EXHIBIT 4.11
EXECUTION COPY
PLEDGE AND SECURITY AGREEMENT
between
AES RED OAK, L.L.C.
as Pledgor
and
THE BANK OF NEW YORK
as Collateral Agent
Dated as of March 1, 2000
TABLE OF CONTENTS
Page
----
1. DEFINITIONS...................................................................3
2. PLEDGE........................................................................3
3. REPRESENTATIONS, WARRANTIES AND COVENANTS.....................................4
4. DEFAULT.......................................................................6
5. RIGHTS AND REMEDIES UPON EVENT OF DEFAULT.....................................6
6. SECURITY INTEREST ABSOLUTE....................................................6
7. PLEDGOR REMAINS LIABLE........................................................6
8. NO DUTY ON COLLATERAL AGENT'S PART............................................6
9. NOTICES.......................................................................6
10. WAIVER........................................................................7
11. TIME OF ESSENCE...............................................................7
12. BINDING UPON SUCCESSORS.......................................................7
13. CAPTIONS......................................................................7
14. GOVERNING LAW, LEGAL PROCEEDINGS AND WAIVER OF JURY TRIAL.....................7
15. AMENDMENTS, CHANGES AND MODIFICATIONS.........................................7
16. SEVERABILITY..................................................................8
17. COLLATERAL AGENT NOT LIABLE...................................................8
18. LIMITATION OF RECOURSE........................................................8
19. COUNTERPARTS..................................................................8
20. CONTINUING ASSIGNMENT, PLEDGE AND SECURITY INTEREST...........................9
21. SECURITY ONLY.................................................................9
22. PAYMENTS SET ASIDE............................................................9
ANNEXES
PLEDGE AND SECURITY AGREEMENT
This PLEDGE AND SECURITY AGREEMENT (this "PLEDGE AGREEMENT"), dated
as of March 1, 2000, by and between AES RED OAK, L.L.C., a limited liability
company organized and validly existing under the laws of the State of
Delaware (the "PLEDGOR") and The Bank of New York, a bank duly organized and
existing under the laws of the State of New York ("BNY"), as collateral agent
(together with its successors in such capacity, the "COLLATERAL AGENT") for
the benefit of and on behalf of the Senior Parties defined below.
A. Pledgor is providing for the development, construction,
ownership, leasing and operation of a nominal 830 MW (net)
gas-fired combined cycle electric generating facility and
related equipment and facilities (the "PROJECT") to be located
in the Borough of Sayreville, Middlesex County, New Jersey.
B. Pledgor intends to finance the development and construction of
the Project, in part, through the issuance, from time to time,
of certain securities (the "SECURITIES") pursuant to a Trust
Indenture, dated as of March 1, 2000 between the Pledgor and
BNY, as trustee (the "TRUSTEE") and depositary bank, as it may
be amended, supplemented or modified and in effect from time to
time (the "INDENTURE").
C. In connection with the commencement of commercial operation of
the Project, the Pledgor is required to deliver the Debt
Service Reserve Letter of Credit (the "DSR LETTER OF CREDIT").
Dresdner Bank AG, acting through its New York Branch
("DRESDNER"), as issuing bank, has agreed to issue the DSR
Letter of Credit subject to the terms and conditions contained
in the DSR LOC Reimbursement Agreement, dated as of March 1,
2000 (as amended, supplemented or modified and in effect from
time to time, the "DSR LOC REIMBURSEMENT AGREEMENT"), among
each of the banks and financial institutions parties thereto
and Dresdner, as issuing bank and as agent for such banks
including the issuing bank and financial institutions (in such
capacity as agent, and together with its successors and assigns
in such capacity, the "DSR LOC PROVIDER").
D. In connection with the Pledgor's obligations under Section 18.2
of the Power Purchase Agreement, the Pledgor intends to deliver
the Power Purchase Agreement Letter of Credit (the "PPA LOC").
