Exhibit 10.10
WATER PURCHASE AGREEMENT
This Water Purchase Agreement ("Agreement") dated the 25th day of
February, 1999 is entered into between the HEARD COUNTY WATER AUTHORITY, a
public corporation created and existing under the laws of the State of Georgia
(hereinafter referred to as "Authority") and TENASKA GEORGIA PARTNERS, L.P., a
Delaware limited partnership ("Tenaska"). Authority and Tenaska are sometimes
referred to herein individually as a "Party" and collectively as the "Parties."
WITNESSETH:
Tenaska intends to build and cause to be operated an approximately 950
Megawatt electric power generation facility (the "Plant") in Heard County,
Georgia on the real property described on Exhibit "A" attached hereto and by
reference incorporated herein (the "Land"). Authority operates facilities for
the delivery of water ("Water Facilities"). Tenaska anticipates that some
portion of the Plant will achieve commercial operation on or about June 1, 2001,
but in no event sooner than June 1, 2000 ("Commercial Operation"). The Plant
operations will require a substantial quantity of water for its power generation
process. Authority agrees to deliver to the Plant and to sell to Tenaska and
Tenaska agrees to buy water from the Authority for use in its generation
process, hereinafter such water is referred to as "Water".
NOW, THEREFORE, in consideration of the mutual terms and conditions of
this Agreement, the receipt and legal sufficiency of which is hereby
acknowledged by the Parties, the Parties agree as follows:
1. PURPOSE. The purpose of this Agreement is to define the Parties'
contractual rights and obligations with respect to the supply and use
of Water at the Plant.
2. TERM OF AGREEMENT. This Agreement shall be effective on the date
recited in the first paragraph hereof, and the term of this Agreement
shall extend for a term of thirty (30) years after the date Tenaska
first purchases Water under this Agreement in accordance with Paragraph
5 hereof (the "Term"), unless earlier terminated in accordance with the
provisions of Paragraphs 15 or 16 hereof.
3. AUTHORITY OBLIGATIONS. Subject to the conditions set forth herein,
including but not limited to Tenaska's obligations contained in
Paragraph 6 below, the Authority shall provide the following:
(a) As soon as practical, but no later than nine (9) months after
the payment by Tenaska of the sums specified in Paragraph 6
below, the Authority shall place into operation all facilities
necessary to provide, transport and deliver Water to the
Delivery Point in the amounts required by Tenaska, not to
exceed 350 gallons per minute (504,000 gallons per day) (the
"Authority Commitment").
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(b) Authority shall continually maintain and operate Water
Facilities adequate to accomplish the requirements hereunder,
during the term of this Agreement. Authority understands and
acknowledges that the Water is essential to Tenaska's
operation of the Plant.
(c) Except as excused in accordance with the conditions identified
in Paragraph 7 herein, at all times during the term of this
Agreement Authority shall deliver to the Delivery Point and
sell to Tenaska the quantity of Water at any time and from
time to time required for use at the Plant, not to exceed the
Authority Commitment. Authority is not obligated to deliver a
quantity of Water more than the Authority Commitment, but at
its election it may do so. In the event that Tenaska desires
to use Water in excess of the Authority Commitment and the
Authority is willing to provide such Water, Tenaska shall pay
the rate for such Water as described in Paragraph 5 (a)(ii).
There is no minimum or maximum purchase requirement for Water
under this Agreement, except that if in any Commercial
Operation Year (as hereinafter defined) Tenaska uses less than
$20,000.00 of Water, then the Authority shall invoice Tenaska
for, and Tenaska shall pay within fifteen (15) days after
receipt of such invoice, the difference between said
$20,000.00 annual minimum and the total dollar amount of
charges to Tenaska for Water used by Tenaska during the same
Commercial Operation Year. For Purposes of this Section 3(c),
the term "Commercial Operation Year" shall mean the twelve
(12) consecutive month period beginning on the date the Plant
commences Commercial Operation for the sale of power (the
"Commercial Operation Commencement Date"), and each twelve
consecutive month period which thereafter begins on the
anniversary of the "Commercial Operation Commencement Date.
Tenaska shall have no obligation to pay the $20,000.00 annual
minimum payment specified above if the Plant does not commence
Commercial Operation.
(d) The Authority represents and warrants that based on the Water
Facilities of the Authority existing as of the date of this
Agreement, and the existing demands for the supply of Water,
the Authority has ample capacity to serve the Plant with the
quantity of Water represented by the Authority Commitment, so
long as no Excusable Interruption (as hereinafter defined)
occurs and remains outstanding. In consideration for Tenaska's
obligation to pay the Tenaska Payment under Paragraph 6 below,
the Authority shall reserve for Tenaska water production
supplies of the Authority which are necessary to provide to
Tenaska potable Water at the Delivery Point in an amount not
to exceed 504,000 gallons per day and/or at a rate not to
exceed 350 gallons per minute. The Authority shall not
otherwise add customers or sell unused capacity which would
deny or tend to deny Tenaska the supply capacity committed
hereunder. Tenaska represents and warrants that Tenaska has
inspected the Water Facilities of the Authority as they
existed as of the date of such inspection, and that if said
Water Facilities were properly operated and maintained as
required in subpart 3(g) below and there
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were no other existing demands for the supply of Water from
the Water Facilities to other customers of the Authority, the
Water Facilities as inspected by Tenaska have the capacity to
process the Water needed to supply the Authority Commitment,
so long as no Excusable Interruption (as hereinafter defined)
occurs and remains outstanding. However, Tenaska makes no
representation or warranty as to the existing or future
demands by other customers of the Authority for the supply of
Water, or that the Water Facilities have the capacity needed
to serve the Plant with the quantity of Water represented by
the Authority Commitment and also serve the other existing or
future demands of customers of the Authority.
(e) In order that the Authority may provide the necessary rate of
flow and capacity committed hereunder, Tenaska shall make
reasonable efforts to give the Authority notice (which notice
may be given verbally, and need not be given in accordance
with Section 13(a) below), to the extent Tenaska is able to,
of Tenaska's need for Water at a rate in excess of 100 gallons
per minute.
(f) In consideration for Tenaska's obligation to pay the Tenaska
Payment under Paragraph 6 below, the Authority agrees that if
after the date of this Agreement the Authority enters into any
agreement with any person or entity for the provision of
potable water or reservation of capacity to provide potable
water to any user involved in the generation of electrical
power or other energy, at a rate or capacity exceeding either
230 gallons per minute at any time or exceeding 331,200
gallons per day at any time, (i) at any lower rates than those
charged to Tenaska hereunder, (ii) for a lower up front cost
than the $500,000.00 Tenaska Payment (which $500,000.00 amount
shall be reduced prorata on a straight line basis for any
capacity of less than 350 gallons per minute), and/or (iii) on
any other terms more favorable than those provided to Tenaska
hereunder, then the Authority shall for the remainder of the
Term provide the Water to Tenaska at such lower rates, the
Authority shall refund to Tenaska the difference between said
lower up front cost and the applicable prorata share of the
Tenaska Payment, and Tenaska shall have the benefit of any
such other more favorable terms. For example if the Authority
entered into an agreement to supply water to a commercial user
at a rate of 175 gallons per minute/252,000 gallons per day at
the same rate per gallon and other terms as provided in this
Agreement, except that the up front cost charged to the new
commercial user was $252,000, then the Authority shall refund
$50,000.00 to Tenaska. The most favored nations provision
contained in this Section 3(f) shall not apply to any
agreement by the Authority to provided water to a
municipality, county government or other governmental agency
provided that the municipality, county government or other
governmental agency which is a party to such agreement is not
reselling the water to users involved in the generation of
electrical power or other energy.
(g) Authority shall construct and continually operate and maintain
the Water Facilities in a manner consistent with (i) the terms
and provisions of this
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Agreement;(ii) good industry practice; and (iii) all
applicable laws, statutes, rules, regulations, ordinances and
codes.
4. DELIVERY POINT, METERING, AUDITING AND TESTING.
(a) The Delivery Point shall be at a point on the property line of
the Land as the Authority may designate. Tenaska will bear the
responsibility of maintaining the Water quality following
receipt by Tenaska of Water at the Delivery Point.
(b) A metering station shall be owned, installed and continually
operated and maintained, tested, calibrated and adjusted by
Authority, located between the Water Facilities and the
Delivery Point as the Parties may agree, providing accurate
and continuous measurement and recording of the quantity of
Water. The meter and its installation shall meet current
American Water Works Associations standards. Metering
equipment may be tested, as agreed, by Authority and Tenaska.
If such metering equipment is found to be in error, then the
Parties shall use reasonable effort to determine the quantity
of Water actually delivered to the Delivery Point during the
period affected by such error, and the equipment shall be
adjusted to accurately record the delivery of Water. Authority
and Tenaska shall have the right to have a representative
present at the time of any test. All water meters, metering
equipment, vaults, valves, bypasses, telemetryremote read
equipment, and testable backflow preventors shall be provided
and installed by the Authority at the Authority's sole cost
and expense (the cost of said facilities and equipment having
been included in the Tenaska Payment amount); provided,
however, that, in addition to the Tenaska Payment, Tenaska
shall pay the Authority (i) $15,000.00 towards the cost of
such equipment and installation, and (ii) (A) should the cost
of the items specified above in this sentence cost the
Authority $15,000.00 or more, and (B) should Tenaska specify
that the Authority install a water meter costing more than the
water meter selected by the Authority, then the Authority
shall install the water meter specified by Tenaska and Tenaska
shall pay the Authority the difference in the cost of the
meter specified by the Authority and the cost of the more
expensive water meter specified by Tenaska.
