Exhibit 4.13
CONSENT AND AGREEMENT
This CONSENT AND AGREEMENT (this "Consent"), dated as of
November 10, 1999 among Tenaska Operations, Inc., a Delaware corporation (the
"Consenting Party"), Tenaska Georgia Partners, L.P., a Delaware limited
partnership (the "Partnership"), and THE CHASE MANHATTAN BANK, as collateral
agent, together with its successors in such capacity (the "Collateral Agent"),
for the benefit of the Senior Parties (as defined below).
RECITALS
WHEREAS, the Partnership intends to develop, construct, lease,
operate, maintain and finance a 936 megawatt ("MW") (nominal summer rating)
natural gas-fired simple-cycle electric generating plant (the "Facility" and,
together with the Project Documents, governmental approvals relating to the
Facility or the Project Documents and any other item relating to the Facility,
including any improvements to, and the operation of, the Facility and all
activities related thereto, the "Project") to be located in Heard County,
Georgia;
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
Bonds (the "DAHC Bonds") pursuant to an Indenture, dated as of November 1, 1999
between the Authority and The Chase Manhattan Bank, as DAHC Trustee;
WHEREAS, the DAHC Bonds will be purchased by the Partnership
and pledged to the Collateral Agent, along with certain other assets of the
Partnership including its rights under the Lease Agreement to secure the
obligations of the Partnership under the Bonds;
WHEREAS, in addition to the DAHC Bonds and related collateral,
all obligations of the Partnership with respect to the Bonds, and any other
agreements evidencing senior debt of the Partnership (collectively, the
"Financing Documents") to the Trustee, the Collateral Agent, each successor
thereto and each other person that becomes a secured party under any Financing
Document (collectively, the "Senior Parties") will be secured by a certain
Security Agreement, Pledge Agreements Collateral Agency Agreement, Deed to
Secured Debt, Security Agreement and Assignment of Rents and Leases, each Third
Party Consent and any other document
providing for any lien, pledge, encumbrance, mortgage or security interest
(collectively, the "Security Documents");
WHEREAS, the Senior Parties, the Authority, and the
Partnership have entered into the Collateral Agency and Intercreditor Agreement
(as amended, restated, modified or otherwise supplemented from time to time in
accordance with the terms thereof, the "Collateral Agency Agreement") to set
forth their mutual understanding with respect to (a) the exercise of certain
rights, remedies and options by the respective parties thereto under the above
described documents, (b) the priority of their respective security interests
created by the Security Documents, and (c) the appointment of the Collateral
Agent as collateral agent.
WHEREAS, the Partnership and the Consenting Party have entered
into that certain Operations and Maintenance Agreement, dated as of September
10, 1999 (as amended, restated, modified or otherwise supplemented from time to
time in accordance with the terms thereof, the "Assigned Agreement");
WHEREAS, the Partnership has notified the Consenting Party
that all of the Partnership's right, title and interest in, to, and under the
Assigned Agreement is to be assigned to the Collateral Agent as security
pursuant to one or more of the Security Documents;
WHEREAS, it is a condition precedent to the issuance of the
Bonds and the other Financing Documents that the Consenting Party execute and
deliver this Consent for the benefit of the Senior Parties;
NOW, THEREFORE, as an inducement to the Senior Parties to
enter into the Financing Documents, and in consideration of good and valuable
consideration, the receipt and sufficiency 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 Collateral Agent and the Senior Parties are entering into
the Financing Documents 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 Collateral Agent of all of the
Partnership's right, title and interest in, to and under the Assigned Agreement
pursuant to one or more of the Security Documents and (c) acknowledges the
right, but not the obligation, of the Collateral Agent or the Collateral Agent's
designee, in the exercise of the Collateral Agent's rights and remedies under
the Security Documents, to make all demands, give all notices, take all actions
and exercise all rights of the Partnership 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.