Dresdner, as issuing bank, has agreed to issue the PPA LOC
subject to the terms and conditions contained in the PPA LOC
Reimbursement Agreement, dated as of March 1, 2000 (as amended,
supplemented or modified and in effect from time to time, the
"PPA LOC REIMBURSEMENT Agreement"), among each of the banks and
financial institutions parties thereto and Dresdner, as issuing
bank and as agent for such banks and the issuing bank and
financial institutions (in such capacity as agent, and together
with its successors and assigns in such capacity, the "PPA LOC
PROVIDER").
E. The Pledgor intends to finance certain working capital
requirements of the Project by entering into a Working Capital
Agreement (as amended, supplemented or modified and in effect
from time to time, the "WORKING CAPITAL AGREEMENT") among the
Pledgor, each of the banks and financial institutions party
thereto and Dresdner, as agent bank (together with its
successors and assigns in such capacity, the "WORKING CAPITAL
PROVIDER").
F. All obligations of the Pledgor under the Securities, the DSR
LOC Reimbursement Agreement and related evidences of
indebtedness, the PPA LOC Reimbursement Agreement and related
evidences of indebtedness, the Collateral Agency Agreement
(defined below), and the Working Capital Agreement and related
evidences of indebtedness (collectively, the "FINANCING
DOCUMENTS") to the Trustee, the DSR LOC Provider, the PPA LOC
Provider, the Collateral Agent, the Working Capital Provider,
each successor to any such person and any person providing
Senior Debt to the Pledgor who becomes a party to the
Collateral Agency Agreement in accordance with its terms
(collectively, the "SENIOR PARTIES") will be secured by a
certain Mortgage, the Security Agreement, the Indenture, this
Pledge Agreement and the Assignment of Leases and Income, each
between the Pledgor and the Collateral Agent.
G. The Collateral Agent, the Pledgor, the DSR LOC Provider, the
PPA LOC Provider, the Working Capital Provider and the Trustee
entered into the Collateral Agency and Intercreditor Agreement
dated as of March 1, 2000 (as amended, supplemented or modified
and in effect from time to time, the "COLLATERAL AGENCY
AGREEMENT") to set forth their mutual understanding with
respect to (a) the exercise of certain rights, remedies and
options by the respective parties thereto under the above
described documents, (b) the priority of their respective
security interests created by the Security Documents, (c) the
application of project revenues and certain other monies and
items and (d) the appointment of the Collateral Agent as
collateral agent.
H. On the Closing Date, the Pledgor owns 100% of all of the
ownership interests of AES Red Oak Urban Renewal Corporation, a
non-profit corporation organized under the laws of the State of
New Jersey ("AES URC").
I. In order to better secure the benefits of the other Collateral
subject of the Security Documents, the Pledgor has agreed to
pledge the ownership interests of AES URC owned by the Pledgor
from time to time.
NOW, THEREFORE, in consideration of the premises set forth above,
the mutual covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
and FOR THE PURPOSE OF SECURING the payment and performance of the Senior
Debt, which Senior Debt may increase, decrease and increase again, from time
to time, the parties hereto hereby agree as follows:
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1. DEFINITIONS. Except as otherwise expressly provided herein,
capitalized terms used in this Pledge Agreement and its Annexes shall have
the meaning given to them in the Indenture and the rules of construction set
forth in Section 1.1. of the Indenture shall apply herein as if set forth in
this Pledge Agreement.
