EXHIBIT 1.1
[FORM OF DEBT SECURITIES
UNDERWRITING AGREEMENT]
$___________
THE AES CORPORATION
___% Senior Subordinated Notes Due ____
UNDERWRITING AGREEMENT
_______, 199_
Dear Sirs:
The AES Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell $__________ principal amount of its ___% Notes Due
____ (the "Notes"), to you as representatives of the several underwriters
named in Schedule I hereto (the "Underwriters"). The Notes are to be issued
pursuant to the provisions of an Indenture to be dated as of ______, 1996, as
supplemented by a supplemental indenture dated as of ______, 1996, (as
supplemented, the "Indenture") between the Company and The First National Bank
of Chicago, as Trustee.
1. Registration Statement and Prospectus. The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively called the "Securities Act"), a registration statement on Form
S-3, including a prospectus, relating to $___________ principal amount of its
debt securities to be issued from time to time by the Company (the "Shelf
Securities"). The Company also has filed with, or proposes to file with, the
Commission pursuant to Rule 424 under the Securities Act a prospectus
supplement specifically relating to the Notes. The registration statement as
amended to the date of this Agreement is hereinafter referred to as the "Base
Registration Statement" and any registration statement filed pursuant to Rule
462(b) under the Securities Act relating to the Notes is herein referred to as
the "Additional Registration Statement", and, together with the Base
Registration Statement, the "Registration Statement". The related prospectus
covering the Shelf Securities in the form first used to confirm sales of the
Notes is hereinafter referred to as the "Basic Prospectus". The Basic
Prospectus as supplemented by the prospectus supplement specifically relating
to the Notes in the form first used to confirm sales of the Notes is
hereinafter referred to as the "Prospectus". Any reference in this Agreement
to the Registration Statement, the Basic Prospectus, any preliminary form of
Prospectus (a "preliminary prospectus") previously filed with the Commission
pursuant to Rule 424 or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form
S-3 under the Securities Act which were filed under the Securities Exchange
Act of 1934, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "Exchange Act") on or before the date of this
Agreement or the date of the Basic Prospectus, any preliminary prospectus
or the Prospectus, as the case may be; and any reference to "amend",
"amendment" or "supplement" with respect to the Registration Statement, the
Basic Prospectus, any preliminary prospectus or the Prospectus shall be
deemed to refer to and include any documents filed under the Exchange Act
after the date of this Agreement, or the date of the Basic Prospectus, any
preliminary prospectus or the Prospectus, as the case may be, which are
deemed to be incorporated by reference therein.
2. Agreements to Sell and Purchase. On the basis of the
representations and warranties contained in this Agreement, and subject to its
terms and conditions, the Company agrees to issue and sell and each
Underwriter agrees, severally and not jointly, to purchase from the Company
the principal amount of Notes set forth opposite the name of such Underwriter
in Schedule I hereto at ______% of the principal amount thereof (the "Purchase
Price").
3. Terms of Public Offering. The Company is advised by you
that the Underwriters propose (i) to make a public offering of their
respective portions of the Notes as soon after the effective date of the
Registration Statement as in your judgment is advisable and (ii) initially to
offer the Notes upon the terms set forth in the Prospectus.
4. Delivery and Payment. Delivery to the Underwriters of and
payment for the Notes shall be made at 10:00 A.M., New York City time, on
______, 199_, or at such other time or such other date as the Underwriters and
the Company may agree upon in writing. The time and date of such payment are
referred to herein as the "Closing Date". As used herein, the term "Business
Day" means any day other than a day on which banks are permitted or required
to be closed in New York City.
The Notes shall be registered in such names and issued in such
denominations as you shall request in writing not later than two full business
days prior to the Closing Date. The Notes shall be made available to you for
inspection not later than 9:30 A.M., New York City time, on the business day
next preceding the Closing Date. The Notes shall be delivered to you on the
Closing Date with any transfer taxes thereon duly paid by the Company, for the
respective accounts of the several Underwriters, against payment of the
Purchase Price therefor by wire transfer in immediately available funds to the
account specified by the Company to the Underwriters (no later than noon the
Business Day prior to the Closing Date) at the office of Davis Polk &
Wardwell, counsel to the Company.
5. Agreements of the Company. The Company agrees with you:
(a) To file the Prospectus in a form approved by you with the
Commission within the time periods specified by Rule 424; and to file
promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus is required in connection with the offering
or sale of the Notes; and to furnish copies of the Prospectus to the
Underwriters in New York City prior to 10:00 a.m., New York City
time, on the Business Day next succeeding the date of this Agreement
in such quantities as the Underwriters may reasonably request;
(b) To advise you promptly and, if requested by you, to
confirm such advice in writing, (i) when any post-effective amendment
to the Registration Statement has been filed or becomes effective,
(ii) of any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus
or for additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification of the
Notes for offering or sale in any jurisdiction, or the initiation of
any proceeding for such purposes, and (iv) of the happening of any
event during the period referred to in paragraph (e) below which
makes any statement of a material fact made in the Registration
Statement or the Prospectus untrue or which requires the making of
any additions to or changes in the Registration Statement or the
Prospectus in order to make the statements therein not misleading.
If at any time the Commission shall issue any stop order suspending
the effectiveness of the Registration Statement, the Company will
make every reasonable effort to obtain the withdrawal or lifting of
such order at the earliest possible time.