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1.2 SUBSTITUTE OWNER. The Consenting Party agrees that, if the
Collateral Agent shall notify the Consenting Party that an event of default
under any of the Financing Documents has occurred and is continuing and that the
Collateral Agent has exercised its rights (a) to have itself or its designee
substituted for the Partnership under the Assigned Agreement or (b) to sell,
assign, transfer or otherwise dispose of the Assigned Agreement to a person,
then the Collateral Agent, the Collateral Agent's designee or such person (each,
a "Substitute Owner") shall be substituted for the Partnership 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 Partnership 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 Collateral Agent and affords the Collateral Agent,
the Collateral Agent's designee and the Senior Parties a period of the longer of
(a) 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 or (b) the
termination of the Partnership's right to cure such default under the Assigned
Agreement, provided that in the event that a Substitute Owner assumes the rights
and obligations of the Partnership under the Assigned Agreement pursuant to a
written assumption agreement (a copy of which is provided to the Consenting
Party), such Substitute Owner shall have 60 days from the date of such
assumption agreement to cure such default or if such default is a non-monetary
default, such longer period so long as such Substitute Owner has commenced and
is diligently pursuing appropriate action to cure such default; provided,
however, that if any such party is prohibited from curing any such default by
any process, stay or injunction issued by any governmental authority or pursuant
to any bankruptcy or insolvency proceeding involving the Partnership, then the
time periods specified in this Section 1.3 for curing a default shall be
extended for the period of such prohibition.
1.4 NO TERMINATION, ASSIGNMENT OR MATERIAL AMENDMENTS. The
Consenting Party will not, without the prior written consent of the Collateral
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 Partnership.
1.5 REPLACEMENT AGREEMENT. In the event that the Assigned
Agreement is terminated as a result of any bankruptcy or insolvency proceeding
affecting the Partnership, the Consenting Party will, at the option of the
Collateral Agent enter into a new agreement with the Collateral 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.
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1.6 NO LIABILITY. The Consenting Party acknowledges and agrees
that neither the Collateral Agent, the Collateral Agent's designee or the Senior
Parties shall have any liability or obligation under the Assigned Agreement as a
result of this Consent, the Security Documents or otherwise, nor shall the
Collateral Agent, the Collateral Agent's designee or the Senior Parties be
obligated or required to (a) perform any of the Partnership's obligations under
the Assigned Agreement, except, in the case of the Collateral Agent or the
Collateral Agent's designee, during any period in which the Collateral Agent or
the Collateral Agent's designee is a Substitute Owner pursuant to Section 1.2
hereof, in which case (i) the obligations of such Substitute Owner shall be no
more than that of the Partnership 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 Documents.
1.7 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.
1.8 DELIVERY OF NOTICES. The Consenting Party shall deliver to
the Collateral Agent, concurrently with the delivery thereof to the Partnership,
a copy of each notice, request or demand given by the Consenting Party pursuant
to the Assigned Agreement.
1.9 ACKNOWLEDGMENTS. The Consenting Party agrees to execute
such acknowledgments or other similar instruments as the Collateral Agent shall
reasonably request in connection with the transactions provided for in this
Consent.
1.10 CLARIFICATIONS. In connection with the issuance of
the Bonds and the other Financing Documents, the Consenting Party hereby
consents pursuant to Section 14.5 of the Assigned Agreement to the disclosure of
Confidential (as defined in the Assigned Agreement) information to third
parties.
SECTION 2 PAYMENTS UNDER THE ASSIGNED AGREEMENT
2.1 PAYMENTS. 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 specified on Exhibit A hereto,
or to such other person or account as shall be specified from time to time by
the Collateral Agent to the Consenting Party in writing.
2.2 NO OFFSET, ETC. All payments required to be made by the
Consenting Party under the Assigned Agreement shall be made without any offset,
recoupment, abatement, withholding, reduction or defense whatsoever, except as
specifically permitted under the Assigned Agreement.
