EXHIBIT 10.10
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ASSIGNMENT OF LEASES AND INCOME
dated as of March 1, 2000
by and between
AES RED OAK, L.L.C.
(as "ASSIGNOR")
-and-
THE BANK OF NEW YORK, as Collateral Agent
(as "ASSIGNEE")
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This instrument was prepared by, and
after recording please return to:
▇▇▇▇▇▇▇▇▇ ▇▇▇, Esq.
WINTHROP, STIMSON, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
THIS ASSIGNMENT OF LEASES AND INCOME (the "ASSIGNMENT"), made as of the 1st
day of March, 2000, by AES RED OAK, L.L.C. a Delaware limited liability company,
having an address at c/o The AES Corporation, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("ASSIGNOR"), to THE BANK OF NEW YORK ("BNY"), a bank organized
and existing under the laws of the State of New York and having an address ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, not individually but solely
in its capacity as collateral agent for the benefit of and on behalf of the
Senior Parties (as hereinafter defined) under the Collateral Agency Agreement
(as hereinafter defined) (together with its permitted successors and assigns,
"ASSIGNEE").
W I T N E S S E T H:
- - - - - - - - - -
A. Assignor, pursuant to the terms of that certain deed from Forest View
Industrial Park, Inc. ("FOREST VIEW") to Assignor, dated February 23, 2000 (the
"DEED"), is the fee owner of the property located in the Borough of Sayreville,
Middlesex County, New Jersey, more particularly described in EXHIBIT A attached
hereto and made a part hereof (the "SITE"), which Deed was recorded in the
Office of the Clerk of Middlesex County, New Jersey (the "REGISTER'S OFFICE") on
February 24, 2000 in Miscellaneous, Book 4748, Page 548.
B. Assignor, pursuant to the Deed, is the holder of (i) a certain access
easement to Jernee Mill Road (the "ACCESS EASEMENT"), which Access Easement was
originally granted by Pfizer Inc. to Forest View pursuant to an Easement dated
June 22, 1989 and recorded in the Register's Office on June 22, 1989 in Deed
Book 3789, Page 213, affecting the property described in EXHIBIT B attached
hereto and made a part hereof (the "ACCESS EASEMENT PREMISES"), and (ii) two (2)
sight triangle easements (the "SIGHT TRIANGLE EASEMENTS"), which Sight Triangle
Easements were originally granted by Pfizer Inc. to Forest View pursuant to an
Easement dated June 22, 1989 and recorded in the Register's Office on June 22,
1989 in Deed Book 3789, Page 227, affecting the property described in EXHIBIT C
attached hereto and made a part hereof (the "SIGHT TRIANGLE EASEMENTS PREMISES")
(the "ACCESS EASEMENT PREMISES" together with the "SIGHT TRIANGLE EASEMENTS
PREMISES," collectively, the "EASEMENT PREMISES").
C. Assignor, pursuant to the terms of that certain Ground Lease Agreement
dated as of March 1, 2000 (as amended, modified or otherwise supplemented form
time to time the "SITE LEASE") between Assignor, as ground lessor, and AES Urban
Renewal Corporation, as ground lessee (the "SITE GROUND LESSEE" or "AES URC"),
has leased to AES URC (i) the Site, (ii) the Access Easement and the Sight
Triangle Easements, and (iii) all of Assignor's rights under that certain
License Agreement for Utility Lines Occupation dated February 23, 2000 between
Consolidated Rail Corporation and Assignor affecting the real property described
in EXHIBIT D attached hereto and made a part hereof. A memorandum of Site Lease
was delivered to the Register's Office for recording immediately prior to the
recordation of this Assignment;
D. AES URC, as ground lessee, intends to construct a portion of the
Facilities (as hereinafter defined) on the Site (such portion, the "URC
FACILITY").
E. AES URC, pursuant to that certain Sublease Agreement dated as of March
1, 2000 (as amended, modified or otherwise supplemented form time to time, the
"SITE SUBLEASE") between AES URC, as ground sublessor, and Assignor, as ground
sublessee, has subleased the Site and the URC Facility to Assignor. A Memorandum
of Sublease was delivered to the Register's Office for recording prior to the
recordation of this Assignment.
