EXHIBIT 99.3
EXECUTION COPY
SECOND AMENDED AND RESTATED PLEDGE AGREEMENT
SECOND AMENDED AND RESTATED PLEDGE AGREEMENT (this "Agreement") dated as of
December 12, 2002 by and between AES EDC FUNDING II LLC, a Delaware limited
liability company (with its successors, the "Pledgor") and Citicorp USA, Inc.,
("Citibank") as collateral agent (in such capacity, the "Collateral Agent").
PRELIMINARY STATEMENTS:
(1) The Pledgor is party to a Loan Agreement originally dated as of October
6, 2000, as amended and restated on November 16, 2000 (as amended and restated,
the "Original Loan Agreement"), with the banks referred to therein (the
"Original Banks") and Citibank (as successor to Xxxxxx Guaranty Trust Company of
New York ("Xxxxxx"), in its capacity as agent).
(2) In connection with the Original Loan Agreement, the Pledgor entered
into a Pledge Agreement in favor of Citibank (as successor to Xxxxxx, in its
capacity as collateral agent), originally dated as of October 6, 2000, as
amended and restated on November 16, 2000 (as amended and restated, the
"Original Pledge Agreement"), pursuant to which the Pledgor assigned and pledged
to Citibank for its benefit and the ratable benefit of the Original Banks the
Initial Shares (as defined below), the EDC Holdco Stock (as defined below) and
certain other securities required to be pledged under the Original Pledge
Agreement to secure all of the Secured Obligations (as defined in the Original
Pledge Agreement) of the Pledgor under the Original Loan Agreement.
(3) The Pledgor wishes to amend and restate the Original Loan Agreement by
execution of an Amended and Restated Credit, Reimbursement and Exchange
Agreement dated as of December 12, 2002 (the "Credit Agreement"; terms defined
therein and not otherwise defined herein shall have the meanings specified
therein), with The AES Corporation, a Delaware corporation ("AES"), the other
Subsidiary Guarantors party thereto, the Banks referred to therein and Citibank,
as Administrative Agent and as Collateral Agent, to, among other things, extend
the maturity of the Existing Bank Credit Agreements, including the Original Loan
Agreement, and restructure certain provisions of the Existing Bank Credit
Agreements.
(4) In connection with the execution of the Credit Agreement, the Pledgor
wishes to amend and restate the Original Pledge Agreement by execution of this
Agreement to assign and pledge to the Collateral Agent for its benefit and
ratable benefit of the Tranche C Term Loan Banks (the "Tranche C Secured
Parties") the Pledged Stock (as defined below) to secure all of the Tranche C
Secured Obligations (as defined below) of the Pledgor under the Credit
Agreement.
(5) The parties now wish to amend and restate the Original Pledge Agreement
by the execution of this Agreement.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Section 1. Definitions.
The following additional terms, as used herein, have the following
respective meanings:
"Act" means the Securities Act of 1933, as amended.
"AES Common Stock" means shares of the common stock, $.01 par value, of
AES.
"EDC Holdco Stock" means the 10 units of membership interests of
Intermediate EDC Shareholder.
"Initial Shares" means 15,000,000 shares of AES Common Stock.
"Intermediate EDC Shareholder" means AES EDC Holding LLC, a Delaware
limited liability company, and its successors.
"Pledged Stock" means (i) the EDC Holdco Stock and (ii) any other
securities required to be pledged to the Collateral Agent pursuant to Section
3(b).
"Tranche C Collateral" has the meaning assigned to such term in Section
3(a).
"Tranche C Secured Obligations" means the Obligations of the Pledgor
hereunder and under the Subsidiary Guaranty in respect of the Tranche C Term
Loan Guaranteed Obligations.
"Tranche C Security Interest" means the security interest in the Tranche C
Collateral granted hereunder securing the Tranche C Secured Obligations.