2. PLEDGE. (a) As security for the full payment or performance when
due (whether at stated maturity, by acceleration or otherwise) of any and all
of the Senior Debt now existing or hereafter arising, the Pledgor hereby
grants, pledges and collaterally assigns to and creates in favor of the
Collateral Agent, a lien on (the "SECURITY INTEREST") in all estate, right,
title and interest of the Pledgor in, to and under the following collateral,
whether now existing or hereafter acquired (the "COLLATERAL"):
(i) the ownership interests in AES URC and to the extent
any of the following shall now or hereinafter exist any certificates
identified in Annex I hereto and all other ownership interests of
whatever class in AES URC, now or hereafter owned by the Pledgor, in
each case together with the certificates evidencing the same
(collectively, the "PLEDGED INTERESTS");
(ii) to the extent any of the following shall now or
hereafter exist, all shares, securities, moneys or property
representing a dividend on any of the Pledged Interests, or
representing a distribution or return of capital upon or in respect
of the Pledged Interests (a "DIVIDEND"), or resulting from a
split-up, revision, reclassification or other like change of the
Pledged Interests or otherwise received in exchange therefor, and
any subscription warrants, rights or options issued to the holders
of, or otherwise in respect of, the Pledged Interests; provided,
however, that such Security Interest in any Dividend shall not apply
to, or to the extent such Security Interest is then existing, shall
be released without any notice or required action from, such
Dividend once such Dividend is distributed from the Distribution
Account in accordance with the terms of the Collateral Agency
Agreement and is no longer an asset of the Pledgor;
(iii) without affecting the obligations of the Pledgor or
AES URC under any provision prohibiting such action hereunder, in
the event of any consolidation or merger in which AES URC is not the
surviving entity, all shares owned by the Pledgor of each class of
the capital stock of the successor entity formed by or resulting
from such consolidation or merger;
(iv) to the extent not included in the foregoing, all
proceeds, products and accessions of and to any and all of the
foregoing, including, without limitation, "proceeds," as defined in
the Uniform Commercial Code of the State of New York (the "UCC"),
including whatever is received upon any collection, exchange, sale
or other disposition of any of the Collateral, and any property into
which any of the Collateral is converted, whether cash or noncash
proceeds, and any and all other amounts paid or payable under or in
connection with any of the Collateral; it being understood that the
Security Interest in the proceeds, products and accessions of and to
any Collateral shall not apply to, or to the extent such Security
Interest is then existing, shall be released
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without any notice or required action from, such Collateral once
such Collateral is distributed from the Distribution Account in
accordance with the terms of the Collateral Agency Agreement and is
no longer an asset of the Pledgor.
(b) This Pledge Agreement secures, in accordance with the provisions
hereof, the Senior Debt.
(c) The Collateral Agent and the Pledgor acknowledge and agree that
remedies, if any, that may be exercised from time to time hereunder during
the continuance of a Trigger Event under the Collateral Agency Agreement,
will be exercised by the Collateral Agent subject to, and in accordance with,
the terms of the Collateral Agency Agreement.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS. The Pledgor hereby
represents, warrants and covenants as follows:
(a) The Security Interest granted and created pursuant to this
Pledge Agreement is a legal and valid security interest in the Collateral now
owned by the Pledgor or hereafter acquired.
(b) The Security Interest granted and created pursuant to this
Pledge Agreement (i) with respect to such of the Collateral in which a
security interest may be perfected by the filing of a Financing Statement,
will, upon the filing of the necessary Financing Statements in all
appropriate jurisdictions, create a perfected security interest in the
Collateral now owned by the Pledgor or hereafter acquired in which a security
interest may be perfected by filing; and (ii) with respect to such of the
Collateral in which a security interest may be perfected by possession, will,
upon the Collateral Agent's taking possession of such Collateral, create a
perfected security interest in such Collateral now owned by the Pledgor or
hereafter acquired in which a security interest may be perfected by
possession.
(c) The Pledgor shall cause (i) the organizational documents in
respect of the formation of AES URC and (ii) the certificates representing
the Pledged Interests in AES URC to each recite that such organizational
documents and Pledged Interests shall be governed by Article 8 of the UCC.
(d) The Pledgor is the legal and beneficial owner of the Collateral
now owned by it, free and clear of all Liens.
(e) The Pledgor shall notify the Collateral Agent promptly in
writing of any claim against the Collateral adverse (other than to a DE
MINIMIS extent) to the interest of the Collateral Agent hereunder.
