Rate" means 0.50% (one-half of one percent) plus the arithmetic mean of the yields under the respective headings "This Week" and "Last Week" published in the Statistical Release under the caption "Treasury Constant Maturities" for the maturity (rounded to the nearest month) corresponding to the maturity of the principal being prepaid. If no maturity exactly corresponds to such maturity, yields for the two published maturities most closely corresponding to such maturity shall be calculated pursuant to the immediately preceding sentence and the Reinvestment Rate shall be interpolated or extrapolated from such yields on a straight-line basis, rounding in each of such relevant periods to the nearest month. For the purpose of calculating the Reinvestment Rate, the most recent Statistical Release published prior to the date of determination of the Make-Whole Amount shall be used. "Remaining Scheduled Payments" means the remaining scheduled payments of the principal and interest on the ROARS, calculated at the Base Rate, that would be due from, but excluding, the first Remarketing Date to, and including, June 15, 2013; provided that if such Remarketing Date is not an Interest Payment Date, the amount of the next succeeding scheduled interest payment, calculated at the Base Rate, shall be reduced by the amount of interest accrued, calculated at the Base Rate only, to the first Remarketing Date. 7 "Remarketing Date(s)" means (1) June 15, 2003, in the event that the Remarketing Dealer has elected to purchase the ROARS and the Company has not elected to exercise its Floating Period Option, or (2) if the Company has elected to exercise its Floating Period Option, each of June 15, 2003 and the Floating Period Termination Date. "Remarketing Agreement" means the Remarketing Agreement dated as of June 5, 2001 between the Company and Banc of America Securities LLC, as the Remarketing Dealer, as amended from time to time. "Remarketing Dealer" means the Remarketing Dealer under the Remarketing Agreement, which Remarketing Dealer shall initially be Banc of America Securities LLC. "Stated Maturity Date" means June 15, 2013 or, if the Company elects to exercise its Floating Period Option and the ROARS are remarketed, the tenth anniversary of the Fixed Rate Remarketing Date; provided that such date shall not be later than June 15, 2014; and provided further that if the Company elects to shorten the maturity of the ROARS pursuant to Section 2.7 hereof, the Stated Maturity Date shall be the Modified Maturity Date. "Statistical Release" means the statistical release designated "H.15(519)" or any successor publication which is published weekly by the Federal Reserve System and which establishes yields on actively traded U.S. government securities adjusted to constant maturities or, if such statistical release is not published at the time of any determination under the Indenture, then such other reasonably comparable index which shall be designated by the Company. "Telerate Page 500" means the display designated as "Telerate Page 500" on Dow Jones Markets (or such other page as may replace "Telerate Page 500" on such service) or such other service displaying the offer prices for the Comparable Treasury Issues, as may replace Dow Jones Markets. "Telerate Page 3750" means the display designated as "Telerate Page 3750" on Dow Jones Markets (or such other page as may replace "Telerate Page 3750" on such service) or such other service displaying the offer prices, as may replace Dow Jones Markets. "Treasury Rate" means, with respect to the first Remarketing Date, the rate per year equal to the semiannual equivalent yield to maturity or interpolated (on a day count basis) yield to maturity of the Comparable Treasury Issues, assuming a price for the Comparable Treasury Issues (expressed as a percentage of their principal amounts) equal to the Comparable Treasury Price for such Remarketing Date. Article Two THE ROARS Section 2.1 FORM. The ROARS shall be substantially in the form of Exhibit A hereto, which is a part of this Eighth Supplemental Indenture, with such appropriate insertions, omissions, substitutions 8 and other variations as are required or permitted by the Indenture and this Eighth 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 ROARS, as evidenced by their execution of the ROARS. The ROARS will initially be issued as Registered Global Securities. The Company initially appoints The Depository Trust Company ("DTC") and the Trustee to act as Depositary and custodian, respectively, with respect to the ROARS. The Company waives any discretionary right it otherwise has under Section 2.7 of the Indenture to cause the ROARS to be issued in certificated form and agrees to use its reasonable best efforts to maintain the ROARS in book-entry form with DTC or any successor Depositary and to appoint a successor Depositary to the extent necessary to maintain the ROARS in book-entry form. Any Registered Global Security that is exchangeable pursuant to the preceding sentence shall be exchangeable for ROARS registered in such names as the Depositary shall direct. Section 2.2 DESIGNATION AND AMOUNT. (a) The ROARS shall be entitled the "7.375% Remarketable or Redeemable Securities (ROARSSM) due 2013" of the Company. (b) The Trustee shall authenticate and deliver ROARS for original issue on the date hereof in an initial aggregate principal amount of $200,000,000. (c) The Company may, subject to Article 4 of this Eighth Supplemental Indenture and applicable law, issue additional ROARS under this Eighth Supplemental Indenture. The ROARS issued on the Closing Date and any additional ROARS subsequently issued shall be treated as a single class for all purposes of this Eighth Supplemental Indenture. Section 2.3 PAYMENT OF PRINCIPAL AND INTEREST. (a) The principal of the ROARS shall be due on the Stated Maturity Date (unless the ROARS are earlier redeemed or repurchased). The ROARS shall bear interest at the rate of 7.375% per year, for the period from the Original Issue Date to but excluding the first Remarketing Date, such interest to be paid semiannually on December 15 and June 15 of each year, commencing December 15, 2001. Interest on the ROARS accruing to the first Remarketing Date shall be computed on the basis of a 360-day year of twelve 30-day months. (b) The ROARS shall bear interest from and after the Fixed Rate Remarketing Date at a rate per annum equal to the Interest Rate to Maturity, such interest to be paid semiannually on each day that is a six-month anniversary of such Fixed Rate Remarketing Date. Interest on the ROARS accruing from the Fixed Rate Remarketing Date shall be computed on the basis of a 360-day year consisting of twelve 30-day months. 9 (c) The ROARS shall bear interest during the Floating Rate Period at the Floating Period Interest Rate with respect to each Floating Rate Reset Period. The amount of interest payable for each day that the ROARS are outstanding during the Floating Rate Period shall be calculated by dividing the Floating Period Interest Rate in effect for such day by 360 and multiplying the result by the Dollar Price. The amount of interest payable for any Floating Rate Reset Period shall be calculated by adding the interest payable for each day in the Floating Rate Reset Period. Interest on the ROARS accruing during any Floating Rate Reset Period shall be payable on the next following Reference Rate Reset Date. Interest on the ROARS accruing during the Floating Rate Period shall be computed on the basis of the actual number of days in such Floating Rate Reset Period over a 360-day year. (d) Except as otherwise provided herein, interest on the ROARS payable on any Interest Payment Date shall be payable to the Persons in whose names the ROARS are registered on the Regular Record Date for such Interest Payment Date. Interest payable on any Interest Payment Date shall accrue from and including the next preceding Interest Payment Date (or from and including the Original Issue Date if no interest has been paid or duly provided with respect to the ROARS) to, but excluding, the relevant Interest Payment Date, Remarketing Date or the Stated Maturity Date, as the case may be. If any Interest Payment Date, the Stated Maturity Date or other payment date of the ROARS (including any payment date in connection with the mandatory tender or any mandatory redemption of the ROARS) does not fall on a Business Day, the payment otherwise payable on that date shall be made on the next succeeding day that is a Business Day with the same force and effect as if made on the date the payment was originally payable, and no interest shall accrue for the period from and after such Interest Payment Date, Stated Maturity Date or other payment date. In the case of any such payment with respect to the ROARS that then accrue interest at a floating rate, interest will accrue from such originally scheduled payment date to but excluding the next succeeding Business Day; provided that in the case of an interest payment due on the Stated Maturity Date, no interest will accrue from and after the Stated Maturity Date. Section 2.4 DENOMINATIONS. The ROARS shall be Registered Securities in denominations of $1,000 or any integral multiple thereof. Section 2.5 PLACE OF PAYMENT. The place of payment for the ROARS shall be the Borough of Manhattan, The City of New York. So long as the ROARS are in the form of Registered Global Securities, the Company agrees that payments of interest on, and any portion of the Principal of, the ROARS 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 2.6 MANDATORY TENDER; REMARKETING AND DETERMINATION OF INTEREST RATE. (a) Mandatory Tender. (i) On a Business Day not earlier than 20 Business Days prior to the first Remarketing Date, and not later than 4:00 p.m., New York City time, on 10 the 15th Business Day prior to such Remarketing Date or (ii) not later than four Business Days prior to the occurrence of the subsequent Remarketing Date, the Remarketing Dealer shall notify the Company and the Trustee as to whether it elects to purchase the ROARS for remarketing on such Remarketing Date. If the Remarketing Dealer so elects, the ROARS shall be subject to mandatory tender, and shall be deemed tendered, to the Remarketing Dealer for purchase and remarketing on such Remarketing Date, in accordance with the terms and subject to the conditions described herein. The ROARS shall be remarketed at a fixed rate of interest equal to the Interest Rate to Maturity, unless the Company has elected to exercise its Floating Period Option or redeem the ROARS on the applicable Remarketing Date. If the Company so elects, the ROARS shall bear interest at the Floating Period Interest Rate until the Floating Period Termination Date, at which time the ROARS shall be remarketed at a fixed rate of interest equal to the Interest Rate to Maturity unless the Company has chosen to redeem, or is required to redeem, the ROARS, as set forth herein. The purchase price of the tendered ROARS shall be equal to 100% of the aggregate principal amount thereof on the first Remarketing Date, or the Dollar Price on the subsequent Remarketing Date. Subject to the Remarketing Dealer's election to purchase the ROARS, the Remarketing Dealer shall sell the aggregate principal amount of the ROARS on the applicable Remarketing Date at the Dollar Price to the Reference Corporate Dealer providing the lowest Fixed Rate Bid (if the Remarketing Date constitutes a Fixed Rate Remarketing Date) or to the Reference Money Market Dealer providing the lowest Floating Rate Bid (if the Remarketing Date constitutes a Floating Rate Remarketing Date), in the case of the first Remarketing Date, or to the Reference Corporate Dealer providing the lowest Fixed Rate Bid, in the case of the subsequent Remarketing Date. If the lowest applicable Bid is submitted by two or more of the applicable Reference Dealers, the Remarketing Dealer shall sell such ROARS to one or more of such Reference Dealers, as it shall determine in its sole discretion. If the Remarketing Dealer elects to purchase the ROARS, the obligation of the Remarketing Dealer to purchase the ROARS on any Remarketing Date shall be subject to certain conditions set forth in the Remarketing Agreement. If for any reason the Remarketing Dealer does not purchase the ROARS on any Remarketing Date, the Company shall be required to redeem the ROARS in accordance with Section 3.1(a) hereof at a price equal to 100% of the aggregate principal amount of the ROARS, plus accrued and unpaid interest, if any, if such Remarketing Date is the first Remarketing Date, or at the Dollar Price, plus accrued and unpaid interest, if any, on the subsequent Remarketing Date. (b) Remarketing. The interest rates on the ROARS from, and including, the Remarketing Date shall be established by the Remarketing Dealer in accordance with the following procedures: 11 i. Interest Rate to Maturity. If the Remarketing Dealer elects to purchase the ROARS on the first Remarketing Date, then by 3:30 p.m., New York City time, on the Floating Rate Spread Determination Date or the Fixed Rate Determination Date with respect to the first Remarketing Date, depending on the following election, the Remarketing Dealer shall determine (1) the Floating Rate Spread, in the case that the Company has elected to exercise its Floating Period Option, or (2) the Interest Rate to Maturity to the nearest one hundredth of one percent (0.01%) per year unless the Company has elected to redeem the ROARS in accordance with Section 3.1(b), or is required to redeem the ROARS pursuant to Section 3.1(a). If there is a subsequent Remarketing Date, by 3:30 p.m., New York City time, on the related Fixed Rate Determination Date, the Remarketing Dealer shall determine the Interest Rate to Maturity to the nearest one hundredth of one percent (0.01%) per annum unless the Company elects or is required to redeem the ROARS as aforesaid. On the Floating Rate Spread Determination Date or the Fixed Rate Determination Date with respect to the first Remarketing