EXHIBIT 4.14
EXECUTION COPY
RAYTHEON ENGINEERS & CONSTRUCTORS, INC.
CONSENT TO ASSIGNMENT
THIS CONSENT TO ASSIGNMENT (this "CONSENT TO ASSIGNMENT") is entered
into as of March 1, 2000 by RAYTHEON ENGINEERS & CONSTRUCTORS, INC., a
Delaware corporation (the "CONSENTING PARTY"), and THE BANK OF NEW YORK, as
collateral agent (the "COLLATERAL AGENT", together with any successors
thereto in such capacity, referred to as the "ASSIGNEE"), for the benefit of
and on behalf of the Senior Parties defined below.
(A) AES Red Oak, L.L.C. (the "COMPANY"), a Delaware limited
liability company, is providing for the development, construction, ownership,
leasing and operation of a gas-fired combined cycle electric generating
facility (the "FACILITY") and the financing, development and construction
thereof (the Facility, equipment and facilities associated with the Facility
and such financing, development and construction, the "PROJECT") to be
located in the Borough of Sayreville, Middlesex County, New Jersey.
(B) The Company 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 Company and The Bank of New York, as trustee (the
"TRUSTEE"), as it may be amended or supplemented from time to time (the
"INDENTURE").
(C) All obligations of the Company under the Securities, the
Collateral Agency Agreement (defined below) and any other agreements
evidencing senior debt of the Company (collectively, the "FINANCING
DOCUMENTS") to the Trustee, the Collateral Agent, each successor to any such
person and each other person providing senior debt to the Company who is or
becomes a party to the Collateral Agency Agreement pursuant to its terms
(collectively, the "SENIOR PARTIES") will be secured by a certain Mortgage,
Security Agreement, Indenture, Pledge Agreement and Assignment of Leases and
Income, each between the Company and The Bank of New York (collectively, the
"SECURITY DOCUMENTS").
(D) The Senior Parties and the Company have 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.
(E) The Company and the Consenting Party have entered into that
certain Agreement for Engineering, Procurement and Construction Services, as
amended by the letters set forth in Annex A hereto (the "ASSIGNED AGREEMENT")
dated as of October 15, 1999, pursuant to which, among other things, the
Consenting Party will design, engineer, procure and construct the Project on
a fixed-price turnkey basis and will provide certain warranties and
guarantees.
(F) The Company has notified the Consenting Party that all of the
Company's right, title and interest in the Assigned Agreement is to be
assigned to the Assignee as security pursuant to one or more of the Security
Documents.
(G) It is a condition precedent to the extension of credit by the
Senior Parties that the Consenting Party execute and deliver this Consent to
Assignment for the benefit of the Senior Parties.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, the parties hereto agree as
follows:
1. DEFINITIONS. Capitalized terms used herein shall have the
respective meanings specified herein or, if not defined herein, as defined in
the Assigned Agreement.
2. CONSENT TO ASSIGNMENT. The Consenting Party hereby irrevocably
consents to the assignment of the Assigned Agreement by the Company to the
Assignee for the benefit of the Senior Parties as security. The Consenting
Party shall continue performance under the Assigned Agreement in accordance
with its terms and the terms of this Consent to Assignment.
3. NO DEFAULTS. The Consenting Party acknowledges and agrees that
(a) the Assigned Agreement is in full force and effect and there are no
amendments, modifications or supplements thereto, either oral or written, (b)
the Consenting Party has not assigned, transferred or hypothecated the
Assigned Agreement or any interest therein, (c) the Consenting Party has no
knowledge of any default by the Company in any respect of the performance of
any material provision of the Assigned Agreement and without having performed
any specific due diligence no knowledge of any event or condition which would
either immediately or with the passage of any applicable grace period or
giving of notice or both, enable the Consenting Party to terminate or suspend
its obligations under the Assigned Agreement, (d) none of the Company's
rights under the Assigned Agreement has been waived in writing, (e) the
assignment by the Company of the Assigned Agreement to the Assignee, as
security, and the acknowledgment of and consent to such assignment by the
Consenting Party, will not cause or constitute a default under the Assigned
Agreement or an event or condition which would, with the giving of notice or
lapse of time or both, constitute a default under the Assigned Agreement, and
(f) subject to the provisions of Section 9 hereof, a foreclosure or other
exercise of remedies under any of the Security Documents or any sale
thereunder by the Assignee, any of the Senior Parties or any of their
respective designees or assignees, whether by judicial proceedings or under
any power of sale contained therein, or any conveyance from the Company to
the Assignee, any of the Senior Parties or any of their respective designees
or assignees, in lieu thereof, shall not require the consent of the
Consenting Party, or cause or constitute a default under the Assigned
Agreement or an event or condition which would, with the giving of notice or
lapse of time or both, constitute a default under the Assigned Agreement.
