Exhibit 10.33


 


AMENDMENT NO. 12 TO THIRD AMENDED AND RESTATED

CREDIT AND REIMBURSEMENT AGREEMENT


 


Dated as of September 13, 2007


 


AMENDMENT NO. 12 TO THIRD AMENDED AND
RESTATED CREDIT AND REIMBURSEMENT AGREEMENT (this “Amendment”) 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; and


 


(2)                                  WHEREAS, the Borrower
and the Required Banks have agreed, subject to the terms and conditions
hereinafter set forth, to amend certain provisions of the Credit Agreement as
set forth below.


 


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.                                Amendment.
As of the Effective Date, the Credit Agreement is hereby amended as follows:


 


(a)                                  Section
1.01 of the Credit Agreement is hereby amended by inserting the following
defined terms in the appropriate alphabetical position:


 

















 


“AES Sonel”
means AES-SONEL S.A., a société anonyme organised and
existing under the laws of Cameroon.


 


“Cameroon Business”
means any AES Business located in the Republic of Cameroon, including, without
limitation, AES Sonel.


 


(b)                                 Section
1.01 of the Credit Agreement is hereby further amended by inserting at the end
of the definition of “Equity Interest” set forth therein, immediately before
the period, the following phrase:  “or any debt
security that constitutes Debt and is convertible into, or exchangeable for,
Equity Interests”.


 


(c)                                  Section
5.07(b)(ii) of the Credit Agreement is hereby amended by (i) replacing the word
“or” immediately before clause (2) in the parenthetical contained in clause (y)
of such Section 5.07(b)(ii) with a comma and (ii) inserting at the end of such
clause (2) immediately before the closing parenthesis the following: “and (3)
in the case of any Cameroon Business or any Subsidiary of the Borrower (other
than any Subsidiary Guarantor) that has a direct or indirect interest in any
Cameroon Business, Debt of any other Cameroon Business or any Subsidiary of the
Borrower (other than any Subsidiary Guarantor) that has a direct or indirect
interest in any Cameroon Business”.


 


(d)                                 Section
5.10(o) of the Credit Agreement is hereby amended by inserting at the end of
such Section, immediately before the semi-colon, the following: “and, in the
case of any Cameroon Business, the assets and revenues of any other Cameroon
Business and the Capital Stock (other than Capital Stock that has been pledged
to the Secured Holders pursuant to the Collateral Documents) or other assets
(including contract rights) of Subsidiaries of the Borrower (other than
Subsidiary Guarantors) having a direct or indirect interest in any Cameroon
Business”.


 


(e)                                  Section
5.16(b) of the Credit Agreement is hereby amended by (i) inserting, in the last
paragraph of such Section, immediately after the phrase “Notwithstanding
anything to the contrary in this Section 5.16(b),” the figure “(A)” and (ii)
inserting at the end of such paragraph, immediately before the period, the
following: “and (B) any Cameroon Business may make an Investment in any other
Cameroon Business”.


 


SECTION 2.                                Conditions
to Effectiveness. This Amendment shall become effective when, and only
when, and as of the date (the
“Effective Date”) on which (a) the
Agent shall have received counterparts of this Amendment executed by the
Borrower and each of the Subsidiary Guarantors and the Required Banks or, as to
any of the Required Banks, advice satisfactory to the Agent that such Bank
Party has executed this Amendment, (b) the Agent shall have received payment of all
accrued fees and expenses of the Agent (including the reasonable and accrued
fees of counsel to the Agent invoiced on or prior to the date hereof), (c) the
Agent shall have received a favorable opinion of the Counsel of
the Borrower regarding the due authorization, execution and delivery of this
Amendment and other matters reasonably requested by the Agent and (d) the Agent shall have
received a certificate signed by a duly authorized officer of the
Borrower dated the Effective Date, to the effect that, after giving effect to
this Amendment: (i) the representations and warranties contained in each
of the Financing Documents are true and correct in all material respects on and
as of the Effective Date as though 


 


2

















 


made on and as of such date (unless stated to
relate solely to an earlier date, in which case such representations and warranties
are true and correct in all material respects as of such earlier date); and
(ii) no Default has occurred and is continuing.