Date, the Remarketing Dealer shall determine the Dollar Price. The Interest Rate to Maturity and the Dollar Price for the ROARS announced by the Remarketing Dealer, absent manifest error, shall be binding and conclusive upon the Holders, the holders of beneficial interests in the ROARS, the Company and the Trustee, and the Trustee shall have no responsibility for the calculation thereof. ii. Floating Rate Period. Following the Remarketing Dealer's election to purchase the ROARS on the first Remarketing Date, but prior to 4:00 p.m., New York City time, on the fourth Business Day immediately preceding such Remarketing Date, the Company may elect to exercise its Floating Period Option. If the Company makes such election, the ROARS shall bear interest at the Floating Period Interest Rate until the Floating Period Termination Date. In the event that the Company elects to exercise its Floating Period Option, the Stated Maturity Date of the ROARS shall be adjusted to a date which shall be no later than the tenth anniversary of the Fixed Rate Remarketing Date. iii. The amount of the interest payable for each day that the ROARS are outstanding during the Floating Rate Period shall be calculated by dividing the Floating Period Interest Rate in effect for such day by 360 and multiplying the result by the Dollar Price. The amount of interest payable for any Floating Rate Reset Period shall be calculated by adding the interest payable for each day in the Floating Rate Reset Period. The Floating Period Interest Rate for the ROARS announced by the Remarketing Dealer, absent manifest error, shall be binding and conclusive upon the Holders, the holders of beneficial interests in the ROARS, the Company and the Trustee, and the Trustee shall have no responsibility for the calculation thereof. The interest rate in effect with respect to each Floating Rate Reset Period shall be the Floating Period Interest Rate determined for such period on the preceding Reference Rate Determination Date. iv. Notification. Subject, in connection with the first Remarketing Date, to the Remarketing Dealer's election to remarket the ROARS and to the Company's election not to exercise its Floating Period Option, as set forth in this Section 2.6, and in connection with the subsequent Remarketing Date, to the Remarketing Dealer's election to remarket the ROARS, the Remarketing Dealer shall notify the Company, the Trustee 12 and the Depositary by telephone, confirmed in writing (which confirmation may be by facsimile or other electronic transmission), by 4:00 p.m., New York City time, on the Fixed Rate Determination Date of the Interest Rate to Maturity of the ROARS effective from and including the Fixed Rate Remarketing Date. The Remarketing Dealer shall notify the Trustee of the Dollar Price and of the Floating Period Interest Rate with respect to each Floating Rate Reset Period promptly after the determination thereof. The Company shall promptly notify the Remarketing Dealer and the Trustee of its election to exercise its Floating Period Option or to terminate the Floating Rate Period. v. Redetermination of Interest Rates in Certain Events. Notwithstanding any provision herein to the contrary, in lieu of terminating the Remarketing Agreement pursuant to Section 12(b) thereof, upon the occurrence of any of the events set forth therein, the Remarketing Dealer, in its sole discretion at any time between any Determination Date and 3:30 p.m., New York City time, on the Business Day immediately preceding the applicable Remarketing Date, may elect to purchase the ROARS for remarketing and determine a new Floating Period Interest Rate or Interest Rate to Maturity, as the case may be, in the manner provided in this Section 2.6, except that for purposes of determining the new Floating Period Interest Rate or Interest Rate to Maturity, as the case may be, pursuant to this paragraph the Determination Date referred to therein shall be the date of such election and redetermination. The Remarketing Dealer shall notify the Company, the Trustee and the Depositary by telephone, confirmed in writing (which confirmation may be by facsimile or other electronic transmission), by 4:00 p.m., New York City time, on the date of such election, of the new Floating Period Interest Rate or Interest Rate to Maturity, as the case may be, of the ROARS. Thereupon, such new Floating Period Interest Rate or Interest Rate to Maturity shall supersede and replace any Floating Period Interest Rate or Interest Rate to Maturity previously determined by the Remarketing Dealer and, absent manifest error, shall be binding and conclusive upon the Holders of, and holders of beneficial interests in, the ROARS on and after such Remarketing Date, the Company and the Trustee; provided that the Remarketing Dealer, by redetermining the Floating Period Interest Rate or Interest Rate to Maturity upon the occurrence of any event set forth in Section 12(b) of the Remarketing Agreement, shall not thereby be deemed to have waived its right to determine a new Floating Period Interest Rate or Interest Rate to Maturity or to terminate the Remarketing Agreement upon the occurrence of any other event set forth in such Section 12(b). Section 2.7 MODIFICATION OF MATURITY. The Company shall have the right to modify the maturity date of the ROARS by giving written notice to the Trustee and the Remarketing Dealer no later than by 4:00 p.m. on the fourth Business Day prior to the Fixed Rate Remarketing Date; provided that such modified maturity date (the "Modified Maturity Date") shall be an anniversary of such Fixed Rate Remarketing Date occurring on or prior to June 15, 2014. In the event that the Company gives a notice referred to in the immediately preceding sentence, the Stated Maturity Date of the ROARS shall be adjusted to the Modified Maturity Date. 13 Article Three REDEMPTION OF THE ROARS Section 3.1 MANDATORY REDEMPTION; OPTIONAL REDEMPTION; POST-REMARKETING OPTIONAL REDEMPTION. (a) Mandatory Redemption. Subject to Section 2.6(b)(v) hereof, the Company shall redeem the ROARS in whole on the applicable Remarketing Date at a price equal to 100% of the aggregate principal amount of the ROARS, if such Remarketing Date is the first Remarketing Date, or the Dollar Price on any subsequent Remarketing Date, plus, in each case, accrued and unpaid interest, if any, to such Remarketing Date, in the event that (i) at any time after the Remarketing Dealer elects on the applicable Notification Date to remarket such ROARS, the Remarketing Dealer elects to terminate the Remarketing Agreement in accordance with its terms; (ii) prior to any Remarketing Date, the Remarketing Dealer resigns and no successor has been appointed on or before such Determination Date; (iii) the Remarketing Dealer for any reason does not notify the Company of the Floating Rate Spread or of the Interest Rate to Maturity by 4:00 p.m., New York City time, on the applicable Determination Date; (iv) the Remarketing Dealer for any reason does not elect by notice to the Company and the Trustee not later than such Notification Date, to purchase the ROARS for remarketing on such Remarketing Date; (v) the Remarketing Dealer for any reason does not deliver the purchase price of such ROARS to the Trustee in same day funds not later than 12:00 noon, New York City time, on such Remarketing Date, or does not purchase all tendered ROARS on such Remarketing Date; or (vi) the Company for any reason fails to redeem the ROARS from the Remarketing Dealer following the Company's election to effect such optional redemption as set forth in Section 3.1(b) hereof. Notwithstanding Section 3.2 of the Indenture, the Company shall not be required to give notice of any such mandatory redemption to the Holders of, or the holders of beneficial interests in, the ROARS. (b) Optional Redemption. If the Remarketing Dealer elects to purchase the ROARS, the Company may at its option redeem the ROARS, in whole but not in part, on the first Remarketing Date or on the Floating Period Termination Date immediately following the Determination Date with respect to such election. The Company shall notify the Remarketing Dealer and the Trustee, not later than 4:00 p.m., New York City time, on the Business Day immediately preceding the applicable Determination Date if the Company elects to redeem the ROARS (which election shall be irrevocable) in accordance herewith; provided that if fewer than three Reference Corporate Dealers submit timely, firm bids for all outstanding ROARS to the Remarketing Dealer on the applicable Determination Date, the Company may give such notice immediately after the deadline set by the Remarketing Dealer for receiving such bids has passed and the Company has been notified of such results. If the Company exercises its right to redeem the ROARS, the Company shall redeem the ROARS, in whole but not in part, on the first Remarketing Date or the subsequent Remarketing Date, as the case may be, at the Dollar Price, plus all accrued and unpaid interest, if any, to such Remarketing Date. Notwithstanding Section 3.2 of the Indenture, no notice of redemption need be provided to the Holders of, or the holders of beneficial interests in, the ROARS with respect to any such redemption. 14 (c) Post-Remarketing Optional Redemption. The ROARS shall be redeemable, in whole or in part from time to time, at any time after the Fixed Rate Remarketing Date at the election of the Company upon not less than 30 nor more than 60 days notice mailed to each holder of ROARS to be redeemed at such holder's address appearing in the Security Register, at a price (the "Redemption Price") equal to the sum of (i) 100% of the principal amount thereof plus accrued and unpaid interest to the redemption date plus (ii) the Make-Whole Amount, if any. The Company shall give the Trustee notice of the Redemption Price with respect to any redemption pursuant to this Section 3.1(c) promptly after the calculation thereof and the Trustee shall have no responsibility for any such calculation. In the event of the redemption of the ROARS in part only, one or more new ROARS for the unredeemed portion shall be issued in the name or names of the Holders thereof upon surrender of the ROARS that are to be partially redeemed. (d) No sinking fund is provided for the ROARS. Article Four ADDITIONAL COVENANTS APPLICABLE TO THE ROARS Section 4.1 RESTRICTIONS ON SECURED DEBT. If the Company shall incur, issue, assume or guarantee any indebtedness for borrowed money represented by notes, bonds, debentures or other similar evidences of indebtedness, secured by a mortgage, pledge or other lien on any Principal Property or any capital stock or indebtedness held directly by the Company of any Subsidiary of the Company, the Company shall secure the ROARS equally and ratably with (or prior to) such indebtedness, so long as such indebtedness shall be so secured, unless after giving effect thereto the aggregate amount of all such indebtedness so secured, together with all Attributable Debt in respect of sale and leaseback transactions involving Principal Properties, would not exceed 15% of the Consolidated Net Assets of the Company. The foregoing restriction shall not apply to, and there shall be excluded in computing secured indebtedness for the purpose of such restriction, indebtedness secured by (a) property of any Subsidiary of the Company, (b) liens on property of, or on any shares of stock or debt of, any corporation existing at the time such corporation becomes a Subsidiary, (c) liens in favor of the Company or any Subsidiary, (d) liens in favor of U.S. or foreign governmental bodies to secure partial, progress, advance or other payments, (e) liens on property, shares of stock or debt existing at the time of acquisition thereof (including acquisition through merger or consolidation), purchase money mortgages and construction cost mortgages existing at or incurred within 180 days of the time of acquisition thereof, (f) liens existing on the first date on which any ROARS are 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 16 financings, and (i) any extension, renewal or replacement of any debt secured by any liens referred to in the foregoing clauses (a) through (h), inclusive. Section 4.2 RESTRICTIONS ON SALES AND LEASEBACKS. The Company shall not enter into any sale and leaseback transaction involving any Principal Property, the acquisition or completion of construction and commencement of full operation of which has occurred more than 180 days prior thereto, unless (a) the Company could incur a lien on such property under the restrictions described in Section 4.1 hereof in an amount equal to the Attributable Debt with respect to the sale and leaseback transaction without equally and ratably securing the ROARS 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 ROARS 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 ROARS, 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. Section 4.3 AMENDMENTS; MODIFICATIONS. The Company covenants, for the benefit of the Remarketing Dealer only, that this Eighth Supplemental Indenture shall not be amended for the purpose of changing any of the terms or provisions of the ROARS or changing any other provisions of this Eighth Supplemental Indenture without the prior written consent of the Remarketing Dealer (it being understood that, notwithstanding the provisions of this Section 4.3, the Company shall not be precluded from amending the Indenture in any manner whatsoever so long as the amendment does not pertain exclusively to the ROARS). Section 4.4 PURCHASES BY THE COMPANY. The Company agrees that it shall not, without the prior written consent of the Remarketing Dealer, make any open market or other purchases of the ROARS prior to the first Remarketing Date or termination of the Remarketing Agreement, whichever is earlier. Section 4.5 TAX TREATMENT OF ROARS. It is the intent of the Company, that for purposes of United States federal income, state and local income and any other income taxes, the ROARS will be treated as fixed rate debt instruments maturing on the first Remarketing Date. Unless otherwise required by the appropriate tax authorities, the Company and the Trustee will treat the ROARS consistent with their characterization. 