Exhibit 4.14
HEARD COUNTY WATER AUTHORITY
CONSENT AND AGREEMENT
This CONSENT AND AGREEMENT (this "Consent"), dated as of November 10,
1999 among Heard County Water Authority, a public corporation created and
existing under the laws of the State of Georgia (the "CONSENTING PARTY"),
Tenaska Georgia Partners, L.P., a Delaware limited partnership (the
"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 proposes to develop, construct,
operate and maintain a 936 megawatt ("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 "DAHC BONDS") pursuant to a trust indenture, dated as of
November 1, 1999 between the Authority and The Chase Manhattan Bank, as DAHC
Trustee (the "DAHC INDENTURE").
WHEREAS, the DAHC 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 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, 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 Consenting Party and the Partnership have entered
into a Water Purchase Agreement, dated as of February 25, 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 the Partnership has granted a security interest to the Collateral Agent and
all of the Partnership's rights, title and interest in, to and under the
Assigned Agreement are 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 obligations of the
Senior Parties to enter into their respective Financing Documents that the
Consenting Party execute and deliver this Consent.
NOW, THEREFORE, as an inducement to the Senior Parties to make
the Loans, and in consideration of good and valuable consideration, the receipt
of which is hereby acknowledged, and intending to be legally bound, the
Consenting Party hereby agrees as follows:
SECTION 1. CONSENT TO ASSIGNMENT, ETC.
1.1 CONSENT TO ASSIGNMENT. The Consenting Party (a) acknowledges that
the 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
rights, 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.
1.2 SUBSTITUTE OWNER. The Consenting Party agrees that, if the
Collateral Agent shall notify the Consenting Party that an event of default
under 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
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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 at least sixty (60) days (or if such
default is a non-monetary default, such longer period not to exceed one hundred
eighty (180) days as is required so long as any such party has commenced and is
diligently pursuing appropriate action to cure such default) from receipt of
such notice to cure such default; provided, however, that if any such party is
prohibited from curing any such 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. The Collateral Agent and the Senior Parties shall have no right to
require the Consenting Party to enter into a new agreement under Section 1.4
below or cure a default under the Assigned Agreement pursuant to this Section
1.3 if the Assigned Agreement was terminated by the Consenting Party pursuant to
the termination option contained in Section 16(a) of the Assigned Agreement, but
the Collateral Agent and the Senior Parties shall have the right to require
Consenting Party to enter into a new agreement under Section 1.4 below and to
cure any default and/or Triggering Event under the Assigned Agreement pursuant
to this Section 1.3 if the Assigned Agreement was terminated by the Consenting
Party pursuant to the termination option contained in Section 16(b) of the
Assigned Agreement.
1.4 NO TERMINATION, ASSIGNMENTS OR MATERIAL AMENDMENTS. The Consenting
Party will not, without the prior written consent of the 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. The Consenting
Party will not enter into any material amendment, supplement or other
modification of the Assigned Agreement (an "AMENDMENT") until after the
Collateral Agent has been given ten (10) days (excluding Saturdays, Sundays and
any days which are a legal holiday in New York or any days on which banking
institutions are authorized or required by law or government action to close)
prior written notice of the proposed Amendment by the Partnership (a copy of
which notice will be provided to the Consenting Party by the Partnership), and
will not then enter into such Amendment if the Consenting Party has, within such
ten (10) day period, received a copy of (i) the Collateral Agent's objection to
such Amendment or (ii) the Collateral Agent's request to the Partnership for
additional information with respect to such Amendment.
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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, provided that (i) such option to enter into a new
agreement is exercised by the Collateral Agent within sixty (60) days after the
date the Consenting Party gives the Senior Parties and the Collateral Agent
written notice of such termination, and (ii) the Senior Parties or the
Collateral Agent pay any amounts due under the Assigned Agreement for Water (as
defined in the Assigned Agreement) delivered to the Partnership that remains
outstanding and unpaid as of the date of the new agreement.
