Exhibit 4.4
EXECUTION COPY
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ASSIGNMENT AND SECURITY AGREEMENT
Dated as of November 1, 1999
by
TENASKA GEORGIA PARTNERS, L.P.
to
THE CHASE MANHATTAN BANK,
as Collateral Agent
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
1.1. DEFINITIONS................................................2
ARTICLE II
ASSIGNMENT AND GRANT OF SECURITY INTERESTS
2.1. ASSIGNMENT AND GRANT OF SECURITY INTEREST..................6
2.2. SECURITY INTEREST ABSOLUTE.................................7
2.3. POWER OF ATTORNEY..........................................7
ARTICLE III
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS
3.1. VALIDITY, PERFECTION AND PRIORITY OF LIEN..................9
3.2. NO LIENS; OTHER FINANCING STATEMENTS......................10
3.3. CHIEF EXECUTIVE OFFICE; NAME; RECORDS.....................11
3.4. FINANCING STATEMENTS......................................11
3.5. ADDITIONAL STATEMENTS AND SCHEDULES.......................11
3.6. WAREHOUSE RECEIPTS NON-NEGOTIABLE.........................11
ARTICLE IV
SPECIAL PROVISIONS CONCERNING INVENTORY AND EQUIPMENT
4.1. Maintenance of Insurance; Protection of Security Interest.12
4.2. Location of Inventory and Equipment.......................12
4.3. INVENTORY RECORDS.........................................12
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ARTICLE V
SPECIAL PROVISIONS CONCERNING RECEIVABLES,
CONTRACTS AND INSTRUMENTS
5.1. ADDITIONAL REPRESENTATIONS AND WARRANTIES.................12
5.2. MAINTENANCE OF RECORDS; LEGENDING OF RECORDS..............13
5.3. MODIFICATION OF TERMS; NO PAYMENT TO PARTNERSHIP..........13
5.4. DIRECTION TO ACCOUNT DEBTORS, CONTRACTING PARTIES.........14
5.5. INSTRUMENTS...............................................14
ARTICLE VI
SPECIAL PROVISIONS CONCERNING CONTRACTS
6.1. SECURITY INTEREST IN CONTRACT RIGHTS......................14
6.2. FURTHER PROTECTION........................................15
6.3. LIABILITIES UNDER RECEIVABLES AND CONTRACTS...............15
6.4. REMEDIES..................................................16
ARTICLE VII
REMEDIES UPON OCCURRENCE OF A TRIGGER EVENT
7.1. REMEDIES; OBTAINING THE COLLATERAL UPON DEFAULT...........16
7.2. REMEDIES; DISPOSITION OF THE COLLATERAL...................18
7.3. WAIVER....................................................18
7.4. APPLICATION OF PROCEEDS; PARTNERSHIP LIABLE FOR
DEFICIENCY................................................20
7.5. NO WAIVER; REMEDIES CUMULATIVE............................20
7.6. DISCONTINUANCE OF PROCEEDINGS.............................20
ARTICLE VIII
MISCELLANEOUS
8.1. NOTICES...................................................21
8.2. AMENDMENT.................................................21
8.3. SUCCESSORS AND ASSIGNS....................................21
8.4. SURVIVAL..................................................21
8.5. HEADINGS DESCRIPTIVE......................................22
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8.6. SEVERABILITY..............................................22
8.7. PARTNERSHIP'S DUTIES......................................22
8.8. CONTINUING SECURITY INTEREST..............................22
8.9. TERMINATION; RELEASE......................................22
8.10. REINSTATEMENT............................................22
8.11. COUNTERPARTS.............................................23
8.12. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF
JURY TRIAL...............................................23
8.13. AUTHORITY OF COLLATERAL AGENT............................24
8.14. CONFLICT WITH COLLATERAL AGENCY AGREEMENT................24
8.15. INDEMNITIES AND EXPENSES.................................24
8.16. ENTIRE AGREEMENT.........................................24
SCHEDULE I - Filing Offices
SCHEDULE II - Instruments
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ASSIGNMENT AND SECURITY AGREEMENT
ASSIGNMENT AND SECURITY AGREEMENT, dated as of November 1,
1999 (this "SECURITY AGREEMENT"), made by TENASKA GEORGIA PARTNERS, L.P., a
Delaware limited partnership (together with its successors and assigns, the
"PARTNERSHIP"), in favor of THE CHASE MANHATTAN BANK, as Collateral Agent and
grantee for the benefit of the Senior Parties or certain of them as provided in
the Collateral Agency Agreement.
W I T N E S S E T H:
WHEREAS, the Partnership proposes to develop, construct,
operate and maintain a 936 MW (nominal rating) natural gas-fired simple-cycle
electric generating plant in Heard County, Georgia (the "PROJECT").
WHEREAS, the Partnership intends to finance the development,
construction and start-up of the Project, through the issuance of certain bonds
(the "BONDS") pursuant to a trust indenture, dated as of November 1, 1999
between the Partnership and The Chase Manhattan Bank, as Trustee (the
"INDENTURE").
WHEREAS, the Project will be owned by the Development
Authority of Heard County, Georgia, a public corporation created and existing
under the laws of the State of Georgia (the "AUTHORITY"), and will be leased to
the Partnership pursuant to a Lease Agreement dated as of November 1, 1999
between the Authority and the Partnership.
WHEREAS, the Authority will issue its Industrial Development
Revenue Bonds (the "AUTHORITY BONDS") pursuant to a trust indenture, dated as of
November 1, 1999 between the Authority and The Chase Manhattan Bank, as
Authority Trustee (the "AUTHORITY INDENTURE").
WHEREAS, the Authority Bonds will be purchased by the
Partnership and pledged to the Collateral Agent, along with certain other
collateral to secure the obligations of the Partnership under the Bonds.
WHEREAS, in order to satisfy certain requirements of the
Partnership under the Financing Documents, the Partnership may incur
Indebtedness as permitted under the Common Agreement in connection with the
issuance of the DSR
LOC by the DSR LOC Provider pursuant to the DSR LOC Reimbursement Agreement and
the PPA LOC by the PPA LOC Provider pursuant to the PPA LOC Reimbursement
Agreement.
WHEREAS, pursuant to the terms of the Common Agreement, the
Partnership may incur additional Permitted Indebtedness which will be secured by
the Collateral.
WHEREAS, to secure its obligations under the Financing
Documents, the Partnership is entering into this Security Agreement with the
Collateral Agent, pursuant to which the Collateral Agent, acting on behalf of
the Senior Parties or certain of them as provided in the Collateral Agency
Agreement, will obtain a continuing Lien on and perfected security interest in
the Collateral.
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITIONS. (a) For all purposes of this
Security Agreement, capitalized terms used but not otherwise defined herein
shall have the meaning set forth in APPENDIX A to the Common Agreement.
(b) The following terms shall have the following respective
meanings unless the context otherwise requires. Such definitions shall be
equally applicable to the singular and plural forms of the terms defined.
Commercial terms used herein and not otherwise defined shall have the meaning
specified for such terms in the Uniform Commercial Code as in effect in the
State of New York.