16 Article Five ADDITIONAL EVENTS OF DEFAULT APPLICABLE TO THE ROARS Section 5.1 ADDITIONAL EVENTS OF DEFAULT. Pursuant to Section 6.1 (f) of the Indenture, an "Event of Default" shall be deemed to occur with respect to the ROARS 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 Eighth Supplemental Indenture or shall thereafter have outstanding any indebtedness, shall happen and be continuing and either (a) 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 (b) 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 by the holders of not less than 25% in the aggregate principal amount of the ROARS at the time outstanding; and provided further that if such default shall be remedied or cured by the Company or waived by the holder of such indebtedness, then the Event of Default described under this Eighth 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 ROARS or any other person. Article Six MISCELLANEOUS PROVISIONS Section 6.1 RATIFICATION. The Indenture, as supplemented by this Eighth Supplemental Indenture, is in all respects ratified and confirmed. This Eighth Supplemental Indenture shall be deemed part of the Indenture in the manner and to the extent provided herein and therein. Section 6.2 COUNTERPARTS. This Eighth 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. 17 IN WITNESS WHEREOF, the parties hereto have caused this Eighth 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. THE AES CORPORATION, as the Company By: --------------------------------- Name: Title: Attest: By: ------------------------------- Name: Title: BANK ONE, NATIONAL ASSOCIATION (formerly known as THE FIRST NATIONAL BANK OF CHICAGO), as Trustee ---------------------------------- Name: Title: Attest: By: --------------------------------- Name: Title: 18 EXHIBIT A FORM OF FACE OF ROARS This 7.375% Remarketable or Redeemable Securities (ROARSSM) due 2013 (this "Security") is a Registered Global Security within the meaning of the Indenture hereinafter referred to and is registered in the name of a Depositary or a nominee of a Depositary. This Security is exchangeable for Securities registered in the name of a person other than the Depositary or its nominee only in the limited circumstances described in the Indenture. Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depositary to the nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. Unless this Security is presented by an authorized representative of The Depository Trust Company (55 Water Street, New York, New York) to the issuer or its agent for registration of transfer, exchange or payment, and any Security issued is registered in the name of Cede & Co. or such other name as requested by an authorized representative of The Depository Trust Company and any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein. By purchasing this Security, you agree to treat, and to take no action inconsistent with the treatment of, the ROARS as fixed rate debt instruments that mature on the first Remarketing Date, unless required by the appropriate tax authorities. A-1 No . 1 CUSIP NO.: 00130H AW 5 $200,000,000 7.375% REMARKETABLE OR REDEEMABLE SECURITIES (ROARSSM) DUE 2013 THE AES CORPORATION promises to pay to Cede & Co., or registered assigns the principal sum of TWO HUNDRED MILLION Dollars ($200,000,000) on the Stated Maturity Date (as defined herein). Original Issue Date: June 5, 2001 First Remarketing Date: June 15, 2003 Stated Maturity Date: June 15, 2013, as such date may be extended or shortened, in each case as set forth in the Indenture Interest Payment Dates: June 15 and December 15 of each year, commencing December 15, 2001 through the Remarketing Date shown above and thereafter as set forth herein Record Dates: June 1 and December 1 By: ---------------------------------- Authorized Signature By: ---------------------------------- Authorized Signature Dated: June 5, 2001 Certificate of Authentication This is one of the 7.375% Remarketable or Redeemable Securities (ROARSSM) due 2013 referred to in the within-mentioned Indenture. Bank One, National Association (formerly known as The First National Bank of Chicago), as Trustee By: ---------------------------------- Authorized Signatory A-2 [FORM OF REVERSE OF ROARS] THE AES CORPORATION 7.375% REMARKETABLE OR REDEEMABLE SECURITIES (ROARSSM) DUE 2013 i. Principal and 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. Interest on the 7.375% Remarketable or Redeemable Securities (ROARSSM) due 2013 ("ROARS"; and this note certificate representing ROARS, this "Security") will accrue from and including the most recent date to which interest has been paid or, if no interest has been paid, from the Original Issue Date shown on the reverse hereof, on each Interest Payment Date shown on the reverse hereof (each, an "Interest Payment Date") semiannually in arrears commencing on the Interest Payment Date specified above to the Remarketing Date shown on the reverse hereof (the "first Remarketing Date") at a rate of 7.375% per annum (the "Interest Rate") and thereafter, subject to the terms and conditions set forth in the Indenture, on the Interest Payment Dates and at the interest rate or rates determined by the Remarketing Dealer (as defined below) as set forth in the Indenture, until the principal hereof is paid or made available for payment, and on any overdue principal and on any overdue installment of interest as below provided. Payments of interest on this Security will include interest accrued to but excluding the respective Interest Payment Dates. Interest on this Security shall be computed on the basis of a 360-day year of twelve 30-day months from the Original Issue Date to the first Remarketing Date and then, subject to the Remarketing Dealer's election to remarket and the Corporation's election to exercise its Floating Period Option, interest on this Security shall be computed on the basis of the actual number of days in the applicable Floating Rate Reset Period over a 360-day year until the Fixed Rate Remarketing Date. Interest shall be computed on the basis of a 360-day year of twelve 30-day months from the Fixed Rate Remarketing to the Stated Maturity Date. If any Interest Payment Date, the Stated Maturity Date or other payment date of this Security (including any payment date in connection with the mandatory tender or any mandatory redemption of this Security) does not fall on a Business Day, the payment otherwise payable on that date shall be made on the next succeeding day that is a Business Day with the same force and effect as if made on the date the payment was originally payable, and no interest shall accrue for the period from and after such Interest Payment Date, Stated Maturity Date or other payment date, except in the case of an Interest Payment Date or other payment date occurring during the Floating Rate Period. ii. Method of Payment. The Company will pay interest on the ROARS (except defaulted interest) to the Persons who are registered Holders of ROARS at the close of business on the fifteenth calendar day preceding each Interest Payment Date (each, a "Regular Record Date"). Holders must surrender ROARS to a Paying Agent to collect principal payments. The Company will pay principal and interest in money of the United States that at the A-3 time of payment is legal tender for payment of public and private debts. At the Company's option, interest may be paid by check mailed to the registered address of the Holder of this Security. iii. Paying Agent and Registrar. Initially, Bank One, National Association (formerly known as The First National Bank of Chicago) (the "Trustee") will act as Paying Agent and Registrar. The Company may change any Paying Agent, Registrar or co-Registrar without notice. iv. Indenture. The Company issued the ROARS under an Indenture dated as of December 8, 1998 between the Company and the Trustee as supplemented by the Eighth Supplemental Indenture dated as of June 5, 2001 between the Company and the Trustee (said Indenture, as so supplemented, the "Indenture"). This Security is one of an issue of Securities of the Company issued under the Indenture. The terms of the ROARS 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 ss.ss. 77aaa-77bbbb) as amended from time to time. The ROARS are subject to all such terms, and Holders of the ROARS 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 ROARS are general unsecured and unsubordinated obligations of the Company ranking pari passu with all of the Company's unsecured and unsubordinated obligations. The Company may, subject to Article Four of the Eighth Supplemental Indenture and applicable law, issue additional ROARS under the Eighth Supplemental Indenture. The ROARS issued on the Closing Date and any additional ROARS subsequently issued shall be treated as a single class for all purposes of the Eighth Supplemental Indenture. The Indenture limits the ability of the Company to incur certain secured indebtedness and to enter into certain sale and leaseback transactions. v. Remarketing Agreement. Certain provisions relating to the remarketing of the ROARS which are set forth in the Indenture are contained in a Remarketing Agreement (the "Remarketing Agreement") between the Corporation and Banc of America Securities LLC, as Remarketing Dealer (with any successor Remarketing Dealer, the "Remarketing Dealer"). vi. Mandatory Tender. The ROARS are subject to mandatory tender, and shall be deemed tendered, to the Remarketing Dealer for purchase and remarketing, in accordance with the terms and subject to the conditions described in the Indenture. vii. Mandatory Redemption. The ROARS are subject to mandatory redemption in accordance with the terms and subject to the conditions described in the Indenture. viii. Optional Redemption. The ROARS are subject to redemption at the election of the Company as set forth in the Indenture. ix. Sinking Fund. No sinking fund is provided for the ROARS. x. Denominations, Transfer, Exchange. The ROARS are in registered form without coupons in denominations of $1,000 and integral multiples of $1,000. A Holder may transfer or exchange ROARS in accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to A-4 pay to it any taxes and fees required by law or permitted by the Indenture. The Registrar need not transfer or exchange any ROARS or portion thereof selected for redemption, or transfer or exchange any ROARS for a period of 15 days before selection of such ROARS to be redeemed. xi. Persons Deemed Owners. The registered holder of a Security may be treated as the owner of it for all purposes. xii. 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. xiii. Amendment, Supplement, Waiver. The Company and the Trustee may, without the consent of the holders of any outstanding ROARS, amend, waive or supplement the Indenture or the ROARS 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 ROARS 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 ROARS or the Remarketing Dealer as described in the Indenture. xiv. Successor Corporation. When a successor corporation assumes all the obligations of its predecessor under the ROARS and the Indenture and the transaction complies with the terms of Article 5 of the Indenture, the predecessor corporation, subject to certain exceptions, will be released from those obligations. xv. 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 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 ROARS may, or the Trustee may, 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 Indenture with respect to the Company occurs and is continuing, the principal of and accrued interest on all of the ROARS 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 ROARS may not enforce the Indenture or the ROARS except as provided in the Indenture. The Trustee may require indemnity reasonably satisfactory to it before it enforces the Indenture or the ROARS. Subject to certain limitations, Holders of a majority in principal amount of the then outstanding ROARS may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of the ROARS notice of any continuing default (except a default in payment of principal or interest or a failure to comply with Article 5 of the Indenture) if it determines in good faith that withholding notice is in their interests. The Company must furnish an annual compliance certificate to the Trustee. A-5 xvi. 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. xvii. 