F. Assignor granted to Assignee a security interest in and to the Site, the
Facilities, the Easement Facilities and the Easement Premises (the "PREMISES")
pursuant to the terms of that certain Mortgage, Security Agreement and
Assignment of Leases and Income, dated the date hereof, between Assignee, as
mortgagee, and Assignor, as mortgagor, (as amended, modified or supplemented
from time to time, the "MORTGAGE"). Assignor granted the Mortgage to Assignee as
security for Assignor's obligations under the Trust Indenture dated as of March
1, 2000 between Assignor and The Bank Of New York, as trustee, and The Bank of
New York, as depository bank (the "INDENTURE"), the Collateral Agency and
Intercreditor Agreement dated as of March 1, 2000, among Assignor, BNY and
Dresdner Bank AG acting through its New York Branch (the "COLLATERAL AGENCY
AGREEMENT"), the DSR LOC Reimbursement Agreement (as hereinafter defined), the
PPA LOC Reimbursement Agreement (as hereinafter defined) and the Working Capital
Agreement, including, without limitation, repayment of securities (the
"SECURITIES") issued pursuant to the terms of the Indenture.
G. As further security, Assignor has, INTER ALIA, agreed to assign all of
its right, title and interest in the Leases (as hereinafter defined) and its
right to receive Income (as hereinafter defined) to Assignee pursuant to the
terms of this Assignment.
Any capitalized terms used herein and not otherwise defined herein shall
have the meanings given to such terms in the Mortgage or, if not defined
therein, as defined in the Indenture.
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and
other good and valuable consideration, the receipt and sufficiency of which are
conclusively acknowledged and in order to secure the payment of the Secured
Obligations, including without limitation the repayment of the Securities,
Assignor does hereby assign, transfer and set over to Assignee, its successors
and permitted assigns, all of the right, title and interest of Assignor in and
to:
a. any lease, sublease, rental agreement, occupancy agreement,
license, franchise or concession agreement or any other form of agreement
however denominated, written or oral, affecting the Mortgaged Property, or
any part thereof, including without limitation the Project Contracts now or
hereafter entered into and all modifications, amendments, renewals,
extensions, replacements, guarantees and other agreements affecting the
same (collectively, the "LEASES"); and
b. any and all rents, issues and profits of the Mortgaged Property,
including without limitation the Project Revenues (collectively, "INCOME").
Section 1. NATURE OF ASSIGNMENT. The assignment contained in the foregoing
PARAGRAPHS A and B shall be fully operative and create, and are intended and
shall be construed to
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create an absolute assignment for security purposes without any further action
on the part of either party.
Section 2. REVOCABLE LICENSE. Assignee hereby gives Assignor a revocable
license to collect the Income and to retain, use and enjoy the same and to
exercise the rights granted herein. The license herein granted may be revoked by
Assignee by written notice to Assignor upon the occurrence and during the
continuance of any Event of Default.
Section 3. ASSIGNEE'S RIGHTS AND REMEDIES. Upon the occurrence and during
the continuance of any Event of Default under this Assignment or any other
Financing Document, Assignee shall have all of the rights, remedies and benefits
granted to it under the Mortgage with respect to the Leases and Income, it being
agreed and understood that for purposes of this SECTION 3, (i) the term
"Mortgaged Property" as used in the Mortgage includes the Site, the Facilities,
the Easement Premises, the Leases and Income, (ii) references therein to
"Mortgagor" shall be deemed to be references to Assignor and (iii) references
therein to "Mortgagee" shall be deemed to be references to Assignee.
Section 4. RIGHTS IN RESPECT OF THE MORTGAGED PROPERTY. If a Trigger Event
shall have occurred and be continuing and Assignee shall have received the
Senior Party Certificates from the Required Senior Parties pursuant to Section
2.3(a) of the Collateral Agency Agreement, and in addition to the right to
collect, use and apply Income as more fully described in SECTION 5 below, and
whether or not foreclosure has or shall have been instituted, Assignee shall
have the unqualified and absolute right to enter upon and take possession of,
and manage and operate, any part of or all of the Mortgaged Property and to
carry on the business and exercise the rights and powers of Assignor with
respect to the Mortgaged Property.
