Exhibit 4.(n)


 


 


THE AES CORPORATION


 


 


as the Company


 


 


and


 


 


WELLS FARGO BANK, NATIONAL ASSOCIATION


 


 


as Trustee


 


 






 


 


FIRST SUPPLEMENTAL
INDENTURE


 


Dated as of May 28,
2008


 


To


 


SENIOR INDENTURE


 


Dated as of May 8,
2003


 






 


 


8 3⁄4% Second
Priority Senior Secured Notes due 2013


 

















 


FIRST SUPPLEMENTAL INDENTURE, dated as of May 28, 2008 between The
AES Corporation, a Delaware corporation (the “Company”), as the issuer,
and Wells Fargo Bank, National Association (as successor by consolidation to
Wells Fargo Bank Minnesota, National Association), a national banking
association, as trustee (the “Trustee”).


 


WHEREAS, the Company executed and delivered an Indenture, dated as of May 8,
2003, (the “Original Indenture”), as may be amended or supplemented from
time to time (as so supplemented, the “Indenture”), between the Company
and the Trustee, providing for the issuance of the Company’s 8.75% Second
Priority Senior Secured Notes due 2013 (the “Notes”);


 


WHEREAS, Section 9.02 of the Original Indenture provides that the
Indenture may be amended by the Company and the Trustee with the consent of the
holders of the Notes representing at least a majority of the Notes then
outstanding;


 


WHEREAS, pursuant to the terms and conditions of the Offer to Purchase
and Consent Solicitation Statement, and the related Letter of Transmittal and
Second Priority Senior Secured Notes Consent, each dated May 14, 2008, as
the same may be amended, prepared by the Company in connection with its offer
to purchase (the “Tender Offer”) for cash up to $377,030,000 aggregate
principal amount of the outstanding Notes and certain other series of its
senior unsecured notes and its related solicitation (the “Consent
Solicitation”) of consents (the “Consents”) from holders of at least
a majority of the aggregate principal amount of Notes outstanding to enter into
the amendments to the Original Indenture (the “Amendments”) as set forth
in this First Supplemental Indenture;


 


WHEREAS, the Tender Offer is conditioned upon, among other things, the
Amendments as set forth in this First Supplemental Indenture having been
approved by holders of at least a majority of the aggregate principal amount of
the Notes outstanding, and provided that pursuant to Section 2.2 hereof,
this First Supplemental Indenture will not become operative until the Company
has paid the applicable consideration with respect to the Notes that have been
validly tendered and accepted for payment in accordance with the Tender Offer
and the Company has paid the consent fee (which shall be an amount in cash
equal to $3.75 per $1,000 principal amount of Notes to which the Consent
relates) (the “Consent Fee”) with respect to all Consents that have been
validly delivered in accordance with the Consent Solicitation;


 


WHEREAS, holders of a majority of the principal amount of the Notes
outstanding on May 28, 2008 have given and not revoked their consent to
the Amendments set forth in this First Supplemental Indenture; and


 


WHEREAS, all conditions and requirements necessary to
make this First Supplemental Indenture a valid and binding instrument in
accordance with its terms and the terms of the Indenture have been satisfied.


 


NOW, THEREFORE, in consideration of the premises and
of the mutual covenants herein contained, the Company and the Trustee hereby covenant
and agree as follows:


 


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ARTICLE
1


 


AMENDMENT
OF ARTICLE 4 OF THE ORIGINAL INDENTURE


 


Article 4 of the Indenture is hereby amended and
restated in its entirety as follows:


 


Section 4.01.                             Payment
of Notes.  The Company shall pay the
Principal of and interest on the Notes on the dates and in the manner provided
in the Notes and this Indenture.  The
interest on the Notes shall be payable only to the Holders thereof and at the
option of the Company may be paid by mailing checks for such interest payable
to or upon the written order of such Holders at their last addresses as they
appear on the Note Register of the Company.


