Exhibit 4.10
EXECUTION COPY
CONSENT TO ASSIGNMENT
THIS CONSENT TO ASSIGNMENT (this "Consent") is executed as of
this 10th day of November, 1999, by Georgia Power Company, a Georgia corporation
("GPC"), 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).
WHEREAS, the Partnership intends to develop, construct, lease,
operate, maintain and finance a 936 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; and
WHEREAS, the Partnership intends to finance the Project
through the financing described in Annex A attached hereto and made a part
hereof, to which reference is made for a description of such financing and the
definitions of the terms used herein, to the extent not otherwise defined
herein; and
WHEREAS, the Partnership and GPC have entered into that
certain Interconnection Agreement, dated as of October 19, 1999 (as amended,
restated, modified or otherwise supplemented from time to time in accordance
with the terms thereof, the "Agreement"), which, as one of the Project Documents
referred to in the attached Annex A, is required to be assigned by the
Partnership to the Collateral Agent as security pursuant to one or more of the
Security Documents; and
WHEREAS, it is a condition precedent to the extension of
credit by the Senior Parties that GPC 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 sufficiency of which is hereby acknowledged, and intending to
be legally bound, GPC hereby agrees as follows:
1. CONSENT TO ASSIGNMENT. Subject to compliance by Collateral Agent
with Section 2 hereof, GPC (a) consents in all respects to the pledge and
assignment, for collateral security purposes, to the Collateral Agent of all of
Partnership's right, title and interest in, to and under the Agreement and (b)
acknowledges the right, but not the obligation, of the Collateral Agent, in the
exercise of the Collateral Agent's rights and remedies under the Security
Documents and to exercise all rights of Partnership in accordance with the
Agreement.
2. PERFORMANCE BY GPC AND EXERCISE OF COLLATERAL AGENT'S RIGHTS UNDER
SECURITY DOCUMENTS. (a) GPC agrees that, if the Collateral Agent shall notify
GPC 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, which designee shall be reasonably acceptable to
GPC, substituted for the Partnership under the Agreement or (b) to sell, assign,
transfer or otherwise dispose of the Agreement to a person, then the Collateral
Agent, the Collateral Agent's designee or such person in each such case
reasonably acceptable to GPC (each, a "Substitute Owner") shall be substituted
for the Partnership under the Agreement and that, in such event, GPC will
continue to perform its obligations under the Agreement in favor of the
Substitute Owner.
(b) GPC agrees that in the event of a default by the
Partnership in the performance of any of its obligations under the Agreement
(hereinafter a "default"), GPC will give prompt written notice of such default
to the Collateral Agent. The Collateral Agent, its designee, which designee
shall be reasonably acceptable to GPC and any Substitute Owner, shall have the
same rights and benefits as the Partnership under the Agreement, including,
without limitation, the right to cure any default.
(c) GPC agrees to deliver to the Collateral Agent a copy of
each notice, request or demand given by GPC to the Partnership pursuant to the
Agreement.
3. NO LIABILITY. GPC acknowledges and agrees that neither the
Collateral Agent, the Collateral Agent's designee nor the Senior Parties shall
have any liability or obligation under the Agreement as a result of this
Consent, the Security Documents or otherwise, and neither the Collateral Agent,
the Collateral Agent's designee nor the Senior Parties shall be obligated or
required to perform any of the Partnership's obligations under the 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 2 hereof, in which case the
obligations of such Substitute Owner shall be no more than that of the
Partnership under such Agreement.
4. NO MODIFICATION OF GPC'S RIGHTS. The parties hereto acknowledge and
agree that neither the execution of this Consent nor any actions taken by GPC
hereunder (including any forbearance of GPC as against Collateral Agent) shall
in any way, limit, modify or otherwise affect GPC's rights or remedies under the
Agreement against Partnership or otherwise.
5. NO DEFAULTS, AMENDMENTS OR ASSIGNMENTS. GPC acknowledges that, to
the best of its knowledge, as of the date of execution of this Consent, (a)
neither party to the Agreement is in default of any of its respective
obligations thereunder, (b) the Agreement has not been amended, modified or
supplemented in any manner and (c) other than as contemplated hereby in favor of
Collateral Agent, GPC has no notice of, and has not consented to, any previous
assignment of all or any part of the rights of either party under the Agreement.
The statements made by GPC pursuant to this Section 5 are as of the date of this
Consent and GPC shall have no continuing obligation to notify Collateral Agent
of the occurrence of events or circumstances which would render such statements
inaccurate or untrue.
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6. TERMINATION. GPC's obligations hereunder are absolute and
unconditional, and GPC 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 unless the Agreement is terminated pursuant to its terms or
until all obligations under the Financing Documents have been indefeasibly
satisfied in full, notice of which shall be provided by the Collateral Agent
when all such obligations have been satisfied.
7. MISCELLANEOUS.
(a) 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
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 GPC:
Georgia Power Company
000 Xxxxx XxXxxx Xxxxxxxxx, XX
Xxxxxxx, XX 00000
Attention: Senior Vice President, Power Delivery
If to Partnership:
Tenaska Georgia Partners, L.P.
0000 Xxxxx 000xx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxxx 00000
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.
(b) GOVERNING LAW. THIS CONSENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN
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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).
(c) 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.
(d) 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.
(e) 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 parties hereto.
(f) SUCCESSORS AND ASSIGNS. This Consent may not be assigned
by the Collateral Agent without the prior written consent of GPC, which consent
shall not be unreasonably withheld. 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.
(g) FURTHER ASSURANCES. The parties hereto hereby agree to
execute and deliver all such instruments and take all such actions as may be
reasonably necessary to effectuate fully the purposes of this Consent.
(h) NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on the
part of either party hereto in exercising any right, power or privilege
hereunder and no course of dealing between the parties hereto 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 either party hereto would otherwise have.
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IN WITNESS WHEREOF, the parties hereto have caused this Consent to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first above written.
THE CHASE MANHATTAN BANK Georgia Power Company
as Collateral Agent
By: /s/ XXXXXXX X. XXXXXXX By: /s/ XXXX XXXXXXXX
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Name XXXXXXX X. XXXXXXX Name:X. X. XXXXXXXX
------------------------- -----------------------------
Title: ASSISTANT VICE PRESIDENT Title: SENIOR VP
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Date: Date: 11-4-99
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TENASKA GEORGIA PARTNERS, L.P.
by Tenaska Georgia, Inc.
By: /s/ XXXXXXX X. XXXXXX
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Name: XXXXXXX X. XXXXXX
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Title: VICE PRESIDENT OF FINANCE & TREASURER
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Date:
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ANNEX A
This Annex A is attached to the Consent executed as of
November 10, 1999 by Georgia Power Company, a Georgia corporation ("GPC"),
Tenaska Georgia Partners, L.P., a Delaware limited partnership (the
"Partnership"), and The Chase Manhattan Bank, as collateral agent (the
"Collateral Agent") for certain Senior Parties (as defined below). This Annex A
describes certain relevant transactions constituting a part of the Partnership's
financing of the Project described in such Consent, and defines certain terms
used in such Consent where such terms are not defined in the body of the Consent
or in the Common Agreement.
The Partnership intends to finance the development,
construction and start-up of the Project, through the issuance of certain 144A
securities (the "144A Securities"). 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. 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. 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 144A Securities.
In addition to the DAHC Bonds and related collateral, all
obligations of the Partnership with respect to the 144A Securities, and any
other agreements evidencing senior debt of the Partnership (collectively, the
"Financing Documents") to the Trustee, the Collateral Agent, each successor to
any such person 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 Secure 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").
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.
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