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 ROARS 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 ROARS by accepting a Security waives and releases all such liability. The waiver and release are part of the consideration for the issue of the ROARS. xviii. Defeasance. The Indenture contains provisions (which provisions apply to this Security) for defeasance at any time of (a) the entire indebtedness of the Company in respect of this Security 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. xix. Authentication. This Security shall not be valid until the Trustee signs the certificate of authentication on the other side of this Security. xx. Abbreviations. Customary abbreviations may be used in the name of a Holder of ROARS 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). xxi. GOVERNING LAW. THE INDENTURE AND THIS SECURITY 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. The Company will furnish to any Holder of ROARS upon written request and without charge a copy of the Indenture. Requests may be made to: THE AES CORPORATION 1001 North 19th Street, Suite 2000 Arlington, Virginia 22209 Telephone: (703) 522-1315 Telecopy: (703) 528-4510 Attention: General Counsel A-6 ASSIGNMENT FORM If you the holder want to assign this Security, fill in the form below and have your signature guaranteed: I or we assign and transfer this Security to ------------------------------- - -------------------------------------------------------------------------------- (Insert assignee's social security or tax ID number) ----------------------------- - -------------------------------------------------------------------------------- (Print or type assignee's name, address and zip code) and irrevocably appoint ______________________________ agent to transfer this Security on the books of the Company. The agent may substitute another to act for him. - ------------------------------------------------------------------------------- Date: Your signature: ------------------------ ------------------------------- (Sign exactly as your name appears on the other side of this Security) Signature Guarantee: ------------------------------------------------------------ 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. EX-4.3 4 jun0401_ex0403.txt REMARKETING AGREEMENT, dated as of June 5, 2001 (the "Remarketing Agreement"), between: The AES Corporation, a Delaware corporation (the "Company"); and Banc of America Securities LLC ("Banc of America" and, in its capacity as the remarketing dealer hereunder, the "Remarketing Dealer"). WHEREAS, the Company has issued $200,000,000 aggregate principal amount of its 7.375% Remarketable or Redeemable Securities (ROARSSM) 1 due 2013 (the "ROARS") pursuant to an Indenture, dated as of December 8, 1998, as supplemented by a supplemental indenture, dated as of June 5, 2001 (as supplemented, the "Indenture"), between the Company and Bank One, National Association (formerly known as The First National Bank of Chicago), as trustee (in such capacity, the "Trustee"); and WHEREAS, the ROARS are being sold initially pursuant to an underwriting agreement, dated May 31, 2001 (the "Underwriting Agreement"), among the Company, Banc of America Securities LLC, Credit Suisse First Boston Corporation, Lehman Brothers Inc., Salomon Smith Barney Inc. and ABN AMRO Incorporated (collectively, the "Underwriters"); WHEREAS, the ROARS will be offered and sold to the Underwriters as registered securities under the Securities Act of 1933, as amended (the "1933 Act"); WHEREAS, the Company has prepared and filed with the Securities and Exchange Commission (the "Commission") a registration statement on Form S-3 (the "Registration Statement") relating to, among other things, certain debt securities, common stock, par value $.01 per share, of the Company and preferred stock, no par value, of the Company, at the time the Registration Statement became effective, of which the prospectus dated May 26, 2000 (the "Prospectus") was a part; WHEREAS, the Company has prepared a preliminary prospectus supplement dated May 29, 2001 (the "Preliminary Prospectus Supplement") and a final prospectus supplement dated May 31, 2001 (the "Prospectus Supplement") relating to the offer and sale of the ROARS (the "Offering") (as used herein, the term "Offering Document" shall be deemed to include the Prospectus Supplement, the Prospectus and all documents incorporated therein by reference, as from time to time amended or supplemented pursuant to the 1933 Act or the Securities Exchange Act of 1934, as amended (the "1934 Act"), except that if any new or revised prospectus or prospectus supplement shall be provided to the Remarketing Dealer by the Company for use in connection with the remarketing of the ROARS which differs from the Prospectus or the Prospectus Supplement, the term "Offering Document" shall refer to such new or revised prospectus or prospectus supplement, as the case may be, from and after the time it is first provided to the Remarketing Dealer for such use); and WHEREAS, Banc of America is prepared to act as the Remarketing Dealer with respect to the remarketing of the ROARS on any Remarketing Date (as defined herein) pursuant to the terms of, but subject to the conditions set forth in, this Agreement; - --------------------------- 1 (SM)Service mark of Banc of America Securities LLC NOW, THEREFORE, for and in consideration of the covenants herein made, and subject to the conditions set forth herein, the parties hereto agree as follows: Section 1. Definitions. Capitalized terms used and not defined in this Agreement shall have the meanings assigned to them in the Indenture (including in the form of each of the ROARS issued thereunder). Section 2. Representations and Warranties. (a) The Company represents and warrants to the Remarketing Dealer as of the date hereof, any Notification Date (as defined below), any Determination Date (as defined below), any Remarketing Date and until the 60th day after each such dates (each of the foregoing dates being hereinafter referred to as a "Representation Date"), that (i) it has made all the filings with the Commission, if any, that it is required to make under the 1934 Act and the rules and regulations thereunder (the "1934 Act Regulations") (collectively, the "1934 Act Documents"), (ii) each 1934 Act Document complies, or will comply, as the case may be, when filed, in all material respects with the requirements of the 1934 Act and 1934 Act Regulations, and each 1934 Act Document did not at the time of filing with the Commission, and as of each Representation Date (except to the extent corrected by a later filed 1934 Act Document that is filed before such Representation Date), will not include an 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, in the light of the circumstances under which they were made, not misleading, (iii) the applicable Remarketing Materials (as defined herein) will not, as of the Remarketing Date and each date thereafter, if any, that the Remarketing Dealer is required by applicable law to deliver Remarketing Materials in connection with the delivery of the ROARS, include an 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, in the light of the circumstances under which they were made, not misleading, (iv) no consent, approval, authorization, order or decree of any court or governmental agency or body, excluding a possible Registration Statement, is required for the consummation by the Company of the transactions contemplated by this Agreement or in connection with the remarketing of the ROARS pursuant hereto, except such as have been or shall have been obtained or rendered, as the case may be and (v) the representations and warranties contained in the Underwriting Agreement are true and correct with the same force and effect as though expressly made at and as of such Representation Date; provided that therein, all references to Remarketing Materials shall mean the Remarketing Materials, as amended or supplemented at such time. 2 (b) Any certificate signed by any director or officer of the Company and delivered to the Remarketing Dealer or to counsel for the Remarketing Dealer in connection with the remarketing of the ROARS shall be deemed a representation and warranty by the Company to the Remarketing Dealer as to the matters covered thereby. Section 3. Covenants of the Company. The Company covenants with the Remarketing Dealer as follows: (a) The Company will provide prompt notice by telephone, confirmed in writing (which may include facsimile or other electronic transmission), to the Remarketing Dealer (A) upon the occurrence of an Event of Default with respect to the ROARS and (B) if any of the following events occurs or is continuing during the 45 days preceding a Remarketing Date: (i) any notification or announcement by a "nationally recognized statistical rating agency" (as defined by the Commission for purposes of Rule 436(g)(2) under the 1933 Act) with regard to the ratings of any securities of the Company, including, without limitation, notification or announcement of a downgrade in or withdrawal of the rating of any security of the Company or notification or announcement of a downgrade in or withdrawal of the rating of any security of the Company under surveillance or review, including placement on what is currently called a "watch list" or a "credit watch" with negative implications, or (ii) any event set forth in Section 9(d) of this Agreement. (b) The Company will furnish to the Remarketing Dealer: (i) the Offering Document relating to the ROARS (including in each case any amendment or supplement thereto and each document incorporated therein by reference as soon as practicable when they become available); and (ii) in connection with the remarketing of ROARS, such other information as the Remarketing Dealer may reasonably request from time to time and, with the Company's prior written consent (such consent not to be unreasonably withheld), provide to potential investors in connection with the remarketing. The Company agrees to provide the Remarketing Dealer with as many copies of the foregoing written materials and other Company-approved information as the Remarketing Dealer may reasonably request for use in connection with the remarketing of the ROARS and consents to the use thereof for such purpose. (c) If, during the period that is 45 days prior to any Remarketing Date, any event or condition known to the Company relating to or affecting the Company, any subsidiary thereof or the ROARS shall occur which could reasonably be expected to cause the Offering Document or any of the reports, documents, materials or information referred to in paragraph (b)(i) above or any document incorporated therein by reference (collectively, the "Remarketing Materials") to contain an untrue statement of a material fact or omit to state a material fact, the 3 Company shall promptly notify the Remarketing Dealer in writing of the circumstances and details of such event or condition. (d) Prior to the Fixed Rate Remarketing Date, the Company will file all documents required to be filed with the Commission pursuant to the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations. (e) The Company will comply with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations and the 1939 Act and the rules and regulations of the Commission thereunder so as to permit the completion of the remarketing of the ROARS as contemplated in this Agreement and in each Offering Document. If, at any time when an Offering Document is required by the 1933 Act to be delivered in connection with sales of the ROARS, any event shall occur or condition shall exist as a result of which it is necessary, in the reasonable opinion of counsel for the Remarketing Dealer or for the Company, to amend an Offering Document in order that such Offering Document will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser or, if it shall be necessary, in the opinion of such counsel, at any such time to amend an Offering Document or file a new registration statement or amend or supplement any Offering Document or issue a new prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations and the Commission's interpretations of the 1933 Act and the 1933 Act Regulations, the Company, at its expense, will promptly (i) prepare and file with the Commission such amendment or supplement as may be necessary to correct such statement or omission or to make the Offering Document comply with such requirements, or prepare and file any such new registration statement and prospectus as may be necessary for such purpose, (ii) furnish to the Remarketing Dealer such number of copies of such amendment, supplement or other document as the Remarketing Dealer may reasonably request; provided that (a) the Company shall be obligated to perform the agreements set forth in (i) and (ii) above during the period ending on the 45th Business Day after the Remarketing Date, and (b) subsequent to the 45th Business Day after the Remarketing Date, the Company may suspend its obligation to comply with the agreements set forth in (i) and (ii) above and the Remarketing Dealer shall suspend the use of the Prospectus or any sales of the ROARS that would require the delivery of a prospectus under the 1933 Act if (x) in the reasonable opinion of counsel to the Company, the Company would be required to amend the Registration Statement or amend or supplement any Prospectus to disclose (A) information relating to corporate developments or business transactions involving the Company or its subsidiaries that is not otherwise then required by law to be publicly disclosed, or (B) financial or other information relating to parties to such business transactions that is not readily available to the Company, and (y) in the good faith judgment of the Chief Executive Officer or Chief Financial Officer of the Company, such disclosure at such time could materially and adversely affect the Company or any such corporate development or business transaction contemplated by the Company or its subsidiaries, or such disclosure would be unduly burdensome or impracticable for the Company to provide. If the Remarketing Dealer has elected to remarket the ROARS and the Company has not elected to redeem the ROARS, and if as of the Remarketing Date the Company is obligated, pursuant to the preceding provisions of this 4 paragraph, to file and have declared effective a new registration statement or to provide the Remarketing Dealer with a Prospectus, then the Company shall, at its expense, on the Remarketing Date furnish to the Remarketing Dealer an officers' certificate, an opinion, including a statement as to the absence of material misstatements in or omissions from the Registration Statement and the Prospectus of counsel for the Company satisfactory to the Remarketing Dealer and a "comfort letter" from the Company's independent accountants, in each case in form and substance satisfactory to the Remarketing Dealer, of the same tenor as the officers' certificate, opinion and comfort letter, respectively, delivered pursuant to the Underwriting Agreement, but modified to relate to the Registration Statement and each Prospectus as amended or supplemented to the date thereof or such new registration statement and prospectus. (f) The Company agrees that neither it nor any of its subsidiaries or affiliates shall, without the prior written consent of the Remarketing Dealer, purchase or otherwise acquire, or enter into any agreement to purchase or otherwise acquire, any of the ROARS prior to the remarketing thereof by the Remarketing Dealer, other than pursuant to Section 4(h) or 4(i) of this Agreement. (g) The Company will comply with each of the covenants set forth in the Underwriting Agreement through the final Remarketing Date. Section 4. Appointment and Obligations of the Remarketing Dealer. (a) Unless this Agreement is otherwise terminated in accordance with Section 12 hereof, in accordance with the terms, but subject to the following conditions, of this Agreement, the Company hereby appoints Banc of America, and Banc of America hereby accepts such appointment, as the exclusive Remarketing Dealer with respect to $200,000,000 aggregate principal amount of ROARS, subject to the repurchase of ROARS in accordance with clause (h) of this Section 4 or redemption of ROARS in accordance with clause (i) of this Section 4. (b) It is expressly understood and agreed by the parties hereto that the obligations of the Remarketing Dealer hereunder with respect to the ROARS to be remarketed on a Remarketing Date are conditioned on (i) the issuance and delivery of such ROARS by the Company pursuant to the terms and conditions of the Underwriting Agreement and (ii) the Remarketing Dealer's election on the Notification Date (as defined below) to purchase such ROARS for remarketing. It is further expressly understood and agreed by and between the parties hereto that, if the Remarketing Dealer has elected to remarket the ROARS pursuant to clause (c) below, the Remarketing Dealer shall not be obligated to set the Interest Rate to Maturity (as defined below), or the Floating Period Interest Rate (as defined below) on any of the ROARS, to remarket any of the ROARS or to perform any of the other duties set forth herein at any time after the Notification Date for such ROARS in the event that (i) any of the conditions set forth in clause (a), (b) or (c) of Section 9 hereof shall not have been fully and completely met to the satisfaction of the Remarketing Dealer, or (ii) any of the events set forth in clause (d) of Section 9 hereof shall have occurred. 