Section 5. RIGHTS IN RESPECT OF INCOME. If a Trigger Event shall have
occurred and be continuing and Assignee shall have received the Senior Party
Certificates from the Required Senior Parties pursuant to Section 2.3(a) of the
Collateral Agency Agreement, Assignee shall have the unqualified and absolute
right, whether or not Assignee takes possession of the Mortgaged Property but
subject to the provisions of Section 7.2 of the Mortgage, to receive the Income
and to use and apply the Income in accordance with the terms of the Indenture
provided that Assignee shall first have the right to apply Income to (i) the
operation and maintenance of the Mortgaged Property (as more fully described in
SECTION 4 above) and (ii) the payment of the Secured Obligations until the same
have been repaid in full.
Section 6. RELEASE. Assignee shall not, if in fact it chooses to exercise
any or all of the rights given to Assignee in SECTIONS 4 and 5 (collectively,
the "RIGHTS"), be liable to Assignor for any act done or anything omitted to be
done by it in good faith in connection with the management or operation of the
Mortgaged Property, except for the consequences of its own gross negligence or
willful misconduct.
Section 7. POWER OF ATTORNEY. Assignor hereby irrevocably constitutes and
appoints Assignee (acting itself or by its agents, servants or attorneys, or by
such officers or agents as it may appoint, or by a court-appointed receiver) its
true and lawful attorney and agent, coupled with an interest, to undertake and
execute, if a Trigger Event shall have occurred and be continuing and Assignee
shall have received the Senior Party Certificates from the Required
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Senior Parties pursuant to Section 2.3(a) of the Collateral Agency Agreement,
any or all of the Rights with the same force and effect as if undertaken or
executed by Assignor.
Section 8. UNTIL AND UNLESS LICENSE REVOKED. Until and unless the license
granted in SECTION 2 above is so revoked, Assignor agrees to collect and receive
the Income and to apply the Income in accordance with the Indenture or otherwise
to the payment of the Secured Obligations, and all expenses that Assignor may be
authorized to make under this Assignment, the Mortgage or the other Financing
Documents. In no event shall the execution and delivery of this Assignment or
the exercise by Assignee (if Assignee so chooses) of any of the Rights, release
Assignor from any of its obligations under any of the Leases or be deemed to be
a waiver by Assignee or its successors and assigns of the right to enforce the
Secured Obligations in strict accordance with the terms and provisions of this
Assignment, the Mortgage and the other Financing Documents.
Section 9. NO FURTHER ASSIGNMENT. Assignor covenants that so long as any of
the Secured Obligations shall remain unpaid, Assignor will make no assignment,
pledge or other disposition of, nor encumber, any of the Leases or the Income
except as permitted under the terms of the Indenture.
Section 10. SCHEDULE OF LEASES. At any time, and from time to time, on
reasonable notice from Assignee, Assignor shall deliver to Assignee a schedule
of all Leases then in effect, which schedule shall include such information as
Assignee may reasonably request. If requested by Assignee, Assignor shall also
deliver photocopies of all Leases accompanied by the certificate of Assignor
that such copies are true and complete.
Section 11. NOTICE TO TENANTS. Assignor, for the benefit of Assignee and
each Tenant, hereby covenants and agrees that a notice in writing by Assignee to
Tenants advising them that Assignor has suffered an Event of Default hereunder
and requesting that all future payments of rent, additional rent or other
charges under the Leases be made to Assignee (or its agent) or to accept
performance by Assignee of Assignor's obligations under the Leases, as the case
may be, shall be construed as conclusive authority to such Tenants that such
payments are to be made to Assignee (or its agent) or such performance is to be
accepted from Assignee (or its agent). Such Tenants shall be fully released and
protected by Assignor in making such payments to or accepting such performance
from Assignee (or its agent); and Assignor hereby waives any claims against such
Tenants and irrevocably constitutes and appoints Assignee the attorney-in-fact
and agent of Assignor, coupled with an interest, for the purpose of endorsing
the consent of Assignor on any such notice.