 


This Amendment is subject to the provisions
of Section 10.05 of the Credit Agreement.


 


SECTION 3.                                Representations
and Warranties. The Borrower represents and warrants as follows:


 


(a)                                  The
representations and warranties contained in each of the Financing Documents,
after giving effect to this Amendment, are correct in all material respects on
and as of the date of this Amendment, as though made on and as of such date
(unless stated to relate solely to an earlier date, in which case such
representations and warranties are true and correct in all material respects as
of such earlier date).


 


(b)                                 After
giving effect to this Amendment, no Default has occurred and is continuing on
the date hereof.


 


SECTION 4.                                Reference
to and Effect on the Financing Documents. (a)  On and after the Effective Date, each
reference in the Credit Agreement to “this
Agreement”, “hereunder”,
“hereof” or words of like import
referring to the Credit Agreement, and each reference in the Notes and each of
the other Financing Documents to “the
Agreement”, “thereunder”,
“thereof”, or words of like
import referring to the Credit Agreement shall mean and be a reference to the
Credit Agreement, as modified hereby.


 


(b)                                 The
Credit Agreement, the Notes and each of the other Financing Documents, as
specifically modified by this Amendment, are and shall continue to be in full
force and effect and are hereby in all respects ratified and confirmed. Without
limiting the generality of the foregoing, the Collateral Documents and all of
the Collateral described therein do and shall continue to secure the payment of
all Obligations of the Loan Parties under the Financing Documents, in each case
as modified by this Amendment.


 


(c)                                  The
execution, delivery and effectiveness of this Amendment shall not, except as
expressly provided herein, operate as a waiver of any right, power or remedy of
the Banks, nor constitute an amendment or waiver of any provision of the Credit
Agreement or the other Financing Documents.


 


SECTION 5.                                Affirmation
of Subsidiary Guarantors. Each Subsidiary Guarantor hereby consents to the
amendments to the Credit Agreement effected hereby, and hereby confirms
and agrees that, notwithstanding the effectiveness of this Amendment, the
obligations of such Subsidiary Guarantor contained in Article IX of the Credit
Agreement or in any other Financing Documents to which it is a party are, and
shall remain, in full force and effect and are hereby ratified and confirmed in
all respects, except that, on and after the effectiveness of this Amendment,
each reference in Article IX of the Credit Agreement and in each of the other Financing
Documents to “the Agreement”, “thereunder”, “thereof” or words of like import shall mean and be a
reference to the Credit Agreement, as modified by this Amendment. Without limiting
the generality of the foregoing, the Collateral Documents to which such
Subsidiary 


 


3

















 


Guarantor is a party and all of the
Collateral described therein do, and shall continue to secure, payment of all
of the Secured Obligations (in each case, as defined therein).


 


SECTION 6.                                GOVERNING
LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.


 


SECTION 7.                                WAIVER
OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ALL RIGHTS TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AMENDMENT OR
THE ACTIONS OF THE COLLATERAL TRUSTEES OR THE AGENT IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE OR ENFORCEMENT THEREOF.


 


SECTION 8.                                Execution
in Counterparts. This Amendment may be executed by one or more of the parties
to this Amendment on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.


 


SECTION 9.                                Costs
and Expenses. The Borrower hereby agrees to pay all reasonable costs and
expenses associated with the preparation, execution, delivery, administration,
and enforcement of this Amendment, including, without limitation, the fees and
expenses of the Collateral Trustees’ and the Agent’s counsel and other
out-of-pocket expenses related hereto. Delivery of an executed counterpart of a
signature page to this Amendment by telecopier shall be effective as delivery
of a manually executed counterpart of this Amendment.


 


4

















 


IN WITNESS WHEREOF, the parties hereto have
caused this Amendment to be duly executed and delivered by their respective
proper and duly authorized officers as of the day and year first above written.


