Exhibit 4.26
EXECUTION COPY
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AGREEMENT AS TO CERTAIN UNDERTAKINGS, COMMON REPRESENTATIONS,
WARRANTIES, COVENANTS AND OTHER TERMS
among
TENASKA GEORGIA PARTNERS, L.P.,
THE CHASE MANHATTAN BANK, as
Trustee,
THE TORONTO-DOMINION BANK, as
DSR LOC Agent,
THE TORONTO-DOMINION BANK, as
PPA LOC Agent,
and
THE CHASE MANHATTAN BANK, as
Collateral Agent
Dated as of November 1, 1999
Relating to the Tenaska Georgia Partners, L.P. Project
to be located in Heard County, Georgia
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND CONSTRUCTION
Section 1.1 Definitions and Principles of Construction....................................3
ARTICLE II
CLOSING
Section 2.1 Time and Place of Closing.....................................................3
Section 2.2 Transactions on Closing Date..................................................3
ARTICLE III
CONDITIONS PRECEDENT
Section 3.1 Conditions to the Occurrence of the Closing Date and the Initial
Disbursement..................................................................4
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Representations and Warranties of the Partnership.............................9
ARTICLE V
COVENANTS
Section 5.1 Affirmative Covenants of the Partnership.....................................13
Section 5.2 Negative Covenants of the Partnership........................................18
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1 Events of Default............................................................21
Section 6.2 Remedies Upon an Event of Default............................................23
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ARTICLE VII
INDEMNIFICATION AND CONTRIBUTION
Section 7.1 Indemnification and Contribution.............................................24
Section 7.2 Procedure for Indemnification Claims.........................................24
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Survival.....................................................................25
Section 8.2 Notices......................................................................25
Section 8.3 Severability of Provisions...................................................27
Section 8.4 Amendments, Waivers, Etc.....................................................27
Section 8.5 Headings; Table of Contents..................................................27
Section 8.6 Counterparts.................................................................27
Section 8.7 Governing Law; Submission to Jurisdiction; Venue.............................27
Section 8.8 Entire Agreement.............................................................28
Section 8.9 Benefit of Agreement.........................................................28
Section 8.10 Expenses.....................................................................28
Section 8.11 Removal of Independent Engineer; Payment of Independent Engineer.............28
Section 8.12 Third Party Engineer Dispute Resolution......................................29
Section 8.13 Waiver of Litigation Payments................................................30
Section 8.14 Recitals.....................................................................31
Section 8.15 Immunity of Officers and Employees of Trustee, DSR LOC Agent, PPA LOC
Agent, Collateral Agent and Depositary Bank..................................31
Section 8.16 No Recourse..................................................................31
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APPENDICES
Appendix A Definitions
Appendix B Insurance Requirements
SCHEDULES
Schedule 3.1(d) The Facility Site
Schedule 3.1(l) Form of Approved Project Construction Budget
Schedule 3.1(m) Base Case Projections
Schedule 3.1(o) Environmental Matters
Schedule 3.1(t) Consents to Assignment
Schedule 8.11 Independent Engineers
EXHIBITS
Exhibit 5.1(r). Certificate of the Partnership
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THIS AGREEMENT AS TO CERTAIN UNDERTAKINGS, COMMON REPRESENTATIONS,
WARRANTIES, COVENANTS AND OTHER TERMS, dated as of November 1, 1999 (this
"AGREEMENT"), among TENASKA GEORGIA PARTNERS, L.P., a Delaware limited
partnership (the "PARTNERSHIP"), THE TORONTO-DOMINION BANK, acting as agent on
behalf of the DSR LOC Banks under the DSR LOC Reimbursement Agreement (in such
capacity together with its successors and assigns, the "DSR LOC AGENT"), THE
TORONTO-DOMINION BANK, acting as agent on behalf of the PPA LOC Banks under the
PPA LOC Reimbursement Agreement (in such capacity together with its successors
and assigns, the "PPA LOC AGENT"), THE CHASE MANHATTAN BANK, acting in its
capacity as the bond trustee under the Indenture (in such capacity together with
its successors and assigns, the "TRUSTEE"), and THE CHASE MANHATTAN BANK, acting
in its capacity as the collateral agent appointed hereunder for the Senior
Parties (in such capacity together with its successors and assigns, the
"COLLATERAL AGENT").
R E C I T A L S:
A. The Partnership was formed for the purpose of developing, financing,
constructing, leasing, maintaining and operating an approximately 936 megawatt
("MW") (nominal summer rating) natural gas-fired simple-cycle electric
generating facility to be located on a site near Georgia State Highway 34 in
Heard County, Georgia (the "Facility").
B. The Partnership has entered or will enter into certain Project
Documents and Financing Documents.
C. Pursuant to the PPA, the Partnership has agreed to deliver and sell
to PECO, and PECO has agreed to receive and purchase from the Partnership,
electric capacity and energy for the term of the PPA, on the terms and
conditions set forth therein.
D. Pursuant to the Lease Agreement, the Authority has agreed to lease to
the Partnership, and the Partnership has agreed to rent from the Authority, the
Facility, the Facility Site and certain related infrastructure facilities, on
the terms and conditions set forth therein.
E. The Partnership (as assignee of TGILP) and the EPC Contractor are
parties to the EPC Contract, providing for the construction of the Facility on a
lump sum, fixed-price basis, on the terms and conditions set forth therein.
F. Pursuant to the EPC Guaranty, the EPC Guarantor has agreed to
guarantee the obligations of the EPC Contractor under the EPC Contract, on the
terms and conditions set forth therein.
G. Pursuant to the Turbine Contract, GE will provide six General
Electric PG7241 (FA) heavy-duty, single shaft gas turbine-generators, on the
terms and conditions set forth therein.
H. The Partnership and Transco have entered into the Gas Interconnect
Agreement, providing for the delivery of natural gas to the Transco
interconnection point, on the terms and conditions set forth therein.
I. The Partnership and the Pipeline EPC Contractor have entered into the
Pipeline EPC Contract, providing for the construction of an approximately
one-mile lateral gas pipeline from the Transco interconnection point to the
Facility Site, on the terms and conditions set forth therein.
J. The Partnership and GPC have entered into the GPC Interconnection
Agreement, providing for the Facility to be connected to the Georgia integrated
transmission system at 500kV, on the terms and conditions set forth therein.
K. Pursuant to the Water Agreement, the Water Authority has agreed to
sell to the Partnership and deliver to the Facility, and the Partnership has
agreed to buy, water, on the terms and conditions set forth therein.
L. The Partnership, as assignee of TGILP, and GE International are
parties to the LTSA, pursuant to which GE International will provide long term
parts and services for the six gas turbines and associated generators and
specified auxiliaries, on the terms and conditions set forth therein.
M. The Partnership and the Operator have entered into the O&M Agreement,
providing for the Operator to operate and maintain the Facility, on the terms
and conditions set forth therein.
N. Pursuant to the Purchase Agreement and the Indenture, the Partnership
has agreed to issue and sell the Bonds to the Initial Purchasers who will in
turn sell the Bonds to certain purchasers as contemplated by the Purchase
Agreement.
O. Pursuant to the Authority Purchase Agreement and the Authority
Indenture, the Authority has agreed to issue and sell the Authority Bonds to the
Partnership who will in turn deposit the Authority Bonds with the Collateral
Agent as collateral for the Senior Debt.
P. Pursuant to the DSR LOC Reimbursement Agreement, the DSR LOC Issuer
has agreed to issue or cause to be issued, for the account of the Partnership, a
letter of credit, in an amount, and on the terms and conditions set forth
therein.
Q. Pursuant to the PPA LOC Reimbursement Agreement, the PPA LOC Issuer
has agreed to issue, for the account of the Partnership, a letter of credit,
with PECO as the beneficiary thereof, for use in connection with the PPA.
R. In order to secure the availability of certain monies and in order to
satisfy certain equity contribution requirements, the Partners and the
Collateral Agent have entered into the Equity Contribution Agreement pursuant to
which the Contributing Partners (as defined therein) agree to contribute equity
to the Partnership up to $35.5 million from time to time prior to the Date of
Commercial Operation of the Final Units.
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S. In order to secure the respective obligations of the Partnership and
the Authority pursuant to the Financing Documents entered into by the
Partnership and the Authority, on or prior to the Closing Date, the Partnership
and the Authority will enter into the Security Documents to which each is a
party.
T. Each of the Financing Documents requires, as a condition precedent to
the obligations of the Senior Parties thereto, the execution of this Agreement
to provide for certain common representations, warranties and covenants of the
Partnership.
U. In consideration of the Senior Parties entering into their respective
Financing Documents, the Partnership has agreed to enter into this Agreement and
be bound by all covenants and obligations provided herein.
Accordingly, in consideration of the premises and of other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND CONSTRUCTION
Section 1.1 Definitions and Principles of Construction. For all purposes
of this Agreement, unless the context otherwise requires, (a) all capitalized
terms used herein (including the Recitals) and not otherwise defined shall have
the meanings set forth in Part I of Appendix A and (b) the principles of
construction set forth in Part II of Appendix A shall apply.
ARTICLE II
CLOSING
Section 2.1 TIME AND PLACE OF CLOSING. The closing of the transactions
described in Section 2.2 shall commence at 9:30 a.m., Eastern Standard time, on
the Closing Date at the offices of Winthrop, Stimson, Xxxxxx & Xxxxxxx, Xxx
Xxxxxxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other time and at such
other location as shall be agreed by the parties hereto.
Section 2.2 TRANSACTIONS ON CLOSING DATE. On the Closing Date, the
following transactions shall be consummated simultaneously:
(a) The Transaction Documents not previously executed shall be
duly executed and delivered by the respective parties thereto.
(b) The Partnership shall, in accordance with and subject to the
Purchase Agreement, issue, sell and cause to be delivered to the Initial
Purchasers the Bonds.
(c) The Authority shall, in accordance with and subject to the
Authority Purchase Agreement, issue, sell and cause to be delivered to the
Partnership the Authority Bonds.
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(d) The PPA LOC Issuer shall issue or cause to be issued the PPA
LOC.
(e) The Initial Disbursement shall be made by the Collateral
Agent.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.1 CONDITIONS TO THE OCCURRENCE OF THE CLOSING DATE AND THE
INITIAL DISBURSEMENT. The obligation of each of the Senior Parties to enter into
the transactions described in Section 2.2 on the Closing Date and the making of
the Initial Disbursement shall be subject to the satisfaction (or waiver by such
Person) on or prior to the Closing Date of the following conditions precedent:
(a) TRANSACTION DOCUMENTS. Each of the Transaction Documents
entered into or required to be entered into on or prior to the Closing Date
shall be satisfactory in all material respects to the Senior Parties, and each
such Transaction Document shall be in full force and effect.
(b) EQUITY SUPPORT. Each letter of credit required under the
Equity Contribution Agreement shall be reasonably satisfactory in all material
respects to the Senior Parties, and such letters of credit shall be in full
force and effect.
(c) AUTHORIZATION, EXECUTION AND DELIVERY OF DOCUMENTS. Each of
the Transaction Documents entered into or required to be entered into on or
prior to the Closing Date shall have been duly authorized, executed and
delivered by each of the parties thereto (other than the Senior Parties). The
Senior Parties shall have received a true and correct copy of each of the
Transaction Documents (not furnished in original form) entered into or required
to be entered into on or prior to the Closing Date, certified as such by an
Authorized Representative of the Partnership, including without limitation all
amendments and supplements to each of the Transaction Documents.
(d) THE LEASE. The Partnership shall have entered into the Lease
Agreement with respect to the Facility Site and shall have obtained rights in
the Necessary Easements, and such Lease Agreement and each such right shall be
in full force and effect. Each Senior Party shall have received a copy of the
Lease Agreement, a survey of the Facility Site and a copy of all documents
evidencing such rights in form and substance satisfactory to each such Person.
The Senior Parties shall have received satisfactory evidence that, except as set
forth on Schedule 3.1(d), there shall be no actions, suits, investigations or
proceedings at law or in equity by or before any Governmental Authority pending
in connection with the leasing by the Partnership of the Facility Site or, to
the best of the Partnership's knowledge, threatened in connection with the
leasing by the Partnership of the Facility Site or the acquisition by the
Partnership of the Necessary Easements, in either case that could reasonably be
expected to result in a Material Adverse Effect.
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(e) GOVERNMENT APPROVALS. The Partnership shall have obtained
all material Governmental Approvals then required for the commencement of
construction of the Project and the Senior Parties shall have received a copy of
all such Governmental Approvals.
(f) OPINIONS. The Senior Parties shall have received opinions
addressed to such Persons, dated the Closing Date, of the following counsel (or,
if counsel is not identified, of counsel reasonably satisfactory to such
Persons), each such opinion to be in the form and addressing such matters as
shall be reasonably satisfactory to the Senior Parties (together with such
changes as each Senior Party may approve):
(i) Winthrop, Stimson, Xxxxxx & Xxxxxxx, special New York
counsel to the Partnership;
(ii) Long, Xxxxxxxx & Xxxxxx L.L.P., Georgia counsel to the
Partnership;
(iii) Xxxxxx & Xxxxx, counsel to the Authority;
(iv) King & Spalding, Bond counsel;
(v) Cadwalader, Xxxxxxxxxx & Xxxx, special counsel to the
Authority Trustee, the Trustee, the Collateral Agent and
the Depositary Bank;
(vi) Xxxxxx, Xxxxxx & Xxxxxxx, general counsel to the
Partnership and the Partners;
(vii) Winthrop, Stimson, Xxxxxx & Xxxxxxx, Federal energy
counsel to the Partnership;
(viii) Long, Xxxxxxxx & Xxxxxx L.L.P., Georgia energy counsel
to the Partnership;
(ix) Xxxxxxxxxx, Xxxxxx & Xxxxxxx, local environmental
counsel (air permit) to the Partnership;
(x) Long, Xxxxxxxx & Xxxxxx L.L.P., local environmental
counsel (water, wastewater and wetlands) to the
Partnership;
(xi) Xxx Xxxxxxx, in-house counsel to PECO;
(xii) Xxxxxxx X. Xxxx, in-house counsel to the EPC Contractor;
(xiii) Xxxxxxx X. Xxxx, in-house counsel to the EPC Guarantor;
(xiv) Xxxxxxx Xxxxxx, in-house counsel to GE;
(xv) Xxxxxxx Xxxxxx, in-house counsel to GE International;
(xvi) Xxxxxx, Xxxxxx & Xxxxxxx , counsel to the Operator;
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(xvii) Skadden, Arps, Slate, Xxxxxxx & Xxxx L.L.P., special
counsel to the DSR LOC Agent and the PPA LOC Agent;
(xviii) Skadden, Arps, Slate, Xxxxxxx & Xxxx L.L.P., New York
counsel to the Initial Purchasers;
(xix) King & Spalding, Georgia counsel to the Initial
Purchasers;
(xx) Xxxxxx X. Xxxxxxxx, in-house counsel to Transco;
(xxi) Xxx Xxxxxx, in-house counsel to the Pipeline EPC
Contractor;
(xxii) Xxx Xxxxxx, in-house counsel to Willbros Group;
(xxiii) Price, Pyles, Dangel, Xxxxxx & Xxxxxx, counsel to the
Water Authority; and
(xxiv) Xxxxx, XxXxxxxx & Oaks Xxxxxxxx, LLP, special Texas
counsel to the Partnership.
(g) NO MATERIAL ADVERSE CHANGE. On the Closing Date, there shall
not have been any change in the business, operations or financial condition of
(i) the Partnership, (ii) the Project, (iii) the EPC Contractor, (iv) the
Operator, (v) PECO, (vi) GE, (vii) the Water Authority, (viii) the Authority or
(ix) any Contributing Partner that would reasonably be expected to have a
Material Adverse Effect on the ability of any such Person to carry on its
business or to enter into or perform its obligations under the Transaction
Documents to which it is a party.
(h) NO DEFAULT. Before and after giving effect to the
consummation of the transactions contemplated by this Agreement, no Default or
Event of Default under any Transaction Document shall have occurred and be
continuing.
(i) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Partnership set forth in this Agreement shall be true and
complete on and as of the Closing Date.
(j) CLOSING CERTIFICATE OF THE PARTNERSHIP. On the Closing Date,
each of the Senior Parties shall have received an Officer's Certificate of the
Partnership, dated the Closing Date, in form and substance reasonably
satisfactory to the Senior Parties to the effect that: (i) the representations
and warranties of the Partnership set forth in Section 4.1 hereof are true and
complete on the Closing Date, (ii) the Transaction Documents to which the
Partnership is a party have been duly executed and delivered by the Partnership
and are in full force and effect, (iii) no Default or Event of Default has
occurred and is continuing under this Agreement or any other Transaction
Document, and (iv) the Partnership has duly performed and complied with all
covenants, agreements and conditions contained herein or in any Transaction
Document required to be performed or complied with by it on or prior to the
Closing Date.
(k) REPORT OF INDEPENDENT ENGINEER. The Senior Parties shall have
received a report of the Independent Engineer in form and substance reasonably
satisfactory to such Persons addressing, inter alia, Facility design, Facility
performance, hours of operation, Project Costs,
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schedule of construction, adequacy of testing procedures, certain environmental
matters, Governmental Approvals, a review of Project Documents, and occupational
health and safety matters pertaining to the Facility and the Facility Site and
such other matters related thereto as any Senior Party shall reasonably request.
(l) APPROVED PROJECT CONSTRUCTION BUDGET. The Independent
Engineer and the Senior Parties shall have received a copy of the approved
project construction budget, in substantially the form of Schedule 3.1(l) (as
amended, modified or supplemented from time to time pursuant to the terms hereof
and the other Financing Documents, the "APPROVED PROJECT CONSTRUCTION BUDGET"),
setting forth the timing and amount in dollars of all projected payments of
Project Costs relating to the development, construction, lease, operation and
maintenance of the Project (including amounts due pursuant to the EPC Contract)
certified as the best reasonable estimate of the information set forth therein
on the Closing Date, by an officer of the Partnership, which budget shall be in
form and substance reasonably satisfactory to the Senior Parties and the
Independent Engineer.
(m) BASE CASE PROJECTIONS. The Partnership shall have furnished
to the Independent Engineer and the Senior Parties the base case projections for
the Project (as set forth on Schedule 3.1(m), the "BASE CASE PROJECTIONS"),
certified by the Independent Engineer, projecting that the Partnership shall
have, from the Date of Commercial Operation of the Final Units through the Final
Maturity Date of the Bonds, (i) an average annual Debt Service Coverage Ratio
equal to or greater than 1.49 to 1.0, and (ii) a minimum annual Debt Service
Coverage Ratio during each year of such period equal to or greater than 1.30 to
1.0, which projections shall be based upon attached pro-forma income statements
and annual cash flow projections for each such year, each of which shall be
based upon assumptions stated therein which the Independent Engineer certifies
as reasonable, together with a certificate of an Authorized Officer of the
Partnership stating that such projections and supporting documents were prepared
in good faith by the Partnership and are based upon assumptions which the
Partnership considers to be reasonable.
(n) INSURANCE AND REPORT OF INSURANCE CONSULTANT. The Partnership
shall have obtained the insurance described on Appendix B attached hereto and
required as of the Closing Date, together with loss payee endorsements in favor
of the Collateral Agent in the form set forth in Appendix B, and such insurance
shall be in full force and effect and the Senior Parties shall have received a
report from the Insurance Consultant in form and substance reasonably
satisfactory to such Persons, dated the Closing Date, setting forth the
insurance so obtained and stating that such insurance is in full force and
effect and that all premiums then due thereon have been paid, and stating that,
in the opinion of the Insurance Consultant, such insurance complies with the
insurance set forth on Appendix B and insures against such risks and in such
amounts as are commercially available on reasonable terms or as may be required
by Applicable Law. In addition to and without limiting the foregoing, the Senior
Parties shall have received a form of each policy and a binder or certificate
evidencing such insurance signed by the insurer or an agent authorized to bind
the insurer.
(o) ENVIRONMENTAL MATTERS. The Senior Parties shall have obtained
all material environmental permits, approvals and licenses required to be
obtained by it to commence construction of the Facility in accordance with the
terms of the EPC Contract and (ii) shall have
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received reasonably satisfactory evidence that, except as set forth in Schedule
3.1(o), (A) the Facility Site is, to the best of the Partnership's knowledge, in
compliance with all applicable Environmental Laws affecting the Facility Site or
the Facility, the noncompliance with which could reasonably be expected to
result in a Material Adverse Effect, and (B) to the best of the Partnership's
knowledge, there are no environmental conditions which could reasonably be
expected to materially interfere with the construction or commercial operation
of the Facility or adversely affect the Lien of the Collateral Agent thereon.
(p) UTILITY REGULATION. Neither the Partnership nor any of the
Senior Parties shall solely by reason of (i) the development, construction,
lease, operation and maintenance of the Project by the Partnership, or (ii) any
other transaction contemplated by the Transaction Documents be deemed by any
Governmental Authority to be subject to financial, organizational or rate
regulation as an "electric utility," "electric corporation," "electrical
company," "public utility," "public utility holding company" or any similar
entity under any Applicable Law.
(q) SECURITY. All actions necessary or, in the reasonable opinion
of any Senior Party, desirable, in order to effectively establish and create the
security contemplated by the Security Documents and, where appropriate, to
create a first priority security interest in and charge over the Collateral,
subject only to Permitted Liens, shall have been duly taken, including without
limitation, the making of all conveyances, registrations and filings.
(r) OFFICERS' CERTIFICATES. The Senior Parties shall have
received an Officer's Certificate of the Partnership and each Project Party, in
form and substance reasonably satisfactory to such Persons, attaching and
certifying as of the Closing Date as to (i) its articles of incorporation or
association or its certificate of limited partnership, as the case may be, (ii)
its by-laws (if any), (iii) the resolutions of its Board of Directors or
applicable governing body (or, in the case of a partnership, any required
authorization and consent of its partners) duly authorizing its execution,
delivery and performance of each Transaction Document to which it is or is to be
a party and each other document required to be executed and delivered by it in
accordance with the provisions hereof or thereof, and (iv) the incumbency and
signature of the persons authorized to execute and deliver, as may be required
hereunder, documents on its behalf in connection with the transactions
contemplated hereby and by the Transaction Documents.
(s) ESTABLISHMENT OF ACCOUNTS. Each of the Accounts and all
subaccounts thereof shall have been established pursuant to the Collateral
Agency Agreement and each of the accounts required to be established pursuant to
the Indenture shall have been so established.
(t) CONSENTS TO ASSIGNMENT. The Partnership shall have delivered
to each Senior Party, Consents (the "Third Party Consents"), in form and
substance satisfactory to such Person, from each of the Project Parties listed
on Schedule 3.1(t).