5 (c) On a Business Day not earlier than 20 Business Days prior to the first Remarketing Date and not later than 4:00 p.m., New York City time, on the 15th Business Day prior to the first Remarketing Date, the Remarketing Dealer will notify the Company and the Trustee as to whether it elects to purchase the ROARS on such Remarketing Date (the "Notification Date"). If, and only if, the Remarketing Dealer so elects, such ROARS shall be subject to mandatory tender to the Remarketing Dealer for purchase and remarketing on such Remarketing Date, upon the terms and subject to the conditions described herein. The ROARS will be remarketed at a fixed rate of interest, unless, on any date subsequent to the Remarketing Dealer's election to purchase the ROARS but prior to the fourth Business Day prior to the first Remarketing Date (the "Floating Period Notification Date") the Company has elected to exercise its Floating Period Option, in which case the ROARS will be remarketed at a floating rate and bear interest at the Floating Period Interest Rate until such a date (the "Floating Period Termination Date") which is June 15, 2004 or the Reference Rate Reset Date following the date on which the Company elects to terminate such floating rate period (the "Floating Rate Period Termination Notification Date," which Floating Rate Period Termination Notification Date shall be at least four Business Days prior to such Reference Rate Reset Date), whichever is sooner, at which time the ROARS will be remarketed at a fixed rate of interest unless the Company has chosen to redeem, or is required to redeem, the ROARS. The purchase price of such tendered ROARS shall be equal to 100% of the aggregate principal amount thereof on the first Remarketing Date or the Dollar Price on the subsequent Remarketing Date. (d) Subject to the Remarketing Dealer's election to remarket the ROARS as provided in clause (c) above, by 3:30 p.m., New York City time, on the third Business Day immediately preceding any Remarketing Date (the "Floating Rate Spread Determination Date" or the "Fixed Rate Determination Date" depending on the following election, and each a "Determination Date") the Remarketing Dealer shall determine the Floating Rate Spread in the case that the Company has elected the Floating Period Option or otherwise the Interest Rate to Maturity to the nearest one hundredth of one percent (0.01%) per annum unless the Company has chosen to redeem, or is required to redeem, the ROARS. Each Floating Period Interest Rate will equal the sum of a Reference Rate (as defined below) and the Floating Rate Spread (as defined below). The Interest Rate to Maturity shall be equal to the sum of 5.50% (the "Base Rate") and the Applicable Spread (as defined below), which will be based on the Dollar Price (as defined below) of the ROARS. "Applicable Spread" shall be the lowest Fixed Rate Bid (as defined below), expressed as a spread (in the form of a percentage or in basis points) above the Base Rate for the ROARS, obtained by the Remarketing Dealer at 3:30 p.m., New York City time, on the Fixed Rate Determination Date from the Fixed Rate Bids quoted to the Remarketing Dealer by up to five Reference Corporate Dealers (as defined below). A "Fixed Rate Bid" will be an irrevocable offer to purchase the total aggregate outstanding principal amount of the ROARS at the Dollar Price (as defined below), but assuming (i) a settlement date that is the Fixed Rate Remarketing Date applicable to such ROARS, without accrued interest, (ii) a maturity date that is the tenth anniversary of the Fixed 6 Rate Remarketing Date or, if the Company elects to modify the maturity date of the ROARS by giving written notice to the Remarketing Dealer no later than by 4:00 p.m. on the fourth Business Days prior to the Fixed Rate Remarketing Date, the maturity date specified by the Company in such notice, which date shall be an anniversary of the Fixed Rate Remarketing Date occurring on or prior to June 15, 2014, and (iii) a stated annual interest rate equal to the relevant Base Rate plus the spread bid by the applicable Reference Corporate Dealer (as defined below). The Interest Rate to Maturity for the ROARS announced by the Remarketing Dealer, absent manifest error, shall be binding and conclusive upon the holders of beneficial interests in the ROARS (the "Beneficial Owners"), the Company and the Trustee. "Business Day" means any day other than a Saturday or Sunday or a day on which banking institutions in New York City are authorized or obligated by law or executive order to close. "Comparable Treasury Issues" for the ROARS means the U.S. Treasury security or securities selected by the Remarketing Dealer, as of the first Determination Date, as having an actual or interpolated maturity or maturities comparable to the remaining term of the ROARS being purchased by the Remarketing Dealer. "Comparable Treasury Price" means, with respect to the first Remarketing Date, (i) the offer prices for the Comparable Treasury Issues (expressed in each case as a percentage of its principal amount) at 12:00 noon, New York City time, on the first Determination Date, as set forth on "Telerate Page 500" (as defined below) (or such other page as may replace "Telerate Page 500"), or (ii) if such page (or any successor page) is not displayed or does not contain such offer prices on such Determination Date, (A) the average of the Reference Treasury Dealer Quotations (as defined below) for such Determination Date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (B) if the Remarketing Dealer obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such Reference Treasury Dealer Quotations. "Telerate Page 500" means the display designated as "Telerate Page 500" on Dow Jones Markets (or such other page as may replace Telerate Page 500 on such service) or such other service displaying the offer prices specified in clause (i) above as may replace Dow Jones Markets. "Reference Treasury Dealer Quotations" means, with respect to each Reference Treasury Dealer (as defined below), the offer prices for the Comparable Treasury Issues (expressed in each case as a percentage of its principal amount) quoted in writing to the Remarketing Dealer by such Reference Treasury Dealer by 3:30 p.m., New York City time, on the first Determination Date. "Dollar Price" means, with respect to the ROARS (i) the principal amount of such ROARS, plus (ii) the premium equal to the excess, if any, of (A) the present value, as of the first Remarketing Date, of the Remaining Scheduled Payments (as defined below) for such ROARS discounted to such first Remarketing Date on a semi-annual basis 7 (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below), over (B) the principal amount of such ROARS. "Fixed Rate Determination Date" means the third Business Day prior to the Fixed Rate Remarketing Date. "Fixed Rate Remarketing Date" means the first Remarketing Date, assuming the Remarketing Dealer has elected to purchase the ROARS and the Company has not elected to exercise its Floating Period Option, or the subsequent Remarketing Date in the event that the Company has elected to exercise its Floating Period Option. "Floating Period Interest Rate" means the sum of the Reference Rate and the Floating Rate Spread. "Floating Period Option" means the Company's right, on any date subsequent to the Remarketing Dealer's election to purchase the ROARS but prior to the fourth Business Day immediately preceding the first Remarketing Date, to require the Remarketing Dealer to remarket the ROARS at the Floating Period Interest Rate. "Floating Rate Period" means the period from (and including) the Floating Rate Remarketing Date to (but excluding) the Floating Period Termination Date. "Floating Rate Remarketing Date" means June 15, 2003, in the event the Company has elected to exercise its Floating Period Option. "Floating Rate Reset Period" means the period from (and including) the first Reference Rate Reset Date to (but excluding) the next following Reference Rate Reset Date and thereafter the period from (and including) a Reference Rate Reset Date to (but excluding) the next following Reference Rate Reset Date; provided that the final Floating Rate Reset Period shall run to (but exclude) the Floating Period Termination Date. "Floating Rate Spread" shall be the lowest Floating Rate Bid expressed as a spread (in the form of a percentage or in basis points) above the Reference Rate for the ROARS, obtained by the Remarketing Dealer at 3:30 p.m., New York City time, on the Floating Rate Spread Determination Date from the Floating Rate Bids quoted to the Remarketing Dealer by up to five Reference Money Market Dealers (as defined below). A "Floating Rate Bid" will be an irrevocable offer to purchase the total aggregate outstanding principal amount of the ROARS at the Dollar Price, but assuming (i) a settlement date that is the Floating Rate Remarketing Date applicable to such ROARS, without accrued interest, (ii) a maturity date equal to the Floating Period Termination Date, (iii) a stated annual interest rate equal to the Reference Rate plus the spread bid by such Reference Money Market Dealer, (iv) that the ROARS are callable by the Remarketing Dealer, at the Dollar Price on the Floating Period Termination Date and (v) that the ROARS will be redeemed by the Company at the Dollar Price on the Floating 8 Period Termination Date if not previously purchased by the Remarketing Dealer. The Floating Period Interest Rate for the ROARS announced by the Remarketing Dealer, absent manifest error, shall be binding and conclusive upon the Beneficial Owners, the Company and the Trustee. "Floating Rate Spread Determination Date" means the third Business Day prior to the Floating Rate Remarketing Date. "Interest Rate to Maturity" means the sum of the Base Rate and the Applicable Spread. "London Business Day" means any day on which dealings in U.S. Dollars are transacted in the London Inter-Bank Market. "Reference Corporate Dealer" means each of up to five leading dealers of publicly traded debt securities, including debt securities of the Company, which shall be selected by the Company. The Company shall advise the Remarketing Dealer of its selection of Reference Corporate Dealers no later than five Business Days prior to the Fixed Rate Remarketing Date. One of such Reference Corporate Dealers selected by the Company shall be Banc of America, if Banc of America is then the Remarketing Dealer. "Reference Money Market Dealer" means each of up to five leading dealers of publicly traded debt securities, including debt securities of the Company, which shall be selected by the Company, who are also leading dealers in money market instruments. The Company shall advise the Remarketing Dealer of its selection of Reference Money Market Dealers no later than five Business Days prior to the Floating Rate Remarketing Date. One of such Reference Money Market Dealers selected by the Company shall be Banc of America, if Banc of America is then the Remarketing Dealer. "Reference Rate" means the rate for each Floating Rate Reset Period which shall be the rate for deposits in U.S. Dollars for a period of one month which appears on the Telerate Page 3750 (or any successor page) as of 11:00 a.m., London time, on the applicable Reference Rate Determination Date. If no rate appears on Telerate Page 3750 on the Reference Rate Determination Date, the Remarketing Dealer will request the principal London offices of four major reference banks in the London Inter-Bank Market, to provide it with its offered quotations for deposits in U.S. Dollars for the period of one month, commencing on the first day of the Floating Rate Reset Period, to prime banks in the London Inter-Bank Market at approximately 11:00 a.m., London time, on that Reference Rate Determination Date and in a principal amount that is representative for a single transaction in U.S. Dollars in that market at that time. If