Exhibit 4.16
EXECUTION COPY
CONSENT AND AGREEMENT
This CONSENT AND AGREEMENT (this "Consent"), dated as of November 10,
1999 among General Electric Company, a New York 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 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, Tenaska Georgia I, L.P. and the Consenting Party have
entered into that certain Contract for Purchase, dated as of August 27, 1999 (as
amended, restated, modified or otherwise supplemented from time to time in
accordance with the terms thereof, the "Assigned Agreement");
WHEREAS, Tenaska Georgia I, L.P. has assigned and the
Partnership has assumed all of Tenaska Georgia I, L.P.'s right, title and
interest in, and obligations under the Assigned Agreement pursuant to an
Assignment and Assumption Agreement dated as of and delivered to the Consenting
Party on the date hereof ("Assignment and Assumption Agreement").
WHEREAS, the Partnership has assigned and Xxxxxx Construction
Corporation, a Delaware Corporation (the "Contractor"), has assumed certain of
the Partnership's right, title and interest in, and obligations under the
Assigned Agreement pursuant to an Assignment and Assumption Agreement dated as
of and delivered to the Consenting Party on the date hereof ("Assignment and
Assumption 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
2
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.
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 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 which period shall in either event run
concurrently with the period of any notice in connection with such default which
is given by the Consenting Party to the Partnership under the Assigned
Agreement; 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, 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.
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
3
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.
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 and (ii) 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 CONSENT TO ASSIGNMENT AND ASSUMPTION OF THE ASSIGNED AGREEMENT.
The Consenting Party consents to the assignments by Tenaska Georgia I, L.P. to
the Partnership and the assumption by the Partnership and then the Contractor of
the Assigned Agreement pursuant to the Assignment and Assumption Agreement, and
acknowledges and agrees as follows:
(a) Tenaska Georgia I, L.P. and the Partnership are released
from any and all obligations and liability under the Assigned Agreement, except
for the obligation to process and make payments with respect to the Assigned
Agreement in accordance with and as limited by the Assignment and Assumption
Agreement;
(b) As a condition to receipt of any payment under the
Assigned Agreement, the Consenting Party will execute a lien waiver (in a form
supplied by the Partnership or the Contractor reasonably satisfactory to the
Consenting Party) which lien waiver will waive the Consenting Party's rights to
place a lien on the Project with respect to that portion of the Equipment (as
defined in the Assigned Agreement) and Services (as defined in the Assigned
Agreement) which is the subject of that payment and any prior payments received
by the Consenting Party; and
4
(c) The Partnership retains certain rights pursuant to Section
22.1 and Appendix M of the Assigned Agreement and there shall be no amendment of
the Assigned Agreement without the prior written consent of the Partnership. The
Consenting Party agrees that it shall provide to the Partnership a duplicate
copy of any notice given to the Contractor under the Assigned Agreement.
(d) In connection with the issuance of the Bonds and the other
Financing Documents, the Consenting Party hereby consents pursuant to Section
11.5 of the Assigned Agreement to the disclosure of the terms and provisions of
Article 3 of the Assigned Agreement 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.
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 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 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.
5
3.3 EXECUTION AND DELIVERY; BINDING AGREEMENTS. Each of this Consent
and the Assigned Agreement is in full force and effect, has been duly executed
and delivered on behalf of the Consenting Party by the appropriate officers of
the Consenting Party, and constitutes the legal, valid and binding obligation of
the Consenting Party, enforceable against the Consenting Party in accordance
with its terms except as the enforceability thereof may be limited by (a)
bankruptcy, insolvency, reorganization, or other similar laws affecting the
enforcement of creditors' rights generally and (b) general equitable principles
(whether considered in a proceeding in equity or at law).
3.4 LITIGATION. There is no legislation, litigation, action, suit,
proceeding or investigation pending or (to the best of the Consenting Party's
knowledge after due inquiry) threatened against the Consenting Party before or
by any court, administrative agency, arbitrator or governmental authority, body
or agency which, if adversely determined, individually or in the aggregate, (a)
could adversely affect the performance by the Consenting Party of its
obligations hereunder or under the Assigned Agreement, or which could modify or
otherwise adversely affect the Approvals (as defined in Section 3.6), (b)
questions the validity, binding effect or enforceability hereof or of the
Assigned Agreement, any action taken or to be taken pursuant hereto or thereto
or any of the transactions contemplated hereby or thereby or (c) could have a
material adverse effect upon (i) the business, operations, properties, assets,
or condition (financial or otherwise) of the Consenting Party, (ii) the ability
of the Consenting Party to perform under the Assigned Agreement or this Consent,
(iii) the business, operations, properties, assets, prospects or condition
(financial or otherwise) of the Project, (iv) the value, validity, perfection
and enforceability of the liens granted to the 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").
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 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
6
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 have
complied with all conditions precedent to the respective obligations of such
party to perform under the Assigned Agreement. To the best of the Consenting
Party's knowledge after due inquiry, no event or condition exists which would
either immediately or with the passage of any applicable grace period or giving
of notice, or both, enable either the Consenting Party or the 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, 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: General Electric Company
c/o Global Power Plant Systems
Department
General Electric International, Inc.
0 Xxxxx Xxxx, Xxxx. 0-000
Xxxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
7
If to the Partnership: Tenaska Georgia Partners, L.P.
0000 Xxxxx 000xx Xxxxxx, Xxxxx 000
Xxxxx, XX 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
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, 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
8
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.
5.7 TERMINATION. (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 Collateral Agent delivers the
Termination Notice to the Consenting Party pursuant to this Section 5.7, 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 new credit facilities to replace
the Financing Documents (the "New Lender") 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 5.7, the New Lender or an agent,
trustee or other representative of the New Lender, shall have notified the
Consenting Party that it undertakes the prospective obligations of the
"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, (ii) the amount of the new credit
facilities do not exceed the original amount of commitment by the Senior Parties
to make loans and extend other credit facilities under the 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 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
9
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 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.
5.13 ENTIRE AGREEMENT. This Consent embodies the complete agreement
between the parties hereto and supersedes all other oral or written
understandings or agreements.
10
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.
GENERAL ELECTRIC COMPANY
By: /s/ Xxxxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Vice President
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
g
GE POWER SYSTEMS
--------------------------------------------------------------------------------
XXXXXXX X. XXXXXX GENERAL ELECTRIC COMPANY
COUNSEL-AFRICA, INDIA, MID EAST XXX XXXXX XXXX, XXXXXXXX 00, XXXXX 000
XXXXXXXXXXX, XX 00000
TEL. (000) 000-0000
FAX (000) 000-0000
November , 1999
To Addressees on Schedule A
Re: Natural gas-fired electric generating facility located in Heard
County, Georgia (the "Project")
Ladies and Gentlemen:
I have acted as counsel to General Electric Company, a New York
corporation (the "Company") in connection with the Project to be constructed by
Tenaska Georgia Partners, L.P., a Delaware limited partnership ("TGP"), with
respect to which which the Company has executed that certain Contract for
Purchase (the "Agreement") dated August 23, 1999 to which TGP was a party, and
pursuant to which the Company will provide to TGP six PG7241 gas
turbine-generators, together with auxiliary equipment. This opinion is delivered
to you pursuant to the Agreement dated as of November 1, 1999 ("the Common
Agreement") by and among TGP, 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
herein and not otherwise defined herein shall have the meanings ascribed to such
terms in the Common Agreement.
In connection with this opinion, I have examined originals or copies,
certified or otherwise identified to my satisfaction, of the following:
(i) the Agreement;
(ii) the Consent and Agreement of the Company, dated as
of ________ (the "Consent");
(iii) the Certificate of Incorporation and By-Laws of the
Company; and
(iv) the resolutions authorizing the execution and delivery
of the Agreement and the Consent, duly adopted by the
Board of Directors of the Company.
Legal Opinion of
Xxxxxxx X. Xxxxxx
November ___, 1999
Page 2
The documents referred to in items (iii) and (iv) above are hereinafter
collectively referred to as the "Governing Documents" and the Agreement and the
Consent are hereinafter collectively referred to as the "Documents". In
addition, I have examined and am familiar with originals or copies, certified or
otherwise identified to my satisfaction, of such other documents as I have
deemed necessary or appropriate as a basis for the opinions set forth below.
In my examination I have assumed the genuineness of all signatures, the
authenticity of all documents submitted to me as originals, the conformity to
original documents of all documents submitted to me as certified or photostatic
copies, and the authenticity of the originals of such copies. In rendering the
opinions expressed below, I have further assumed, without any independent
investigation or verification of any kind, that each Document I have examined is
the valid and binding obligation of each party thereto other than the Company.
I am admitted to the bar of the State of New York. I express no opinion
as to the law of any jurisdiction other than (i) the laws of the State of New
York 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 Company is a corporation, duly organized, validly
existing and in good standing under the laws of the State of New York.
The Company is duly qualified to transact business in each jurisdiction
in which the nature of its business requires it to be so qualified.
2. The Company has full corporate power and authority to enter
into, deliver and perform its obligations under each of the Documents.
3. The Company has taken all necessary corporate action to
authorize the execution, delivery and performance by it of each
Document.
4. The Company has duly executed and delivered each Document.
5. Each Document constitutes the valid and binding obligation
of the Company enforceable against the Company 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 Company of
the Documents will not: (i) contravene any applicable provision of any
law, regulation,
2
Legal Opinion of
Xxxxxxx X. Xxxxxx
November ___, 1999
Page 3
ruling, order or decree of any governmental authority to which or by
which the Company or any of its property or assets is subject or bound
or (ii) violate any provision of the Governing Documents of the
Company. The execution, delivery and performance by the Company of the
Documents do not and will not, to the best of our 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 Company pursuant to any provision of any
securities issued by the Company, or any indenture, mortgage, deed of
trust, contract, undertaking, document, instrument or other agreement
to which the Company 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
Company in connection with the execution, delivery or performance of
the Documents or the consummation of the transactions contemplated
thereby.
8. To the best of our knowledge after due inquiry, there are
no pending or threatened actions or proceedings affecting the Company
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 Company of any of the Documents.
This opinion is being furnished only to the Agent, the Borrower, the
parties identified on Schedule A hereto and their respective successors and
assigns and is solely for the benefit of such parties; provided that assignees
of, or participants in, the interests of the Banks may rely on this opinion as
if it were addressed to them.
Very truly yours,
Xxxxxxx X. Xxxxxx
3
Legal Opinion of
Xxxxxxx X. Xxxxxx
November ___, 1999
Page 4
SCHEDULE A
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Credit Lyonnais
1301 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
TD Securities (USA) Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
The Toronto-Dominion Bank
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tenaska Georgia Partners, L.P.
0000 Xxxxx 000xx Xxxxxx
Xxxxx 000
Xxxxx, XX 00000 - 4446
The Chase Manhattan Bank
Capital Markets Fiduciary Services
International & Project Finance Service Delivery
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
4