(u) PURCHASE AGREEMENT; AUTHORITY PURCHASE AGREEMENT; DSR LOC
REIMBURSEMENT AGREEMENT; PPA LOC REIMBURSEMENT AGREEMENT. All of the conditions
to the closing of the transactions contemplated by the Purchase Agreement, the
Authority Purchase Agreement, the DSR LOC Reimbursement Agreement and the PPA
LOC Reimbursement Agreement have been satisfied (or waived by the Initial
Purchasers, the Partnership, the DSR LOC Agent or the PPA LOC Agent, as the case
may be).
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(v) FEES AND EXPENSES. The Partnership shall have paid to the
Senior Parties the fees and expenses payable to such Persons on the Closing
Date.
(w) LIEN SEARCHES. The Partnership shall have obtained the
results of a recent search, by a Person reasonably satisfactory to the Senior
Parties, of all effective UCC financing statements and fixture filings and all
judgment and tax lien filings which may have been made with respect to any
personal or mixed property of the Partnership, together with copies of all such
filings disclosed by such search, and UCC termination statements duly executed
by an Authorized Representative of the Partnership for filing in all applicable
jurisdictions as may be necessary to terminate any effective UCC financing
statements or fixture filings disclosed in such search (other than any such
financing statements or fixture filings in respect of Permitted Liens);
(x) TITLE INSURANCE. The Partnership shall have obtained the
mortgagee title insurance policies or unconditional commitments therefor issued
by a title company with respect to the Facility Site described on Appendix B
attached hereto and required as of the Closing Date, together with a title
report issued by a title company with respect thereto, dated not more than
thirty (30) days prior to the Closing Date and copies of all recorded documents
listed as exceptions to title or otherwise referred to therein, each in form and
substance reasonably satisfactory to the Senior Parties;
(y) AUTHORIZATION TO PROCEED. The Partnership shall have
delivered to the EPC Contractor, and the EPC Contractor shall have acknowledged
and accepted, the Authorization to Proceed.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 REPRESENTATIONS AND WARRANTIES OF THE PARTNERSHIP. The
Partnership makes the following representations and warranties on the Closing
Date and at such times thereafter as are required in accordance with the
Collateral Agency Agreement as the basis for the undertakings on its part herein
contained:
(a) ORGANIZATION; POWER; AND STATUS. The Partnership (i) is a
limited partnership duly organized, in good standing 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.
(b) AUTHORIZATION; ENFORCEABILITY; EXECUTION AND DELIVERY. (i)
The Partnership has full partnership right, power and authority to execute and
deliver this Agreement and each other Transaction Document to which it is a
party and to perform its obligations hereunder and thereunder; and all
partnership action required to be taken for the due and proper authorization,
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execution and delivery of this Agreement and each other Transaction Document to
which the Partnership is a party and the consummation of the transactions
contemplated hereby and thereby has been duly and validly taken.
(ii) This Agreement and each other Transaction Document to which
the Partnership is a party has been duly authorized, executed and delivered by
the Partnership. This Agreement and each other Transaction Document to which the
Partnership is a party constitutes a valid and legally binding obligation of the
Partnership enforceable against the Partnership in accordance with the terms
hereof and thereof, except to the extent limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other laws
affecting creditors' rights generally, by general equitable principles (whether
considered in a proceeding in equity or at law).
(c) FORCE MAJEURE. To the best of the Partnership's knowledge, no
force majeure (as defined in each Project Document) has occurred and is
continuing under any Project Document.
(d) NO CONFLICTS; LAWS; AND CONTRACTS. The execution, delivery
and performance by the Partnership of each of the Transaction Documents and the
consummation of the transactions contemplated thereby 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 Partnership pursuant
to, any material indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument to which the Partnership is a party or by which
the Partnership is bound or to which any of the property or assets of the
Partnership is subject, (ii) result in any violation of the provisions of the
Partnership 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 Partnership or any of
its properties or assets.
(e) GOVERNMENTAL APPROVALS. All Governmental Approvals which are
required, as of the Closing Date, to be obtained by, in the name of, or on
behalf of the Partnership and, as far as the Partnership is aware, each other
party to the relevant Transaction Document in connection with (i) the issuance
of the Bonds, (ii) the carrying on of the business of the Partnership as it is
presently carried on and is contemplated to be carried on, and (iii) the due
execution, delivery and performance of each of the Transaction Documents by each
of the parties thereto have been duly obtained or made, are validly issued and
are in full force and effect. The Partnership is in compliance with all such
Governmental Approvals, except to the extent that noncompliance could not
reasonably be expected to result in a Material Adverse Effect.
(f) LITIGATION. There are no legal or governmental proceedings
pending to which the Partnership is a party or of which any property or assets
of the Partnership are the subject which, singly or in the aggregate, could
reasonably be expected to have a Material Adverse Effect; and to the best of the
Partnership's knowledge, no such proceedings are threatened by governmental
authorities or others.
(g) NO DEFAULT. The Partnership is not (i) in violation of its
Partnership Agreement or its other organizational documents, (ii) in default,
and no event has occurred
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which, with notice or lapse of time or both, would constitute such a default, in
the due performance or observance of any term, covenant or condition contained
in any Transaction Document to which it is a party or by which it is bound or to
which any of its property or assets is subject, where such default has had, or
could reasonably be expected to have, a Material Adverse Effect, or (iii) in
violation of any Applicable Law to which it or its property or assets may be
subject, where such violation has had, or could reasonably be expected to have,
a Material Adverse Effect.
(h) LICENSES; CERTIFICATES; AUTHORIZATIONS; PERMITS;
DECLARATIONS; FILINGS. The Partnership possesses all material licenses,
certificates, authorizations and permits issued by, and has made all
declarations and filings with, the appropriate federal or state regulatory
agencies or bodies which are necessary or desirable for (i) the construction or
operation of the Project (other than those not yet required), (ii) the ownership
of its properties, (iii) the conduct of its business as it is presently carried
on and is contemplated to be carried on, or (iv) the execution, delivery and
performance of the Transaction Documents, except where the failure to possess or
make the same would not, singularly or in the aggregate, have a Material Adverse
Effect, and the Partnership has not received notification of any revocation or
modification of any such license, certificate, authorization or permit and does
not have any reason to believe that any such license, certificate, authorization
or permit will not be renewed in the ordinary course, except where such
revocation, modification or failure to renew would not reasonably be expected,
singly or in the aggregate, to have a Material Adverse Effect.
(i) TAXES. The Partnership is a partnership for federal income
tax purposes. The Partnership has filed, or caused to be filed, all federal,
state, local and other tax returns required to be filed through the Closing
Date, and has paid, or caused to be paid, all taxes, fees, charges and
assessments (collectively, "TAXES") due thereon, other than Taxes the payment of
which are subject to a good faith contest and for which adequate reserves have
been established.
(j) INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING COMPANY ACT.
The Partnership is not (i) an "investment company" or an entity "controlled" by
an "investment company" as such terms are defined in the Investment Company Act
of 1940, as amended (the "INVESTMENT COMPANY ACT"), and the rules and
regulations of the Commission thereunder, or (ii) a "holding company" or a
"subsidiary company" of a holding company or an "affiliate" thereof as such
terms are defined in the PUHCA.
(k) INSURANCE. All insurance policies that are required to be in
place as of the Closing Date, pursuant to the Transaction Documents and Appendix
B hereto, will be in place and will be in full force and effect, and to the best
of the Partnership's knowledge, no event or circumstance has occurred, nor has
there been any omission to disclose a fact, which would entitle an insurer or
reinsurer to validly avoid or otherwise reduce its liability under the relevant
policy of insurance or reinsurance. The Partnership has not received any notice
from any insurer or reinsurer that any insurance policy has ceased to be in full
force and effect or claiming that the insurer's or reinsurer's liability under
any insurance policy can be reduced or avoided.
(l) PATENTS; TRADEMARKS; AND LICENSES. The Partnership owns or
possesses adequate rights to use all material patents, patent applications,
trademarks, service marks, trade names, trademark registrations, service xxxx
registrations, copyrights, licenses and know-how
11
(including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures) necessary for the operation of
the Project, and the operation of the Project does not conflict in any material
respect with, and the Partnership has not received any notice of any claim of
conflict with, any such rights of others.
(m) COMPLIANCE OF EMPLOYEE BENEFIT PLANS WITH APPLICABLE LAW. The
Partnership does not sponsor, maintain, administer, contribute to, participate
in or have any obligation to contribute to or any liability under, any ERISA
Plan, nor since the date which is six (6) years immediately preceding the
Closing Date has the Partnership established, sponsored, maintained,
administered, contributed to, participated in or had any obligation to
contribute to or any liability under, any ERISA Plan. No accumulated funding
deficiency (as defined in Section 412 of the Code or Section 302 of ERISA) or
Reportable Event has occurred with respect to any ERISA Plan. There are no
Unfunded Benefit Liabilities under any ERISA Plan. The Partnership and each
member of its ERISA Controlled Group have complied with the requirements of
Section 515 of ERISA with respect to each Multiemployer Plan and are not in
"default" (as defined in Section 4219(c)(5) of ERISA) with respect to payments
to a Multiemployer Plan. The aggregate potential total withdrawal liability, and
the aggregate potential annual withdrawal liability payments of the Partnership
and the members of its ERISA Controlled Group as determined in accordance with
Title IV of ERISA as if the Partnership and the members of its ERISA Controlled
Group had completely withdrawn from all Multiemployer Plans is not greater than
$500,000 and $50,000, respectively. To the best knowledge of the Partnership and
each member of its ERISA Controlled Group, no Multiemployer Plan is or is likely
to be in reorganization (as defined in Section 4241 of ERISA or Section 418 of
the Code) or is insolvent (as defined in Section 4245 of ERISA). No material
liability to the Pension Benefit Guaranty Corporation ("PBGC") (other than
required premium payments), the Internal Revenue Service, any ERISA Plan (other
than required minimum funding contributions) or any trust established under
Title IV of ERISA has been, or is expected by the Partnership or any member of
its ERISA Controlled Group to be, incurred by the Partnership or any member of
its ERISA Controlled Group. The Partnership has no contingent liability with
respect to any post-retirement benefit under any "welfare plan" (as defined in
Section 3(1) of ERISA), other than liability for continuation coverage under
Part 6 of Title I of ERISA. No Lien under Section 412(n) of the Code or Section
302(f) of ERISA or requirement to provide security under Section 401(a)(29) of
the Code or Section 307 of ERISA has been or is reasonably expected by the
Partnership or any member of its ERISA Controlled Group to be imposed on the
assets of the Partnership or any member of its ERISA Controlled Group.
(n) SINGLE-PURPOSE PARTNERSHIP. The Partnership has not conducted
and is not conducting any business other than business in connection with the
development, construction, lease, financing, operation and maintenance of the
Project as contemplated by the Transaction Documents to which the Partnership is
a party.
(o) SECURITY DOCUMENTS. The Security Documents create legal,
valid and enforceable perfected Liens on all of the Collateral, in favor of the
Collateral Agent, for the ratable benefit of the Senior Parties, subject to no
Liens other than Permitted Liens. All governmental filings or approvals
necessary or desirable to perfect such Liens have been duly effected or taken
prior to, or will be duly effected or taken on the Closing Date.
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(p) PROJECTIONS. All projections furnished or to be furnished to
the Senior Parties by or on behalf of the Partnership and the summaries of
significant assumptions related thereto (i) are, to the Partnership's knowledge,
based on reasonable assumptions as to all legal, accounting, tax and factual
matters material to the estimates set forth therein, (ii) are consistent with
the provisions of the Transaction Documents in all material respects, (iii) have
been and will be prepared in good faith and in all material respects, with due
care, and (iv) fairly represent the Partnership's expectation as to the matters
covered thereby as of the Closing Date.
(q) REGULATORY STATUS OF THE PARTNERSHIP AND THE PROJECT. The
Partnership is an "exempt wholesale generator" ("EWG") under PUHCA and, as such,
is not considered to be an "electric utility company" under PUHCA, is exempt
from all provisions of PUHCA, and is not considered as being primarily engaged
in the generation or sale of electric power under the FPA.
(r) PROPERTY RIGHTS; CONTRACT RIGHTS; MATERIALS, EQUIPMENT AND
SUPPLIES. The Partnership possesses all property rights and contract rights
which are necessary for the construction and operation of the Project as
contemplated by this Agreement and by each of the Transaction Documents to which
the Partnership is a party, and there are no materials, equipment or supplies
consistent with the Approved Project Construction Budget which are not expected
to be available at the Facility Site.
(s) COLLATERAL. The Partnership has, or has valid and enforceable
rights to acquire, good title or valid leasehold rights to the interests in the
Facility, the Facility Site, including all Necessary Easements, and the tangible
personal property forming a part of the Collateral purported to be covered by
the Security Documents to which it is a party, subject only to Permitted Liens.
(t) YEAR 2000. Any reprogramming required to permit the proper
functioning, in and following the year 2000, of (i) the Partnership's computer
systems and (ii) equipment containing embedded microchips (including systems and
equipment supplied by others or with which Partnership's systems interface) and
the testing of all such systems and equipment, as so reprogrammed, will be
completed by December 31, 1999. The cost to the Partnership of such
reprogramming and testing and of the reasonably foreseeable consequences of year
2000 to the Partnership (including, without limitation, reprogramming errors and
the failure of others' systems or equipment) will not result in a Default, Event
of Default or a Material Adverse Effect. Except for such of the reprogramming
referred to in the preceding sentence as may be necessary, the computer and
management information systems of the Partnership are and, with ordinary course
upgrading and maintenance, will continue until the Final Maturity Date to be,
sufficient to permit the Partnership to conduct its business without Material
Adverse Effect.
ARTICLE V
COVENANTS
Section 5.1 AFFIRMATIVE COVENANTS OF THE PARTNERSHIP. The
Partnership covenants and agrees, from and after the Closing Date, for the
benefit of the Senior Parties or certain of them, as follows:
13
(a) PAYMENTS. The Partnership shall promptly pay, or cause to be
paid, the principal, premium (if any), interest, and all other amounts due and
payable under and in accordance with the terms of the Financing Documents.
(b) INSURANCE. (i) The Partnership shall at all times maintain,
with responsible and financially sound insurance carriers, and provide
satisfactory evidence of, customary insurance in such amounts (subject to
reasonable, customarily available and customary deductibles and sublimits) and
with terms and conditions in accordance with standard industry practice, as
described in Appendix B hereto. All policies of physical damage and business
interruption insurance of the Partnership shall name the Collateral Agent as
loss payee and as additional insured; PROVIDED that, unless the Collateral Agent
is exercising remedies in accordance with the Security Agreement, the consent of
the Partnership shall be required prior to any final adjustment upon an event of
loss under such policies, and the Collateral Agent shall be named as additional
insured under any general liability, automotive liability, excess liability or
other policy similar in nature in accordance with standard industry practice.
(ii) Each insurance policy obtained by the Partnership shall
provide for at least ten (10) days' written notice to the Collateral Agent of
cancellation, reduction in amount of coverage or any other material change in
coverage.
(c) INFORMATION. The Partnership shall furnish, or cause to be
furnished, to the Collateral Agent, the Trustee, each Rating Agency and such
other Senior Parties which so request:
(i) as soon as available and in any event within sixty (60) days
after the end of each of the first three quarterly accounting periods of
the Partnership's fiscal year (commencing with the quarter ending March
31, 2000), Unaudited Financial Statements of the Partnership for such
period, each accompanied by an Officer's Certificate of the Partnership
(1) to the effect that such Unaudited Financial Statements fairly
present the financial condition and results of operations of the
Partnership on the dates and for the periods indicated in accordance
with GAAP (other than with respect to the notes and normally recurring
year-end adjustments) and (2) stating that no Default or Event of
Default has occurred and is continuing, or, if a Default or Event of
Default has occurred and is continuing, a statement as to the nature
thereof;
(ii) as soon as available and in any event within one hundred
twenty (120) days after the end of each fiscal year of the Partnership
and (commencing with the fiscal year ended December 31, 2000), Annual
Audited Financial Statements of the Partnership for such fiscal year,
each accompanied by (1) an audit opinion thereon by the Auditor, which
opinion shall state that said financial statements of the Partnership
present fairly, in all material respects, the financial position of the
Partnership at the end of, and for, such fiscal year in accordance with
GAAP and (2) an Officer's Certificate of the Partnership stating that no
Default or Event of Default has occurred and is continuing, or, if a
Default or Event of Default has occurred and is continuing, a statement
as to the nature thereof;
(iii) promptly after the Partnership has knowledge thereof,
written notice of the occurrence of any event or condition which
constitutes a Default or Event of Default,
14
specifically stating that such event or condition has occurred and
describing it and any action being or proposed to be taken with respect
thereto;
(iv) promptly after delivery to the Partnership of any notice of
any material litigation, claim (including any Environmental Claim),
proceeding pending or, to the best of the Partnership's knowledge,
threatened, involving or affecting the Partnership or the Project, a
copy of such notice; and
(v) as soon as available and in any event not less than
forty-five (45) days in advance of the beginning of each calendar year
after the Date of Commercial Operation, a copy of the annual Operating
Budget for such year.
(d) MAINTENANCE OF EXISTENCE; COMPLIANCE WITH APPLICABLE LAWS.
(i) The Partnership shall at all times preserve and maintain in full force and
effect (A) its existence as a partnership in good standing under the laws of the
State of Delaware and (B) its qualification to do business in each other
jurisdiction in which the character of properties owned or leased by it or in
which the transaction of its business as conducted or proposed to be conducted
makes such qualification necessary, except where the failure to do so would not
reasonably be expected to have a Material Adverse Effect.
(ii) The Partnership shall maintain and renew all of the powers,
rights, privileges and franchises necessary for the transaction of its business
as conducted or proposed to be conducted, except where the failure to do so
would not reasonably be expected to have a Material Adverse Effect.
(iii) The Partnership shall comply with all Applicable Laws
(including Environmental Laws) and Governmental Approvals applicable to it, and
all other acts, rules, regulations, permits, orders and requirements of any
legislative, executive, administrative or judicial body relating to the
performance by the Partnership of its obligations under the Financing Documents,
except where the failure to do so would not reasonably be expected to result in
a Material Adverse Effect.
(e) CONSTRUCTION OF THE FACILITY. The Partnership shall cause the
construction of the Facility to be carried out and completed with diligence and
continuity (except for interruptions provided for in the EPC Contract or due to
events of force majeure, which events of force majeure the Partnership shall use
its commercially reasonable efforts to mitigate), in a good and workmanlike
manner in accordance with sound, generally accepted building and engineering
practices, all material Applicable Laws and Governmental Approvals and the EPC
Contract. The Partnership shall at all times cause a complete set of the current
and (when available) as-built plans (and all supplements thereto) relating to
the Facility to be maintained on the Facility Site or the EPC Contractor's
offices and available for inspection by the Independent Engineer and the Senior
Parties.
(f) PAYMENT OF TAXES AND CLAIMS. The Partnership shall, prior to
the time penalties shall attach thereto, pay and discharge or cause to be paid
or discharged all taxes, assessments and governmental charges or levies imposed
upon it or its income or profits; PROVIDED that, the Partnership shall not be
required to pay any such obligation if (i) such charges
15
are being diligently contested in good faith by appropriate proceedings, (ii)
during the period of such contest the enforcement of any contested item is
effectively stayed, (iii) adequate reserves are established with respect to the
contested items (in accordance with GAAP), and (iv) such contest could not
reasonably be expected to result in the sale, forfeiture or loss of any material
amount of the Collateral. The Partnership shall promptly pay or cause to be paid
any valid, final, non-appealable judgment enforcing any such tax, duty, fee,
assessment, levy, other governmental charge or claim and shall cause the same to
be satisfied of record, as applicable.
(g) BOOKS AND RECORDS. The Partnership shall at all times keep
proper books of record and accounts adequate to reflect truly and fairly the
financial condition and results of operations of the Partnership in which full,
true and correct entries in conformity with GAAP and all Applicable Laws shall
be made of all dealings and transactions in relation to its business and
activities.
(h) RIGHT OF INSPECTION. The Partnership shall permit officers
and designated representatives of the Senior Parties, the Independent Engineer
and the Insurance Consultant to visit and inspect, in the presence of
representatives of the Partnership, if requested by the Partnership, any of the
properties of the Partnership, and to examine and make copies of the books of
record and accounts of the Partnership and discuss the affairs, finances and
accounts of the Partnership with, and be advised as to the same by, its
officers, all at such reasonable times and intervals with reasonable notice
prior to such inspection and to such reasonable extent as the Senior Parties may
request.
(i) USE OF PROCEEDS. The Partnership shall use the proceeds of
the sale of the Bonds to purchase the Authority Bonds and shall use the proceeds
of the Authority Bonds only to pay Project Costs.
(j) COMPLIANCE WITH PROJECT DOCUMENTS. The Partnership shall
comply with, perform and observe in all respects the terms and provisions of
each Project Document to which it is a party, except to the extent any
noncompliance, non-performance or non-observance would not reasonably be
expected to result in a Material Adverse Effect.
(k) GOVERNMENTAL APPROVALS; TITLE; AND REGULATORY STATUS OF THE
PROJECT. (i) The Partnership shall at all times obtain in a timely manner,
maintain in full force and effect (or where appropriate, renew) all Governmental
Approvals and other consents and approvals (including, without limitation, those
required under Environmental Laws) required at any time or advisable in
connection with the construction, maintenance, ownership and good and orderly
operation of the Project, as currently conducted and as proposed to be
conducted, unless failure to so obtain, maintain or comply with such
Governmental Approvals or other consents or approvals would not reasonably be
expected to result in a Material Adverse Effect.
(ii) The Partnership shall preserve and maintain good and
marketable title or valid leasehold rights to all of its properties and assets
subject to no Liens other than Permitted Liens.
(iii) The Partnership shall at all times maintain its status as
an EWG under PUHCA, unless failure to maintain such status (A) would not cause a
breach under or forfeiture
16
of the pricing or other material benefits of the Project Documents or (B) would
not reasonably be expected to result in a Material Adverse Effect.
(l) EVENT OF LOSS. Upon the occurrence of an Event of Loss, the
Partnership shall diligently pursue all rights and remedies available to it
under any insurance policy or any Transaction Document with respect to the
receipt of Loss Proceeds or any other compensation available to the Partnership
upon the occurrence of such event.
(m) RATING. The Partnership shall maintain a rating of the Bonds
by each of the applicable Rating Agencies and shall comply with all reasonable
requests from each of the Rating Agencies for information and/or notices related
to the Bonds.