(c) To furnish to you three signed copies of the Registration
Statement as first filed with the Commission and of each amendment to
it, including all exhibits thereto and documents incorporated by
reference therein, and to furnish to you and each Underwriter
designated by you such number of conformed copies of the Registration
Statement as so filed and of each amendment to it, without exhibits
thereto and documents incorporated by reference therein, as you may
reasonably request.
(d) Not to file any amendment or supplement to the
Registration Statement, whether before or after the time when it
becomes effective, or to make any amendment or supplement to the
Prospectus of which you shall not previously have been advised or
to which you shall reasonably object; and to prepare and file with
the Commission, promptly upon your reasonable request, any
amendment to the Registration Statement or supplement to the
Prospectus which may be necessary or advisable in connection with
the distribution of the Notes by you, and to use its best efforts
to cause the same to become promptly effective.
(e) Promptly after the Registration Statement becomes
effective, and from time to time thereafter for such period as in the
opinion of counsel for the Underwriters a prospectus is required by
law to be delivered in connection with sales by an Underwriter or a
dealer, to furnish to each Underwriter and dealer as many copies of
the Prospectus (and of any amendment or supplement to the Prospectus)
as such Underwriter or dealer may reasonably request.
(f) If during the period specified in paragraph (e) any event
shall occur as a result of which, in the opinion of counsel for the
Underwriters, it becomes necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of
the circumstances when the Prospectus is delivered to a purchaser,
not misleading, or if it is necessary to amend or supplement the
Prospectus to comply with any law, forthwith to prepare and file with
the Commission an appropriate amendment or supplement to the
Prospectus so that the statements in the Prospectus, as so amended or
supplemented, will not in the light of the circumstances when it is
so delivered, be misleading, or so that the Prospectus will comply
with law, and to furnish to each Underwriter and to such dealers as
you shall specify, such number of copies thereof as such Underwriter
or dealers may reasonably request.
(g) Prior to any public offering of the Notes, to cooperate
with you and counsel for the Underwriters in connection with the
registration or qualification of the Notes for offer and sale by the
several Underwriters and by dealers under the state securities or
Blue Sky laws of such jurisdictions as you may request, to continue
such qualification in effect so long as required for distribution of
the Notes and to file such consents to service of process or other
documents as may be necessary in order to effect such registration or
qualification.
(h) To mail and make generally available to its
securityholders as soon as reasonably practicable an earnings
statement covering a period of at least twelve months after the
effective date of the Registration Statement (but in no event
commencing later than 90 days after such date) which shall satisfy
the provisions of Section 11(a) of the Securities Act, and to advise
you in writing when such statement has been so made available.
(i) During the period of five years after the date of this
Agreement, or for such shorter period if the Notes no longer remain
outstanding, (i) to mail as soon as reasonably practicable after the
end of each fiscal year to the record holders of its Notes a
financial report of the Company and its subsidiaries on a
consolidated basis (and a similar financial report of all
unconsolidated subsidiaries, if required by Regulation S-X), all
such financial reports to include a consolidated balance sheet, a
consolidated statement of operations, a consolidated statement of
cash flows and a consolidated statement of shareholders' equity as
of the end of and for such fiscal year, together with comparable
information as of the end of and for the preceding year, certified
by independent certified public accountants, and (ii) to mail and
make generally available as soon as practicable after the end of
each quarterly period (except for the last quarterly period of
each fiscal year) to such holders, a consolidated balance sheet, a
consolidated statement of operations and a consolidated statement
of cash flows (and similar financial reports of all unconsolidated
subsidiaries, if required by Regulation S-X) as of the end of and
for such period, and for the period from the beginning of such
year to the close of such quarterly period, together with
comparable information for the corresponding periods of the
preceding year.
(j) During the period referred to in paragraph (i), to furnish
to you as soon as available a copy of each report or other publicly
available information of the Company mailed to the securityholders of
the Company or filed with the Commission and such other publicly
available information concerning the Company and its subsidiaries as
you may reasonably request.
(k) To pay all costs, expenses, fees and taxes incident to the
performance of its obligations hereunder, including without limiting
the generality of the foregoing, all costs and expenses incident to
(i) the preparation, issuance, execution, authentication and delivery
of the Notes, including any expenses of the Trustee, (ii) the
preparation, printing, filing and distribution under the Securities
Act of the Registration Statement (including financial statements and
exhibits), each preliminary prospectus and all amendments and
supplements to any of them prior to or during the period specified in
paragraph (e), (iii) the printing and delivery of the Prospectus and
any Preliminary Prospectus and all amendments or supplements to it
during the period specified in paragraph (e), (iv) the printing and
delivery of this Agreement, the Indenture, Preliminary and
Supplemental Blue Sky Memoranda and all other agreements, memoranda,
correspondence and other documents printed and delivered in
connection with the offering of the Notes (including in each case any
disbursements of counsel for the Underwriters relating to such
printing and delivery), (v) the registration or qualification of the
Notes for offer and sale under the securities or Blue Sky laws of the
several states (including in each case the fees and disbursements of
counsel for the Underwriters relating to such registration or
qualification and memoranda relating thereto), (vi) filings and
clearance with the National Association of Securities Dealers, Inc.
in connection with the offering, (vii) furnishing such copies of the
Registration Statement, the Prospectus and all amendments and
supplements thereto as may be requested for use in connection with
the offering or sale of the Notes by the Underwriters or by dealers
to whom Notes may be sold and (viii) the rating of the Notes
including, without limitation, fees payable to rating agencies in
connection therewith.
(l) To use its best efforts to do and perform all things
required or necessary to be done and performed under this Agreement
by the Company prior to the Closing Date and to satisfy all
conditions precedent to the delivery of the Notes.
6. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter that:
(a) The Registration Statement has been declared effective by
the Commission under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge
of the Company, threatened by the Commission; and the Registration
Statement and Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) comply,
or will comply, as the case may be, in all material respects with the
Securities Act and the Trust Indenture Act of 1939, as amended, and
the rules and regulations of the Commission thereunder (collectively,
the "Trust Indenture Act"), and do not and will not, as of the
applicable effective date as to the Registration Statement and any
amendment thereto and as of the date of the Prospectus and any
amendment or supplement thereto, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, and the
Prospectus, as amended or supplemented at the Closing Date, if
applicable, will not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; except that the foregoing representations and
warranties shall not apply to (i) that part of the Registration
Statement which constitutes the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the
Trustee, and (ii) statements or omissions in the Registration
Statement or the Prospectus made in reliance upon and in conformity
with information relating to any Underwriter furnished to the Company
in writing by such Underwriter through the Representatives expressly
for use therein;
(b) The documents incorporated by reference in the Prospectus,
when they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act, and none of such
documents contained an untrue statement of a material fact or omitted
to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus, when such documents are filed with the
Commission will conform in all material respects to the requirements
of the Exchange Act, as applicable, and will not contain an untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(c) The Company and each of its subsidiaries and each of its
affiliates which meets the criteria in the definition of "significant
subsidiary" pursuant to Rule 1-02(w) of Regulation S-X under the
Securities Act (each, a "Principal Subsidiary") has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation and has the
corporate power and authority required to carry on its business as it
is currently being conducted and to own, lease and operate its
properties, and each is duly qualified and is in good standing as a
foreign corporation authorized to do business in each jurisdiction in
which the nature of its business or its ownership or leasing of
property requires such qualification, except where the failure to be
so qualified would not have a material adverse effect on the
business, financial condition or results of operations of the Company
and the Principal Subsidiaries, taken as a whole.
(d) Except as set forth in the Registration Statement or on
Annex I hereto, all of the outstanding shares of capital stock of, or
other ownership interests in, the Principal Subsidiaries have been
duly and validly authorized and issued and are fully paid and
non-assessable, and are owned by the Company or one of the Principal
Subsidiaries, free and clear of any security interest, claim, lien,
encumbrance or adverse interest of any nature.
(e) The Notes have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered to the Underwriters against payment therefor as provided by
this Agreement, will be entitled to the benefits of the Indenture,
and will be valid and binding obligations of the Company, enforceable
in accordance with their terms except as the enforceability thereof
may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and by equitable principles of general
applicability.
(f) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms except as the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and by equitable principles of
general applicability.
(g) This Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company (except as rights to indemnity and contribution hereunder may
be limited by applicable law).
(h) The Notes conform as to legal matters to the description
thereof contained in the Registration Statement and the Prospectus.
(i) The Company is not in violation of its Restated
Certificate of Incorporation or its By-laws and none of the Principal
Subsidiaries is in violation of its respective charter, or except for
any such violations which would not have a material adverse effect on
the Company and its subsidiaries taken as a whole, in violation of
its by-laws, nor is the Company or any of the Principal Subsidiaries,
except as set forth in the Registration Statement, in default in the
performance of any obligation, agreement or condition contained in
any bond, debenture, note or any other evidence of indebtedness or in
any other agreement, indenture or instrument to which the Company or
any of the Principal Subsidiaries is a party or by which it or any of
the Principal Subsidiaries or their respective property is bound
except for any such defaults which, individually or in the aggregate,
would not have a material adverse effect on the business, financial
condition or results of operations of the Company and the Principal
Subsidiaries, taken as a whole.
(j) The execution, delivery and performance of this Agreement,
the Indenture and the Notes and compliance by the Company with all
the provisions hereof and thereof and the consummation of the
transactions contemplated hereby and thereby will not require any
consent, approval, authorization or other order of any court,
regulatory body, administrative agency or other governmental body
(except such as may be required under the Securities Act, the
Exchange Act, the Trust Indenture Act, or other securities or Blue
Sky laws) and will not conflict with or constitute a breach of any of
the terms or provisions of, or a default under, the charter or
by-laws of the Company or any of the Principal Subsidiaries or any
agreement, indenture or other instrument to which it or any of the
Principal Subsidiaries is a party or by which it or any of the
Principal Subsidiaries or their respective property is bound, or
violate or conflict with any laws, administrative regulations or
rulings or court decrees applicable to the Company, any of the
Principal Subsidiaries or their respective property (except state
securities or Blue Sky laws).
(k) Except as set forth in the Registration Statement, there
are no material legal or governmental proceedings pending to which
the Company or any of the Principal Subsidiaries is a party or to
which any of their respective property is the subject, and, to the
best of the Company's knowledge, no such proceedings are threatened
or contemplated. No contract or document of a character required to
be described in the Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement is not so described
or filed as required.
(l) Except as set forth in the Registration Statement, neither
the Company nor any of the Principal Subsidiaries has violated any
U.S. federal or state law relating to discrimination in the hiring,
promotion or pay of employees nor any applicable U.S. federal or
state wages and hours laws, or any provisions of the Employee
Retirement Income Security Act or the rules and regulations
promulgated thereunder, which in each case could result in any
material adverse change in the business, financial condition or
results of operations of the Company and the Principal Subsidiaries,
taken as a whole.