Section 12. ATTORNMENT BY TENANTS. In the event Assignee or its designee
acquires the Premises pursuant to a foreclosure proceeding or a deed in lieu of
foreclosure, each party under a Lease shall, at the option of Assignee, attorn
to any Person succeeding to the interest of Assignor as a result of such action
and shall recognize such Person in the place of Assignor under the applicable
Lease without change in the terms or other provisions thereof. To the extent
permitted by applicable Legal Requirements, such Person shall not be (i) liable
for any act or omission of any Person preceding such Person under such Lease
(including Assignor), (ii) subject to any offsets or defenses against any Person
preceding such Person (including Assignor), or (iii) bound by (a) any payment of
rent or additional rent made more than one month
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in advance of its due date (b) any obligation to make any payment to, or to
undertake or complete any construction for, such tenant, or (c) any amendment or
modification of any such Lease made without Assignee's consent and which,
pursuant to the Financing Documents, required Assignee's consent. Each party to
a Lease shall, upon request of Assignee or such Person, execute and deliver
instruments confirming such attornment, but Assignor shall have no liability if
such party fails to do so.
Section 13. RIGHTS AND REMEDIES CUMULATIVE. The rights and remedies of
Assignee hereunder are cumulative and are not in lieu of, but are in addition
to, and shall not be affected by the exercise of, and may be exercised
concurrently with, any other rights and remedies which Assignee shall have under
or by virtue of law or equity, this Assignment or any other Financing Document.
Section 14. ASSIGNMENT BY ASSIGNEE. Assignee may assign its interest in
this Assignment to any subsequent holder of the Mortgage or to any party who
acquires title to the Premises by foreclosure or pursuant to a deed in lieu
thereof. No such party who acquires title to the Premises by foreclosure or deed
in lieu thereof shall be liable to account to Assignor for any Income thereafter
accruing.
Section 15. EVENTS OF DEFAULT. Any "Event of Default" as defined under the
Mortgage shall constitute an Event of Default hereunder.
Section 16. NOTICES AND DELIVERIES. (a) MANNER OF DELIVERY. All notices,
communications and materials (including all information) to be given or
delivered pursuant to this Assignment shall be in writing (which shall include
telex and telecopy transmissions);
(b) All notices, communications and materials shall be given or delivered
at the following respective addresses and telecopier and telephone numbers and
to the attention of the following individuals or departments:
(i) if to Assignor, to it at:
AES Red Oak, L.L.C.
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▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Project Manager
Telecopier/Telefax No.: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
The AES Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopier/Telefax No.: ▇▇▇-▇▇▇-▇▇▇▇
(ii) if to Assignee, to it at:
▇
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Attention: Corporate Trust Administration
Telecopier/Telefax No.: ▇▇▇-▇▇▇-▇▇▇▇
or at such other address or telecopier number or telephone number or to the
attention of such other individual or department as the party to which such
information pertains may hereafter specify for the purpose in a notice to the
other specifically captioned "Notice of Change of Address" given to (i) if the
party to which such information pertains is the Assignor, the Assignee, and (ii)
if the Party to which such information pertains is the Assignee, the Assignor.
(c) EFFECTIVENESS. Each notice and communication and any material to be
given or delivered hereunder shall be effective or deemed delivered or furnished
(i) if sent by certified mail, return receipt requested, on the third business
day after such notice, communication or material, addressed as above provided,
is delivered to the United States post office and a receipt thereof is issued
thereby, (ii) if sent by any other means of physical delivery, when delivered to
the address of the addressee addressed as above provided, and (iii) if sent by
telecopier, when such notice, communication or material is transmitted to the
appropriate telecopier number as above provided and is received at such number.