1.5 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,
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.
1.6 PERFORMANCE UNDER ASSIGNED AGREEMENT. The Consenting Party shall
perform and comply with all material terms and provisions of the Assigned
Agreement to be performed or complied with by it and shall maintain the Assigned
Agreement in full force and effect in accordance with its terms.
1.7 DELIVERY OF NOTICES. The Consenting Party shall deliver to the
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.
1.8 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.
SECTION 2. PAYMENTS UNDER THE ASSIGNED AGREEMENT
The Consenting Party will pay all amounts payable by it under the
Assigned Agreement, if any, in the manner required by the Assigned Agreement
directly into the account as shall be specified from time to time by the
Collateral Agent to the Consenting Party in writing.
All payments required to be made by the Consenting Party under the
Assigned Agreement shall be made without any offset, recoupment, abatement,
withholding, reduction or defense whatsoever, except as specifically permitted
under the Assigned Agreement.
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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 their respective 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. The Consenting Party is a legally created political
subdivision and public corporation of the State of Georgia, duly organized,
validly existing, qualified, authorized to do business and in good standing
under and by virtue of the laws of the State of Georgia, and has all requisite
power and authority, corporate and otherwise, to enter into and to perform its
obligations hereunder and under the Assigned Agreement, and to carry out the
terms hereof and thereof and the transactions contemplated hereby and thereby.
3.2 AUTHORIZATION. The execution, delivery and performance by the
Consenting Party of this Consent and the Assigned Agreement have been duly
authorized by all necessary corporate and member action on the part of the
Consenting Party and do not require any approval or consent of any holder (or
any trustee for any holder) of any indebtedness or other obligation of (a) the
Consenting Party or (b) any other person or entity, except approvals or consents
which have previously been obtained.
3.3 EXECUTION AND DELIVERY; BINDING AGREEMENTS. Each of this Consent
and the Assigned Agreement is in full force and effect, has been duly executed
and delivered on behalf of the Consenting Party by the appropriate officers of
the Consenting Party, and constitutes the legal, valid and binding obligation of
the Consenting Party, enforceable against the Consenting Party in accordance
with its terms, except as the enforceability thereof may be limited by (a)
bankruptcy, insolvency, reorganization, or other similar laws affecting the
enforcement of creditors' rights generally and (b) general equitable principles
(whether considered in a proceeding in equity or at law).
3.4 LITIGATION. There is no legislation, litigation, action, suit,
proceeding or investigation pending or (to the best of the Consenting Party's
knowledge after due inquiry) threatened against the Consenting Party before or
by any court, administrative agency, arbitrator or governmental authority, body
or agency which, if adversely determined, individually or in the aggregate, (a)
could adversely affect the performance by the Consenting Party of its
obligations hereunder or under the Assigned Agreement, or which could modify or
otherwise adversely affect the Approvals (as defined in Section 3.6 of this
Consent), (b) questions the validity, binding effect or enforceability hereof or
of the Assigned Agreement, any action taken or to be taken pursuant hereto or
thereto or any of the transactions contemplated hereby or thereby or (c) could
have a material adverse effect upon (i) the business, operations, properties,
assets, or condition (financial or otherwise) of the Consenting Party, (ii) the
ability of the Consenting Party to perform under the Assigned Agreement or this
Consent, (iii) the business, operations, properties, assets, prospects or
condition (financial or otherwise) of the Project, (iv) the value, validity,
perfection and enforceability of the liens granted to the 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 remedies under the Assigned
Agreement or this Consent (collectively, a "MATERIAL ADVERSE EFFECT").
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3.5 COMPLIANCE WITH OTHER INSTRUMENTS. The Consenting Party is not in
violation of its charter or by-laws, and the execution, delivery and performance
by the Consenting Party of this Consent and the Assigned Agreement and the
consummation of the transactions contemplated hereby and thereby will not result
in any violation of, breach of or default under any term of its charter or
by-laws, or of any contract or agreement to which it is a party or by which it
or its property is bound, or of any license, permit, franchise, judgment, writ,
injunction, decree, order, charter, law, ordinance, rule or regulation
applicable to it, except for any such violations which, individually or in the
aggregate, would not have a Material Adverse Effect on the Consenting Party.