(n) RULE 144A INFORMATION; OTHER INFORMATION. (i) Unless a
registration statement shall have previously become effective with respect to
the Bonds, at any time when the Partnership is not subject to the reporting
requirements of Section 13 or Section 15(d) of the Exchange Act, upon the
request of any Holder or any owner of a beneficial interest in the Restricted
Global Security, the Partnership shall promptly furnish to such Holder or
beneficial owner, to a prospective purchaser of a Bond or beneficial interest
therein designated by such Holder or beneficial owner, or to the Trustee for
delivery to such Holder, beneficial owner or prospective purchaser, as the case
may be, all information specified in, and meeting the requirements of, paragraph
(d)(4) of Rule 144A in order to permit compliance by such Holder or beneficial
owner with Rule 144A in connection with a resale of Bond pursuant to Rule 144A.
(ii) At any time after a registration statement with respect to
the Bonds shall have been filed with and declared effective by the Commission,
and notwithstanding that the Partnership may no longer be required to do so
pursuant to the Exchange Act or the rules and regulations promulgated
thereunder, the Partnership shall provide to the Trustee, each Holder and each
owner of a beneficial interest in the Restricted Global Security such periodic
and other reports that the Partnership would be required to file if it were
subject to Section 13 or Section 15(d) of the Exchange Act.
(o) FURTHER ASSURANCES. The Partnership shall, at its own
expense, take all reasonable actions that have been or shall be requested by the
Collateral Agent or that the Partnership knows are necessary to establish,
maintain, protect, perfect and continue the perfection of the Liens created by
the Security Documents and shall furnish timely notice of the necessity of any
such action, together with such instruments, in execution form, and such other
information as may be required to enable the Collateral Agent to effect any such
action. Without limiting the generality of the foregoing, the Partnership shall
do everything necessary in the reasonable judgment of the Collateral Agent to
preserve and protect the Collateral, to establish, maintain and perfect such
Liens, and to protect and enforce its rights and title and the rights and title
of the Senior Parties to the Collateral.
(p) CONSENTS. The Partnership shall use all reasonable efforts to
obtain executed consents to the assignment of each material Project Document
(other than contracts with an existing duration of one month or less) entered
into after the Closing Date, from each party thereto.
17
(q) YEAR 2000 COMPLIANCE. The Partnership shall take all
reasonable actions necessary to commit appropriate resources to assure that its
computer-based and other systems are able to effectively process data, including
dates before, on and after January 1, 2000, without experiencing any Year 2000
Problem that could cause a Material Adverse Effect. At the request of the
Collateral Agent, the Partnership will provide the Collateral Agent with
assurances and substantiations (including, but not limited to, the results of
internal or external audit reports prepared in the ordinary course of business)
reasonably acceptable to the Collateral Agent as to the capability of the
Partnership to conduct its business and operations before, on and after January
1, 2000 without experiencing a Year 2000 Problem causing a Material Adverse
Effect. The Partnership represents and warrants that it has a reasonable basis
to believe that no Year 2000 Problem will cause a Material Adverse Effect.
(r) COMPLIANCE WITH CERTIFICATE REQUIREMENTS REGARDING
SUBSTANTIVE CONSOLIDATION. The Partnership will not take any action or omit to
take any action if such action or omission would be inconsistent with the
certifications made in the Certificate(s) listed in Exhibit 5.1(r) hereto;
except for any such action or omission as to which the Partnership shall have
received a reasoned opinion of counsel to the Partnership (and shall have
delivered a copy thereof to the Collateral Agent) to the effect that, after
giving effect to such action or omission, and subject to customary
qualifications and exceptions, in a bankruptcy proceeding involving Tenaska
Energy, Inc., the assets and liabilities of the Partnership should not be
consolidated with those of Tenaska Energy, Inc.
Section 5.2 NEGATIVE COVENANTS OF THE PARTNERSHIP. The Partnership
covenants and agrees, from and after the Closing Date, for the benefit of the
Senior Parties, as follows:
(a) INDEBTEDNESS. The Partnership shall not create or incur or
suffer to exist any Indebtedness except the following (collectively, "PERMITTED
INDEBTEDNESS"):
(i) the Authority Bonds, the Lease Agreement and the Guaranty;
(ii) the Bonds;
(iii) Indebtedness incurred to finance in whole or in part the
making of capital improvements to the Project required to maintain
compliance with Applicable Laws or the Project Documents; PROVIDED that,
after giving effect to the incurrence of such Indebtedness (A) an
Authorized Officer of the Partnership certifies in writing and the
Independent Engineer confirms as reasonable (subject to customary
assumptions and qualifications) that (1) such capital improvements are
reasonably expected to enable the Partnership to comply with such
Applicable Laws or Project Documents, as the case may be, and (2) the
calculations of the Partnership that demonstrate that after giving
effect to the incurrence of such Indebtedness the minimum Projected Debt
Service Coverage Ratio for (x) the next two consecutive Semi-Annual
Periods commencing with the Semi-Annual Period in which such
Indebtedness is incurred, taken as one annual period, and (y) each pair
of subsequent consecutive Semi-Annual Periods taken as a single annual
period through the Final Maturity Date, will not be less than 1.1 to
1.0, or (B) each Rating Agency then rating the Bonds provides written
confirmation that no Rating Downgrade will result from the incurrence of
such Indebtedness;
18
(iv) Indebtedness in an aggregate principal amount not to exceed
$15,000,000 incurred to finance in whole or in part the making of
capital improvements in respect of the Project, other than those capital
improvements referenced in clause (iii) above; PROVIDED that, (A) no
Event of Default shall have occurred and be continuing and (B) each
Rating Agency then rating the Bonds provides written confirmation that
no Rating Downgrade will result from such the incurrence of such
Indebtedness;
(v) Indebtedness incurred under the DSR LOC Reimbursement
Agreement, a Working Capital Facility and the PPA LOC Reimbursement
Agreement;
(vi) Indebtedness in an aggregate amount not to exceed $100,000
incurred in connection with the GPC Interconnection Agreement;
(vii) Subordinated Debt in an aggregate principal amount not to
exceed $20,000,000, in accordance with the requirements set forth
herein; and
(viii) Other Indebtedness in an aggregate principal amount not
to exceed $10,000,000 which may be used for Project Costs, Operating and
Maintenance Expenses and capital expenditures with respect to the
Project.
(b) LIENS. The Partnership shall not create or suffer to exist or
permit any Lien upon or with respect to any of its properties except the
following (collectively, "PERMITTED LIENS"):
(i) Liens specifically permitted or required by, or created by,
any Security Document;
(ii) Liens to secure Permitted Indebtedness; PROVIDED that, the
holder of such Permitted Indebtedness, or a representative thereof,
shall have entered into the Collateral Agency Agreement; and PROVIDED,
FURTHER that, in the case of Liens to secure Permitted Indebtedness
which constitutes Subordinated Debt, the holders of Subordinated Debt
shall not be permitted to foreclose such Liens until all Senior Debt has
been irrevocably paid in full in cash;
(iii) Liens for taxes, assessments or governmental charges which
are either not yet due or which are being diligently contested in good
faith by appropriate proceedings and for which adequate reserves are
established in accordance with GAAP;
(iv) Liens in connection with worker's compensation,
unemployment insurance or other social security or pension obligations;
(v) mechanic's, workmen's, materialmen's, supplier's,
construction or other similar Liens arising in the ordinary course of
business or incident to the development, construction, operation and
maintenance of the Project;
(vi) servitudes, easements, rights-of-way, restrictions, minor
defects or irregularities in title and such other encumbrances or
charges against real property or interests therein as are of a nature
generally existing with respect to properties of a
19
similar character and which do not in any material way interfere with
the use thereof or the business of the Partnership;
(vii) capital leases entered into by the Partnership to the
extent not prohibited by Section 5.2(a) of this Agreement; and
(viii) other Liens incidental to the conduct of the
Partnership's business or the ownership of properties and assets which
were not incurred in connection with the borrowing of money or the
obtaining of advances or credit (other than vendor's liens for accounts
payable in the ordinary course of business), and which do not in the
aggregate materially impair the use thereof in the operation of the
Partnership's business.
(c) GUARANTEES. The Partnership shall not contingently or
otherwise be or become liable, directly or indirectly, in connection with any
Guarantee Obligation, except for (i) the Guaranty and (ii) endorsements and
similar obligations in the ordinary course of business.
(d) BUSINESS ACTIVITIES. The Partnership shall not at any time
conduct any activities other than (i) those contemplated by the Transaction
Documents and (ii) activities incidental thereto.
(e) FUNDAMENTAL CHANGES; SALE OF ASSETS. (i) The Partnership
shall not enter into any transaction of merger or consolidation, change its form
of organization or its business, liquidate, wind-up or dissolve itself (or
suffer any liquidation or dissolution).
(ii) The Partnership shall not sell, transfer, assign,
hypothecate, pledge, lease, sublease or otherwise dispose of (in one transaction
or in a series of transactions) any of its assets, except (A) in the ordinary
course of business or (B) if such asset is worn out, obsolete, or no longer
necessary or useful in the operation of the Project; PROVIDED however, if the
aggregate fair market value of such worn out, obsolete, unnecessary or useless
asset exceeds $2,000,000, the Partnership shall certify in writing that such
asset is worn out, obsolete or no longer necessary or useful in the operation of
the Project; PROVIDED further, this Section 5.2(e)(ii) shall not apply to any
property which is the subject of the GPC Interconnection Agreement and the land
on which such property is to be located and related easements.
(f) TRANSACTIONS WITH AFFILIATES. Except for transactions entered
into pursuant to the Transaction Documents or the Partnership Agreement, the
Partnership shall not enter into any transaction or series of related
transactions with any Person (including any Affiliate of the Partnership) on
terms less favorable to the Partnership than those in comparable arms length
transactions.
(g) RESTRICTED PAYMENTS. The Partnership shall not make any
Restricted Payments, except for the Initial Disbursement and payments permitted
under the Collateral Agency Agreement.
(h) AMENDMENTS TO PROJECT DOCUMENTS. The Partnership shall not
amend, modify, cancel or terminate any Project Document (other than change
orders under the EPC Contract and the Pipeline EPC Contract) or the Tax
Agreement unless the Partnership certifies that (i) such amendment,
modification, termination or cancellation would not reasonably be
20
expected to result in a Material Adverse Effect; PROVIDED that, in the case of
an amendment, modification, termination or cancellation of the PPA (or relating
thereto), each Rating Agency then rating the Bonds shall provide written
confirmation that such amendment, modification, cancellation or termination
would not result in a Rating Downgrade.
(i) ADDITIONAL PROJECT DOCUMENTS. The Partnership shall not
enter, and shall cause the Project not to enter, into any Additional Project
Document unless an Authorized Officer of the Partnership certifies in writing
that the transactions contemplated by such Additional Project Document would not
reasonably be expected to result in a Material Adverse Effect, and either (A)
the Independent Engineer concurs in writing with such certification or (B) each
Rating Agency then rating the Bonds confirms in writing that the entry into the
Additional Project Document would not result in a Rating Downgrade; PROVIDED
that, the foregoing prohibition shall not apply (1) if PECO is not performing
under the PPA, to any Additional Project Document providing for short term
capacity and energy sales, spot gas and related transportation or (2) if the
transactions contemplated by the Additional Project Document, when taken
together with all other Additional Project Documents which are in effect and
have not been so certified, do not exceed $1,500,000 in any one calendar year.
(j) CHANGE ORDERS. The Partnership shall not initiate or consent
to any change orders under the EPC Contract unless an Authorized Representative
of the Partnership certifies that (i) such change order is reasonable and is
consistent with sound engineering practice, (ii) such change order could not
reasonably be expected to materially adversely affect the operation or
reliability of the Project, and (iii) the implementation of such change order is
not reasonably expected to materially delay the Date of Commercial Operation of
the Final Units; PROVIDED that, unless the Independent Engineer has concurred in
writing with the certifications set forth in clauses (i), (ii) and (iii) above,
such change order does not exceed $500,000 individually or, when aggregated with
all other change orders that have not been concurred with in writing or
otherwise approved or ratified by the Independent Engineer, $5,000,000.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1 EVENTS OF DEFAULT. The term "Event of Default," whenever
used herein, shall mean any of the following events (whatever the reason for
such event and whether it shall be voluntary or involuntary or shall come about
or be affected by operation of law, or be pursuant to or in compliance with any
Applicable Law), and any such event shall continue to be an Event of Default if
and for so long as it shall not have been remedied:
(a) an event of default under the Bonds, the Indenture, the DSR
LOC Reimbursement Agreement, the PPA LOC Reimbursement Agreement or any Working
Capital Facility;
(b) any representation or warranty made by the Partnership
herein, or in any certificate or other document furnished to the Senior Parties
by or on behalf of the Partnership in accordance with the terms hereof, shall
prove to have been false or misleading in any material respect as of the time
made, confirmed or furnished and the fact, event or circumstance that gave
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rise to such inaccuracy has resulted in, or is reasonably expected to result in
a Material Adverse Effect and such fact, event or circumstance shall continue
uncured for thirty (30) or more days from the date the Partnership obtains
actual knowledge thereof; PROVIDED that, if the Partnership commences and
diligently pursues efforts to cure such fact, event or circumstance within such
thirty (30) day period and delivers written notice thereof to the Collateral
Agent, the Partnership may continue to effect such cure and such
misrepresentation shall not be deemed an Event of Default for an additional
sixty (60) days so long as the Partnership is diligently pursuing such cure;
(c) the Partnership shall fail to perform or observe any covenant
or agreement contained in Section 5.1(b) (Insurance); Section 5.1(d)(i)
(Maintenance of Existence; Compliance with Applicable Laws); Section 5.1(k)(i)
(Governmental Approvals; Title; Regulatory Status of the Project); Section
5.2(a) (Indebtedness); Section 5.2(b) (Liens); Section 5.2(c) (Guarantees);
Section 5.2(d) (Business Activities); Section 5.2(e) (Fundamental Changes; Sale
of Assets); Section 5.2(g) (Restricted Payments); Section 5.2(h) (Amendments to
Project Documents); or Section 5.2(i) (Additional Project Documents) of this
Agreement, and such failure shall continue uncured for thirty (30) or more days
from the date the Partnership obtains actual knowledge of such failure;
(d) the Partnership shall fail to perform or observe any of its
covenants or agreements contained in any other provisions of this Agreement
(other than those referred to in paragraph (c) above), and such failure shall
continue uncured for thirty (30) or more days from the date the Partnership
obtains actual knowledge of such failure; PROVIDED that, if the Partnership
commences and diligently pursues efforts to cure such failure within such thirty
(30) day period and delivers written notice thereof to the Collateral Agent, the
Partnership may continue to effect such cure and the failure shall not be deemed
an Event of Default for an additional sixty (60) days so long as the Partnership
is diligently pursuing such cure;
(e) the Partnership shall (i) apply for or consent to the
appointment of, or the taking of possession by, a receiver, custodian, trustee
or liquidator of itself or all or a substantial part of its property, (ii) make
a general assignment for the benefit of its creditors, (iii) commence a
voluntary case under the Bankruptcy Code, (iv) file a petition seeking to take
advantage of any other Debtor Relief Law, (v) fail to controvert in a timely and
appropriate manner, or acquiesce in writing to, any petition filed against it in
an involuntary case under the Bankruptcy Code or any other Debtor Relief Law or
(vi) take any action for the purpose of effecting any of the foregoing;
(f) a proceeding or case shall be commenced without the
application or consent of the Partnership in any court of competent
jurisdiction, seeking (i) its liquidation, reorganization, dissolution,
winding-up or the composition or readjustment of debts or (ii) the appointment
of a trustee, receiver, custodian, liquidator or the like of the Partnership or
all or a substantial part of its property under any Debtor Relief Law and such
proceeding or case shall continue undismissed, or any order, judgment or decree
approving any of the foregoing shall be entered and continue unstayed and in
effect, for a period of sixty (60) or more consecutive days, or any order for
relief against the Partnership shall be entered in any involuntary case under
the Bankruptcy Code or any other Debtor Relief Law (each such event described in
subsections (e) and (f) of this Section 6.1 is hereinafter referred to as a
"Bankruptcy Event");
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(g) failure by the Partnership to make any payment, or comply
with any covenant, in respect of any Indebtedness in an amount exceeding
$10,000,000; PROVIDED that, such failure continues unwaived or uncured beyond
any applicable grace period and results in the acceleration of the maturity of
such Indebtedness;
(h) any material Project Document ceases to be valid and binding
and in full force and effect, any third party thereto denies that it has any
liability or obligation under any material Project Document and such third party
ceases performance thereunder, or any third party is in default under such
Project Document (subject to any applicable grace period), and in each case such
cessation or default has resulted or would reasonably be expected to result in a
Material Adverse Effect; PROVIDED that, no such event shall be an Event of
Default if within one hundred eighty (180) days from the occurrence of such
event, the Partnership (A) causes the third party to confirm its obligations
under such Project Document and/or resume performance thereunder (as the case
may be) or (B) enters into an alternate agreement which (x) contains, as
certified by an Authorized Officer of the Partnership and confirmed by the
Independent Engineer, substantially similar terms and conditions or, if such
terms and conditions are no longer available on a commercially reasonable basis,
the terms and conditions then available on a commercially reasonable basis and
(y) after giving effect to the agreement, enables the Partnership to maintain a
minimum annual Projected Debt Service Coverage Ratio equal to or greater than
the lesser of (1) the minimum annual Projected Debt Service Coverage Ratio which
would have been in effect had performance under the original Project Document
continued and (2) 1.2 to 1.0; PROVIDED FURTHER that, in the case of the PPA, in
addition to the conditions set forth above, each Rating Agency confirms that
neither of such actions shall result in a Rating Downgrade;
(i) the entry of one or more final and non-appealable judgment or
judgments for the payment of money in excess of $10,000,000 against the
Partnership, which remain unpaid or unstayed for a period of sixty (60) or more
consecutive days;
(j) the Partners shall cease collectively to maintain Control (as
defined below) of the Partnership unless each Rating Agency then rating the
Bonds provides written confirmation to the Collateral Agent that such cessation
shall not result in a Rating Downgrade (it being understood that for all
purposes of this clause (j), "Control" means the possession, directly or
indirectly, of the economic interest in or power to direct or cause the
direction of the management and policies of a Person through ownership of equity
interests); or
(k) any Security Document shall cease to be in full force and
effect or any Lien purported to be granted thereby with respect to any material
Collateral shall cease to be a valid and perfected Lien in favor of the
Collateral Agent for the benefit of the Senior Parties on the Collateral
described therein with the priority purported to be created thereby and such
cessation has resulted in a Material Adverse Effect; PROVIDED that, the
Partnership shall have thirty (30) days from the date the Partnership obtains
actual knowledge thereof to cure such cessation (if curable) or to furnish to
the Collateral Agent all documents or instruments required to cure any such
cessation (if curable).
Section 6.2 REMEDIES UPON AN EVENT OF DEFAULT. Upon the occurrence and
during the continuance of any Event of Default on or after the Closing Date,
each Senior Party shall be,
23
subject to the terms of the Collateral Agency Agreement, entitled to exercise
the remedies available to such Senior Party under and in accordance with the
provisions of the Transaction Documents to which it is party.
ARTICLE VII
INDEMNIFICATION AND CONTRIBUTION
Section 7.1 INDEMNIFICATION AND CONTRIBUTION. If, in connection with
this Agreement or any other Financing Document or the transactions contemplated
hereby or thereby, any of the Senior Parties become involved in any capacity in
any action or legal proceeding, the Partnership agrees, subject to Section 8.16,
(a) to reimburse the Senior Parties, their affiliates and their respective
directors, officers, employees, agents and controlling persons (each, an
"Indemnified Party") promptly upon request for all reasonable expenses
(including the reasonable fees and disbursements of legal counsel and the
reasonable cost of investigation and preparation), disbursements and advances as
they are incurred, and (b) to indemnify and hold harmless each Indemnified Party
against all direct losses, claims, damages or liabilities, joint or several, to
which such Indemnified Party may become subject in connection with this
Agreement or any other Transaction Document or the transactions contemplated
hereby or thereby including without limitation the use by the Partnership of the
proceeds of any moneys provided pursuant to the Financing Documents; PROVIDED,
however, that the Partnership shall not be liable under this Section 7.1 in
respect of any expense, loss, claim, damage or liability to the extent that
either the Partnership obtains a final judgment, not subject to appeal, that
such expense, loss, claim, damage or liability resulted from the willful
misconduct or gross negligence of such Indemnified Party. All indemnifications
and releases from liability granted hereunder to the Senior Parties shall extend
to their officers, directors, employees, agents, successors and assigns. The
agreements in this Section 7.1 shall survive the payment or satisfaction in full
of the obligations, any other termination of this Agreement and the resignation
or removal of the Collateral Agent.
Section 7.2 PROCEDURE FOR INDEMNIFICATION CLAIMS. In the event that a
claim shall be made or threatened, or an action or proceeding shall be commenced
or threatened, against an Indemnified Party, which claim, action or proceeding
could result in liability of the Partnership the indemnification obligations
hereunder, the Indemnified Party shall give prompt notice to the Partnership and
the Partnership shall have the right to take over the defense or settlement of
such claim, action or proceeding at its own expense by giving prompt written
notice to the Indemnified Party; PROVIDED, however, that the omission so to
notify the Partnership will not relieve the Partnership from any liability to
the extent the Partnership is not materially prejudiced as a proximate result of
such failure; PROVIDED, FURTHER, that (a) the Indemnified Party shall at all
times have the right, at its option and expense, to participate fully therein;
PROVIDED that the Partnership shall be responsible for the legal fees and
expenses of the Indemnified Party if (i) the employment of such counsel by the
Indemnified Party has been authorized by the Partnership, (ii) the Indemnified
Party shall have reasonably concluded that there may be a conflict of interest
between the Partnership and the Indemnified Party in the conduct of the defense
of such action (in which case the Partnership shall not have the right to direct
the defense of such action on behalf of the Indemnified Party) or counsel for
the Partnership shall have declined to represent the Indemnified Party in light
of a potential conflict of interest, or (iii) the Partnership shall not in
24
fact have employed counsel reasonably satisfactory to the Indemnified Party to
assume the defense of such action, and (b) if the Partnership did not give such
notice and did not proceed diligently to defend the claim, action or proceeding
within 15 days after receipt of such notice of the claim, action or proceeding,
the Indemnified Party shall have the right, but not the obligation, to undertake
the defense of any such claim, action or proceeding for the account of and at
the risk of the Partnership and the Partnership shall be bound by any defense or
settlement that the Indemnified Party may make as to such claim, action or
proceeding. The parties shall cooperate in defending any such claim, action or
proceeding, and the defending party shall have reasonable access to the books
and records and personnel in the possession or control of the other party that
are pertinent to the defense. The Partnership shall not, in the defense of such
claim, action or proceeding, consent to the entry of any judgment or award, or
enter into any settlement, except in either event with the prior written consent
of the Indemnified Party. The parties agree that any Indemnified Party may join
the Partnership in any claim, action or proceeding as to which any right of
indemnity granted to such Indemnified Party pursuant to this Agreement would or
might apply, for the purpose of enforcing such right of indemnity.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 SURVIVAL. All agreements, covenants, representations,
warranties and indemnities contained in this Agreement and in any agreement,
document or certificate delivered pursuant hereto, or in connection herewith,
shall survive and continue in effect following the execution and delivery of
this Agreement and the Closing Date.