(m) Except as set forth in the Registration Statement, the
Company and each of the Principal Subsidiaries has good and
marketable title, free and clear of all liens, claims, encumbrances
and restrictions which are required to be described in the
Registration Statement except liens for taxes not yet due and
payable, to all property and assets described in the Registration
Statement as being owned by it. All leases to which the Company or
any of the Principal Subsidiaries is a party are valid and binding
and no default by the Company or any such Principal Subsidiary, or,
to the best of the Company's knowledge, by any other party to any
such leases, has occurred or is continuing thereunder, which could
result in any material adverse change in the business, financial
condition or results of operations of the Company and the Principal
Subsidiaries taken as a whole, and the Company and the Principal
Subsidiaries enjoy peaceful and undisturbed possession under all such
leases to which any of them is a party as lessee with such exceptions
as do not materially interfere with the use made by the Company or
such Principal Subsidiary.
(n) Deloitte & Touche are independent public accountants with
respect to the Company as required by the Securities Act.
(o) The financial statements, together with related schedules
and notes forming part of the Registration Statement and the
Prospectus (and any amendment or supplement thereto), present fairly
the consolidated financial position, results of operations and
statements of cash flow of the Company and its subsidiaries on the
basis stated in the Registration Statement at the respective dates
and for the respective periods to which they apply; such statements
and related schedules and notes have been prepared in accordance with
generally accepted accounting principles consistently applied
throughout the periods involved, except as disclosed therein; and the
other financial and statistical information and data set forth in the
Registration Statement and the Prospectus (and any amendment or
supplement thereto), in all material respects, present fairly the
information purported to be shown thereby at the respective dates or
for the respective periods to which they apply and have been prepared
on a basis consistent with such financial statements and the books
and records of the Company.
(p) Each of the Company and the Principal Subsidiaries has
such permits, licenses, franchises and authorizations of governmental
or regulatory authorities ("permits") which are required to have been
obtained by it prior to the date hereof and which are material to the
ownership or leasing and operation of or construction of its
respective properties and to the conduct of its business in the
manner described in the Prospectus, except for any such permits, the
failure of which to have, individually or in the aggregate, would not
have a material adverse effect on the business, financial condition
or results of operations of the Company and the Principal
Subsidiaries, taken as a whole, and subject to such qualifications
as may be set forth in the Registration Statement; each of the
Company and the Principal Subsidiaries has fulfilled and performed
all of its material obligations with respect to such permits required
to have been fulfilled and performed prior to the date hereof and no
event has occurred which allows, or after notice or lapse of time
would allow, revocation or termination thereof or result in any other
material impairment of the rights of the holder of any such permit,
subject in each case to such qualification as may be set forth in the
Registration Statement; and, except as described in the Registration
Statement, such permits do not materially interfere with the use or
operation of the electric power generation facilities of the
Principal Subsidiaries as currently used or operated or as
contemplated to be used or operated.
(q) Each of the AES Beaver Valley, the AES Deepwater, the AES
Placerita, the AES Shady Point, the AES Barbers Point and the AES
Thames facilities (each as defined in the Registration Statement) is
a "qualifying cogeneration facility" under the Federal Power Act
("FPA"), as amended by Section 201 of the Public Utility Regulatory
Policies Act of 1978 ("PURPA") and the FERC's regulations promulgated
thereunder, and each such facility's current use, operation and
ownership are consistent with such facility's status as a "qualifying
cogeneration facility".
(r) Neither the Company nor any of the Principal Subsidiaries
is (i) subject to regulation as a "holding company" or a "subsidiary
company" of a holding company or a "public utility company" under
Section 2(a) of the Public Utility Holding Company Act of 1935
("PUHCA"), except that the Company and its subsidiary in the United
Kingdom, Applied Energy Services Electric Limited, are exempt holding
companies under Section 3(a)(5) of PUHCA by order of the Commission,
(ii) subject to regulation under the FPA, other than as contemplated
by 18 C.F.R. Section 292.601(c), or (iii) except as described in the
Registration Statement (other than contained in the exhibits
thereto), subject to regulation by any state law with respect to
rates or the financial or organizational regulation of electric
utilities.
(s) The Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(t) Except as set forth in the Registration Statement, each of
the Company, each Principal Subsidiary, and any other subsidiary or
entity which the Company may be deemed to operate (together with the
Principal Subsidiaries, the "Subsidiaries") is in compliance with all
applicable foreign, federal, state and local environmental
(including, without limitation, the Comprehensive Environmental
Response, Compensation & Liability Act of 1980, as amended), safety
or similar law, rule and regulation, and there are no costs or
liabilities associated with any such law, rule or regulation, except
for any such noncompliances, costs or liabilities which, individually
or in the aggregate, would not have a material adverse effect on the
business, financial condition or results of operations of the Company
and the Subsidiaries, taken as a whole.
(u) The Company has complied with all provisions of Section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida).
7. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act, from and against any and all losses, claims, damages,
liabilities and judgments (i) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (other
than that part of the Registration Statement that constitutes the Form T-1) or
the Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) or any preliminary prospectus, or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities or
judgments are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to any
Underwriter furnished in writing to the Company by or on behalf of any
Underwriter through you expressly for use therein; provided, however, that the
foregoing indemnity agreement with respect to any preliminary prospectus shall
not inure to the benefit of any Underwriter from whom the person asserting any
such losses, claims, damages, liabilities or judgments purchased Notes, or any
person controlling such Underwriter, if a copy of the Prospectus (as then
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such Underwriter
to such person, if required by law so to have been delivered, at or prior to
the written confirmation of the sale of the Notes to such person, and if the
Prospectus (as so amended or supplemented) would have cured the defect giving
rise to such losses, claims, damages, liabilities or judgments.
