EXHIBIT 4.17
PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of __________, 1996 (this
"Agreement"), among The AES Corporation, a Delaware corporation (the
"Company"), _____________, not individually but solely as collateral agent (in
such capacity, together with its successors in such capacity, the "Collateral
Agent"), and _______________________, not individually but solely as purchase
contract agent and as attorney-in-fact of the Holders (as hereinafter defined)
from time to time of the Securities (as hereinafter defined) (in such
capacity, together with its successors in such capacity, the "Purchase
Contract Agent") under the Purchase Contract Agreement (as hereinafter
defined).
RECITALS
The Company and the Purchase Contract Agent are parties to the
Purchase Contract Agreement, dated as of the date hereof (as modified and
supplemented and in effect from time to time, the "Purchase Contract
Agreement"), pursuant to which there will be issued ____% Preferred Redeemable
Increased Dividend Equity Securities (the "Securities").
Each Security consists of (a) one Purchase Contract (as
hereinafter defined) and (b) ___% United States Treasury Notes due ________,
____ ("Treasury Notes") having a principal amount equal to $__________ (the
"Stated Amount") and maturing on _________, ____ (the "Final Settlement
Date"), subject to the pledge of such Treasury Notes created hereby.
The Company has caused the Underwriters to purchase the
Treasury Notes on its behalf with the proceeds of the offering of the
Securities and the Company has simultaneously conveyed such Treasury Notes to
the Holders as a part of the Securities.
Pursuant to the terms of the Purchase Contract Agreement and
the Purchase Contracts, the Holders (as defined in the Purchase Contract
Agreement) from time to time of the Securities have irrevocably authorized
the Purchase Contract Agent, as attorney-in-fact of such Holders, among
other things to execute and deliver this Agreement on behalf of such
Holders and to grant the pledge provided hereby of the Treasury Notes
constituting part of such Securities as provided herein and subject to the
terms hereof.
Accordingly, the Company, the Collateral Agent and the Purchase
Contract Agent, on its own behalf and as attorney-in-fact of the Holders from
time to time of the Securities, agree as follows:
Section 1. Definitions. For all purposes of this Agreement,
except as otherwise expressly provided or unless the context otherwise
requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular; and
(2) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Act" has the meaning specified in the Purchase Contract
Agreement.
"Agreement" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more agreements
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Applicable Treasury Regulations" means Subpart O-Book-Entry
Procedure of Title 31 of the Code of Federal Regulations (31 CFR (S) 306.115
et. seq.) and any other regulations of the United States Treasury Department
from time to time applicable to the transfer or pledge of book-entry U.S.
Treasury Securities.
"Bankruptcy Code" means Title 11 of the United States Code, or
any other law of the United States that from time to time provides a uniform
system of bankruptcy laws.
"Board Resolution" has the meaning specified in the Purchase
Contract Agreement.
"Business Day" means any day that is not a Saturday, a Sunday
or a day on which the New York Stock Exchange or banking institutions or trust
companies in The City of New York are authorized or obligated by law or
executive order to be closed.
"Collateral Agent" has the meaning specified in the first
paragraph of this instrument.
"Collateral Account" means the account maintained at
_____________ in the name "_____________ as Collateral Agent of The AES
Corporation as pledgee of _____________________ as Purchase Contract Agent".
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor shall have become such, and
thereafter "Company" shall mean such successor.
"Early Settlement" has the meaning specified in the Purchase
Contract Agreement.
"Early Settlement Amount" has the meaning specified in the
Purchase Contract Agreement.
"Final Settlement Date" has the meaning specified in the
Recitals.
"Holder" when used with respect to a Security, or a Purchase
Contract constituting a part thereof, has the meaning specified in the
Purchase Contract Agreement.
"Opinion of Counsel" means an opinion in writing signed by
legal counsel, who may be an employee of or counsel to the Company and who
shall be reasonably acceptable to the Collateral Agent or the Purchase
Contract Agent, as the case may be.
"Outstanding Securities" has the meaning specified in the
Purchase Contract Agreement.
"Outstanding Security Certificates" has the meaning specified
in the Purchase Contract Agreement.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Pledge" has the meaning specified in Section 2 hereof.
"Pledged Treasury Notes" has the meaning specified in Section 2
hereof.
"Purchase Contract" has the meaning specified in the Purchase
Contract Agreement.