Unless otherwise defined herein, or unless the context otherwise requires,
all terms used herein that are defined in the New York Uniform Commercial Code
as in effect on the date hereof shall have the meanings therein stated.
Section 2. Representations and Warranties.
The Pledgor represents and warrants as follows as of the date of this
agreement and as of any date on which the Pledgor pledges additional EDS Holdco
Stock pursuant to Section 3(b):
(a) Title to Pledged Stock. The Pledgor owns all of the Pledged Stock, free
and clear of any Liens other than the Tranche C Security Interest. All of the
Pledged Stock has been duly authorized and validly issued, and is fully paid and
non-assessable, and is subject to no rights or options to purchase of any
Person. The Pledgor is not and will not become a party to or otherwise bound by
any agreement, other than this Agreement, which restricts in any manner the
rights of any present or future holder of any of the Pledged Stock with respect
thereto.
(b) Validity, Perfection and Priority of Tranche C Security Interest. Upon
delivery to the Collateral Agent of the certificates representing the Pledged
Stock in accordance with
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Section 4 and filing of UCC-1's, the Collateral Agent will have a valid and
perfected first priority security interest in the Tranche C Collateral. No
registration, recordation or filing with any governmental body, agency or
official is required in connection with the execution or delivery of this
Agreement or necessary for the validity or enforceability hereof or for the
perfection or enforcement of the Tranche C Security Interest. The Pledgor has
not performed and will not perform any acts which might prevent the Collateral
Agent from enforcing any of the terms and conditions of this Agreement or which
would limit the Collateral Agent in any such enforcement.
Section 3. The Tranche C Security Interest.
In order to secure the full payment of the Tranche C Secured Obligations in
accordance with the terms thereof and to secure the performance of all of the
obligations of the Pledgor hereunder:
(a) The Pledgor hereby assigns, pledges and grants to the Collateral Agent
for its benefit and the ratable benefit of the Tranche C Secured Parties a
security interest in the Pledged Stock, and all of its rights and privileges
with respect to the Pledged Stock, and all proceeds, income and profits thereon,
and all interest, dividends and other payments and distributions with respect
thereto (the "Tranche C Collateral"). On or before the date hereof, the Pledgor
shall deliver to the Collateral Agent certificates representing the EDC Holdco
Stock, and the Collateral Agent shall deliver a receipt therefor to the Pledgor.
(b) (i) If Intermediate EDC Shareholder at anytime issues additional
membership interests or other equity interests, the Pledgor shall immediately
pledge to the Collateral Agent such additional securities and shall deliver to
the Collateral Agent certificates representing such additional securities.
(ii) All such additional securities delivered pursuant to this subsection
constitute Pledged Stock and shall be subject to all provisions of this
Agreement. In connection with the delivery of any additional securities pursuant
to this section, the Pledgor shall provide to the Collateral Agent an opinion of
the General Counsel of AES that such additional securities are duly authorized
and validly issued, fully paid and non-assessable (or the equivalent thereof)
and are subject to no rights or options to purchase of any Person.
(c) The Tranche C Security Interest is granted as security only and shall
not subject the Collateral Agent or any other Tranche C Secured Party to, or
transfer or in any way affect or modify, any obligation or liability of the
Pledgor with respect to any of the Tranche C Collateral or any transaction in
connection therewith.
Section 4. Delivery of Pledged Stock.
(a) All certificates representing Pledged Stock delivered to the Collateral
Agent by the Pledgor pursuant hereto shall be in suitable form for transfer by
delivery, or shall be accompanied by duly executed instruments of transfer or
assignment in blank, with signatures appropriately guaranteed, all in form and
substance satisfactory to the Collateral Agent.
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(b) The Collateral Agent acknowledges that, as of the date hereof, the
Pledged Stock has not been registered under the Act, or under any state
securities law.