(c) Authority and Tenaska each shall have the ongoing right to
examine and audit the other Party's records concerning
quantities and quality of Water supplied to Tenaska at the
Delivery Point. The Parties shall give reasonable notice of
the exercise of their right to examine and audit such records,
but not less than ten (10) days, and any audit or examinations
shall take place during normal business hours and be done in
such a manner so as not to unduly interrupt the operations of
the party being audited.
(d) Authority shall supply Tenaska, upon request by Tenaska, a
copy of regulatory and chemical analysis reports on the Water
as submitted to any governmental
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authority, including, without limitation, the Environmental
Protection Division of the Georgia Department of Natural
Resources or its successor. In the event Tenaska desires
another or a more comprehensive chemical analysis of the Water
supplied or to be supplied, the cost of such shall be borne by
Tenaska.
(e) Each of the Parties shall immediately notify the other Party's
Designated Representative (as identified in Paragraph 13
hereof) of any emergency or condition of which the notifying
Party is aware which may affect the quality and/or quantity of
Water.
5. RATES, INVOICING AND PAYMENT. Authority shall invoice Tenaska for Water
supplied during the previous month in accordance with the provisions of
this paragraph.
(a) For each month of the term of this Agreement, the Authority
shall charge Tenaska for Water based on a Variable Charge. The
Variable Charge will be equal to the quantity of Water
delivered to the Delivery Point during each month as
determined by the metering equipment, multiplied by the
Variable Rate.
(i) For quantities of Water up to and including the
Authority Commitment, the Variable Rate shall be
$1.57 per 1,000 gallons, subject to adjustment as
provided herein. The Variable Rate shall be $1.57 per
1,000 gallons for Water purchased through December
31, 1999 ("initial Rate"). With respect to each
calendar year after December 31, 1999, the Initial
Rate shall be subject to adjustment annually to take
into account changes in the cost of living as
reflected in the Consumer Price Index for U.S. City
Average, all items (1967 = 100) published by the
Bureau of Labor Statistics of the United States
Department of Labor ("CPI") between the indexes
published for December, 1999 and December of the year
immediately prior to the year for which such rate is
being determined. By way of example, the Variable
Rate for the twelve (12) month period of January 1,
2005 through December 31, 2005, shall be equal to the
product of $1.57 (per 1,000 gallons), multiplied by a
fraction, the numerator of which is the index as
reported for December, 2004 and the denominator of
which is the index as reported for December, 1999.
Assuming that the index for December, 1999 is 500 and
the index for December, 2004 is 505, then the
Variable Rate for Water purchased during 2005 shall
be $1.586 per 1,000 gallons [$1.57 per 1,000 gallons
x (505 / 500)]. In the event the Bureau of Labor
Statistics ceases to publish the index or changes the
manner in which the index is computed, an equitable
substitute index shall apply.
In addition to the CPI increase as specified above,
If Authority is legally required to make capital
improvements as a result of environmental
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statutes, rules or regulations enacted or promulgated
after the date of the Agreement by the State of
Georgia or the Federal Government, Tenaska will, in
addition to the CPI increase, pay the increase in
water rates charged to all Heard County water users,
attributable to the cost of legally required capital
improvements made by the Authority to comply with
such legal requirements.
(ii) For quantities of Water used by Tenaska in excess of
the Authority Commitment, the Variable Rate shall be
$2.00 per 1,000 gallons, subject to the same cost of
living adjustment as described above with respect to
the Variable Rate for quantities of Water up to and
including the Authority Commitment.
(b) On or about the fifth (5th) day of each calendar month,
beginning with the month after the Authority first delivers
Water to Tenaska at the Delivery Point, Authority shall mail
or personally deliver to Tenaska an invoice ("Authority's
Invoice") for amounts due Authority for Water supplied during
the previous month. Authority's Invoice shall state the
quantity of Water supplied during the month covered by
Authority's Invoice, the date of any CPI or successor indices
used to calculate the price of Water, the total amount due to
Authority and any additional information reasonably requested
by Tenaska to determine the accuracy of Authority's Invoice.
The remittance address shall be such address as may be
reflected on Authority's Invoice from time to time.
(c) Tenaska shall pay the amount indicated on Authority's Invoice
by the fifteenth (15th) of each month. Subject to the
obligations of Tenaska to promptly pay, Tenaska may dispute
the amount indicated on Authority's Invoice and make payment
"under protest" by notifying Authority in writing accompanying
the payment. Any refund of an amount paid "under protest"
shall bear interest at the rate of ten percent (10%) per annum
from the date of payment until the date of the refund.
Tenaska's failure to pay any invoiced amount within ten (10)
days after the date Tenaska receives notice of default
specifying the failure to pay charges for Water when due will
subject Tenaska to a penalty equal to ten percent (10%) of the
amount invoiced and not timely paid.
(d) In the event an error is discovered with respect to any
Authority's Invoice, or with respect to any payment made
pursuant to any Authority's Invoice, such error shall be
adjusted within thirty (30) days following the discovery of
the error.
(e) Each Party shall permit the other or its Designated
Representative to examine, audit and copy all records and
information necessary to confirm the accuracy of any
Authority's Invoice submitted pursuant to paragraph 5(b).
(f) Should Tenaska fail to pay an amount invoiced by the Authority
on the date due, Tenaska shall be considered to be in default
pursuant to its obligations hereunder,
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and the Authority shall give written notices of such payment
default to Tenaska and Tenaska's Lenders (as hereinafter
defined). If such payment default is not cured within sixty
(60) days after the effective date of the notices of default
in payment given to Tenaska and its Lenders, the Authority
shall have the right to suspend any water service until such
default is cured, and if not cured within sixty (60) days
after the effective date of the notices of default are given
to both Tenaska and its Lenders, the Authority shall have the
right to thereafter terminate this Agreement by giving written
notice of termination given while such default remain
outstanding and uncured. The sixty (60) day cure period
provided to Tenaska and its Lenders following the giving of
any notice of a payment default to Tenaska and its Lenders
pursuant to this Agreement shall be coextensive (and not
consecutive) with the sixty (60) day cure period set forth in
Section 1.3 of the Consent and Agreement (as hereinafter
described) so long as the notice of the payment default given
to the Lenders was given in accordance with the notice
provisions of such Consent and Agreement.
6. TENASKA PAYMENT FOR WATER FACILITIES.
Tenaska agrees to pay Authority $500,000.00 (the "Tenaska Payment") in
consideration of the services, commitments and reservation of the
Authority recited in Paragraph 3 of this Agreement. The Tenaska Payment
includes all tap fees, miscellaneous fees and the legal fees, costs and
expenses of providing the consents to assignments, estoppel
certificates, legal opinions and other documentation from the Authority
and its counsel required by Tenaska's Lenders (as hereinafter defined).
Tenaska shall pay Authority the Tenaska Payment within ten (10) days of
financial closing for the Plant.
7. INTERRUPTION OF SERVICE.
(a) Interruptions for Necessary Scheduled Maintenance. Authority
may not interrupt its provision of Water to the Plant for
necessary scheduled maintenance unless it has given prior
notice to Tenaska. For purposes of this subparagraph, prior
notice means receipt by Tenaska from Authority of notice of at
least five (5) days prior to any scheduled suspension,
interruption, delay, reduction or other interference of supply
("Interruption"). If Authority has given the required prior
notice, Authority may temporarily suspend the supply for a
period not to exceed 48 hours in order to correct the reason
for the Interruption. Whenever possible, a proposed
Interruption shall be scheduled during a shut-down of the
Plant. The required prior notice from the Authority shall
specify the duration and extent of the proposed Interruption
in the Water supply and the reason therefor.
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(b) Interruptions due to Uncontrollable Force.
(i) If the Water supply is interrupted as a result of an
Excusable Interruption (as hereinafter defined), then
during the Excusable Interruption, Authority shall
not be obligated to deliver Water to Tenaska.
(ii) The term "Excusable Interruption" shall mean acts of
God, floods, earthquakes, storm, drought, or other
natural calamities, war, insurrection, riot,
curtailment, order, regulation, or restriction
imposed by state or federal governmental authority,
cutting of water supply lines at the hands of third
parties, failure of equipment or facilities that have
been properly operated and maintained in accordance
with both good industry practice and all applicable
laws, statutes, rules, regulations, ordinances and
codes; or other similar cause beyond the reasonable
control of the Party affected.
(iii) In the event that either Party is rendered unable,
wholly or in part, by Excusable Interruption, to
carry out its obligations of this Agreement, except
for those obligations requiring the payment of money,
and if such Party gives notice stating the reasons
therefor to the other Party as soon as practicable
after the occurrence being claimed as an Excusable
Interruption, then insofar as and to the extent and
for the reasonable time that such obligations are so
affected (not including those obligations requiring
the payment of money) by the Excusable Interruption,
the performance obligation of such Party shall be
suspended. The suspension of the Party's performance
obligation shall be for no longer than that necessary
to cause such inability to be remedied with
reasonable dispatch.
8. TAXES.
Each Party shall pay all sales, real and personal property taxes and
assessments imposed on such Party, pursuant to applicable law or local
custom with respect to the activities of generation, transportation,
delivery, sale, emission, disposal, or use of Water.