"CHATTEL PAPER" shall mean "chattel paper" as such term is
defined in the Uniform Commercial Code as in effect in any relevant
jurisdiction.
"CONTRACT RIGHTS" shall have the meaning specified in SECTION
6.1 (Security Interest in Contract Rights).
"CONTRACTS" shall mean all contracts to which the Partnership
now is, or hereafter will be, bound, as a party, beneficiary or assignee,
including, without
limitation, all of the Project Documents, including all exhibits thereto, and
all other instruments, agreements and documents executed and delivered with
respect to such contracts, all Third Party Consents, and all revenues, rentals,
Proceeds and other sums of money due and to become due from any of the
foregoing, as the same may be modified, supplemented or amended from time to
time in accordance with their terms.
"DOCUMENTS" shall mean "documents" as such term is defined in
the Uniform Commercial Code as in effect in any relevant jurisdiction.
"EQUIPMENT" shall mean "equipment" as such term is defined in
the Uniform Commercial Code as in effect in any relevant jurisdiction, now or
hereafter owned or leased by the Partnership and, in any event, shall include,
but shall not be limited to, all equipment used in connection with the Project,
all machinery, manufacturing equipment, data processing equipment, computers,
tools, office equipment, appliances, furniture, furnishings, fixtures, vehicles,
motor vehicles, and any manuals, instructions, blueprints, computer software and
similar items which relate to the above, and any and all additions,
substitutions and replacements of any of the foregoing, wherever located,
together with all improvements thereon and all attachments, components, parts,
equipment and accessories installed thereon or affixed thereto.
"EVENT OF DEFAULT" shall mean an "event of default" under the
Common Agreement.
"FIXTURES" shall mean "fixtures" as such term is defined in
the Uniform Commercial Code as in effect in any relevant jurisdiction and in any
event shall include all goods now or hereafter attached to, placed on, or
incorporated into the Site.
"GENERAL INTANGIBLES" shall mean "general intangibles" as such
term is defined in the Uniform Commercial Code as in effect in any relevant
jurisdiction, now or hereafter owned by the Partnership and shall include, but
not be limited to, all trademarks, trademark applications, trademark
registrations, tradenames, fictitious business names, business names, company
names, business identifiers, prints, labels, trade styles and service marks
(whether or not registered), including logos and/or designs, copyrights,
patents, patent applications, goodwill of the Partnership's business symbolized
by any of the foregoing, trade secrets, license rights, license agreements,
permits, franchises, and any rights to tax refunds to which the Partnership is
now or hereafter may be entitled.
"INSTRUMENTS" shall mean "instruments" as such term is defined
in the Uniform Commercial Code as in effect in any relevant jurisdiction.
"INVENTORY" shall mean all of the inventory of the Partnership
of every type or description, including all "inventory" as such term is defined
in the Uniform Commercial Code as in effect in any relevant jurisdiction, now
owned or hereafter acquired and wherever located, including without limitation,
whether raw, in process or finished, all materials usable in processing the same
and all documents of title covering any inventory, including but not limited to
work in process, materials used or consumed in the Partnership's business, now
owned or hereafter acquired or manufactured by the Partnership and held for sale
in the ordinary course of its business; all present and future substitutions
therefor, parts and accessories thereof and all additions thereto; and all
proceeds thereof and products of such inventory in any form whatsoever.
"INVENTORY RECORDS" shall mean all books, records and other
property and General Intangibles at any time relating to the Inventory.
"OBLIGATIONS" shall mean, collectively, all Indebtedness,
liabilities and obligations of the Partnership (including, but not limited to,
principal, interest, fees, reimbursement obligations, penalties, indemnities and
legal and other expenses, whether due after acceleration or otherwise) to the
Senior Parties (of whatsoever nature and howsoever evidenced) under or pursuant
to the Indenture, the Bonds, the DSR LOC Reimbursement Agreement, the PPA LOC
Reimbursement Agreement, any Working Capital Line Facility, any Additional
Bonds, and any other Financing Document (or any other similar agreement entered
into by the Partnership with respect to the incurrence of Permitted Indebtedness
(other than Subordinated Debt)), to the extent arising on or prior to the Debt
Termination Date (as defined in the Collateral Agency Agreement), in each case,
direct or indirect, primary or secondary, fixed or contingent, now or hereafter
arising out of or relating to any such agreements.
"PROCEEDS" shall mean "proceeds" as such term is defined in
the Uniform Commercial Code as in effect in any relevant jurisdiction or under
other relevant law and, in any event, shall include, but not be limited to, (i)
any and all proceeds of any insurance, indemnity, warranty or guaranty payable
to the Collateral Agent or the Partnership from time to time, and claims for
insurance, indemnity, warranty or guaranty effected or held for the benefit of
the Partnership, with respect to any of the Collateral, (ii) any and all
payments (in any form whatsoever) made or due and payable to the Partnership
from time to time in connection with any requisition, confiscation,
condemnation, seizure or forfeiture of all or any part of the Collateral by any
Governmental Authority (or any person acting under color of
Governmental Authority) and (iii) any and all other amounts from time to time
paid or payable under or in connection with any of the Collateral.
"RECEIVABLES" shall mean any "account" as such term is defined
in the Uniform Commercial Code as in effect in any relevant jurisdiction and in
any event shall include, but not be limited to, all of the Partnership's rights
to payment for goods (including, without limitation, electricity) sold or
leased, or services performed, by the Partnership, whether now in existence or
arising from time to time hereafter, including, without limitation, rights
evidenced by an account, note, contract, contract rights (including any and all
rights to liquidated damage payments) security agreement, chattel paper, or
other evidence of indebtedness or security, together with (i) all security
pledged, assigned, hypothecated or granted to or held by the Partnership to
secure the foregoing, (ii) all of the Partnership's right, title and interest in
and to any goods (including, without limitation, electricity), the sale of which
gave rise thereto, (iii) all guarantees, warranties, endorsements,
indemnifications or collateral on, or of, any of the foregoing, (iv) all powers
of attorney for the execution of any evidence of indebtedness or security or
other writing in connection therewith, (v) all books, correspondence, credit
files, records, ledger cards, invoices, and other papers relating thereto,
including without limitation all similar information stored on a magnetic medium
or other similar storage device and other papers and documents in the possession
or under the control of the Partnership or any computer bureau from time to time
acting for the Partnership, (vi) all evidences of the filing of financing
statements and other statements and the registration of other instruments in
connection therewith and amendments thereto, notices to other creditors or
secured parties, and certificates from filing or other registration officers,
(vii) all credit information, reports and memoranda relating thereto, and (viii)
all other writings related in any way to the foregoing.
"SENIOR PARTIES" shall mean, collectively, the Trustee, the
Collateral Agent, the DSR LOC Provider, the PPA LOC Provider, a Working Capital
Line Facility Provider, and any holder of Senior Debt (other than the Bonds).
"SITE" shall mean that certain parcel described as that
certain 101.29 acres of land identified and described in that certain Leasehold
Deed to Secure Debt, Assignment of Rents and Leases and Security Agreement
executed by the Partnership, as Grantor, in favor of the Collateral Agent, as
Grantee, of even date herewith; situated in Heard County, Georgia, and all
easements, licenses and rights of way relating thereto.