(c) The Collateral Agent understands that the Pledged Stock constitutes
"restricted securities" under the Act and that the rules of the Securities and
Exchange Commission provide in substance that holders thereof may dispose of the
Pledged Stock only pursuant to an effective registration statement under the Act
or an exemption from such registration, if available.
(d) The Collateral Agent hereby acknowledges that the certificates for the
Pledged Stock may bear a legend to the effect that the shares represented by the
certificate have not been registered under the Securities Act of 1933 and may
not be offered, sold or transferred in the absence of a favorable opinion of
recognized counsel or other evidence reasonably satisfactory to the issuer to
the effect that registration thereof under such Act is not required for the
effective registration thereof under such Act.
Section 5. Filing; Further Assurances.
The Pledgor agrees that it will, at its expense and in such manner and form
as the Collateral Agent may reasonably require, execute, deliver, file and
record any financing statement, specific assignment or other paper and take any
other action that may be necessary or that the Collateral Agent may reasonably
request, in order to create, perfect or validate the Tranche C Security Interest
or to enable the Collateral Agent to exercise and enforce its rights hereunder
with respect to any of the Tranche C Collateral. To the extent permitted by
applicable law, the Pledgor hereby authorizes the Collateral Agent to file, in
the name of the Pledgor or otherwise, Uniform Commercial Code financing
statements (which may be carbon, photographic, photostatic or other
reproductions of this Agreement or of a financing statement relating to this
Agreement) which the Collateral Agent in its sole discretion may deem necessary
or appropriate to further perfect the Tranche C Security Interest.
The Collateral Agent may at any time or from time to time, after the
occurrence and during the continuance of an Event of Default, in its sole
discretion, cause any or all of the Pledged Stock to be transferred of record
into the name of the Collateral Agent or its nominee. The Pledgor will promptly
give to the Collateral Agent copies of any notices or other communications
received by it with respect to Pledged Stock registered in the name of the
Pledgor and the Collateral Agent will promptly give the Pledgor copies of any
notices and communications received by the Collateral Agent with respect to
Pledged Stock registered in the name of the Collateral Agent or its nominee.
Section 6. Right to Receive Distributions on Tranche C Collateral.
Unless and until an Event of Default has occurred and is continuing and to
the extent permitted by the Credit Agreement, the Pledgor shall be entitled to
receive and retain all dividends, interest and other payments made on or with
respect to the Tranche C Collateral ("Dividends"). During the continuance of an
Event of Default, the Collateral Agent shall have the right to receive and to
retain as Tranche C Collateral hereunder all Dividends and the Pledgor shall
take all such action as the Collateral Agent may deem necessary or appropriate
to give
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effect to such right. If the Collateral Agent receives any cash Dividend at a
time when an Event of Default is not continuing, the Collateral Agent shall pay
to the Pledgor such Dividend.
Any Dividends that are received by the Pledgor during the continuance of an
Event of Default shall be received in trust for the benefit of the Collateral
Agent and the Tranche C Secured Parties and, if the Collateral Agent so directs,
shall be segregated from other funds of the Pledgor and shall, forthwith upon
demand by the Collateral Agent, be paid to the Collateral Agent as Tranche C
Collateral in the same form as received (with any necessary endorsement). After
all Events of Default have been cured, the Collateral Agent's right to retain
Dividends under this Section 6 shall cease and the Collateral Agent shall pay
over to the Pledgor any such Tranche C Collateral retained by it during the
continuance of an Event of Default.
Section 7. Right to Vote Pledged Stock.
If an Event of Default shall have occurred and be continuing, the
Collateral Agent shall have the right, to the extent permitted by law, and the
Pledgor shall take all such action as may be necessary or appropriate to give
effect to such right, to vote and to give consents, ratifications and waivers,
and take any other action with respect to any or all of the Pledged Stock, with
the same force and effect as if the Collateral Agent was the absolute and sole
owner thereof, subject to the receipt of any necessary regulatory approvals.