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SECTION 3 REPRESENTATIONS AND WARRANTIES OF THE CONSENTING PARTY
In order to induce the Collateral Agent and the Senior Parties
to enter into the Financing Documents, the Consenting Party makes the following
representations and 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; POWER AND AUTHORITY. The Consenting Party is
a corporation duly organized, validly existing and in good standing under the
laws of the state of its incorporation, and is duly qualified, authorized to do
business and in good standing in every jurisdiction in which it owns or leases
real property or in which the nature of its business requires it to be so
qualified, 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 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 hereof),
(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, or condition (financial or
otherwise) of the Project, (iv) the value, validity, perfection and
enforceability of the liens granted to the Collateral Agent under the Security
Documents or (v) the ability of the Collateral Agent or the Senior Parties to
enforce any of their material rights and
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remedies under the Assigned Agreement or this Consent (collectively, a "Material
Adverse Effect").
3.5 COMPLIANCE WITH OTHER INSTRUMENTS, ETC. 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 CONSENTS AND APPROVALS. 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 Partnership. The Consenting Party and, to the best of the
Consenting Party's knowledge after due inquiry, each other party to the Assigned
Agreement has 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 Partnership 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.
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.
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SECTION 4 OPINION OF COUNSEL
The Consenting Party shall deliver an opinion of counsel,
dated the Closing Date (as defined in the Financing Documents), relating to the
Assigned Agreement and this Consent, which opinion shall be substantially in the
form attached hereto as Exhibit C.
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 of communication ineffective), shall be sent by first class mail, by
personal delivery or by a nationally recognized courier service, and shall be
directed as follows:
If to the Consenting Party: Tenaska Operations, Inc..
0000 Xxxxx 000xx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxxx 00000-0000
Attention: H. Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to the Partnership: Tenaska Georgia Partners, L.P.
0000 Xxxxx 000xx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to the Collateral Agent: The Chase Manhattan Bank
Capital Markets Fiduciary Services
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
International & Project
Finance Service Delivery
Telephone: (000) 000-0000
Fax: (000) 000-0000
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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 New York or of the United States of
America for the Southern District of New York, and, by execution and delivery of
this Consent, each of the Consenting Party, the Partnership and the Collateral
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 and the
Partnership hereby irrevocably designates, appoints and empowers CT Corporation
System, 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000, as its
designee, appointee and agent to receive, accept and acknowledge for and on its
behalf, and in respect of its property, service of any and all legal process,
summons, notices and documents which may be served in any action or proceeding.
If for any reason such designee, appointee and agent shall cease to be available
to act as such, the Partnership or the Consenting Party, as applicable, agrees
to designate a new designee, appointee and agent in New York City on the terms
and for the purposes of this provision satisfactory to the Collateral Agent.
Each of the Consenting Party, the Partnership and the Collateral Agent
irrevocably consents to the service of process out of any of the aforementioned
courts in any such action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to the Consenting Party at its
notice address provided pursuant to Section 5.1 hereof. Each of the Consenting
Party, the Partnership and the Collateral 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 Collateral 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.
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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.
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 and the Collateral
Agent.
5.7 TERMINATION; REFINANCING. (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 all obligations under the Financing Documents (the "Finance Liabilities")
have been indefeasibly satisfied in full, notice of which shall be provided by
the Collateral Agent when all such obligations have been satisfied (the
"Termination Notice").
(b) In the event that the Finance Liabilities of the
Partnership are refinanced or replaced by other credit facilities, this Consent
shall continue in effect for the benefit of the Partnership and the provider of
such new credit facilities (the "New Lender") provided that (i) within five days
following delivery by the Collateral Agent to the Consenting Party of the notice
from the Collateral Agent as provided in Section 5.7 hereof that the original
Finance Liabilities have been indefeasibly satisfied in full, the New Lender or
an agent, trustee or other representative of the New Lender, shall have notified
the Consenting Party that it assumes the rights and the prospective obligations
of the Collateral Agent under this Consent, and shall have supplied substitute
notice address information for Section 5.1 hereof and new Payment Instructions
(as more fully described in Exhibit A hereto) (countersigned on behalf of the
Partnership) for Exhibit A, and (ii) thereafter, (a) the term "Finance
Liabilities" under this Consent will be deemed to refer to the new credit
facilities, (b) the term "Collateral Agent" or "Senior Parties" shall be deemed
to refer to the New Lender or any agent or trustee for the New Lender, (c) the
term "Financing Documents" shall be deemed to the credit agreement, indenture or
other instrument providing for the new credit facilities and (d) the term
"Security Documents" shall be deemed to refer to the security agreements under
which the Assigned Agreement is assigned as collateral to secure performance of
the obligations of the Partnership 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.