ARTICLE II
ASSIGNMENT AND GRANT OF SECURITY INTERESTS
SECTION 2.1. ASSIGNMENT AND GRANT OF SECURITY INTEREST. (a) As
security for the prompt and complete payment and performance when due of all of
the Obligations, the Partnership hereby grants to the Collateral Agent for
itself and for the benefit of the Senior Parties or certain of them as provided
in the Collateral Agency Agreement a continuing security interest of first
priority, in all of the Partnership's right, title and interest in, to and under
the following, in each case, whether now owned or existing or hereafter acquired
or arising, and wherever located: (i) all Receivables, (ii) all Inventory, (iii)
all Equipment, (iv) all General Intangibles, (v) all Contracts and all Contract
Rights, (vi) the Funds and all cash, investments and securities from time to
time held in any checking, savings, deposit or other account of the Partnership,
pROVIDED that the security interest in the Debt Service Reserve Account granted
herein to the Collateral Agent shall be solely for the benefit of the Trustee
acting on behalf of the Holders (and for the benefit of the DSR LOC Agent to the
extent of the Interest Portion thereof); (vii) all Governmental Approvals,
PROVIDED, that any Governmental Approval which by its terms or by operation of
law would become void, voidable, terminable or revocable if mortgaged, pledged
or assigned hereunder or if a security interest therein were granted hereunder
is expressly excepted and excluded from the Lien and the terms of this Security
Agreement to the extent necessary so as to avoid such voidness, voidability,
terminability or revocability, (viii) all Fixtures, including but not limited to
those now or hereafter attached to, placed on, or incorporated in the Site, (ix)
without limiting the generality of the foregoing, all other personal property,
goods, Instruments, Chattel Paper, Documents, credits, claims, demands and
assets of the Partnership whether now existing or hereafter acquired from time
to time (including but not limited to the Authority Bonds and the Partnership's
rights and benefits as a holder of the Authority Bonds under the Authority
Indenture, including in respect of the Authority Security Deed, the Authority's
interest in the Lease Agreement, the Guaranty and all other security held by the
Authority Trustee thereunder for the benefit of the holders of the Authority
Bonds), all rights to receive equity contributions, and all rights to Loss
Proceeds, but excluding the proceeds of third party liability insurance and
worker's compensation), and (x) any and all additions and accessions to any of
the foregoing, all improvements thereto, all substitutions and replacements
therefor and all products and Proceeds thereof (all of the above collectively,
the "COLLATERAL").
(b) The security interest granted to the Collateral Agent
pursuant to this Security Agreement extends to all Collateral of the kind which
is the subject of this Security Agreement which the Partnership may acquire at
any time during the
continuation of this Security Agreement, whether such Collateral is in transit
or in the Partnership's, any Senior Party's, or any other Person's constructive,
actual or exclusive occupancy or possession.
SECTION 2.2. SECURITY INTEREST ABSOLUTE. All rights of the
Senior Parties and all security interests hereunder shall be absolute and
unconditional irrespective of:
(a) any lack of validity or enforceability of the Indenture,
any other Financing Document, or any other agreement or instrument relating
thereto;
(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Obligations, or any other amendment or
waiver of or any consent to any departure from the Indenture, or any other
Financing Document;
(c) any exchange, release or non-perfection of any other
collateral, or any release or amendment or waiver of or consent to departure
from any guaranty, for all or any of the Obligations; or
(d) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the Partnership or a third party
pledgor.
SECTION 2.3. POWER OF ATTORNEY. (a) The Partnership hereby
irrevocably constitutes and appoints the Collateral Agent, on behalf of the
Senior Parties, or any Person, officer or agent whom the Collateral Agent may
designate, as the Partnership's true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of the Partnership and in
the name of the Partnership or in its own name, at the Partnership's cost and
expense, to exercise at any time in the Collateral Agent's discretion all or any
of the following powers, in accordance and subject to the terms and conditions
of the Project Documents, which, being coupled with an interest, shall be
irrevocable until the Debt Termination Date (as defined in the Collateral Agency
Agreement):
(i) to receive, take, endorse, sign, assign and deliver, all
in the Collateral Agent's or the Partnership's name, any and all
checks, notes, drafts, and other documents or instruments relating to
the Collateral;
(ii) to receive, open and dispose of all mail addressed to the
Partnership and to notify postal authorities to change the address for
delivery thereof to such address as the Collateral Agent designates;
(iii) to request from account debtors of the Partnership in
the Partnership's name or that of the Senior Parties or that of the
Collateral Agent's designee, information concerning the Receivables and
the amounts owing thereon;
(iv) to transmit to account debtors indebted on Receivables
notice of the Collateral Agent's interest therein;
(v) to notify account debtors indebted on Receivables to make
payment directly to the Collateral Agent;
(vi) to take or bring, in the Partnership's name or in the
Collateral Agent's name on behalf of the Senior Parties, all steps,
actions, suits or proceedings deemed by the Collateral Agent to be
necessary or desirable to enforce or effect collection of the
Receivables;
(vii) to prepare, sign and file any Uniform Commercial Code
financing statements or file this Security Agreement in the name of the
Partnership as debtor;
(viii) if the Partnership shall have failed to do so in a
timely manner, to take or cause to be taken all actions necessary to
perform or comply or cause performance or compliance with the covenants
of the Partnership contained in any Financing Document;
(ix) to sign and endorse any invoices, freight or express
bills, bills of lading, storage or warehouse receipts, drafts against
debtors, assignments, verifications, notices and other documents in
connection with any of the Collateral;
(x) to defend any suit, action or proceeding brought against
the Partnership with respect to any Collateral;
(xi) to settle, compromise or adjust any suit, action or
proceeding described in the preceding clause and, in connection
therewith, to give such discharges or releases as the Senior Parties
may deem appropriate;
(xii) generally, to sell or transfer and make any agreement
with respect to or otherwise deal with any of the Collateral as fully
and completely as though the Senior Parties were the absolute owner
thereof for all purposes, and to do, at the Senior Parties' option and
the Partnership's expense, at any time, or from time to time, all acts
and things which the Senior Parties deem necessary to protect, preserve
or realize upon the Collateral and the Liens of the Senior Parties
thereon;
(xiii) to execute, in connection with any foreclosure, any
endorsements, assignments or other instruments of conveyance or
transfer with respect to the Collateral; and
(xiv) to exercise the Partnership's rights under any Contract
in accordance with SECTION 6.3 (Liability under Receivables and
Contracts) hereof;
PROVIDED, HOWEVER, that the Collateral Agent shall not exercise its powers under
clauses (ii), (iii), (vi), (ix), (x), (xi), (xii), (xiii) or (xiv) unless a
Trigger Event has occurred and is continuing and if so required pursuant to the
Collateral Agency Agreement.
(b) The Partnership hereby ratifies all that said attorney
shall lawfully do or cause to be done by virtue hereof. The Partnership hereby
acknowledges and agrees that in acting pursuant to this power-of-attorney the
Collateral Agent shall be acting in its own interest and in the interest of the
Senior Parties and the Partnership acknowledges and agrees that the Collateral
Agent and the Senior Parties shall have no fiduciary duties to the Partnership
and the Partnership hereby waives any claims to the rights of a beneficiary of a
fiduciary relationship hereunder.
