EXHIBIT 4.13
EXECUTION COPY
THE XXXXXXXX COMPANIES, INC.
CONSENT TO ASSIGNMENT
THIS CONSENT TO ASSIGNMENT (this "CONSENT TO ASSIGNMENT") is entered
into as of March 1, 2000 by THE XXXXXXXX COMPANIES, 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 764.3 (+/- 10%) MW 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 Consenting Party has issued in favor of the Company that
certain Guaranty (the "ASSIGNED AGREEMENT") dated as of March 1, 2000 in
respect of the Power Purchase Agreement.
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. Subject to the terms and conditions of
this 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, and 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
agreed to by it, (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 provision of the Assigned Agreement and no
knowledge of any grounds for termination of the Assigned Agreement by the
Consenting Party, (d) to its knowledge none of the Company's rights under the
Assigned Agreement has been waived, (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 pursuant to and in
accordance with this Consent to Assignment, 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) 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 pursuant to and in accordance with this Consent to Assignment, 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, for so long as any financing liabilities
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,
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suspend or terminate the Assigned Agreement, or any of its obligations
thereunder, as the result of any default or other action or 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 sixty (60)
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,
Xxxxx 00X
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 under the Assigned Agreement and resolve any dispute 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
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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.
5. AMENDMENT AND MODIFICATION WITHOUT CONSENT. The Consenting Party
shall not amend, modify or consent to the amendment or modification of the
Assigned Agreement without the prior written consent of the Assignee, unless
the Company has certified to the Consenting Party in writing that such
amendment, modification or consent to amendment or modification is permitted
under the terms of the Financing Documents.
6. PAYMENTS TO REVENUE ACCOUNT. The Consenting Party hereby agrees
that, so long as any notes, bonds, loans, letters of credit, commitments or
other obligations 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.
Any such payment shall be deemed to be a payment by the Consenting Party to
the Company under the Assigned Agreement.
7. PROTECTION OF THE 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 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 (x) shall have operated, or contracted with a
party that has operated a power generating facility using technology similar
to that of the Facility and (y) shall assume in writing the obligations of
the Company under the Assigned Agreement. References in
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this Consent to Assignment to "Assigned Agreement" shall be deemed also to
include such new agreement.
8. ACKNOWLEDGEMENT OF THE 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 (x) shall have operated, or contracted with a party that
has operated a power generating facility using technology similar to that of
the Facility and (y) 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 qualifications set forth in clause (x) and (y) of
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 qualifications set forth in clause (x) and (y) of
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.
9. 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 new consent to assignment as requested by such lenders;
provided that the terms and conditions contained in such consent to assignment
shall be no less favorable to the Consenting Party than those terms and
conditions contained in this Consent to Assignment unless the documentation
governing such refinancing adversely affects the
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Consenting Party's rights or remedies under the Assigned Agreement compared
to its position prior to such refinancing.
10. 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.
(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 (except those previously obtained, in full force and effect and
attached hereto as Exhibit 10(b)(i)), (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, (iii) result in a breach of or constitute a default under
any material indenture, loan or credit agreement or any other material
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 or any agreement referred to above in
clause (iii) of this subsection (b), which violation could 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
its terms, except to the extent that enforceability may be limited by
applicable bankruptcy, insolvency, moratorium, fraudulent conveyance,
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, in full force and effect and attached
hereto as Exhibit 10(d)) 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 thereunder or
hereunder. The Consenting Party has obtained
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all permits, licenses, approvals, consents, authorizations and exemptions, 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.
(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.
(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 business, condition (financial or otherwise) or operations 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.
11. 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.
12. 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.
13. 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 for the Southern District of New York, and, by execution and
delivery of this Consent to Assignment, each of the Consenting Party, the
Company and the Collateral Agent 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 Company hereby irrevocably designates, appoints
and empowers CT Corporation System 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 Company or the Consenting Party, as applicable, agrees
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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 Collateral
Agent. Each of the Consenting Party, the Company and the Collateral Agent
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 provided herein. Each of the
Consenting Party, the Company and the Collateral Agent 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 Collateral Agent or its designees 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.
14. 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.
15. 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.
16. 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.
THE XXXXXXXX COMPANIES, INC.
By: /s/ XXXXX X. XXXX
------------------------------------
Name: Xxxxx X. Xxxx
Title: Treasurer
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/ XXXXXXXX X. XXXXXX
------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