(b) In case any action shall be brought against any Underwriter or
any person controlling such Underwriter, based upon any preliminary
prospectus, the Registration Statement or the Prospectus or any amendment or
supplement thereto and with respect to which indemnity may be sought against
the Company, such Underwriter shall promptly notify the Company in writing and
the Company shall assume the defense thereof, including the employment of
counsel reasonably satisfactory to such indemnified party and payment of all
fees and expenses. Any Underwriter or any such controlling person shall have
the right to employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Underwriter or such controlling person unless (i) the
employment of such counsel has been specifically authorized in writing by the
Company, (ii) the Company has failed to assume the defense and employ counsel
or (iii) the named parties to any such action (including any impleaded
parties) include both such Underwriter or such controlling person and the
Company and such Underwriter or such controlling person shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the Company
(in which case the Company shall not have the right to assume the defense of
such action on behalf of such Underwriter or such controlling person, it being
understood, however, that the Company shall not, in connection with any one
such action or separate but substantially similar or related actions in the
same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys (in addition to any local counsel) for all such
Underwriters and controlling persons, which firm shall be designated in
writing by __________________ and that all such fees and expenses shall be
reimbursed as they are incurred). The Company shall not be liable for any
settlement of any such action effected without the written consent of the
Company but if settled with the written consent of the Company, the Company
agrees to indemnify and hold harmless any Underwriter and any such controlling
person from and against any loss or liability by reason of such settlement.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second sentence of
this paragraph, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 10 business days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have
been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and any person controlling the Company within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
to the same extent as the foregoing indemnity from the Company to each
Underwriter but only with reference to information relating to such
Underwriter furnished in writing by or on behalf of such Underwriter through
you expressly for use in the Registration Statement, the Prospectus, any
preliminary prospectus or any amendment or supplement thereto. In case any
action shall be brought against the Company, any of its directors, any such
officer or any person controlling the Company based on the Registration
Statement, the Prospectus or any preliminary prospectus or any amendment or
supplement thereto and in respect of which indemnity may be sought against any
Underwriter, the Underwriter shall have the rights and duties given to the
Company (except that if the Company shall have assumed the defense thereof,
such Underwriter shall not be required to do so, but may employ separate
counsel therein and participate in the defense thereof but the fees and
expenses of such counsel shall be at the expense of such Underwriter), and the
Company, its directors, any such officers and any person controlling the
Company shall have the rights and duties given to the Underwriter, by Section
7(b) hereof.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party in respect of any losses, claims, damages,
liabilities or judgments referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages, liabilities and judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Notes or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Underwriters in connection with the statements or omissions which resulted
in such losses, claims, damages, liabilities or judgments, as well as any
other relevant equitable considerations. The relative benefits received by the
Company and the Underwriters shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received
by the Company, and the total underwriting discounts and commissions received
by the Underwriters, bear to the total price to the public of the Notes, in
each case as set forth in the table on the cover page of the Prospectus. The
relative fault of the Company and the Underwriters shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact relates
to information supplied by the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission.
The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7(d) were
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages, liabilities or judgments
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 7, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Notes underwritten by it
and distributed to the public was offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by
reason of such 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 Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to
this Section 7(d) are several in proportion to the respective principal amount
of Notes purchased by each of the Underwriters hereunder and not joint.
8. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Notes under this Agreement are
subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company
contained in this Agreement shall be true and correct on the Closing
Date with the same force and effect as if made on and as of the
Closing Date.
(b) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been commenced or shall be pending before or,
to the best of the Company's knowledge, contemplated by the
Commission.
(c) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date, there shall not have been
any downgrading, nor shall any notice have been given of any intended
or potential downgrading or of any review for a possible change that
does not indicate the direction of the possible change, in the rating
accorded any of the Company's securities by any "nationally
recognized statistical rating organization", as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act.
(d) (i) Since the date of the latest balance sheet included in
the Registration Statement, there shall not have been any material
adverse change, or any development involving a prospective material
adverse change, in the condition, financial or otherwise, or in the
earnings, affairs or business prospects, whether or not arising in
the ordinary course of business, of the Company and the Principal
Subsidiaries, taken as a whole, from that described in the
Registration Statement, (ii) since the date of the latest balance
sheet included in the Registration Statement there shall not have
been any material change, or any development involving a prospective
material adverse change, in the capital stock or in the long-term debt
of the Company from that set forth in the Registration Statement,
(iii) the Company shall have no liability or obligation, direct or
contingent, which is material to the Company and the Principal
Subsidiaries, taken as a whole, other than those reflected in the
Registration Statement and (iv) on the Closing Date you shall have
received a certificate dated the Closing Date, signed by such
executive officers of the Company as you may designate, and such
other certificates of executive officers and key personnel of the
Principal Subsidiaries as you may specify confirming the matters set
forth in paragraphs (a), (b), (c) and (d) of this Section 8.