Unless and until an Event of Default has occurred and is continuing, the Pledgor
shall have the sole right to vote and to give consents, ratifications and
waivers, and take any other actions with respect to any or all of the Pledged
Stock as it deems necessary or appropriate and the Collateral Agent shall, upon
receiving a written request from the Pledgor accompanied by a certificate signed
by its principal financial officer stating that no Event of Default has occurred
and is continuing, deliver to the Pledgor such proxies, powers of attorney,
consents, ratifications and waivers in respect of any of the Pledged Stock which
is registered in the name of the Collateral Agent or its nominee as shall be
specified in such request and be in form and substance reasonably satisfactory
to the Collateral Agent.
Section 8. General Authority.
The Pledgor hereby irrevocably appoints the Collateral Agent its true and
lawful attorney, with full power of substitution, in the name of the Pledgor,
the Collateral Agent, the Tranche C Secured Parties or otherwise, for the sole
use and benefit of the Collateral Agent and the other Tranche C Secured Parties,
but at the expense of the Pledgor, to the extent permitted by law to exercise,
at any time and from time to time while an Event of Default has occurred and is
continuing, all or any of the following powers with respect to all or any of the
Tranche C Collateral:
(a) to demand, xxx for, collect, receive and give acquittance for any
and all monies due or to become due upon or by virtue thereof,
(b) to settle, compromise, compound, prosecute or defend any action or
proceeding with respect thereto,
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(c) to sell, transfer, assign or otherwise deal in or with the same or
the proceeds or avails thereof, as fully and effectually as if the
Collateral Agent were the absolute owner thereof, and
(d) to extend the time of payment of any or all thereof and to make
any allowance and other adjustments with reference thereto;
provided that the Collateral Agent shall give the Pledgor not less than ten
days' prior notice of the time and place of any sale or other intended
disposition of any of the Tranche C Collateral except any Tranche C Collateral
which is perishable or threatens to decline speedily in value or is of a type
customarily sold on a recognized market. The Collateral Agent and the Pledgor
agree that such notice constitutes "reasonable notification" within the meaning
of Section 9-612 of the Uniform Commercial Code.
Section 9. Remedies.
(a) Subject to the receipt of any necessary regulatory approvals, if an
Actionable Default shall have occurred and be continuing and the Required Banks
shall have begun to exercise their rights and remedies with respect to the
Creditor Group Collateral, then, in addition to the remedies described in
Sections 6, 7 and 8 above, the Collateral Agent may exercise all the rights of a
secured party under the Uniform Commercial Code (whether or not in effect in the
jurisdiction where such rights are exercised) and, in addition, the Collateral
Agent may, without being required to give any notice except as herein provided
or as may be required by mandatory provisions of law, (i) apply the cash, if
any, then held by it as Tranche C Collateral as specified in Section 12 and (ii)
if there shall be no such cash or to the extent such cash shall be insufficient
to pay all the Tranche C Secured Obligations in full, sell, subject to Section
9(b), the Tranche C Collateral or any part thereof at public or private sale or
at any broker's board or on any securities exchange, for cash, upon credit or
for future delivery, and at such price or prices as the Collateral Agent may
deem satisfactory and hold the proceeds as Tranche C Collateral hereunder or
apply such proceeds as specified in Section 12. The Collateral Agent may be the
purchaser of any or all of the Tranche C Collateral sold pursuant to this
subsection at any public sale (or, if the Tranche C Collateral so sold is
Pledged Stock or other Tranche C Collateral of a type customarily sold in a
recognized market or of a type which is the subject of widely distributed
standard price quotations, at any private sale). The Collateral Agent, instead
of exercising the power of sale conferred upon it in this subsection, may
proceed by a suit or suits at law or in equity to foreclose the Tranche C
Security Interest and sell the Tranche C Collateral, or any portion thereof,
under a judgment or decree of a court or courts of competent jurisdiction.