 


Notwithstanding any provisions of this Indenture and
the Notes to the contrary, if the Company and a Holder of any Note so agree,
payments of interest on, and any portion of the Principal of, such Holder’s
Note (other than interest payable at maturity or on any redemption or repayment
date or the final payment of Principal on such Note) shall be made by the
Paying Agent, upon receipt from the Company of immediately available funds by
11:00 A.M., New York City time (or such other time as may be agreed to
between the Company and the Paying Agent), directly to the Holder of such Note
(by Federal funds wire transfer or otherwise) if the Holder has delivered
written instructions to the Trustee 15 days prior to such payment date
requesting that such payment will be so made and designating the bank account
to which such payments shall be so made and in the case of payments of
Principal, surrenders the same to the Trustee in exchange for a Note or Notes
aggregating the same principal amount as the unredeemed principal amount of the
Notes surrendered. The Trustee shall be entitled to rely on the last instruction
delivered by the Holder pursuant to this Section 4.01 unless a new
instruction is delivered 15 days prior to a payment date.  The Company will indemnify and hold each of
the Trustee and any Paying Agent harmless against any loss, liability or expense
(including attorneys’ fees) resulting from any act or omission to act on the
part of the Company or any such Holder in connection with any such agreement or
from making any payment in accordance with any such agreement.


 


The Company shall pay interest on overdue Principal,
and interest on overdue installments of interest, to the extent lawful, at the
rate per annum specified in the Notes.


 


Section 4.02.                             Maintenance
of Office or Agency.  The Company
will maintain in the Borough of Manhattan, The City of New York, an office or
agency where Notes may be surrendered for registration of transfer or exchange
or for presentation for payment and where notices and demands to or upon the
Company in respect of the Notes and this Indenture may be served.  The Company hereby initially designates Wells
Fargo Corporate Trust Services CMES Corporate Product Group, the corporate
trust office of the Trustee’s Agent, located at 45 Broadway, 14th Floor, MAC
N2666-140, New York, NY 10006-3004, in the Borough of Manhattan, The City of
New York, as such office or agency of the Company.  The Company will give prompt written notice
to the Trustee of the location, and any change in the location, of such office
or agency.  If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the address of the Trustee set
forth in Section 10.01.


 


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The Company may also from time to time designate one
or more other offices or agencies where the Notes may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain an office or agency in
the Borough of Manhattan, The City of New York for such purposes.  The Company will give prompt written notice
to the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.


 


Section 4.03.                             Noteholders’
Lists.  Unless the Trustee is acting
as registrar for the Notes, the Company will furnish or cause to be furnished
to the Trustee a list in such form as the Trustee may reasonably require of the
names and addresses of the holders of the Notes (a) semi-annually not more
than 15 days after each Regular Record Date, as hereinabove specified, as of
such record date and (b) at such other times as the Trustee may request in
writing, within thirty days after receipt by the Company of any such request as
of a date not more than 15 days prior to the time such information is
furnished.


 


Section 4.04.                             Certificate
to Trustee.  The Company will furnish
to the Trustee annually, on or before a date not more than four months after
the end of its fiscal year (which, on the date hereof, is a calendar year), a
brief certificate (which need not contain the statements required by Section 10.03)
from its principal executive, financial or accounting officers to his or her
knowledge of the compliance of the Company with all conditions and covenants
under this Indenture (such compliance to be determined without regard to any
period of grace or requirement of notice provided under this Indenture).


 


Section 4.05.                             Reports
by the Company.  The Company
covenants to file with the Trustee, within 15 days after the Company has filed
the same with the Commission, copies of the annual reports and of the
information, documents, and other reports which the Company may be required to
file with the Commission pursuant to Section 13 or Section 15(d) of
the Exchange Act.


 


Section 4.06.                             Limitation
on Liens.  If the Company shall
incur, issue, assume or Guarantee any indebtedness for borrowed money
represented by notes, bonds, debentures or other similar evidences of
indebtedness, secured by a mortgage, pledge or other Lien on any Principal
Property or any Capital Stock or indebtedness held directly by the Company of
any Subsidiary of the Company, the Company shall secure the Notes equally and
ratably with (or prior to) such indebtedness, so long as such indebtedness
shall be so secured, unless after giving effect thereto the aggregate amount of
all such indebtedness so secured, together with all Attributable Debt in
respect of sale and leaseback transactions involving Principal Properties,
would not exceed 15% of the Consolidated Net Assets of the Company. This
restriction will not apply to, and there shall be excluded in computing secured
indebtedness for the purpose of this restriction, indebtedness secured by (i) property
of any Subsidiary of the Company, (ii) Liens on property of, or on any
shares of stock or Debt of, any corporation existing at the time such
corporation becomes a Subsidiary of the Company, (iii) Liens in favor of
the Company or any Subsidiary of the Company, (iv) Liens in favor of U.S.
or foreign governmental bodies to secure partial, progress, advance or other
payments, (v) Liens on property, shares of stock or Debt existing at the
time of acquisition thereof (including acquisition through merger or
consolidation), purchase money mortgages and construction cost mortgages
existing at or


