Exhibit 4.15
EXECUTION COPY
Metropolitan Edison Company d/b/a GPU Energy
CONSENT TO ASSIGNMENT
THIS CONSENT TO ASSIGNMENT (this "Consent to Assignment") is entered
into as of June 1, 1999 by Metropolitan Edison Company d/b/a GPU Energy, a
corporation and public utility organized and existing under the laws of the
Commonwealth of Pennsylvania (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
Generation Facility Transmission Interconnection Agreement (the "Assigned
Agreement") dated as of March 23, 1999.
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 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 other than the agreement
between the Consenting Party and the Company to defer until financial closing
payment of $1,000,000 that was formerly due at the time of execution of the
Assigned Agreement, 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 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
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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 sixty (60) 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 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
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assignees fails to cure or rectify the effect of a default under the Assigned
Agreement or within sixty (60) 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.
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 thirty (30) 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. In such event, the Assignee represents and warrants that it will
procure the requisite expertise needed in order to operate the Facility pursuant
to Good Utility Practice and the entity that undertakes the operation of the
Facility will fully perform all of the Power Producer obligations set forth in
the
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Assigned Agreement. 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 when 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 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.
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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 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 other than clarification from the
Pennsylvania Public Utility Commission staff that no approval is required for
construction of the 230kV looped tap and stress bus interconnection that will
connect the AES Ironwood facility to the Consenting Party's 230kV system. The
Consenting Party has requested an opinion from the PaPUC's Chief Council
clarifying that the
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proposed 230kV tap and interconnection is not high voltage line construction
which would be subject to the Commission's High Voltage Line Application
Regulations at 52 Pa Code 57.71 et seq. The Consenting Party expects this to be
a routine ruling from the Chief Council which would close out the matter in
about 30 days. If that were not the case, however, it would mean preparing a
filing that would take several months but which should not effect our ability to
proceed with construction of the interconnection and complete it on schedule.
(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 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
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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 2800 Pottsville Pike, P.O. Box 16001, Reading, Pennsylvania, 19640-0001
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 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 their 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.
Metropolitan Edison Company d/b/a GPU Energy
By: /s/ Robert S. Zechman
----------------------------------
Name: Robert S. Zechman
Title: VP-Engineering & Operations
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