ARTICLE III
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS
The Partnership hereby represents, warrants and covenants to
the Collateral Agent and the Senior Parties, which representations, warranties
and covenants shall survive execution and delivery of this Security Agreement,
as follows:
SECTION 3.1. VALIDITY, PERFECTION AND PRIORITY OF LIEN. (a)
The security interests in the Collateral granted hereunder to the Collateral
Agent for itself
and the benefit of the Senior Parties or certain of them as provided in the
Collateral Agency Agreement constitute valid and continuing security interests
in the Collateral; and
(b) (i) financing statements naming the Partnership as
"debtor" and the Collateral Agent as "secured party" and describing the
Collateral having been filed in the filing offices set forth on Schedule I
hereto, (ii) the Instruments listed on Schedule II hereto and all Instruments
and Chattel Paper evidencing an amount of Receivables equal to or greater than
$5,000 individually or $20,000 in the aggregate, having been delivered to the
Collateral Agent, and (iii) all other Chattel Paper having been stamped to
indicate the security interest of the Collateral Agent for itself and the
benefit of the Senior Parties or certain of them as provided in the Collateral
Agency Agreement, the security interests in the Collateral granted hereunder to
the Collateral Agent for itself and the benefit of the Senior Parties or certain
of them as provided in the Collateral Agency Agreement, constitute perfected
security interests therein superior and prior to all Liens other than Permitted
Liens, rights or claims of all other Persons.
SECTION 3.2. NO LIENS; OTHER FINANCING STATEMENTS. (a) Except
for the Lien granted hereunder to the Collateral Agent for itself and the
benefit of the Senior Parties or certain of them as provided in the Collateral
Agency Agreement, the Partnership is, and as to all Collateral whether now
existing or hereafter acquired after the date hereof, the Partnership will
continue to be the owner of valid and marketable title in and to each item of
the Collateral free and clear of any and all Liens other than Permitted Liens
and the Partnership shall defend the Collateral against all claims and demands
of all Persons at any time claiming the same or any interest therein adverse to
the Collateral Agent or any Senior Party.
(b) Other than financing statements filed in connection
herewith, there is no financing statement (or similar statement or instrument of
registration under the law of any jurisdiction) covering or purporting to cover
any interest of any kind in the Collateral, except (i) financing statements
filed in connection with Permitted Liens, and (ii) financing statements for
which proper termination statements have been delivered to the Collateral Agent
for filing. The Partnership will not execute or authorize to be filed in any
public office any financing statement (or similar statement or instrument of
registration under the law of any jurisdiction) or statements relating to the
Collateral, except financing statements filed or to be filed in respect of and
covering the security interests granted hereby to the Collateral Agent by the
Partnership and financing statements filed in respect of and covering Permitted
Liens.
SECTION 3.3. CHIEF EXECUTIVE OFFICE; NAME; RECORDS. (a) The
chief executive office of the Partnership is located at 0000 Xxxxx 000 Xxxxxx,
Xxxxx 000, Xxxxx, Xxxxxxxx 00000. The Partnership will not (i) move its chief
executive office, or (ii) change its name from, nor carry on business under any
name other than "Tenaska Georgia Partners, L.P.," unless it has complied with
the requirements of SECTION 3.3(B). The originals of all documents evidencing
all Contracts and Receivables of the Partnership, and the only original books of
accounts and records concerning the Collateral are, and will continue to be,
kept at, and controlled and directed (including, without limitation, for general
accounting purposes) from, such chief executive office, or at such new location
for such chief executive office as the Partnership may establish in accordance
with SECTION 3.3(B).
(b) The Partnership shall not establish a new location for its
chief executive office or change its name or the name under which it presently
conducts its business until (i) it has given to the Collateral Agent not less
than 60 days' prior written notice of its intention so to do, clearly describing
such new location or specifying such new name, as the case may be, and providing
such other information in connection therewith as the Collateral Agent may
reasonably request, and (ii) with respect to such new location or such new name,
as the case may be, the Partnership shall have taken all action, satisfactory to
the Collateral Agent, to maintain the security interest of the Collateral Agent
in the Collateral intended to be granted hereby at all times fully perfected and
in full force and effect.
SECTION 3.4. FINANCING STATEMENTS. The Partnership agrees that
all necessary and appropriate recordings and filings will be effected in all
necessary and appropriate public offices so that the Lien created by the
Security Documents will at all times constitute a perfected Lien on and security
interest in the Collateral prior and superior to all other Liens other than
Permitted Liens all in accordance with the Uniform Commercial Code as enacted in
any and all relevant jurisdictions or any other Applicable Law. The Partnership
will pay any applicable filing fees and related expenses. The Partnership
authorizes the Collateral Agent to file any such financing statements without
the signature of the Partnership.
SECTION 3.5. ADDITIONAL STATEMENTS AND SCHEDULES. The
Partnership shall execute and deliver to the Collateral Agent, from time to
time, for its convenience in maintaining a record of the Collateral, such
written statements and schedules as the Collateral Agent may reasonably require,
designating, identifying or describing the Collateral.
SECTION 3.6. WAREHOUSE RECEIPTS NON-NEGOTIABLE. The
Partnership agrees that if any warehouse receipt or receipt in the nature of a
warehouse receipt or other Document is issued with respect to any of its
Inventory,
such warehouse receipt or receipt in the nature thereof shall not be drawn in
such a manner as to be "negotiable" (as such term is used in Section 7-104 or
similar provision of the Uniform Commercial Code as in effect in any relevant
jurisdiction or under other Applicable Law).
ARTICLE IV
SPECIAL PROVISIONS CONCERNING INVENTORY AND EQUIPMENT
SECTION 4.1. MAINTENANCE OF INSURANCE; PROTECTION OF SECURITY
INTEREST. The Partnership shall carry with respect to the Collateral and its use
such insurance, if any, as shall be required under the Common Agreement.
SECTION 4.2. LOCATION OF INVENTORY AND EQUIPMENT. (a) All
Inventory and Equipment owned on the date hereof by the Partnership is located
on the Site (other than Equipment undergoing repairs). The Partnership agrees
that all Inventory and Equipment now held or subsequently acquired by it shall
be kept at (or shall be in transport to) the Site, or such new location as the
Partnership may establish in accordance with SECTION 4.2(B).
(b) The Partnership may establish a new location for Inventory
and Equipment only if (i) it shall have given to the Collateral Agent 60 days'
prior written notice of its intention so to do, clearly describing such new
location and providing such other information in connection therewith as the
Collateral Agent may reasonably request, and (ii) with respect to such new
location, it shall have taken all action necessary to maintain the security
interest of the Collateral Agent in the Collateral intended to be granted hereby
at all times fully perfected and in full force and effect.
SECTION 4.3. INVENTORY RECORDS. The Partnership shall
maintain, at its own cost and expense, satisfactory and complete Inventory
Records.