(f) The Pledgor agrees that from time to time upon the request of
the Collateral Agent, the Pledgor will, at its sole cost and expense,
promptly execute and deliver all further instruments and documents, and take
all further action, which may be necessary or reasonably advisable, or that
the Collateral Agent may reasonably request in writing, in order to perfect,
maintain, preserve and protect the Security Interest granted or purported to
be granted hereby. Without limiting the generality of the foregoing, the
Pledgor will: (i) if any Collateral shall be evidenced
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by a promissory note or other instrument, deliver and pledge to the
Collateral Agent hereunder such note or instrument duly endorsed and
accompanied by duly executed instruments of transfer or assignment, all in
form and substance reasonably satisfactory to the Collateral Agent, and (ii)
execute and file such financing or continuation statements, or amendments
thereto and assignments thereof, and such other instruments, endorsements or
notices, as may be necessary, or as the Collateral Agent may reasonably
request in writing, in order to perfect, maintain, preserve and protect the
Security Interest granted or purported to be granted hereby. The Pledgor
hereby authorizes the Collateral Agent to file one or more financing or
continuation statements, and amendments thereto and assignments thereof,
relating to all or any part of the Collateral without the signature of the
Pledgor where permitted by law.
(g) The Pledgor shall keep and maintain, at its sole cost and
expense, satisfactory and complete records of the Collateral. The Pledgor
shall furnish to the Collateral Agent from time to time statements and
schedules further identifying and describing the Collateral and such other
reports in connection with the Collateral as the Collateral Agent may
reasonably request in writing, all in reasonable detail.
(h) The Pledgor shall not create, incur or permit to exist, and will
defend the Collateral against, and shall take such other action as is
necessary, to remove any Lien or claim on or to the Collateral and will
defend the right, title and interest of the Collateral Agent in and to any of
the Collateral against the claims and demands of all Persons whomsoever
(other than any Person party to the Financing Documents). In furtherance
thereof, the Pledgor agrees (i) not to enter into a "control agreement" with
or grant "control" (within the meaning of the UCC) to any Person other than
the Collateral Agent in respect of any of the Collateral that constitutes
"uncertificated securities" (within the meaning of the UCC) or (ii) not to
cause AES URC to register any transfer of any of the Collateral that
constitutes "uncertificated securities" (within the meaning of the UCC) to
any Person other than the Collateral Agent.
(i) The principal place of business and chief executive office of
the Pledgor and the office where the Pledgor keeps its records concerning the
Collateral, including the registration book in which all ownership interests
of AES URC and pledges and transfers thereof are recorded (hereinafter,
collectively called the "Records") is located at the Pledgor's address for
notices set forth in the signature pages hereto.
(j) The Pledged Interests are duly authorized, validly existing,
fully paid and non-assessable and none of such Pledged Interests are subject
to any contractual restriction, or any restriction under the organic
documents of AES URC, upon the transfer of such Pledged Interests (except for
any such restriction contained herein).
(k) The Pledged Interests constitute all of the issued and
outstanding shares of ownership interests of any class of AES URC
beneficially owned by the Pledgor on the date hereof (whether or not
registered in the name of the Pledgor).
(l) The Pledgor owns 100% of the issued and outstanding ownership
interests of the AES URC as of the date hereof.
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4. DEFAULT. The occurrence and continuation of a Trigger Event under
the Collateral Agency Agreement shall be deemed an "EVENT OF DEFAULT" under
this Pledge Agreement:
5. RIGHTS AND REMEDIES UPON EVENT OF DEFAULT. The remedies of the
Collateral Agent following an Event of Default hereunder or otherwise are set
forth in the Collateral Agency Agreement and the exercise of such remedies,
if any, shall be done by the Collateral Agent as, when and to the extent
permitted thereunder.