 


THE AES CORPORATION,

as Borrower


 


 


	
  By:

  	
  /s/ Willard
  C. Hoagland III

  	
   

  
	
   

  	
  Title:

  	
  Vice President and Treasurer

  
	
   

  	
  Address:

  	
  4300 Wilson Boulevard

  
	
   

  	
   

  	
  Arlington, VA 22203

  
	
   

  	
  Fax:

  	
  (703) 528-4510

  
				



 


5

















 


SUBSIDIARY GUARANTORS:


 


AES HAWAII MANAGEMENT COMPANY, INC.,


as Subsidiary Guarantor


 


	
  By: 

  	
  /s/ Willard C. Hoagland III

  	
   

  
	
   

  	
  Title:

  	
  Vice President and Treasurer

  
	
   

  	
  Address:

  	
  4300 Wilson Boulevard

  
	
   

  	
   

  	
  Arlington, VA 22203

  
	
   

  	
  Fax:

  	
  (703) 528-4510

  
	
   

  	
   

  	
   

  
	
  AES NEW YORK FUNDING, L.L.C.,

  
	
  as Subsidiary Guarantor

  
	
   

  	
   

  	
   

  
	
  By: 

  	
  /s/ Willard C. Hoagland III

  	
   

  
	
   

  	
  Title:

  	
  Vice President and Treasurer

  
	
   

  	
  Address:

  	
  4300 Wilson Boulevard

  
	
   

  	
   

  	
  Arlington, VA 22203

  
	
   

  	
  Fax:

  	
  (703) 528-4510

  
	
   

  	
   

  	
   

  
	
  AES OKLAHOMA HOLDINGS, L.L.C.,

  
	
  as Subsidiary Guarantor

  
	
   

  	
   

  	
   

  
	
  By: 

  	
  /s/ Willard C. Hoagland III

  	
   

  
	
   

  	
  Title:

  	
  Vice President and Treasurer

  
	
   

  	
  Address:

  	
  4300 Wilson Boulevard

  
	
   

  	
   

  	
  Arlington, VA 22203

  
	
   

  	
  Fax:

  	
  (703) 528-4510

  
	
   

  	
   

  	
   

  
	
  AES WARRIOR RUN FUNDING, L.L.C.,

  
	
  as Subsidiary Guarantor

  
	
   

  	
   

  	
   

  
	
  By: 

  	
  /s/ Willard C. Hoagland III

  	
   

  
	
   

  	
  Title:

  	
  Vice President and Treasurer

  
	
   

  	
  Address:

  	
  4300 Wilson Boulevard

  
	
   

  	
   

  	
  Arlington, VA 22203

  
	
   

  	
  Fax:

  	
  (703) 528-4510

  
	
   

  	
   

  	
   

  
					



 


6

















 


AGENTS:


 


CITICORP USA, INC.,

as Agent


 


 


	
  By: 

  	
  /s/ Nietzsche Rodricks

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
  Address:

  	
  388 Greenwich Street, 21st Floor

  
	
   

  	
   

  	
  New York, NY 10013

  
	
   

  	
  Fax:

  	
  (212) 816-8098

  
	
   

  	
  Attention:

  	
  Nietzsche Rodricks

  
	
   

  	
  Email:

  	
  oploanswebadmin@citigroup.com

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  CITIBANK N.A.,

  
	
  as Collateral Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
  By: 

  	
  /s/ Nietzsche Rodricks

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
  Address:

  	
  388 Greenwich Street, 21st Floor

  
	
   

  	
   

  	
  New York, NY 10013

  
	
   

  	
  Fax:

  	
  (212) 816-8098

  
	
   

  	
  Attention:

  	
  Nietzsche Rodricks

  
				



 


7

















 


CITICORP USA, INC., 

as Lender


 


 


	
  By: 

  	
  /s/ Nietzsche Rodricks

  	
   

  
	