9. ASSIGNMENT AND DELEGATION.
(a) Except as otherwise provided herein, no right or interest in
this Agreement shall be assigned by either Tenaska or
Authority without the written permission of the other Party
and no delegation of any obligation or of the performance of
any obligation by either Tenaska or Authority shall be made
without the written permission of the other Party, which
permission shall not be unreasonably withheld; provided,
however, nothing contained in this Paragraph 9 shall be
construed to restrict Tenaska in any manner from freely
granting a security interest, transferring in trust,
mortgaging, hypothecating, assigning or otherwise transferring
Tenaska's right, title and interest or delegating its duties
under this Agreement to any institutional or commercial
lender, or other person, its
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successors or assigns, providing credit or loans to Tenaska in
connection with the financing, refinancing or operation of the
Plant (a "Lender" or "Lenders") or construed to restrict any
Lender from exercising its rights or pursuing its remedies
available under any loan agreements, security agreements or
other instruments or documents between itself and Tenaska or
otherwise available to such Lender at law or in equity; and
that Tenaska may assign this Agreement without the prior
written permission of Authority to Tenaska's Lender(s), and
Authority will execute a consent to such assignment as may be
reasonably requested by such Lender(s). Any attempt of
assignment or delegation shall be void and ineffective for all
purposes unless made in conformity with this Paragraph 9.
(b) Either Party may assign its rights and delegate its
obligations to any subsidiary or affiliate of any such Party,
provided that no such assignment or delegation releases such
party from any of its obligations.
10. INDEMNITY.
(a) Tenaska agrees to release, defend, indemnify and hold harmless
Authority, its members, officers, employees, and agents
(collectively, "Authority Representatives") from that portion
of any claims, actions, suits, losses, harm, liability,
damages, cost and expenses, including but not limited to
reasonable attorneys' fees (collectively, "Claim") arising out
of the negligent acts or omissions of Tenaska in connection
with this Agreement and the construction or operation of the
water system owned by Tenaska on its Plant site ("Water
System"); provided, however, Tenaska does not release, defend,
indemnify or hold harmless Authority Representatives from any
Claim or portion thereof caused by or resulting from the
negligence or wrongful act or omission of Authority
Representatives. In the event of a Claim against the Authority
by a third party, where negligence by Tenaska is concurrent
and contributes to the cause of the Claim, then the Authority
and Tenaska shall be responsible and liable in proportion to
the degree of their own negligence. Nothing in this Agreement
shall be construed to preclude either Party from pursuing any
remedy against a third party.
(b) Authority hereby agrees to release, defend, indemnify and hold
harmless Tenaska, its directors, officers, partners,
shareholders, employees, agents and representatives
(collectively, "Tenaska Representatives") from that portion of
any Claim arising out of the negligent acts or omissions of
Authority in connection with this Agreement and the
construction or operation of the Water Facilities; provided,
however, Authority does not release, defend, indemnify or hold
harmless Tenaska Representatives from any Claim or portion
thereof caused by or resulting from the negligence or wrongful
act or omission of Tenaska Representatives. In the event of a
Claim against Tenaska by a third party, where negligence by
Authority is concurrent and contributes to the cause of the
Claim, then the Authority and Tenaska shall be responsible and
liable in proportion to the
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degree of their own negligence. Nothing in this Agreement
shall be construed to preclude either Party from pursuing any
remedy against a third party. For purposes of this paragraph
10(b) "Tenaska" shall mean, Tenaska, its partners (both
general and limited), the general and limited partners of such
partners, their related and affiliated entities, and the
respective directors, officers, partners, shareholders,
employees, agents and representatives of each of the
foregoing.
11. REPRESENTATIONS AND WARRANTIES. The representations and warranties made
respectively by the Parties shall remain in existence during the term
of this Agreement.
Tenaska represents and warrants that:
(a) Tenaska is a Delaware limited partnership, organized and
existing in good standing under and by virtue of the laws of
the State of Delaware;
(b) has the power and authority to own its properties and carry on
the business as presently conducted and as represented in this
Agreement;
(c) has obtained or will obtain all necessary federal, state and
local government authorizations or permits to operate the
Plant on the Land; and
(d) that this Agreement represents a valid and binding obligation
of Tenaska, enforceable against it by its terms, and that
entering into this Agreement will not violate any rule,
regulation, charter, by laws, or other agreements binding upon
Tenaska.
Authority agrees, represents and warrants that:
(a) Authority is a legally created political subdivision and
public corporation of the State of Georgia, duly organized,
validly existing and in good standing under and by virtue of
the laws of the State of Georgia and has the corporate power
and authority to own its properties and to carry on its
business as presently conducted and as represented in this
Agreement; and
(b) Authority has the lawful authority to supply Water as
contracted for hereunder and pursuant to the terms of this
Agreement; and
(c) Authority has obtained or will obtain in a timely manner all
easements and rights-of-way, and all federal, state and local
governmental permits and other approvals needed to provide the
Water necessary to comply with the terms and provisions of
this Agreement; and
(d) Authority has had its governing body approve this Agreement so
that Authority has the authority to execute this Agreement and
comply with the terms and provisions hereof, and final
resolutions authorizing the execution and delivery of
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this Agreement by the Authority, and the performance of the
Authority's obligations hereunder, have been entered on the
minutes of the Authority.
(e) that this Agreement represents a valid and binding obligation
of the Authority, enforceable against it by its terms, and
that entering into this Agreement will not violate any rule,
regulation, charter, by laws, or other agreements binding upon
the Authority.
12. WAIVER OF SUBROGATION. Notwithstanding that any loss or damage may be
due to or result from the negligence of either of the parties hereto,
Authority and Tenaska, for themselves and their respective insureds,
each hereby waives and releases any and all rights to recover against
(i) the other party, (ii) any entity related or affiliated to such
other party, and (iii) the respective directors, officers, partners,
shareholders, employees, agents, representatives, successors and
assigns of each of the foregoing, for any loss or damage that would be
covered by any of the following insurance policies, which each Party is
hereby required to carry under this Agreement: (a) primary commercial
general liability; (b) excess commercial general liability; and (c)
automobile liability, regardless of whether the loss or damage is
within the limits of liability of such policy. Each party shall ensure
that any policy of insurance which it carries as insurance against
property damage that may occur in connection with the construction,
maintenance or operation of the Water Facilities or the Water System or
any electrical system used in conjunction therewith shall name the
other Party as additional insured as its interests may appear.
13. MISCELLANEOUS PROVISIONS.
(a) Notices. Except as otherwise provided in this paragraph, any
notice, request, authorization, invoice, payment, direction or
other communication as allowed or required under this
Agreement shall be given in writing and be delivered in person
or by first class United States certified mail, properly
addressed, return receipt requested with the required postage
prepaid, to the intended recipient as follows:
Tenaska: Tenaska Georgia Partners, L.P.
Plant Manager (Designated Representative)
Tenaska Georgia Partners, X.X.
Xxxxxxxx, Xxxxxxx 00000
and
cc: Xxxxxx Xxxxx
Suite 400
1044 N. 000 Xxxxxx
Xxxxx, Xxxxxxxx 00000-0000
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Authority: Heard County Water Authority
Attn: Executive Director (Designated Representative)
00000 Xxxxxxx 00 Xxxx
Xxxx Xxxxxx Xxx 000
Xxxxxxxx, Xxxxxxx 00000
Invoices and related payments may be sent by regular first
class United States mail and are not subject to the
requirement of being sent by certified mail. Invoices and
payments may be sent to an address, different from the above,
as may be specified upon thirty (30) days advance written
notice from time to time by the receiving Party. Such Party
shall provide notice of its desired mailing address for
invoices or payments as appropriate if different from the
above address. Either Party may change its address or
Designated Representative specified above by giving the other
Party reasonable notice of such change in accordance with this
paragraph. All notices, requests and authorization of
directions or other communications by a Party shall be deemed
delivered when mailed as provided in this paragraph or
personally delivered to the other Party. All invoices for
Water shall be deemed paid by Tenaska on the date such payment
is received by the Authority.
(b) GOVERNMENTAL AUTHORITY. This Agreement is subject to the
rules, regulations, orders and other requirements, now or
hereafter in effect, of all governmental authorities having
jurisdiction over this Agreement, the Parties or either of
them, provided, however, that the provisions of this Agreement
shall not be amended, modified or abrogated by any rules,
regulations, orders or other requirements promulgated, enacted
or issued by the Authority after the date this Agreement
becomes effective. To the extent that the Authority is
protected by sovereign immunity, the Authority hereby
acknowledges that, pursuant to the Georgia Constitution (1983
Ga. Const. Article I, Section II, Paragraph IX(c)) and
O.C.G.A. Section 50-21-1(a), the Authority waives, and that it
intends to waive, the defense of sovereign immunity in
connection with any matters related to this Agreement or the
performance of the Authority hereunder. To the extent that the
Authority is protected by sovereign immunity and it is
determined for any reason that the Authority has not
effectively waived its sovereign immunity, then the Authority
further agrees not to raise the defense of sovereign immunity
in connection with any matters related to this Agreement or
the performance of the Authority hereunder. Notwithstanding
the foregoing waiver of sovereign immunity, the Authority
reserves and is not waiving the right to raise sovereign
immunity as a defense to any civil action or actions brought
by persons or entities other than Tenaska, its Lenders, and
their successors and assigns.
(c) NO PARTNERSHIP. This Agreement shall not be interpreted or
construed to create an association, joint venture or
partnership between the Parties, nor to impose any partnership
obligations or liability on either Party. Furthermore, neither
Party
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shall have any right, power or authority to enter into any
agreement or undertaking for or on behalf of, to act as, or be
an agent or representative of, or to otherwise bind the other
Party.