5.10 WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THE CONSENTING PARTY, THE PARTNERSHIP AND THE COLLATERAL AGENT
HEREBY IRREVOCABLY WAIVE ALL RIGHT OF TRIAL BY
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JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN CONNECTION
WITH THIS CONSENT.
5.11 SURVIVAL. All agreements, statements, representations and
warranties made by the Consenting Party herein shall be considered to have been
relied upon by the Collateral Agent and the Senior Parties and shall survive the
execution and delivery of this Consent.
5.12 NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on
the part of the Collateral Agent in exercising any right, power or privilege
hereunder and no course of dealing between the Consenting Party and the
Collateral 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 Collateral Agent would
otherwise have.
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IN WITNESS WHEREOF, the Consenting Party, the Partnership and
the Collateral 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.
TENASKA OPERATIONS, INC.
By: /s/ H.D. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice-President of Operations
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
Exhibit A to
CONSENT AND AGREEMENT
PAYMENT INSTRUCTIONS
Chase Manhattan Bank ABA# 021 000 021
000 Xxxx 00xx Xxxxxx, 00xx Xx. Account Number: 507 891325
NY, NY 10001 Account Name:The Chase Manhattan Bank, as
Collateral Agent
Tenaska Georgia Partners, L.P.,
Concentration Account
Vista Account Number: 294580000
For Further Credit to: Trust Acct. No.
C29458, The Chase Manhattan Bank, as
Collateral Agent, Tenaska Georgia -Revenue
Fund. Attention: X. Xxxxxxx
Exhibit B to
CONSENT AND AGREEMENT
APPROVALS
None
Exhibit C to
CONSENT AND AGREEMENT
FORM OF OPINION OF COUNSEL
November ____, 1999
Xxxxxxx, Sachs & Co. The Toronto-Dominion Bank
00 Xxxxx Xxxxxx 00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Credit Lyonnais Tenaska Georgia Partners, L.P.
1301 Avenue of the Americas 0000 Xxxxx 000xx Xxxxxx
20th Floor Suite 400
New York, New York 10019 Xxxxx, Xxxxxxxx 00000-0000
TD Securities (USA) Inc. The Chase Manhattan Bank
00 Xxxx 00xx Xxxxxx Xxxxxxx Xxxxxxx Xxxxxxxxx Services
Xxx Xxxx, Xxx Xxxx 00000 International & Project Finance
Service Delivery
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Natural Gas-Fired Electric Generating Facility Located in
Heard County, Georgia (the "Project")
Ladies and Gentlemen:
In connection with the generation facility to be constructed in Heard
County, in the State of Georgia we have acted as counsel to Tenaska Operations,
Inc., a Delaware corporation.
This opinion is being provided to you pursuant to the Agreement as to
Certain Understandings, Common Representations, Warranties, Covenants and Other
Terms dated as of November 1, 1999 (the "Common Agreement") by and among Tenaska
Georgia Partners, L.P., The Chase Manhattan Bank, as Trustee, the
Toronto-Dominion Bank as DSR LOC Agent, The Toronto-Dominion Bank, as PPA LOC
Agent and The Chase Manhattan Bank, as Collateral Agent. Capitalized terms used
and not otherwise defined herein shall have the meanings ascribed to them in the
Common Agreement.
