Exhibit 4.11
EXECUTION COPY
SIEMENS WESTINGHOUSE POWER CORPORATION
CONSENT TO ASSIGNMENT
THIS CONSENT TO ASSIGNMENT (this "Consent to Assignment") is entered
into as of June 1, 1999 by SIEMENS WESTINGHOUSE POWER CORPORATION, a Delaware
corporation (the "Consenting Party"), and IBJ WHITEHALL BANK & TRUST COMPANY, 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 Ironwood, L.L.C. (the "Company"), a Delaware limited liability
company, intends to develop, construct, own, operate and finance a nominal 705
MW (net) gas-fired combined cycle electric generating facility (the "Facility")
(the Facility, equipment and facilities associated with the Facility and such
financing, development and construction, the "Project") to be located in South
Lebanon Township, Lebanon County, Pennsylvania.
B. The Company intends to finance the Project, in part, through the
issuance, from time to time, of certain securities (the "Securities") pursuant
to a Trust Indenture, dated as of June 1, 1999 between the Company and IBJ
Whitehall Bank & Trust Company, 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 IBJ
Whitehall Bank & Trust Company (collectively, the "Security Documents").
D. The Senior Parties and the Company have entered into the Collateral
Agency Agreement (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 (as assignee of AES Ironwood, Inc.) 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 September 23, 1998, 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 are to be assigned
to the Collateral Agent 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 acknowledges that prior
to the date hereof, AES Ironwood, Inc. has assigned all of its right, title and
interest in the Assigned Agreement to the Company. 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,
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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
25.1 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.
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IBJ Whitehall Bank & Trust Company, as Collateral Agent
Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Capital Markets Trust Services
Facsimile: 000-000-0000
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.
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 and confirms 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 without certain
certifications to the Assignee. The Consenting Party shall not agree to any
Scope Changes that exceed such amounts unless the Company shall have provided
the Consenting Party with evidence (with a copy to the Assignee) of such
certification.
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
Ironwood, L.L.C., for further credit to Account No. 630000041.2 (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
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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, 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
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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 in the manufacture and sale of power
generation equipment or a wholly 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
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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, (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 the Assigned Agreement and 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 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 all
Applicable Permits designated in 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 due course
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 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.
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 for the Southern District of New York, and, by execution and
delivery of this Consent to Assignment, each of the Consenting Party and the
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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, 0000 Xxxxxxxx, 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 475 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 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
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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 9 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/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Director Project Management
IBJ WHITEHALL BANK & TRUST COMPANY,
as COLLATERAL AGENT
By: /s/ Xxxxxx XxXxxxxxxx
------------------------------------
Name: Xxxxxx XxXxxxxxxx
Title: Assistant Vice President
REVIEWED AND CONSENTED TO:
AES IRONWOOD, L.L.C.
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
Annex A
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1. Letter, dated May 3, 1999 to Siemens Westinghouse Power Corporation from AES
Ironwood, Inc.
2. Letter Agreement, dated February 3, 1999 between Siemens Westinghouse Power
Corporation and AES Enterprises, Inc.
3. Letter Agreement, dated March 31, 1999 between Siemens Westinghouse Power
Corporation and AES Ironwood, Inc.
4. Letter Agreement, dated May 12, 1999 between Siemens Westinghouse Power
Corporation and AES Enterprises, Inc.
5. Letter Agreement, dated May 26, 1999 between Siemens Westinghouse Power
Corporation and AES Ironwood, Inc.
6. Letter, dated February 4, 1999 to Siemens Westinghouse Power Corporation from
AES Ironwood, Inc.
7. Letter Agreement, dated April 7, 1999 between Siemens Westinghouse Power
Corporation and AES Ironwood, Inc.
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