(e) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the
Closing Date, of William R. Luraschi, General Counsel of AES, to the
effect that:
(i) the Company and each of the Principal Subsidiaries
has been duly incorporated, is validly existing as a
corporation in good standing under the laws of its jurisdiction
of incorporation and has the corporate power and authority
required to carry on its business as it is currently being
conducted and to own its properties;
(ii) the Company and each of the Principal Subsidiaries
is duly qualified and is in good standing as a foreign
corporation authorized to do business in each jurisdiction
in which the nature of its business or its ownership or
leasing of property requires such qualification, except
where the failure to be so qualified would not have a
material adverse effect on the Company and the Principal
Subsidiaries, taken as a whole;
(iii) except as set forth in the Registration Statement
or otherwise set forth on Annex I, all of the outstanding
shares of capital stock of, or other ownership interests in,
the Principal Subsidiaries have been duly and validly
authorized and issued and are fully paid and non-assessable,
and are owned of record, and to the knowledge of such
counsel, after due inquiry, beneficially, by the Company or
the Principal Subsidiary as set forth in such opinion; and
such counsel, after due inquiry, is not aware of any
security interest, claim, lien, encumbrance or adverse
interest of any nature on such shares or other ownership
interests except as set forth in the Registration Statement
or in Annex I;
(iv) the Company is not in violation of its Restated
Certificate of Incorporation or in violation of its By-laws and
none of the Principal Subsidiaries is in violation of its
respective charter or, except for any such violations which
would not have a material adverse effect on the Company and its
subsidiaries taken as a whole, its by-laws;
(v) the execution, delivery and performance of this
Agreement, the Indenture and the Notes by the Company,
compliance by the Company with all the provisions hereof and
thereof and the consummation of the transactions contemplated
hereby and thereby will not require any consent, approval,
authorization or other order of any court, regulatory body,
administrative agency or other governmental body (except such
as may be required under the Securities Act, the Exchange Act,
the Trust Indenture Act or other securities or Blue Sky laws)
and will not conflict with or constitute a breach of any of the
terms or provisions of, or a default under, the charter or
by-laws of the Company or any of the Principal Subsidiaries or
any agreement, indenture or other instrument known to such
counsel, to which the Company or any of the Principal
Subsidiaries is a party or by which the Company or any of the
Principal Subsidiaries or their respective properties are bound
that is material to the Company and its Principal Subsidiaries,
taken as a whole, or violate or conflict with any laws,
administrative regulations or rulings or court decrees known to
such counsel, after due inquiry, applicable to the Company or
any of the Principal Subsidiaries or their respective
properties;
(vi) such counsel does not know of any legal or
governmental proceeding pending or threatened to which the
Company or any of the Principal Subsidiaries is a party or to
which any of their respective property is subject which is
required to be described in the Registration Statement or the
Prospectus and is not so described, or of any contract or other
document which is required to be described in the Registration
Statement or the Prospectus or is required to be filed as an
exhibit to the Registration Statement which is not described or
filed as required;
(vii) each of the applicable Principal Subsidiaries has
obtained all permits, licenses, franchises and authorizations
of governmental or regulatory authorities ("permits") which are
required to have been obtained by it prior to the date hereof
and which are material to the construction, ownership or
leasing and operation of each of the Principal Subsidiaries, as
the case may be, as contemplated by the Registration Statement,
except for any such permits, the failure to have obtained
which, individually or in the aggregate would not have a
material adverse effect on the business, financial condition or
results of operations of the Company and the Principal
Subsidiaries, taken as a whole, and subject to such
qualifications as may be set forth in the Registration
Statement, and all such permits are in full force and effect;
and such counsel has no reason to believe that any other
permits which may be material to the construction, ownership or
leasing and operation of such facilities will not be obtained
in due course;
(ix) each of the AES Beaver Valley, the AES Deepwater,
the AES Placerita, the AES Shady Point, the AES Barbers
Point and the AES Thames facilities is a "qualifying
cogeneration facility" under the FPA, as amended by Section
201 of PURPA and the FERC regulations promulgated
thereunder, and, to the best of such counsel's knowledge,
after due inquiry, each such facility's current use,
operation and ownership are consistent with such facility's
status as a "qualifying cogeneration facility";
(x) neither the Company nor any of the Principal
Subsidiaries is (i) subject to regulation as a "holding
company" or a "subsidiary company" of a holding company or an
"affiliate" of a subsidiary or holding company or a "public
utility company" under Section 2(a) of PUHCA, except that the
Company and its subsidiary in the United Kingdom, Applied
Energy Services Electric Limited, are exempt holding
companies under Section 3(a)(5) of PUHCA by order of the
Commission, (ii) subject to regulation under the FPA, other
than as contemplated by 18 C.F.R. Section 292.601(c), or
(iii) except as described in the Registration Statement,
subject to regulation under any state law with respect to
the rates or the financial or organizational regulation of
electric utilities; and
(xi) the Company is not an "investment company" or a
company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(f) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the
Closing Date, of Davis Polk & Wardwell, counsel for the Company, to
the effect that:
(i) the Notes have been duly authorized and, when
executed and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement,
will be entitled to the benefits of the Indenture and will
be valid and binding obligations of the Company enforceable
in accordance with their terms except as the enforceability
thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and by equitable
principles of general applicability;
(ii) this Agreement has been duly authorized, executed
and delivered by the Company and is a valid and binding
agreement of the Company (except as rights to indemnity and
contribution hereunder may be limited by applicable law);
(iii) the Indenture has been duly qualified under the
Trust Indenture Act, and has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement
of the Company, enforceable in accordance with its terms except
as the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights
generally and be equitable principles of general applicability;
(iv) the Notes conform as to legal matters to the
description thereof contained in the Registration Statement and
the Prospectus;
(v) the Registration Statement has become effective under
the Securities Act (assuming compliance with clause (2) of Rule
462(b) in the case of the Additional Registration Statement)
and, to the best of such counsel's knowledge, no stop order
suspending its effectiveness has been issued and no proceedings
for that purpose are pending before or contemplated by the
Commission;
(vi) the statements under the captions "____________" in
the Prospectus, insofar as such statements constitute a summary
of the legal matters, documents or proceedings specifically
referred to therein, fairly present all the material
information called for with respect to such legal matters,
documents or proceedings;
(vii) except for the order of the Commission making the
Registration Statement effective and permits and similar
authorizations required under the securities or Blue Sky laws
of certain states, no consent, approval, authorization or other
order of any regulatory body, administrative agency or other
governmental body is legally required for the valid issuance
and sale of the Notes to the Underwriters as contemplated by
this Agreement or the public offering of the Notes contemplated
by the Prospectus; and
(viii) the Registration Statement and the Prospectus and
any supplement or amendment thereto (except for financial
statements and other financial and statistical information
therein as to which no opinion need be expressed) comply as to
form in all material respects with the Securities Act.