4. NOTICE OF COMPANY'S DEFAULTS AND TERMINATION. Anything in the
Assigned Agreement notwithstanding, until the obligations of the Consenting
Party under the Assigned Agreement have been satisfied in full, the
Consenting Party shall not exercise any right it may have under the Assigned
Agreement, at law or in equity, to cancel, suspend or terminate the Assigned
Agreement, or any of its obligations thereunder, as the result of any default
or other action or
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omission of the Company without first giving a copy of a notice of default to
the Assignee. Such notice shall be coupled with an opportunity to cure any
such default or, with respect to any defaults which are not susceptible of
being so corrected, to rectify to the Consenting Party's reasonable
satisfaction the effect upon the Consenting Party of such default for a
period of not less than forty-five (45) days from the later of (i) expiration
of the cure period provided in the Assigned Agreement or (ii) delivery of
such notice to the Assignee (or, with respect to nonmonetary defaults or
defaults the curing of which requires the Assignee's possession of the
Facility through foreclosure, such longer period of time as may be necessary
under the circumstances, but not more than 120 days from the later of (i)
expiration of the cure period provided in the Assigned Agreement or (ii)
delivery of such notice to the Assignee, to complete such foreclosure or cure
such default, provided the Assignee, any of the Senior Parties, or any of
their respective assignees or designees is diligently pursuing such cure or
foreclosure). Such notice shall be in writing and shall be deemed to have
been given (a) when presented personally, (b) one business day after being
deposited for overnight delivery with a nationally recognized overnight
courier, such as FedEx, (c) when received, if deposited in a regularly
maintained receptacle for the United States Postal Service, postage prepaid,
registered or certified, return receipt requested, addressed to the Assignee
at the address indicated below or such other address as the Assignee may have
specified by written notice delivered in accordance herewith, or (d) when
transmitted by telecopy to the number specified below and the receipt
confirmed telephonically by recipient, PROVIDED that such telecopy is then
followed by a copy of such notice delivered by a method specified in clause
(a), (b) or (c) above.
The Bank of New York, as Collateral Agent
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
FACSIMILE: 000-000-0000
Failure of the Consenting Party to provide such notice to the
Assignee shall not constitute a breach of this Consent to Assignment, and the
Assignee agrees that the Consenting Party shall have no liability to the
Assignee for such failure whatsoever; however, no cancellation, suspension or
termination of the Assigned Agreement by the Consenting Party, or of any of
the Consenting Party's obligations thereunder by the Consenting Party, shall
be binding upon the Assignee or any of the Senior Parties without such notice
and the lapse of the applicable cure period. Any dispute that may arise under
the Assigned Agreement notwithstanding, the Consenting Party shall continue
performance and resolve any dispute in accordance with the terms of the
Assigned Agreement, without discontinuing such performance until the lapse of
the notice and applicable cure periods or extension periods. The Assignee,
any of the Senior Parties or any of their respective assignees or designees
may, but shall be under no obligation to, make any payment or perform any act
required thereunder to be made or performed by the Company, with the same
effect as if made or performed by the Company. If the Assignee, any of the
Senior Parties or any of their respective assignees or designees fails to
cure or rectify the effect of a default under the Assigned Agreement within
the time permitted for such cure, the Consenting Party shall have all its
rights and remedies with respect to such default as set forth in the Assigned
Agreement.
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5. NO PREVIOUS ASSIGNMENT. The Consenting Party represents and
warrants to the Assignee that it has not assigned, transferred or
hypothecated, nor previously consented to any assignment, transfer or
hypothecation by the Company of the Assigned Agreement or any interest
therein.
6. AMENDMENT AND MODIFICATION WITHOUT CONSENT. The Consenting Party
acknowledges that under the terms of the Financing Documents, the Company is
not permitted to request or approve Scope Changes that exceed $5 million
individually or $10 million in the aggregate except upon compliance with
certain conditions. The Consenting Party shall not agree to any Scope Changes
that exceed such amounts unless the Company shall have certified in writing
to the Consenting Party that it has complied with such conditions set forth
in such Financing Documents.