(d) NONWAIVER. The failure of either Party to insist upon or
enforce strict performance by the other Party of any provision
of this Agreement or to exercise any right under this
Agreement shall not be construed as a waiver or relinquishment
to any extent of such Party's right to assert or rely upon any
such provision or right in that or any other instance; rather,
the same shall be and remain in full force and effect.
(e) ENTIRE AGREEMENT. This Agreement sets forth the entire
agreement, and supersedes any and all prior agreements of the
Parties with respect to the subject matter hereof.
(f) NO SPECIFIED THIRD-PARTY BENEFICIARIES. Except as otherwise
specifically provided in this Agreement, there are no
third-party beneficiaries of this Agreement. Nothing contained
in this Agreement is intended to confer any right or interest
on anyone other than the Parties, their respective successors,
assigns and legal representatives, and the third-party
beneficiaries, of any, specifically identified in this
Agreement.
(g) AMENDMENT. No change, amendment or modification of any
provision of this Agreement shall be valid unless set forth in
a written amendment to this Agreement signed by both parties.
Authority agrees to make any modification of the terms and
provisions of this Agreement required or requested by any
Lender, provided that no such modifications will materially
and adversely affect Authority's rights or obligations under
this Agreement unless the Authority is otherwise equitably
compensated.
(h) IMPLEMENTATION. Each Party shall take such action (including,
but not limited to, the execution, acknowledgment and delivery
of documents) as may reasonably be requested by the other
Party for the implementation or continuing performance of this
Agreement.
(i) INVALID PROVISION. The invalidity or unenforceability of any
provisions of this Agreement shall not affect the other
provisions hereof, and this Agreement shall be construed in
all respects as if such invalid and unenforceable provisions
were omitted; and to this end the terms and provisions of this
Agreement are agreed to be severable.
(j) APPLICABLE LAW. This Agreement shall be interpreted, construed
and enforced in accordance with the laws of the State of
Georgia, except to the extent such laws may be preempted by
the laws of the United States of America.
-13-
(k) JURISDICTION AND VENUE. The Parties agree that original
jurisdiction of any action arising out of this Agreement shall
lie solely in the Superior Court of Heard County, Georgia, and
that venue of any litigation arising out of this Agreement
shall be in Heard County, State of Georgia, or such other
place as the Parties may agree in writing.
(l) DISPUTES/DEFAULT.
(i) Prior to either Party's rights to claim that the
other has defaulted or otherwise breached any
obligation or other provision of this Agreement, the
Parties shall first attempt to resolve the potential
claim of default or breach in accordance with this
paragraph 13(1). Should Tenaska contest the amount of
any invoice from the Authority, Tenaska shall pay the
full amount of the disputed invoice under protest and
with a reservation of rights as specified above in
this Agreement, and by making such payment the
Authority agrees that Tenaska shall not be or be
deemed to have waived any of its rights, remedies or
defenses under this Agreement or otherwise.
(ii) In the event either Party claims the other is in
material default or either Party disputes the
validity of any agreement or warranty or
representation under this Agreement or the other's
interpretation or performance of any provision under
this Agreement, including the other's failure to
perform (any one or all considered to be a "Dispute"
), the disputing Party shall notify the other that a
Dispute exists, specifying the nature and extent of
the Dispute (the "Dispute Notice"). The Dispute
Notice shall be delivered to the other Party within
ten (10) days after the incident giving rise to the
Dispute. The Parties shall then make a good faith
attempt to resolve the Dispute. During such attempted
Dispute resolution, the Parties shall continue to
proceed in good faith and diligently perform their
respective obligations under this Agreement.
(iii) In the event the Dispute is not resolved within
twenty (20) days after the delivery of the Dispute
Notice, the disputing Party may then take legal
action in law or equity subject to the restrictions
and limitations imposed by this Agreement. The
Parties agree that the nature and subject matter of
this Agreement are so unique that Authority and
Tenaska shall also have available the remedies of
specific performance, temporary restraining orders,
injunction and other equitable remedies.
(iv) This Agreement has been reviewed and approved by each
of the Parties. In the event it should be determined
that any provision of this Agreement is uncertain or
ambiguous, the language in all parts of this
Agreement shall be in all cases construed as a whole
according to its fair meaning and not strictly
construed for or against either Party.
-14-
(m) DEFINITIONS. Capitalized terms shall have the meaning assigned
them in this Agreement. All other words shall have their
ordinary meaning and significance.
14. CONSENT AND AGREEMENT, ESTOPPEL AGREEMENTS AND LEGAL OPINION. Authority
acknowledges that, as a condition of obtaining financing for
construction of the Plant, Tenaska's Lenders will require a collateral
assignment of this Agreement. In connection therewith, such Lenders
will require Authority to execute a Consent and Agreement in the form
of Exhibit "B" attached hereto and by reference incorporated herein, as
is, or in a form satisfactory to the Lenders, provided that no
modifications to the Exhibit "B" form will materially and adversely
affect Authority's rights or obligations under this Agreement unless
the Authority is otherwise equitably compensated. Additionally, the
Authority shall deliver an opinion from legal counsel as to the
organization and standing of Authority, the validity and execution of
this Agreement, enforceability of this Agreement against Authority and
like matters. Authority agrees to execute and deliver such Consent and
Agreement and to deliver without delay such opinion of legal counsel in
the form of Exhibit "C" attached to and made a part of Exhibit "B" to
this Agreement, or as such Lenders may reasonably require and in form
and substance as the Lenders and Authority may reasonably agree. Both
the Consent and Agreement and the opinion of the Authority's legal
counsel shall be executed and delivered to Tenaska at least five (5)
days prior to the financial closing for the Plant. Tenaska shall
deliver to the Authority such resolutions as are necessary to indicate
Tenaska's authority to enter into this Agreement and such opinions of
counsel as may be reasonably necessary to indicate the validity and
enforceability of this Agreement.
15. TERMINATION BY TENASKA. The obligations of Tenaska under this Agreement
are hereby made subject to the condition precedent (which may be waived
by Tenaska by giving notice in writing of such waiver to Authority)
that:
(a) Tenaska or the Development Authority of Heard County, Georgia
("Development Authority") has closed the purchase of the Land
as evidenced by the recordation of a deed to such effect in
the real estate records of Heard County, Georgia; and
(b) Tenaska and the Development Authority have entered into a
lease with respect to the Land, among other matters, as
evidenced by the recordation of such lease in the real estate
records of Heard County, Georgia.
Upon completion of both such items, Tenaska shall be deemed to have
Elected to Proceed. If such events shall fail to occur on or before
April 1, 2001, or if Tenaska shall earlier abandon the plan to build a
power plant on the Land, then Tenaska may elect to terminate this
Agreement by written notice from Purchaser to Authority. In the event
that Tenaska terminates this Agreement, this Agreement shall terminate,
be null and void and of no further force or effect, including without
limitation extinguishing Tenaska's obligation to make a payment under
Paragraphs 4(b) and 6 hereof.
-15-
16. TERMINATION BY AUTHORITY.
(a) For purposes of this Section 16(a), the term "Milestone Date"
shall mean December 31, 1999; provided, however, that Tenaska
shall have the unilateral right and option to extend the
Milestone Date to June 30, 2000, by giving the Authority
written notice of such extension on or before December 31,
1999 and paying a non-refundable extension fee in the amount
of $100,000.00 (the "Extension Fee") to the Authority by check
on or before December 31, 1999. Should Tenaska exercise
Tenaska's extension option, then the Extension Fee paid by
Tenaska shall be credited against the Tenaska Payment.
Upon the occurrence of either of the following:
(i) the failure of Tenaska and the Heard County
Development Authority to execute a lease agreement
for the Land by the Milestone Date, as said date may
be extended in accordance herewith; or
(ii) the failure of Tenaska to obtain financing for the
construction of the Plant by the Milestone Date, as
said date may be extended in accordance herewith;
(each of the foregoing items in 16(a)(i)and (ii) being
hereinafter referred to as a "Failure to Meet a Milestone"),
the Authority may, at the Authority's election, terminate the
Agreement by written notice of termination given to Tenaska
while any Failure to Meet a Milestone remains outstanding.
Neither Tenaska nor its Lenders shall have any assured cure
period in which to cure a failure to meet a Milestone Date. In
the event that the Authority terminates this Agreement
pursuant to this Section 16(a), this Agreement shall
terminate, be null and void and of no further force or effect,
including without limitation extinguishing Tenaska's
obligation to make any payments under Paragraphs 4(b) and 6
hereof.
(b) Upon the occurrence of one or more of the following:
(i) the failure of Tenaska to begin commercial operation
by April 1, 2002;
(ii) the filing by Tenaska of any voluntary petition for
protection pursuant to the Bankruptcy laws of the
United State or of any state; or
(iii) the appointment of a receiver for Tenaska, and such
receiver is not dismissed within 180 days after
appointment;
(each of the foregoing items in 16(b)(i),(ii) and (iii) being
hereinafter referred to as a "Triggering Event"), the
Authority may, at the Authority's election, send Tenaska a
notice (the "Trigger Notice") specifying the Triggering
Event(s) that have occurred and remain outstanding, and shall
also state that the Authority
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intends to terminate the Agreement if the named Triggering
Events remain outstanding for more than forty-five (45) days
after the effective date of the Trigger Notice. Should any
Triggering Event that exists and that have been specified in a
Trigger Notice remain outstanding for more than the
above-described forty-five (45) day cure period, then the
Authority shall thereafter have the right to terminate this
Agreement by written notice of termination given to Tenaska
while the Triggering Events remain outstanding. In the event
that the Authority terminates this Agreement under this
Section 16(b), this Agreement shall terminate, be null and
void and of no further force or effect, including without
limitation extinguishing Tenaska's obligation to make any
payments under Paragraphs 4(b) and 6 hereof.
