EXHIBIT 10.19
Execution Copy
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxxx X. Xxxxxxxx
Legal Assistant
CONSENT AND AGREEMENT
1. (a) Reference is made to that certain Payment in Lieu of Tax
Agreement dated April 5, 1991 among the City of Syracuse (the "Municipality"),
the City of Syracuse Industrial Development Agency (the "Agency") and Project
Orange Associates, L.P. (the "Company"), not recorded in the Office of the Clerk
of Onondaga County, New York (as amended and in effect from time to time, the
"PILOT Agreement".
(b) Reference is also made to (i) that certain Indenture dated as of
December 6, 1999 (the "Financing Agreement") between the Company and U.S. Bank
Trust National Association, as trustee for the holders of the Company's _%
Senior Secured Notes due 2007 (the "Trustee"; together with the holders of such
Senior Secured Notes, the "Secured Parties"), (ii) that certain Mortgage and
Assignment of Rents (First Mortgage) dated as of December 6, 1999 from the
Company, as mortgagor, to U.S. Bank Trust National Association, as collateral
agent, as mortgagee (the "First Mortgage"), and the other Collateral Documents
and the other Financing Documents (as such terms are defined in the Financing
Agreement). References herein to the "Agent" shall mean U.S. Bank Trust,
National Association in its capacity as collateral agent under the Collateral
Documents and its successors and assigns in such capacity. References herein to
the Financing Agreement, First Mortgage, other Collateral Documents and other
Financing Documents shall refer to the same as amended and in effect from time
to time. Capitalized terms used herein without definition shall have the
meanings given such terms in the Financing Agreement.
(c) The PILOT Agreement and First Mortgage relate to certain real property
in Onondaga County, New York described on Exhibit A, attached hereto and
incorporated herein.
Anything in the PILOT Agreement to the contrary notwithstanding, the
parties agree as follows:
2. Each of the Municipality and the Agency hereby certifies that (i) the
PILOT Agreement contains the entire agreement of the parties thereto with
respect to payments in lieu of taxes with respect to the Facility (except to the
extent of references in the Master Lease obligating Guarantor to make PILOT
payments); (ii) the PILOT Agreement is in full force and
effect; (iii) the PILOT Agreement has not been amended, supplemented or
otherwise modified or assigned; (iv) all conditions for the commencement and
continuing effectiveness of the PILOT Agreement and the rights and obligations
of the parties thereto thereunder have been and remain satisfied as of the date
hereof; (v) the PILOT Term commenced on April 5, 1991 and is scheduled to end on
July __, 2012; (vi) all payments required to be made by the Company under the
PILOT Agreement as of the date hereof have been made; (vii) there are no
Deferred Obligations, Subordinated PILOT Amounts or Subordinated PILOT
Obligations (as such terms are defined in the PILOT Agreement) outstanding as of
the date hereof; (viii) each of the Municipality and the Agency have duly
complied with all agreements, conditions and provisions contained in the PILOT
Agreement required to be performed by it prior to the date hereof; and (ix) to
the knowledge of the Municipality and the Agency, no Default or Event of Default
(as such terms are defined in the PILOT Agreement) by the Company (or event
which with notice or lapse of time or both would become such a Default or Event
of Default) is continuing under the PILOT Agreement.
3. Each of the Municipality and the Agency acknowledges notice and
receipt of the Financing Agreement, First Mortgage and other Collateral
Documents (other than the Consents). The Municipality also acknowledges notice
and receipt of the Consent and Agreement dated as of the date hereof by the
Agency (the "Agency Consent"), relating to (among other things) the Facility
Agreement (as defined in the PILOT Agreement) (defined in the Agency Consent as
the Master Lease).