ARTICLE V
SPECIAL PROVISIONS CONCERNING RECEIVABLES,
CONTRACTS AND INSTRUMENTS
SECTION 5.1. ADDITIONAL REPRESENTATIONS AND WARRANTIES. As of
the time when each of its Receivables arises, the Partnership shall be deemed to
have represented and warranted that such Receivable and all records, papers and
documents relating thereto, if any, are genuine and in all respects what they
purport to be, and that all papers and documents, if any, relating thereto (i)
will (subject to dispute, return, replacement, settlement or compromise)
represent the genuine, legal, valid and binding obligation of the account debtor
evidencing indebtedness unpaid and owed by such account debtor arising out of
the performance of labor or services or the sale and delivery of the merchandise
listed therein, or both, (ii) will be the only original writings evidencing and
embodying such obligation of the account debtor named therein (other than copies
created for purposes other than general accounting purposes), (iii) will
(subject to dispute, return, replacement, settlement or compromise) evidence
true and valid obligations, enforceable in accordance with their respective
terms, not subject to the fulfillment of any contract or condition whatsoever
unless set forth in the writing and not subject to any defenses, set-offs or
counterclaims (except with respect to any such defenses, set-offs or
counterclaims which the other party in any Project Document may have in
connection with such Project Document) or stamp or other taxes, and not subject
to any provisions prohibiting the assignment contemplated hereunder, and (iv)
will be in compliance and will conform with all Applicable Laws.
SECTION 5.2. MAINTENANCE OF RECORDS; LEGENDING OF RECORDS. The
Partnership will keep and maintain at its own cost and expense satisfactory and
complete records of its Receivables, including, but not limited to, records of
all payments received and all credits granted thereon, and the Partnership will
make the same available to the Collateral Agent and the Senior Parties for
inspection at the Partnership's chief executive office, at the Partnership's own
cost and expense, at any and all reasonable times during normal business hours
upon demand. The Partnership shall, at its own cost and expense, deliver all
tangible evidence that the Collateral Agent may request of its Receivables
(including, without limitation, all documents evidencing the Receivables) and
books and records to the Collateral Agent or to its representatives (copies of
which evidence and books and records may be retained by the Partnership) at any
reasonable time during normal business hours upon the Collateral Agent's demand.
If a Trigger Event occurs and is continuing, and if the Collateral Agent so
directs, the Partnership shall legend in form and substance satisfactory to the
Collateral Agent, the Receivables, Chattel Paper and Contracts, as well as
books, records and documents of the Collateral Agent evidencing or pertaining to
the Receivables with an appropriate reference to the fact that the Receivables
and Contracts have been assigned to the Collateral Agent and that the Collateral
Agent has a security interest therein.
SECTION 5.3. MODIFICATION OF TERMS; NO PAYMENT TO PARTNERSHIP.
The Partnership shall not rescind or cancel any indebtedness evidenced by any
Receivable or make any adjustment with respect thereto, or extend or renew the
same, or compromise or settle any dispute, claim, suit or legal proceeding
relating
thereto, or sell any Receivable or interest therein, without the prior
written consent of the Collateral Agent. The Partnership will duly fulfill all
obligations on its part to be fulfilled under or in connection with the
Receivables and will do nothing to impair the rights of the Collateral Agent in
the Receivables.
SECTION 5.4. DIRECTION TO ACCOUNT DEBTORS, CONTRACTING
PARTIES. (a) The Partnership agrees that the Collateral Agent may, at its
option, directly notify the account debtors or obligors with respect to any
Receivables and/or under any Project Documents to make payments with respect
thereto directly to it.
(b) Upon the occurrence of and during the continuance of a
Trigger Event, the Partnership agrees to be bound by any collection, compromise,
forgiveness, extension or other action taken by the Collateral Agent with
respect to the Receivables and/or Project Documents. Upon the occurrence of and
during the continuance of a Trigger Event, without notice to or assent by the
Partnership, the Collateral Agent may apply any or all amounts then in, or
thereafter deposited with it in accordance with the provisions of the Collateral
Agency Agreement. The reasonable costs and expenses (including reasonable
attorneys' fees) of collection, whether incurred by the Partnership or any
Senior Party, shall be borne by the Partnership.
SECTION 5.5. INSTRUMENTS. If any of the Receivables becomes
evidenced by an Instrument having a face value in excess of $5,000 and a
maturity of 30 days or longer, the Partnership shall promptly notify the
Collateral Agent thereof, and upon request by the Collateral Agent, within ten
(10) days, shall deliver such Instrument to the Collateral Agent appropriately
endorsed to the order of the Collateral Agent as further security hereunder.
Notwithstanding the foregoing, at such time that an Event of Default shall have
occurred and be continuing, or at such time as the Partnership shall own or
acquire Instruments which in the aggregate exceed $20,000, the Partnership,
within ten (10) days, shall deliver all Instruments to the Collateral Agent,
appropriately endorsed to the order of the Collateral Agent as further security
hereunder.
ARTICLE VI
SPECIAL PROVISIONS CONCERNING CONTRACTS
SECTION 6.1. SECURITY INTEREST IN CONTRACT RIGHTS. The
Partnership's grant, pursuant to SECTION 2.1 (Assignment and Grant of Security
Interest), to the Collateral Agent, of a security interest in all of its right,
title and
interest in and to each and all of the Contracts and the contract rights
thereunder, includes, but is not limited to:
(i) all (A) rights to payment under any Contract and (B)
payments due and to become due under any Contract, in each case whether
as contractual obligations, damages or otherwise;
(ii) all of its claims, rights, powers, or privileges and
remedies under any Contract; and
(iii) all of its rights under any Contract to make
determinations, to exercise any election (including, but not limited
to, election of remedies) or option or to give or receive any notice,
consent, waiver or approval together with full power and authority with
respect to any Contract to demand, receive, enforce, collect or receipt
for any of the foregoing rights or any property the subject of any of
the Contracts, to enforce or execute any checks, or other instruments
or orders, to file any claims and to take any action which, in the
reasonable opinion of the Collateral Agent, may be necessary or
advisable in connection with any of the foregoing (the Contracts,
together with all of the foregoing in this SECTION 6.1, the "CONTRACT
RIGHTS");
PROVIDED, HOWEVER, that until the occurrence and continuance of a Trigger Event,
notwithstanding anything else herein to the contrary, the Partnership may,
subject to the terms and provisions of the Indenture, exclusively exercise all
of the Partnership's rights, powers, privileges and remedies under the
Contracts, other than the right to receive monies due or to become due under the
Contracts.
SECTION 6.2. FURTHER PROTECTION. The Partnership warrants and
forever shall defend the title to the Contract Rights against the claims and
demands of any Person and hereby grants the Collateral Agent full power and
authority, upon the occurrence or during the continuance of a Trigger Event to
take all actions as the Collateral Agent reasonably deems necessary or advisable
to effectuate the provisions set forth in this sentence.
SECTION 6.3. LIABILITIES UNDER RECEIVABLES AND CONTRACTS.
Anything herein to the contrary notwithstanding (including, without limitation,
the grant of any rights to the Collateral Agent) the Partnership shall remain
liable under each of the Receivables and Contracts to observe and perform all of
the conditions and obligations to be observed and performed by it thereunder,
all in accordance with the terms of any agreement giving rise to each such
Receivable or Contract.