7. PAYMENTS TO REVENUE ACCOUNT. The Consenting Party hereby agrees
that, so long as any notes, bonds, loans, letters of credit, commitments or
other obligations, or any other Financing Liabilities, are outstanding under
the Financing Documents and until the same have been satisfied in full, all
payments to be made by the Consenting Party with respect to the Assigned
Agreement shall be in lawful money of the United States of America. The
Company hereby directs the Consenting Party to, and the Consenting Party
hereby agrees to, make all such payments with respect to the Assigned
Agreement directly to the Assignee at ABA No. 000000000, for credit to AES
Red Oak, L.L.C., for further credit to Account No. 002008 (Revenue Account)
Attention: Capital Markets Trust Services, or to such other person and/or at
such other address as the Assignee may from time to time specify in writing
to the Consenting Party. All payments required to be made by the Consenting
Party under the Assigned Agreement shall be made without any offset,
recoupment, abatement, withholding, reduction or defense whatsoever, except
for such offset, recoupment, abatement, withholding or reduction as is not
prohibited by the terms of the Assigned Agreement.
8. PROTECTION OF ASSIGNEE. In the event that either (a) the
Company's interest in the Project shall be sold, assigned or otherwise
transferred pursuant to the exercise of any right, power or remedy by the
Assignee or pursuant to judicial proceedings, or (b) the Company rejects all
or a portion of the Assigned Agreement under Xxxxx 00, Xxxxxx Xxxxxx Code, or
other similar Federal or state statute and such rejection is approved by the
appropriate bankruptcy court or is otherwise effective pursuant to such
statute, AND in either case (i) no funds payable under the Assigned Agreement
shall be due and payable to the Consenting Party, (ii) the effect upon the
Consenting Party of any default not susceptible of being corrected shall have
been rectified to Consenting Party's reasonable satisfaction, (iii) the
Assigned Agreement shall have been validly terminated pursuant to the terms
of the Assigned Agreement by reason of a default or a rejection by the
Company or a trustee in bankruptcy under Xxxxx 00, Xxxxxx Xxxxxx Code, or
other similar Federal or state statute, and (iv) the Assignee or any of the
Senior Parties shall have cured, or shall be diligently pursuing a cure of,
or shall have entered into a binding obligation providing for the cure of,
any default susceptible of being corrected by Assignee or any of the Senior
Parties or by a purchaser at any judicial or non-judicial sale, the
Consenting Party shall, promptly, and in no event longer than ten (10) days
after receipt of written request therefor; provided, such request is received
by the Consenting Party not more than 60 days after any event specified in
clause (a) or (b) above, execute and deliver an agreement to the Assignee,
any of the Senior Parties or any of their respective nominees, purchasers,
assignees or transferees, as the case may be, for the remainder of the term
of
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the Assigned Agreement and with the same terms as are contained therein;
provided, that any nominee, purchaser, assignee, or transferee of the
Assignee or the Senior Parties shall assume in writing the obligations of the
Company under the Assigned Agreement. References in this Consent to
Assignment to "Assigned Agreement" shall be deemed also to include such new
agreement.
9. ACKNOWLEDGEMENT OF ASSIGNEE'S OBLIGATIONS AND RIGHTS. Neither the
Assignee nor any of the Senior Parties has any obligation hereunder to extend
credit to the Consenting Party or any contractor of the Consenting Party at
any time for any purpose. Neither the Assignee nor any of the Senior Parties
shall have any obligation to the Consenting Party under the Assigned
Agreement unless and until such time as such entity elects to succeed to the
interest of the Company under the Assigned Agreement in accordance with this
Consent to Assignment. Upon the occurrence and during the continuance of an
event of default under any of the Security Documents, the Assignee or any of
the Senior Parties shall have the right to the extent authorized under the
Security Documents, to (a) take possession of the Project and operate the
same, (b) sell or otherwise transfer their interest in the Project and any
purchaser at such sale shall succeed to the Assignee's or the Senior Parties'
rights hereunder, as the case may be, and (c) exercise all rights of the
Company under the Assigned Agreement in accordance with the terms thereof. In
the case of subsection (b) above, the Assignee and the Senior Parties agree
that any purchaser, assignee, or transferee of the Project who assumes the
Assigned Agreement shall assume in writing the obligations of the Company
under the Assigned Agreement. Subject to the Assignee's compliance with the
provisions of the Assigned Agreement (if applicable) and the terms of this
Consent to Assignment, the Consenting Party shall cooperate with the Assignee
and comply in all respects in the Assignee's exercise of such rights. Without
limiting the generality of the foregoing, upon the occurrence and during the
continuance of an event of default under any of the Financing Documents, the
Assignee, any of the Senior Parties or any of their respective designees or
assignees satisfying the qualification set forth in this Section 8 shall have
the full right and power to enforce directly against the Consenting Party all
obligations of the Consenting Party under the Assigned Agreement and to
otherwise exercise all remedies thereunder, and to make all demands and give
all notices and make all requests required or permitted to be made by the
Company under the Assigned Agreement. The Assignee, any of the Senior Parties
or any of their respective assignees or designees satisfying the
qualification set forth in this Section 8 shall have the right, but not the
obligation, to perform any act, duty or obligation required of the Company
thereunder within the time periods provided in the Assigned Agreement;
provided that nothing herein shall require the Assignee, any of the Senior
Parties or any of their respective designees or assignees to cure any default
of the Company under the Assigned Agreement or to perform any act, duty or
obligation of the Company under the Assigned Agreement.