Section 17. JUDICIAL PROCEEDINGS. WAIVER OF JURY TRIAL. Any judicial
proceeding brought against any party with respect to this Agreement shall be
brought in any court of competent jurisdiction in Middlesex County, New Jersey,
and, by execution and delivery of this Agreement, each party, to the greatest
extent permitted by applicable law, (i) accepts, generally and unconditionally,
the nonexclusive jurisdiction of such courts and any related appellate court and
irrevocably agrees to be bound by any judgment rendered thereby in connection
with any such claim and (ii) irrevocably waives any objection it may now or
hereafter have as to the venue of any such proceeding brought in such a court or
that such a court is an inconvenient forum. ASSIGNOR IRREVOCABLY DESIGNATES,
APPOINTS, AND EMPOWERS AND HEREBY CONFERS AN IRREVOCABLE SPECIAL POWER, AMPLE
AND SUFFICIENT, TO CT CORPORATION SYSTEM, WITH OFFICES ON THE DATE HEREOF
LOCATED IN ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, AS ITS DESIGNEE, APPOINTEE
AND AGENT WITH RESPECT TO ANY ACTION OR PROCEEDING IN NEW JERSEY 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 SUCH ACTION OR PROCEEDING AND AGREES THAT THE FAILURE OF SUCH
AGENT TO GIVE ANY ADVICE OF ANY SUCH SERVICE OF PROCESS TO ASSIGNOR SHALL NOT
IMPAIR OR AFFECT THE VALIDITY OF SUCH SERVICE OR OF ANY CLAIM BASED THEREON. IF
FOR ANY REASON SUCH DESIGNEE, APPOINTEE AND AGENT SHALL CEASE TO BE AVAILABLE TO
ACT AS SUCH, ASSIGNOR AGREES TO DESIGNATE A NEW DESIGNEE, APPOINTEE AND AGENT IN
NEW JERSEY ON THE TERMS AND FOR THE PURPOSES OF THIS PROVISION SATISFACTORY TO
THE ASSIGNEE. ASSIGNOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS
OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
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PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID TO ASSIGNOR, AT ITS ADDRESS SET FORTH IN SECTION 16, SUCH
SERVICE TO BECOME EFFECTIVE ON THE THIRD (3RD) BUSINESS DAY AFTER SUCH MAILING.
Nothing herein shall affect the right of Assignor or Assignee to serve process
in any other manner permitted by law or shall limit the right of Assignor or
Assignee to bring proceedings against the other in the courts of any other
jurisdiction. ASSIGNOR AND ASSIGNEE DO EACH HEREBY KNOWINGLY, VOLUNTARILY,
UNCONDITIONALLY, IRREVOCABLY AND INTENTIONALLY FOREVER WAIVE THE RIGHT TO A
TRIAL BY JURY IN EVERY JURISDICTION IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
BROUGHT BY ASSIGNOR OR ASSIGNEE AGAINST THE OTHER OR THEIR RESPECTIVE SUCCESSORS
OR ASSIGNS IN RESPECT OF ANY MATTER ARISING OUT OF, UNDER OR CONNECTED WITH
(INCLUDING, WITHOUT LIMITATION, ANY ACTION TO RESCIND OR CANCEL THIS ASSIGNMENT
AND ANY CLAIMS ASSERTING THAT THIS ASSIGNMENT WAS FRAUDULENTLY INDUCED OR ARE
OTHERWISE VOID OR VOIDABLE) THIS ASSIGNMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY PERSON OR ANY
EXERCISE BY ANY PARTY OF THEIR RESPECTIVE RIGHTS UNDER THE FINANCING DOCUMENTS.
THIS WAIVER OF THE RIGHT TO A JURY TRIAL IS A MATERIAL INDUCEMENT FOR ASSIGNEE
TO ACCEPT THIS ASSIGNMENT.
Section 18. NO WAIVER. A waiver of any right under this Assignment shall be
effective only in the specific instance and for the specific purpose for which
given. No election not to exercise, failure to exercise or delay in exercising
any right, nor any course of dealing or performance, shall operate as a waiver
of any right of Assignor or Assignee under this Assignment or Applicable Law,
nor shall any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right of Assignor or
Assignee hereunder or under Applicable Law.
Section 19. FURTHER ASSURANCES. Assignor shall, at Assignor's sole cost and
expense, and at the request of Assignee, do, execute, acknowledge and deliver
all further acts, deeds, conveyances, mortgages, assignments, notices of
assignment, transfers and assurances as Assignee shall from time to time
reasonably require (i) for better assuring, conveying, assigning, transferring
and confirming the Leases and Income unto Assignee in accordance with the terms
of this Assignment and (ii) for carrying out the intention of this Assignment.
Section 20. SUCCESSOR AND ASSIGNS. This Assignment is binding upon and
inures to the benefit of Assignor and Assignee and each of their respective
successors and assigns to the extent such assigns are permitted pursuant to the
Mortgage and the Financing Documents.
Section 21. AMENDMENTS. No change, amendment, modification, cancellation or
discharge of this Assignment, or any part hereof, shall be valid unless in
writing and signed by the party against whom enforcement of such change,
amendment, modification, cancellation or discharge is sought.