IN WITNESS WHEREOF, the Parties hereto have caused this
Agreement to be executed by their duly authorized representatives,
under seal, all as of the day and year first above written.
HEARD COUNTY WATER AUTHORITY, a public
corporation created and existing under the
laws of the State of Georgia
By: /s/ (SEAL)
-----------------------------
Its: Chairman
[CORPORATE SEAL]
[SIGNATURES CONTINUED ON NEXT PAGE]
-17-
TENASKA GEORGIA PARTNERS, L.P.
A Delaware Limited Partnership
By: Tenaska Georgia I, L.P.
a Delaware Limited Partnership,
its General Partner
By: Tenaska Georgia, Inc., a
Delaware Corporation, its
General Partner
By: /s/
-------------------------------
Its: Vice President
[CORPORATE SEAL]
-18-
EXHIBIT A
LEGAL DESCRIPTION FOR TENASKA PLANT SITE
ALL THAT TRACT OR PARCEL OF LAND SITUATE, LYING AND BEING IN LAND LOT
237 OF THE THIRD LAND DISTRICT OF HEARD COUNTY, GEORGIA, AND BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE INTERSECTION OF THE WESTERLY RIGHT OF WAY LINE OF XXX
XXXXXXXX ROAD (80 FOOT WIDTH) WITH THE SOUTHERLY RIGHT OF WAY LINE OF XXXXXX
XXXXX ROAD (PRESCRIPTIVE RIGHT OF WAY, 40 FEET, MORE OR LESS, IN WIDTH), SAID
POINT BEING THE POINT OF REFERENCE; THENCE ALONG THE SOUTHERLY RIGHT OF WAY LINE
OF XXXXXX XXXXX ROAD SOUTH 72 DEGREES 57 MINUTES 18 SECONDS WEST FOR A DISTANCE
OF 916.24 FEET TO A STEEL FENCE POST FLUSH WITH THE GROUND, SAID POINT BEING THE
POINT OF BEGINNING FOR THE HEREIN DESCRIBED PARCEL OF LAND. THENCE SOUTH 00
DEGREES 16 MINUTES 00 SECONDS WEST FOR A DISTANCE OF 902.40 FEET TO A STEEL
FENCE POST; THENCE SOUTH 02 DEGREES 39 MINUTES 49 SECONDS EAST FOR A DISTANCE OF
321.00 FEET TO A ONE INCH PIPE; THENCE SOUTH 00 DEGREES 34 MINUTES 44 SECONDS
EAST FOR A DISTANCE OF 802.62 FEET TO A ONE INCH PIPE; THENCE SOUTH 00 DEGREES
34 MINUTES 44 SECONDS EAST FOR A DISTANCE OF 291.17 FEET TO A POINT IN THE
CENTERLINE OF HILLY MILL CREEK; THENCE FOLLOWING THE COURSE OF THE CENTERLINE OF
HILLY MILL CREEK IN A WESTERLY DIRECTION, TRAVERSED AS FOLLOWS; NORTH 62 DEGREES
07 MINUTES 20 SECONDS WEST FOR A DISTANCE OF 98.34 FEET TO A POINT IN THE
CENTERLINE OF THE CREEK; THENCE SOUTH 20 DEGREES 00 MINUTES 44 SECONDS WEST FOR
A DISTANCE OF 136.80 FEET TO A POINT IN THE CENTERLINE OF THE CREEK; THENCE
NORTH 74 DEGREES 21 MINUTES 03 SECONDS WEST FOR A DISTANCE OF 223.86 FEET TO A
POINT AT THE CENTERLINE OF A GEORGIA POWER COMPANY TRANSMISSION LINE RIGHT OF
WAY (150 FOOT WIDTH); THENCE NORTH 74 DEGREES 21 MINUTES 03 SECONDS WEST FOR A
DISTANCE OF 36.90 FEET TO A POINT IN THE CENTERLINE OF THE CREEK; THENCE NORTH
47 DEGREES 24 MINUTES 20 SECONDS WEST FOR A DISTANCE OF 127.90 FEET TO A POINT
IN THE CENTERLINE OF THE CREEK; THENCE NORTH 79 DEGREES 16 MINUTES 25 SECONDS
WEST FOR A DISTANCE OF 274.76 FEET TO A POINT IN THE CENTERLINE OF THE CREEK;
THENCE NORTH 54 DEGREES 59 MINUTES 10 SECONDS WEST FOR A DISTANCE OF 188.31 FEET
TO A POINT IN THE CENTERLINE OF THE CREEK; THENCE LEAVING THE CENTERLINE OF THE
CREEK NORTH 27 DEGREES 08 MINUTES 04 SECONDS WEST FOR A DISTANCE OF 142.40 FEET
TO A POINT; THENCE NORTH 76 DEGREES 02 MINUTES 42 SECONDS WEST FOR A DISTANCE OF
170.99 FEET TO A POINT;
-19-
THENCE NORTH 54 DEGREES 14 MINUTES 27 SECONDS WEST FOR A DISTANCE OF 280.96 FEET
TO A POINT; THENCE NORTH 66 DEGREES 49 MINUTES 01 SECONDS WEST FOR A DISTANCE OF
101.90 FEET TO A POINT; THENCE SOUTH 55 DEGREES 21 MINUTES 00 SECONDS WEST FOR A
DISTANCE OF 162.95 FEET TO A POINT; THENCE NORTH 81 DEGREES 39 MINUTES 29
SECONDS WEST FOR A DISTANCE OF 406.05 FEET TO A POINT; THENCE NORTH 30 DEGREES
16 MINUTES 39 SECONDS WEST FOR A DISTANCE OF 496.12 FEET TO AN INTERSECTION OF
SAID LINE WITH THE CENTERLINE OF AN UNNAMED CREEK FROM THE NORTHEAST; THENCE
FOLLOWING THE CENTERLINE OF SAID UNNAMED CREEK TO THE NORTHEAST, TRAVERSED AS
FOLLOWS; NORTH 67 DEGREES 00 MINUTES 13 SECONDS EAST FOR A DISTANCE OF 336.28
FEET TO A POINT IN THE CENTERLINE OF THE CREEK; THENCE NORTH 64 DEGREES 26
MINUTES 52 SECONDS EAST FOR A DISTANCE OF 296.07 FEET TO A POINT IN THE
CENTERLINE OF THE CREEK; THENCE NORTH 53 DEGREES 40 MINUTES 03 SECONDS EAST FOR
A DISTANCE OF 67.68 FEET TO A POINT IN THE CENTERLINE OF THE CREEK; THENCE NORTH
16 DEGREES 14 MINUTES 29 SECONDS EAST FOR A DISTANCE OF 228.26 FEET TO A POINT
IN THE CENTERLINE OF THE CREEK; THENCE NORTH 22 DEGREES 18 MINUTES 47 SECONDS
EAST FOR A DISTANCE OF 241.49 FEET TO A POINT IN THE CENTERLINE OF THE CREEK;
THENCE NORTH 06 DEGREES 14 MINUTES 09 SECONDS EAST FOR A DISTANCE OF 71.42 FEET
TO A POINT IN THE CENTERLINE OF THE CREEK; THENCE NORTH 78 DEGREES 23 MINUTES 44
SECONDS EAST FOR A DISTANCE OF 307.88 FEET TO A POINT IN THE CENTERLINE OF THE
CREEK; THENCE NORTH 47 DEGREES 11 MINUTES 56 SECONDS EAST FOR A DISTANCE OF
157.63 FEET TO A POINT IN THE CENTERLINE OF THE CREEK; THENCE NORTH 26 DEGREES
01 MINUTES 20 SECONDS EAST FOR A DISTANCE OF 111.97 FEET TO A POINT IN THE
CENTERLINE OF THE CREEK; THENCE NORTH 54 DEGREES 06 MINUTES 33 SECONDS EAST FOR
A DISTANCE OF 128.35 FEET TO A POINT IN THE CENTERLINE OF THE CREEK; THENCE
NORTH 07 DEGREES 03 MINUTES 45 SECONDS EAST FOR A DISTANCE OF 34.61 FEET TO A
POINT IN THE CENTERLINE OF THE CREEK; THENCE LEAVING THE CREEK SOUTH 89 DEGREES
40 MINUTES 10 SECONDS EAST FOR A DISTANCE OF 290.53 FEET TO POINT AT THE
CENTERLINE OF A GEORGIA POWER COMPANY TRANSMISSION LINE EASEMENT (150 FOOT
WIDTH); THENCE SOUTH 89 DEGREES 40 MINUTES 10 SECONDS EAST FOR A DISTANCE OF
177.44 FEET TO A 12 INCH DIAMETER WOOD POST; THENCE NORTH 71 DEGREES 45 MINUTES
00 SECONDS EAST FOR A DISTANCE OF 405.46 FEET TO A STEEL FENCE POST FLUSH WITH
THE GROUND; SAID POINT BEING THE POINT OF BEGINNING.
SAID PARCEL CONTAINS 73.53 ACRES OF LAND, AND IS MORE PARTICULARLY SHOWN AS
TRACT "A" ON SHEET 1 0F 2 OF THAT CERTAIN ALTA/ACSM LAND TITLE SURVEY FOR
TENASKA, INC., FIRST AMERICAN
-20-
TITLE INSURANCE COMPANY AND OTHER PARTIES TO BE NAMED, PREPARED BY XXXXXXXXX,
XXXXXX & ASSOCIATES, INC., MACON, GEORGIA, DATED APRIL 3, 1998.