4. Each of the Municipality and the Agency agrees that, as long as the
Financing Agreement, First Mortgage and other Collateral Documents remain
outstanding, notwithstanding anything to the contrary in the PILOT Agreement:
(i) all references in the PILOT Agreement to "Senior Debt" and "Construction
Loan" shall be deemed to refer to the Senior Secured Notes issued under the
Financing Agreement and secured by the First Mortgage and other Collateral
Documents; (ii) all references in the PILOT Agreement to the "Agent" shall be
deemed to refer to the Agent described in paragraph 1(b) above; (iii) all
references in the PILOT Agreement to the "Banks" shall be deemed to refer to the
Secured Parties described in paragraph 1(b) above, and all references to a
"Bank" shall be deemed to refer to a "Secured Party"; (iv) the last sentence of
Section 6.03 of the PILOT Agreement shall be deemed deleted from said Section;
(v) the phrase "The Municipality" in line 1 of Section 8.01(a) of the PILOT
Agreement is deemed amended to read "Each of the Municipality and the Agency;
(vi) the phrase "(including, without limitation, the rights under Sections 6.03
and 9.01)" is deemed added in line 3 of Section 8.01(a) of the PILOT Agreement
after the word "remedies"; (vii) the reference in line 4 of Section 8.01(a) of
the PILOT Agreement to "Section 6.01(a), (b), (c) or (e)" shall be deemed
changed to read "Section 6.01(a), (b), (c), (d), (e) or (f)"; (viii) the
following sentences shall be deemed added to the end of Section 8.01(a):
"If the Event of Default is curable by the Agent or the Banks but cannot
reasonably be cured by them within said 30-day (or 15-day) period, so long
as the Agent, the Banks or their designee(s) shall promptly commence and
diligently prosecute the curing of such Event of Default, the Agent, the
Banks or their designee(s) shall have a period of 120
-2-
days from the date of notice to the Agent of such Event of Default within
which to cure the same. If the Event of Default is curable by the Agent or
the Banks but cannot reasonably be cured without obtaining possession of
the Facility, or if such event of Default is not susceptible of being cured
by the Agent or the Banks (i.e., an Event of Default under Section 6.01(d)
or (f)), then the Municipality and the Agency shall not be entitled to
terminate this Agreement or exercise such other remedies so long as the
Agent, the Banks or their designee(s) shall proceed diligently to obtain
possession of or entry to the Facility pursuant to the rights of the Agent
or the Banks under their mortgage(s) and other security documents, and upon
obtaining such possession shall proceed diligently to cure such Event of
Default, if it is susceptible of being cured by the Agent or the Banks. If
an Event of Default is not susceptible of being cured by the Agent or the
Banks, the Agent, the Banks and their designee(s) shall not be required to
cure the same upon obtaining such possession or otherwise.";
(ix) lines 2 through 5 of Section 8.02(b) of the PILOT Agreement are hereby
amended to read as follows:
"* * * trustee or debtor-in-possession in any bankruptcy or insolvency
proceeding or terminates prior to the date it would otherwise expire for
any reason other than with the consent of the Banks (or such member or
percentage of the Banks as may be required under the terms of the relevant
agreements governing Senior Debt), and if, within 90 days after the Agent
receives notice of such rejection or termination, the Agent, the Banks,
their designee(s) or their successors or assigns shall so request, the
Municipality and the Agency will execute and deliver to the Agent, the
Banks, their designee(s) or their successors or assigns, a new agreement
which shall be on the same terms and conditions as this * * *";
(x) all rights provided under the PILOT Agreement (as amended as provided
above) to the Agent and the Banks shall hereafter inure to the benefit of the
Agent and the Secured Parties described in paragraph 1(b) above; (xi) all rights
provided under the PILOT Agreement (as so amended) to the Senior Debt and the
holders of the Senior Debt shall hereafter inure to the benefit of the Senior
Secured Notes described in paragraph 1(b) above and the holders thereof; (xii)
all references in the PILOT Agreement to the "Facility Agreement" (referred to
in the Agency Consent as the Master Lease) shall be deemed to include any new
Facility Agreement (referred to in the Agency Consent as a new Master Lease)
granted to the Agent, the Secured Parties or their designee pursuant to
paragraph 7(f) of the Agency Consent; (xiii) the Municipality consents to, and
shall be bound by, the provisions of paragraph 7(h) of the Agency Consent; (xiv)
without limiting the foregoing, (A) each of the Municipality and the Agency
shall give a copy of each notice that it gives to the Company to the Agent at
its address provided in or pursuant to paragraph 6 below simultaneously with the
giving thereof to the Company; (B) each of the Municipality and the Agency shall
exercise its right to terminate the PILOT Agreement and its other remedies
thereunder (including, without limitation, its rights under Section 6.03) only
as provided in Section 8.01(a) of the PILOT Agreement (as so amended); (C) each
of the Municipality and the Agency shall exercise its rights under Section 6.03
of the PILOT
-3-
Agreement only in accordance with paragraph 7(h) of the Agency Consent; (D) each
of the Municipality and the Agency shall enter a new PILOT Agreement with the
Agent, the Secured Parties, their designee(s) or their successors or assigns
pursuant to Section 8.02(b) of the PILOT Agreement (as so amended) in the event
of a termination of the PILOT Agreement as provided therein; and (E) the
Municipality and the Agency shall accept performance of the Company's
obligations under the PILOT Agreement by the Agent, the Secured Parties or their
designee(s) in lieu of the Company's performing such obligations.
5. Each of the Municipality and the Agency agrees that from the date
hereof and throughout the term of that certain ISDA Master Agreement between
Electric Energy Purchaser (as defined under the PILOT Agreement) and the Company
dated as of June 30, 1998 (the "Indexed Swap Agreement"), the definition of
"Electric Tariff Rate" under Section 3.01 of the PILOT Agreement shall be deemed
to refer to the "Indexed Contract Price" as calculated for any calendar year
pursuant to Schedule 1 to the Confirmation dated June 30, 1998 to the Indexed
Swap Agreement which forms a part thereof. The Municipality and the Agency each
acknowledge receipt of a copy of said Schedule 1.