In addition, Davis Polk & Wardwell will deliver a separate
letter to the effect that such counsel has participated in
conferences with directors, officers and other representatives of the
Company and representatives of the independent public accountants for
the Company, at which conferences the contents of the Registration
Statement and related matters were discussed, and, although such
counsel has not independently verified and is not passing upon and
assume no responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement, except as
specified, no facts have come to such counsel's attention which lead
such counsel to believe that the Registration Statement (other than
any financial statements or other financial or statistical
information therein and that part of the Registration Statement that
constitutes the Form T-1 as to which no opinion is expressed) at its
effective date contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements contained therein not misleading, or
that the Prospectus as of its date or the Closing Date (other than
any financial statements or other financial or statistical
information therein as to which no opinion is expressed), contained
any untrue statement of a material fact or omitted to state any
material fact necessary to make the statements contained therein, in
the light of the circumstances under which they were made, not
misleading.
In rendering their opinions above, Davis Polk & Wardwell may
rely as to factual matters on such certificates of the Company's
officers or of governmental officials as they may deem relevant or
necessary for such opinions and as to matters governed by other than
federal or New York law or by the General Corporation Law of Delaware
on opinions of local counsel.
In addition, Mr. Luraschi will deliver a separate letter to
the effect that such counsel has participated in conferences with
directors, officers and other representatives of the Company and
representatives of the independent public accountants for the
Company, at which conferences the contents of the Registration
Statement and related matters were discussed, and, although such
counsel has not independently verified and is not passing upon and
assume no responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement, except as
specified, no facts have come to such counsel's attention which lead
such counsel to believe that the Registration Statement (other than
any financial statements or other financial or statistical
information therein and that part of the Registration Statement that
constitutes the Form T-1 as to which no opinion is expressed) at its
effective date contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements contained therein not misleading, or
that the Prospectus as of its date or the Closing Date (other than
any financial statements or other financial or statistical
information therein as to which no opinion is expressed), contained
any untrue statement of a material fact or omitted to state any
material fact necessary to make the statements contained therein, in
the light of the circumstances under which they were made, not
misleading.
In rendering the opinions above, Mr. Luraschi may rely as to
factual matters on such certificates of the Company's officers or of
governmental officials as he may deem relevant or necessary for such
opinions and as to matters governed by other than federal or New York
law or by the General Corporation Law of Delaware on opinions of
local counsel.
(g) You shall have received on the Closing Date an opinion,
dated the Closing Date, of ___________, counsel for the Underwriters,
as to the matters referred to in clauses (i), (ii), (iii), (vi) (but
only with respect to the statements under the captions "Description
of Notes" and "Underwriting") and (viii) of the foregoing paragraph
(f).
With respect to subparagraph (viii) of paragraph (f) above and
the final subparagraph of this paragraph (g), __________ may state
that their opinion and belief is based upon their participation in
the preparation of the Registration Statement and the Prospectus and
any amendments or supplements thereto (but not including documents
incorporated therein by reference) and review and discussion of the
contents thereof (including documents incorporated therein by
reference), but is without independent check or verification except
as specified.
In addition, Davis Polk & Wardwell will opine to the effect
that such counsel has participated in conferences with officers and
other representatives of the Company and representatives of the
independent public accountants for the Company, at which conferences
the contents of the Registration Statement and related matters were
discussed, and, although such counsel has not independently verified
and is not passing upon and assume no responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement, except as specified, no facts have come to
such counsel's attention which lead such counsel to believe that the
Registration Statement (other than any financial statements or other
financial or statistical information therein and that part of the
Registration Statement that constitutes the Form T-1 as to which no
opinion is expressed) at its effective date contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
contained therein not misleading, or that the Prospectus as of its
date or the Closing Date (other than any financial statements or
other financial or statistical information therein as to which no
opinion is expressed), contained any untrue statement of a material
fact or omitted to state any material fact necessary to make the
statements contained therein, in the light of the circumstances under
which they were made, not misleading.
(h) You shall have received a letter on and as of the Closing
Date, in form and substance satisfactory to you, from Deloitte &
Touche, independent public accountants, with respect to the financial
statements and certain financial information contained in the
Registration Statement and the Prospectus and substantially in the
form and substance of the letter delivered to you by Deloitte &
Touche on the date of this Agreement.
(i) The Company shall not have failed at or prior to the
Closing Date to perform or comply with any of the agreements herein
contained and required to be performed or complied with by the
Company at or prior to the Closing Date.