at least two quotations are provided, then the Reference Rate will be the average of those quotations. If fewer than two quotations are provided, then the Reference Rate will be the average (rounded, if necessary, to the nearest one hundredth of a percent) of the rates quoted at approximately 11:00 a.m., New York City time, on the Reference Rate Determination Date by three 9 major banks in New York City selected by the Remarketing Dealer for loans in U.S. dollars to leading European banks, having a one-month maturity and in a principal amount that is representative for a single transaction in U.S. dollars in that market at that time. If the banks selected by the Remarketing Dealer are not providing quotations in the manner described by this paragraph, the rate for the Floating Rate Reset Period following the Reference Rate Determination Date will be the rate in effect on that Reference Rate Determination Date. "Reference Rate Determination Date" shall be the second London Business Day preceding each Reference Rate Reset Date. "Reference Rate Reset Date" means the first Remarketing Date and the 15th day of each month thereafter until (but excluding) the Floating Period Termination Date, or, if such day does not fall on a Business Day, the next succeeding Business Day. "Reference Treasury Dealer" means each of up to five primary U.S. government securities dealers (each a "Primary Treasury Dealer") to be selected by the Company, and their respective successors; provided that if any of the foregoing or their affiliates ceases to be, and has no affiliate that is, a Primary Treasury Dealer, the Company shall substitute therefor another Primary Treasury Dealer. The Company shall advise the Remarketing Dealer of its selection of Reference Treasury Dealers no later than five Business Days prior to the Fixed Rate Remarketing Date. One of such Reference Treasury Dealers selected by the Company shall be Banc of America, if Banc of America is then the Remarketing Dealer. "Remaining Scheduled Payments" means, with respect to the ROARS, the remaining scheduled payments of the principal thereof and interest thereon, calculated at the Base Rate applicable to such ROARS, that would be due from but excluding the first Remarketing Date to and including the Stated Maturity Date; provided that if such Remarketing Date is not an Interest Payment Date with respect to such ROARS, the amount of the next succeeding scheduled interest payment thereon, calculated at the Base Rate, will be reduced by the amount of interest accrued thereon, calculated at the Base Rate only, to the first Remarketing Date. "Remarketing Date(s)" means (a) June 15, 2003 in the event the Remarketing Dealer elects to purchase the ROARS and the Company does not exercise its Floating Period Option or (b) if the Company has elected to exercise its Floating Period Option, each of June 15, 2003 and the Floating Period Termination Date. "Stated Maturity Date" means June 15, 2013. "Treasury Rate" for the ROARS means, with respect to the first Remarketing Date, the rate per annum equal to the semi-annual equivalent yield to maturity or interpolated (on a day count basis) yield to maturity of the Comparable Treasury Issues, 10 assuming a price for the Comparable Treasury Issues (expressed as a percentage of their principal amounts) equal to the Comparable Treasury Price for such Remarketing Date. (e) Subject to the Remarketing Dealer's election to remarket the ROARS and to the Company's election not to exercise its Floating Period Option, as provided in clause (c) above, the Remarketing Dealer shall notify the Company, the Trustee and The Depository Trust Company ("DTC") by telephone, confirmed in writing (which may include facsimile or other electronic transmission), by 4:00 p.m., New York City time, on the Fixed Rate Determination Date of the Interest Rate to Maturity of the ROARS effective from and including the Fixed Rate Remarketing Date. (f) Subject to the Remarketing Dealer's election to remarket the ROARS as provided in clause (c) above, on any Remarketing Date the Remarketing Dealer shall sell the total aggregate principal amount of the ROARS at the Dollar Price to the Reference Money Market Dealer or to the Reference Corporate Dealer, whichever is applicable, providing the lowest Bid. If the lowest Bid is submitted by two or more of the applicable Reference Dealers, the Remarketing Dealer may sell such ROARS to one or more of such Reference Dealers as it shall determine in its sole discretion. (g) In the event that the ROARS are remarketed as provided herein, the Remarketing Dealer shall pay to the Trustee, not later than 12:00 noon, New York City time, on the first Remarketing Date, an amount equal to 100% of the aggregate principal amount of such ROARS or on the subsequent Remarketing Date, an amount equal to the Dollar Price. On such Remarketing Date, the Remarketing Dealer shall cause the Trustee to make payment to the DTC participant of each tendering Beneficial Owner of ROARS subject to remarketing by book-entry through DTC by the close of business on such Remarketing Date against delivery through DTC of such Beneficial Owner's tendered ROARS, of the purchase price for such tendered ROARS that have been purchased for remarketing by the Remarketing Dealer. The purchase price of such tendered ROARS shall be equal to 100% of the aggregate principal amount thereof on the first Remarketing Date and the Dollar Price on the subsequent Remarketing Date. The Company shall make, or cause the Trustee to make, payment of interest to each Beneficial Owner of ROARS due on a Remarketing Date by book entry through DTC by the close of business on such Remarketing Date. (h) Subject to Section 12(c) of this Agreement, with respect to the ROARS, in the event that (i) the Remarketing Dealer for any reason does not notify the Company of the Floating Period Interest Rate or of the Interest Rate to Maturity by 4:00 p.m., New York City time, on the applicable Determination Date, (ii) prior to any Remarketing Date, the Remarketing Dealer resigns and no successor has been appointed on or before such Determination Date, (iii) at any time after the Remarketing Dealer elects on the Notification Date to remarket such ROARS, the Remarketing Dealer elects to terminate the Remarketing Agreement pursuant to Section 9 or Section 12 of this Agreement, (iv) the Remarketing Dealer for any reason does not elect by notice to the Company and the Trustee not later than such Notification Date to purchase such ROARS for remarketing on such Remarketing Date, (v) the Remarketing Dealer for any 11 reason does not deliver the purchase price of such ROARS to the Trustee on the Remarketing Date as required by clause (g) above or does not purchase all tendered ROARS on such Remarketing Date, or (vi) the Company for any reason fails to redeem the ROARS from the Remarketing Dealer following the Company's election to effect such redemption as specified in Section 4(i) of this Agreement, the Company shall repurchase the ROARS in whole on such Remarketing Date at a price equal to 100% of the aggregate principal amount of the ROARS if such Remarketing Date is the first Remarketing Date, or at the Dollar Price on the subsequent Remarketing Date, plus all accrued and unpaid interest, if any. In any such case, payment will be made by the Company through the Trustee to the DTC participant of each tendering Beneficial Owner of ROARS, by book-entry through DTC by the close of business on such Remarketing Date, against delivery through DTC of such Beneficial Owner's tendered ROARS. (i) If the Remarketing Dealer elects to remarket the ROARS as provided in clause (c) above, then not later than 4:00 p.m., New York City time, on the Business Day immediately preceding any Determination Date, the Company shall notify the Remarketing Dealer and the Trustee if the Company irrevocably elects to exercise its right to redeem the ROARS, in whole but not in part, from the Remarketing Dealer on the Remarketing Date immediately following such Determination Date at the Dollar Price, plus accrued and unpaid interest therefor in same-day funds by wire transfer to an account designated by the Remarketing Dealer on such Remarketing Date, and shall thereafter have no obligation to pay the Calculation Amount (as defined herein) with respect to the ROARS; provided that in the event that fewer than three Reference Corporate Dealers submit timely firm bids for all outstanding ROARS to the Remarketing Dealer on any Determination Date, then immediately after the deadline set by the Remarketing Dealer for receiving such bids has passed and the Company has been notified of the results, the Company shall notify the Remarketing Dealer and the Trustee if the Company irrevocably elects to exercise its right to redeem the ROARS. If the Company fails to redeem the ROARS from the Remarketing Dealer following any such election, the Remarketing Dealer will be deemed to have elected not to remarket the ROARS, subject to the obligation of the Company to pay the Calculation Amount to the Remarketing Dealer as provided in Section 12(e) of this Agreement. If the Company pays the Calculation Amount to the Remarketing Dealer and repurchases the ROARS pursuant to Section 4(h), it shall thereafter have no obligation to pay the Dollar Price with respect to the ROARS. (j) In accordance with the terms and provisions of the ROARS, the tender and settlement procedures set forth in this Section 4, including provisions for payment by the purchaser of ROARS in a remarketing or for payment to selling Beneficial Owners of tendered ROARS, shall be subject to modification, notwithstanding any provision to the contrary set forth in the Indenture, to the extent required by DTC or, if the book-entry system is no longer available for the ROARS at a time of their remarketing, to the extent required to facilitate the tendering and remarketing of the ROARS in certificated form. In addition, the Remarketing Dealer may (to the extent not inconsistent with the Indenture) modify the settlement procedures in order to facilitate the settlement process; the Remarketing Dealer shall promptly notify the Company of such modifications to the settlement procedures. 12 (k) In accordance with the terms and provisions of the ROARS, the Company hereby agrees that at all times, notwithstanding any provision to the contrary set forth in the Indenture, (i) it will use its best efforts to maintain the ROARS in book-entry form with DTC or any successor thereto and to appoint a successor depositary to the extent necessary to maintain the ROARS in book-entry form and (ii) it will waive any discretionary right it otherwise may have under the Indenture to cause the ROARS to be issued in certificated form. Section 5. Fees and Expenses. Subject to Section 12 of this Agreement, for its services in performing its duties set forth herein, the Remarketing Dealer will not receive any fees or reimbursement of expenses from the Company, unless the Company and the Remarketing Dealer enter into a negotiated transaction to determine the new interest rate, in lieu of the bidding process described herein. Section 6. Resignation of the Remarketing Dealer. The Remarketing Dealer may resign and be discharged from its duties and obligations hereunder with respect to the ROARS at any time, such resignation to be effective 10 Business Days after delivery of a written notice to the Company and the Trustee of such resignation. The Remarketing Dealer also may resign and be discharged from its duties and obligations hereunder at any time with respect to the ROARS, such resignation effective immediately, upon termination of the obligations of the Remarketing Dealer with respect to the ROARS under this Agreement in accordance with Section 12(b) hereof. It shall be the sole obligation of the Company to appoint a successor Remarketing Dealer with respect to the ROARS. In the event of the resignation of the Remarketing Dealer with respect to the ROARS for any reason other than upon the termination of the obligations of the Remarketing Dealer with respect to the ROARS under this Agreement in accordance with Section 12(b) hereof, no amount will be due from the Company to the Remarketing Dealer. Section 7. Dealing in the ROARS. Banc of America, or any subsequent Remarketing Dealer, when acting as the Remarketing Dealer or in its individual or any other capacity, may, to the extent permitted by law, buy, sell, hold and deal in any of the ROARS. Banc of America, as Holder or Beneficial Owner of ROARS, may exercise any vote or join as a Holder or Beneficial Owner, as the case may be, in any action which any Holder or Beneficial Owner of ROARS may be entitled to take pursuant to the Indenture with like effect as if it did not act in any capacity hereunder. The Remarketing Dealer, in its capacity either as principal or agent, may also engage in or have an interest in any financial or other transaction with the Company as freely as if it did not act in any capacity hereunder. Section 8.Information. The Company agrees to furnish to the Remarketing Dealer until the Fixed Rate Remarketing Date (i) copies of each report or other document mailed or filed by the Company with the Commission, including the Offering Document relating to the ROARS (including in each case any documents incorporated by reference) and (ii) in connection with any remarketing, such other information as the Remarketing Dealer may reasonably request, including, but not limited to, the financial condition of the Company or any material subsidiary thereof. The Company agrees to provide the Remarketing Dealer with as many copies of the 13 foregoing materials and information as the Remarketing Dealer may reasonably request for use in connection with any remarketing and consents to the use thereof for such purpose as promptly as practicable after such materials and information become available. Section 9. Conditions to Remarketing Dealer's Obligations. The obligations of the Remarketing Dealer under this Agreement have been