"Purchase Contract Agent" has the meaning specified in the
first paragraph of this instrument.
"Security" has the meaning specified in the Recitals.
"Security Certificate" has the meaning specified in the
Purchase Contract Agreement.
"Stated Amount" has the meaning specified in the Recitals.
"Termination Event" has the meaning specified in the Purchase
Contract Agreement.
"Treasury Notes" has the meaning specified in the Recitals.
Section 2. The Pledge. The Holders from time to time of the
Securities acting through the Purchase Contract Agent, as their
attorney-in-fact, hereby pledge and grant to the Collateral Agent for the
benefit of the Company, as collateral security for the performance when due by
such Holders of their respective obligations under the Purchase Contracts
constituting part of such Securities, a security interest in all of the right,
title and interest of such Holders in the Treasury Notes constituting a part
of such Securities. Prior to or concurrently with the execution and delivery
of this Agreement, the initial Holders and the Purchase Contract Agent shall
(i) cause the Treasury Notes to be transferred to the Collateral Agent by
Federal Reserve Bank-Wire to the account of the Collateral Agent and (ii) the
Collateral Agent shall credit the Treasury Notes to the Collateral Account; in
each case pursuant to Applicable Treasury Regulations and to the Uniform
Commercial Code to the extent such laws are applicable. The pledge provided
in this Section 2 is herein referred to as the "Pledge" and the Treasury Notes
subject to the Pledge, excluding any Treasury Notes released from the Pledge
as provided in Section 4 hereof, are hereinafter referred to as the "Pledged
Treasury Notes". Subject to the Pledge, the Holders from time to time of the
Securities shall have full beneficial ownership of the Treasury Notes
constituting a part of such Securities.
Section 3. Distribution of Principal and Interest. (a) All
payments of principal of, or interest on, any Treasury Notes constituting part
of the Securities received by the Collateral Agent shall be paid by the
Collateral Agent by wire transfer in same day funds no later than 1:00 p.m.,
New York City time, on the Business Day such interest payment is received by
the Collateral Agent (provided that in the event such interest payment is
received by the Collateral Agent on a day that is not a Business Day or after
1:00 p.m., New York City time, on a Business Day, then such payment shall be
made no later than 10:00 a.m., New York City time, on the next succeeding
Business Day) (i) in the case of (A) interest payments and (B) any principal
payments with respect to any Treasury Notes that have been released from the
Pledge pursuant to Section 4 hereof, to the Purchase Contract Agent to the
account designated by it for such purpose and (ii) in the case of principal
payments on any Pledged Treasury Notes, the Purchase Contract Agent on behalf
of the Holder hereby directs the Collateral Agent to make such payments to the
Company, in full satisfaction of the respective obligations of the Holders of
the Securities of which such Pledged Treasury Notes are a part under the
Purchase Contracts forming a part of such Securities. All such payments
received by the Purchase Contract Agent as provided herein shall be applied by
the Purchase Contract Agent pursuant to the provisions of the Purchase
Contract Agreement. If, notwithstanding the foregoing, the Purchase Contract
Agent shall receive any payments of principal on account of any Pledged
Treasury Notes, the Purchase Contract Agent shall hold the same as trustee of
an express trust for the benefit of the Company (and promptly deliver over to
the Company) for application to the obligations of the Holders of the
Securities of which such Treasury Notes are a part under the Purchase
Contracts relating to the Securities of which such Treasury Notes are a part,
and such Holders shall acquire no right, title or interest in any such
payments of principal so received.
Section 4. Release of Pledged Treasury Notes. (a) Upon
written notice to the Collateral Agent by the Company or the Purchase Contract
Agent that there has occurred a Termination Event, the Collateral Agent shall
release all Pledged Treasury Notes from the Pledge and shall transfer all such
Treasury Notes, free and clear of any lien, pledge or security interest
created hereby, to the Purchase Contract Agent.