Section 8.2 NOTICES. Except as otherwise expressly provided herein in
any particular case, all notices, approvals, consents, requests and other
communications hereunder shall be in writing and shall, if addressed as provided
in the following sentence, be deemed to have been given, when (i) delivered by
hand, (ii) mailed by first class registered or certified mail, return receipt
requested, postage prepaid, (iii) sent by private overnight courier service or
(iv) sent by telecopy, if immediately after transmission the sender's facsimile
machine records in writing the correct answer back and such transmission is
promptly followed by hand, mail or overnight courier service. Until otherwise so
notified by the respective parties, all notices, approvals, consents, requests
and other communications shall be addressed to the following addresses:
If to the Partnership:
Tenaska Georgia Partners, L.P.
0000 X. 000xx Xx. Xxxxx 000
Xxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
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If to the Trustee:
The Chase Manhattan Bank
Capital Markets Fiduciary Services
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
International & Project Finance Service Delivery
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
If to the DSR LOC Agent:
The Toronto-Dominion Bank
000 Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
If to the PPA Letter of Credit Agent:
The Toronto-Dominion Bank
000 Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
If to the Collateral Agent:
The Chase Manhattan Bank
Capital Markets Fiduciary Services
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
International & Project Finance Service Delivery
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
A duplicate copy of each notice, approval, consent, request or other
communication given hereunder by each of the parties, to any one of the others
or to the holders of the Bonds shall also be given to all of the others. Each of
the parties may, by notice given hereunder, designate any further or different
addresses to which subsequent notices, approvals, consents, requests or other
communications shall be sent or persons to whose attention the same shall be
directed.
26
Section 8.3 SEVERABILITY OF PROVISIONS. In case any provision in or
obligation under this Agreement 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.
Section 8.4 AMENDMENTS, WAIVERS, ETC. No amendment, modification or
supplement of this Agreement shall be effective unless such amendment,
modification or supplement was effected in accordance with the terms of this
Agreement and Section 6.11 of the Collateral Agency Agreement. Any approval of
an amendment to, or any waiver of any provision of, this Agreement shall be
effective only in the specific instance and for the specific purpose for which
such approval or waiver is given. No delay on the part of any Senior Party in
the exercise of any right, power or remedy shall operate as a waiver thereof,
nor shall any single or partial waiver by such Senior Party of any right, power
or remedy preclude any further exercise thereof, or the exercise of any other
right, power or remedy.
Section 8.5 HEADINGS; TABLE OF CONTENTS. The Table of Contents and the
headings of the Articles, Sections, subsections, clauses and paragraphs hereof,
and of Schedules, Appendices and Exhibits hereto, are for convenience of
reference only, and shall not affect the construction or interpretation of this
Agreement.
Section 8.6 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
Section 8.7 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE. (i) This
Agreement is a contract made under the laws of the State of New York of the
United States and shall for all purposes be governed by and construed in
accordance with the laws of such State without regard to the conflict of law
rules thereof (other than Section 5-1401 of the New York General Obligations
Law).
(ii) Any legal action or proceeding against the Partnership with
respect to this Agreement may be brought in the courts of the State of New York
in the County of New York or of the United States for the Southern District of
New York and, by execution and delivery of this Agreement, the Partnership
hereby irrevocably accepts for itself and in respect of its property, generally
and unconditionally, the jurisdiction of the aforesaid courts. The Partnership
agrees that a judgment, after exhaustion of all available appeals, in any such
action or proceeding shall be conclusive and binding upon the Partnership, and
may be enforced in any other jurisdiction, by a suit upon such judgment, a
certified copy of which shall be conclusive evidence of the judgment. The
Partnership 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 Partnership, at
its address referred to in Section 8.2 hereto, such service to become effective
thirty (30) days after such mailing. Nothing herein shall affect the right of
the Trustee or any other Person to serve process in any other manner permitted
by law or to commence legal proceedings or otherwise proceed against the
Partnership in any other jurisdiction.
27
(iii) The Partnership 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
Agreement in the courts referred to in clause (b) 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.
Section 8.8 ENTIRE AGREEMENT. This Agreement (including, without
limitation, the schedules and exhibits hereto) and the other Transaction
Documents supersede all prior agreements, written or oral, between or among any
of the parties hereto relating to the transactions contemplated hereby and
thereby, and each of the parties hereto represents and warrants to the others
that this Agreement and the other Transaction Documents constitute the entire
agreement among the parties relating to the transactions contemplated hereby and
thereby.
Section 8.9 BENEFIT OF AGREEMENT. All agreements, representations,
warranties and indemnities in this Agreement and in any agreement, document or
certificate delivered pursuant hereto shall be binding upon the Person making
the same and its successors and assigns and shall inure to the benefit of and be
enforceable by the Person for whom made and its successors and assigns;
PROVIDED, however, the Partnership may not assign or transfer any of its rights
or obligations hereunder without the prior written consent of each of the Senior
Parties. Any Senior Party may transfer, assign or grant its rights and
obligations hereunder in connection with an assignment or transfer of all or any
part of its interest in accordance with the provisions of the respective
Financing Document; PROVIDED that, any such assignee has agreed to be bound by
the terms of the Financing Documents. This Agreement is for the sole benefit of
the parties hereto and their respective successors and assigns and all
Indemnified Parties and their respective successors and assigns, and is not for
the benefit of any other Person.
Section 8.10 EXPENSES. All statements, reports, certificates, opinions
and other documents or information required to be furnished by the Partnership
to the Senior Parties under this Agreement or any other Financing Document shall
be supplied without cost to the Senior Parties. The Partnership shall pay,
within thirty (30) days after demand therefor, all reasonable and documented
out-of-pocket costs and expenses of the Senior Parties, incurred in connection
with (i) the negotiation, preparation, execution and delivery of the Financing
Documents or any waiver or amendment of, or supplement or modification to, the
Financing Documents and (ii) the review of any of the other agreements,
instruments or documents referred to in this Agreement or relating to the
transactions contemplated hereby. In addition, the Partnership shall pay, within
thirty (30) days after demand therefor, all reasonable and documented
out-of-pocket costs and expenses of the Senior Parties (including the reasonable
and documented fees and disbursements of counsel to the Senior Parties),
incurred in connection with an exercise of the Senior Parties' remedies under
the Financing Documents following the occurrence of an Event of Default under
the Financing Documents.
Section 8.11 REMOVAL OF INDEPENDENT ENGINEER; PAYMENT OF INDEPENDENT
ENGINEER. The Collateral Agent shall, at the request of the Required Senior
Parties, remove the Independent Engineer and appoint a successor Independent
Engineer from those engineers then listed on Schedule 8.11(and designated in
such request) if at any time the existing Independent Engineer becomes incapable
of acting or is, or is reasonably likely to be, adjudged bankrupt or insolvent
or a receiver is appointed for, or any public officer shall take charge or
control of, the Independent
28
Engineer or its property or its affairs for the purpose of rehabilitation,
conservation or liquidation. Within thirty (30) days of receipt by the
Collateral Agent of a written notification from the Partnership to the effect
that the Independent Engineer has failed to carry out its obligations in a
timely manner, the Collateral Agent shall, unless directed by the Required
Senior Parties not to do so, remove the Independent Engineer and appoint a
successor Independent Engineer from those engineers then listed on Schedule 8.11
(and designated by the Partnership in such written notification); provided,
however, that the Partnership shall have the unilateral right to remove the
Independent Engineer and appoint a successor Independent Engineer from those
independent engineers then listed on Schedule 8.11 in the event that a Third
Party Engineer determines that the failure of the existing Independent Engineer
to carry out its obligations in a timely manner has resulted or could reasonably
be expected to result in a Material Adverse Effect; and provided, further, that
the Independent Engineer so appointed shall not be such Third Party Engineer.
The Partnership shall pay for all services performed by the Independent Engineer
and its reasonable and documented costs and expenses related thereto.
Section 8.12 THIRD PARTY ENGINEER DISPUTE RESOLUTION. (i) If the
Partnership and the Independent Engineer are in dispute in respect of a notice,
plan, report, certificate or budget and they are unable to resolve the dispute
within seven (7) days of the Independent Engineer expressing its disagreement
with, or failing when requested by the Partnership to approve, confirm, concur
in or consent to, such notice, plan, report, certificate or budget, a single
independent engineer (the "THIRD PARTY ENGINEER") shall be designated to
consider and decide the issues raised by such dispute. The selection of such
Third Party Engineer shall be made from the list of engineers described below.
The Partnership shall designate the Third Party Engineer from such list not
later than the third (3rd) day following the expiration of the seven (7) day
period described above and such designation, subject to acceptance thereof by
the Third Party Engineer so designated, shall become effective ten (10) Business
Days after notice is given by the Partnership to the Collateral Agent of the
selection of a Third Party Engineer unless the Collateral Agent, acting at the
direction of the Required Senior Parties, gives notice of their disagreement
with such designation within such ten (10) Business Day period, in which event
the Partnership shall select another Third Party Engineer pursuant to the
foregoing procedure. In the event the designated Third Party Engineer shall
decline the assignment, the foregoing procedure shall apply to designation of an
alternative Third Party Engineer. Within three (3) days of the acceptance of a
Third Party Engineer, each of the Partnership and the Independent Engineer shall
submit to the Third Party Engineer a notice setting forth in detail such
Person's position in respect of the issues in dispute. Such notice shall include
supporting documentation, if appropriate.
(ii) The Third Party Engineer shall complete all proceedings and
issue his decision with regard to the issues in dispute as promptly as
reasonably possible, but in any event within ten (10) days of the date on which
he is designated as Third Party Engineer unless the Third Party Engineer
reasonably determines that additional time is required in order to give adequate
consideration to the issues raised. In such case the Third Party Engineer shall
state in writing his reasons for believing that additional time is needed and
shall specify the additional period required, which such period shall not exceed
ten (10) days without the Partnership's agreement.
29
(iii) If the Third Party Engineer determines that the concerns
set forth in the Independent Engineer's notice are valid, he shall so state and
shall state the corrective actions to be taken by the Partnership. In such case,
the Partnership shall promptly take such actions. The Partnership shall
thereafter bear all costs which may arise from actions taken pursuant to the
Third Party Engineer's decision. If the Third Party Engineer determines that the
concerns set forth in the Independent Engineer's notice are not valid, he shall
so state and shall state the appropriate actions, if any, to be taken by the
Partnership. In such case, the Partnership shall take such actions, if any, and
for purposes of this Agreement, the Independent Engineer shall be deemed to have
approved, confirmed, concurred in or consented to the notice, plan, report,
certificate or budget in dispute. The decision of the Third Party Engineer shall
be final and non-appealable. The Partnership shall bear all reasonable and
documented costs incurred by the Third Party Engineer in connection with this
dispute resolution mechanism.
(iv) The Third Party Engineer shall be chosen from the list of
qualified engineers maintained as Schedule 8.11 to this Agreement. At any time
the Partnership or the Collateral Agent, acting at the direction of the Required
Senior Parties, may remove a particular engineer from the list by obtaining the
other's consent to such removal (such consent not to be unreasonably withheld,
conditioned or delayed). However, no name or names may be removed from the list
if such removal would leave the list without at least two (2) names, unless,
concurrently therewith, the parties agree to the addition of one (1) or more
names to such list (such agreement not to be unreasonably withheld, conditioned
or delayed).
(v) During January of each year, each of the Partnership and the
Collateral Agent shall review the current list of Third Party Engineers and the
Partnership shall give notice to the Collateral Agent and the Collateral Agent,
acting at the direction of the Required Senior Parties, shall give notice to the
Partnership of any proposed additions to the list and any intended deletions.
Intended deletions shall automatically become effective thirty (30) days after
notice is received by the other unless written objection is made by such other
person within thirty (30) days and provided that such deletions do not leave the
list without at least two (2) names. Proposed additions to the list shall
automatically become effective thirty (30) days after notice is received by the
other person unless written objection is made by such other person within thirty
(30) days. By mutual agreement between the Partnership and the Collateral Agent,
acting at the direction of Senior Parties holding five percent (5%) of the
Combined Exposure, a new name or names may be added to the list of Third Party
Engineers at any time.
Section 8.13 WAIVER OF LITIGATION PAYMENTS. In the event that any action
or lawsuit is initiated by or on behalf of the Senior Parties against the
Partnership, or any other party to any Financing Document, the Partnership, to
the fullest extent permissible under Applicable Law, irrevocably waives its
right to, and agrees not to request, plead, or claim that any Senior Party or
their respective successors, transfers, and assigns (any such Person, a "SENIOR
PARTY PLAINTIFF") post, pay, or offer, any caution judicatum xxxxx xxxx,
litigation bond, or any other bond, fee, payment, or security measure provided
for by any provision of law applicable to such action or lawsuit (any such bond,
fee, payment, or measure, a "LITIGATION PAYMENt"), and the Partnership further
waives any objection that it may now or hereafter have to a Senior Party
Plaintiff's claim that such Senior Party Plaintiff should be exempt or immune
from posting, paying, making or offering any such Litigation Payment.
30
Section 8.14 RECITALS. Neither the Collateral Agent, the Trustee, the
DSR LOC Agent, the PPA LOC Agent, the Depositary Bank nor any of their officers,
directors, employees, agents, attorneys-in-fact or affiliates shall be
responsible in any manner to any of the other Senior Parties for any recitals,
representations, statements or warranties made in this Agreement.
Section 8.15 IMMUNITY OF OFFICERS AND EMPLOYEES OF TRUSTEE, DSR LOC
AGENT, PPA LOC AGENT, COLLATERAL AGENT AND DEPOSITARY BANK. No recourse shall be
had for the enforcement of any obligation, covenant, promise or agreement of the
Collateral Agent, Trustee, DSR LOC Agent, PPA LOC Agent or the Depositary Bank
contained in this Agreement or for any claim based hereon or otherwise in
respect hereof against any past, present or future officer or employee, as such,
in his individual capacity, of the Collateral Agent, Trustee, DSR LOC Agent, PPA
LOC Agent or the Depositary Bank or of any successor entity, either directly or
through the Collateral Agent, Trustee, DSR LOC Agent, PPA LOC Agent or the
Depositary Bank or any successor entity, whether by virtue of any constitutional
provision, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise, and no personal liability whatsoever shall attach to, or
be incurred by, any past, present or future officer or employee, as such, of the
Collateral Agent, Trustee, DSR LOC Agent, PPA LOC Agent or the Depositary Bank
or of any successor entity, either directly or through the Collateral Agent,
Trustee, DSR LOC Agent, PPA LOC Agent or the Depositary Bank or any successor
entity, under or by reason of any of the obligations, covenants, promises or
agreements entered into among the Collateral Agent, Trustee, DSR LOC Agent, PPA
LOC Agent or the Depositary Bank and the other parties to this Agreement whether
contained in this Agreement or to be implied herefrom as being supplemental
hereto, and all personal liability of that character against every such officer
and employee is, by the execution of this Agreement and as a condition of, and
as part of the consideration for, the execution of this Agreement, expressly
waived and released; PROVIDED, however, that nothing contained in this Section
8.15 or in this Agreement shall be construed to protect or release any officer
or employee of the Collateral Agent, Trustee, DSR LOC Agent, PPA LOC Agent or
the Depositary Bank from liability arising from any fraudulent actions,
fraudulent misrepresentations, gross negligence or willful misconduct. The
immunity of officers and employees of the Trustee, Collateral Agent, DSR LOC
Agent, PPA LOC Agent or the Depositary Bank under the provisions contained in
this Section 8.15 shall survive the termination of this Agreement.
Section 8.16 NO RECOURSE. The obligations of the Partnership and each
Non-Recourse Party with respect to their respective obligations under this
Agreement are limited as provided in Section 8.21 of the Collateral Agency
Agreement which is hereby incorporated herein by reference, mutatis mutandis.
31
IN WITNESS WHEREOF, the parties have caused this Common Agreement to be
duly executed by their duly authorized officers as of the day and year first
above written.
TENASKA GEORGIA PARTNERS, L.P.
By: Tenaska Georgia, Inc., its
Managing General Partner
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President of Finance &
Treasurer
THE CHASE MANHATTAN BANK,
as Trustee
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Vice President
THE TORONTO-DOMINION BANK,
as DSR LOC Agent
By: /s/ Xxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx
Title: Manager Credit
THE TORONTO-DOMINION BANK,
as PPA LOC Agent
By: /s/ Xxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx
Title: Manager Credit
THE CHASE MANHATTAN BANK,
as Collateral Agent
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Vice President
32
APPENDIX A
PART I: DEFINITIONS
"ACCOUNT" means any account established under the Collateral Agency
Agreement.
"ADDITIONAL BONDS" means any Bonds issued pursuant to the Indenture or a
supplemental indenture thereto other than the Initial Bonds.
"ADDITIONAL PROJECT DOCUMENT" means (i) any material contract or
undertaking entered into by the Partnership after the Closing Date relating to
the sale of electricity from the Project or to capital improvements for,
operation or maintenance of, the Project and (ii) any consent or security
instrument entered into by the Partnership or any other relevant party in
connection with an Additional Project Document.
"AFFILIATE" means, with respect to any Person directly or indirectly
controlling or controlled by, or under direct or indirect common control with,
such Person. For purposes of this definition, the term "control" (including the
correlative meanings of the terms "controlled by" and "under common control
with"), as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management
policies of such Person, whether through the ownership of securities or
partnership or other ownership interests or by contract or otherwise.
Notwithstanding the foregoing, each Person owning, directly or indirectly, 10%
or more of the partnership interests in the Partnership shall be deemed to be an
Affiliate of the Partnership.
"AFFILIATE SUBORDINATED DEBT" means Indebtedness (and any note or other
instrument evidencing the same) advanced by Affiliates of the Partnership which
has been subordinated to the Senior Debt, on the terms and conditions
substantially in the form of the subordination provisions set forth in Exhibit B
of the Collateral Agency Agreement.
"ANNUAL AUDITED FINANCIAL STATEMENTS" means, for any Person, audited
financial statements of such Person, including a statement of equity, a balance
sheet as of the close of the applicable fiscal year and an income and expense
statement.
"APPLICABLE LAW" means, with respect to any Person, property or matter,
any of the following applicable thereto: any statute, law, regulation,
ordinance, rule, judgment, rule of common law, order, decree, Governmental
Approval, approval, concession, grant, franchise, license, agreement, directive,
guideline, policy, requirement, or other governmental restriction or any similar
form of decision of, or determination by, or any interpretation or
administration of any of the foregoing, by any Governmental Authority, whether
in effect as of the date of the Common Agreement or thereafter and in each case
as amended (including, without limitation, any pertaining to land use or zoning
restrictions).
"APPROVED PROJECT CONSTRUCTION BUDGET" means shall have the meaning
given to that term in SECTION 3.1(L) of the Common Agreement.
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"AUDITOR" means Xxxxxx Xxxxxxxx LLP.
"AUTHORITY" means the Development Authority of Heard County, Georgia.
"AUTHORITY BONDS" means the $275,000,000 Taxable Industrial Development
Revenue Bonds (Tenaska Georgia Partners, L.P. Project), Series 1999 issued by
the Authority pursuant to the Authority Indenture.
"AUTHORITY INDENTURE" means that certain Indenture of Trust, dated as of
November 1, 1999, between the Authority and The Chase Manhattan Bank, as trustee
thereunder.
"AUTHORITY PURCHASE AGREEMENT" means the Bond Purchase Agreement, dated
as of November 1, 1999 among the Authority, the Partnership, as Lessee, and the
Partnership, as purchaser.
"AUTHORITY SECURITY DEED" means the Deed to Secure Debt, Security
Agreement and Assignment of Rents and Leases, dated as of November 1, 1999, by
and between the Authority and the Authority Trustee, as amended from time to
time.
"AUTHORITY TRUSTEE" shall mean The Chase Manhattan Bank, its successors
and assigns, in its capacity as trustee under the Authority Indenture.
"AUTHORIZATION TO PROCEED" means the order to the EPC Contractor
granting it the authority to proceed with performance pursuant to all provisions
of the EPC Contract.
"AUTHORIZED OFFICER" OR "AUTHORIZED REPRESENTATIVE" means (a) in the
case of any corporation or limited liability company, the chief executive
officer, the president, the chief financial officer, a vice president, the
treasurer or an assistant treasurer of such corporation or limited liability
company and (b) in the case of any general or limited partnership, any Person
authorized by the executive review committee (or such other Person that is
responsible for the management of such Partnership) to take the applicable
action on behalf of such Partnership or any officer (with a title specified in
clause (a) above) or Authorized Officer of such partnership's managing general
partner (or such other Person that is responsible for the management of such
managing general partner).
"AVAILABILITY TEST" shall have the meaning given to that term in the EPC
Contract.
"BANKRUPTCY CODE" means the Title 11 of the United States Code, as
amended from time to time.
"BANKRUPTCY EVENT" has the meaning set forth in Section 6.1(f) of this
Agreement.
"BASE CASE PROJECTIONS" shall have the meaning given to that term in
SECTION 3.1(M) of the Common Agreement.
"BOARD OF DIRECTORS" means, with respect to any corporation, either the
board of directors of such corporation or any committee of such board of
directors duly authorized to act therefor.
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"BONDS" shall mean any of the Initial Bonds and, when issued, any of the
Additional Bonds issued pursuant to the Indenture.
"BUSINESS DAY" means any day that is not a Saturday, Sunday or legal
holiday in the State of New York, or a day on which banking institutions
chartered by the State of New York, or the United States, are legally required
or authorized to close.
"CASH FLOW AVAILABLE FOR DEBT SERVICE" means, in respect of a specified
period, (i) all Revenues deposited in the Revenue Fund, if such specified period
occurred prior to the date of determination or (ii) all Revenues projected to be
deposited in the Revenue Fund during such period if such specified period is to
occur subsequent to the date of determination less amounts paid, or projected to
be paid, as applicable, in respect of Operating and Maintenance Expenses,
Collateral Agent Claims, Depositary Bank Claims, Trustee Claims, Authority
Trustee Claims, PPA LOC Agent Claims and DSR LOC Agent Claims, and under a
Working Capital Facility during such period.