undertaken in reliance on, and shall be subject to, (a) the due performance in all material respects by the Company of its obligations and agreements as set forth in this Agreement and the accuracy of the representations and warranties in this Agreement and any certificate delivered pursuant hereto, (b) the due performance in all material respects by the Company of its obligations and agreements set forth in, and the accuracy in all material respects as of the dates specified therein of the representations and warranties contained in, the Underwriting Agreement, (c) the receipt by the Remarketing Dealer on any Remarketing Date of a certificate of the Chairman of the Board, the President, the Chief Financial Officer or a Vice President of the Company, and the Treasurer or an Assistant Treasurer of the Company, dated as of such Remarketing Date, to the effect that (i) the representations and warranties in this Agreement are true and correct in all material respects with the same force and effect as though expressly made at and as of such Remarketing Date, (ii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to such Remarketing Date and (iii) none of the events specified in clause (d) (excepting subclauses (iii), (iv) and (viii)) has occurred, and (d) the further condition that none of the following events shall have occurred after the Remarketing Dealer elects on the Notification Date to remarket the ROARS and on or before any Remarketing Date: (i) the rating of any securities of the Company shall have been downgraded or put under surveillance or review with negative implications, including being put on what is commonly termed a "credit watch" or a "watch list," or withdrawn by a nationally recognized statistical rating agency; (ii) without the prior written consent of the Remarketing Dealer, the Indenture (including the ROARS) shall have been amended in any manner, or otherwise contain any provision not contained therein as of the date hereof, that in either case in the judgment of the Remarketing Dealer materially changes the nature of the ROARS or the remarketing procedures (it being understood that, notwithstanding the provisions of this clause (ii), the Company shall not be prohibited from amending the Indenture); (iii) trading in any securities of the Company shall have been suspended or materially limited by the Commission, or trading generally on the American Stock Exchange or the New York Stock Exchange or in the Nasdaq National Market shall have been suspended or materially limited, or minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices shall have been required, by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any governmental authority, or if a banking moratorium shall have been declared by either Federal or New York authorities; 14 (iv) there shall have occurred any material adverse change in the financial markets in the United States, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions, in each case the effect of which is such as to make it, in the judgment of the Remarketing Dealer, impracticable to remarket the ROARS or to enforce contracts for the sale of the ROARS; (v) an Event of Default, or any event which, with the giving of notice or passage of time, or both, would constitute an Event or Default, with respect to the ROARS shall have occurred and be continuing or an Event of Default or any event which, with the giving of notice or passage of time, or both, would constitute an Event of Default with respect to any derivative transaction between the Company and the Remarketing Dealer effected pursuant to an ISDA Master Agreement between the Company and the Remarketing Dealer; (vi) a material adverse change in the consolidated financial condition, stockholders' equity, results of operations, business or prospects of the Company and its subsidiaries taken as a whole the effect of which is such as to make it, in the judgment of the Remarketing Dealer, impracticable to remarket the ROARS or to enforce contracts for the sale of ROARS, shall have occurred since the applicable Notification Date or since the respective dates as of which information is given in the 1934 Act Documents; (vii) if a prospectus is required under the 1933 Act to be delivered in connection with the remarketing of the ROARS, the Company shall fail to furnish to the Remarketing Dealer on any Remarketing Date the officer's certificate, opinion and comfort letter referred to in Section 3(e) of this Agreement and such other documents and opinions as counsel for the Remarketing Dealer may reasonably require for the purpose of enabling such counsel to pass upon the sale of ROARS in a remarketing as herein contemplated and related proceedings, or in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; or (viii) if no Reference Dealer shall have provided the Remarketing Dealer with a Bid by 3:30 p.m., New York City time, on any Determination Date. In furtherance of the foregoing, the effectiveness of the Remarketing Dealer's election on the Notification Date to remarket the ROARS shall be subject to the condition that the Remarketing Dealer shall have received a certificate of the Chairman of the Board, the President, the Chief Financial Officer or a Vice President of the Company, and the Treasurer or an Assistant Treasurer of the Company, dated as of the Notification Date, to the effect that (i) the Company has, prior to the Remarketing Dealer's election on the Notification Date to remarket the ROARS, provided the Remarketing Dealer with notice of all events as required under Section 3(a) of this Agreement, (ii) the representations and warranties of the Company in this Agreement are true and correct in all material respects at and as of the Notification Date and (iii) the 15 Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Notification Date. Such certificate shall be delivered by the Company to the Remarketing Dealer as soon as practicable following notification by the Remarketing Dealer to the Company on the Notification Date of its election to remarket the ROARS and in any event prior to the first Determination Date. In the event of the failure of any of the foregoing conditions, the Remarketing Dealer may terminate its obligations under this Agreement or redetermine any of the Floating Period Interest Rates and/or the Interest Rate to Maturity as provided in Section 12. Section 10. Indemnification. (a) The Company agrees to indemnify and hold harmless the Remarketing Dealer and its officers, directors and employees and each person, if any, who controls the Remarketing Dealer within the meaning of Section 20 of the 1934 Act as follows: (i) against any loss, liability, claim, damage and expense whatsoever, as incurred, arising out of (A) any untrue statement or alleged untrue statement of a material fact contained in any of the Remarketing Materials (including any incorporated documents), or (B) the omission or alleged omission therefrom of a material fact necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading, or (C) any violation by the Company of, or any failure by the Company to perform any of its obligations under, this Agreement, or (D) the acts or omissions of the Remarketing Dealer in connection with its duties and obligations hereunder except to the extent finally judicially determined to be due to its gross negligence or willful misconduct; (ii) against any loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever arising out of, or based upon, any of items (A) through (D) in clause (i) above; provided, that (subject to clause (d) below) such settlement is effected with the written consent of the Company, which consent shall not be unreasonably withheld; and (iii) against any expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by the Remarketing Dealer), reasonably incurred in investigating, preparing or defending against any litigation or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever arising out of, or based upon, any of items (A) through (D) in clause (i) above to the extent that any such expense is not paid under clause (i) or (ii) above; provided, that the foregoing indemnity shall not apply to any losses, liabilities, claims, damages and expenses to the extent arising out of any untrue statement or omission made in reliance 16 upon and in conformity with written information furnished to the Company by the Remarketing Dealer expressly for use in the Remarketing Materials. (b) The Remarketing Dealer agrees to indemnify and hold harmless the Company, its directors and each of its officers who signed the Registration Statement from and against any loss, liability, claim, damage and expense whatsoever, as incurred, and will reimburse the expenses reasonably incurred in investigating or defending against any such loss, liability, claim, damage and expense, as incurred but only with respect to untrue statements or omissions made in Remarketing Materials in reliance upon and in conformity with information furnished to the Company in writing by the Remarketing Dealer expressly for use in such Remarketing Materials. The indemnity agreement in this clause (b) shall extend upon the same terms and conditions to each person, if any, who controls the Company within the meaning of Section 20 of the 1934 Act. (c) Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. In the case of parties indemnified pursuant to clause (a) above, counsel to the indemnified parties shall be selected by the Company, and, in the case of parties indemnified pursuant to clause (b) above, counsel to the indemnified parties shall be selected by the Remarketing Dealer. An indemnifying party may participate at its own expense in the defense of any such action; provided that counsel to the indemnifying party shall not (except with the consent of the indemnified party) also be counsel to the indemnified party. In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 10 or 11 hereof (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to an admission of fault, culpability or a failure to act by or on behalf of any indemnified party (d) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by clause (a) (ii) effected without its written consent if (i) such settlement is entered into more than 90 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall 17 have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement. (e) The indemnity agreement contained in this Section 10 shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of the Remarketing Dealer, and shall survive the termination or cancellation of this Agreement and the remarketing of any ROARS hereunder. Section 11. Contribution. If the indemnification provided for in Section 10 hereof is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Remarketing Dealer on the other hand from the remarketing of the ROARS pursuant to this Agreement or (ii) if the allocation provided by clause (i) 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 of the Remarketing Dealer on the other hand in connection with the acts, failures to act, statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Remarketing Dealer on the other hand in connection with the remarketing of the ROARS pursuant to this Agreement shall be deemed to be in the same respective proportions as (i) the aggregate principal amount of the ROARS, and (ii) the aggregate positive difference, if any, between the price paid by the Remarketing Dealer for the ROARS tendered on a Remarketing Date and the price at which the ROARS are sold by the Remarketing Dealer in the remarketing. The relative fault of the Company on the one hand and the Remarketing Dealer on the other hand shall be determined by reference to, among other things, the responsibility hereunder of the applicable party for any act or failure to act relating to the losses, liabilities, claims, damages or expenses incurred or, in the case of any losses, liabilities, claims, damages or expenses arising out of any untrue or alleged untrue statement of a material fact contained in any of the Remarketing Materials or the omission or alleged omission to state a material fact therefrom, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company or the Remarketing Dealer and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Remarketing Dealer agree that it would not be just and equitable if contribution pursuant to this Section 11 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to 18 above in this Section 11. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such act or failure to act or untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11, the Remarketing Dealer shall not be required to contribute any amount in excess of the amount by which the total price at which the ROARS remarketed by it and resold to the public were sold to the public exceeds the amount of any damages which the Remarketing Dealer has otherwise been required to pay by reason of any act or failure to act for which it is responsible hereunder or any untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 11, each person, if any, who controls the Remarketing Dealer within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Remarketing Dealer, and each director of the Company, each officer of the Company who signed any Offering Document, and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Company. Section 12. Termination of Remarketing Agreement or Redetermination of Interest Rate to Maturity. (a) The obligations of the Remarketing Dealer under this Agreement shall terminate with respect to the ROARS on the effective date of the resignation of the Remarketing Dealer pursuant to Section 6 hereof with respect to the ROARS or the repurchase of the ROARS by the Company pursuant to Section 4(h) hereof or the redemption of the ROARS by the Company pursuant to Section 4(i) hereof or a combination of the two which results in all of the ROARS being repurchased or redeemed by the Company. (b) In addition, the Remarketing Dealer may terminate all of its obligations under this Agreement with respect to the ROARS, or in its sole discretion, its obligations to purchase and remarket the ROARS, immediately by notifying the Company and the Trustee of its election to do so, at any time on or before any Remarketing Date, in the event that with respect to the ROARS, (i) any of the conditions referred to or set forth in Section 9(a), (b) or (c) hereof (to the extent they are required to be met or satisfied at such time) have not been met or satisfied in full, (ii) any of the events set forth in Section 9(d) shall have occurred after the Remarketing Dealer elects on the Notification Date to remarket the ROARS, (iii) the 19 Remarketing Dealer determines, in its sole discretion, after consultation with the Company, that it shall not have received all of the information, whether or not specifically referenced herein, necessary to fulfill its obligations under this Agreement with respect to the ROARS, or (iv) an Event of Default with respect to the ROARS has occurred and is continuing. (c) Notwithstanding any provision herein to the contrary, in lieu of terminating this Agreement pursuant to Section 12(b) above, upon the occurrence of any of the events set forth therein, the Remarketing Dealer, in its sole discretion at any time between any Determination Date and 3:30 p.m., New York City time, on the Business Day immediately preceding any Remarketing Date, may elect to purchase the ROARS for remarketing and determine a new Floating Period Interest Rate or Interest Rate to Maturity in the manner provided in Section 4(d) of this Agreement, except that for purposes of determining the new Floating Period Interest Rate or Interest Rate to Maturity pursuant to this paragraph the Determination Date referred to therein shall be the date of such election and redetermination. The Remarketing Dealer shall notify the Company, the Trustee and DTC by telephone, confirmed in writing (which may include facsimile or other electronic transmission), by 4:00 p.m., New York City time, on the date of such election, of the new Floating Period Interest Rate or Interest Rate to Maturity, as the case may be, of the ROARS. Thereupon, such new Floating Period Interest Rate or Interest Rate to Maturity shall supersede and replace any Floating Period Interest Rate or Interest Rate to Maturity previously determined by the Remarketing Dealer and, absent manifest error, shall be binding and conclusive upon the Beneficial Owners and Holders of the ROARS on and after such Remarketing Date, the Company and the Trustee; provided, that the Remarketing Dealer, by redetermining the Floating Period Interest Rate or Interest Rate to Maturity upon the occurrence of any event set forth in Section 12(b) as set forth above, shall not thereby be deemed to have waived its right to determine a new Floating Period Interest Rate or Interest Rate to Maturity or terminate this Agreement upon the occurrence of any other event set forth in Section 12(b). (d) If this Agreement is terminated pursuant to this Section 12, such termination shall be without liability of any party to any other party, except that, in the case of termination pursuant to Section 12(b) of this Agreement, the Company shall reimburse the Remarketing Dealer for all of its reasonable out-of-pocket expenses, including the reasonable fees and disbursements of counsel for the Remarketing Dealer, and except as further set forth in Section 12(e) below. Sections 1, 10, 11, 12(d), and 12(e) shall survive such termination and remain in full force and effect. (e) As soon as practicable following either (i) termination of this Agreement pursuant to Section 12(b), (ii) the occurrence, prior to the Remarketing Dealer's election on the Notification Date to remarket the ROARS, of any event set forth in Section 9(d)(ii), or (iii) any failure by the Company to redeem such ROARS from the Remarketing Dealer following any election by the Company to effect such redemption as specified in Section 4(i) (each a "Calculation Event"), the Remarketing Dealer shall determine, in good faith and on a commercially reasonable basis, the Calculation Amount (as defined below), and shall promptly notify the Company of such Calculation Amount in writing (which may include facsimile or 20 other electronic transmission) and shall provide the Company with documentation explaining how it determined the Calculation Amount (the date on which such notice and documentation is given, the "Calculation Amount Notice Date"). The "Calculation Amount" shall be equal to an amount, if any, that, as of the date of its determination, would be paid by the Remarketing Dealer in consideration of an agreement between the Remarketing Dealer and a Reference Dealer (other than the Remarketing Dealer) to enter into a transaction that would have the effect of preserving for the Remarketing Dealer the economic equivalent of any payment or delivery (whether the underlying obligation was absolute or contingent) by the Remarketing Dealer and Beneficial Owners that would, but for the occurrence of the Calculation Event, have been required on a Remarketing Date; the Calculation Amount shall be determined based on the assumption that the ROARS are obligations issued by the United States Department of the Treasury backed by the full faith and credit of the United States of America. Unless, within three Business Days after the Calculation Amount Notice Date, the Company notifies the Remarketing Dealer in writing that it has determined in good faith (based on market conditions on the Calculation Amount Notice Date), and after giving the Remarketing Dealer the reasonable opportunity to explain how the Calculation Amount was determined and to correct any errors, that it disagrees with the Remarketing Dealer's calculation or determination of the Calculation Amount (the "Notice of Disagreement"), the Company shall promptly pay the Remarketing Dealer, in same-day funds by wire transfer to an account designated by the Remarketing Dealer, the Calculation Amount as so determined by the Remarketing Dealer, and shall thereafter have no further obligation to pay any Dollar Price with respect to the ROARS. If a Notice of Disagreement is so delivered by the Company to the Remarketing Dealer, the Remarketing Dealer and the Company shall jointly request, as soon as reasonably practicable, firm quotations for the Calculation Amount from five Reference Dealers (one of which shall be the Remarketing Dealer) that are mutually agreeable to the Company and the Remarketing Dealer (such Reference Dealers (including the Remarketing Dealer) shall determine such quotations, to the extent reasonably practicable, as of the same day and same time on or as reasonably practicable after the date of the Notice of Disagreement). If more than three quotations are provided, the Calculation Amount shall be the arithmetic mean of the quotations, without regard to the quotations having the highest and lowest values (if more than one quotation has the same highest value or lowest value, then one of such quotations shall be disregarded). If exactly three quotations are provided, the Calculation Amount shall be the arithmetic mean of all three quotations. If at least three quotations shall have been provided by 4:00 p.m. on the Business Day after the date of the Notice of Disagreement, the Company shall promptly pay the Remarketing Dealer, in same-day funds by wire transfer to an account designated by the Remarketing Dealer, the Calculation Amount as so determined, and shall thereafter have no further obligation to pay any Dollar Price with respect to the ROARS. If at least three quotations from mutually agreeable Reference Dealers are not obtained by 4:00 p.m. on the Business Day after the date of the Notice of Disagreement, the Calculation Amount as originally determined by the Remarketing Dealer, absent manifest error, shall be conclusive and binding and the Company shall promptly pay the Remarketing Dealer, in same-day 21 funds by wire transfer to an account designated by the Remarketing Dealer, such amount, and shall thereafter have no further obligation to pay any Dollar Price with respect to the ROARS. (f) This Agreement shall not be subject to termination by the Company. Section 13. Remarketing Dealer's Performance; Duty of Care. The duties and obligations of the Remarketing Dealer shall be determined solely by the express provisions of this Agreement and the Indenture. No implied covenants or obligations of or against the Remarketing Dealer shall be read into this Agreement or the Indenture. In the absence of bad faith on the part of the Remarketing Dealer, the Remarketing Dealer may conclusively rely upon any document furnished to it, which purports to conform to the requirements of this Agreement and the Indenture, as to the truth of the statements in any of such documents. The Remarketing Dealer shall be protected in acting upon any document or communication reasonably believed by it to have been signed, presented or made by the proper party or parties. The Remarketing Dealer shall incur no liability to the Company or to any Beneficial Owner or Holder of ROARS in its individual capacity or as Remarketing Dealer for any action or failure to act in connection with remarketing or otherwise, except as a result of gross negligence or willful misconduct on its part. Section 14. Treatment of the ROARS. It is the intent of the Company, that for purposes of United States federal, state, local and any other income taxes, the ROARS will be treated as fixed rate debt instruments maturing on the first Remarketing Date. Unless otherwise required by the appropriate tax authorities, the Company will treat the ROARS consistent with their characterization. Section 15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN SUCH STATE. Section 16. Term of Agreement. Unless otherwise terminated in accordance with the provisions hereof, this Agreement shall remain in full force and effect from the date hereof until the earlier of the first day thereafter on which no ROARS are outstanding or the Fixed Rate Remarketing Date. Regardless of any termination of this Agreement pursuant to any of the provisions hereof, the obligations of the Company pursuant to Sections 10, 11 and 12 hereof shall remain operative and in full force and effect until fully satisfied. Section 17. Successors and Assigns. The rights and obligations of the Company hereunder may not be assigned or delegated to any other person without the prior written consent of the Remarketing Dealer. The rights and obligations of the Remarketing Dealer hereunder may not be assigned or delegated to any other person without the prior written consent of the Company, except that the Remarketing Dealer may assign or delegate its rights and obligations hereunder in whole or in part to an affiliate, in each case, without the prior written consent of the Company. This Agreement shall inure to the benefit of and be binding 22 upon the Company and the Remarketing Dealer and their respective successors and assigns, and will not confer any benefit upon any other person, partnership, association or corporation other than persons, if any, controlling the Remarketing Dealer within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, or any indemnified party to the extent provided in Section 10 hereof, or any person entitled to contribution to the extent provided in Section 11 hereof. The terms "successors" and "assigns" shall not include any purchaser of any ROARS because of such purchase. Section 18. Headings. Section headings have been inserted in this Agreement as a matter of convenience of reference only, and it is agreed that such section headings are not a part of this Agreement and will not be used in the interpretation of any provisions of this Agreement. Section 19. Severability. If any provision of this Agreement shall be held or deemed to be or shall, in fact, be invalid, inoperative or unenforceable as applied in any particular case in any or all jurisdictions because it conflicts with any provision of any constitution, statute, rule or public policy or for any other reason, such circumstances shall not have the effect of rendering the provision in question invalid, inoperative or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provision or provisions of this Agreement invalid, inoperative or unenforceable to any extent whatsoever. Section 20. Counterparts. This Agreement may be executed in several counterparts, each of which shall be regarded as an original and all of which shall constitute one and the same document. Section 21. Amendments. This Agreement may be amended by any instrument in writing signed by each of the parties hereto so long as this Agreement as amended is not inconsistent with the Indenture in effect as of the date of any such amendment. Section 22. Notices. Unless otherwise specified, any notices, requests, consents or other communications given or made hereunder or pursuant hereto shall be made in writing (which may include facsimile or other electronic transmission) and shall be deemed to have been validly given or made when delivered or mailed, registered or certified mail, return receipt requested and postage prepaid, addressed as follows: (a) to the Company: The AES Corporation 1001 N. 19th Street Arlington, Virginia 22209 Telephone: (703) 522-1315 Facsimile: (703) 528-4510 Attention: General Counsel 23 (b) to Banc of America: Banc of America Securities LLC Bank of America Corporate Center 100 North Tryon Street Charlotte, North Carolina 28255 Telephone: (704) 386-9690 Facsimile: (704) 388-0502 Attention: Syndicate or to such other address as the Company or the Remarketing Dealer shall specify in writing. 24 IN WITNESS WHEREOF, each of the Company and the Remarketing Dealer has caused this Remarketing Agreement to be executed in its name and on its behalf by one of its duly authorized officers as of the date first above written. THE AES CORPORATION By: -------------------------------- Name: Title: BANC OF AMERICA SECURITIES LLC By: -------------------------------- Name: Title: 25 -----END PRIVACY-ENHANCED MESSAGE-----