EXHIBIT 4.16
EXECUTION COPY
SIEMENS WESTINGHOUSE POWER CORPORATION
CONSENT TO ASSIGNMENT
THIS CONSENT TO ASSIGNMENT (this "CONSENT TO ASSIGNMENT") is entered into
as of March 1, 2000 by SIEMENS WESTINGHOUSE POWER CORPORATION, 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 nominal 820 MW (net) 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. agent.
(E) The Company and the Consenting Party have entered into that certain
Maintenance Program Parts, Shop Repairs and Scheduled Outage TFA Services
Contract (the "ASSIGNED AGREEMENT") dated as of December 8, 1999, pursuant to
which, among other things, the Consenting Party will provide certain maintenance
services to the Project 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, except for Amendment Number
1 dated February 15, 2000, 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
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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, for so long as any Financing Liabilities (as defined
in the Collateral Agency Agreement) are outstanding under the Financing
Documents and until the same 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 omission
(each herein a "DEFAULT") of the Company unless the Consenting Party, shall have
given a copy of any notice of default to the Assignee when such notice was given
to the Company, such notice to be coupled with an opportunity to cure any such
default, in the case of a payment default, within the time period provided for
in the Assigned Agreement (plus accrued interest thereon pursuant to Section 4.6
of the Assigned Agreement) or, with respect to nonmonetary defaults, 30 days
after the expiration of all periods for cure to which the Company is entitled
under the Assigned Agreement, and written notice of such expiration has been
given to the Assignee (or for defaults the curing of which requires the
Assignee's possession of the Facility through foreclosure, such longer period of
time as may be reasonably necessary under the circumstances to complete such
foreclosure or cure such default, provided the Assignee, any of the Senior
Parties, or any of their respective designees or assignees is diligently
pursuing such cure or foreclosure, such cure period to commence upon delivery of
such further notice to the Assignee, 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 by
the Company within such period provided, however, that if any such party is
prohibited from curing any such default by any process, stay or injunction
issued by any governmental authority or pursuant to any bankruptcy or insolvency
proceeding, then the time periods specified in this Section 4 for curing a
default shall be extended for the period of such prohibition if the Assignee
shall have notified the Consenting Party in writing of its intent to commence
such cure or cause such cure to be commenced immediately upon cessation of such
prohibition. All notices provided hereunder 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
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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 under the Assigned Agreement for the
benefit of the Assignee and resolve any dispute without discontinuing such
performance until the lapse of the notice and applicable cure periods or
extension periods in favor of the Assignee as provided herein. Except as
otherwise provided in Section 9 hereof, the Assignee, any of the Senior Parties
or any of their respective designees or assignees 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. Except as otherwise specifically provided in the immediately
preceding paragraph, the Consenting Party shall have all its rights and remedies
with respect to such default as set forth in the Assigned Agreement. The
Assignee shall promptly notify the Company upon satisfaction in full of all
Financing Liabilities. Nothing in the foregoing or elsewhere herein shall be
deemed or construed to delay, limit or prohibit Consenting Party from seeking or
obtaining injuncture relief in connection with any unlawful or unauthorized
disclosure or use of proprietary or confidential information or infringement of
any copyright, patent, or other intellectual property right.
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. The Consenting Party acknowledges and
confirms that under the terms of the Financing Documents, the Company is not
permitted to request or approve Changes without certain certifications to the
Assignee but Consenting Party shall have no liability for the Company's failure
to make or obtain such certifications.
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, in immediately available
funds. 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: Corporate Trust Administration, 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.
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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, the
Consenting Party shall, promptly, and in no event longer than ten (10) days
after receipt of written request therefor which request shall be made no more
than thirty (30) days after the date such assignment, sale, transfer or
rejection is approved or is otherwise made effective (as applicable), execute
and deliver an agreement, which shall in the case of (a) supersede the earlier
agreement, to the Assignee, any Senior Parties or any of their respective
nominees, purchasers, assignees or transferees, as the case may be, for the
remainder of the term of the Assigned Agreement and with substantially the same
terms as are contained therein provided that such Assignee, Senior Party or
their respective nominee, purchaser, assignee or transferee, as the case may be,
(i) shall agree in writing, to the extent curable, to cure any existing default
under the Assigned Agreement, (ii) shall in the reasonable opinion of the
Consenting Party be as financially and otherwise capable of performing all
obligations of the Company under the Assigned Agreement as the Company at the
time it closed the financing of the Project and received the first advance
thereunder, (iii) shall not be a direct competitor of the Consenting Party in
the manufacture and sale of power generation equipment or a wholly owned
subsidiary of such entity and (iv) shall not be an adverse party to the
Consenting Party or any of its affiliates in any arbitration or litigation. If
the Assignee notifies the Consenting Party of the identity of any proposed
purchaser, assignee or transferee, as the case may be, the Consenting Party
shall notify the Assignee within 10 days of receipt of such notification by the
Assignee as to whether such purchaser, assignee or transferee of the Company
fails to meet the requirements of clause (iii) or (iv), and stating the reasons
therefor.