If such Termination Event shall result from the Company's
becoming a debtor under the Bankruptcy Code, and if the Collateral Agent shall
for any reason fail immediately to effectuate the release and transfer of all
Pledged Treasury Notes as provided by this Section 4(a), the Purchase Contract
Agent shall, subject to Section 6.12, (i) use its best efforts to obtain an
opinion of a nationally recognized law firm reasonably acceptable to the
Collateral Agent to the effect that, as a result of the Company's being the
debtor in such a bankruptcy case, the Collateral Agent will not be prohibited
from releasing or transferring the Treasury Notes as provided in this Section
4(a), and shall deliver such opinion to the Collateral Agent within ten days
after the occurrence of such Termination Event, and if (y) the Purchase
Contract Agent shall be unable to obtain such opinion within ten days after
the occurrence of such Termination Event or (z) the Collateral Agent shall
continue, after delivery of such opinion, to refuse to effectuate the release
and transfer of all Pledged Treasury Notes as provided in this Section 4(a),
then the Purchase Contract Agent shall within fifteen days after the
occurrence of such Termination Event commence an action or proceeding in the
court with jurisdiction of the Company's case under the Bankruptcy Code
seeking an order requiring the Collateral Agent to effectuate the release
and transfer of all Pledged Treasury Notes as provided by this Section 4(a)
or (ii) commence an action or proceeding like that described in subsection
(i)(z) hereof within ten days after the occurrence of such Termination
Event.
(b)Upon written notice to the Collateral Agent by the Purchase
Contract Agent that one or more Holders of Securities have elected to effect
Early Settlement of their respective obligations under the Purchase Contracts
forming a part of such Securities in accordance with the terms of the Purchase
Contracts and the Purchase Contract Agreement (setting forth the number of
such Purchase Contracts as to which such Holders have elected to effect Early
Settlement), and that the Purchase Contract Agent has received from such
Holders, and paid to the Company, the related Early Settlement Amounts
pursuant to the terms of the Purchase Contracts and the Purchase Contract
Agreement and that all conditions to such Early Settlement have been
satisfied, then the Collateral Agent shall release from the Pledge Pledged
Treasury Notes with a principal amount equal to the product of (i) the Stated
Amount times (ii) the number of such Purchase Contracts as to which such
Holders have elected to effect Early Settlement.
(c)Transfers of Treasury Notes pursuant to Section 4(a) or (b)
shall be by Federal Reserve Bank-Wire or in another appropriate manner, (i) if
the Collateral Agent shall have received such notification at or prior to
11:00 a.m., New York City time, on a Business Day, then no later than 2:00
p.m., New York City time, on such Business Day and (ii) if the Collateral
Agent shall have received such notification on a day that is not a Business
Day or after 11:00 a.m., New York City time, on a Business Day, then no later
than 10:00 a.m., New York City time, on the next succeeding Business Day.
Section 5. Rights and Remedies. (a) The Collateral Agent
shall have all of the rights and remedies with respect to the Pledged Treasury
Notes of a secured party under the Uniform Commercial Code as in effect in the
State of New York (the "Code") (whether or not the Code is in effect in the
jurisdiction where the rights and remedies are asserted) and such additional
rights and remedies to which a secured party is entitled under the laws in
effect in any jurisdiction where any rights and remedies hereunder may be
asserted.
(b) Without limiting any rights or powers otherwise granted by
this Agreement to the Collateral Agent, in the event the Collateral Agent is
unable to make payments to the Company on account of principal payments of any
Pledged Treasury Notes as provided in Section 3 hereof in satisfaction of the
obligations of the Holder of the Securities of which such Pledged Treasury
Notes are a part under the Purchase Contracts forming a part of such
Securities, the Collateral Agent shall have and may exercise, with reference
to such Pledged Treasury Notes and such obligations of such Holder, any and
all of the rights and remedies available to a secured party under the Code
after default by a debtor, and as otherwise granted herein or under any other
law.
(c) Without limiting any rights or powers otherwise granted by
this Agreement to the Collateral Agent, the Collateral Agent is hereby
irrevocably authorized to receive and collect all payments of principal of or
interest on the Pledged Treasury Notes.
(d) The Purchase Contract Agent agrees that, from time to
time, upon the written request of the Collateral Agent, the Purchase
Contract Agent shall execute and deliver such further documents and do such
other acts and things as the Collateral Agent may reasonably request in
order to maintain the Pledge, and the perfection and priority thereof, and
to confirm the rights of the Collateral Agent hereunder.