   

  	
  Name:

  	
  Nietzsche Rodricks

  
	
   

  	
  Title:

  	
  Vice President

  
				



 

















 


SOCIETE GENERALE


as Lender


 


 


	
  By: 

  	
  /s/ Yao Wang

  	
   

  
	
   

  	
  Name:

  	
  Yao Wang

  
	
   

  	
  Title:

  	
  Vice President

  
				



 


2

















 


LCM I LIMITED PARTNERSHIP


 


	
  By:

  	
   

  	
  Lyon Capital Management LCC,

  
	
   

  	
   

  	
  As Collateral Manager

  
	
  as Lender

  
	
   

  
	
   

  
	
  By: 

  	
  /s/ Farboud Tavangar

  	
   

  
	
   

  	
  Name: Farboud Tavangar

  
	
   

  	
  Title:   Senior Portfolio Manager

  
				



 


3

















 


LCM II LIMITED PARTNERSHIP


 


	
  By:

  	
   

  	
  Lyon Capital Management LCC,

  
	
   

  	
   

  	
  As Collateral Manager

  
	
  as Lender

  
	
   

  
	
   

  
	
  By: 

  	
  /s/ Farboud Tavangar

  	
   

  
	
   

  	
  Name: Farboud Tavangar

  
	
   

  	
  Title:   Senior Portfolio Manager

  
				



 


4

















LCM III, LTD.


 


	
  By:

  	
   

  	
  Lyon Capital Management LCC,

  
	
   

  	
   

  	
  As Collateral Manager

  
	
  as Lender

  
	
   

  
	
   

  
	
  By: 

  	
  /s/ Farboud Tavangar

  	
   

  
	
   

  	
  Name: Farboud Tavangar

  
	
   

  	
  Title:   Senior Portfolio Manager

  
				



 


5

















 


LCM IV, LTD.


 


	
  By:

  	
   

  	
  Lyon Capital Management LCC,

  
	
   

  	
   

  	
  As Collateral Manager

  
	
  as Lender

  
	
   

  
	
   

  
	
  By: 

  	
  /s/ Farboud Tavangar

  	
   

  
	
   

  	
  Name: Farboud Tavangar

  
	
   

  	
  Title:   Senior Portfolio Manager

  
				



 


6

















 


LCM V, LTD.


 


	
  By:

  	
   

  	
  Lyon Capital Management LCC,

  
	
   

  	
   

  	
  As Collateral Manager

  
	
  as Lender

  
	
   

  
	
   

  
	
  By: 

  	
  /s/ Farboud Tavangar

  	
   

  
	
   

  	
  Name: Farboud Tavangar

  
	
   

  	
  Title:   Senior Portfolio Manager

  
				



 


7

















 


LCM VI, LTD.


 


	
  By:

  	
   

  	
  Lyon Capital Management LCC,

  
	
   

  	
   

  	
  As Collateral Manager

  
	
  as Lender

  
	
   

  
	
   

  
	
  By: 

  	
  /s/ Farboud Tavangar

  	
   

  
	
   

  	
  Name: Farboud Tavangar

  
	
   

  	
  Title:   Senior Portfolio Manager

  
				



 


8

















 


LCM VII, LTD.


 


	
  By:

  	
   

  	
  Lyon Capital Management LCC,

  
	
   

  	
   

  	
  As Collateral Manager

  
	
  as Lender

  
	
   

  
	
   

  
	
  By: 

  	
  /s/ Farboud Tavangar

  	
   

  
	
   

  	
  Name: Farboud Tavangar

  
	
   

  	
  Title:   Senior Portfolio Manager

  
				



 


9

















 


LEHMAN COMMERCIAL PAPER INC.


as Lender


 


 


	
  By: 

  	
  /s/ Randall Braunfeld

  	
   

  
	
   

  	
  Name:

  	
  Randall Braunfeld

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
				



 


10

















 


GOLDMAN SACHS CREDIT PARTNERS


as Lender


 


 