Neither the Collateral Agent nor any Senior Party shall have any obligation or
liability under any Receivable (or any agreement giving rise thereto) or
Contract by reason of or arising out of this Security Agreement or the receipt
by the Collateral Agent of any payment relating to such Receivable or Contract
pursuant hereto, nor shall the Collateral Agent or any Senior Party be obligated
in any manner to perform any of the obligations of the Partnership under or
pursuant to any Receivable (or any agreement giving rise thereto) or under or
pursuant to any Contract, to make any payment, to make any inquiry as to the
nature or the sufficiency of any payment received by it or as to the sufficiency
of any performance by any party under any Receivable (or any agreement giving
rise thereto) or under any Contract, to present or file any claim, to take any
action to enforce any performance or to collect the payment of any amounts which
may have been assigned to it or to which it may be entitled at any time or
times.
SECTION 6.4. REMEDIES. Upon the occurrence of any Trigger
Event and continuance thereof, the Collateral Agent shall have the rights set
forth in ARTICLE VII hereof, and in addition may (i) enforce all remedies,
rights, powers and privileges of the Partnership under any or all of the
Contracts, (ii) sell any or all of the Contract Rights at a public or private
sale upon at least 10 days' prior written notice and/or (iii) substitute itself
or any nominee or trustee in lieu of the Partnership as party to any of the
Contracts and to notify the obligor of any Contract Right (the Partnership
hereby agreeing to deliver any such notice at the request of the Collateral
Agent) that all payments and performance under the relevant Contract shall be
made or rendered to the Collateral Agent or such other Person as the Collateral
Agent may designate.
ARTICLE VII
REMEDIES UPON OCCURRENCE OF A TRIGGER EVENT
SECTION 7.1. REMEDIES; OBTAINING THE COLLATERAL UPON DEFAULT.
(a) Subject to the terms of the Collateral Agency Agreement, upon the occurrence
of any Trigger Event and continuance thereof, the Collateral Agent shall be
entitled to exercise on behalf of the Senior Parties, all the rights and
remedies of a secured party under the Uniform Commercial Code as in effect in
any relevant jurisdiction and all rights now or hereafter existing under all
other applicable laws to enforce this Security Agreement and the security
interests contained herein, and, in addition, subject to any Applicable Laws
then in effect, the Collateral Agent may, in addition to its other rights and
remedies hereunder, including without limitation under SECTIONS 7.2 (Remedies;
Disposition of the Collateral) and 7.6 (Discontinuance of Proceedings) of this
Security Agreement, and also the rights of the Senior Parties under the
Transaction Documents, do any of the following:
(i) personally, or by agents, trustees or attorneys,
immediately take possession of the Collateral or any part thereof, from
the Partnership or any other Person who then has possession of any part
thereof with or without notice or process of law, and for that purpose
may enter upon the Partnership's or such other Person's premises where
any of the Collateral is located and remove the same and use in
connection with such removal any and all services, supplies, aids and
other facilities of the Partnership;
(ii) instruct the obligor or obligors on any agreement,
instrument or other obligation (including, without limitation, the
Receivables and the Contracts) constituting the Collateral to make any
payment required by the terms of such instrument or agreement directly
to the Collateral Agent; and
(iii) take possession of the Collateral or any part thereof,
by directing the Partnership in writing to turn over the same to the
Collateral Agent at the Site or, to the extent such Collateral may be
moved, to deliver the same to the Collateral Agent at any other place
or places designated by the Collateral Agent, in which event the
Partnership shall at its own expense, (A) forthwith turnover the same
to the Collateral Agent at the Site or cause the same to be moved to
the place or places so designated by the Collateral Agent and there
delivered to the Collateral Agent, as the case may be; (B) store and
keep any Collateral so turned over or delivered to the Collateral Agent
at the Site or at such place or places pending further action by the
Collateral Agent as provided in SECTION 7.2 (Remedies; Disposition of
the Collateral) hereof; and (C) while the Collateral shall be so stored
and kept, provide such guards and maintenance services as shall be
necessary to protect the same and to preserve and maintain the
Collateral in good condition.
(b) The Partnership's obligation to turn over or deliver the
Collateral as set forth above is of the essence of this Security Agreement and,
accordingly, upon application to a court of equity having jurisdiction, the
Collateral Agent shall be entitled to obtain a decree requiring specific
performance by the Partnership of said obligation.
(c) When Collateral is in the Collateral Agent's possession,
(i) the Partnership shall pay (or reimburse the Collateral Agent on demand for)
all reasonable expenses (including the cost of any insurance and payment of
taxes or other charges) incurred in the custody, preservation, use or operation
of the Collateral, and the obligation to reimburse all such expenses shall be
secured hereby, and (ii) the risk of accidental loss or damage shall be on the
Partnership to the extent of any deficiency in any effective insurance coverage.
SECTION 7.2. REMEDIES; DISPOSITION OF THE COLLATERAL. Any
Collateral repossessed by the Collateral Agent under or pursuant to SECTION 7.1
(Remedies; Obtaining the Collateral upon Default) and any other Collateral,
whether or not so repossessed by the Collateral Agent, may, to the extent
permitted by any Contract terms governing such Collateral, be sold, leased or
otherwise disposed of under one or more contracts or as an entirety, and without
the necessity of gathering at the place of sale the property to be sold, and in
general in such manner, at such time or times, at such place or places and on
such terms (whether cash or credit, and in the case of credit, without
assumption of future credit risk) as the Collateral Agent may, in compliance
with Applicable Laws and as directed by the Required Senior Parties, determine
to be commercially reasonable. Any of the Collateral may be sold, leased or
options or contracts entered to do so, or otherwise disposed of, in the
condition in which the same existed when taken by the Collateral Agent or after
any overhaul or repair which the Collateral Agent shall determine (upon the
direction of the Required Senior Parties) to be commercially reasonable. Any
such disposition shall be made upon not less than ten (10) days' written notice
to the Partnership specifying the time such disposition is to be made and, if
such disposition shall be a public sale, specifying the place of such sale. Any
such sale may be adjourned by announcement at the time and place fixed therefor,
and such sale may, without further notice, be made at the time and place to
which it was so adjourned. To the extent permitted by Applicable Laws, any
Senior Party may itself bid for and become the buyer of the Collateral or any
item thereof offered for sale at a public auction without accountability to the
Partnership (except to the extent of surplus money received as provided in
SECTION 7.4 (Application of Proceeds)).