In connection with this opinion, we have examined copies, certified or
otherwise identified to our satisfaction, of the documents, i.e., the Operations
and Maintenance Agreement and the Consent and Agreement of Tenaska Operations,
Inc. executed on September 10, 1999 by and between Tenaska Operations, Inc. and
Tenaska Georgia Partners, L.P. and Amendment to Operations and Maintenance
Agreement executed on October 26, 1999 by and between Tenaska Georgia Partners,
L.P. and Tenaska Operations, Inc., and the Second Amendment to Operations and
Maintenance Agreement executed on November ____, 1999 by and between Tenaska
Georgia Partners, L.P. and Tenaska Operations, Inc. (the "Documents").
In addition, we have examined and are familiar with originals or
copies, certified or otherwise identified to our satisfaction, of authorizing
resolutions of Tenaska Operations, Inc., and of the articles of incorporation
and by-laws of Tenaska Operations, Inc., as well as such other documents as we
have deemed necessary or appropriate as a basis for the opinions set forth
below.
In our examination we have assumed the due execution and delivery of
the Documents on behalf of the parties to the Documents, other than Tenaska
Operations, Inc. (provided however, that we have assumed due execution and
delivery with respect to the Borrower), the genuineness of all signatures, the
authenticity of all documents submitted as originals, the conformity to original
documents of all documents submitted as certified or photostatic copies, and the
authenticity of the originals of such copies. In rendering the opinions
expressed below, we have further assumed, without any independent investigation
or verification of any kind, that each Document we have examined is the valid
and binding obligation of each party thereto other than of Tenaska Operations,
Inc.
We are admitted to the bar of the State of Nebraska. We express no
opinion as to the law of any jurisdiction other than (i) the laws of the State
of Nebraska, (ii) the federal laws of the United States of America, and (iii)
the laws of the State of Delaware pertaining to corporations. For purposes of
the opinions set forth in paragraph 1 with respect to the qualification to do
business in the State of Georgia of Tenaska Operations, Inc. we have relied
exclusively on certificates from, and oral representations of, officers and
employees of the State of Georgia.
Based upon the foregoing and subject to the limitations,
qualifications, exceptions and assumptions set forth herein, we are of the
opinion that:
1. Tenaska Operations, Inc. is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. Tenaska
Operations, Inc. is duly qualified to do business in the State of Georgia and is
duly qualified to do 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. Tenaska Operations, Inc. has all corporate power and authority to
execute, deliver and perform obligations under the Documents and the execution,
delivery and performance of each of the Documents by Tenaska Operations, Inc.
has been duly authorized by all requisite corporate action of Tenaska
Operations, Inc.
3. Tenaska Operations, Inc. has duly executed and delivered the
Documents.
4. The execution, delivery and performance by Tenaska Operations, Inc.
of each of the Documents to which it is a party and the consummation of the
transactions contemplated thereby, will not (a) result in any violation of (i)
any contract, agreement or governing document applicable to Tenaska Operations,
Inc., (ii) of any license, permit, franchise, judgment, writ, injunction,
decree, order or of any Nebraska or federal law, ordinance, rule or regulations
thereunder applicable to Tenaska Operations, Inc., or (b) require the consent of
any other Person or result in the imposition of any lien on the property of
Tenaska Operations, Inc.
5. There are no pending or, to the best of our knowledge after due
inquiry, threatened actions or proceedings affecting Tenaska Operations, Inc. or
any of their properties or assets that individually or in the aggregate could
prohibit or limit in any way or adversely affect the execution, delivery and
performance of the Documents to which it is a party.
6. No consent, order, authorization, waiver, approval or any other
action, or registration, declaration or filing with, any public person, board or
body, is required to be obtained by Tenaska Operations, Inc. in connection with
the execution, delivery or performance of the Documents or the consummation of
the transactions contemplated thereby.
This opinion is being furnished only to the addressees 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 any
such entities may rely on this opinion as if it were addressed to them.
This opinion is rendered as of the date hereof, the opinions expressed
herein are given only as of the date hereof, and we expressly decline any
undertaking to revise or update any of the opinions subsequent to the date
hereof or to advise you of any matter arising subsequent to the date hereof,
including but not limited to a change in law or procedure, which would cause us
to modify our opinion in whole or in part.