	
  By: 

  	
  /s/ Robert Schatzman

  	
   

  
	
   

  	
  Name:

  	
  Robert Schatzman

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
				



 


11

















 


DEUTSCHE BANK TRUST COMPANY AMERICAS


as Lender


 


 


	
  By: 

  	
  /s/ Marcus M. Tarkington

  	
   

  
	
   

  	
  Name:

  	
  Marcus M. Tarkington

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  
	
  By: 

  	
  /s/ Paul O’Leary

  	
   

  
	
   

  	
  Name: Paul O’Leary

  
	
   

  	
  Title:   Vice President

  
				



 


12

















 


BALLANTYNE FUNDING LLC


as Lender


 


 


	
  By: 

  	
  /s/ Michael Roof

  	
   

  
	
   

  	
  Name:

  	
  Michael Roof

  
	
   

  	
  Title:

  	
  Vice President

  
				



 


13

















 


AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED


as Lender


 


 


	
  By: 

  	
  /s/ John W. Wade

  	
   

  
	
   

  	
  Name:

  	
  John W. Wade

  
	
   

  	
  Title:

  	
  Director

  
				



 


14

















 


CREDIT SUISSE, CAYMAN ISLAND BRANCH


as Lender


 


 


	
  By: 

  	
  /s/ Brian Caldwell

  	
   

  
	
   

  	
  Name:

  	
  Brian Caldwell

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  
	
  By: 

  	
  /s/ Nupur Kumar

  	
   

  
	
   

  	
  Name:

  	
  Nupur Kumar

  
	
   

  	
  Title:

  	
  Associate

  
				



 


15

















 


MORGAN STANLEY BANK


as Lender


 


 


	
  By: 

  	
  /s/ Stephen B. King

  	
   

  
	
   

  	
  Name:

  	
  Stephen B. King

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
				



 


16

















 


UNION BANK OF CALIFORNIA, N.A.


as Lender


 


 


	
  By: 

  	
  /s/ Susan K. Johnson

  	
   

  
	
   

  	
  Name:

  	
  Susan K. Johnson

  
	
   

  	
  Title:

  	
  Vice President

  
				



 


17

















 


JPMORGAN CHASE BANK, N.A.


as Lender


 


 


	
  By: 

  	
  /s/ Ivan W. Chan

  	
   

  
	
   

  	
  Name:

  	
  Ivan W. Chan

  
	
   

  	
  Title:

  	
  Vice President

  
				



 


18

















 


BNP PARIBAS


as Lender


 


 


	
  By: 

  	
  /s/ Francis J. Delaney

  	
   

  
	
   

  	
  Name:

  	
  Francis J. Delaney

  
	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  	
   

  
	
  By: 

  	
  /s/ Ralph Scholtz

  	
   

  
	
   

  	
  Name:

  	
  Ralph Scholtz

  
	
   

  	
  Title:

  	
  Managing Director

  
				



 


19

















 


BARCLAYS BANK PLC


as Lender


 


 


	
  By: 

  	
  /s/ Nicholas Bell

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Nicholas Bell

  
	
   

  	
  Title:

  	
  Director

  
					



 


20

















 


UBS AG, STAMFORD BRANCH


as Lender


 


 


	
  By: 

  	
  /s/ Douglas Garvolino

  	
   

  
	
   

  	
  Name: Douglas Garvolino

  
	
   

  	
  Title:   Director of Banking Products

  
	
   

  	
   

  	
   

  
	
  By: 

  	
  /s/ Toba Lumbantobing

  	
   

  
	
   

  	
  Name: Toba Lumbantobing

  
	
   

  	
  Title:   Associate Director Banking Products

  
					



 


21

















 


BANK OF AMERICA, N.A.


as Lender


 


 


	
  By: 

  	
  /s/ Patrick Martin

  	
   

  
	
   

  	
  Name:

  	
  Patrick Martin

  
	
   

  	
  Title:

  	
  Vice President

  
				



 


22