SECTION 7.3. WAIVER. (a) EXCEPT AS OTHERWISE PROVIDED IN THIS
SECURITY AGREEMENT, THE PARTNERSHIP HEREBY WAIVES, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, NOTICE OR JUDICIAL HEARING IN CONNECTION WITH THE COLLATERAL
AGENT'S TAKING POSSESSION OR THE COLLATERAL AGENT'S DISPOSITION OF ANY OF THE
COLLATERAL IN ACCORDANCE WITH THIS SECURITY AGREEMENT, INCLUDING, WITHOUT
LIMITATION, ANY AND ALL PRIOR NOTICE AND HEARING FOR ANY PREJUDGMENT REMEDY OR
REMEDIES AND ANY SUCH RIGHT WHICH THE PARTNERSHIP WOULD OTHERWISE HAVE UNDER THE
CONSTITUTION OR ANY STATUTE OF THE UNITED STATES OR OF ANY STATE, AND THE
PARTNERSHIP HEREBY FURTHER WAIVES:
(i) all damages occasioned by such taking of possession except
any damages which are finally judicially determined to have been the
direct result of any Senior Party's gross negligence or wilful
misconduct;
(ii) all other requirements as to the time, place and terms of
sale or other requirements with respect to the enforcement of the
Senior Parties' rights hereunder;
(iii) demand of performance or other demand, notice of intent
to demand or accelerate, notice of acceleration, presentment, protest,
advertisement or notice of any kind to or upon the Partnership or any
other Person; and
(iv) all rights of redemption, appraisement, valuation, stay,
extension or moratorium now or hereafter in force under any applicable
law in order to prevent or delay the enforcement of this Security
Agreement or the absolute sale of the Collateral or any portion
thereof, and the Partnership, for itself and all who may claim under
it, insofar as it or they may now or hereafter lawfully do so, hereby
waives the benefit of such laws.
(b) Without limiting the generality of the foregoing, the
Partnership hereby: (i) authorizes the Collateral Agent, without notice to or
demand upon the Partnership and without otherwise affecting the obligations of
the Partnership hereunder from time to time, to take and hold other collateral
granted to it by any other Person (in addition to the Collateral) for payment of
any Obligations, or any part thereof, and to exchange, enforce or release such
other collateral or any part thereof, and to accept and hold any endorsement or
guarantee of payment of the Obligations or any part thereof, and to release or
substitute any endorser or guarantor or any other person granting security for
or in any way obligated upon any Obligations, or any part thereof; and (ii)
waives and releases any and all right to require the Senior Parties to collect
any of the Obligations from any specific item or items of Collateral or from any
other party liable as guarantor or in any other manner in respect of any of the
Obligations or from any collateral (other than the Collateral) for any of the
Obligations.
(c) Any sale of, or the grant of options to purchase, or any
other realization upon, any Collateral shall, provided that it is done in
accordance with applicable law and this Security Agreement, operate to divest
all right, title, interest, claim and demand, either at law or in equity, of the
Partnership therein and thereto, and shall be a perpetual bar both at law and in
equity against the Partnership and against any and all Persons claiming or
attempting to claim the Collateral so sold, optioned or realized upon, or any
part thereof, from, through and under the Partnership.
SECTION 7.4. APPLICATION OF PROCEEDS; PARTNERSHIP LIABLE FOR
DEFICIENCY. The Collateral Agent shall apply any proceeds from time to time held
by it and the net proceeds of any collection, recovery, receipt, appropriation,
realization or sale with respect to the Collateral in accordance with the
Collateral Agency Agreement. Any surplus remaining after payment in full of all
of the Obligations shall be paid over to the Partnership or to whomever may be
entitled to receive such surplus. The Partnership shall be liable for any
deficiency remaining after any application of funds pursuant hereto.
SECTION 7.5. NO WAIVER; REMEDIES CUMULATIVE. No failure or
delay on the part of any Senior Party in exercising any right, remedy, power or
privilege hereunder and no course of dealing between the Partnership and any
Senior Party shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, remedy, power or
privilege. A waiver by any Senior Party of any right or remedy hereunder on any
one occasion shall not be construed as a bar to any right or remedy which any
Senior Party would otherwise have on any future occasion. The rights and
remedies herein expressly provided are cumulative and may be exercised singly or
concurrently and as often and in such order as any Senior Party deems expedient
and are not exclusive of any rights or remedies which the Senior Parties would
otherwise have whether by agreement or now or hereafter existing under
applicable law. No notice to or demand on the Partnership in any case shall
entitle the Partnership to any other or further notice or demand in similar or
other circumstances or constitute a waiver of the rights of the Senior Parties
to any other or future action in any circumstances without notice or demand.
SECTION 7.6. DISCONTINUANCE OF PROCEEDINGS. In case any Senior
Party shall have instituted any proceeding to enforce any right, power or remedy
under this Security Agreement by foreclosure, sale, entry or otherwise, and such
proceeding shall have been discontinued or abandoned for any reason or shall
have been determined adversely to such Senior Party, then, in every such case,
subject to the terms of any final non-appealable judgment rendered in any such
proceeding, the Partnership, the Senior Parties and each holder of any of the
Obligations shall be restored to their former positions and rights hereunder
with respect to the Collateral, subject to the security interest created under
this Security Agreement, and all rights, remedies and powers of the Senior
Parties shall continue as if no such proceeding had been instituted.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. NOTICES. Except as otherwise expressly provided
herein, all notices and other communications provided for hereunder shall be
provided in writing (including telegraphic, telex, facsimile or cable
communication) and shall be sent by telecopy, telex, telegraph or cable with the
original of such communication dispatched by registered airmail (or, if inland,
registered first-class mail) with postage prepaid to the Partnership at 0000 X.
000xx Xxxxxx, Xxxxx 000, Xxxxx, Xxxxxxxx 00000-0000 and the Collateral Agent at
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx
X. Xxxxxxx, International & Project Finance Service Delivery or at such other
address as shall be designated by such Person in a written notice to the other
parties hereto and (a) all such notices and communications shall, when mailed,
telegraphed, telexed, telecopied, cabled or sent by overnight courier, be
effective seven (7) days after being deposited in the mails in the manner as
aforesaid, when delivered to the telegraph company or cable company (if inland),
one (1) day or (if overseas) three (3) days after delivery to a courier in the
manner as aforesaid, as the case may be, or when sent by telex (with the correct
answer back) or telecopier (after confirmation of receipt).
SECTION 8.2. AMENDMENT. No waiver, amendment, modification or
termination of any provision of this Security Agreement, or consent to any
departure by the Partnership therefrom, shall in any event be effective without
the prior written consent of the Collateral Agent, acting pursuant to the
Collateral Agency Agreement, and none of the Collateral shall be released
without the written consent of the Collateral Agent, acting pursuant to the
Collateral Agency Agreement. Any such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given.
SECTION 8.3. SUCCESSORS AND ASSIGNS. This Security Agreement
shall be binding upon and inure to the benefit of the Partnership, the Senior
Parties, all future holders of the Obligations and their respective successors
and assigns, except that the Partnership may not assign or transfer any of its
rights or obligations under this Security Agreement without the prior written
consent of the Collateral Agent.
SECTION 8.4. SURVIVAL. All agreements, statements,
representations and warranties made by the Partnership herein or in any
certificate or other instrument delivered by the Partnership or on its behalf
under this Security Agreement shall be considered to have been relied upon by
the Senior Parties and
shall survive the execution and delivery of this Security Agreement and the
other Financing Documents regardless of any investigation made by the Senior
Parties, or on their behalf until the Obligations shall have been paid in full.