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Section 22. CONFLICTS AND INCONSISTENCIES. In the event of any conflicts or
inconsistencies among the terms of this Assignment and the Indenture or the
Mortgage, the terms of the Indenture or Mortgage, as the case may be, shall
govern and control.
Section 23. SEVERABILITY. If any provision of this Assignment or the
application thereof to any Person or circumstance shall to any extent be invalid
or unenforceable, the remainder of this Assignment, or the application of such
provision to Persons or circumstances other than those as to which it is invalid
or unenforceable, shall not be affected thereby, and each provision of this
Assignment shall be valid and enforceable to the fullest extent permitted by
law.
Section 24. CONTROLLING LAW. This Assignment shall be governed by, and
construed and enforced in accordance with, the laws of the State of
New Jersey.
Section 25. TERMINATION. This Assignment shall automatically terminate and
cease to be of any further force or effect upon payment in full of the Secured
Obligations and the fulfillment of the conditions to the release of the
Mortgage; PROVIDED, HOWEVER, that this Assignment shall be reinstated if at any
time payment of all or any part of the Secured Obligations is rescinded or
otherwise must be restored or returned by Assignee (or any entity for whom it
acts) upon the insolvency, bankruptcy or reorganization of Assignor or
otherwise, as though such payment had not been made. Upon such termination,
Assignee shall, at Assignor's direction, execute and deliver to Assignor such
instrument or instruments effective to evidence the termination of this
Assignment and the reassignment to Assignor of the rights, powers and
authorities granted herein, provided, however, that no such written instrument
shall be required in order to make the terms hereof effective.
Section 26. LIMITATION OF RECOURSE. In the event of non-performance by the
Assignor of its obligations under this Assignment, or any part thereof, or for
any claim based thereon or otherwise in respect thereof or related thereto, no
recourse shall be had to (i) any assets or properties of the Assignor (or any
person that controls the Assignor within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) or (ii) any Affiliate of the
Assignor or any incorporators, officers, directors or employees thereof, and no
judgment relating to the obligations of the Assignor under this Assignment, or
any part thereof, or for any claim based thereon or otherwise in respect thereof
or related thereto, shall be obtainable by the Senior Parties or the Collateral
Agent against the Assignor or any other incorporator, stockholder, officer,
employee or director past, present or future of the Assignor or any Affiliate of
the Assignor; provided, however, that nothing contained herein shall prevent the
taking of any action permitted by law against the Assignor or any of its
Affiliates, or in any way affect or impair the rights of the Collateral Agent or
Senior Parties to take any action permitted by law, in either case to realize
upon the Collateral and, provided further, that nothing herein shall be deemed
to affect the obligations of any Affiliate of the Assignor under any Transaction
Document (as such terms is defined in the Indenture) to which such Affiliate is
a party.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, this Assignment has been duly executed by Assignor and
Assignee as of the day and year first above written.
ASSIGNOR
AES RED OAK, L.L.C.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
ASSIGNEE
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THE BANK OF NEW YORK,
as Collateral Agent
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
[ASSIGNMENT OF LEASES, RENTS AND INCOME]
CORPORATE ACKNOWLEDGMENT
------------------------
DISTRICT )
OF ) ss
COLUMBIA )
On this 15th of March, 2000, before me, the undersigned, a notary public
in and for the District of Columbia, personally appeared ▇▇▇▇▇ ▇. Anatnella,
the Vice President of AES Red Oak, L.L.C., a Delaware limited liability
company, the company named in the foregoing instrument, who, I am satisfied,
is the person who signed the within instrument, and that he is such Vice
President of the company, being authorized by virtue of a resolution of the
company, executed the foregoing instrument by signing the name of such
Company by himself as Vice President of the company and acknowledges same as
his voluntary act and deed, the voluntary act and deed of said limited
liability company for the purposes therein contained.