Section 6. The Collateral Agent and the Purchase Contract
Agent. It is hereby agreed as follows:
6.01. Appointment, Powers and Immunities. The Collateral
Agent shall act as agent for the Company hereunder with such powers as are
specifically vested in the Collateral Agent by the terms of this Agreement,
together with such other powers as are reasonably incidental thereto. The
Collateral Agent: (a) shall have no duties or responsibilities except those
expressly set forth in this Agreement and no implied covenants or obligations
shall be inferred from this Agreement against the Collateral Agent, nor shall
the Collateral Agent be bound by the provisions of any agreement by any party
hereto beyond the specific terms hereof; (b) shall not be responsible for any
recitals contained in this Agreement, or in any certificate or other document
referred to or provided for in, or received by it under, this Agreement, the
Securities or the Purchase Contract Agreement, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement
(other than as against the Collateral Agent), the Securities or the Purchase
Contract Agreement or any other document referred to or provided for herein or
therein or for any failure by the Company or any other Person (except the
Collateral Agent) to perform any of its obligations hereunder or thereunder;
(c) shall not be required to initiate or conduct any litigation or collection
proceedings hereunder (except pursuant to directions furnished under Section
6.02 hereof); (d) shall not be responsible for any action taken or omitted to
be taken by it hereunder or under any other document or instrument referred to
or provided for herein or in connection herewith or therewith, except for its
own negligence; and (e) shall not be required to advise any party as to
selling or retaining, or taking or refraining from taking any action with
respect to, any securities or other property deposited hereunder. Subject to
the foregoing, during the term of this Agreement, the Collateral Agent shall
take all reasonable action in connection with the safe keeping and
preservation of the Pledged Treasury Notes hereunder.
No provision of this Agreement shall require the Collateral Agent to expend or
risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder. In no event shall the Collateral
Agent be liable for any amount in excess of the value of the Pledged Treasury
Notes.
6.02. Instructions of the Company. The Company shall have the
right, by one or more instruments in writing executed and delivered to the
Collateral Agent, to direct the time, method and place of conducting any
proceeding for any right or remedy available to the Collateral Agent, or of
exercising any power conferred on the Collateral Agent, or to direct the
taking or refraining from taking of any action authorized by this Agreement;
provided, however, that (i) such direction shall not conflict with the
provisions of any law or of this Agreement and (ii) the Collateral Agent shall
be adequately indemnified as provided herein. Nothing in this Section 6.02
shall impair the right of the Collateral Agent in its discretion to take any
action or omit to take any action which it deems proper and which is not
inconsistent with such direction.
6.03. Reliance by Collateral Agent. The Collateral Agent shall
be entitled to rely upon any certification, order, judgment, opinion, notice
or other communication (including, without limitation, any thereof by
telephone, telecopy, telex, telegram or cable) believed by it to be genuine
and correct and to have been signed or sent by or on behalf of the proper
Person or Persons (without being required to determine the correctness of any
fact stated therein), and upon advice and statements of legal counsel and
other experts selected by the Collateral Agent. As to any matters not
expressly provided for by this Agreement, the Collateral Agent shall in all
cases be fully protected in acting, or in refraining from acting, hereunder in
accordance with instructions given by the Company in accordance with this
Agreement.
6.04. Rights in Other Capacities. The Collateral Agent and its
affiliates may (without having to account therefor to the Company) accept
deposits from, lend money to, make investments in and generally engage in any
kind of banking, trust or other business with the Purchase Contract Agent and
any Holder of Securities (and any of their subsidiaries or affiliates) as if
it were not acting as the Collateral Agent, and the Collateral Agent and its
affiliates may accept fees and other consideration from the Purchase Contract
Agent and any Holder of Securities without having to account for the same to
the Company, provided that the Collateral Agent covenants and agrees with the
Company that the Collateral Agent shall not accept, receive or permit there to
be created in its favor any security interest, lien or other encumbrance of
any kind in or upon the Pledged Treasury Notes.
6.05. Non-Reliance on Collateral Agent. The Collateral Agent
shall not be required to keep itself informed as to the performance or
observance by the Purchase Contract Agent or any Holder of Securities of this
Agreement, the Purchase Contract Agreement, the Securities or any other
document referred to or provided for herein or therein or to inspect the
properties or books of the Purchase Contract Agent or any Holder of
Securities. The Collateral Agent shall not have any duty or responsibility to
provide the Company with any credit or other information concerning the
affairs, financial condition or business of the Purchase Contract Agent or any
Holder of Securities (or any of their affiliates) that may come into the
possession of the Collateral Agent or any of its affiliates.