6. SECURITY INTEREST ABSOLUTE. All rights of the Collateral Agent
hereunder, the Security Interest and all obligations of the Pledgor
hereunder, shall be absolute and unconditional irrespective of:
(i) any lack of validity or enforceability of the
Collateral Agency Agreement or any other agreement or instrument
relating thereto;
(ii) any change in the time, manner or place of payment
of, or in any other term of, all or any of the Senior Debt, or any
other amendment or waiver of or any consent to any departure from the
Collateral Agency Agreement or any of the Collateral;
(iii) any exchange, release or non-perfection of any
Collateral or any other collateral, or any release or amendment or
waiver of or consent to or departure from any guaranty, for all or any
of the Senior Debt; or
(iv) to the fullest extent permitted by law, any other
circumstance that might otherwise constitute a defense available to, or
a discharge of, the Pledgor or any third party pledgor.
7. PLEDGOR REMAINS LIABLE. Anything herein to the contrary
notwithstanding but subject to Section 18 hereof, the Pledgor shall remain
liable under any agreements included in the Collateral to the extent set
forth therein to perform all of its duties and obligations thereunder to the
same extent as if this Pledge Agreement had not been executed. The exercise
by the Trustee or the Collateral Agent of any of the rights or remedies
hereunder shall not release the Pledgor from any of its duties or obligations
under any agreements included in the Collateral, except to the extent the
Pledgor is expressly released therefrom by the Trustee or the Collateral
Agent in writing. The Collateral Agent shall not have any obligation or
liability under the Collateral by reason of this Pledge Agreement, nor shall
the Collateral Agent be obligated to perform any of the obligations or duties
of the Pledgor thereunder or to take any action to collect or enforce any
claim for payment assigned hereunder, except to the extent the Collateral
Agent expressly assumes such obligations or duties in writing consistent with
its rights under this Pledge Agreement.
8. NO DUTY ON COLLATERAL AGENT'S PART. The powers conferred on the
Collateral Agent hereunder are solely to protect the Collateral Agent's
interests in the Collateral and shall not impose any duty upon it to exercise
any such powers. The Collateral Agent shall be accountable only for amounts
that it receives as a result of the exercise of such powers, and neither it
nor any of its officers, directors, employees or agents shall be responsible
to the
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Pledgor for any act or failure to act hereunder, except for its own gross
negligence or willful misconduct.
9. NOTICES. All notices, demands, requests and other communications
required or permitted hereunder shall be in writing and shall be given and
deemed to have been given in accordance with the Collateral Agency Agreement.
10. WAIVER. By exercising or failing to exercise any of its rights,
options or elections hereunder (without also expressly waiving the same in
writing), the Collateral Agent shall not be deemed to have waived any breach
or default on the part of the Pledgor or to have released the Pledgor from
any of its obligations secured hereby. No failure on the part of the
Collateral Agent to exercise, and no delay in exercising (without also
expressly waiving the same in writing), any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or privilege preclude any other or further
exercise thereof, or the exercise of any other right, power or privilege.
11. TIME OF ESSENCE. TIME IS OF THE ESSENCE WITH RESPECT TO THIS
PLEDGE AGREEMENT AND ALL OF ITS PROVISIONS.
12. BINDING UPON SUCCESSORS. This Pledge Agreement shall be binding
upon and inure to the benefit of the respective successors and permitted
assigns of each of the parties hereto.
13. CAPTIONS. The captions, headings and table of contents used in
this Pledge Agreement are for convenience only and do not and shall not be
deemed to affect, limit, amplify or modify the terms and provisions hereof.
14. GOVERNING LAW, LEGAL PROCEEDINGS AND WAIVER OF JURY TRIAL. (a)
THIS PLEDGE AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING
TO CONFLICTS OF LAW EXCEPT SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW).