Witness my hand and official seal.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (SEAL)
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Signature:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
NOTARY PUBLIC, DISTRICT OF COLUMBIA
MY COMMISSION EXPIRES: 4-1-02
[ASSIGNMENT OF LEASES, RENTS AND INCOME]
CORPORATE ACKNOWLEDGMENT
DISTRICT )
OF ) ss
COLUMBIA )
On this 15th of March, 2000, before me, the undersigned, a notary public
in and for the District of Columbia, personally appeared ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇,
the Vice President of the Bank of New York, a Delaware limited liability
company, the company named in the foregoing instrument, who, I am satisfied,
is the person who signed the within instrument, and that he is such Vice
President of the company, being authorized by virtue of a resolution of the
company, executed the foregoing instrument by signing the name of such
Company by himself as Vice President of the company and acknowledges same as
his voluntary act and deed, the voluntary act and deed of said limited
liability company of the purposes therein contained.
Witness my hand and official seal.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (SEAL)
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Signature:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
MY COMMISSION EXPIRES: 4-1-02
THIS INSTRUMENT WAS PREPARED BY ▇▇▇▇▇▇▇▇▇ ▇▇▇, ESQ.
EXHIBIT A
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SITE
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All that tract or parcel of land and premises, situate, lying and being in the
Borough of Sayreville in the County of Middlesex and State of New Jersey, more
particularly described as follows:
PARCEL I (FEE)
BEGINNING at a point in the Easterly line of Raritan River Railroad
right-of-way; said point being distant 719.16 feet on a course bearing of North
05 degrees 35 minutes 10 seconds East from a point of curvature of a curve
having a radius of 443.3 feet; said point of beginning also being distant 259.91
feet on a course bearing of South 05 degrees 35 minutes 10 seconds West from the
point of intersection formed by the Easterly right-of-way line of the Raritan
River Railroad with the Southerly line of lands now or formerly owned by the
▇▇▇▇▇▇▇ Company extended Easterly from the point and place of beginning of
Parcel "A" as described in Deed Book 2883 page 873 a distance of 70.00 feet on a
course bearing South 85 degrees 11 minutes 00 seconds East, running thence from
said beginning point:
(1) Along the Easterly line of the Raritan River Railroad North 5 degrees 35
minutes 10 seconds East a distance of 811.14 feet to a point and corner;
thence
(2) South 84 degrees 24 minutes 50 seconds East a distance of 38.72 feet to a
point and corner; thence
(3) North 24 degrees 50 minutes 30 seconds East a distance of 820.45 feet to a
point and corner; thence
(4) North 37 degrees 30 minutes 30 seconds East a distance of 509.70 feet to a
point and corner; thence
(5) North 56 degrees 20 minutes 30 seconds East a distance of 285.61 feet to a
point and corner; thence
(6) North 69 degrees 20 minutes 30 seconds East a distance of 242.34 feet to a
point and corner in the Westerly line of the Jersey Central Power and Light
Company easement, 150 feet wide; thence
(7) Along the Westerly line of said Jersey Central Power and Light Company
easement South 11 degrees 49 minutes 50 seconds East a distance of 1,163.29
feet to a point and corner; thence
(8) Continuing along the Westerly line of said Jersey Central Power and Light
Company easement South 57 degrees 21 minutes 50 seconds East a distance of
383.51 feet to a point and corner; thence
[ASSIGNMENT OF LEASES, RENTS AND INCOME]
(9) South 28 degrees 12 minutes 20 seconds West a distance 425.47 feet to a
point and corner; thence
(10) South 28 degrees 10 minutes 30 seconds West a distance of 586.75 feet to a
point and corner; thence
(11) South 05 degrees 20 minutes 30 seconds West a distance of 146.75 feet to a
point and corner; thence
(12) South 82 degrees 20 minutes 30 seconds West a distance of 319.17 feet to a
point and corner; thence
(13) North 85 degrees 03 minutes 10 seconds West a distance of 562.61 feet to a
point of curvature; thence
(14) On the arc of a circle curving to the right having a radius of 520.00 feet
an arc distance of 100.00 feet (chord bearing and distance North 79 degrees
32 minutes 37 seconds West 99.85 feet) to a point and corner; thence
(15) South 15 degrees 57 minutes 56 seconds West a distance of 60.00 feet to a
point and corner; thence
(16) On the arc of a circle curving to the right having a radius of 580.00 feet
an arc distance of 345.40 feet (chord bearing and distance North 56 degrees
58 minutes 27 seconds West 340.32 feet) to a point of tangency; thence
(17) North 39 degrees 54 minutes 50 seconds West a distance of 46.44 feet
returning to the point and place of BEGINNING.