-21-
EXHIBIT "B"
CONSENT AND AGREEMENT
This CONSENT AND AGREEMENT (this Consent ), dated as of [ , 199_] among
Heard County Water Authority, a public corporation created and existing under
the laws of the State of Georgia (the Consenting Party ), Tenaska Georgia
Partners, L.P., a Delaware limited partnership (the Borrower ), and
[____________], as agent (together with its successors in such capacity, the
Agent ) for the financial institutions (the Banks**) which are or from time to
time may become a party to the Loan Agreement (as defined below). [**NOTE: IF
THE PLANT PROJECT IS FINANCED IN THE CAPITAL MARKETS, INSTEAD OF A BANK GROUP,
THE TERMINOLOGY IN THIS DOCUMENT WILL BE ADJUSTED ACCORDINGLY TO REFER TO A
BONDHOLDER AND A TRUSTEE, RATHER THAN TO BANKS AND AGENT].
RECITALS
WHEREAS, the Borrower proposes to develop, construct, own and operate a
950 MW peaking electric power generation process facility in Heard County,
Georgia (the "Project" );
WHEREAS, the Consenting Party and the Borrower have entered into a
Water Purchase Agreement, dated as of ______, 199_ (as amended, restated,
modified or otherwise supplemented from time to time in accordance with the
terms thereof, the "Assigned Agreement" );
WHEREAS, the Borrower, the Agent and the Banks have entered into a
[Construction and Term Loan and Reimbursement Agreement], dated as of the date
hereof (as amended, restated, modified or otherwise supplemented from time to
time, the "Loan Agreement" ), pursuant to which the Banks will make loans and
extend other credit to the Borrower for the purpose of financing the cost of,
and providing certain other credit support for, the construction and operation
of the Project and certain related expenses (the "Loans" );
WHEREAS, as security for the Loans and all other obligations under the
Loan Agreement, the Borrower has assigned all of its rights, title and interest
in, to and under, and granted a security interest in, the Assigned Agreement to
the Agent pursuant to the [Assignment and Security Agreement], dated as of the
date hereof, between the Borrower and the Agent (as amended, restated, modified
or otherwise supplemented from time to time, the "Security Agreement" ); and
WHEREAS, it is a condition precedent to the Banks obligations to make
the Loans under the Loan Agreement that the Consenting Party execute and deliver
this Consent.
-22-
NOW, THEREFORE, as an inducement to the Banks to make the Loans, and in
consideration of good and valuable consideration, the receipt of which is hereby
acknowledged, and intending to be legally bound, the Consenting Party hereby
agrees as follows:
SECTION 1. CONSENT TO ASSIGNMENT, ETC.
1.1 CONSENT TO ASSIGNMENT. The Consenting Party (a) acknowledges that
the Agent and the Banks are entering into the Loan Agreement and making the
Loans in reliance upon the execution and delivery by the Consenting Party of the
Assigned Agreement and this Consent, (b) consents in all respects to the pledge
and assignment to the Agent of all of the Borrower's rights, title and interest
in, to and under the Assigned Agreement pursuant to the Security Agreement, and
(c) acknowledges the right, but not the obligation, of the Agent or the Agent's
designee, in the exercise of the Agent's rights and remedies under the Security
Agreement, to make all demands, give all notices, take all actions and exercise
all rights of the Borrower in accordance with the Assigned Agreement, and agrees
that in such event the Consenting Party shall continue to perform its
obligations under the Assigned Agreement.
1.2 SUBSTITUTE OWNER. The Consenting Party agrees that, if the Agent
shall notify the Consenting Party that an event of default under the Loan
Agreement has occurred and is continuing and that the Agent has exercised its
rights (a) to have itself or its designee substituted for the Borrower under the
Assigned Agreement or (b) to sell, assign, transfer or otherwise dispose of the
Assigned Agreement to a Person, then the Agent, the Agent's designee or such
Person (each, a "Substitute Owner" ) shall be substituted for the Borrower under
the Assigned Agreement and that, in such event, the Consenting Party will
continue to perform its obligations under the Assigned Agreement in favor of the
Substitute Owner.
1.3 RIGHT TO CURE. The Consenting Party agrees that in the event of a
default by the Borrower in the performance of any of its obligations under the
Assigned Agreement, or upon the occurrence or non-occurrence of any event or
condition under the Assigned Agreement which would immediately or with the
passage of any applicable grace period or the giving of notice, or both, enable
the Consenting Party to terminate or suspend its obligations or exercise any
other right or remedy under the Assigned Agreement or under applicable law
(hereinafter a "default" ), the Consenting Party will continue to perform its
obligations under the Assigned Agreement and will not exercise any such right or
remedy until it first gives prompt written notice of such default to the Agent
and affords the Agent, the Agent's designee and the Banks a period of at least
sixty (60) days (or if such default is a non-monetary default, such longer
period not to exceed one hundred eighty (180) days as is required so long as any
such party has commenced and is diligently pursuing appropriate action to cure
such default) from receipt of such notice to cure such default; provided,
however, that if any such party is prohibited from curing any such
-23-
default by any process, stay or injunction issued by any governmental authority
or pursuant to any bankruptcy or insolvency proceeding involving the Borrower,
then the time periods specified in this Section 1.3 for curing a default shall
be extended for the period of such prohibition. Agent and Banks shall have no
right to require Consenting Party to enter into a new agreement under Section
1.4 below or cure a default under the Assigned Agreement pursuant to this
Section 1.3 if the Assigned Agreement was terminated by the Consenting Party
pursuant to the termination option contained in Section 16 (a) of the Assigned
Agreement, but Agent and Banks shall have the right to require Consenting Party
to enter into a new agreement under Section 1.4 below and to cure any default
and/or Triggering Event under the Assigned Agreement pursuant to this Section
1.3 if the Assigned Agreement was terminated by the Consenting Party pursuant to
the termination option contained in Section 16(b) of the Assigned Agreement.
1.4 NO TERMINATION, ASSIGNMENTS OR MATERIAL AMENDMENTS. The Consenting
Party will not, without the prior written consent of the Agent, enter into any
consensual cancellation or termination of the Assigned Agreement, or assign or
otherwise transfer any of its right, title and interest thereunder or consent to
any such assignment or transfer by the Borrower. The Consenting Party will not
enter into any material amendment, supplement or other modification of the
Assigned Agreement (an "Amendment" ) until after the Agent has been given ten
(10) days (excluding Saturdays, Sundays and any days which are a legal holiday
in New York or any days on which banking institutions are authorized or required
by law or government action to close) prior written notice of the proposed
Amendment by the Borrower (a copy of which notice will be provided to the
Consenting Party by the Borrower), and will not then enter into such Amendment
if the Consenting Party has, within such ten (10) day period, received a copy of
(i) the Agent's objection to such Amendment or (ii) the Agent's request to the
Borrower for additional information with respect to such Amendment.
In the event that the Assigned Agreement is terminated as a result of
any bankruptcy or insolvency proceeding affecting the Borrower, the Consenting
Party will, at the option of the Agent enter into a new agreement with the Agent
(or its transferee or other nominee that owns or leases the Project) having
terms substantially the same as the terms of the Assigned Agreement, provided
that Agent exercises such option by written notice given to Consenting Party
within sixty (60) days after the date Consenting Party give Agent notice of such
termination.
1.5 NO LIABILITY. In the event that the Assigned Agreement is
terminated as a result of any bankruptcy or insolvency proceeding affecting the
Borrower, the Consenting Party will, at the option of the Agent enter into a new
agreement with the Agent (or its transferee or other nominee that owns or leases
the Project) having terms substantially the same as the terms of the Assigned
Agreement, provided that (i) such option to enter into a new agreement is
exercised by the Agent within sixty (60) days after Consenting Party gives the
Banks and Agent written notice of such termination, and (ii) the Banks or Agent
-24-
pay any amounts due under the Assigned Agreement for Water delivered to Tenaska
that remains outstanding and unpaid as of the date of the new agreement.
The Consenting Party acknowledges and agrees that neither the Agent,
the Agent s designee or the Banks shall have any liability or obligation under
the Assigned Agreement as a result of this Consent, the Security Agreement or
otherwise, nor shall the Agent, the Agent's designee or the Banks be obligated
or required to (a) perform any of the Borrower's obligations under the Assigned
Agreement, except, in the case of the Agent or the Agent's designee, during any
period in which the Agent or the Agent's designee is a Substitute Owner pursuant
to Section 1.2, in which case (i) the obligations of such Substitute Owner shall
be no more than that of the Borrower under such Assigned Agreement, (ii) such
Substitute Owner shall have no personal liability to the Consenting Party for
the performance of such obligations and (iii) the sole recourse of the
Consenting Party shall be to such Substituted Owner s interest in the Project,
or (b) take any action to collect or enforce any claim for payment assigned
under the Security Agreement.
1.6 PERFORMANCE UNDER ASSIGNED AGREEMENT. The Consenting Party shall
perform and comply with all material terms and provisions of the Assigned
Agreement to be performed or complied with by it and shall maintain the Assigned
Agreement in full force and effect in accordance with its terms.
1.7 DELIVERY OF NOTICES. The Consenting Party shall deliver to the
Agent, concurrently with the delivery thereof to the Borrower, a copy of each
notice, request or demand given by the Consenting Party pursuant to the Assigned
Agreement.
1.8 ACKNOWLEDGMENTS. The Consenting Party agrees to execute such
acknowledgments or other similar instruments as the Agent shall reasonably
request in connection with the transactions provided for in this Consent.