10. REFINANCING. The Consenting Party hereby acknowledges that the
Company may from time to time obtain refinancing for the Project (including
privately or publicly placed bonds or notes), and the Consenting Party agrees
that it will promptly upon request execute in favor of the lenders providing
such refinancing a consent to assignment containing terms and conditions that
are mutually agreed between the parties.
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11. REPRESENTATIONS. The Consenting Party represents and warrants to
the Assignee as follows:
(a) The Consenting Party is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has the power to transact the business it conducts (including, without
limitation, performance of its obligations under the Assigned Agreement) and
to own the properties it owns.
(b) The Consenting Party has the necessary corporate power,
corporate authority and legal right to execute, deliver and perform its
obligations under the Assigned Agreement and this Consent to Assignment, and
the execution and delivery by the Consenting Party of the Assigned Agreement
and this Consent to Assignment and the performance of its obligations
thereunder and hereunder have been duly authorized by all necessary corporate
action and do not and will not (i) violate any provision of the corporate
charter or by-laws of the Consenting Party or any provision of any material
law, rule or regulation, or any material order, writ, judgment, injunction,
decree, determination or award having applicability to the Consenting Party
and the performance of the Assigned Agreement and this Consent to Assignment,
(ii) result in a breach of or constitute a default under any indenture or
loan or credit agreement or any other agreement, lease or instrument to which
the Consenting Party is a party or by which it or its properties may be bound
or subject or (iii) result in, or require, the creation or imposition of any
mortgage, deed of trust, pledge, lien, security interest, charge or
encumbrance of any nature upon or with respect to any of the properties now
owned or hereafter acquired by the Consenting Party; and the Consenting Party
is not now in violation, breach or default of any material provision of any
law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award having applicability to the Consenting Party and the
performance of the Assigned Agreement and this Consent to Assignment or any
agreement referred to above in clause (iii) of this subsection (b), which
violation could reasonably be expected to have a material adverse effect on
the ability of the Consenting Party to perform its obligations under this
Consent to Assignment or the Assigned Agreement.
(c) The Assigned Agreement and this Consent to Assignment
have been duly executed and delivered and each constitutes a valid and
binding obligation of the Consenting Party, enforceable in accordance with
their terms, except to the extent that enforceability may be limited by
applicable bankruptcy, insolvency, moratorium, reorganization or other
similar laws affecting the enforcement of creditors' rights and general
equitable principles.
(d) No consent or approval of, or other action by, or any
notice or filing with, any court or administrative or governmental body
(except those previously obtained and in full force and effect) is required
in connection with the execution and delivery of the Assigned Agreement or
this Consent to Assignment or the performance by the Consenting Party of its
obligations hereunder. The Consenting Party has obtained all Applicable
Permits designated in Appendix F of the Assigned Agreement as being the
responsibility of the Contractor, if any, with respect to the performance of
its obligations under the Assigned Agreement and this Consent to Assignment
required by applicable laws, statutes, rules and regulations in effect as of
the date hereof other than Applicable Permits which are not yet required and
which the Consenting Party has no reason to believe will not be obtained in
the ordinary course of business, upon due application therefor when required.
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(e) The Consenting Party is not in default with respect to
the Assigned Agreement and has no knowledge, as of the date hereof, of any
claims or rights of set off by the Consenting Party or by any of its
affiliates against the Company. To the best of the Consenting Party's
knowledge after due inquiry, each other party to the Assigned Agreement have
complied with all conditions precedent to the respective obligations of such
party to perform under the Assigned Agreement.