6.06. Compensation and Indemnity. The Company agrees: (i) to
pay the Collateral Agent from time to time reasonable compensation for all
services rendered by it hereunder and (ii) to indemnify the Collateral Agent
for, and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of its powers and duties under this
Agreement, including the costs and expenses (including reasonable fees and
expenses of counsel) of defending itself against any claim or liability in
connection with the exercise or performance of such powers and duties.
6.07. Failure to Act. In the event of any ambiguity in the
provisions of this Agreement or any dispute between or conflicting claims by
or among the parties hereto and/or any other Person with respect to any funds
or property deposited hereunder, the Collateral Agent shall be entitled, at
its sole option, to refuse to comply with any and all claims, demands or
instructions with respect to such property or funds so long as such dispute or
conflict shall continue, and the Collateral Agent shall not be or become
liable in any way to any of the parties hereto for its failure or refusal to
comply with such conflicting claims, demands or instructions. The Collateral
Agent shall be entitled to refuse to act until either (i) such conflicting or
adverse claims or demands shall have been finally determined by a court of
competent jurisdiction or settled by agreement between the conflicting parties
as evidenced in a writing, satisfactory to the Collateral Agent or (ii) the
Collateral Agent shall have received security or an indemnity satisfactory to
the Collateral Agent sufficient to save the Collateral Agent harmless from and
against any and all loss, liability or expense which the Collateral Agent may
incur by reason of its acting. The Collateral Agent may in addition elect to
commence an interpleader action or seek other judicial relief or orders as the
Collateral Agent may deem necessary. Notwithstanding anything contained
herein to the contrary, the Collateral Agent shall not be required to take any
action that is in its opinion contrary to law or to the terms of this
Agreement, or which would in its opinion subject it or any of its officers,
employees or directors to liability.
6.08. Resignation of Collateral Agent. Subject to the
appointment and acceptance of a successor Collateral Agent as provided below,
(a) the Collateral Agent may resign at any time by giving notice thereof to
the Company and the Purchase Contract Agent, (b) the Collateral Agent may be
removed at any time by the Company and (c) if the Collateral Agent fails to
perform any of its material obligations hereunder in any material respect for
a period of not less than 20 days after receiving written notice of such
failure by the Purchase Contract Agent and such failure shall be continuing,
the Collateral Agent may be removed by the Purchase Contract Agent. The
Purchase Contract Agent shall promptly notify the Company of any removal of
the Collateral Agent pursuant to clause (c) of the immediately preceding
sentence. Upon any such resignation or removal, the Company shall have the
right to appoint a successor Collateral Agent. If no successor Collateral
Agent shall have been so appointed and shall have accepted such appointment
within 30 days after the retiring Collateral Agent's giving of notice of
resignation or such removal, then the retiring Collateral Agent may petition
any court of competent jurisdiction for the appointment of a successor
Collateral Agent. The Collateral Agent shall be a bank which has an office in
New York, New York with a combined capital and surplus of at least
$50,000,000. Upon the acceptance of any appointment as Collateral Agent
hereunder by a successor Collateral Agent, such successor Collateral Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Collateral Agent, and the retiring
Collateral Agent shall take all appropriate action to transfer any money and
property held by it hereunder (including the Pledged Treasury Notes) to such
successor Collateral Agent. The retiring Collateral Agent shall, upon such
succession, be discharged from its duties and obligations as Collateral Agent
hereunder. After any retiring Collateral Agent's resignation hereunder as
Collateral Agent, the provisions of this Section 6 shall continue in effect
for its benefit in respect of any actions taken or omitted to be taken by it
while it was acting as the Collateral Agent.
Promptly following the removal or resignation of the Collateral
Agent the Company shall give written notice thereof to Xxxxx'x Investors
Services, Inc.
6.09. Right to Appoint Agent or Advisor. The Collateral Agent
shall have the right to appoint agents or advisors in connection with any of
its duties hereunder, and the Collateral Agent shall not be liable for any
action taken or omitted by such agents or advisors selected in good faith.
6.10. Survival. The provisions of this Section 6 shall
survive termination of this Agreement and the resignation or removal of the
Collateral Agent.
6.11. Anything in this Agreement to the contrary
notwithstanding, in no event shall the Collateral Agent or its officers,
employees or agents be liable under this Agreement to any third party for
indirect, special, punitive, or consequential loss or damage of any kind
whatsoever, including lost profits' whether or not the likelihood of such loss
or damage was known to the Collateral Agent, or any of them, incurred without
any act or deed that is found to be attributable to gross negligence on the
part of the Collateral Agent.