SECTION 2. PAYMENTS UNDER THE ASSIGNED AGREEMENT
The Consenting Party will pay all amounts payable by it under the
Assigned Agreement, if any, in the manner required by the Assigned Agreement
directly into the account as shall be specified from time to time by the Agent
to the Consenting Party in writing.
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.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE CONSENTING PARTY
In order to induce the Agent and the Banks to enter into the Loan
Agreement and to make the Loans, the Consenting Party makes the following
representations and
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warranties, which shall survive the execution and delivery of this Consent and
the Assigned Agreement and the consummation of the transactions contemplated
hereby and thereby.
3.1 ORGANIZATION. The Consenting Party is a legally created political
subdivision and public corporation of the State of Georgia, duly organized,
validly existing, qualified, authorized to do business and in good standing
under and by virtue of the laws of the State of Georgia, and has all requisite
power and authority, corporate and otherwise, to enter into and to perform its
obligations hereunder and under the Assigned Agreement, and to carry out the
terms hereof and thereof and the transactions contemplated hereby and thereby.
3.2 AUTHORIZATION. The execution, delivery and performance by the
Consenting Party of this Consent and the Assigned Agreement have been duly
authorized by all necessary corporate and member action on the part of the
Consenting Party and do not require any approval or consent of any holder (or
any trustee for any holder) of any indebtedness or other obligation of (a) the
Consenting Party or (b) any other person or entity, except approvals or consents
which have previously been obtained.
3.3 EXECUTION AND DELIVERY: BINDING AGREEMENTS Each of this Consent and
the Assigned Agreement is in full force and effect, has been duly executed and
delivered on behalf of the Consenting Party by the appropriate officers of the
Consenting Party, and constitutes the legal, valid and binding obligation of the
Consenting Party, enforceable against the Consenting Party in accordance with
its terms, except as the enforceability thereof may be limited by (a)
bankruptcy, insolvency, reorganization, or other similar laws affecting the
enforcement of creditors rights generally and (b) general equitable principles
(whether considered in a proceeding in equity or at law).
3.4 LITIGATION. There is no legislation, litigation, action, suit,
proceeding or investigation pending or (to the best of the Consenting Party's
knowledge after due inquiry) threatened against the Consenting Party before or
by any court, administrative agency, arbitrator or governmental authority, body
or agency which, if adversely determined, individually or in the aggregate, (a)
could adversely affect the performance by the Consenting Party of its
obligations hereunder or under the Assigned Agreement, or which could modify or
otherwise adversely affect the Approvals (as defined in Section 3.6), (b)
questions the validity, binding effect or enforceability hereof or of the
Assigned Agreement, any action taken or to be taken pursuant hereto or thereto
or any of the transactions contemplated hereby or thereby or (c) could have a
material adverse effect upon (i) the business, operations, properties, assets,
or condition (financial or otherwise) of the Consenting Party, (ii) the ability
of the Consenting Party to perform under the Assigned Agreement or this Consent,
(iii) the business, operations, properties, assets, prospects or condition
(financial or otherwise) of the Project, (iv) the value, validity, perfection
and enforceability of the liens granted to the Agent under the Security
Agreement and other security documents or (v) the ability of the Agent or the
Banks to
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enforce any of their material rights and remedies under the Assigned Agreement
or this Consent (collectively, a " Material Adverse Effect" ).
3.5 COMPLIANCE WITH OTHER INSTRUMENTS. The Consenting Party is not in
violation of its charter or by-laws, and the execution, delivery and performance
by the Consenting Party of this Consent and the Assigned Agreement and the
consummation of the transactions contemplated hereby and thereby will not result
in any violation of, breach of or default under any term of its charter or
by-laws, or of any contract or agreement to which it is a party or by which it
or its property is bound, or of any license, permit, franchise, judgment, writ,
injunction, decree, order, charter, law, ordinance, rule or regulation
applicable to it, except for any such violations which, individually or in the
aggregate, would not have a Material Adverse Effect on the Consenting Party.
3.6 GOVERNMENT CONSENT. No consent, order, authorization, waiver,
approval or any other action, or registration, declaration or filing with, any
person, board or body, public or private (collectively, the "Approvals" ), is
required to be obtained by the Consenting Party in connection with the
execution, delivery or performance of the Assigned Agreement or the consummation
of the transactions contemplated thereunder, except as listed in Exhibit B
hereto. All such Approvals listed on Exhibit B, except for those set forth in
Part II thereof (the "Deferred Approvals" ), are Final (as defined below). An
Approval shall be "Final" if it has been validly issued, is in full force and
effect, is not subject to any condition (other than compliance with the terms
thereof), does not impose restrictions or requirements inconsistent with the
terms of the Assigned Agreement, and is final and not subject to any appeal. The
Consenting Party reasonably believes that each Deferred Approval will be
obtained in the ordinary course of business prior to the time when such Deferred
Approval is required to be Final.
3.7 NO DEFAULT OR AMENDMENT. Neither the Consenting Party nor, to the
best of the Consenting Party's knowledge after due inquiry, any other party to
the Assigned Agreement is in default of any of its obligations thereunder. The
Consenting Party has no existing counterclaims, offsets or defenses against the
Borrower. The Consenting Party and, 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. To the best of the Consenting
Party's knowledge after due inquiry, no event or condition exists which would
either immediately or with the passage of any applicable grace period or giving
of notice, or both, enable either the Consenting Party or the Borrower to
terminate or suspend its obligations under the Assigned Agreement. The Assigned
Agreement has not been amended, modified or supplemented in any manner.
3.8 NO PREVIOUS ASSIGNMENTS. The Consenting Party has no notice of, and
has not consented to, any previous assignment of all or any part of its rights
under the Assigned Agreement.
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3.9 REPRESENTATIONS AND WARRANTIES. 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.
SECTION 4. OPINION OF COUNSEL The Consenting Party shall deliver an
opinion of counsel relating to the Assigned Agreement and this Consent
substantially in the form of Exhibit C hereto, and addressing such other matters
as may be requested by the Borrower and the Agent.
SECTION 5. MISCELLANEOUS
5.1 NOTICES. All notices and other communications hereunder shall be in
writing, shall be deemed given upon receipt thereof by the party or parties to
whom such notice is addressed, shall refer on their face to the Assigned
Agreement (although failure to so refer shall not render any such notice or
communication ineffective), shall be sent by first class mail, by personal
delivery or by a nationally recognized guaranteed overnight delivery service
(e.g. UPS Next Day Air), and shall be directed as follows:
If to the Consenting Party: Heard County Water Authority
00000 Xxxxxxx
00 Xxxx Xxxxxxxx, Xxxxxxx
Attention: Executive Director
Telephone: ( )
Fax: ( )
If to the Borrower: Tenaska Georgia Partners, L.P.
0000 X. Xxxxx Xxxx., Xxxxx 000
Xxxxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxx
Telephone: ( )
Fax: (000) 000-0000
with a copy to:
(i) Plant Manager (Designated
Representative)
Tenaska Georgia Partners, X.X.
Xxxxxxxx, Xxxxxxx 00000
(ii) Xxxxxx Xxxxx
0000 Xxxxx 000xx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxxx 00000-0000
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If to the Agent: [______________________]
Attention: [___________]
Telephone: ( )
Fax: ( )
The above parties may, by notice given hereunder, designate any further or
different addresses to which subsequent notices or other communications shall be
sent.
5.2 GOVERNING LAW; SUBMISSION TO JURISDICTION.
(a) THIS CONSENT 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 and
any action for enforcement of any judgment in respect thereof may be brought in
the courts of the State of Georgia or of the United States of America for the
Northern District of Georgia, and, by execution and delivery of this Consent,
each of the Consenting Party, the Borrower, and the Agent 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, the Borrower and the Agent 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 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
Agent or its designees 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.
5.3 COUNTERPARTS. This Consent may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
5.4 HEADINGS DESCRIPTIVE. The headings of the several sections and
subsections of this Consent are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Consent.
5.5 SEVERABILITY. In case any provision in or obligation under this
Consent shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
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5.6 AMENDMENT; WAIVER. Neither this Consent nor any of the terms
hereof may be terminated, amended, supplemented, waived or modified except by an
instrument in writing signed by the Consenting Party, the Borrower, and the
Agent.
(a) The Consenting Party's obligations hereunder are absolute
and unconditional, and the Consenting Party has no right, and shall have no
right, to terminate this Consent or to be released, relieved or discharged from
any obligation or liability hereunder until the occurrence of one of the
following: (1) all Loans and all other obligations under the Loan Agreement have
been indefeasibly satisfied in full, notice of which shall be provided by the
Agent when all such obligations have been satisfied, (2) the expiration of the
thirty (30) year Term of the Assigned Agreement, or (3) provided that the Banks
and Agent have not elected to enter into a new agreement pursuant to the terms
of Section 1.4 above, the termination of the Assigned Agreement in accordance
with its terms and in accordance with the terms of this Consent.