(f) There are no proceedings pending or, to the best of the
Consenting Party's knowledge after due inquiry, threatened against or
affecting the Consenting Party in any court or before any governmental
authority or arbitration board or tribunal (whether or not purportedly on
behalf of the Consenting Party) which, individually or in the aggregate are
reasonably anticipated to result in a material and adverse effect upon the
ability of the Consenting Party to perform its obligations under, or which
purports to affect the legality, validity or enforceability of, the Assigned
Agreement or this Consent to Assignment.
(g) All representations, warranties and other statements
made by the Consenting Party in the Assigned Agreement were true and correct
as of the date when made and are true and correct as of the date of this
Consent to Assignment.
12. CONCERNING THE ASSIGNED AGREEMENT. (a) Independent Engineer:
The Consenting Party acknowledges that the Company has designated Stone and
Xxxxxxx Management Consultants, Inc. together with Stone and Xxxxxxx
Engineering Corporation as Independent Engineer.
(b) Power Purchase Agreement: The Consenting Party
acknowledges that the definition of the Power Purchase Agreement for purposes
of the Assigned Agreement is the Fuel Conversion Services, Capacity and
Ancillary Services Purchase Agreement, dated September 17, 1999, between the
Power Purchaser and the Owner, as such agreement may be amended, supplemented
or modified from time to time.
13. BINDING UPON SUCCESSORS. All agreements, covenants, conditions
and provisions of this Consent to Assignment shall be binding upon and inure
to the benefit of the successors and assigns of each of the parties hereto.
14. CAPTIONS. The captions or headings at the beginning of each
Section hereof are for the convenience of the parties hereto only and are not
a part of this Consent to Assignment.
15. GOVERNING LAW. (a) THIS CONSENT TO ASSIGNMENT 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
Consent to Assignment 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 sitting in the Borough of Manhattan, City of New
York, and, by execution and delivery of this Consent to Assignment, each of
the Consenting Party
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and the Assignee 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. Each of the
Consenting Party and the Assignee hereby irrevocably designates, appoints and
empowers CT Corporation System, 000 Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000, 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 Assignee or the Consenting Party, as
applicable, agrees to designate a new designee, appointee and agent in New
York City on the terms and for the purposes of this provision satisfactory to
the Assignee. Each of the Consenting Party and the Assignee 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, to the Consenting Party at its notice
address being Raytheon Engineers & Constructors, Inc., Xxx Xxxxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000, Attention: General Counsel, Facsimile Number:
000-000-0000 and to the Assignee at the address set forth in Section 4. Each
of the Consenting Party and the Assignee 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 Consent to Assignment 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
Assignee or any of their respective designees or assignees to serve process
in any other manner permitted by law or to commence legal proceedings or
otherwise proceed against the Consenting Party in any other jurisdiction.
16. AMENDMENT. This Consent to Assignment may be modified, amended
or rescinded only by a writing expressly referring to this Consent to
Assignment and signed by both the Consenting Party and the Assignee. The
Assignee may request the direction of the Senior Parties prior to signing any
amendments described herein.
17. SEVERABILITY. Every provision of this Consent to Assignment is
intended to be severable. If any term or provision hereof is declared by a
court of competent jurisdiction to be illegal, invalid or unenforceable for
any reason whatsoever, such illegality, invalidity or unenforceability shall
not affect the other terms and provisions hereof, which terms and provisions
shall remain binding and enforceable, and to the extent possible all of such
other provisions shall remain in full force and effect.
18. COUNTERPARTS. This Consent to Assignment 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.
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IN WITNESS WHEREOF, each of the Consenting Party and the Assignee
has duly executed this Consent to Assignment as of the date first above
written.
RAYTHEON ENGINEERS & CONSTRUCTORS, INC.
By: /s/ X.X. XXXXX
------------------------------------------
Name: X.X. Xxxxx
Title: Sr. V.P. & Group Mger - Power
THE BANK OF NEW YORK,
as COLLATERAL AGENT
By: /s/ XXXXXXXX XXXXXXX
------------------------------------------
Name: XxxxXxxx Xxxxxxx
Title: Vice President
REVIEWED AND CONSENTED TO:
AES RED OAK, L.L.C.
By: /s/ XXXXX X. XXXXXXXXX
-------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
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ANNEX A
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1. Amendment No. 1;
2. EPC Prepayment Coordination Agreement; and
3. Change Order No. 1.
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