(b) Any legal action or proceeding with respect to this Pledge
Agreement and any action for enforcement of any judgment in respect thereof
may be brought in the courts of the State of New York or of the United States
of America for the Southern District of New York, and, by execution and
delivery of this Pledge Agreement, the Pledgor hereby accepts for itself and
in respect of its property, generally and unconditionally, the non-exclusive
jurisdiction of the aforesaid courts and appellate courts from any appeal
thereof. The Pledgor hereby irrevocably designates, appoints and empowers CT
Corporation System, 111 Eighth Avenue, New York, New York, 10011, as its
designee, appointee and agent to receive, accept and acknowledge for and on
its behalf, and in respect of its property, service of any and all legal
process, summons, notices and documents which may be served in any action or
proceeding. If for any reason such designee, appointee and agent shall cease
to be available to act as such, the Pledgor, agrees to designate a new
designee, appointee and agent in The City of New York on the terms and for
the
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purposes of this provision satisfactory to the Collateral Agent. The Pledgor
irrevocably consents to the service of process out of any of the
aforementioned courts in any such action or proceeding by the mailing of
copies thereof by registered or certified mail, postage prepaid, in
accordance with Section 9. The Pledgor hereby irrevocably waives any
objection which it may now or hereafter have to the laying of venue of any of
the aforesaid actions or proceedings arising out of or in connection with
this Pledge Agreement brought in the courts referred to above and hereby
further irrevocably waives and agrees not to plead or claim in any such court
that any such action or proceeding brought in any such court has been brought
in an inconvenient forum. Nothing herein shall affect the right of the
Collateral Agent to serve process in any other manner permitted by law or to
commence legal proceedings or otherwise proceed against the Pledgor in any
other jurisdiction.
(c) EACH PARTY HERETO HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES THE RIGHT EACH MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS PLEDGE AGREEMENT AND ANY AGREEMENTS CONTEMPLATED HEREBY TO BE EXECUTED
IN CONJUNCTION THEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EACH PARTY. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES ENTERING INTO THIS PLEDGE
AGREEMENT.
15. AMENDMENTS, CHANGES AND MODIFICATIONS. This Pledge Agreement may
not be effectively amended or terminated except with the written consent of
the Pledgor and the Collateral Agent.
16. SEVERABILITY. Any provision of this Pledge Agreement that is
prohibited, unenforceable or not authorized in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or non-authorization, without invalidating the remaining
provisions hereof or affecting the validity, enforceability or legality of
such provision in any other jurisdiction.
17. COLLATERAL AGENT NOT LIABLE. Neither this Pledge Agreement nor
any action on the part of the Collateral Agent (other than an express written
assumption) shall constitute an assumption by the Collateral Agent of any of
the obligations of the Pledgor related to any of the Collateral, and the
Pledgor shall continue to be liable for all such obligations whether incurred
before or after an Event of Default.
18. LIMITATION OF RECOURSE. In the event of non-performance by the
Pledgor under this Pledge Agreement, or any part thereof, or for any claim
based thereon or otherwise in respect thereof or related thereto or in
respect of the Securities or otherwise related thereto, no recourse shall be
had to (i) any assets or properties of the Pledgor (or any person that
controls the Pledgor within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act) other than the Collateral or (ii) any
Affiliate of the Pledgor or any incorporators, officers, directors or
employees thereof, and no judgment relating to the obligations of the Pledgor
under this Pledge
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Agreement, or any part thereof, or for any claim based thereon or otherwise
in respect thereof or related thereto, shall be obtainable by the Senior
Parties or the Collateral Agent against any Affiliate of the Pledgor or any
other incorporator, stockholder, officer, employee or director past, present
or future of the Pledgor or any Affiliate of the Pledgor; provided, however,
that nothing contained herein shall prevent the taking of any action
permitted by law against the Pledgor or any of its Affiliates, or in any way
affect or impair the rights of the Collateral Agent or Senior Parties to take
any action permitted by law, in either case to realize upon the Collateral
and, provided further, that nothing herein shall be deemed to affect the
obligations of any Affiliate of the Pledgor under any Transaction Document to
which such Affiliate is a party.