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. The Assignee shall have no obligation to the Consenting
Party under the Assigned Agreement until such time as the Assignee notifies the
Consenting Party in writing of the Assignee's election to exercise its rights
hereunder. 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 as attorney-in-fact for
the Company, (b) foreclose upon, sell or otherwise transfer their interest in
the Project and any purchaser at such sale which may include the Assignee or its
designees or assignees, shall have the right to succeed to the Assignee's or the
Senior Parties' rights hereunder ("Substitute Owner"), as the case may be,
provided that the (i) Substitute Owner shall on or before succeeding to such
rights agree in writing to assume the obligations of the Company under the
Assigned Agreement and (where curable) to cure any existing default thereunder,
(ii) Substitute Owner shall in the reasonable opinion of the Consenting Party be
as financially and otherwise capable of performing all obligations of the
Company under the Assigned Agreement as the Company at the time it closed the
financing of the Project and received the first advance thereunder and (iii)
Substitute Owner shall not be an adverse party to the Consenting Party or any of
its affiliates in any arbitration or litigation and (iv) Substitute Owner shall
not be a direct competitor of the Consenting Party in the manufacture and sale
of power generation equipment or a wholly
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owned subsidiary of such entity, (provided that if the Assignee notifies the
Consenting Party of the identity of any proposed purchaser, assignee or
transferee, as the case may be, the Consenting Party shall notify the Assignee
within 10 days of receipt of such notification by the Assignee as to whether
such purchaser, assignee or transferee of the Company fails to meet the
requirements of clause (iii) or (iv), and stating the reasons therefor) and (c)
as attorney-in-fact for the Company exercise all rights of the Company under the
Assigned Agreement in accordance with the terms thereof. Subject to 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 with 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 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 otherwise
to 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 designees or assignees shall have the right, but not the
obligation, to perform any act, duty or obligation required of the Company
thereunder at any time; 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 except
during any such period that it shall have become a Substitute Owner and assumed
such duties and obligations. The obligations of any Substitute Owner shall be no
more than that of the Company under such Assigned Agreement, any Substitute
Owner shall have no personal liability to the Consenting Party for the
performance of such obligations and the sole recourse of the Consenting Party,
if there is a Substitute Owner, shall be to Substitute Owner's interest in the
Facility. The Assignee is not required to take any discretionary action under
this Agreement unless it receives written direction from the Required Senior
Parties. The Assignee is entitled to receive indemnification to its satisfaction
before taking any action as directed by the Required Senior Parties.
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.
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 is in
good standing in all jurisdictions where necessary in light of the business it
conducts (including, without limitation, performance of its obligations under
the Assigned Agreement) and the properties it owns.
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(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) require any consent or approval of the Consenting Party's board of directors
or any shareholder of the Consenting Party, (ii) 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 this Consent to Assignment, (iii) 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 affected or
(iv) 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 in violation, breach or
default of any provision of the corporate charter or by-laws of the Consenting
Party or any provision of any material 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 by Consenting
Party 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 permits, licenses,
approvals, consents, authorizations and exemptions, if any, required to be
obtained by it 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
permits, licenses, approvals, consents, authorizations and exemptions, which are
not yet required and which the Consenting Party has no reason to believe will
not be obtained in due course when required.
(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
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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 may result in a material or adverse effect upon the
property, business, prospects, profits or condition (financial or otherwise) of
the Consenting Party, or 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; and the
Consenting Party is not in default with respect to any order of any court,
governmental authority or arbitration board or tribunal which default 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.
(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. 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 Power Purchase Agreement referred to in the Assigned Agreement is the Fuel
Conversion Services, Capacity and Ancillary Services Purchase Agreement, dated
September 17, 1999, between Xxxxxxxx and Buyer, 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. 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
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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 Consent to
Assignment, each of the Consenting Party 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 0000 Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000, Attn: Law Department MC 608
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.
19. AUTHORITY TO TAKE SPECIFIC ACTIONS. Notwithstanding any provision of
this Consent to Assignment to the contrary, if an action by the Assignee is
authorized by the Assigned Agreement or by this Consent to Assignment, the
Consenting Party shall be obligated to recognize or follow instructions given by
a Senior Party or any of its respective designees or assignees, or any
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successor or assign of the Assignee or any Senior Party, only if such person has
provided to the Consenting Party reasonable written documentation of its
authority by or on behalf of the Assignee to undertake the action which it is
requesting or directing, and a written certification to the Consenting Party
that it is so authorized to act.
20. CONSENTING PARTY LIABILITY. This Consent to Assignment is intended to
be solely for the benefit of the Assignee and is not intended to provide any
additional rights to the Company. In no event shall the Consenting Party be
liable for damages or have any liability pursuant to this Consent to Assignment
in excess of the maximum liability for which the Consenting Party is liable
under the Assigned Agreement. In addition, the terms of Article 14 of the
Assigned Agreement shall apply to the Consenting Party's liability under this
Consent to Assignment.
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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.
SIEMENS WESTINGHOUSE POWER CORPORATION
By: /s/ X.X. Xxxxxxxx
------------------------------------------
Name: X.X. Xxxxxxxx
Title: Finance Director
THE BANK OF NEW YORK,
as COLLATERAL AGENT
By: /s/ XxxxXxxx Xxxxxxx
-------------------------------------------
Name: XxxxXxxx Xxxxxxx
Title: Vice President
REVIEWED AND CONSENTED TO:
AES IRONWOOD, L.L.C.
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
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