6. (a) All notices and other communications hereunder and under the
PILOT Agreement by or to the Agent or the Secured Parties shall be in writing
and shall be addressed to the Agent, the Secured Parties, Agency, the City or
the Company, as the case may be, shall be delivered personally, or mailed by
United States first class mail (registered or certified, return receipt
requested, postage paid by the sender), or sent by overnight courier
guaranteeing next Business Day delivery (courier charge paid by the sender), or
sent by facsimile (answerback confirmation received), addressed as follows:
(i) if to the Agent or Secured Parties:
U.S. Bank Trust National Association
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Facsimile: (000) 000-0000
(ii) if to the Municipality:
City of Syracuse
000 Xxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Corporation Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
-4-
(iii) if to the Agency:
City of Syracuse Industrial Development Agency
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Chairman
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(iv) if to the Company:
Project Orange Associates, L.P.
c/o G.A.S. Orange Associates, L.L.C.
00 Xxxxxxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000-0000
Attention: President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) A duplicate copy of each notice or other communication given hereunder
or under the PILOT Agreement by the Agency, the City or the Company shall be
simultaneously given to the Agent. Any party may, by notice to the other parties
designate additional or different addresses for subsequent notices or
communications. All notices and communications shall be deemed to have been
given when received or, if delivery is refused, when delivery is refused. If a
notice or communication is mailed or sent in the manner provided above within
the time prescribed, it is deemed duly given whether or not the addressee
receives it within such time.
7. In the event of a conflict between the terms of this Consent and
Agreement and the terms of the PILOT Agreement, the terms of this Consent and
Agreement govern.
8. This Consent and Agreement shall be binding upon, and shall inure to
the benefit of, the parties hereto and the Secured Parties and their respective
successors and assigns. No other party shall derive any rights by reason of this
Consent and Agreement.
9. This Consent and Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
10. This Consent and Agreement may be signed in any number of
counterparts, each of which shall be an original and all of which together shall
constitute but one and the same instrument.
-5-
This Consent and Agreement is dated as of December 6, 1999.
Municipality
CITY OF SYRACUSE
By: /s/ Xxx X. Xxxxxxxx
_________________________
Name: Xxx X. Xxxxxxxx
Title: Mayor
Agency
CITY OF SYRACUSE INDUSTRIAL
DEVELOPMENT AGENCY
By: /s/ Xxxx Xxxxxxxxx
_________________________
Name: Xxxx Xxxxxxxxx
Title: Vice Chairman
Company
PROJECT ORANGE ASSOCIATES, L.P.
By: G.A.S. Orange Associates, LLC
general partner
By: /s/ Xxxxxxx Xxxxxxx
_________________________
Name: Xxxxxxx Xxxxxxx
Title: Vice President
Agent
U.S. BANK TRUST NATIONAL
ASSOCIATION, as Collateral Agent
By: /s/ Xxxx X. Xxxxxxx
_________________________
Name: Xxxx X. Xxxxxxx
Title: Vice President
-6-
Acknowledgment for:
Municipality
UNIFORM FORM CERTIFICATE OF ACKNOWLEDGMENT
(Within New York State)
STATE OF NEW YORK )
COUNTY OF ONONDAGA ) ss.:
On this 2nd day of December, in the year 1999, before me, the
undersigned, personally appeared Xxx X. Xxxxxxxx, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual(s) whose
name(s) is (are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
/s/ Xxxx X. Xxxx
___________________________
Notary Public
-7-
Acknowledgment for:
Agency
UNIFORM FORM CERTIFICATE OF ACKNOWLEDGMENT
(Within New York State)
STATE OF NEW YORK )
COUNTY OF ONONDAGA ) ss.:
On this 2nd day of December, in the year 1999, before me, the
undersigned, personally appeared Xxxx Xxxxxxxxx, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual(s) whose
name(s) is (are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
/s/ Xxxx X. Xxxx
___________________________
Notary Public
-8-
Acknowledgment for:
Company
UNIFORM FORM CERTIFICATE OF ACKNOWLEDGMENT
(Within New York State)
STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss.:
On this 3rd day of December, in the year 1999, before me, the
undersigned, personally appeared Xxxxxxx Xxxxxxx, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual(s) whose
name(s) is (are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
/s/ Xxxxxxxxxx X. Xxxxxxxx
___________________________
Notary Public
[Notary Seal]
-9-
Acknowledgment for:
Agent
UNIFORM FORM CERTIFICATE OF ACKNOWLEDGMENT
(Within New York State)
STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss.:
On this 3rd day of December, in the year 1999, before me, the
undersigned, personally appeared Xxxx X. Xxxxxxx, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual(s) whose
name(s) is (are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
/s/ Xxxxxxxxxx X. Xxxxxxxx
___________________________
Notary Public
[Notary Seal]
-10-
Exhibit A
---------
Part 1
------
Property Description
--------------------
Leased Site
-----------
-11-
Part 2
------
Property Description
--------------------
City Easement Parcels
---------------------
-12-
Part 3
------
List of City Easement Agreements
--------------------------------
-13-
Part 4
------
Property Description
--------------------
Outside Easement Parcels
------------------------
-14-
Part 5
------
List of Outside Easement Agreements
-----------------------------------
-15-