19. COUNTERPARTS. This Pledge Agreement may be executed in any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
20. CONTINUING ASSIGNMENT, PLEDGE AND SECURITY INTEREST. This Pledge
Agreement shall create a continuing assignment, pledge and security interest
in the Collateral and shall remain in full force and effect for the benefit
of the Collateral Agent until the satisfaction in full of the Senior Debt.
Except as set forth in Section 22 hereof, upon the payment in full of the
Senior Debt and all other amounts owing to the Collateral Agent under the
Financing Documents, the Security Interest granted hereby shall terminate and
all rights to the Collateral shall revert to the Pledgor. In connection with
such termination, the Collateral Agent shall execute such instruments of
release prepared by the Pledgor as the Pledgor shall reasonably request at
the Pledgor's sole cost and expense.
21. SECURITY ONLY. This Pledge Agreement is granted for security
purposes only. Accordingly, the Collateral Agent shall not enforce its rights
with respect to the Collateral until such time as an Event of Default shall
have occurred and be continuing.
22. PAYMENTS SET ASIDE. To the extent that the Pledgor or any other
Person on behalf of the Pledgor makes a payment or payments to the Collateral
Agent, or the Collateral Agent enforces its security interests or exercise
its rights of setoff, and such payment or payments or the proceeds of such
enforcement or setoff of any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside and/or required to be
repaid to a trustee, receiver or any other party under any bankruptcy law,
state or federal law, common law or equitable cause, then to the extent of
such recovery, the Senior Debt or any part thereof originally intended to be
satisfied, and this Pledge Agreement and all Liens, rights and remedies
therefor, shall be revived and continued in full force and effect as if such
payment had not been made or such enforcement or setoff had not occurred.
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IN WITNESS WHEREOF, the parties hereto have caused this Pledge
Agreement to be duly executed as of the date first written above.
AES RED OAK, L.L.C.
By: /s/ LOUIS J. ANATRELLA
-------------------------------------
Name: Louis J. Anatrella
Title: Vice President
Address: 1001 North 19th Street
Arlington, VA 22209
THE BANK OF NEW YORK, as Collateral Agent
By: /s/ MARYBETH LEWICKI
-------------------------------------
Name: MaryBeth Lewicki
Title: Vice President
[PLEDGE AND SECURITY AGREEMENT]
ANNEX I
See attached.
Stock Certificate of AES Red Oak Urban Renewal Corporation
100 shares to AES Red Oak, LLC
I-1
ANNEX II
to
PLEDGE AND SECURITY AGREEMENT
DATED AS OF MARCH 1, 2000
FORM OF STOCK POWER
FOR VALUE RECEIVED, the undersigned, AES RED OAK, L.L.C., a limited
liability company organized and validly existing under the laws of the State
of Delaware, does hereby sell, assign and transfer to ___________________ ten
(10) Common Shares of AES RED OAK URBAN RENEWAL CORPORATION, corporation
organized and validly existing under the laws of the State of New Jersey (the
"Stock"), standing in the name of the undersigned on the books of said
company and does hereby irrevocably constitute and appoint
______________________ _________________ as the undersigned's true and lawful
attorney, for it and in its name and stead, to, as and to the extent
permitted pursuant to Section 2.3 of the Collateral Agency and Intercreditor
Agreement, dated as of March 1, 2000, among AES Red Oak, L.L.C., The Bank of
New York, in its various capacities as described therein and Dresdner Bank
AG, acting through its New York Branch, in its various capacities as
described therein (the "Collateral Agency Agreement"), sell, assign and
transfer all or any of the Stock, and for that purpose to make and execute
all necessary acts of assignment and transfer thereof; and to substitute one
or more persons with like full power, hereby ratifying and confirming all
that said attorney or substitute or substitutes shall lawfully do by virtue
hereof in accordance with the provisions of the Collateral Agency Agreement.
Dated:
AES RED OAK, L.L.C.
By:
-----------------------------
Name:
Title:
II-1