The above premises are commonly known as ▇▇▇ ▇, ▇▇▇▇▇ 49.01.
[ASSIGNMENT OF LEASES, RENTS AND INCOME]
EXHIBIT B
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ACCESS EASEMENT
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All that tract or parcel of land and premises, situate, lying and being in the
Borough of Sayreville in the County of Middlesex and State of New Jersey, more
particularly described as follows:
PARCEL II (ACCESS EASEMENT)
BEGINNING at a concrete monument in the Westerly line of the Raritan River
Railroad, said point being the point and place of beginning of Parcel "A" as
described in Deed Book 2883 page 873 and running thence from said beginning
point:
(1) North 85 degrees 11 minutes 00 seconds West a distance of 934.57 feet to a
point and corner in the Easterly line of Jernees Mill Road; thence
(2) On a line parallel to and distant 44 feet measured at a right angle from
the centerline of ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ degrees 56 minutes 50 seconds
East a distance of 60.47 feet to a point; thence
(3) South 85 degrees 11 minutes 00 seconds East a distance of 927.86 feet to a
point in the Westerly line of the Raritan River Railroad; thence
(4) Along the Westerly line of the Raritan River Railroad South 05 degrees 35
minutes 10 seconds West a distance of 60.00 feet returning to the point and
place of BEGINNING.
[ASSIGNMENT OF LEASES, RENTS AND INCOME]
EXHIBIT C
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SIGHT TRIANGLE EASEMENTS
All that tract or parcel of land and premises, situate, lying and being in the
Borough of Sayreville in the County of Middlesex and State of New Jersey, more
particularly described as follows:
PARCEL III (SIGHT TRIANGLE EASEMENTS)
EASEMENT "A"
BEGINNING at the point of intersection formed by the Easterly line of Jernees
Mill Road (also known as Middlesex County Road # 3-R-18) with the Northerly line
of a proposed 60 foot road as shown and delineated on a map entitled, "final
subdivision Plat For: Forest View Industrial Park," dated December 1, 1988 and
is about to be filed at the Office of The Middlesex County Clerk; said beginning
point being distant 44 feet measured at a right angle from the centerline of
Jernees Mill Road, running thence from said beginning point:
(1) Along the Easterly line of ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ degrees 56 minutes 50
seconds East a distance of 96.60 feet to a point; thence
(2) South 08 degrees 33 minutes 17 seconds East a distance of 98.52 feet to a
point in the Northerly line of said proposed 60 foot wide road; thence
(3) Along the Northerly line of said proposed North 85 degrees 11 minutes 00
seconds West a distance of 34.78 feet returning to the point and place of
BEGINNING.
EASEMENT "B"
BEGINNING at the point of intersection formed by the Easterly line of Jernees
Mill Road (also known as Middlesex County Road # 3-R-18) with the Northerly line
of a proposed 60 foot road as shown and delineated on a map entitled, "Final
Subdivision Plat For: Forest View Industrial Park," dated December 1, 1988 and
is about to be filed at the Office of The Middlesex County Clerk; said beginning
point being distant 44 feet measured at a right angle from the centerline of
Jernees Mill Road, running thence from said beginning point:
(1) Along the Southerly line of said proposed 60 foot wide Road South 85
degrees 11 minutes 00 seconds East a distance of 34.78 feet to a point;
thence
(2) South 30 degrees 49 minutes 29 seconds West a distance of 22.26 feet to a
point in the Easterly line of Jernees Mill Road; thence
(3) North 85 degrees 11 minutes 00 seconds West a distance of 27.52 feet to a
point in the Easterly line of Jernees Mill Road; thence
(4) Along the Easterly line of ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ degrees 56 minutes 50
seconds East a distance of 20.16 feet returning to the point and place of
BEGINNING.
[ASSIGNMENT OF LEASES, RENTS AND INCOME]
EXHIBIT D
CONRAIL PROPERTY
Block 62.04, portion of Lot 5
See Attached Diagram (described below)
Diagram of Survey of Conrail Utility Crossing
for AES Red Oak Power Plant
▇▇▇ ▇, ▇▇▇▇▇ ▇▇.▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇
by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Professional Engineer