"CLOSING DATE" shall mean the date of issuance and delivery of the
Initial Bonds.
"CODE" means the Internal Revenue Code of 1986, as amended, and the
rules and regulations promulgated thereunder.
"COLLATERAL" shall have the meaning given to that term in each Security
Document.
"COLLATERAL AGENCY AGREEMENT" means the Collateral Agency and
Intercreditor Agreement, dated as of November 1, 1999, among the Partnership,
the Authority Trustee, the Trustee, the DSR LOC Agent, the PPA LOC Agent, the
Collateral Agent and the Depositary Bank.
"COLLATERAL AGENT" means The Chase Manhattan Bank, its successors and
assigns in its capacity as collateral agent under the Collateral Agency
Agreement and the other Financing Documents to which it is a party.
"COMBINED EXPOSURE" means, as of any date of calculation, the sum
(calculated without duplication) of the following, to the extent the same is
held by or represented by a Senior Party: (i) the aggregate principal amount of
all Outstanding Bonds; (ii) the maximum amount available to be drawn under the
DSR LOC (taking into account, without duplication, in the case of the DSR LOC,
the maximum amount which may become available to be drawn in the future by
reason of an increase in the Debt Service Reserve Required Balance); (iii) the
maximum amount available to be drawn as of such date under the PPA LOC; (iv) the
maximum amount available to be drawn under a Working Capital Facility; (v) the
amount, without duplication, of any unreimbursed drawing under the Working
Capital Facility, the DSR LOC and the PPA LOC; (vi) the aggregate amount of all
undrawn financing commitments under the documents governing Other Senior Debt,
which the creditors party thereto have no right to terminate; and (vii) the
amount, without duplication, of any unreimbursed drawing under the documentation
governing such Other Senior Debt.
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"COMMERCIAL OPERATION" means, with respect to a Unit, that it has passed
each of the following tests: (i) Functional Testing, (ii) the Demonstration
Tests, (iii) PECO Tests, and (iv) the Availability Test.
"COMMERCIAL OPERATION CERTIFICATE" shall have the meaning given to that
term in SECTION 3.2 (Payments on Commercial Operation Date) of the Collateral
Agency Agreement.
"COMMISSION" means the United States Securities and Exchange Commission
or, if at any time such Commission is not existing and performing the duties now
assigned to it under Applicable Law, the body performing such duties at such
time.
"COMMON AGREEMENT" means the Agreement as to Certain Undertakings,
Common Representations, Warranties, Covenants and Other Terms, dated as of
November 1, 1999, among the Partnership, the Trustee, the DSR LOC Agent, the PPA
LOC Agent and the Collateral Agent.
"CONSTRUCTION FUND" means the Fund so designated, established and
created under SECTION 2.2 (Establishment of Funds and Sub-accounts) of the
Collateral Agency Agreement.
"CONTRIBUTING PARTNER" has the meaning set forth in the Equity
Contribution Agreement.
"DATE OF COMMERCIAL OPERATION" means the date not earlier than June 1,
2001, on which the Initial Units have achieved PPA Commercial Operation.
"DATE OF COMMERCIAL OPERATION OF THE FINAL UNITS" means the date not
earlier than June 1, 2002 on which all the Final Units have achieved Commercial
Operation.
"DEBT SERVICE" means, without duplication, all principal, interest,
premium (if any) and letter of credit fees due with respect to the Bonds and all
other Permitted Indebtedness due during such period.
"DEBT SERVICE COVERAGE RATIO" means for any period the ratio of (a) Cash
Flow Available for Debt Service for such period to (b) Debt Service (other than
Subordinated Debt) for such period.
"DEBT SERVICE FUND" means the Debt Service Fund established by the
Collateral Agent pursuant to SECTION 2.2 (Establishment of Funds and
Sub-accounts) of the Collateral Agency Agreement.
"DEBT SERVICE RESERVE ACCOUNT" means the sub-account of the Debt Service
Fund established by the Collateral Agent pursuant to SECTION 2.2 (Establishment
of Funds and Sub-accounts) of the Collateral Agency Agreement.
"DEBT SERVICE RESERVE REQUIRED BALANCE" shall mean the amount equal to
the next succeeding semi-annual scheduled payment of principal and interest due
and payable on Outstanding Bonds plus, if a DSR LOC is to be provided, an amount
corresponding to six months of interest on the maximum amount of such DSR LOC,
as established by the Partnership and the DSR LOC Agent pursuant to the DSR LOC
Reimbursement Agreement.
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"DEBTOR RELIEF LAW" means any applicable liquidation, dissolution,
conservatorship, bankruptcy, moratorium, rearrangement, insolvency,
reorganization, readjustment of debt or similar law affecting the rights or
remedies of creditors generally, as in effect from time to time.
"DEFAULT" shall mean, an event or condition that, with the giving of
notice, lapse of time or failure to satisfy certain specified conditions, or any
combination thereof, would become an Event of Default.
"DEMONSTRATION TEST" shall have the meaning given to that term in the
EPC Contract.
"DEPOSITARY BANK" means The Chase Manhattan Bank, as depositary bank
under the Collateral Agency Agreement or any successor thereto pursuant to the
terms thereof.
"DISTRIBUTION CONDITIONS" means
(i) no Default or Event of Default under the Common Agreement
shall have occurred and be continuing;
(ii) an Authorized Officer of the Partnership certifies to the
Trustee that the (x) Debt Service Coverage Ratio for the preceding two
Semi-Annual Periods taken as a whole (or, for the period since the Date
of Commercial Operation of the Final Units notwithstanding that such
period does not include any complete Semi-Annual Periods) and (y)
Projected Debt Service Coverage Ratio for the pair of subsequent
consecutive Semi-Annual Periods taken as a whole, each equals or exceeds
(A) 1.2 to 1.0 for ordinary distributions or (B) 1.15 to 1.0 for
distributions in amounts equal to the tax liability of the Partners,
their Affiliates or their owners in respect of Partnership income;
(iii) (x) the balance in the Debt Service Reserve Account
(including amounts available to be drawn under the DSR LOC) equals or
exceeds the Debt Service Reserve Required Balance and (y) the amount
deposited in the Major Maintenance Sub-account of the Operating Fund on
the Funding Date on which such distribution is proposed to be made
equals or exceeds the Major Maintenance Required Amount required to be
deposited therein on such Funding Date; and
(iv) the Partnership is not insolvent and would not be
rendered insolvent by such distribution.
"DISTRIBUTION DATE" means any Scheduled Payment Date occurring at least
six months after the Date of Commercial Operation of the Final Units.
"DISTRIBUTION SUSPENSE ACCOUNT" means the sub-account of the Partnership
Distribution Fund established by the Collateral Agent pursuant to SECTION 2.2
(Establishment of Funds and Sub-accounts) of the Collateral Agency Agreement.
"DSR BOND" has the meaning specified in the DSR LOC Reimbursement
Agreement.
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"DSR LOC" means a letter of credit provided by the Partnership to the
Collateral Agent from a financial institution rated at least "A-" by S&P and
"A3" by Xxxxx'x in respect of all or a portion of the Debt Service Reserve
Required Balance.
"DSR LOC AGENT" means, initially, The Toronto-Dominion Bank, and any
other financial institution acting as the agent for the DSR LOC Issuer and the
DSR LOC Banks under the DSR LOC Reimbursement Agreement.
"DSR LOC BANK" means each bank or financial institution that becomes
party to the DSR LOC Reimbursement Agreement.
"DSR LOC DOCUMENTS" means the DSR LOC Reimbursement Agreement, the DSR
LOC and each document related thereto.
"DSR LOC EVENT OF DEFAULT" means an "Event of Default" under the DSR LOC
Reimbursement Agreement.
"DSR LOC LOAN" means each drawing, and "DSR LOC LOANS" means all
drawings, by the Collateral Agent under the DSR LOC.
"DSR LOC ISSUER" means, initially, The Toronto-Dominion Bank or any
other commercial bank(s) or financial institution(s) issuing the DSR LOC
pursuant to the DSR LOC Reimbursement Agreement.
"DSR LOC REIMBURSEMENT AGREEMENT" means the Debt Service Reserve Letter
of Credit and Reimbursement Agreement, dated as of the Closing Date, among the
Partnership, the DSR LOC Issuer, the DSR LOC Agent and the DSR LOC Banks or
another reimbursement agreement providing for the issuance of a DSR LOC.
"DSR TERM LOAN" means a loan resulting from a conversion of a DSR LOC
Loan to a DSR Term Loan or a draw on the DSR LOC after the occurrence of a
Step-up Event.
"DTC" means The Depository Trust Company, having a principal office at
00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000-0000, together with any Person
succeeding thereto by merger, consolidation or acquisition of all or
substantially all of its assets, including substantially all of its securities
payment and transfer operations.
"EMINENT DOMAIN PROCEEDS" means all proceeds in respect of any action to
condemn, seize or appropriate all or any part of the Project.
"ENERGY CONTRACT BUY-OUT" means any cash payment by a purchaser of
capacity and/or energy, including by PECO, the effect of which is to result in
the termination or cancellation of, reduce future payments under, or change the
term of, the purchase contract between such purchaser and the Partnership.
"ENVIRONMENTAL CLAIM" means any written complaint, order, citation,
decree, demand, judgment or written notice actually received by the Partnership
from any Person relating to any
A-6
matters of Environmental Law affecting or relating to any activity or operations
at any time conducted by the Partnership, including, without limitation:
(i) the existence of any Environmentally Regulated Materials at
the Facility Site in violation of any Environmental Law;
(ii) the release or threatened release of any Environmentally
Regulated Materials generated at the Facility Site in violation of any
Environmental Law;
(iii) remediation of any such release of the Facility Site; and
(iv) any violation of any relevant Environmental Law in
connection with the Facility Site.
"ENVIRONMENTAL LAWS" means any and all Laws (as well as obligations,
duties and requirements relating thereto under common law) relating to: (i)
noise, emissions, discharges, spills, releases or threatened releases of
pollutants, contaminants, Environmentally Regulated Materials, materials
containing Environmentally Regulated Materials, or hazardous or toxic materials
or wastes into ambient air, surface water, groundwater, watercourses, publicly
or privately-owned treatment works, drains, sewer systems, wetlands, septic
systems or onto land surface or subsurface strata; (ii) the use, treatment,
storage, disposal, handling, manufacture, processing, distribution,
transportation, or shipment of Environmentally Regulated Materials, materials
containing Environmentally Regulated Materials or hazardous and/or toxic wastes,
material, products or by-products (or of equipment or apparatus containing
Environmentally Regulated Materials); (iii) pollution or the protection of human
health, the environment or natural resources, or (iv) zoning and land use.
"ENVIRONMENTALLY REGULATED MATERIALS" means (i) hazardous materials,
hazardous wastes. hazardous substances, extremely hazardous wastes, restricted
hazardous wastes, toxic substances, toxic pollutants, contaminants, pollutants
or words of similar import, as used under Environmental Laws, including but not
limited to the following: the Hazardous Materials Transportation Act, 49 U.S.C.
1801 et seq., the Resource Conservation and Recovery Act, 42 U.S.C. 6901 et
seq., the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, 42 U.S.C. 9601 et seq., the Clean Water Act, 33 U.S.C. 1231 et seq.,
the Clean Air Act, 42 U.S.C. ss. 7401 et seq., the Toxic Substances Control Act,
15 U.S.C. 2601 et seq., the Safe Drinking Water Act, 42 U.S.C. ss. 3808 et seq.,
and the Oil Pollution Act, 33 U.S.C. ss. 2701 et seq., and their State and local
counterparts or equivalents; (ii) petroleum and petroleum products including
crude oil and an fractions thereof; (iii) natural gas, synthetic gas and any
mixtures thereof; (iv) radon; (v) any other hazardous, radioactive, toxic or
noxious substance, material, pollutant, or solid, liquid or gaseous waste;, and
(vi) any substance that, whether by its nature or its use, is now or hereafter
subject to regulation under any Environmental Law or with respect to which any
Federal, state or local Environmental Law or governmental agency requires
environmental investigation, monitoring or remediation.
"EPC BUY-DOWN" means any cash payment by the EPC Contractor or the EPC
Guarantor, or by the issuer of any performance bond securing the performance by
the EPC Contractor of the EPC Contract in respect of performance liquidated
damages paid in accordance
A-7
with the EPC Contract and no longer subject to refund to the EPC Contractor due
to subsequent enhanced Facility performance, all in accordance with the EPC
Contract.
"EPC BUY-DOWN PROCEEDS SUB-ACCOUNT" means the sub-account of the Revenue
Fund established by the Collateral Agent pursuant to SECTION 2.2 (Establishment
of Funds and Sub-accounts) of the Collateral Agency Agreement.
"EPC CONTRACT" means the Engineering, Procurement and Construction
Agreement, dated September 15, 1999, as amended, between the Partnership (as
assignee of TGILP) and the EPC Contractor.
"EPC CONTRACTOR" means Xxxxxx Construction Corporation, a Delaware
corporation.
"EPC GUARANTOR" means X.X. Xxxxxx Company, a Delaware corporation.
"EPC GUARANTY" means the guaranty by the EPC Guarantor of the EPC
Contractor's obligations under the EPC Contract.
"EQUITY CONTRIBUTION AGREEMENT" means the Equity Contribution Agreement,
dated as of November 1, 1999, between the Partners and the Collateral Agent
pursuant to which the Contributing Partners agree to contribute to the
Partnership equity up to $35.5 million from time to time prior to the Date of
Commercial Operation of the Final Units.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ERISA CONTROLLED GROUP" means the Partnership or any other organization
that is a member of the same controlled group of organizations as the
Partnership within the meaning of Sections 414(b),(c),(m) or (o) of the Code.
"ERISA PLAN" means an employee pension benefit plan within the meaning
of Section 3(2) of ERISA that is (A) subject to the minimum funding requirements
of Section 412 of the Code or Section 302 of ERISA, and (B) sponsored,
maintained or contributed to by the Partnership or any other member of its ERISA
Controlled Group, or to which any such Person is required to contribute.
"EVENT OF DEFAULT" shall have the meaning given to that term in SECTION
6.1 (Events of Default) of the Common Agreement.
"EVENT OF EMINENT DOMAIN" means any compulsory transfer or taking, or
transfer under threat of compulsory transfer or taking, of a material part of
the Facility by any governmental authority or any Person acting with the
authority thereof for more than six months, unless such transfer or taking is
being contested by the Partnership in good faith.
"EVENT OF LOSS" means any event of damage, destruction, condemnation,
seizure or appropriation of all or any part of the Project.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended
from time to time.
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"EWG" means an "exempt wholesale generator" as defined in Section
32(a)(1) of PUHCA.
"FACILITY" means the 936 megawatt (nominal summer rating) natural
gas-fired simple-cycle electric generating plant to be financed, constructed,
procured, engineered and operated by the Partnership and located in Heard
County, Georgia.
"FACILITY SITE" means the land and other real property leased under the
Lease Agreement.
"FINAL MATURITY DATE" means January 31, 2030.
"FINAL UNITS" means the second three Units scheduled to be placed into
PPA Commercial Operation.
"FINANCING DOCUMENTS" means, collectively, the Bonds, the Indenture, the
DSR LOC Reimbursement Agreement and any evidence of indebtedness thereunder
entered into, the PPA LOC Reimbursement Agreement and any evidence of
indebtedness thereunder entered into, the Collateral Agency Agreement, any
Working Capital Facility, the Equity Contribution Agreement
and the Security Documents.
"FUNCTIONAL TESTING" shall have the meaning given to that term in the
EPC Contract.
"FUNDING DATE" means the 23rd day of each month, or, if such day is not
a Business Day, the next succeeding Business Day.
"FUNDING PERIOD" means a period commencing on a Funding Date and ending
on the day preceding the next succeeding Funding Date.
"GAAP" means generally accepted accounting principles in the United
States as in effect from time to time.
"GAS INTERCONNECT AGREEMENT" means the Interconnect, Reimbursement and
Operating Agreement, dated as of August 18, 1999, between the Partnership and
Transco.
"GE" means General Electric Company, a New York corporation.
"GE INTERNATIONAL" means General Electric International Inc., a Delaware
corporation.
"GENERAL PARTNER PLEDGE AND SECURITY AGREEMENT" means the General
Partner Pledge and Security Agreement, dated as of November 1, 1999, between TGI
and the Collateral Agent.
"GOVERNMENTAL APPROVALS" means all governmental approvals,
authorizations, consents, decrees, licenses, permits, waivers, privileges,
filings, or franchises with all Governmental Authorities.
"GOVERNMENTAL AUTHORITY" means the government of any federal, state,
municipal or other political subdivision in which the Project is located, and
any other government or political subdivision thereof exercising jurisdiction
over the Project or any party to any of the Project
A-9
Documents, including all agencies and instrumentalities of such governments and
political subdivisions.
"GPC" means Georgia Power Company, a Georgia corporation.
"GPC INTERCONNECTION AGREEMENT" means the Interconnection Agreement,
dated October 19, 1999, between GPC and the Partnership.
"GUARANTEE OBLIGATION" means, with respect to any Person, any
obligation, contingent or otherwise, of such Person directly or indirectly
guaranteeing in any manner any Indebtedness or similar obligation of any other
Person.
"GUARANTY" means the guarantee by the Partnership of the Authority's
obligations on the Authority Bonds.
"HOLDER" means, with respect to any Bond, the Person in whose name such
Bond is registered in the securities register; PROVIDED that the Partnership or
any Affiliate thereof shall not be deemed a Holder with respect to any matter
herein or any other Financing Document requiring a vote of the Holders.
"INDEBTEDNESS" of any Person means, at any date, without duplication,
(i) all obligations of such Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments
(excluding "deposit only" endorsements on checks payable to the order of such
Person), (iii) all obligations of such Person to pay the deferred purchase price
of property or services (except accounts payable and similar obligations arising
in the ordinary course of business shall not be included as Indebtedness), (iv)
all obligations of such Person as lessee under capital leases to the extent
required to be capitalized on the books of such Person in accordance with GAAP
and (v) all obligations of others of the type referred to in clauses (i) through
(iv) above guaranteed by such Person, whether or not secured by a lien on or
other security interest in any asset of such Person.
"INDENTURE" means the Indenture of Trust, dated as of November 1, 1999
between the Partnership and the Trustee.
"INDEPENDENT ENGINEER" means X.X. Xxxx, Inc., its successors and assigns
or such other independent engineer as may be appointed in accordance with the
terms of the Common Agreement.
"INITIAL BONDS" means the $275,000,000 9.50% Senior Secured Bonds Due
2030, issued by the Partnership pursuant to the Indenture.
"INITIAL DISBURSEMENT" means the initial disbursement from the
Construction Fund made on the Closing Date in accordance with the terms of the
Collateral Agency Agreement.
"INITIAL PURCHASERS" means, collectively, Xxxxxxx Sachs & Co. and TD
Securities (USA) Inc.
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"INITIAL UNITS" means the first three Units scheduled to be placed into
PPA Commercial Operation.
"INSURANCE CONSULTANT" means Xxxxx U.S.A., Inc.
"INSURANCE PROCEEDS" shall mean all proceeds in respect of any property
insurance policy (other than proceeds of business interruption insurance or
delayed opening insurance) covering the Partnership or the Project.
"LEASE AGREEMENT" means the Lease Agreement, dated as of November 1,
1999, between the Authority and the Partnership pursuant to which the
Partnership has agreed to lease from the Authority the Facility, the Facility
Site and certain related infrastructure facilities and related easements on the
terms and conditions set forth thereunder.
"LIEN" means any mortgage, pledge, hypothecation, assignment, mandatory
deposit arrangement with any Person owning Indebtedness of such Person,
encumbrance, lien (statutory or other), preference, priority or other security
agreement of any kind or nature whatsoever which has the substantial effect of
constituting a security interest, including, without limitation, any conditional
sale or other title retention agreement, any financing lease having
substantially the same effect as any of the foregoing and the filing of any
financing statement or similar instrument under the Uniform Commercial Code or
comparable law of any jurisdiction, domestic or foreign.
"LIMITED PARTNER PLEDGE AND SECURITY AGREEMENT" means the Limited
Partner Pledge and Security Agreement, dated as of November 1, 1999, between
TGILP and the Collateral Agent.
"LOC SWEEP NOTICE" means a notice by the Partnership, furnished to the
Collateral Agent no earlier than February 1, 2012, directing and authorizing the
Collateral Agent to apply available cash to the prepayment of DSR Bonds, DSR
Term Loans and PPA Term Loans in accordance with the provisions of the
Collateral Agency Agreement.
"LOC SWEEP PERIOD" means the period commencing on the commencement date
specified by the Partnership in the LOC Sweep Notice, and ending on the LOC
Sweep Termination Date.
"LOC SWEEP TERMINATION DATE" means the earliest of the following dates:
(i) the date of receipt by the Collateral Agent of notice from the Partnership
stating that the Partnership had not received any notice from PECO of its
intention to exercise its early termination right under the PPA prior to the
close of business on the date 365 days before the 20th anniversary of the Date
of Commercial Operation, in accordance with Section 3.06 of the PPA, (ii) the
date of receipt by the Collateral Agent of notice from the Partnership stating
that the Partnership had not received from PECO prior to the close of business
on the date 30 days before such 20th anniversary a letter of credit complying
with the provisions of Section 3.06 of the PPA, (iii) the date of receipt by the
Collateral Agent of the $175,000,000 of proceeds from PECO, and (iv) if and to
the extent that the LOC Sweep Notice permits the Partnership to revoke the same,
receipt by the Partnership of a notice from the Partnership revoking its LOC
Sweep Notice.
"LOCAL ACCOUNTS" shall have the meaning given to that term in Section
2.2 (Establishment of Funds and Sub-accounts) of the Collateral Agency
Agreement.
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"LOSS PROCEEDS" means, individually and collectively, Insurance Proceeds
and Eminent Domain Proceeds.
"LOSS PROCEEDS ACCOUNT" means the sub-account of the Revenue Fund
established by the Collateral Agent pursuant to SECTION 2.2 (Establishment of
Funds and Sub-accounts) of the Collateral Agency Agreement.
"LTSA" means the Long Term Parts and Long Term Service Contract, dated
June 24, 1999 between GE International and the Partnership (as assignee of
TGILP).