 


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incurred within
180 days of the time of acquisition thereof, (vi) Liens existing on the
Original Issue Date, (vii) Liens under one or more credit facilities for
indebtedness in an aggregate principal amount not to exceed $900 million at any
time outstanding, (viii) Liens incurred in connection with pollution
control, industrial revenue or similar financings, and (ix) any extension,
renewal or replacement of any Debt secured by any Liens referred to in the
foregoing clauses (i) through (viii), inclusive.


 


Section 4.07.                             Reserved.


 


Section 4.08.                             Reserved.


 


Section 4.09.                             Reserved.


 


Section 4.10.                             Repurchase
of Notes Upon a Change of Control.  (a) Upon
a Change of Control, each holder of the Notes shall have the right to require
that the Company repurchase such holder’s Notes at a repurchase price in cash
equal to 101% of the principal amount thereof plus accrued and unpaid interest,
if any, to the date of repurchase.


 


(b)        Within 30 days following
any Change of Control, the Company shall mail a notice to each Holder of the
Notes with a copy to the Trustee stating


 


(i)  that a Change of Control has occurred and that such Holder
has the right to require the Company to repurchase such Holder’s Notes at a
repurchase price in cash equal to 101% of the principal amount thereof plus
accrued and unpaid interest, if any, to the date of repurchase (the “Change of
Control Offer”),


 


(ii)  the circumstances and relevant facts regarding such Change
of Control (including information with respect to pro forma historical income,
cash flow and capitalization after giving effect to such Change of Control),


 


(iii)  the repurchase date (which shall be not earlier than 30
days or later than 60 days from the date such notice is mailed) (the “Repurchase
Date”),


 


(iv)  that any Note not tendered shall continue to accrue
interest,


 


(v)  that any Note accepted for payment pursuant to the Change of
Control Offer shall cease to accrue interest after the Repurchase Date,


 


(vi)  that Holders electing to have a Note purchased pursuant to a
Change of Control Offer will be required to surrender the Note, with the form
entitled “Option of Holder to Elect Purchase” on the reverse of the Note
completed, to the paying agent at the address specified in the notice prior to
the close of business on the Repurchase Date,


 


(vii)  that Holders will be entitled to withdraw their election if
the paying agent receives, not later than the close of business on the third
Business Day (or such shorter periods as may be required by applicable law)
preceding the Repurchase Date, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the


 


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principal amount
of Notes the Holder delivered for purchase, and a statement that such Holder is
withdrawing his election to have such Notes purchased, and


 


(viii)  that Holders which elect to have their Notes purchased
only in part will be issued new Notes of the same Series in a principal
amount equal to the unpurchased portion of the Notes surrendered.


 


(c)         On the Repurchase Date,
the Company shall (i) accept for payment Notes or portions thereof
tendered pursuant to the Change of Control Offer, (ii) deposit with the
Trustee money sufficient to pay the purchase price of all Notes or portions
thereof so tendered and (iii) deliver or cause to be delivered to the
Trustee Notes so accepted together with an Officers’ Certificate identifying
the Notes or portions thereof tendered to the Company.


 


(d)        The Trustee shall promptly
mail to the Holders of the Notes so accepted payment in an amount equal to the
purchase price, and promptly authenticate and mail to such Holders a new Note
of the same Series in a principal amount equal to any unpurchased portion
of the Note surrendered.  The Company
shall publicly announce the results of the Change of Control Offer on or as
soon as practicable after the Repurchase Date.


 


(e)         The Company shall comply
with all applicable tender offer rules, including without limitation Rule 14e-1
under the Exchange Act, in connection with a Change of Control Offer.


 


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Section 4.11.                             Reserved.


 


Section 4.12.                             Reserved.


