Exhibit 4.14
EXECUTION COPY
AES PRESCOTT, L.L.C.
CONSENT TO ASSIGNMENT
THIS CONSENT TO ASSIGNMENT (this "Consent to Assignment") is entered
into as of June 1, 1999 by AES PRESCOTT, L.L.C., a Delaware limited liability
company (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 and the Consenting Party have entered into that certain
Management and Operations Services Agreement (the "Assigned Agreement") dated as
of May 1, 1999 pursuant to which, among other things, the Consenting Party will
manage the development and construction of the Project and, following the
Commercial Operation Date, operate and maintain the Project.
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 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 and shall maintain the Assigned Agreement in full force
and effect. Until all obligations under the Financing Documents have been
performed and paid in full, all obligations of the Consenting Party under the
Assigned Agreement shall inure to the benefit of the Assignee for the benefit of
the Senior Parties to the same extent as if the Assignee was an original party
to the Assigned Agreement instead of the Company.
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 provision of the Assigned Agreement and
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, (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) 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
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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 (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 claim prevention of or interference with
performance of its obligations under the Assigned Agreement, nor shall the
Consenting Party 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,
following expiry of all periods given the Company to cure such default, action
or omission, shall have given a copy of a notice of default to the Assignee,
such notice to be coupled with an opportunity to cure any such default within a
reasonable period, but in no event less than ninety (90) days from 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 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 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 . 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.
IBJ Whitehall Bank & Trust Company, as Collateral Agent
One State Street
New York, New York 10004
Attention: Capital Markets Trust Services
Facsimile: 212-858-2952
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
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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 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. If the
Assignee, any of the Senior Parties or any of their respective designees or
assignees fails to cure or rectify the effect of a default under the Assigned
Agreement or within ninety (90) days from notice to the Assignee (or, with
respect to nonmonetary defaults or defaults the curing of which requires the
curing party's possession of the Facility through foreclosure, such longer
period of time as may be 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 such foreclosure), whichever is longer, such cure period to
commence upon such notice to the Assignee, the Consenting Party shall have all
its rights and remedies with respect to such default as set forth in the
Assigned Agreement.
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 of, the Assigned Agreement or any interest
therein.
6. No Amendments 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.
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. 026007825, 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 defense whatsoever, except as specifically permitted under 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 Title
11, United States 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,
execute and deliver an 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 the same
terms as are contained therein.. References in this Consent to Assignment to
"Assigned Agreement" shall be deemed also to include such new agreement.
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, (b) 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, and
(c) 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 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 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 been 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
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interest in the Facility. The Collateral Agent is not required to take any
discretionary action under this Agreement unless it receives written direction
from the Required Senior Parties. The Collateral Agent 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 no less favorable
to the Consenting Party than those terms and conditions contained in this
Consent to Assignment.
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.
(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, (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 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 their terms,
except to the extent that enforceability may be limited
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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
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. 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.
(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. 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.
13. 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.
14. Governing Law.
(a) THIS CONSENT TO ASSIGNMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN
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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
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, 1633 Broadway, New York, New York, 10019, 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 [ ] 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.
15. 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.
16. 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
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enforceable, and to the extent possible all of such other provisions shall
remain in full force and effect.
17. 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.
18. 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 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.
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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.
AES PRESCOTT, L.L.C.
By: /s/ Patricia L. Rollin
----------------------------------
Name: Patricia L. Rollin
Title: Vice President
IBJ WHITEHALL BANK & TRUST COMPANY,
as COLLATERAL AGENT
By: /s/ Thomas McCutcheon
----------------------------------
Name: Thomas McCutcheon
Title: Assistant Vice President
REVIEWED AND CONSENTED TO:
AES IRONWOOD, L.L.C.
By: /s/ Patricia L. Rollin
------------------------------
Name: Patricia L. Rollin
Title: Vice President