"MAJOR MAINTENANCE SUB-ACCOUNT" means the sub-account of the Operating
Fund established by the Collateral Agent pursuant to the terms of the Collateral
Agency Agreement.
"MAJOR MAINTENANCE REQUIRED AMOUNT" has the meaning set forth in the
Collateral Agency Agreement.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (i) the
business, operations, properties, assets, or condition (financial or otherwise)
of the Partnership, (ii) the validity or priority of the Liens on the
Collateral, (iii) the ability of the Partnership to observe and perform its
obligations under the Indenture, the Bonds or any of the other Financing
Documents to which it is a party, or (iv) the ability of the Partnership to
perform its material obligations under the Project Documents; PROVIDED that if
each Rating Agency then rating the Bonds shall provide written confirmation
within sixty (60) days after the event or action in question that such event or
action would not result in a Rating Downgrade, then this clause (iv) shall not
be applicable.
"MATURITY DATE" means, with respect to any Bond, the date on which the
principal of such Bond or an installment of principal becomes due and payable as
herein or therein provided, whether at stated maturity, acceleration, redemption
or otherwise.
"MONTHLY DISTRIBUTION DATE" means any Funding Date at least six months
after the Date of Commercial Operation of the Final Units.
"MONTHLY DISTRIBUTION CONDITIONS" means any Monthly Distribution Date on
which:
(i) each of the Distribution Conditions is satisfied;
(ii) an Authorized Officer of the Partnership certifies to the
Trustee that the (x) Debt Service Coverage Ratio for the two preceding
Semi-Annual Periods (or, for the period since the Date of Commercial
Operation of the Final Units notwithstanding that such period does not
include any complete Semi-Annual Periods) taken as one annual period and
(y) Projected Debt Service Coverage Ratio for the pair of succeeding
Semi-Annual Periods taken as one annual period, each equals or exceeds
1.4 to 1.0; and
(iii) an Authorized Officer of the Partnership certifies to the
Trustee that sufficient cash shall be available for the next succeeding
Scheduled Payment Date without giving effect to, or drawing on, any
funds available in the Debt Service Reserve
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Account, the Distribution Suspense Account, the Partnership Distribution
Fund, the Unrestricted Account, the Subordinated Debt Account or any
Working Capital Facility.
"MOODY'S" means Xxxxx'x Investors Service, Inc., a corporation organized
and existing under the laws of the State of Delaware, its successors and
assigns.
"MULTIEMPLOYER PLAN" means any ERISA Plan that is a multiemployer plan
as defined in Section 4001(a)(3) of ERISA.
"MW" means megawatts.
"NECESSARY EASEMENTS" means, collectively, all easements, licenses,
franchises, rights-of-way, and agreements relating to non-possessory interests
in real estate to which the Partnership is now or hereafter a party or
beneficiary, affecting construction on, or the use or operation, or constituting
a part of, the Facility Site.
"NON-RECOURSE PARTY" shall have the meaning given to that term in
SECTION 8.21 (No Recourse) of the Collateral Agency Agreement.
"NON-RENEWAL EVENT" means, with respect to any PPA LOC, such PPA LOC has
not been extended or replaced within 10 days prior to the stated expiration date
thereof.
"OFFICER'S CERTIFICATE" means a certificate that has been signed by an
Authorized Officer of the Partnership.
"O&M AGREEMENT" means the Operating and Maintenance Agreement, dated as
of September 10, 1999, as amended, between the Partnership and the Operator.
"OPERATING AND MAINTENANCE EXPENSES" means all actual cash maintenance
and operation costs to be incurred and paid with respect to the Facility in any
particular period, including franchise, sales, property and other similar taxes
(but not taxes on or measured by net income), payments under the Tax Agreement,
payments for the supply and transportation of fuels, insurance, consumables,
payments under any lease, payments pursuant to the Project Documents (including
payments under the O&M Agreement), repair and replacement costs for equipment
included in the Facility, legal fees and expenses paid by the Partnership in
connection with the management, maintenance or operation of the Facility, fees
paid in connection with obtaining, transferring, maintaining or amending any
Governmental Approvals, employee salaries, wages and other employment-related
costs and general and administrative expenses (including, after 2009, the annual
fee payable in accordance with the Partnership Agreement), all fees, expenses
and other payments due to all indemnities and other arrangements providing for
the payment of amounts to the Initial Purchasers, independent consultants,
counsel and employees in connection with the Indebtedness of the Partnership
(but excluding transaction costs associated with the offering and issuance of
Bonds), and expenses related to maintaining with the Rating Agencies the credit
rating assigned to the Bonds, but exclusive in all cases of (i) non-cash
charges, including depreciation or obsolescence charges or reserves therefor,
amortization of intangibles or other bookkeeping entries of a similar nature,
(ii) interest charges and (iii) all commitment fees, underwriting fees and other
similar fees due and payable in connection with Indebtedness of the Partnership.
In the event that the LTSA is terminated and not replaced with an agreement
similar in scope to the LTSA,
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Operating and Maintenance Expenses shall also include an amount equal to the
Major Maintenance Required Amount for the relevant period, which amount shall be
deposited in the Major Maintenance Sub-account of the Operating Fund.
"OPERATING BUDGET" means the annual budget for the Project, as prepared
by the Partnership.
"OPERATING FUND" means the Fund so designated, established and created
under SECTION 2.2 (Establishment of Funds and Sub-accounts) of the Collateral
Agency Agreement.
"OPERATOR" means Tenaska Operations, Inc., a Delaware corporation.
"OTHER SENIOR DEBT" shall have the meaning given to that term in the
Collateral Agency Agreement.
"OUTSTANDING" when used in connection with any Bond, means, as of the
time in question, all Bonds authenticated and delivered under the Indenture,
except (a) Bonds theretofore cancelled or required to be cancelled pursuant to
the Indenture, (b) Bonds for which provision for payment shall have been made
pursuant to the Indenture and (c) Bonds in substitution for which other Bonds
have been authenticated and delivered pursuant to the Indenture.
"PARTNER" means any Person owning a partnership interest in the
Partnership.
"PARTNERS" mean TGILP and TGI, and each other Partner added to the
Partnership.
"PARTNERSHIP" means Tenaska Georgia Partners, L.P., a Delaware limited
partnership.
"PARTNERSHIP AGREEMENT" means the Amended and Restated Limited
Partnership Agreement, dated as of April 16, 1998, among TGI and TGILP, as the
same may from time to time be amended, modified or supplemented.
"PARTNERSHIP DISTRIBUTION FUND" means the Fund so designated,
established and created under SECTION 2.2 (Establishment of Funds and
Sub-accounts) of the Collateral Agency Agreement.
"PARTNERSHIP SECURITY DEED" means the Deed to Secure Debt, Assignment of
Rents and Leases and Security Agreement, dated as of November 1, 1999, by and
between the Partnership and the Collateral Agent, as amended from time to time.
"PECO" means PECO Energy Company, a Pennsylvania corporation.
"PECO TESTS" shall have the meaning given to that term in the EPC
Contract.
"PERMITTED INDEBTEDNESS" shall have the meaning given to that term in
Section 5.2(a) of the Common Agreement.
"PERMITTED INVESTMENTS" means, as to any Person: (a) securities issued
or directly and fully guaranteed or insured by the United States or any agency
or instrumentality thereof
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(provided that the full faith and credit of the United States is pledged in
support thereof) having maturities of not more than six (6) months from the date
of acquisition by such Person; (b) time deposits and certificates of deposit,
with maturities of not more than six (6) months from the date of acquisition by
such Person, of any international commercial bank of recognized standing having
capital and surplus in excess of $500,000,000 and having a rating on its
commercial paper of at least A-1 or the equivalent thereof by S&P or at least
P-1 or the equivalent thereof by Moody's; (c) commercial paper issued by any
Person, which commercial paper is rated at least A-1 or the equivalent thereof
by S&P or at least P-1 or the equivalent thereof by Moody's and matures not more
than six (6) months after the date of acquisition by such Person; (d)
investments in money market funds substantially all the assets of which are
comprised of securities of the types described in clauses (a) and (b) above
(including any such fund for which the Depositary Bank or any Affiliate thereof
serves as investment manager, administrator or custodian); (e) SEC registered
money market mutual funds conforming to Rule 2a-7 of the Investment Company Act
of 1940 if effect in the United States, that invest primarily in direct
obligations issued by the United States Treasury and repurchase obligations
backed by those obligations, and rated in the highest category by S&P and
Moody's; and (f) any dollar investment which the Partnership certifies in
writing shall constitute a dollar-denominated Permitted Investment; PROVIDED
that, with respect to amounts on deposit in the Local Accounts, the dollar
amount set forth in clause (b) hereof shall equal $250,000,000 and the
references to both S&P and Moody's and the respective ratings thereof in clauses
(b), (c) and (e) shall not be applicable.
"PERMITTED LIENS" shall have the meaning given to that term in Section
5.2(b) of the Common Agreement.
"PERSON" means any individual, sole proprietorship, corporation,
partnership, limited liability company, joint venture, trust, unincorporated
association, governmental authority or any other entity.
"PIPELINE EPC CONTRACT" means the Fixed Price Engineering, Procurement
and Construction Services Contract, effective September 23, 1999 between the
Partnership and the Pipeline EPC Contractor.
"PIPELINE EPC CONTRACTOR" means Willbros Engineers, Inc., a Delaware
corporation.
"PPA" means the Power Purchase Agreement, dated as of August 24, 1999,
between the Partnership and PECO.
"PPA COMMERCIAL OPERATION" of a Unit shall be deemed to be achieved at
00:01 hours on the day next following the day (i) such Unit has been declared to
have a generating capacity of at least 150 MW if such Unit is one of the Initial
Units or at least 146 MW if such Unit is one of the Final Units, (ii) the Unit
shall be capable of producing energy through "firing" with natural gas, (iii)
interconnection of the Unit and the delivery point shall have been achieved,
(iv) sufficient gas supply facilities and interconnection facilities shall be in
operation to accept capacity from all Units which are in commercial operation
and (v) the Partnership shall have delivered written notice to PECO that such
Unit is placed in commercial operation provided that,
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in the case of the Initial Units, such date may not be earlier than June 1,
2001, and in the case of the Final Units, such date may not be earlier than June
1, 2002.
"PPA LOC" means the letter of credit provided by the PPA LOC Issuer to
be issued as security for PECO in connection with the PPA or any replacement or
renewal thereof.
"PPA LOC AGENT" means initially, The Toronto-Dominion Bank and any other
financial institution acting as the agent for the PPA LOC Issuer and PPA LOC
Banks under the PPA LOC Reimbursement Agreement.
"PPA LOC BANK" means each bank or financial institution that becomes
party to the PPA LOC Reimbursement Agreement.
"PPA LOC ISSUER" means, initially, The Toronto-Dominion Bank or any
other financial institution providing the PPA LOC pursuant to the PPA LOC
Reimbursement Agreement.
"PPA LOC LOAN" means a loan resulting from the drawing on the PPA LOC,
other than a PPA LOC Term Loan.
"PPA LOC REIMBURSEMENT AGREEMENT" means the Power Purchase Agreement
Letter of Credit and Reimbursement Agreement, dated as of the Closing Date,
among the Partnership, the PPA LOC Issuer, the PPA LOC Agent and PPA LOC Banks
or another reimbursement agreement providing for the issuance of a PPA LOC.
"PPA TERM LOAN" means a loan resulting from a conversion of a PPA LOC
Loan to a PPA Term Loan or draw on the PPA LOC after the occurrence of a
Non-Renewal Event.
"PROJECT" means the Facility 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.
"PROJECT COSTS" means all costs of developing, financing, constructing,
testing and initial operation (through PPA Commercial Operation of the Final
Units) of the Facility, including but not limited to: (i) all amounts payable
under the Project Documents including any contractor bonuses, site acquisition
and preparation costs, costs of acquisition and construction of fuel handling
and processing equipment, any electric interconnection and transmission upgrade
costs payable by the Partnership, all water interconnection costs payable by the
Partnership and all gas interconnection and pipeline costs payable by the
Partnership; (ii) all development costs which shall be paid to, or as designated
by, the Partnership on the Closing Date; (iii) all other Project-related costs,
including but not limited to insurance costs, fees and expenses payable pursuant
to the O&M Agreement and expenses to complete the construction and financing of
the Project, including any project management costs and any costs related to the
acquisition of all Necessary Easements; (iv) start-up and testing costs and
initial working capital costs; (v) initial reserve fund requirements; (vi) fees
and costs payable during construction with respect to any DSR LOC and any other
letters of credit or security provided under any Project Document; (vii)
payments in respect of the Tax Agreement, (viii) the amount required to cash
collaterize the obligations of the Partnership in respect of the security
provided under the GPC Interconnection Agreement; (ix)
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payments to the PPA LOC Issuer in respect of amounts advanced under the PPA LOC
to make payments to PECO; (x) legal and other transaction costs and
financing-related fees; (xi) any other out-of-pocket expenses related to the
financing; and (xii) interest on the Bonds.
"PROJECT DOCUMENTS" shall mean, collectively, the PPA, EPC Contract, O&M
Agreement, LTSA, GPC Interconnection Agreement, the Gas Interconnect Agreement,
the Turbine Contract, Water Agreement, and the Lease Agreement.
"PROJECTED DEBT SERVICE COVERAGE RATIO" for any period means, on any
date of determination, a projection of the Debt Service Coverage Ratio for the
applicable time period.
"PROJECT FUNDS" means the funds and sub-accounts established by the
Collateral Agent pursuant to SECTION 2.2 (Establishment of Funds and
Sub-accounts) of the Collateral Agency Agreement.
"PROJECT PARTY" means a party to a Project Document other than the
Partnership or an affiliate of the Partnership.
"PROJECT REVENUES" means, the Partnership's revenues or income
calculated on a cash basis and received pursuant to the terms of the relevant
Project Documents, including, without limitation, proceeds of an Event of Loss,
proceeds of any EPC Buy-Down and proceeds of any Energy Contract Buy-Out not
required to be used to redeem the Senior Debt, the proceeds of any draws with
respect to any Working Capital Facility and refunds or returns of any amounts
previously paid for Operating and Maintenance Expenses of the Partnership, any
income from the investment of monies in any Fund pursuant to the Collateral
Agency Agreement and any income received as holder of the Authority Bonds;
PROVIDED that for purposes of calculating any Debt Service Coverage Ratio,
"Project Revenues" shall not include draws with respect to any Working Capital
Facility or any proceeds of any Event of Loss, EPC Buy-Down or Energy Contract
Buy-Out.
"PRUDENT UTILITY PRACTICE" shall mean any of the practices, methods and
acts engaged in or approved by a significant portion of the independent power
industry from time to time or any of the practices, methods and acts which, in
the exercise of reasonable judgment in light of the facts known (or which should
have been known) at the time the decision was made, would have been expected to
accomplish the desired results at the lowest reasonable cost consistent with
good business practices, taking into account (without limitation) such factors
as reliability, safety and expedition. Prudent Utility Practice is not intended
to be limited to the optimum practice, method or act to the exclusion of all
others, but rather to be a spectrum of possible practices, methods or acts
having due regard for, among other things, manufacturers' warranties and other
contractual obligations, the requirements or guidance of governmental agencies
of competent jurisdiction, requirements of insurers, and the requirements of
this Agreement.
"PUHCA" means the Public Utility Holding Company Act of 1935, as
amended.
"PURCHASE AGREEMENT" means the Purchase Agreement, dated November 3,
1999, between the Initial Purchasers and the Partnership.
"RATINGS" means the credit ratings assigned to the Bonds by the Rating
Agencies.
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"RATING AGENCY" means either of Xxxxx'x or S&P or if either shall cease
to rate securities of the type equivalent to the Bonds, another nationally
recognized rating agency.
"RATING DOWNGRADE" means a lowering or withdrawal by any Rating Agency
of the then current Ratings of the Bonds.
"REGULATION S" means Regulation S under the Securities Act.
"REPORTABLE EVENT" means, with respect to any ERISA Plan, (a) the
occurrence of any of the events set forth in Section 4043(c) of ERISA, other
than an event as to which the requirement of 30 days' notice, or the penalty for
failure to provide such notice, has been waived by the PBGC or (b) the existence
of conditions sufficient to require advance notice to the PBGC pursuant to
Section 4043(b) of ERISA.
"REQUIRED RATING" means a rating of at least "A-" by S&P and "A3" by
Xxxxx'x.
"REQUIRED SENIOR PARTIES" means the affirmative vote of 51% of the
Combined Exposure.
"REQUISITION" shall have the meaning given to that term in Section
3.1(b) of the Collateral Agency Agreement.
"RESPONSIBLE OFFICER" means the president or any vice president,
assistant vice president or trust officer of the Collateral Agent to whom any
matter has been referred because of such officer's knowledge and familiarity
with the particular subject.
"RESTRICTED GLOBAL SECURITY" shall have the meaning given to that term
in the Indenture.
"RESTRICTED PAYMENT" means, with respect to any Person, (a) the
declaration or payment of distributions, dividends or any other payment made in
cash, property, obligations or other securities or (b) any payment of the
principal of or interest on any Affiliate Subordinated Debt, in each case from
cash, investments, securities or other funds from time to time in the
Distribution Suspense Account.
"REVENUE FUND" means the Fund so designated, established and created
under SECTION 2.2 (Establishment of Funds and Sub-accounts) of the Collateral
Agency Agreement.
"RULE 144A" means Rule 144A under the Securities Act.
"S&P" means Standard & Poor's, a Division of The McGraw Hill Companies,
and its successors.
"SCHEDULED DATE OF COMMERCIAL OPERATION" means June 1, 2001, subject to
any extension of such date in accordance with the EPC Contract.
"SCHEDULED DATE OF COMMERCIAL OPERATION FOR THE FINAL UNITS" means June
1, 2002, subject to any extension of such date in accordance with the EPC
Contract.
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"SCHEDULED PAYMENT DATE" means, with respect to any Bond, each February
1 and August 1, commencing August 1, 2000.
"SEC" means the Securities and Exchange Commission of the United States
of America.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITY AGREEMENT" means the Assignment and Security Agreement, dated
as of November 1, 1999 between the Partnership and the Collateral Agent.
"SECURITY DOCUMENTS" means, collectively, the Security Agreement, the
Lease Agreement, the Authority Bonds, the Guaranty, the Collateral Agency
Agreement, the Authority Security Deed, the Partnership Security Deed, the
Limited Partner Pledge and Security Agreement, the General Partner Pledge and
Security Agreement and each Third Party Consent.
"SEMI-ANNUAL PERIOD" means a period commencing on a Scheduled Payment
Date and ending on the day preceding the next Scheduled Payment Date; PROVIDED
that the first Semi-Annual Period shall mean the period commencing on the
Closing Date and ending on the day preceding the first Scheduled Payment Date.
"SENIOR DEBT" means Permitted Indebtedness other than Subordinated Debt.
"SENIOR PARTIES" means collectively, the Trustee, the Collateral Agent,
the DSR LOC Agent, the PPA LOC Agent, a Working Capital Agent, any holder or the
agent or representative of Senior Debt (other than the Bonds) and any other
Person that becomes a secured party under any Security Document.
"STEP-UP EVENT" means in respect of any DSR LOC, (i) such DSR LOC has
not been extended or replaced within 45 days prior to the termination date of
such DSR LOC or (ii) the credit rating of the DSR LOC Issuer is less than the
Required Rating and such DSR LOC has not been replaced within 45 days of the
failure to satisfy the requirements of the Required Rating with a replacement
letter of credit issued by an issuer that satisfies the requirements of the
Required Rating and, in each case, the Collateral Agent has drawn on such DSR
LOC in an amount sufficient to fund the Debt Service Reserve Account up to the
Debt Service Reserve Required Balance.
"SUBORDINATED DEBT" shall mean, individually and collectively, Third
Party Subordinated Debt and Affiliate Subordinated Debt.
"SUBORDINATED DEBT ACCOUNT" means the sub-account of the Debt Service
Fund established by the Collateral Agent pursuant to SECTION 2.2 (Establishment
of Funds and Sub-accounts) of the Collateral Agency Agreement.
"SUBSIDIARY" means, with respect to any Person at any time, any other
Person (i) that is, at such time, controlled by, or (ii) securities of which
having ordinary voting power to elect a majority of the board of directors (or
other persons having similar functions), or other ownership interests of which
ordinarily constituting a majority voting interest, are at such time, directly
or
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indirectly, owned or controlled by such first Person, or by such first Person
and one or more of its Subsidiaries.
"SUPPLEMENTAL INDENTURE" means an indenture supplemental to the
Indenture entered into by the Partnership and the Trustee for the purpose of
establishing, in accordance with the Indenture, the title, form and terms of the
Bonds.
"TAX AGREEMENT" means the Ad Valorem Taxation Agreement, dated July 30,
1999, among the Partnership, the Board of Commissioners of Heard County and the
Board of Tax Assessors of Heard County.
"TGI" means Tenaska Georgia, Inc., a Delaware corporation.
"TGILP" means Tenaska Georgia I, L.P., a Delaware limited partnership.
"THIRD PARTY CONSENT" shall have the meaning given to that term in
Section 3.1(t) of the Common Agreement.
"THIRD PARTY ENGINEER" shall have the meaning given to that term in
Section 8.12 of the Common Agreement.
"THIRD PARTY SUBORDINATED DEBT" means Debt (and each note or other
instrument evidencing the same) advanced by Persons who are not Affiliates of
the Partnership which has been subordinated to the Senior Debt, on the terms and
conditions substantially in the form of the subordination provisions set forth
in Exhibit B of the Collateral Agency Agreement.
"TRANSACTION DOCUMENTS" means the Project Documents and the Financing
Documents.
"TRANSCO" means Transcontinental Gas Pipe Line Corporation.
"TRIGGER EVENT" means (a) an Event of Default under the Indenture and an
acceleration of all indebtedness issued thereunder, (b) an Event of Default
under the DSR LOC Reimbursement Agreement and an acceleration of all
indebtedness incurred thereunder, (c) an Event of Default under the PPA LOC
Reimbursement Agreement and an acceleration of all indebtedness incurred
thereunder or (d) an event of default under any other Senior Debt instrument and
an acceleration of all of the Indebtedness issued thereunder in an aggregate
principal amount in excess of $10 million; and, in each case, the Collateral
Agent has, upon direction from the Required Senior Parties, declared such event
to be a "Trigger Event."
"TRUSTEE" means The Chase Manhattan Bank, its successors and assigns, in
its capacity as trustee under the Indenture.
"TURBINE CONTRACT" means the Contract for Purchase, dated August 27,
1999, between GE and the Partnership, as assignee of TGILP.
"UNAUDITED FINANCIAL STATEMENTS" means, for any Person, with respect to
any fiscal period, the unaudited balance sheet of such Person as of the last day
of such fiscal period, the related statements of income and cash flows for such
period and (in the case of any period which
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does not terminate on the last day of a fiscal year) for the portion of the
fiscal year ending with the last day of such period, setting forth, in each
case, in comparative form, corresponding unaudited figures from the preceding
fiscal year.
"UNFUNDED BENEFIT LIABILITIES" means, with respect to any ERISA Plan at
any time, the amount of unfunded benefit liabilities of such ERISA Plan at such
time as determined under Section 4001(a)(18) of ERISA.
"UNIFORM COMMERCIAL CODE" shall mean the Uniform Commercial Code as the
same may, from time to time, be in effect in the State of New York.
"UNIT" means one of the six General Electric PG7241 (FA) heavy-duty
single shaft gas turbine-generators, nominal 175 MW ratings at ISO conditions
(59(0)F, sea level) purchased by the Partnership pursuant to the Turbine
Contract.
"UNRESTRICTED ACCOUNT" means an account established by the Partnership
which shall be funded with amounts withdrawn from the Partnership Distribution
Fund and otherwise available to the Partnership.
"WATER AUTHORITY" means the Heard County Water Authority.
"WATER AGREEMENT" means the Water Purchase Agreement, dated February 25,
1999, between the Water Authority and the Partnership.
"WORKING CAPITAL AGENT" means the financial institution serving as agent
under a Working Capital Facility and provider of amounts available thereunder.
"WORKING CAPITAL BANKS" means each bank that becomes party to the
Working Capital Facility.
"WORKING CAPITAL FACILITY" means a working capital facility in an amount
up to $10,000,000 issued by the Working Capital Agent and used for the payment
of Operating and Maintenance Expenses in connection with the Project.
"WORKING CAPITAL LOAN" means each drawing by the Partnership under a
Working Capital Facility.
"YEAR 2000 PROBLEM" shall mean any significant risk that computer
hardware, software or equipment containing embedded microchips essential to the
business or operations of the Partnership will not, in the case of dates or time
periods occurring after December 31, 1999, function at least as effectively and
reliably as in the case of times or time periods occurring before January 1,
2000, including the making of accurate leap year calculations.
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PART II. RULES OF CONSTRUCTION
1. Section and Clause headings and the table of contents in each
Transaction Document are inserted for convenience of reference only and shall be
ignored in the interpretation of said Transaction Document.
2. In each Transaction Document, unless the context otherwise requires:
(a) references to Sections, Clauses, the Appendices, Exhibits and
Schedules are to be construed as references to the sections of, clauses of, and
appendices, exhibits and schedules to, said Transaction Document as in force for
the time being and as amended in accordance with the terms of said Transaction
Document, or, as the case may be, with the agreement of the relevant parties;
(b) references to Sub-sections or Sub-clauses are to be construed
as references to a sub-section or sub-clause of the Section or Clause in which
such reference appears;
(c) references to any Transaction Document include its
Appendices, Exhibits and Schedules, each which shall be deemed to be a part
thereof;
(d) references to (or to any specified provision of) any
Transaction Document or any other document shall be construed as references to
said Transaction Document, that document or that provision as in force for the
time being and as amended, supplemented, restated or otherwise modified from
time to time in accordance with the terms hereof or thereof or, as the case may
be, with the agreement of the relevant parties;
(e) references to any law or enactment shall be deemed to include
references to such law or enactment as re-enacted, amended, extended,
consolidated or replaced and any orders, decrees, proclamations, regulations,
instruments or other subordinate legislation made thereunder;
(f) words importing the plural shall include the singular and
vice versa;
(g) words importing any gender shall be construed as including
every gender;
(h) the phrase "without limitation" shall always be deemed to
follow "include" or "including"; and
(i) any reference to any Person (including each of the Parties to
any Transaction Document) shall include such Person and its successors,
permitted assigns, and permitted transferees.
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APPENDIX B
INSURANCE REQUIREMENTS
CONSTRUCTION INSURANCE:
CONSTRUCTION/ERECTION ALL RISKS INSURANCE ("CAR")
TERM: From the Closing Date until the later of the Date of Commercial Operation
of the Final Units or the replacement by the operational property, boiler and
machinery insurance.
COVER: All risks of physical loss of or damage to the Project during
construction, testing and commissioning periods including (subject to sub-limits
as described below) earthquake and flood, inland transit, debris removal and
off-site storage. Cover will also include mechanical/electrical breakdown of the
contract works, testing and commissioning of the plant.
SUM INSURED: Replacement value with appropriate sub-limits for inland transit,
debris removal, off-site storage and expediting expense.
DEDUCTIBLES: $ 25,000 each occurrence except:
$100,000 each occurrence in respect to flood, earthquake, subsidence
$100,000 each occurrence in respect to testing and commissioning
$500,000 any one occurrence in respect to hot testing-gas turbines
CONSTRUCTION DELAY IN START-UP
COVER: The sum insured is based on an indemnity period of eighteen (18) months
after the exhaustion of the waiting period for covered losses under the CAR
policy, including damage to the Project, all inland transit losses and offsite
storage. Coverage includes loss of profits including debt service, continuing
expenses and liquidated damage penalties in the Power Purchase Agreement as a
result of an admissible claim.
INDEMNITY PERIOD: 18 months after exhaustion of waiting period following
admissible CAR loss.
WAITING PERIOD: 30 days for all insured events.
OCEAN MARINE CARGO/AIR SHIPMENTS AND DELAY IN START-UP
COVER: Coverage is to be in effect prior to shipments being made with ocean
marine cargo physical damage limit at the maximum value of any one shipment or
conveyance. The delay in start-up limit will be equal to and not less than
twelve (12) months of the projected loss of profits including continuing
expenses, debt service and liquidated damage penalties in the Power Purchase
Agreement as a result of an admissible claim.
WAITING PERIOD: 30 days for all insured events.
B-1
TERMS APPLYING TO COMMERCIAL GENERAL LIABILITY/UMBRELLA LIABILITY
COVER: The insured's legal liability for damages, costs and expenses arising out
of bodily injury to or death of third party persons and loss of or damage to
third party property.
SUM INSURED: $25,000,000 each occurrence and in the aggregate, which may include
a combination of primary and excess/umbrella policies.
POLICY FORM: May be on a claims-made form.
AUTOMOBILE LIABILITY
COVER: The insured's legal liability for damages, costs and expenses arising out
of bodily injury to or death of third party persons and loss of or damages to
third party property covering any owned, non-owned and hired vehicles.
SUM INSURED: $25,000,000 each occurrence and in the aggregate, which may include
a combination of primary and excess/umbrella policies.
WORKER'S COMPENSATION AND EMPLOYER'S LIABILITY
COVER: If the Partnership has any liability with respect to employees, then the
Partnership shall maintain worker's compensation coverage for the relevant state
of employment in accordance with statutory requirements and employer's liability
coverage.
SUM INSURED: Worker's compensation coverage shall meet minimum statutory
requirements and employer's liability coverage shall be $25,000,000 each
occurrence and in the aggregate, which may be provided for in the
excess/umbrella liability insurance policies.
OPERATIONAL INSURANCE:
OPERATIONAL PROPERTY AND BOILER AND MACHINERY INSURANCE
TERM: Beginning with the Date of Commercial Operation of the Final Units.
COVER: All risks of physical loss of or damage to the Project including
earthquake and flood, inland transit, debris removal and off-site storage.
SUM INSURED: Replacement value of the Project through 2016. After 2016, in an
amount greater than or equal to 80% of the replacement value. In either case,
with appropriate sub-limits for inland transit, debris removal, off-site storage
and expediting expense.
DEDUCTIBLES: $100,000 each occurrence except:
$250,000 each occurrence in respect to flood, earthquake, subsidence $1,000,000
in respect to any one occurrence-gas turbines
B-2
BUSINESS INTERRUPTION
COVER: The sum insured is based on an indemnity period of fifteen (15) months
after the exhaustion of the waiting period for covered losses under the
operational property and boiler and machinery policy including damage to the
Project, all inland transit losses and offsite storage. Coverage to include loss
of profits including debt service and continuing expenses as a result of an
admissible claim.
INDEMNITY PERIOD: 15 months after exhaustion of waiting period following
admissible operational property and boiler and machinery loss.
WAITING PERIOD: 30 days for all insured events except for gas turbines which
shall be 45 days or less.
TERMS APPLYING TO COMMERCIAL GENERAL LIABILITY/UMBRELLA LIABILITY
COVER: The insured's legal liability for damages, costs and expenses arising out
of bodily injury to or death of third party persons and loss of or damage to
third party property.
SUM INSURED: $25,000,000 each occurrence and in the aggregate, which may include
a combination of primary and excess/umbrella policies.
POLICY FORM: May be on an AEGIS or comparable claims-made form.
AUTOMOBILE LIABILITY
COVER: The insured's legal liability for damages, costs and expenses arising out
of bodily injury to or death of third party persons and loss of or damages to
third party property covering any owned, non-owned and hired vehicles.
SUM INSURED: $25,000,000 each occurrence and in the aggregate, which may include
a combination of primary and excess/umbrella policies.
WORKER'S COMPENSATION AND EMPLOYER'S LIABILITY
COVER: If the Partnership has any liability with respect to employees, then the
Partnership shall maintain worker's compensation coverage for the relevant state
of employment in accordance with statutory requirements and employer's liability
coverage.
SUM INSURED: Worker's compensation coverage shall meet minimum statutory
requirements and employer's liability coverage shall be $25,000,000 each
occurrence and in the aggregate, which may be provided for in the
excess/umbrella liability insurance policies.
B-3
SCHEDULE 3.1(D)
THE FACILITY SITE
[To be Provided.]
SCHEDULE 3.1(L)
TENASKA GEORGIA PARTNERS, L.P.
FORM OF APPROVED CONSTRUCTION BUDGET
AMOUNTS IN THOUSANDS
Total
--------
EPC Xxxxxxxx - xxxxx 0 000,000
XXX Xxxxxxxx - xxxxx 0 113,447
Mobilization Payment 110
Sales Tax 1,000
Electrical 1,000
Interconnection
Facilities
GPC Monthly Fees 158
Gas Supply Facilities 3,123
Heard County Water 515
Authority
Land 712
Closing Cost 4,158
Agency Fees 114
Letter of Credit Issued 346
Fees
Letter of Credit 246
Commitment Fees
Development Costs 7,000
Project Management 4,643
Interest During 36,998
Construction
Title Insurance 250
Builder's Risk Insurance 950
Marine Cargo Insurance 300
Liability Insurance 100
Contingencies 11,962
Spare Parts 3,649
Start-Up Cost 3,040
Initial Units Cash Flow 504
Working Capital 258
--------
Total 310,500
--------
TENASKA GEORGIA PARTNERS, L.P.
FORM OF APPROVED CONSTRUCTION BUDGET
AMOUNTS IN THOUSANDS
Nov-99 Dec-99 Jan-00 Feb-00 Mar-00 Apr-00 May-00 Jun-00 Jul-00 Aug-00
DRAW DRAW DRAW DRAW DRAW DRAW DRAW DRAW DRAW DRAW
1 2 3 4 5 6 7 8 9 10
------- ------- ------- ------- ------- ------- ------- ------- ------- -------
EPC - Building Materials Phase 1 8,897 2,701 3,040 4,679 5,305 5,640 5,193 5,404 6,949 10,087
EPC - Building Materials Phase 2 5,223 0 1,899 0 0 0 0 0 0 0
Mobilization Payment 0 0 0 0 0 0 0 0 0 0
Sales Tax 7 24 14 9 19 25 25 29 54 58
Electrical Interconnection Facilities 67 67 67 67 67 67 67 67 67 67
GPC Monthly Fees 5 5 5 5 5 5 5 5 5 5
Gas Supply Facilities 167 167 167 167 167 1,737 167 167 167 167
Heard County Water Authority 515 0 0 0 0 0 0 0 0 0
Land 712 0 0 0 0 0 0 0 0 0
Financing Costs 3,391 13 13 13 13 13 13 13 13 13
Agency & Other Fees 0 0 19 0 0 19 0 0 19 0
Letter of Credit Issued Fees 0 0 52 0 0 52 0 0 52 0
LC Commitment Fees 0 0 41 0 0 41 0 0 41 0
Development Costs 7,000 0 0 0 0 0 0 0 0 0
Project Management 100 104 108 112 116 121 126 131 136 141
Interest During Construction 0 0 0 0 0 0 0 0 0 11,104
Title Insurance 250 0 0 0 0 0 0 0 0 0
Builder's Risk Insurance 950 0 0 0 0 0 0 0 0 0
Marine Cargo Insurance 300 0 0 0 0 0 0 0 0 0
Liability Insurance 100 0 0 0 0 0 0 0 0 0
Contingencies 0 0 0 0 0 0 0 0 0 0
Spare Parts 0 0 0 0 0 0 0 0 0 0
Start-Up Cost 0 0 0 0 0 0 0 0 0 0
Initial Units Cash Flow 0 0 0 0 0 0 0 0 0 0
Working Capital 0 0 43 0 0 0 0 0 43 0
------- ------- ------- ------- ------- ------- ------- ------- ------- -------
Total Construction Cost 27,684 3,081 5,468 5,052 5,692 7,720 5,596 5,816 7,546 21,642
------- ------- ------- ------- ------- ------- ------- ------- ------- -------
Cum Construction Cost 27,684 30,765 36,233 41,285 46,977 54,697 60,293 66,109 73,655 95,297
======= ======= ======= ======= ======= ======= ======= ======= ======= =======
Amount Transferred to Initial
Units 6/01/2001
Bonds Outstanding 275,000 275,000 275,000 275,000 275,000 275,000 275,000 275,000 275,000 275,000
Treasury 6.25% 6.25% 6.25% 6.25% 6.25% 6.25% 6.25% 6.25% 6.25% 6.25%
Spread 3.25% 3.25% 3.25% 3.25% 3.25% 3.25% 3.25% 3.25% 3.25% 3.25%
------- ------- ------- ------- ------- ------- ------- ------- ------- -------
Interest Rate 9.500% 9.500% 9.500% 9.500% 9.500% 9.500% 9.500% 9.500% 9.500% 9.500%
------- ------- ------- ------- ------- ------- ------- ------- ------- -------
Interest Expense 2,177 2,177 2,177 2,177 2,177 2,177 2,177 2,177 2,177 2,177
Interest Due on Scheduled
Payment Date 19,593
Unspent Bond Proceeds 247,316 244,235 238,767 233,715 228,023 220,303 214,707 208,891 201,345 179,703
Interest Rate 5.000% 5.000% 5.000% 5.000% 5.000% 5.000% 5.000% 5.000% 5.000% 5.000%
------- ------- ------- ------- ------- ------- ------- ------- ------- -------
Interest Income on Unspent
Bond Proceeds 1,030 1,018 995 974 950 918 895 870 839 749
Interest Income 8,489
------- ------- ------- ------- ------- ------- ------- ------- ------- -------
Net Interest Expense 0 0 0 0 0 0 0 0 11,104 0
Sep-00 Oct-00 Nov-00 Dec-00 Jan-01 Feb-01 Mar-01 Apr-01
DRAW DRAW DRAW DRAW DRAW DRAW DRAW DRAW
11 12 13 14 15 16 17 18
------- ------- ------- ------- ------- ------- ------- -------
EPC - Building Materials Phase 1 9,878 6,636 6,772 8,826 7,580 9,874 2,369 1,588
EPC - Building Materials Phase 2 0 0 1,899 5,697 5,539 5,065 4,749 4,749
Mobilization Payment 0 0 0 0 110 0 0 0
Sales Tax 70 68 70 65 44 43 38 26
Electrical Interconnection Facilities 67 67 67 67 62 0 0 0
GPC Monthly Fees 5 5 5 5 5 5 5 5
Gas Supply Facilities 167 167 167 166 0 0 0 0
Heard County Water Authority 0 0 0 0 0 0 0 0
Land 0 0 0 0 0 0 0 0
Financing Costs 13 13 13 13 13 13 13 13
Agency & Other Fees 0 19 0 0 19 0 0 19
Letter of Credit Issued Fees 0 52 0 0 52 0 0 86
LC Commitment Fees 0 41 0 0 41 0 0 41
Development Costs 0 0 0 0 0 0 0 0
Project Management 147 153 159 165 172 179 186 193
Interest During Construction 0 0 0 0 0 9,201 0 0
Title Insurance 0 0 0 0 0 0 0 0
Builder's Risk Insurance 0 0 0 0 0 0 0 0
Marine Cargo Insurance 0 0 0 0 0 0 0 0
Liability Insurance 0 0 0 0 0 0 0 0
Contingencies 0 0 0 0 0 0 0 0
Spare Parts 0 0 0 0 0 0 0 1,216
Start-Up Cost 0 0 0 0 0 0 760 760
Initial Units Cash Flow 0 0 0 0 0 0 0 0
Working Capital 0 0 0 0 43 0 0 0
------- ------- ------- ------- ------- ------- ------- -------
Total Construction Cost 10,347 7,221 9,152 15,004 13,680 24,380 8,120 8,696
------- ------- ------- ------- ------- ------- ------- -------
Cum Construction Cost 105,644 112,865 122,017 137,021 150,701 175,081 183,201 191,898
======= ======= ======= ======= ======= ======= ======= =======
Amount Transferred to Initial
Units 6/01/2001
Bonds Outstanding 275,000 275,000 275,000 275,000 275,000 275,000 275,000 275,000
Treasury 6.25% 6.25% 6.25% 6.25% 6.25% 6.25% 6.25% 6.25%
Spread 3.25% 3.25% 3.25% 3.25% 3.25% 3.25% 3.25% 3.25%
------- ------- ------- ------- ------- ------- ------- -------
Interest Rate 9.500% 9.500% 9.500% 9.500% 9.500% 9.500% 9.500% 9.500%
------- ------- ------- ------- ------- ------- ------- -------
Interest Expense 2,177 2,177 2,177 2,177 2,177 2,177 2,177 2,177
Interest Due on Scheduled
Payment Date 13,062
Unspent Bond Proceeds 169,356 162,135 152,983 137,979 124,299 99,919 91,799 83,102
Interest Rate 5.000% 5.000% 5.000% 5.000% 5.000% 5.000% 5.000% 5.000%
------- ------- ------- ------- ------- ------- ------- -------
Interest Income on Unspent
Bond Proceeds 706 676 637 575 518 416 382 346
Interest Income 3,861
------- ------- ------- ------- ------- ------- ------- -------
Net Interest Expense 0 0 0 0 9,201 0 0 0
TENASKA GEORGIA PARTNERS, L.P.
