Exhibit 99.1
Execution Copy
WAIVER NO. 4 TO THIRD AMENDED AND
RESTATED
CREDIT AND REIMBURSEMENT AGREEMENT
Dated as of December ,
2005
WAIVER NO. 4 TO THIRD AMENDED AND
RESTATED CREDIT AND REIMBURSEMENT AGREEMENT (this “
Waiver ”) among The AES Corporation, a Delaware
corporation (the “ Borrower ”), the Subsidiary
Guarantors, the Bank Parties listed on the signature
pages hereto, CITICORP USA, INC., as administrative agent (the
“ Agent ”) and CITIBANK, N.A., as Collateral
Agent, for the Bank Parties (the “ Collateral Agent
”).
PRELIMINARY
STATEMENTS
(1)
WHEREAS, the Borrower is party to a Third Amended and Restated
Credit and Reimbursement Agreement dated as of March 17, 2004
(as amended, amended and restated, supplemented or otherwise
modified up to the date hereof, the “ Credit Agreement
”; capitalized terms used herein but not defined shall be
used herein as defined in the Credit Agreement) among the
Subsidiary Guarantors, the Bank Parties, CITIGROUP GLOBAL MARKETS,
INC., as Lead Arranger and Book Runner, BANC OF AMERICA SECURITIES
LLC, as Lead Arranger and Book Runner and as Co-Syndication Agent
(for the Initial Term Loan Facility), DEUTSCHE BANK SECURITIES
INC., as Lead Arranger and Book Runner (for the Initial Term Loan
Facility), UNION BANK OF CALIFORNIA, N.A., as Co-Syndication Agent
(for the Initial Term Loan Facility) and as Lead Arranger and Book
Runner and as Syndication Agent (for the Revolving Credit
Facility), LEHMAN COMMERCIAL PAPER INC., as Co-Documentation Agent
(for the Initial Term Loan Facility), UBS SECURITIES LLC, as
Co-Documentation Agent (for the Initial Term Loan Facility),
SOCIÉTÉ GÉNÉRALE, as Co-Documentation Agent
(for the Revolving Credit Facility), CREDIT LYONNAISE NEW YORK
BRANCH, as Co-Documentation Agent (for the Revolving Credit
Facility), the Agent and the Collateral Agent;
(2)
WHEREAS, the Borrower has requested that the Required Banks agree
to waive certain provisions of the Credit Agreement;
(3)
WHEREAS, the Required Banks have agreed, subject to the terms and
conditions hereinafter set forth, to waive certain provisions of
the Credit Agreement as set forth below;
(4)
WHEREAS, on July 27, 2005, the Borrower announced that, as a
result of the continuing evaluation of the its deferred income tax
accounting and reconciliation controls process, the Borrower would
restate its 2002, 2003, 2004 and first quarter 2005 financial
statements (the “ Restatement ”);
(5)
WHEREAS, the Borrower (x) was not able to timely deliver the
financial statements and certificates required by Sections
5.01(b) and 5.01(d) with respect to the quarter ended
June 30, 2005 (the “ Q2 Financial Information
”) and (y) was not able to timely deliver the financial
statements and certificates required by Sections 5.01(b) and
5.01(d) with respect to the quarter ended September 30,
2005 (the “ Q3 Financial Information
”);
(6)
WHEREAS, on August 19, 2005, pursuant to Amendment No. 3
and Waiver No. 1 to the Credit Agreement (“ Waiver
No. 1 ”), the Required Banks granted an extension
for the delivery of the Q2 Financial Information until
October 15, 2005;
(7)
WHEREAS, on October 15, 2005, pursuant to Amendment No. 6
and Waiver No. 2 to the Credit Agreement (“ Waiver
No. 2 ”), the Required Banks granted an extension
for the delivery of the Q2 Financial Information until
November 29, 2005; and
(8)
WHEREAS, on November 18, 2005, pursuant to Waiver No. 3
to the Credit Agreement (“ Waiver No. 3 ”),
the Required Banks granted an extension for the delivery of the Q2
Financial Information and the Q3 Financial Information until
December 31, 2005.
NOW, THEREFORE, in consideration of
the premises and for other good and valuable consideration, the
sufficiency and receipt of all of which is hereby acknowledged, the
parties hereto hereby agree as follows:
SECTION 1.
Waivers . As of the Effective Date, the Required Banks
hereby grant the following waivers under the Credit
Agreement:
(a)
Q2 Financial Information; Q3 Financial Information .
Notwithstanding the provisions of the Credit Agreement,
(i) the Required Banks hereby waive compliance by the Borrower
with the provisions of Sections 5.01(b) and (d) with
respect to the requirement to deliver to the Bank Parties, on or
prior to August 29, 2005 (as extended to December 31,
2005 pursuant to Waiver No. 1, Waiver No. 2 and Waiver
No. 3), the Q2 Financial Information and agree that no such
failure to comply shall be considered a Default or Event of Default
arising under Section 6.01(c) of the Credit Agreement;
provided that, it shall constitute an Event of Default under
the Credit Agreement if any of such Q2 Financial Information is not
delivered to the Bank Parties on or prior to January 20, 2006
and (ii) the Required Banks hereby waive compliance by the
Borrower with the provisions of Sections 5.01(b) and
(d) with respect to the requirement to deliver to the Bank
Parties, on or prior to November 29, 2005 (as extended to
December 31, 2005 pursuant to Waiver No. 3), the Q3
Financial Information and agree that no such failure to comply
shall be considered a Default or Event of Default arising under
Section 6.01(c) of the Credit Agreement; provided
that, it shall constitute an Event of Default under the Credit
Agreement if any of such Q3 Financial Information is not delivered
to the Bank Parties on or prior to January 20,
2006.
(b)
Cross Default . Notwithstanding the provisions of the
Credit Agreement, the Required Banks hereby waive any Default or
Event of Default now existing or he
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