(b) In the event that the Agent delivers a termination notice
to the Consenting Party pursuant to this Section 5.7, this Consent shall
terminate for all purposes as to the Agent and the Loan Agreement and the Agent
and the Banks shall have no further rights or obligations under this Consent;
provided, however, that the Consenting Party agrees that this Consent shall
continue to apply for the benefit of the Borrower and the providers of new
credit facilities to replace the Loan Agreement (the New Lender ) provided that
(i) within five (5) days following delivery by the Agent to the Consenting Party
of the Termination Notice pursuant to this Section 5.7, the New Lender or an
agent, trustee or other representative of the New Lender, shall have notified
the Consenting Party that it undertakes the prospective obligations of the
"Agent" under this Consent, and shall have supplied substitute notice address
information for Section 5.1 and new payment instructions (countersigned on
behalf of the Borrower) for Exhibit A, (ii) the amount of the new credit
facilities do not exceed the original amount of the commitment by the Banks to
make loans and extend other credit facilities under the Loan Agreement, and
(iii) thereafter, (w) the term "Loans" under this Consent will be deemed to
refer to the new credit facilities, (x) the term "Agent" or "Banks" shall be
deemed to refer to the New Lender or any agent or trustee for the New Lender,
(y) the term "Loan Agreement" shall be deemed to refer to the credit agreement,
indenture or other instrument providing for the new credit facilities and (z)
the term Security Agreement shall be deemed to refer to the security agreement
under which the Assigned Agreement is assigned as collateral to secure
performance of the obligations of the Borrower under the new credit facilities.
5.8 SUCCESSORS AND ASSIGNS. This Consent shall be binding upon the
parties hereto and their permitted successors and assigns and shall inure to the
benefit of the parties, their designees and their respective permitted
successors and assigns.
5.9 FURTHER ASSURANCES. The parties hereto hereby agree to execute and
deliver all such instruments and take all such action as may be necessary to
effectuate fully the purposes of this Consent.
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TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE CONSENTING PARTY, THE
BORROWER AND THE AGENT HEREBY IRREVOCABLY WAIVE ALL RIGHT OF TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THIS
CONSENT.
5.10. SURVIVAL. All agreements, statements, representations and
warranties made by the Consenting Party herein shall be considered to have been
relied upon by the Agent and the Banks and shall survive the execution and
delivery of this Consent.
5.11 NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on the part
of the Agent in exercising any right, power or privilege hereunder and no course
of dealing between the Consenting Party and the Agent shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other exercise, or the further exercise, of any
other right, power or privilege hereunder. The rights and remedies herein
expressly provided are cumulative and not exclusive of any rights or remedies
which the Agent would otherwise have.
5.12 WAIVER OF SOVEREIGN IMMUNITY. To the extent that the Authority
is protected by sovereign immunity, the Authority hereby acknowledges that,
pursuant to the Georgia Constitution (1983 Ga. Const. Article I, Section II,
Paragraph IX(c)) and O.C.G.A. Section 50-21-1(a), the Authority waives, and that
it intends to waive, the defense of sovereign immunity in connection with any
matters related to this Agreement or the performance of the Authority hereunder.
To the extent that the Authority is protected by sovereign immunity and it is
determined for any reason that the Authority has not effectively waived its
sovereign immunity, then the Authority further agrees not to raise the defense
of sovereign immunity in connection with any matters related to this Agreement
or the performance of the Authority hereunder. Notwithstanding the foregoing
waiver of sovereign immunity, the Authority reserves and is not waiving the
right to raise sovereign immunity as a defense to any civil action or actions
brought by persons or entities other than Agent, the Banks, Tenaska, and their
respective successors and assigns.
IN WITNESS WHEREOF, the Consenting Party, the Borrower and the Agent
have caused this Consent to be duly executed and delivered by their respective
officers thereunto duly authorized as of the date first above written.
HEARD COUNTY WATER AUTHORITY
By:
----------------------------------
Name:
Title:
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TENASKA GEORGIA PARTNERS, L.P.
By: TENASKA GEORGIA I, L.P.,
as General Partner
By: TENASKA GEORGIA, INC.,
as General Partner
By:
-------------------------
Name:
Title:
[SIGNATURES CONTINUED ON NEXT PAGE]
[_________________], as Agent
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
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Exhibit A to
CONSENT AND AGREEMENT
[Reserved]
-1-
Exhibit B to
CONSENT AND AGREEMENT
APPROVALS
-1-
Exhibit C to
CONSENT AND AGREEMENT
FORM OF OPINION OF COUNSEL
[Agent]
[______________]
Tenaska Georgia Partners, L.P.
0000 X. Xxxxx Xxxx., Xxxxx 000
Xxxxxxxxx, Xxxxx 00000
Re: The 950 MW peaking electric power generation process facility
Located in Heard County, Georgia (the "Project" ).
-------------------------------------------------------------
Dear Ladies and Gentlemen:
I have acted as counsel to Heard County Water Authority, a public
corporation and political subdivision of the State of Georgia created and
existing under the laws of the State of Georgia (the "Authority"), in connection
with the Project to be constructed by Tenaska Georgia Partners, L.P., a Delaware
limited partnership (the "Borrower"), for which the Authority will provide the
supply and use of water pursuant to the Water Purchase Agreement, dated as of
[______, 199_] between the Borrower and the Authority (the "Agreement"). This
opinion is being provided in connection with the transactions contemplated by
the terms of the [Construction and Term and Reimbursement Loan Agreement], dated
as of the date hereof by and among the Borrower, the financial institutions
which are or from time to time may become a party thereto (the "Banks") and
[____________], as agent for the Banks (together with its successors in such
capacity, the "Agent").
In connection with this opinion, I have examined originals or copies,
certified or otherwise identified to my satisfaction, of the following:
(i) the Agreement;
(ii) the Consent and Agreement of the Authority, dated as
of the date hereof (the "Consent");
(iii) the Charter, By-laws, and any rules and regulations
governing of the Authority; and
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(iv) the resolutions authorizing the execution and
delivery of the Agreement and the Consent, duly
adopted by the Board of Directors of the Authority.
The documents referred to in items (iii) and (iv) above are hereinafter
collectively referred to as the Governing Documents and the Agreement and the
Consent are hereinafter collectively referred to as the "Documents". In
addition, I have examined and am familiar with originals or copies, certified or
otherwise identified to my satisfaction, of such other documents as I have
deemed necessary or appropriate as a basis for the opinions set forth below.
In my examination I have assumed the genuineness of all signatures, the
authenticity of all documents submitted to me as originals, the conformity to
original documents of all documents submitted to me as certified or photostatic
copies, and the authenticity of the originals of such copies. In rendering the
opinions expressed below, I have further assumed, without any independent
investigation or verification of any kind, that each Document I have examined is
the valid and binding obligation of each party thereto other than the Authority.
This opinion assumes that each of the Documents has been duly executed and
delivered by, constitute legal, valid and binding obligations of, and are
enforceable in accordance with their respective terms against, each party to
such Documents other than the Authority.
I am admitted to the bar of the State of Georgia. I express no opinion
as to the law of any jurisdiction other than (i) the laws of the State of
Georgia and (ii) the federal laws of the United States of America.
Based upon the foregoing and subject to the limitations,
qualifications, exceptions and assumptions set forth herein, I am of the opinion
that:
1. The Authority is a a public corporation and political
subdivision of the State of Georgia created and existing under the laws
of the State of Georgia duly organized, validly existing and in good
standing under the laws of the State of Georgia. The Authority is duly
qualified to transact business in each jurisdiction in which it owns or
leases real property or in which the nature of its business requires it
to be so qualified.
2. The Authority has full corporate power and authority to
enter into, deliver and perform its obligations under each of the
Documents.
3. The Authority has taken all necessary corporate action to
authorize the execution, delivery and performance by it of each
Document.
4. The Authority has duly executed and delivered each
Document.
5. Each Document constitutes the valid and binding obligation
of the Authority enforceable against the Authority in accordance with
its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
enforcement of creditors rights generally and by general principles
-2-
of equity (regardless of whether enforcement is sought in a proceeding
in equity or at law).
6. The execution, delivery and performance by the Authority of
the Documents will not: (i) contravene any applicable provision of any
law, regulation, ruling, order or decree of any governmental authority
to which or by which the Authority or any of its property or assets is
subject or bound or (ii) violate any provision of the Governing
Documents of the Authority. The execution, delivery and performance by
the Authority of the Documents do not and will not, to the best of my
knowledge after due inquiry, conflict with, result in any breach of, or
constitute a default under, or result in the creation or imposition of
(or the obligation to create or impose) any lien or encumbrance upon
any of the property or assets of the Authority pursuant to any
provision of any securities issued by the Authority, or any indenture,
mortgage, deed of trust, contract, undertaking, document, instrument or
other agreement to which the Authority is a party or by which it or any
of its property or assets is bound.
7. No consent, order, authorization, waiver, approval or any
other action, or registration, declaration or filing with, any person,
board or body, public or private (collectively, the "Approvals"), is
required to be obtained by the Authority in connection with the
execution, delivery or performance of the Documents or the consummation
of the transactions contemplated thereby, except as listed on Schedule
A hereto. All such Approvals listed on Schedule A, except for those set
forth in Part II thereof, are Final (as defined below). An Approval
shall be Final if it has been validly issued, is in full force and
effect, is not subject to any condition (other than compliance with
terms thereof), does not impose restrictions or requirements
inconsistent with the terms of the Documents, and is final and not
subject to any appeal.
8. To the best of my knowledge after due inquiry, there are no
pending or threatened actions or proceedings affecting the Authority or
any of its properties or assets that individually or in the aggregate
could prohibit or limit in any way the execution, delivery and
performance by the Authority of any of the Documents.
This opinion is being furnished only to the Agent, the Borrower, the
parties identified on Schedule B hereto and their respective successors and
assigns and is solely for the benefit of such parties; provided that assignees
of, or participants in, the interests of the Banks may rely on this opinion as
if it were addressed to them.
Very truly yours,
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Schedule A
APPROVALS
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Schedule B
THE BANKS
WATERPURCHASE
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