6.12. The Purchase Contract Agent. The duties and
responsibilities of the Purchase Contract Agent under this Agreement shall in
each case be governed by Article VII of the Purchase Contract Agreement.
Section 7. Amendment.
7.01. Amendment Without Consent of Holders. Without the
consent of any Holders, the Company, the Collateral Agent and the Purchase
Contract Agent, at any time and from time to time, may amend this
Agreement, in form satisfactory to the Company, the Collateral Agent and
the Purchase Contract Agent, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the covenants of the
Company; or
(2) to add to the covenants of the Company for the
benefit of the Holders, or to surrender any right or power herein conferred
upon the Company; or
(3) to evidence and provide for the acceptance of
appointment hereunder by a successor Collateral Agent or Purchase Contract
Agent; or
(4) to cure any ambiguity, to correct or supplement any
provisions herein which may be inconsistent with any other such provisions
herein, or to make any other provisions with respect to such matters or
questions arising under this Agreement, provided such action shall not
adversely affect the interests of the Holders.
7.02. Amendment with Consent of Holders. With the consent of
the Holders of not less than 66 2/3% of the Outstanding Securities, by Act of
said Holders delivered to the Company, the Purchase Contract Agent and the
Collateral Agent, the Company, when authorized by a Board Resolution, the
Purchase Contract Agent and the Collateral Agent may amend this Agreement for
the purpose of modifying in any manner the provisions of this Agreement or the
rights of the Holders in respect of the Securities; provided, however, that no
such supplemental agreement shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the amount or type of Treasury Notes
underlying a Security, impair the right of the Holder of any Security to
receive interest payments on the underlying Treasury Notes or otherwise
adversely affect the Holder's rights in or to such Treasury Notes; or
(2) otherwise effect any action that would require the
consent of the Holder of each Outstanding Security affected thereby pursuant
to the Purchase Contract Agreement if such action were effected by an
agreement supplemental thereto; or
(3) reduce the percentage of Outstanding Securities the
consent of whose Holders is required for any such amendment.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed amendment, but it shall
be sufficient if such Act shall approve the substance thereof.
7.03. Execution of Amendments. In executing any amendment
permitted by this Section, the Collateral Agent and the Purchase Contract
Agent shall be entitled to receive and (subject to Section 6.01 hereof, with
respect to the Collateral Agent, and Section 7.1 of the Purchase Contract
Agreement, with respect to the Purchase Contract Agent) shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such amendment is authorized or permitted by this Agreement.
7.04. Effect of Amendments. Upon the execution of any
amendment under this Section, this Agreement shall be modified in accordance
therewith, and such amendment shall form a part of this Agreement for all
purposes; and every Holder of Security Certificates theretofore or thereafter
authenticated, executed on behalf of the Holders and delivered under the
Purchase Contract Agreement shall be bound thereby and that all conditions
precedent to such execution and delivery have been satisfied.
7.05. Reference to Amendments. Security Certificates
authenticated, executed on behalf of the Holders and delivered after the
execution of any amendment pursuant to this Section may, and shall if required
by the Collateral Agent or the Purchase Contract Agent, bear a notation in
form approved by the Purchase Contract Agent and the Collateral Agent as to
any matter provided for in such amendment. If the Company shall so determine,
new Security Certificates so modified as to conform, in the opinion of the
Collateral Agent, the Purchase Contract Agent and the Company, to any such
amendment may be prepared and executed by the Company and authenticated,
executed on behalf of the Holders and delivered by the Purchase Contract Agent
in accordance with the Purchase Contract Agreement in exchange for Outstanding
Security Certificates.
Section 8. Miscellaneous.
8.01. No Waiver. No failure on the part of the Collateral
Agent or any of its agents to exercise, and no course of dealing with respect
to, and no delay in exercising, any right, power or remedy hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise by the
Collateral Agent or any of its agents of any right, power or remedy hereunder
preclude any other or further exercise thereof or the exercise of any other
right, power or remedy. The remedies herein are cumulative and are not
exclusive of any remedies provided by law.