SECTION 8.5. HEADINGS DESCRIPTIVE. The headings of the several
sections of this Security Agreement are inserted for convenience only and shall
not in any way affect the meaning or construction of any provision of this
Security Agreement.
SECTION 8.6. SEVERABILITY. In case any provision in or
obligation under this Security Agreement 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 jurisdiction, shall not in any way be affected or impaired thereby.
SECTION 8.7. PARTNERSHIP'S DUTIES. Anything herein contained
to the contrary notwithstanding, the Partnership shall remain liable to perform
all of its obligations under or with respect to the Collateral, and the Senior
Parties shall not have any obligations or liabilities under or with respect to
any Collateral by reason of or arising out of this Security Agreement, nor shall
the Senior Parties be required or obligated in any manner to perform or fulfill
any of the obligations of the Partnership under or with respect to any
Collateral except to the extent any of the Senior Parties have assumed the same.
SECTION 8.8. CONTINUING SECURITY INTEREST. This Security
Agreement shall create a continuing Lien on the Collateral until the release
thereof pursuant to SECTION 8.9 (Termination; Release).
SECTION 8.9. TERMINATION; RELEASE. Upon the Debt Termination
Date (as defined in the Collateral Agency Agreement), this Security Agreement
shall terminate (except as provided in SECTION 8.4 (Survival)), and the
Collateral Agent, at the request and expense of the Partnership, will promptly
execute and deliver to the Partnership the proper instruments (including Uniform
Commercial Code termination statements on form UCC-3) acknowledging the
termination of this Security Agreement, and will duly assign, transfer and
deliver to the Partnership (without recourse and without any representation or
warranty of any kind) such of the Collateral as may be in the possession of the
Collateral Agent and has not theretofore been disposed of or otherwise applied
or released.
SECTION 8.10. REINSTATEMENT. This Security Agreement shall
continue to be effective or be reinstated, as the case may be, if at any time
any
amount received by the Senior Parties in respect of the Obligations is rescinded
or must otherwise be restored or returned by such Senior Party upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Partnership or upon the appointment of any intervenor or conservator of, or
trustee or similar official for, the Partnership or any substantial part of its
assets, or upon the entry of an order by a bankruptcy court avoiding payment of
such amount, or otherwise, all as though such payments had not been made.
SECTION 8.11. COUNTERPARTS. This Security Agreement may be
executed in any number of counterparts, each of which, taken together, shall
constitute one and the same instrument and any of the parties hereto may execute
this Security Agreement by signing any such counterpart.
SECTION 8.12. GOVERNING LAW; SUBMISSION TO JURISDICTION;
WAIVER OF JURY TRIAL. (a) This Security Agreement is a contract made under the
laws of the State of New York of the United States and shall for all purposes be
governed by and construed in accordance with the laws of such State without
regard to the conflict of law rules thereof (other than Section 5-1401 of the
New York General Obligations Law).
(b) Any legal action or proceeding against the Partnership
with respect to this Security Agreement may be brought in the courts of the
State of New York in the County of New York or of the United States for the
Southern District of New York and, by execution and delivery of this Security
Agreement, the Partnership hereby irrevocably accepts for itself and in respect
of its property, generally and unconditionally, the jurisdiction of the
aforesaid courts. The Partnership agrees that a judgment, after exhaustion of
all available appeals, in any such action or proceeding shall be conclusive and
binding upon the Partnership, and may be enforced in any other jurisdiction, by
a suit upon such judgment, a certified copy of which shall be conclusive
evidence of the judgment. The Partnership irrevocably consents to the service of
process out of any of the aforementioned courts in any such action or proceeding
by the mailing of copies thereof by registered or certified mail, postage
prepaid, to the Partnership, at its address referred to in SECTION 8.1
(Notices), such service to become effective thirty (30) days after such mailing.
Nothing herein shall affect the right of the Collateral Agent or any other
Person to serve process in any other manner permitted by law or to commence
legal proceedings or otherwise proceed against the Partnership in any other
jurisdiction.
(c) The Partnership 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
Security Agreement in the courts referred to in clause (b) 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.
(d) EACH OF THE PARTNERSHIP AND THE COLLATERAL AGENT HEREBY
IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THIS SECURITY AGREEMENT OR ANY
MATTER ARISING HEREUNDER.
SECTION 8.13. AUTHORITY OF COLLATERAL AGENT. The Partnership
acknowledges that the rights and responsibilities of the Collateral Agent under
this Security Agreement with respect to any action taken by the Collateral Agent
or the exercise or non-exercise by the Collateral Agent of any option, right,
request, judgment or other right or remedy provided for herein or resulting or
arising out of this Security Agreement shall, as between the Collateral Agent
and the Senior Parties, be governed by the Collateral Agency Agreement and by
such other agreements with respect thereto as may exist from time to time among
them, but, as between the Collateral Agent and the Partnership, the Collateral
Agent shall be conclusively presumed to be acting as agent for the Senior
Parties with full and valid authority so to act or refrain from acting, and the
Partnership shall not be under any obligation, or entitlement, to make any
inquiry respecting such authority.
SECTION 8.14. CONFLICT WITH COLLATERAL AGENCY AGREEMENT. In
case of a conflict between any provision of this Security Agreement and any
provision of the Collateral Agency Agreement, the provisions of the Collateral
Agency Agreement shall control. No such conflict shall be deemed to exist merely
because this Security Agreement imposes greater obligations on the Partnership
than the Collateral Agency Agreement.
SECTION 8.15. INDEMNITIES AND EXPENSES. The obligation of the
Partnership to pay the costs and expenses of, and to indemnify, defend and hold
harmless, the Collateral Agent and the Senior Parties under and in connection
with this Security Agreement shall be as provided in SECTION 6.4
(Indemnification Bankruptcy) of the Collateral Agency Agreement as in effect as
of the date hereof. No amendment to such SECTION 6.4 or termination of the
Collateral Agency Agreement shall affect the provisions of this SECTION 8.15
unless such amendment or termination shall have been consented to by the parties
to this Security Agreement in accordance with the provisions hereof and of the
Collateral Agency Agreement.
SECTION 8.16. ENTIRE AGREEMENT. This Security Agreement,
together with any other agreement executed in connection herewith, is intended
by
the parties as a final expression of their agreement as to the matters covered
hereby and is intended as a complete and exclusive statement of the terms and
conditions thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Security Agreement to be duly executed and delivered by their duly authorized
officers as of the date first above written.
TENASKA GEORGIA PARTNERS, L.P.
By: Tenaska Georgia, Inc.,
Managing General Partner
By: /s/ XXXXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President of Finance &
Treasurer
THE CHASE MANHATTAN BANK,
as Collateral Agent
By: /s/ XXXXXXX X. XXXXXXX
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Vice President
Schedule I to
ASSIGNMENT AND
SECURITY AGREEMENT
FILING OFFICES
l. State of Nebraska, Secretary of State
2. State of New York, Secretary of State
3. State of Georgia, Secretary of State
4. State of Georgia, Heard County
5. State of New York, County of New York
Schedule II to
ASSIGNMENT AND
SECURITY AGREEMENT
INSTRUMENTS
None.
Schedule I- Filing Offices
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Schedule II- Instruments
-----------