9. Effective Date of Agreement and Termination. This
Agreement shall become effective upon the later of (i) execution of this
Agreement and (ii) when notification of the effectiveness of the Registration
Statement has been released by the Commission.
This Agreement may be terminated at any time prior to the
Closing Date by you by written notice to the Company if any of the following
has occurred: (i) since the respective dates as of which information is given
in the Registration Statement and the Prospectus, any adverse change or
development involving a prospective adverse change in the condition, financial
or otherwise, of the Company, any Principal Subsidiary or the earnings,
affairs, or business prospects of the Company or any Principal Subsidiary,
whether or not arising in the ordinary course of business, which would, in
your reasonable judgment, make it impracticable to market the Notes on the
terms and in the manner contemplated in the Prospectus, (ii) any outbreak or
escalation of hostilities or other national or international calamity or
crisis or material change in economic conditions, if the effect of such
outbreak, escalation, calamity, crisis or change on the financial markets of
the United States or elsewhere would, in your reasonable judgment, make it
impracticable to market the Notes on the terms and in the manner contemplated
in the Prospectus, (iii) the suspension or material limitation of trading in
securities on the New York Stock Exchange, the American Stock Exchange or the
NASDAQ National Market System or limitation on prices for securities on any
such exchange or National Market System, (iv) the enactment, publication,
decree or other promulgation of any federal or state statute, regulation, rule
or order of any court or other governmental authority which in your reasonable
judgment materially and adversely affects, or will materially and adversely
affect, the business or operations of the Company, (v) the declaration of a
banking moratorium by either federal or New York State authorities or (vi) the
taking of any action by any federal, state or local government or agency in
respect of its monetary or fiscal affairs which in your reasonable judgment
has a material adverse effect on the financial markets in the United States.
If on the Closing Date any one or more of the Underwriters
shall fail or refuse to purchase the Notes which it or they have agreed to
purchase hereunder on such date and the aggregate principal amount of Notes
which such defaulting Underwriter or Underwriters, as the case may be, agreed
but failed or refused to purchase is not more than one-tenth of the total
principal amount of Notes to be purchased by all Underwriters, each
non-defaulting Underwriter shall be obligated severally, in the proportion
which the principal amount of Notes set forth opposite its name in Schedule I
bears to the aggregate principal amount of Notes which all the non-defaulting
Underwriters, as the case may be, have agreed to purchase, or in such other
proportion as you may specify, to purchase the Notes which such defaulting
Underwriter or Underwriters, as the case may be, agreed but failed or refused
to purchase on such date; provided that in no event shall the principal amount
of Notes which any Underwriter has agreed to purchase pursuant to Section 2
hereof be increased pursuant to this Section 9 by an amount in excess of
one-ninth of such principal amount of Notes without the written consent of
such Underwriter. If on the Closing Date any Underwriter or Underwriters
shall fail or refuse to purchase Notes and the aggregate principal amount of
Notes with respect to which such default occurs is more than one-tenth of the
aggregate principal amount of Notes to be purchased on such date by all
Underwriters in the event of a default by a Underwriter and arrangements
satisfactory to you and the Company for purchase of such Notes are not made
within 48 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter and the Company. In
any such case which does not result in termination of this Agreement, either
you or the Company shall have the right to postpone the Closing Date but in no
event for longer than seven days, in order that the required changes, if any,
in the Registration Statement and the Prospectus or any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
any such Underwriter under this Agreement.
10. Miscellaneous. Notices given pursuant to any provision of
this Agreement shall be addressed as follows: (a) if to the Company, to The
AES Corporation, 1001 N. 19th Street, Arlington, Virginia 22209, Attention:
General Counsel and (b) if to any Underwriter or to you, to you c/o
____________________________, Attention: Syndicate Department, or in any case
to such other address as the person to be notified may have requested in
writing.
The respective indemnities, contribution agreements,
representations, warranties and other statements of the Company, its officers
and directors and of the several Underwriters set forth in or made pursuant to
this Agreement shall remain operative and in full force and effect, and will
survive delivery of and payment for the Notes, regardless of (i) any
investigation, or statement as to the results thereof, made by or on behalf of
any Underwriter or by or on behalf of the Company, the officers or directors
of the Company or any controlling person of the Company, (ii) acceptance of the
Notes and payment for them hereunder and (iii) termination of this Agreement.
If this Agreement shall be terminated by the Underwriters
because of any failure or refusal on the part of the Company to comply with
the terms or to fulfill any of the conditions of this Agreement, the Company
agrees to reimburse the several Underwriters for all out-of-pocket expenses
(including the fees and disbursements of counsel) reasonably incurred by them.
Except as otherwise provided, this Agreement has been and is
made solely for the benefit of and shall be binding upon the Company, the
Underwriters, any controlling persons referred to herein and their respective
successors and assigns, all as and to the extent provided in this Agreement,
and no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include a purchaser of
any of the Notes from any of the several Underwriters merely because of such
purchase.
This Agreement shall be governed and construed in accordance
with the laws of the State of New York.
This Agreement may be signed in various counterparts which
together shall constitute one and the same instrument.
Please confirm that the foregoing correctly sets forth the
agreement between the Company and the Underwriters.
Very truly yours,
THE AES CORPORATION
By:____________________________________
Acting severally on behalf of
itself and the several Underwriters
named above
By:__________________________________
SCHEDULE I
Principal Amount of Notes
Underwriters to be Purchased
------------ -------------------------
_____________
Total................................................. $
=============
Annex I
Principal Subsidiaries
Ownership Security
Name Interest Interest
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[INSERT]