8.02. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The Company,
the Collateral Agent and the Holders from time to time of the Securities,
acting through the Purchase Contract Agent as their attorney-in-fact, hereby
submit to the nonexclusive jurisdiction of the United States District Court
for the Southern District of New York and of any New York state court sitting
in New York City for the purposes of all legal proceedings arising out of or
relating to this Agreement or the transactions contemplated hereby. The
Company, the Collateral Agent and the Holders from time to time of the
Securities, acting through the Purchase Contract Agent as their
attorney-in-fact, irrevocably waive, to the fullest extent permitted by
applicable law, any objection which they may now or hereafter have to the
laying of the venue of any such proceeding brought in such a court and any
claim that any such proceeding brought in such a court has been brought in an
inconvenient forum.
8.03. Notices. All notices, requests, consents and other
communications provided for herein (including, without limitation, any
modifications of, or waivers or consents under, this Agreement) shall be given
or made in writing (including, without limitation, by telecopy) delivered to
the intended recipient at the "Address for Notices" specified below its name
on the signature pages hereof or, as to any party, at such other address as
shall be designated by such party in a notice to the other parties. Except as
otherwise provided in this Agreement, all such communications shall be deemed
to have been duly given when transmitted by telecopier or personally delivered
or, in the case of a mailed notice, upon receipt, in each case given or
addressed as aforesaid.
8.04. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the respective successors and assigns of the
Company, the Collateral Agent and the Purchase Contract Agent, and the Holders
from time to time of the Securities, by their acceptance of the same, shall be
deemed to have agreed to be bound by the provisions hereof and to have
ratified the agreements of, and the grant of the Pledge hereunder by, the
Purchase Contract Agent.
8.05. Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one and
the same instrument, and any of the parties hereto may execute this Agreement
by signing any such counterpart.
8.06. Severability. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by
law, (i) the other provisions hereof shall remain in full force and effect in
such jurisdiction and shall be liberally construed in order to carry out the
intentions of the parties hereto as nearly as may be possible and (ii) the
invalidity or unenforceability of any provision hereof in any jurisdiction
shall not affect the validity or enforceability of such provision in any other
jurisdiction.
8.07. Expenses, etc. The Company agrees to reimburse the
Collateral Agent for: (a) all reasonable out-of-pocket costs and expenses of
the Collateral Agent (including, without limitation, the reasonable fees and
expenses of counsel to the Collateral Agent), in connection with (i) the
negotiation, preparation, execution and delivery or performance of this
Agreement and (ii) any modification, supplement or waiver of any of the terms
of this Agreement; (b) all reasonable costs and expenses of the Collateral
Agent (including, without limitation, reasonable fees and expenses of counsel)
in connection with (i) any enforcement or proceedings resulting or incurred in
connection with causing any Holder of Securities to satisfy its obligations
under the Purchase Contracts forming a part of the Securities and (ii) the
enforcement of this Section 8.07; and (c) all transfer, stamp, documentary or
other similar taxes, assessments or charges levied by any governmental or
revenue authority in respect of this Agreement or any other document referred
to herein and all costs, expenses, taxes, assessments and other charges
incurred in connection with any filing, registration, recording or perfection
of any security interest contemplated hereby.
8.08. Security Interest Absolute. All rights of the
Collateral Agent and security interests hereunder, and all obligations of the
Holders from time to time of the Securities hereunder, shall be absolute and
unconditional irrespective of:
(a) any lack of validity or enforceability of any
provision of the Purchase Contracts or the Securities or any other agreement
or instrument relating thereto;
(b) any change in the time, manner or place of payment of,
or any other term of, or any increase in the amount of, all or any of the
obligations of Holders of Securities under the related Purchase Contracts, or
any other amendment or waiver of any term of, or any consent to any departure
from any requirement of, the Purchase Contract Agreement or any Purchase
Contract or any other agreement or instrument relating thereto; or
(c) any other circumstance which might otherwise
constitute a defense available to, or discharge of, a borrower, a guarantor or
a pledgor.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
The AES Corporation
By: ________________________________________
Name:
Title:
Address for Notices:
The AES Corporation
0000 Xxxxx 00xx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: _____________
Telecopy: _____________
_______________________________, as Purchase
Contract Agent and as attorney-in-fact of the
Holders from time to time of the Securities
By: ________________________________________
Address for Notices:
______________, as Collateral Agent
By: ________________________________________
Name:
Title:
Address for Notices:
