Exhibit 10.23
CONSENT AND AGREEMENT
This CONSENT AND AGREEMENT (this "Consent"), dated as of August 16th, 2006,
is made by and between ARIZONA PUBLIC SERVICE COMPANY, an Arizona corporation
("APS"), and SNOWFLAKE WHITE MOUNTAIN POWER, LLC, an Arizona limited liability
company ("Assignor"), for the benefit of COBANK, ACB, as administrative agent
for the lenders, (in such capacity, "Lender").
RECITALS
A. Assignor has entered into that certain Credit Agreement relating to
financing for the development, construction, installation, operation and
maintenance of its biomass power plant located in Snowflake, Arizona (the
"Project"), dated as of August ,2006, among Assignor, Renegy, LLC, and Renegy
Trucking, LLC (collectively, the "Borrowers"), Lender, the LC Issuer (as defined
therein), and the Lenders (as amended, modified and supplemented from time to
time, the "Credit Agreement"). Assignor and Lender have also entered into a
security agreement (the "Security Agreement"), under which Assignor has agreed
to assign its interest under the Assigned Agreement, as defined below, to Lender
as collateral for the loan and other obligations of the Borrowers under the
Credit Agreement.
B. APS and Assignor are parties to the Master Power Purchase and Sale
Agreement, dated September 6, 2005, together with the Amended and Restated
Transaction Confirmation dated August 16th, 2006 (as amended, modified and
supplemented from time to time, the "Assigned Agreement").
C. It is a requirement of the Lender under the Credit Agreement and/or the
Security Agreement relating to financing for the Project that APS and the
Assignor shall have executed and delivered this Consent.
AGREEMENT
NOW, THEREFORE, APS hereby agrees as follows:
1. Definitions. Unless otherwise defined herein, all capitalized terms used
in this Consent shall have the meanings given to them in the Assigned Agreement.
2. Consent and Agreement. APS consents to the collateral assignment of the
Assigned Agreement, by Assignor to Lender, and agrees with Lender as follows:
a. APS consents to the transfer of all the Assignor's right, title and
interest to, in and under the Assigned Agreement, to Lender, solely in
connection with the enforcement of its security interest under the terms of the
Security Agreement, at a foreclosure sale by judicial or non-judicial
foreclosure and sale or by a conveyance by Assignor in lieu of foreclosure and
agrees that upon such enforcement, foreclosure, sale or conveyance APS shall
recognize Lender, but if and only if Lender assumes all
obligations of Assignor under the Assigned Agreement and otherwise satisfies
and complies with all requirements of the Assigned Agreement.
b. At all times that this Consent remains in effect, APS will not
without the prior written consent of Lender (such consent not to be
unreasonably withheld, delayed or conditioned), cancel or terminate the
Assigned Agreement or consent to or accept any cancellation or termination
thereof by Assignor except as provided in the Assigned Agreement and in
accordance with Section 2(c) of this Consent.
c. APS shall, concurrently with the delivery of any notice of an
Event of Default to the Assignor under the Assigned Agreement, provide to
Lender a copy of any such default notice, in each case pursuant to Section 4 of
this Consent. If APS does not deliver such default notice to Lender when it
delivers such notice to the Assignor under the Assigned Agreement, the Lender's
applicable cure period under the Assigned Agreement and this Consent shall
begin on the date on which such notice is received by Lender. Upon the
occurrence of an Event of Default of the Assignor (subject to the expiration of
the relevant cure periods provided to Assignor under the Assigned Agreement),
APS shall not terminate the Assigned Agreement unless it provides Lender with a
notice of Assignor's Event of Default and affords Lender a period of thirty
(30) days to cure such Event of Default. If possession of the Facility is
necessary for Lender to cure Assignor's Event of Default and Lender commences
foreclosure proceedings against Assignor within thirty (30) days of receiving
notice of such Event of Default from APS, Lender shall be allowed a reasonable
additional period to complete such foreclosure proceedings, such period not to
exceed ninety (90) days. In the event Lender succeeds to Assignor's interest in
the Facility, Lender shall cure any and all Events of Default of the Assignor
in existence under the Assigned Agreement at the time which are capable of
being cured and which are not personal to the Assignor.
d. In the event Lender succeeds to or assumes Assignor's interest
under the Assigned Agreement pursuant to the exercise of any rights hereunder,
Lender shall cure any defaults for failure to pay amounts owed under the
Assigned Agreement and any other defaults of the Assignor under the Assigned
Agreement that do not constitute non-curable defaults that are personal to the
Assignor. Lender shall have the right to assign all of its interest in the
Assigned Agreement to a person or entity to whom the Facility is transferred,
so long as such person or entity is of equal or better credit quality than the
Assignor, as determined by APS in its reasonable discretion; provided such
transferee assumes all obligations of Assignor or Lender under the Assigned
Agreement and otherwise satisfies and complies with all requirements of the
Assigned Agreement. Upon such assignment, Lender shall be released from any
further liability thereunder accruing from and after the date of such
assignment to the extent of the interest.
3. Effect of this Consent. This Consent shall not change, extend or
alter the Commercial Operation Date set forth in the Assigned Agreement.
Furthermore, no additional cure periods provided to Lender in Section 2(c) of
this Consent shall extend the Commercial Operation Date beyond July 1, 2008.
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4. Notices. Any communications between the parties hereto or notices
provided herein to be given may be given to the following addresses in each
case in accordance with the Assigned Agreement:
If to APS:
The address for notices set forth in the Cover Sheet elections for the
Assigned Agreement
If to Lender:
CoBank, ACB
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Telephone (000) 000-0000
Attn: Xxxxx Xxxxxx
If to Assignor:
The address for notices set forth in the Cover Sheet elections for the
Assigned Agreement
5. Binding Effect; Amendments. This Consent shall be binding upon and
benefit the successors and assigns of each of APS, Assignor, and Lender and
their respective successors, transferees and assigns (including, without
limitation, any entity that refinances all or any portion of the obligations
under the Credit Agreement). No termination, amendment, variation or waiver of
any provisions of this Consent shall be effective unless in writing and signed
by APS.
6. Payment of Moneys. APS hereby agrees to make all payments to be made
by it to the Assignor under the Assigned Agreement, in any form permitted under
the Assigned Agreement, directly to the account provided to APS by Lender (the
"Account"). Assignor hereby expressly and irrevocably agrees and acknowledges
that Lender has full and express authority to unilaterally require APS to direct
any payments due to Assignor under the Assigned Agreement to the Lender's
Account as described in this Section 6. Assignor and Lender further expressly
waive any and all claims of any nature whatsoever against APS as to the
propriety, permissibility and/or binding effect of any payment by APS to the
Lender's Account. Any and all payments by APS to the Lender's Account shall be
deemed and treated as payments by APS to Assignor under the Assigned Agreement.
Subject to the terms of this Consent, all terms and conditions of the Assigned
Agreement shall remain in full force and effect.
7. Governing Law; Venue. This Consent shall be deemed to be a contract
made under the laws of the State of New York and for all purposes shall be
construed in accordance with and governed by the laws of such state, without
regard to its conflict of
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laws principles (other than Section 5-1401 of the New York General Obligations
Law). Each party hereto irrevocably: (a) submits to the jurisdiction of the
federal courts located in Phoenix, Arizona; (b) waives any objection which
it may have to the laying of venue of any proceeding brought in any such court;
and (c) waives any claim that such proceedings have been brought in an
inconvenient forum.
8. Severability. Any provision of this Consent which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
9. Counterparts. This Consent may be executed in one or more duplicate
counterparts, and when executed and delivered by all the parties listed below,
shall constitute a single binding agreement.
10. Interpretation. All references in this Consent to any document,
instrument or agreement: (a) shall include all contract variations, change
orders, exhibits, schedules and other attachments thereto; and (b) shall
include all documents, instruments or agreements issued or executed
in replacement or predecessor thereto, as amended, modified and supplements from
time to time and in effect at any given time. References to any person include
its successors and permitted assigns.
11. Third Party Beneficiaries. This Consent and the representations,
covenants and agreements contained herein are and shall be held to be for the
sole benefit of the parties hereto and their respective successors and assigns,
and, to the extent provided in Paragraph 5 hereof, for the benefit of any
refinancing lender.
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IN WITNESS WHEREOF, APS and Assignor by their respective duly authorized
officers, have executed this Consent as of the date first above written.
ARIZONA PUBLIC SERVICE COMPANY,
An Arizona Corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Manager, Renewable Energy
SNOWFLAKE WHITE MOUNTAIN POWER, LLC,
An Arizona limited liability company
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: CEO
Accepted and Agreed:
COBANK, ACB
By:
-------------------------------
Name:
Title:
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IN WITNESS WHEREOF, APS and Assignor by their respective duly authorized
officers, have executed this Consent as of the date first above written.
ARIZONA PUBLIC SERVICE COMPANY,
An Arizona Corporation
By:
-------------------------------
Name:
Title:
SNOWFLAKE WHITE MOUNTAIN POWER, LLC,
An Arizona limited liability company
By:
-------------------------------
Name:
Title:
Accepted and Agreed:
COBANK, ACB
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director, Project and
Structured Finance Communications
and Energy Banking Group
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