FORM OF APPROVED CONSTRUCTION BUDGET
AMOUNTS IN THOUSANDS
May-01 Jun-01 Jul-01 Aug-01 Sep-01 Oct-01 Nov-01 Dec-01 Jan-02
DRAW DRAW DRAW DRAW DRAW DRAW DRAW DRAW DRAW
19 20 21 22 23 24 25 26 27
------- ------- ------- ------- ------- ------- ------- ------- -------
EPC - Building Materials Phase 1 4,499 0 0 0 0 0 0 0 0
EPC - Building Materials Phase 2 4,749 5,822 6,101 7,280 9,011 12,839 13,720 12,107 1,420
Mobilization Payment 0 0 0 0 0 0 0 0 0
Sales Tax 14 17 22 41 43 54 43 42 23
Electrical Interconnection Facilities 0 0 0 0 0 0 0 0 0
GPC Monthly Fees 5 5 5 5 5 5 5 5 5
Gas Supply Facilities 0 (784) 0 0 0 0 0 0 0
Heard County Water Authority 0 0 0 0 0 0 0 0 0
Land 0 0 0 0 0 0 0 0 0
Financing Costs 13 13 13 13 13 13 13 13 13
Agency & Other Fees 0 0 0 0 0 0 0 0 0
Letter of Credit Issued Fees 0 0 0 0 0 0 0 0 0
LC Commitment Fees 0 0 0 0 0 0 0 0 0
Development Costs 0 0 0 0 0 0 0 0 0
Project Management 201 209 125 130 135 140 146 152 158
Interest During Construction 0 0 0 8,473 0 0 0 0 0
Title Insurance 0 0 0 0 0 0 0 0 0
Builder's Risk Insurance 0 0 0 0 0 0 0 0 0
Marine Cargo Insurance 0 0 0 0 0 0 0 0 0
Liability Insurance 0 0 0 0 0 0 0 0 0
Contingencies 0 0 0 0 0 0 0 0 0
Spare Parts 1,216 0 0 0 0 0 0 0 0
Start-Up Cost 760 0 0 0 0 0 0 0 0
Initial Units Cash Flow 0 42 42 42 42 42 42 42 42
Working Capital 0 0 43 0 0 0 0 0 43
------- ------- ------- ------- ------- ------- ------- ------- -------
Total Construction Cost 11,457 5,324 6,351 15,984 9,249 13,093 13,969 12,361 1,704
------- ------- ------- ------- ------- ------- ------- ------- -------
Cum Construction Cost 203,355 208,679 215,031 231,015 240,264 253,357 267,326 279,687 281,392
Amount Transferred to Initial
Units 6/01/2001 165,466
Bonds Outstanding 275,000 109,534 109,534 109,534 109,534 109,534 109,534 109,534 109,534
Treasury 6.25% 6.25% 6.25% 6.25% 6.25% 6.25% 6.25% 6.25% 6.25%
Spread 3.25% 3.25% 3.25% 3.25% 3.25% 3.25% 3.25% 3.25% 3.25%
------- ------- ------- ------- ------- ------- ------- ------- -------
Interest Rate 9.500% 9.500% 9.500% 9.500% 9.500% 9.500% 9.500% 9.500% 9.500%
------- ------- ------- ------- ------- ------- ------- ------- -------
Interest Expense 2,177 867 867 867 867 867 867 867 867
Interest Due on Scheduled
Payment Date 10,442 5,202
Unspent Bond Proceeds 71,645 66,321 59,969 43,985 34,736 21,643 7,674 0 0
Interest Rate 5.000% 5.000% 5.000% 5.000% 5.000% 5.000% 5.000% 5.000% 5.000%
------- ------- ------- ------- ------- ------- ------- ------- -------
Interest Income on Unspent
Bond Proceeds 299 276 250 183 145 90 32 0 0
Interest Income 1,969 450
------- ------- ------- ------- ------- ------- ------- ------- -------
Net Interest Expense 0 0 8,473 0 0 0 0 0 4,752
Feb-02 Mar-02 Apr-02 May-02 Jun-02
DRAW DRAW DRAW DRAW DRAW
28 29 30 31 32 TOTAL
------- ------- ------- ------- ------- -------
EPC - Building Materials Phase 1 0 0 0 0 0 115,917
EPC - Building Materials Phase 2 285 105 99 5,089 0 113,447
Mobilization Payment 0 0 0 0 0 110
Sales Tax 5 2 2 4 0 1,000
Electrical Interconnection Facilities 0 0 0 0 0 1,000
GPC Monthly Fees 5 5 5 5 0 158
Gas Supply Facilities 0 0 0 0 0 3,123
Heard County Water Authority 0 0 0 0 0 515
Land 0 0 0 0 0 712
Financing Costs 13 13 403 0 0 4,158
Agency & Other Fees 0 0 0 0 0 114
Letter of Credit Issued Fees 0 0 0 0 0 346
LC Commitment Fees 0 0 0 0 0 246
Development Costs 0 0 0 0 0 7,000
Project Management 164 171 178 185 0 4,643
Interest During Construction 4,752 0 0 0 3,468 36,998
Title Insurance 0 0 0 0 0 250
Builder's Risk Insurance 0 0 0 0 0 950
Marine Cargo Insurance 0 0 0 0 0 300
Liability Insurance 0 0 0 0 0 100
Contingencies 0 0 0 11,962 0 11,962
Spare Parts 0 0 0 1,216 0 3,649
Start-Up Cost 0 0 0 760 0 3,040
Initial Units Cash Flow 42 42 42 42 0 504
Working Capital 0 0 43 0 0 258
------- ------- ------- ------- ------- -------
Total Construction Cost 5,266 338 772 19,264 3,468 310,500
------- ------- ------- ------- ------- -------
Cum Construction Cost 286,658 286,996 287,768 307,032 310,500
Amount Transferred to Initial
Units 6/01/2001
Bonds Outstanding 109,534 109,534 109,534 109,534 0
Treasury 6.25% 6.25% 6.25% 6.25% 6.25%
Spread 3.25% 3.25% 3.25% 3.25% 3.25%
------- ------- ------- ------- -------
Interest Rate 9.500% 9.500% 9.500% 9.500% 9.500%
------- ------- ------- ------- -------
Interest Expense 867 867 867 867 0 51,767
Interest Due on Scheduled
Payment Date 3,468 51,767
Unspent Bond Proceeds 0 0 0 0 0
Interest Rate 5.000% 5.000% 5.000% 5.000% 5.000%
------- ------- ------- ------- -------
Interest Income on Unspent
Bond Proceeds 0 0 0 0 0 14,769
Interest Income 14,769
------- ------- ------- ------- ------- -------
Net Interest Expense 0 0 0 3,468 0 36,998
SCHEDULE 3.1(M)
BASE CASE PROJECTIONS
TENASKA GEORGIA FACILITY
PROJECTED OPERATING RESULTS
BASE CASE
Year Ending December 31 2002(1) 2003 2004 2005 2006
----------------------- ------- ---- ---- ---- ----
PERFORMANCE
Net Summer Installed Capacity (kW)(2) 936,000 936,000 936,000 936,000 936,000
PPA Contract Capacity (kW)(3) 908,000 908,000 908,000 908,000 908,000
Summer Availability under the PPA
(%)(4) 98.0% 98.0% 98.0% 98.0% 98.0%
Annual Availability under the PPA
(%)(5) 97.0% 97.0% 97.0% 97.0% 97.0%
Capacity Factor (%)(6) 2.0% 2.0% 3.0% 4.0% 5.0%
Unit Starts per year (7) 181 181 272 363 454
Energy Generation (MWh) 159,082 159,082 238,622 318,163 397,704
Net Plant Heat Rate (Btu/kWh)(8) 11,088 11,088 11,088 11,088 11,088
COMMODITY PRICES
General Inflation (%)(9) 2.50 2.50 2.50 2.50 2.50
Electricity Prices (10)
Reservation Charges ($/kW-yr) $42.00 42.21 43.34 44.74 45.73
Unit Start Up Rates ($/Start) $11,330 11,670 12,020 12,381 12,752
Energy Charges ($/MWh) $0.17 0.18 0.18 0.19 0.20
OPERATING REVENUES ($000)
Reservation Payments $22,246 38,327 39,353 40,624 41,523
Unit Startup Charges $1,921 1,979 3,057 4,198 5,405
Energy Payments $27 29 43 60 80
Availability Incentive Adjustment
(11) $87 150 150 150 150
Summer Availability Adjustment (12) $0 0 0 0 0
Annual Availability Adjustment (13) $0 0 0 0 0
Efficiency Adjustment (14) $0 0 0 0 0
------- ------- ------- ------- -------
Total Operating Revenues $24,282 40,485 42,603 45,032 47,158
OPERATING EXPENSES ($000)(15)
Fuel $0 0 0 0 0
Operations (16) $914 1,622 2,057 2,152 2,251
Capital Expenditures $32 55 57 58 59
Major Maintenance (17) $1,559 2,477 3,502 4,583 5,727
Operator Fee, Incentive and Bonus
(18) $202 107 366 376 386
Home Office Expenses (19) $422 742 761 780 799
Insurance $224 394 404 414 424
Property and Other Taxes $52 142 189 305 339
------- ------- ------- ------- -------
Total Operating Expenses $3,405 5,539 7,336 8,669 9,985
NET OPERATING REVENUES ($000) $20,877 34,945 35,267 36,364 37,173
ANNUAL DEBT SERVICE ($000)(20)
Bonds
Outstanding Balance $275,000 275,000 275,000 275,000 274,714
Annual Principal $0 0 0 286 688
Annual Interest $15,240 26,125 26,125 26,125 26,081
Letter of Credit Fees $429 735 735 738 810
------- ------- ------- ------- -------
Total Debt Service $15,669 26,860 26,860 27,149 27,579
TRANSFERS FROM DSRF $0 0 0 0 0
ANNUAL DEBT SERVICE COVERAGE 1.33 1.30 1.31 1.34 1.35
AVERAGE DEBT COVERAGE (21) 1.49
DEBT SERVICE RESERVE ACCOUNT LOC (22) $7,982 13,683 13,683 13,833 14,020
WORKING CAPITAL LOC (23) $5,000 5,000 5,000 5,000 5,000
Year Ending December 31 2007 2008 2009 2010 2011
----------------------- ---- ---- ---- ---- ----
PERFORMANCE
Net Summer Installed Capacity (kW)(2) 936,000 936,000 936,000 936,000 936,000
PPA Contract Capacity (kW)(3) 908,000 908,000 908,000 908,000 908,000
Summer Availability under the PPA
(%)(4) 98.0% 98.0% 98.0% 98.0% 98.0%
Annual Availability under the PPA
(%)(5) 97.0% 97.0% 97.0% 97.0% 97.0%
Capacity Factor (%)(6) 5.0% 5.0% 6.0% 5.0% 5.0%
Unit Starts per year (7) 454 454 544 454 454
Energy Generation (MWh) 397,704 397,704 477,245 397,704 397,704
Net Plant Heat Rate (Btu/kWh)(8) 11,088 11,088 11,088 11,088 11,088
COMMODITY PRICES
General Inflation (%)(9) 2.50 2.50 2.50 2.50 2.50
Electricity Prices (10)
Reservation Charges ($/kW-yr) 46.43 47.03 48.19 49.68 51.40
Unit Start Up Rates ($/Start) 13,135 13,529 13,934 14,353 14,783
Energy Charges ($/MWh) 0.21 0.22 0.23 0.24 0.25
OPERATING REVENUES ($000)
Reservation Payments 42,158 42,703 43,757 45,109 46,671
Unit Startup Charges 5,567 5,734 7,088 6,084 6,266
Energy Payments 84 87 110 95 99
Availability Incentive Adjustment
(11) 150 150 150 150 150
Summer Availability Adjustment (12) 0 0 0 0 0
Annual Availability Adjustment (13) 0 0 0 0 0
Efficiency Adjustment (14) 0 0 0 0 0
------- ------- ------- ------ -------
Total Operating Revenues 47,959 48,674 51,105 51,438 53,186
OPERATING EXPENSES ($000)(15)
Fuel 0 0 0 0 0
Operations (16) 2,308 2,364 2,472 2,486 2,546
Capital Expenditures 61 62 64 66 67
Major Maintenance (17) 5,895 6,068 7,348 6,430 6,591
Operator Fee, Incentive and Bonus
(18) 397 408 420 431 444
Home Office Expenses (19) 819 840 861 1,480 1,532
Insurance 435 446 457 468 480
Property and Other Taxes 365 382 391 429 416
------- ------- ------- ------ -------
Total Operating Expenses 10,280 10,569 12,014 11,790 12,077
NET OPERATING REVENUES ($000) 37,679 38,105 39,091 39,648 41,110
ANNUAL DEBT SERVICE ($000)(20)
Bonds
Outstanding Balance 274,026 273,052 271,391 269,042 266,005
Annual Principal 974 1,661 2,349 3,036 4,010
Annual Interest 26,016 25,907 25,733 25,494 25,189
Letter of Credit Fees 812 819 825 893 900
------- ------- ------- ------ -------
Total Debt Service 27,802 28,388 28,907 29,423 30,099
TRANSFERS FROM DSRF 0 0 0 0 0
ANNUAL DEBT SERVICE COVERAGE 1.36 1.34 1.35 1.35 1.37
AVERAGE DEBT COVERAGE (21)
DEBT SERVICE RESERVE ACCOUNT LOC (22) 14,136 14,439 14,708 14,943 15,293
WORKING CAPITAL LOC (23) 5,000 5,000 5,000 5,000 5,000
TENASKA GEORGIA FACILITY
PROJECTED OPERATING RESULTS
BASE CASE
Year Ending December 31 2012 2013 2014 2015 2016
----------------------- ---- ---- ---- ---- ----
PERFORMANCE
Net Summer Installed Capacity (kW)(2) 936,000 936,000 936,000 936,000 936,000
PPA Contract Capacity (kW)(3) 908,000 908,000 908,000 908,000 908,000
Summer Availability under the PPA
(%)(4) 98.0% 98.0% 98.0% 98.0% 98.0%
Annual Availability under the PPA
(%)(5) 97.0% 97.0% 97.0% 97.0% 97.0%
Capacity Factor (%)(6) 5.0% 5.0% 4.0% 4.0% 3.0%
Unit Starts per year (7) 454 454 363 363 272
Energy Generation (MWh) 397,704 397,704 318,163 318,163 238,622
Net Plant Heat Rate (Btu/kWh)(8) 11,088 11,088 11,088 11,088 11,088
COMMODITY PRICES
General Inflation (%)(9) 2.50 2.50 2.50 2.50 2.50
Electricity Prices (10)
Reservation Charges ($/kW-yr) $53.18 54.79 55.93 56.91 57.99
Unit Start Up Rates ($/Start) $15,227 15,683 16,154 16,638 17,138
Energy Charges ($/MWh) $0.26 0.27 0.29 0.30 0.31
OPERATING REVENUES ($000)
Reservation Payments $48,287 49,749 50,784 51,674 52,655
Unit Startup Charges $6,454 6,648 5,478 5,642 4,358
Energy Payments $103 107 92 95 74
Availability Incentive Adjustment
(11) $150 150 150 150 150
Summer Availability Adjustment (12) $0 0 0 0 0
Annual Availability Adjustment (13) $0 0 0 0 0
Efficiency Adjustment (14) $0 0 0 0 0
------- ------- ------- ------ -------
Total Operating Revenues $54,994 56,654 56,504 57,561 57,237
OPERATING EXPENSES ($000)(15)
Fuel $0 0 0 0 0
Operations (16) $2,612 2,676 2,687 2,754 2,764
Capital Expenditures $69 71 72 74 76
Major Maintenance (17) $6,756 6,924 5,843 5,990 4,821
Operator Fee, Incentive and Bonus
(18) $456 469 482 496 510
Home Office Expenses (19) $1,586 1,642 1,701 1,762 1,824
Insurance $492 504 517 530 543
Property and Other Taxes $497 532 569 693 735
------- ------- ------- ------ -------
Total Operating Expenses $12,467 12,819 11,871 12,300 11,273
NET OPERATING REVENUES ($000) $42,527 43,836 44,633 45,262 45,964
ANNUAL DEBT SERVICE ($000)(20)
Bonds
Outstanding Balance $261,995 256,609 250,135 242,688 234,151
Annual Principal $5,385 6,474 7,448 8,536 9,510
Annual Interest $24,775 24,231 23,600 22,859 22,032
Letter of Credit Fees $901 933 933 933 965
------- ------- ------- ------ -------
Total Debt Service $31,062 31,638 31,981 32,329 32,508
TRANSFERS FROM DSRF $0 0 0 0 0
ANNUAL DEBT SERVICE COVERAGE 1.37 1.39 1.40 1.40 1.41
AVERAGE DEBT COVERAGE (21) 1.49
DEBT SERVICE RESERVE ACCOUNT LOC (22) $15,797 16,000 16,000 16,000 16,000
WORKING CAPITAL LOC (23) $5,000 5,000 5,000 5,000 5,000
Year Ending December 31 2017 2018 2019 2020 2021
----------------------- ---- ---- ---- ---- ----
PERFORMANCE
Net Summer Installed Capacity (kW)(2) 936,000 936,000 936,000 936,000 936,000
PPA Contract Capacity (kW)(3) 908,000 908,000 908,000 908,000 908,000
Summer Availability under the PPA
(%)(4) 98.0% 98.0% 98.0% 98.0% 98.0%
Annual Availability under the PPA
(%)(5) 97.0% 97.0% 97.0% 97.0% 97.0%
Capacity Factor (%)(6) 3.0% 3.0% 2.0% 2.0% 2.0%
Unit Starts per year (7) 272 272 181 181 181
Energy Generation (MWh) 238,622 238,622 159,082 159,082 159,082
Net Plant Heat Rate (Btu/kWh)(8) 11,088 11,088 11,088 11,088 11,088
COMMODITY PRICES
General Inflation (%)(9) 2.50 2.50 2.50 2.50 2.50
Electricity Prices (10)
Reservation Charges ($/kW-yr) 59.42 61.17 63.39 62.90 61.10
Unit Start Up Rates ($/Start) 17,652 18,181 18,727 19,289 19,867
Energy Charges ($/MWh) 0.33 0.34 0.36 0.37 0.39
OPERATING REVENUES ($000)
Reservation Payments 53,953 55,542 57,558 57,113 55,479
Unit Startup Charges 4,489 4,624 3,175 3,270 3,368
Energy Payments 79 81 57 59 62
Availability Incentive Adjustment
(11) 150 150 150 150 150
Summer Availability Adjustment (12) 0 0 0 0 0
Annual Availability Adjustment (13) 0 0 0 0 0
Efficiency Adjustment (14) 0 0 0 0 0
------- ------- ------- ------ -------
Total Operating Revenues 58,671 60,397 60,940 60,592 59,059
OPERATING EXPENSES ($000)(15)
Fuel 0 0 0 0 0
Operations (16) 2,837 2,907 2,917 2,991 3,064
Capital Expenditures 78 80 82 84 86
Major Maintenance (17) 4,943 5,066 3,773 3,868 3,965
Operator Fee, Incentive and Bonus
(18) 524 539 555 570 586
Home Office Expenses (19) 1,890 1,958 2,030 2,103 2,180
Insurance 557 571 585 600 615
Property and Other Taxes 803 851 900 1,127 1,183
------- ------- ------- ------ -------
Total Operating Expenses 11,632 11,973 10,843 11,342 11,679
NET OPERATING REVENUES ($000) 47,039 48,424 50,098 49,249 47,380
ANNUAL DEBT SERVICE ($000)(20)
Bonds
Outstanding Balance 224,641 213,755 201,495 188,146 174,109
Annual Principal 10,885 12,260 13,349 14,036 14,724
Annual Interest 21,096 20,029 18,832 17,547 16,198
Letter of Credit Fees 965 965 965 965 964
------- ------- ------- ------ -------
Total Debt Service 32,946 33,255 33,146 32,549 31,885
TRANSFERS FROM DSRF 0 0 0 0 0
ANNUAL DEBT SERVICE COVERAGE 1.43 1.46 1.51 1.51 1.49
AVERAGE DEBT COVERAGE (21)
DEBT SERVICE RESERVE ACCOUNT LOC (22) 16,000 16,000 16,000 16,000 16,000
WORKING CAPITAL LOC (23) 5,000 5,000 5,000 5,000 5,000
TENASKA GEORGIA FACILITY
PROJECTED OPERATING RESULTS
BASE CASE
Year Ending December 31 2022 2023 2024 2025 2026 2027 2028 2029 2030(1)
----------------------- ---- ---- ---- ---- ---- ---- ---- ---- -------
PERFORMANCE
Net Summer Installed Capacity (kW)(2) 936,000 936,000 936,000 936,000 936,000 936,000 936,000 936,000 936,000
PPA Contract Capacity (kW)(3) 908,000 908,000 908,000 908,000 908,000 908,000 908,000 908,000 908,000
Summer Availability under the PPA
(%)(4) 98.0% 98.0% 98.0% 98.0% 98.0% 98.0% 98.0% 98.0% 98.0%
Annual Availability under the PPA
(%)(5) 97.0% 97.0% 97.0% 97.0% 97.0% 97.0% 97.0% 97.0% 97.0%
Capacity Factor (%)(6) 2.0% 2.0% 2.0% 2.0% 2.0% 2.0% 2.0% 2.0% 2.0%
Unit Starts per year (7) 181 181 181 181 181 181 181 181 0
Energy Generation (MWh) 159,082 159,082 159,082 159,082 159,082 159,082 159,082 159,082 0
Net Plant Heat Rate (Btu/kWh)(8) 11,088 11,088 11,088 11,088 11,088 11,088 11,088 11,088 11,088
COMMODITY PRICES
General Inflation (%)(9) 2.50 2.50 2.50 2.50 2.50 2.50 2.50 2.50 2.50
Electricity Prices (10)
Reservation Charges ($/kW-yr) $60.67 60.86 62.71 65.29 67.01 69.03 70.57 71.55 72.00
Unit Start Up Rates ($/Start) $20,463 21,077 21,709 22,361 23,032 23,723 24,434 25,167 25,922
Energy Charges ($/MWh) $0.41 0.43 0.45 0.47 0.49 0.51 0.53 0.56 0.56
OPERATING REVENUES ($000)
Reservation Payments $55,088 55,261 56,941 59,283 60,845 62,679 64,078 64,967 5,448
Unit Startup Charges $3,470 3,574 3,681 3,791 3,905 4,022 4,143 4,267 0
Energy Payments $65 68 72 75 78 81 84 89 0
Availability Incentive Adjustment
(11) $150 150 150 150 150 150 150 150 12
Summer Availability Adjustment (12) $0 0 0 0 0 0 0 0 0
Annual Availability Adjustment (13) $0 0 0 0 0 0 0 0 0
Efficiency Adjustment (14) $0 0 0 0 0 0 0 0 0
-------- ------- ------- ------- ------- ------- ------ ------- -------
Total Operating Revenues $58,773 59,053 60,844 63,299 64,978 66,932 68,455 69,473 5,461
OPERATING EXPENSES ($000)(15)
Fuel $0 0 0 0 0 0 0 0 0
Operations (16) $3,141 3,220 3,300 3,384 3,467 3,555 3,643 3,734 306
Capital Expenditures $88 90 93 95 97 100 102 105 9
Major Maintenance (17) $4,064 4,165 4,270 4,377 4,487 4,598 4,713 4,831 349
Operator Fee, Incentive and Bonus
(18) $603 620 638 656 674 694 713 734 63
Home Office Expenses (19) $2,261 2,344 2,431 2,522 2,616 2,713 2,815 2,922 253
Insurance $630 646 662 678 695 713 731 749 64
Property and Other Taxes $1,609 1,587 1,566 1,545 1,524 1,504 1,484 1,465 117
-------- ------- ------- ------- ------- ------- ----- ------- -------
Total Operating Expenses $12,396 12,672 12,960 13,257 13,560 13,878 14,201 14,540 1,161
NET OPERATING REVENUES ($000) $46,377 46,381 47,884 50,042 51,418 53,055 54,254 54,933 4,299
ANNUAL DEBT SERVICE ($000)(20)
Bonds
Outstanding Balance $159,385 143,688 126,901 109,427 91,266 72,130 50,760 26,812 2,062
Annual Principal $15,698 16,786 17,474 18,161 19,135 21,370 23,948 24,750 2,063
Annual Interest $14,782 13,258 11,647 9,971 8,229 6,379 4,267 1,959 98
Letter of Credit Fees $964 964 962 951 942 946 952 934 77
-------- ------- ------- ------- ------- ------- ------ ------- -------
Total Debt Service $31,444 31,009 30,083 29,084 28,307 28,695 29,167 27,643 2,237
TRANSFERS FROM DSRF $0 0 0 0 0 0 0 0 0
ANNUAL DEBT SERVICE COVERAGE 1.47 1.50 1.59 1.72 1.82 1.85 1.86 1.99 1.92
AVERAGE DEBT COVERAGE (21) 1.49
DEBT SERVICE RESERVE ACCOUNT LOC (22) $15,964 15,736 15,252 14,734 14,332 14,533 14,778 13,989 1,132
WORKING CAPITAL LOC (23) $5,000 5,000 5,000 5,000 5,000 5,000 5,000 5,000 5,000
SCHEDULE 3.1(O)
ENVIRONMENTAL MATTERS
[To be Provided.]
SCHEDULE 3.1(T)
CONSENTS TO ASSIGNMENT
1. PECO Energy Company, a Pennsylvania corporation.
2. Xxxxxx Construction Corporation, a Delaware corporation.
3. X.X. Xxxxxx Company, a Delaware corporation.
4. General Electric Company, a New York corporation.
5. General Electric International, Inc., a Delaware corporation.
6. Tenaska Operations, Inc., a Delaware corporation.
7. Georgia Power Company, a Georgia corporation.
8. Heard County Water Authority, a public corporation created and existing
under the laws of the State of Georgia.
9. Transcontinental Gas Pipe Line Corporation, a Delaware corporation.
10. Willbros Engineers, Inc., a Delaware corporation.
11. Willbros Group, Inc., a Panama corporation.
SCHEDULE 8.11
INDEPENDENT ENGINEERS
1. Energy and Environmental Engineering.
2. PB Power, a division of Xxxxxxx Xxxxxxxxxxxx.
3. Stone & Xxxxxxx Engineering.
EXHIBIT 5.1(R)
Certificate of Tenaska Georgia Partners, L.P. dated November 10, 1999 and issued
in connection with the opinion of special counsel to the partnership with
respect to the issue of substantive consolidation in connection with a
bankruptcy of Tenaska Energy, Inc.