(b) The Collateral Agent is authorized, in connection with any sale
pursuant to this Agreement, if it deems it advisable to do so, (i) if the
Pledged Stock is not then subject to a currently effective registration
statement under the Act or if otherwise necessary to comply with the Act or any
other law, to restrict the prospective bidders on or purchasers of any of the
Pledged Stock to a limited number of sophisticated investors who will represent
and agree that they are purchasing for their own account for investment and not
with a view to the distribution or sale of any of such Pledged Stock, (ii) if
the Pledged Stock is not then subject to a currently effective registration
statement under the Act, to cause to be placed on certificates for any or all of
the Pledged Stock or on any other securities pledged hereunder a legend to the
effect that such
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security has not been registered under the Act and may not be disposed of in
violation of the provisions of the Act, and (iii) to impose such other
limitations or conditions in connection with any such sale as the Required
Tranche C Term Loan Banks deem necessary or advisable in order to comply with
the Act or any other law.
(c) The Pledgor covenants and agrees that it will execute and deliver such
documents and take such other action as the Collateral Agent deems necessary or
advisable in order that any sale of Tranche C Collateral permitted hereunder may
be made in compliance with law. Upon any such sale, the Collateral Agent shall
have the right to deliver, assign and transfer to the purchaser thereof the
Tranche C Collateral so sold, subject to the receipt of any necessary regulatory
approvals. Each purchaser at any such sale shall hold the Tranche C Collateral
so sold absolutely free from any claim or right of whatsoever kind, including
any equity or right of redemption of the Pledgor which may be waived, and the
Pledgor, to the extent permitted by law, hereby specifically waives all rights
of redemption, stay or appraisal that it has or may have under any law now
existing or hereafter adopted. Any notice of a sale required by law shall (i) in
the case of a public sale, state the time and place fixed for such sale, (ii) in
the case of sale at a broker's board or on a securities exchange, state the
board or exchange at which such sale is to be made and the day on which the
Tranche C Collateral, or the portion thereof so being sold, will first be
offered for sale at such board or exchange, and (iii) in the case of a private
sale, state the day after which such sale may be consummated. Any such public
sale shall be held at such time or times within ordinary business hours and at
such place or places as the Collateral Agent may fix in the notice of such sale.
At any such sale, the Tranche C Collateral may be sold in one lot as an entirety
or in separate parcels, as the Collateral Agent may determine. The Collateral
Agent shall not be obligated to make any such sale pursuant to any such notice.
The Collateral Agent may, without notice or publication, adjourn any public or
private sale or cause the same to be adjourned from time to time by announcement
at the time and place fixed for the sale, and such sale may be made at any time
or place to which the same may be so adjourned. In case of any sale of all or
any part of the Tranche C Collateral on credit or for future delivery, the
Tranche C Collateral so sold may be retained by the Collateral Agent until the
selling price is paid by the purchaser thereof, but the Collateral Agent shall
not incur any liability in case of the failure of such purchaser to take up and
pay for the Tranche C Collateral so sold and, in case of any such failure, such
Tranche C Collateral may again be sold upon like notice.
(d) In taking any action under this Section 9 or otherwise hereunder, the
Collateral Agent shall act upon the instructions of the Required Tranche C Term
Loan Banks.
Section 10. Expenses.
The Pledgor agrees that it will forthwith upon demand pay to the Collateral
Agent:
(a) the amount of any taxes that the Collateral Agent may have been
required to pay by reason of the Tranche C Security Interest or to free any
of the Tranche C Collateral from any Lien thereon, and
(b) the amount of any and all reasonable out-of-pocket expenses,
including the reasonable fees and disbursements of legal counsel and of any
other experts, which the Collateral Agent may incur in connection with (i)
the administration or enforcement
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of this Agreement, including such expenses as are incurred to preserve the
value of the Tranche C Collateral and the validity, perfection, rank and
value of any Tranche C Security Interest, (ii) the collection, sale or
other disposition of any of the Tranche C Collateral permitted hereunder,
or (iii) the exercise by the Collateral Agent of any of the rights
conferred upon it hereunder.