3.6 GOVERNMENT CONSENT. No consent, order, authorization, waiver,
approval or any other action, or registration, declaration or filing with, any
person, board or body, public or private (collectively, the "APPROVALS"), is
required to be obtained by the Consenting Party in connection with the
execution, delivery or performance of the Assigned Agreement or the consummation
of the transactions contemplated thereunder, except as listed in Exhibit B
hereto. All such Approvals listed on Exhibit B, except for those set forth in
Part II thereof (the "DEFERRED APPROVALS"), are Final (as defined below). An
Approval shall be "FINAL" if it has been validly issued, is in full force and
effect, is not subject to any condition (other than compliance with the terms
thereof), does not impose restrictions or requirements inconsistent with the
terms of the Assigned Agreement, and is final and not subject to any appeal. The
Consenting Party reasonably believes that each Deferred Approval will be
obtained in the ordinary course of business prior to the time when such Deferred
Approval is required to be Final.
3.7 NO DEFAULT OR AMENDMENT. Neither the Consenting Party nor, to the
best of the Consenting Party's knowledge after due inquiry, any other party to
the Assigned Agreement is in default of any of its obligations thereunder. Thee
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 have
complied with all conditions precedent to the respective obligations of such
party to be performed 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.
SECTION 4. OPINION OF COUNSEL The Consenting Party shall deliver an opinion of
counsel relating to the Assigned Agreement and this Consent substantially in the
form of Exhibit
6
C hereto, and addressing such other matters as may be requested by the
Partnership and the Collateral Agent.
SECTION 5. MISCELLANEOUS
5.1 NOTICES. All notices and other communications hereunder shall be in
writing, shall be deemed given upon receipt thereof by the party or parties to
whom such notice is addressed, shall refer on their face to the Assigned
Agreement (although failure to so refer shall not render any such notice or
communication ineffective), shall be sent by first class mail, by personal
delivery or by a nationally recognized guaranteed overnight delivery service
(E.G., UPS Next Day Air), and shall be directed as follows:
If to the Consenting Party: Heard County Water Authority
00000 Xxxxxxx 00 Xxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Executive Director
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to the Partnership: Tenaska Georgia Partners, L.P.
0000 X. Xxxxx Xxxx., Xxxxx 000
Xxxxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
(i) Plant Manager (Designated Representative)
Tenaska Georgia Partners, X.X.
Xxxxxxxx, Xxxxxxx 00000
(ii) Xxxxxx Xxxxx
0000 Xxxxx 000xx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxxx 00000-0000
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 Georgia or of the United States of America
for the Northern District of Georgia, and, by execution and delivery of this
Consent, each of the Consenting Party, the 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, 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.
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, the Partnership, and the
Collateral Agent.
(a) The Consenting Party's obligations hereunder are absolute
and unconditional, and the Consenting Party has no right, and shall have no
right, to terminate this Consent or to be released, relieved or discharged from
any obligation or liability hereunder until
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the occurrence of one of the following: (1) all obligations under the Finance
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, (2) the expiration of the thirty (30) year term
of the Assigned Agreement, or (3) provided that the Senior Parties and the
Collateral Agent have not elected to enter into a new agreement pursuant to the
terms of Section 1.4 above, the termination of the Assigned Agreement in
accordance with its terms and in accordance with the terms of this Consent.
(b) In the event that the Collateral Agent delivers a
termination notice to the Consenting Party pursuant to this Section 5.6, this
Consent shall terminate for all purposes as to the Collateral Agent and the
Financing Documents and the Collateral Agent and the Senior Parties shall have
no further rights or obligations under this Consent; provided, however, that the
Consenting Party agrees that this Consent shall continue to apply for the
benefit of the Partnership and the providers of any new credit facilities (the
"NEW LENDER") entered into by the Partnership to refinance or replace the
Finance Liabilities provided that (i) within five (5) days following delivery by
the Collateral Agent to the Consenting Party of the Termination Notice pursuant
to this Section 5.6, the New Lender or an agent, trustee or other representative
of the New Lender, shall have notified the Consenting Party that it undertakes
the prospective obligations of the Collateral Agent under this Consent, and
shall have supplied substitute notice address information for Section 5.1 and
new payment instructions (countersigned on behalf of the Partnership) for
Exhibit A hereto, (ii) the amount of the new credit facilities do not exceed the
original amount of the commitment by the Senior Parties to make extend other
credit facilities under the original Financing Documents, and (iii) thereafter,
(w) the term "FINANCE LIABILITIES" under this Consent will be deemed to refer to
the new credit facilities, (x) the term "COLLATERAL AGENT" or "SENIOR PARTIES"
shall be deemed to refer to the New Lender or any Collateral Agent or trustee
for the New Lender, (y) the term "FINANCING DOCUMENTS" shall be deemed to refer
to the credit agreement, indenture or other instrument providing for the new
credit facilities and (z) 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.
5.7 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.
5.8 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.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE CONSENTING PARTY, THE
PARTNERSHIP AND THE COLLATERAL AGENT HEREBY IRREVOCABLY WAIVE ALL RIGHT OF TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN
CONNECTION WITH THIS CONSENT.
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5.9 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.
5.10 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.
5.11 WAIVER OF SOVEREIGN IMMUNITY. To the extent that the Consenting
Party is protected by sovereign immunity, the Consenting Party hereby
acknowledges that, pursuant to the Georgia Constitution (1983 Ga. Const. Article
I, Section II, Paragraph IX(c)) and O.C.G.A. Section 50-21-1(a), and to the
extent permitted by other applicable law, the Consenting Party irrevocably
waives, and that it intends to irrevocably waive, the defense of sovereign
immunity in connection with any matters related to this Consent or the
performance of the Consenting Party hereunder. To the extent that the Consenting
Party and its assets are protected by sovereign immunity and it is determined
for any reason that the Consenting Party has not effectively waived its
sovereign immunity, then the Consenting Party further agrees not to raise the
defense of sovereign immunity in connection with any matters related to this
Consent or the performance of the Consenting Party hereunder. Notwithstanding
the foregoing waiver of sovereign immunity, the Consenting Party reserves and is
not waiving the right to raise sovereign immunity as a defense to any civil
action or actions brought by persons or entities other than the Collateral
Agent, the Senior Parties, the Partnership, and their respective successors and
assigns.
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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.
HEARD COUNTY WATER AUTHORITY
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chairman
TENASKA GEORGIA PARTNERS, L.P.
By: TENASKA GEORGIA, INC.,
as 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
[Other Addressees]
Tenaska Georgia Partners, L.P.
0000 X. Xxxxx Xxxx., Xxxxx 000
Xxxxxxxxx, Xxxxx 00000
Re: The 950 MW peaking electric power generation process
facility located in Heard County, Georgia (the "Project").
Dear Ladies and Gentlemen:
I have acted as counsel to Heard County Water Authority, a public
corporation and political subdivision of the State of Georgia created and
existing under the laws of the State of Georgia (the "Authority"), in connection
with the Project to be constructed by Tenaska Georgia Partners, L.P., a Delaware
limited partnership ("TGP"), for which the Authority will provide the supply and
use of water pursuant to the Water Purchase Agreement, dated as of February 25,
1999 between TGP and the Authority (the "Purchase Agreement"). This opinion is
being provided in connection with the transactions contemplated by the terms of
the Bond Purchase Agreement, dated as of the date hereof by and among TGP, the
Authority, and the Purchasers of the Bonds (as defined in the Bond Purchase
Agreement).
In connection with this opinion, I have examined originals or copies,
certified or otherwise identified to my satisfaction, of the following:
(i) the Purchase Agreement;
(ii) the Consent and Agreement of the Authority to the
Purchase Agreement, dated as of the date hereof,
(the "Consent");
(iii) the Charter, By-laws, and any rules and regulations
governing of the Authority; and
(iv) the resolutions authorizing the execution and
delivery of the Purchase Agreement and the Consent,
duly adopted by the Board of Directors of the
Authority;
The documents referred to in items (iii) and (iv) above are hereinafter
collectively referred to as the "Governing Documents," and the Purchase
Agreement and the Consent are hereinafter collectively referred to as the
"Documents." In addition, I have examined and am familiar with originals or
copies, certified or otherwise identified to my satisfaction, of such other
documents as I have deemed necessary or appropriate as a basis for the opinions
set forth below.
In my examination I have assumed the genuineness of all signatures, the
authenticity of all documents submitted to me as originals, the conformity to
original documents of all documents submitted to me as certified or photostatic
copies, and the authenticity of the originals of such copies. In rendering the
opinions expressed below, I have further assumed, without any independent
investigation or verification of any kind, that each Document I have examined is
the valid and binding obligation of each party thereto other than the Authority.
This opinion assumes that each of the Documents has been duly executed and
delivered by, constitute legal, valid and binding obligations of, and are
enforceable in accordance with their respective terms against, each party to
such Documents other than the Authority.
I am admitted to the bar of the State of Georgia. I express no opinion
as to the law of any jurisdiction other than (i) the laws of the State of
Georgia and (ii) the federal laws of the United States of America.
Based upon the foregoing and subject to the limitations,
qualifications, exceptions and assumptions set forth herein, I am of the opinion
that:
1. The Authority is a a public corporation and political
subdivision of the State of Georgia created and existing under the laws
of the State of Georgia duly organized, validly existing and in good
standing under the laws of the State of Georgia. The Authority is duly
qualified to transact business in each jurisdiction in which it owns or
leases real property or in which the nature of its business requires it
to be so qualified.
2. The Authority has full corporate power and authority to enter
into, deliver and perform its obligations under each of the Documents.
3. The Authority has taken all necessary corporate action to
authorize the execution, delivery and performance by it of each
Document.
4. The Authority has duly executed and delivered each Document.
5. Each Document constitutes the valid and binding obligation of
the Authority enforceable against the Authority in accordance with its
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
enforcement of creditors rights generally and by general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law).
6. The execution, delivery and performance by the Authority of the
Documents will not: (i) contravene any applicable provision of any law,
regulation, ruling, order or decree of any governmental authority to
which or by which the Authority or any of its property or assets is
subject or bound or (ii) violate any provision of the Governing
Documents of the Authority. The execution, delivery and performance by
the Authority of the Documents do not and will not, to the best of my
knowledge after due inquiry, conflict with, result in any breach of, or
constitute a default under, or result in the creation or imposition of
(or the obligation to create or impose) any lien or encumbrance upon
any of the property or assets of the Authority pursuant to any
provision of any securities issued by the Authority, or any indenture,
mortgage, deed of trust, contract,
undertaking, document, instrument or other agreement to which the
Authority is a party or by which it or any of its property or assets is
bound.
7. No consent, order, authorization, waiver, approval or any other
action, or registration, declaration or filing with, any person, board
or body, public or private, is required to be obtained by the Authority
in connection with the execution, delivery or performance of the
Documents or the consummation of the transactions contemplated thereby.
8. To the best of my knowledge after due inquiry, there are no
pending or threatened actions or proceedings affecting the Authority or
any of its properties or assets that individually or in the aggregate
could prohibit or limit in any way the execution, delivery and
performance by the Authority of any of the Documents.
This opinion is being furnished only to the addressees hereof and their
respective successors and assigns and is solely for the benefit of such parties;
provided that assignees of, or participants in, the interests of the addressees
of this letter may rely on this opinion as if it were addressed to them.
Very truly yours,