 


Section 4.13.                             Limitation
on Sale Leaseback Transactions.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 4.06
hereof in an amount equal to the Attributable Debt with respect to the sale and
leaseback transaction without equally and ratably securing the Notes or (b) the
Company, within 180 days after the sale or transfer by the Company, applies to
the retirement of its Funded Debt an amount equal to the greater of (i) the
net proceeds of the sale of the Principal Property sold and leased pursuant to
such arrangement or (ii) the fair market value of the Principal Property
so sold and leased as determined by the Board of Directors; provided that the
amount to be applied to the retirement of Funded Debt of the Company shall be
reduced by (A) the principal amount of any Notes delivered within 180 days
after such sale or transfer to the Trustee for retirement and cancellation, and
(B) the principal amount of Funded Debt, other than Notes, voluntarily
retired by the Company within 180 days after such sale or transfer; provided
further that no retirement referred to in this clause (b) may be effected
by payment at maturity or pursuant to any mandatory sinking fund payment or any
mandatory prepayment provision.


 


Section 4.14.                             Reserved.


 


Section 4.15.                             Reserved.


 


Section 4.16.                             Investment
Grade Fallaway (a) Notwithstanding anything to the contrary contained
in this Article 4, the Company’s obligation to comply with the provisions
of Section 4.10 (collectively the “Extinguished Covenants”) will terminate
and cease to have any further effect from and after the first date when the
Notes are rated Investment Grade; provided that if the Notes subsequently cease
to be rated Investment Grade, then from and after the time the Notes cease to
be rated Investment Grade, the Company’s obligation to comply with the
Extinguished Covenants shall be reinstated.


 


(b)        Notwithstanding the
foregoing, in the event of any such reinstatement described above, no action
taken or omitted to be taken by the Company or any of its Subsidiaries prior to
such reinstatement shall give rise to a Default or Event of Default under the
Extinguished Covenants upon reinstatement.


 


ARTICLE
2


 


MISCELLANEOUS


 


Section 2.01.                             Defined
Terms.  For all purposes of
this First Supplemental Indenture, except as otherwise expressly provided or
unless the context otherwise requires, all capitalized terms defined herein and
in the Indenture shall have the meanings assigned to them herein.  All capitalized terms not defined herein
shall have the meanings assigned to them in the Indenture.


 


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Unless otherwise
expressly specified, all references to a “Section” herein
refer to a section of this First Supplemental Indenture.


 


Section 2.02.                             Effectiveness
of First Supplemental Indenture. 
This First Supplemental Indenture shall be effective upon its signing by
the parties hereto and the Amendments shall not be operative until the Company
has paid the applicable consideration with respect to the Notes that have been
validly tendered and accepted for payment in accordance with the Tender Offer
and the Company has paid the Consent Fee with respect to all Consents that have
been validly delivered in accordance with the Consent Solicitation.  The Company shall promptly notify the Trustee
in writing (which writing may be in electronic form) that this First
Supplemental Indenture has become operative.


 


Section 2.03                                Ratification
of Original Indenture; First Supplemental Indenture Controls.  The Original Indenture, as supplemented by
this First Supplemental Indenture, is in all respects ratified and confirmed,
and this First Supplemental Indenture shall be deemed part of the Original
Indenture in the manner and to the extent herein and therein provided.  The provisions of this First Supplemental
Indenture shall supersede the provisions of the Original Indenture to the
extent the Original Indenture is inconsistent herewith.


 


Section 2.04.                             Trustee Not
Responsible for Recitals.  The
recitals herein contained are made by the Company and not by the Trustee, and
the Trustee assumes no responsibility for the correctness thereof.  The Trustee makes no representation as to the
validity or sufficiency of this First Supplemental Indenture.


 


Section 2.05.                             Governing
Law.  This First Supplemental
Indenture shall be governed by and construed in accordance with the laws of the
State of New York.


 


Section 2.06                                Severability.  If any provision in the Original Indenture,
this First Supplemental Indenture or the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.


 


Section 2.07.                             Counterparts.  The parties may sign any number of copies of
this First Supplemental Indenture.  Each
signed copy shall be an original, but all of them together represent the same
agreement.  Any signed copy shall be
sufficient proof of this First Supplemental Indenture.


 


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IN WITNESS WHEREOF, the parties hereto have caused
this First Supplemental Indenture to be duly executed as of the date first
above written.


 


 


	
   

  	
  THE AES
  CORPORATION, as the Company 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Willard C.
  Hoagland III

  
	
   

  	
   

  	
  Name: Willard C.
  Hoagland III

  
	
   

  	
   

  	
  Title:   Vice
  President and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WELLS FARGO
  BANK, NATIONAL ASSOCIATION, as Trustee 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title: