Exhibit 4.23
EXECUTION COPY
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GUARANTY AGREEMENT
BETWEEN
TENASKA GEORGIA PARTNERS, L.P.
AND
THE CHASE MANHATTAN BANK,
AS TRUSTEE
DATED AS OF NOVEMBER 1, 1999
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This instrument was prepared by:
KING & SPALDING
0000 XXXXXX XX XXX XXXXXXXX
XXX XXXX, XXX XXXX 00000
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (the "Guaranty") made and entered into as of
November 1, 1999, by and between TENASKA GEORGIA PARTNERS, L.P., a limited
partnership duly organized and existing under the laws of State of Delaware (the
"Guarantor"), and THE CHASE MANHATTAN BANK, a New York banking corporation
having its principal corporate trust office in The City of New York, New York,
together with any successor trustee or trustees at the time serving as such
under the Indenture of Trust described below (the "Trustee");
W I T N E S S E T H T H A T:
WHEREAS, at the request of the Guarantor, the Development Authority
of Heard County, a public body corporate and politic created and existing
under the laws of the State of Georgia (the "Issuer"), has agreed to issue
its Taxable Industrial Development Revenue Bonds (Tenaska Georgia Partners,
L.P. Project), Series 1999, in an aggregate principal amount not to exceed
$400,000,000 (the "Bonds"); and
WHEREAS, the Bonds are to be issued under and pursuant to an
Indenture of Trust, dated as of even date herewith, between the Issuer and
the Trustee (as the same may be supplemented or amended from time to time in
accordance with its terms, the "Indenture"), a true and correct copy of which
has been delivered to the Guarantor, and the Bonds are more particularly
described in Articles II and III of the Indenture (unless otherwise
indicated, capitalized terms used herein but not defined shall have the
meanings assigned to such terms in the Indenture); and
WHEREAS, the proceeds derived from the issuance and sale of the
Bonds are to be applied toward the acquisition of certain real estate (the
"Leased Land"), the acquisition, construction and installation of certain
buildings and structures thereon (the "Building") and the acquisition,
construction and installation of new machinery and equipment and related real
and personal property therein (the "Lease Equipment") (collectively, the
"Project") to be leased to the Guarantor subject to "Permitted Liens" for the
use and benefit of the Guarantor pursuant to a Lease Agreement, dated as of
November 1, 1999 (as the same may be amended from time to time in accordance
with its terms, the "Lease Agreement") between the Issuer, as lessor, and the
Guarantor, as lessee; and
WHEREAS, the Guarantor desires that the Issuer issue the Bonds and
apply the proceeds derived therefrom as described above and is willing to
enter into this Guaranty, intending to be legally bound hereby;
NOW THEREFORE, in consideration of the premises the Guarantor does
hereby agree with the Trustee, intending to be legally bound hereby, as
follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES
Section 1.1. REPRESENTATIONS AND WARRANTIES OF GUARANTOR. The
Guarantor represents and warrants that:
(a) ORGANIZATION; POWER; AND STATUS. The Guarantor (i) is a
limited partnership duly organized and validly existing under the
laws of the State of Delaware and (ii) is duly qualified to do
business as a limited partnership in each jurisdiction in which its
ownership or lease of property or the conduct of its business
requires such qualification, and has all power and authority
necessary to own, lease or hold its property and to conduct the
business in which it is now engaged or proposed to be engaged,
except where the failure to so qualify or have such power or
authority would not, singularly or in the aggregate, have a Material
Adverse Effect (as such term is defined in the Common Agreement).
(b) AUTHORIZATION; ENFORCEABILITY; EXECUTION AND DELIVERY. (i) The
Guarantor has full partnership right, power and authority to execute
and deliver this Guaranty and to perform its obligations hereunder;
and all partnership action required to be taken for the due and
proper authorization, execution and delivery of this Guaranty and
the consummation of the transactions contemplated hereby has been
duly and validly taken.
(ii) This Guaranty has been duly authorized, executed
and delivered by the Guarantor. This Guaranty constitutes a valid and
legally binding obligation of the Guarantor enforceable against it in
accordance with the terms hereof, except to the extent limited by
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other laws affecting creditors' rights
generally, and by general equitable principles (whether considered in a
proceeding in equity or at law).
(c) NO CONFLICTS; LAWS; AND CONTRACTS. The execution, delivery and
performance by the Guarantor of this Guaranty and the consummation
of the transactions contemplated hereby will not (i) conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Guarantor pursuant to, any material
indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument to which the Guarantor is a party
or by which the Guarantor is bound or to which any of the property
or assets of the Guarantor is subject, (ii) result in any
violation of the provisions of the Partnership Agreement (as
such term is defined in the Common Agreement), or (iii) result in
any violation of any statute or any judgment, order, decree,
rule or regulation of any court or arbitrator or governmental
agency or body having jurisdiction over the Guarantor or any of
its properties or assets.
ARTICLE II
COVENANTS AND GUARANTEES
Section 2.1. GUARANTEE OF BONDS. The Guarantor hereby absolutely and
unconditionally guarantees to the Trustee for the benefit of the owners at
any time and from time to time of the Bonds the full and prompt payment in
accordance with the provisions of the Indenture of: (a) the principal of any
Bond when and as the same shall become due and payable, whether at the stated
maturity thereof, by acceleration or call for prepayment or otherwise and (b)
the interest on any Bond when and as the same shall become due and payable.
If the owner of any Bond shall fail to receive any such payment as and when
said payment becomes due, the Guarantor shall immediately pay to the Trustee,
in lawful money of the United States of America, an amount equal to the
required payment. In the event of such a failure, this guarantee is a primary
and original obligation of the Guarantor and is an absolute, unconditional,
continuing and irrevocable guarantee of payment and is not a guarantee of
collectibility or performance and is in no way conditioned or contingent upon
any attempt to collect from the Issuer or to realize upon any of the Trust
Estate (as defined in the Indenture). This Guaranty shall remain in full
force and effect without respect to future changes in conditions, including
change in law, until the Payment in Full of the Bonds (as defined in the
Indenture). Subject to the provisions of Section 5.2 hereof and unless all of
the Bonds shall have become due at stated maturity or by acceleration or
prepayment prior to stated maturity or otherwise, each and every default in
payment of the principal of or interest on any Bond shall give rise to a
separate cause of action hereunder and separate suits may be brought
hereunder as each cause of action arises. The Guarantor hereby waives (a)
notice of the acceptance hereof and of any action taken or omitted in
reliance hereon, (b) any presentment, demand, notice or protest of any kind,
except as required under the Lease Agreement and the Indenture, and (c) to
the fullest extent permitted by law, any other act or thing or omission or
delay to do any other act or thing which might in any manner or to any extent
vary the risk of the Guarantor or which might otherwise operate as a
discharge of the Guarantor's obligations hereunder, except payment.
If any principal of the Bonds shall have been accelerated pursuant
to Section 11.02 of the Indenture, and such acceleration shall have been
rescinded and annulled pursuant to Section 11.13 of the Indenture, then the
amount of principal that was the subject of such acceleration shall no longer
be considered as due under the provisions of this Section and Section 5.1 of
this Guaranty.
Section 2.2. UNCONDITIONAL OBLIGATION. The obligations of the
Guarantor under this Guaranty shall be absolute and unconditional and shall
remain in full force and effect until Payment in Full of the Bonds in
accordance with the Indenture and, until Payment in Full of the Bonds, shall
not to the fullest extent permitted by law, be affected, modified or impaired
upon the happening from time to time of any event, including, without
limitation, any of the following, whether or not with notice to or the
consent of the Guarantor:
(a) the compromise, settlement, release or termination of any or
all of the obligations, covenants or agreements of the Issuer under
the Indenture, the Lease Agreement or the Security Deed;
(b) the failure to give notice to the Guarantor of the occurrence
of an event of default under the terms and provisions of this
Guaranty or an Event of Default under the Indenture, the Lease
Agreement or the Security Deed;
(c) the assigning or mortgaging or the purported assigning or
mortgaging of all or any part of the interest of the Issuer in the
Project;
(d) the waiver of the payment, performance or observance by the
Issuer of any of its obligations, covenants or agreements contained
in the Indenture, the Lease Agreement or the Security Deed or by the
Guarantor of any of its obligations, covenants or agreements
contained in this Guaranty, the Bond Purchase Agreement or the Lease
Agreement;
(e) the extension of the time for payment of any principal of or
interest on any Bond or any part thereof owing or payable on such
Bond or under this Guaranty or of the time for performance of any
other obligation, covenant or agreement under or arising out of the
Indenture, the Lease Agreement, the Security Deed or this Guaranty
or the extension or the renewal of either thereof;
(f) the modification or amendment (whether material or otherwise)
of any obligation, covenant or agreement set forth in the Indenture,
the Lease Agreement or the Security Deed;
(g) the taking of or the omitting to take any of the actions
referred to in, or required by, the Indenture, the Lease Agreement,
the Security Deed or this Guaranty;
(h) any failure, omission, delay or lack on the part of the
Issuer or the Trustee to enforce, assert or exercise any right,
power or remedy conferred on the Trustee by this Guaranty or on the
Issuer or the Trustee by the Indenture, the Lease Agreement or the
Security Deed, or any other act or acts on the part of the Issuer,
the Trustee or any of the owners at any time or from time to time of
the Bonds;
(i) the voluntary or involuntary liquidation, dissolution, sale
or other disposition of all or substantially all of the assets of
the Guarantor or the Issuer, the marshalling of assets and
liabilities, receivership, insolvency, bankruptcy, assignment for
the benefit of creditors, reorganization, arrangement, composition
with creditors or readjustment of, or other similar proceedings
affecting the Guarantor or the Issuer or any of the assets of either
of them, or any allegation or contest of the validity of this
Guaranty, the Lease Agreement or the Security Deed in any proceeding;
(j) to the extent permitted by law, any event or action that
would, in the absence of this clause, result in the release or
discharge of the Guarantor from the performance or observance of any
obligation, covenant or agreement contained in this Guaranty by
operation of law;
(k) any right of set-off, counterclaim, reduction, or diminution
which the Guarantor might have against the Issuer or the Trustee
other than payment under this Guaranty;
(l) failure of the Issuer to issue or failure of the Guarantor
to request the Issuer to order authenticated and delivered by the
Trustee, Bonds in the entire amount authorized pursuant to the terms
of the Indenture;
(m) Payment or prepayment (whether by payment or refunding) of
any portion of the Bonds, except to the extent of such payment; or
(n) the failure of the Guarantor fully to perform any of its
obligations set forth in this Guaranty.
Section 2.3. WAIVER OF NOTICE. The Guarantor hereby expressly waives
notice in writing, or otherwise, from the Trustee or the owners at any time
or from time to time of any of the Bonds of their acceptance and reliance on
this Guaranty.
Section 2.4. COSTS, EXPENSES AND FEES. The Guarantor agrees to pay
all reasonable costs, expenses and fees, including all reasonable attorneys'
fees, which may be incurred by the Trustee in connection with this Guaranty,
whether the same shall be enforced by suit or otherwise.
ARTICLE III
[INTENTIONALLY OMITTED]
ARTICLE IV
NOTICE AND SERVICE OF PROCESS,
PLEADINGS AND OTHER PAPERS
Section 4.1. AGENT FOR SERVICE. The Guarantor designates and
appoints, without power of revocation prior to Payment in Full of the Bonds,
(i) Tenaska Georgia, Inc., a Delaware corporation, the general partner of the
Guarantor, and (ii) the Secretary of State of the State of Georgia, as the
respective agents of the Guarantor upon whom may be served all process,
pleadings, notices or other papers which may or must be served upon the
Guarantor as a result of any of its obligations under this Guaranty. The
Guarantor shall take any and all actions,
including the filing of any and all documents or instruments as shall be
necessary to continue such appointment in full force and effect.
Section 4.2. NO DEFENSE, COUNTERCLAIM OR SET-OFF. The Guarantor
further agrees, covenants and stipulates, without power of revocation prior
to Payment in Full of the Bonds that in any civil suit or action brought
(after notice as provided herein) against it as a result of any of its
obligations under this Guaranty, it will not assert as a defense,
counterclaim or set-off (i) any default by the Issuer or the Trustee, or (ii)
any cause of action, claim or counterclaim which it may have against the
Issuer or the Trustee. Failure to assert such matter shall not be deemed to
be a waiver by the Guarantor but the same may be asserted in a separate
action.
Section 4.3. NOTICES. Any process, pleadings, notices or other
papers served upon any of the foregoing agents shall, at the same time, be
sent by certified or registered mail, postage prepaid, return receipt
requested, or by overnight delivery, to the Guarantor at the address
specified in Section 6.6 hereof, or to such other address as may be furnished
by the Guarantor to the Issuer and the Trustee in writing.
ARTICLE V
EVENTS OF DEFAULT AND REMEDIES
Section 5.1. EVENTS OF DEFAULT. If any of the following events
occurs and is continuing, it is hereby defined and declared to be and
constitute an "event of default" hereunder:
(a) failure by the Guarantor to make any payment required to be
made under Section 2.1 hereof as and when the same shall become due
and payable two business days after written notice of such failure
shall have been given to any officer of the Guarantor; or
(b) failure by the Guarantor to comply with any other provision
of this Guaranty and continuance of such failure for more than 60
days after written notice of such failure so to comply with this
Guaranty have been given to any officer of the Guarantor.
Section 5.2. REMEDIES. Whenever any event of default referred to in
Section 5.1 hereof shall have occurred and is continuing, the Trustee may,
with the consent of the Collateral Agent, and shall, at the direction of the
Collateral Agent, take such action and pursue such remedies against the
Guarantor as may be available at law or in equity, and the Trustee shall have
the right, with the consent of the Collateral Agent, to proceed first and
directly against the Guarantor under this Guaranty without proceeding against
or exhausting any other remedies which it may have and without resorting to
any other security held by the Issuer, the Trustee or the Collateral Agent.
Before taking any action hereunder, the Trustee may require that satisfactory
indemnity be furnished for the reimbursement of all expenses to which it may
be put and to protect it against all liability, except liability which is
adjudicated to have resulted from its negligence or wilful default, by reason
of any action so taken.
The right to enforce this Guaranty is vested exclusively in the Trustee
for the equal and pro rata benefit of all owners at any time of the Bonds
(including the Collateral Agent, as pledgee of the Bonds under the Security
Documents, as such term is defined in the Common Agreement), unless the Trustee
refuses or neglects to act within a reasonable time after being requested in
writing to do so by the Collateral Agent and after being furnished satisfactory
indemnity as aforesaid, in which event the Collateral Agent may thereupon so act
in the name and behalf of the Trustee or may so act in its own name in lieu of
action by or in the name and behalf of the Trustee.
Section 5.3. NO REMEDY EXCLUSIVE. No remedy herein conferred upon or
reserved to the Trustee is intended to be exclusive of any other available
remedy or remedies, but each and every such remedy shall be cumulative and
shall be in addition to every other remedy given under this Guaranty or now
or hereafter existing at law or in equity. No delay or omission to exercise
any right or power accruing upon any default, event of default, omission or
failure of performance hereunder shall impair any such right or power or be
construed to be a waiver thereof, but any such right and power may be
exercised from time to time and as often as may be deemed expedient. In order
to entitle the Trustee to exercise any remedy reserved to it in this
Guaranty, it shall not be necessary to physically produce the Bonds in any
proceedings instituted by the Trustee or to give any notice, other than such
notice as may be herein expressly required.
Section 5.4. GUARANTY FOR BENEFIT OF TRUSTEE AND OWNERS OF THE
BONDS. This Guaranty is entered into by the Guarantor for the benefit of the
Trustee and the owners of the Bonds (including the Collateral Agent, as
pledgee of the Bonds under the Security Documents, as such term is defined in
the Common Agreement) and any successor trustee or co-trustee and their
respective successors and assigns under the Indenture, all of whom shall be
entitled to enforce performance and observance of this Guaranty, subject to
the provisions of Section 5.2 hereof, and of the guarantees and other
provisions herein contained to the same extent as if they were parties
signatory hereto.
Section 5.5. REMEDIES CUMULATIVE. The terms of this Guaranty may be
enforced as to any one or more breaches, either separately or cumulatively.
ARTICLE VI
WAIVERS, AMENDMENTS AND MISCELLANEOUS
Section 6.1. WAIVERS, AMENDMENTS AND MODIFICATIONS. In the event any
provision contained in this Guaranty should be breached by the Guarantor and
thereafter duly waived by the Trustee, such waiver shall be limited to the
particular breach so waived and shall not be deemed to waive any other breach
hereunder. No waiver, amendment, release or modification of this Guaranty
shall be established by conduct, custom or course of dealing, but solely by
an instrument in writing duly executed by the Trustee. The Trustee shall not
consent to any amendment or modification of this Guaranty or waive any of the
provisions hereof without the written approval or consent of the Collateral
Agent and of the owners of all of the Bonds at the
time outstanding given as hereinafter provided. If at any time, the Guarantor
shall request the consent of the Trustee to any such proposed amendment,
change or modification of this Guaranty or the waiver of any of the
provisions hereof, the Trustee shall (except as hereinafter set forth), upon
being satisfactorily indemnified with respect to expenses, cause notice of
such proposed amendment, change, modification or waiver to be mailed, first
class mail, postage prepaid, to all owners of outstanding Bonds. Such notice
shall briefly set forth the nature of such proposed amendment, change,
modification or waiver and shall state that copies of the instrument
embodying the same are on file at the principal corporate trust office of the
Trustee for inspection by all owners of the Bonds. If, within 10 days or such
longer period as shall be prescribed by the Trustee following the mailing of
such notice, the owners of not less than the requisite percentage of
outstanding Bonds as required in this Section 6.1 shall have consented to and
approved the execution of such amendment, change, modification or waiver of
this Guaranty as herein provided, no owner of any Bond shall have any right
to object to any of the terms and provisions contained therein, or the
operation thereof, or in any manner to question the propriety of the
execution thereof, or to enjoin or restrain the Trustee or the Guarantor from
executing the same or from taking any action pursuant to the provisions
thereof.
In no event shall any amendment be made without the written consent
of the Guarantor and the Collateral Agent.
No amendment, change, modification, alteration or termination of the
Indenture shall be effective that would in any way increase the Guarantor's
obligations under this Guaranty without obtaining the prior written consent
of the Guarantor.
Section 6.2. EFFECTIVE DATE. The obligations of the Guarantor
hereunder shall arise absolutely and unconditionally when any Bonds shall
have been initially issued, sold and delivered by the Issuer as contemplated
in the Indenture.
Section 6.3. GOVERNING LAW. This Guaranty and the rights and
obligations of the parties hereto (including third party beneficiaries) shall
be governed, construed and interpreted according to the laws of the State of
Georgia.
Section 6.4. ENTIRE AGREEMENT; COUNTERPARTS. This Guaranty
constitutes the entire agreement, and supersedes all prior agreements, both
written and oral, between the parties with respect to the subject matter
hereof and may be executed simultaneously in several counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
Section 6.5. SEVERABILITY. If any provision of this Guaranty shall
be held or deemed to be or shall, in fact, be invalid, inoperative or
unenforceable as applied in any particular case in any jurisdiction or
jurisdictions or in all jurisdictions, or in all cases because it conflicts
with any other provision or provisions hereof or any Constitution or statute
or rule of public policy, or for any other reason, such circumstances shall
not have the effect of rendering the provision in question invalid,
inoperative or unenforceable in any other case or circumstance, or of
rendering
any other provision or provisions herein contained invalid, inoperative or
unenforceable to any extent whatever.
Section 6.6. NOTICES. Any notice or notices which may be or are
required to be given to the Guarantor respecting any matter pertaining to
this Guaranty shall be deemed to have been sufficiently given if in writing
and forwarded in a sealed envelope by United States registered or certified
mail, postage prepaid, return receipt requested, or by next day air, and if
given to the Guarantor, addressed to the Guarantor at Tenaska Georgia
Partners, L.P., c/x Xxxxxx, Xxxxxx Xxxxxxx, 675 Commercial Federal Tower,
0000 X. 00xx Xxxxxx, Xxxxx, Xxxxxxxx 00000, Attention: X.X. Xxxxxx, Esq.,
Telephone (000) 000-0000, Telecopy (000) 000-0000 with a copy to Long,
Xxxxxxxx & Xxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000,
Attention: Xxxxxxx X. Xxxxxxx, Esq., Telephone (000) 000-0000, Telecopy (404)
527-4198 or, if given to the Trustee, addressed to the Trustee at The Chase
Manhattan Bank, Capital Markets Fiduciary Services, 000 Xxxx 00xx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000. Either party may, by notice given
hereunder, designate any further or different address to which subsequent
notices shall be sent.
Section 6.7. HEADINGS. The headings of the several Articles and
Sections of this Guaranty are for convenience only and shall not be construed
to affect the meaning or construction of any of the provisions hereof.
Section 6.8. SUCCESSORS. This Guaranty shall be binding upon the
undersigned Guarantor and its successors and assigns and shall inure to the
benefit of, and shall be enforceable by, the Trustee and its successors and
assigns and, subject to the provisions of Section 5.2 hereof, the Collateral
Agent until Payment in Full of the Bonds as provided in the Indenture.
IN WITNESS WHEREOF, the Guarantor pursuant to proper resolution duly
passed, has caused this Guaranty to be executed in its name and behalf by its
duly authorized officers as of the date first above written.
TENASKA GEORGIA PARTNERS, L.P.,
a Delaware Limited Partnership
By: TENASKA GEORGIA, INC., a Delaware
Corporation, its General Partner
By: /S/__________________________
Title: Xxxxxxx X. Xxxxxx
Vice President of Finance &
Treasurer