Any such amount not paid on demand shall bear interest at a per annum rate
of 2% plus the Base Rate.
Section 11. Limitation on Duty of the Collateral Agent in Respect of
Tranche C Collateral.
Beyond the exercise of reasonable care in the custody thereof, the
Collateral Agent shall have no duty as to any Tranche C Collateral in its
possession or control. The Collateral Agent shall be deemed to have exercised
reasonable care in the custody and preservation of the Tranche C Collateral in
its possession if the Tranche C Collateral is accorded treatment substantially
equal to that which it accords its own property and shall not be liable or
responsible for any loss or damage to any of the Tranche C Collateral, or for
any diminution in the value thereof, by reason of any act or omission of any
agent or bailee selected by the Collateral Agent in good faith, other than any
act or omission caused by the gross negligence or willful misconduct of such
bailee or any act or omission made in breach of this Agreement.
Section 12. Application of Proceeds.
Upon the occurrence and during the continuance of an Actionable Default,
the proceeds of any sale of, or other realization upon, all or any part of the
Tranche C Collateral and any cash held shall be applied by the Collateral Agent
in the following order of priority:
first, paid to the Collateral Agent for any amounts then owing to the
Collateral Agent pursuant to Section 10.03 of the Credit Agreement, Section
10 hereof or otherwise under the Financing Documents;
second, ratably paid to the Tranche C Term Loan Banks for any amounts
then owing to them, in their capacity as Tranche C Term Loan Banks, under
the Credit Agreement ratably in accordance with such respective amounts;
third, paid to the Pledgor or its successors or assigns, or as a court
of competent jurisdiction may direct, in respect of any surplus then
remaining from such proceeds.
Section 13. Release of the Initial Shares; Termination of Tranche C
Security Interest; Release of Tranche C Collateral.
(a) Upon the execution and delivery of this Agreement by the parties hereto
and the satisfaction of the conditions set forth in Section 3.01 of the Credit
Agreement (other than the condition set forth in clause 3.01(f)), all
certificates representing the Initial Shares and all other shares of AES Common
Stock delivered to the Collateral Agent by the Pledgor pursuant to the Original
Pledge Agreement (the "AES Shares") shall be released by the Collateral Agent
and the
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Collateral Agent will, at the expense of the Pledgor, execute and deliver to the
Pledgor such documents as the Pledgor shall reasonably request to evidence the
release of the AES Shares.
(b) Upon the repayment in full of all Tranche C Secured Obligations, the
Tranche C Security Interest shall terminate and all rights to the Tranche C
Collateral shall revert to the Pledgor. At any time and from time to time prior
to such termination of the Tranche C Security Interest, the Collateral Agent may
release any of the Tranche C Collateral with the prior written consent of the
Required Tranche C Term Loan Banks. Upon such termination or release of the
Tranche C Security Interest, the Collateral Agent will, at the expense of the
Pledgor, execute and deliver to the Pledgor such documents as the Pledgor shall
reasonably request to evidence the termination of the Tranche C Security
Interest or the release of such Tranche C Collateral, as the case may be.
(c) Upon the sale, lease, transfer or other disposition of the Intermediate
EDC Shareholder in accordance with the terms of the Credit Agreement (including,
without limitation, as result of the sale, in accordance with the terms of the
Credit Agreement, of all of the Equity Interests of the Pledgor), the security
interest in the Tranche C Collateral shall automatically terminate and the
Collateral Agent shall, at the Pledgor's expense, execute and deliver to the
Pledgor such documents as the Pledgor may reasonably request to evidence the
release of the Tranche C Collateral from the assignment and security interest
granted hereunder.
Section 14. Notices.
All notices, communications and distributions hereunder shall be given in
accordance with Section 10.01 of the Credit Agreement.
Section 15. Waivers; Non-exclusive Remedies.
No failure on the part of the Collateral Agent to exercise, and no delay in
exercising and no course of dealing with respect to, any right under this
Agreement shall operate as a waiver thereof; nor shall any single or partial
exercise by the Collateral Agent of any right under the Credit Agreement or this
Agreement preclude any other or further exercise thereof or the exercise of any
other right. The rights in this Agreement and the Credit Agreement are
cumulative and are not exclusive of any other remedies provided by law.
Section 16. Successors and Assigns; Continuing Security Interest.
This Agreement is for the benefit of the Collateral Agent and the Tranche C
Secured Parties and their successors and assigns, and in the event of an
assignment of all or any of the Tranche C Secured Obligations, the rights
hereunder, to the extent applicable to the indebtedness so assigned, may be
transferred with such indebtedness. This Agreement shall be binding on the
Pledgor and its successors and assigns. The Pledgor hereby acknowledges the
grant of security interest in and to all the Collateral (other than the AES
Shares) as defined in and under the Original Pledge Agreement. Such grant of
security interest (i) shall continue in full force and effect by this amendment
and restatement of the Original Pleldge Agreement and (ii) is hereby ratified
and confirmed in all respects.
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Section 17. Changes in Writing.
Neither this Agreement nor any provision hereof may be changed, waived,
discharged or terminated except in accordance with Section 10.05 of the Credit
Agreement.
Section 18. New York Law.
This Agreement shall be construed in accordance with and governed by the
laws of the State of New York, except as otherwise required by mandatory
provisions of law and except to the extent that remedies provided by the laws of
any jurisdiction other than New York are governed by the laws of such
jurisdiction.
Section 19. Severability.
If any provision hereof is invalid or unenforceable in any jurisdiction,
then, to the fullest extent permitted by law (a) 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 (b) 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.
Section 20. Concerning the Collateral Agent.
The provisions of Section 10.03, Section 8.04 and Article 7 of the Credit
Agreement shall inure to the benefit of the Collateral Agent in respect of this
Agreement and shall be binding upon the parties to the Credit Agreement in such
respect. In furtherance and not in derogation of the rights, privileges and
immunities of the Collateral Agent therein set forth:
(a) The Collateral Agent is authorized to take all such action as is
provided to be taken by it as Collateral Agent hereunder and all other action
reasonably incidental thereto. As to any matters not expressly provided for
herein (including any determination to exercise remedies hereunder, and the
timing and methods of realization upon the Tranche C Collateral) the Collateral
Agent shall act or refrain from acting in accordance with written instructions
from the Required Tranche C Term Loan Banks or, in the absence of such
instructions, in accordance with its discretion.
(b) The Collateral Agent shall not be responsible for the existence,
genuineness or value of any of the Tranche C Collateral or for the validity,
perfection, priority or enforceability of the Tranche C Security Interests in
any of the Tranche C Collateral, whether impaired by operation of law or by
reason of any action or omission to act on its part hereunder. The Collateral
Agent shall have no duty to ascertain or inquire as to the performance or
observance of any of the terms of this Agreement by the Pledgor.
Section 21. Appointment of Co-Agents.
At any time or times, in order to comply with any legal requirement in any
jurisdiction, the Agent may appoint another bank or trust company or one or more
other persons, either to act as co-agent or co-agents, jointly with the
Collateral Agent, or to act as separate agent or agents
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on behalf of the Tranche C Secured Parties with such power and authority as may
be necessary for the effectual operation of the provisions hereof and may be
specified in the instrument of appointment (which may, in the discretion of the
Collateral Agent, include provisions for the protection of such co-agent or
separate agent similar to the provisions of Section 20).
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have
caused this Agreement to be duly executed by their respective authorized
officers as of the day and year first above written.
AES EDC FUNDING II LLC
By:
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Name:
Title:
CITICORP USA, INC., as Collateral Agent
By:
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Name:
Title:
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