Exhibit 4.12
EXECUTION COPY
CONSENT AND AGREEMENT
This CONSENT AND AGREEMENT (this "Consent"), dated as of November 10,
1999 among X.X. Xxxxxx Company, a Delaware corporation (the "Consenting Party"),
Tenaska Georgia Partners, L.P., a Delaware limited partnership (the
"Partnership"), and THE CHASE MANHATTAN BANK, as collateral agent (together with
its successors in such capacity, the "Collateral Agent") for the benefit of the
Senior Parties (as defined below).
RECITALS
WHEREAS, the Partnership intends to develop, construct, lease,
operate, maintain and finance a 936 megawatt ("MW") (nominal summer rating)
natural gas-fired simple-cycle electric generating plant (the "Facility" and,
together with the Project Documents, governmental approvals relating to the
Facility or the Project Documents and any other item relating to the Facility,
including any improvements to, and the operation of, the Facility and all
activities related thereto, the "Project") to be located in Heard County,
Georgia;
WHEREAS, the Partnership intends to finance the development,
construction and start-up of the Project, through the issuance of certain bonds
(the "BONDS") pursuant to a trust indenture, dated as of November 1, 1999
between the Partnership and The Chase Manhattan Bank, as Trustee (the
"INDENTURE");
WHEREAS, the Project will be owned by the Development
Authority of Heard County, Georgia, a public corporation created and existing
under the laws of the State of Georgia (the "Authority"), and will be leased to
the Partnership pursuant to a Lease Agreement dated as of November 1, 1999
between the Authority and the Partnership;
WHEREAS, the Authority will issue its Industrial Development
Bonds (the "DAHC Bonds") pursuant to an Indenture, dated as of November 1, 1999
between the Authority and The Chase Manhattan Bank, as DAHC Trustee;
WHEREAS, the DAHC Bonds will be purchased by the Partnership
and pledged to the Collateral Agent, along with certain other assets of the
Partnership including its rights under the Lease Agreement to secure the
obligations of the Partnership under the Bonds;
WHEREAS, in addition to the DAHC Bonds and related collateral,
all obligations of the Partnership with respect to the Bonds, and any other
agreements evidencing senior debt of the Partnership (collectively, the
"Financing Documents") to the Trustee, the Collateral Agent, each successor
thereto and each other person that becomes a secured party under any Financing
Document (collectively, the "Senior Parties") will be secured by a certain
Security Agreement, Pledge Agreements, Collateral Agency Agreement, Deed to
Secured Debt, Security Agreement and Assignment of Rents and Leases, each Third
Party Consent and any other document
providing for any lien, pledge, encumbrance, mortgage or security interest
(collectively, the "Security Documents");
WHEREAS, the Senior Parties, the Authority, and the
Partnership have entered into the Collateral Agency and Intercreditor Agreement
(as amended, restated, modified or otherwise supplemented from time to time in
accordance with the terms thereof, the "Collateral Agency Agreement") to set
forth their mutual understanding with respect to (a) the exercise of certain
rights, remedies and options by the respective parties thereto under the above
described documents, (b) the priority of their respective security interests
created by the Security Documents, and (c) the appointment of the Collateral
Agent as collateral agent.
WHEREAS, Tenaska Georgia I, L.P. ("TGILP") and Xxxxxx Construction
Corporation, a Delaware corporation, have entered into that certain Engineering,
Procurement and Construction Agreement dated as of September 15, 1999, (as
amended, restated, modified or otherwise supplemented from time to time in
accordance with the terms thereof, the "EPC Agreement");
WHEREAS, TGILP and General Electric Company, a New York corporation,
have entered into that certain Contract for Purchase dated as of August 27, 1999
(as amended, restated, modified or otherwise supplemented from time to time in
accordance with the terms thereof, the "Contract for Purchase");
WHEREAS, TGILP has assigned and the Partnership has assumed all of
TGILP's right, title and interest in, and obligations under the Contract for
Purchase pursuant to an Assignment and Assumption Agreement dated as of and
delivered to the Consenting Party on the date hereof.
WHEREAS, the Partnership has assigned and the Contractor has assumed
certain of the Partnership's right, title and interest in, and obligations under
the Contract for Purchase pursuant to an Assignment and Assumption Agreement
dated as of and delivered to the Consenting Party on the date hereof (the
"Assignment and Assumption Agreement");
WHEREAS, the Consenting Party has entered into a Guaranty of
Obligation, dated as of the date hereof, in favor of the Partnership, pursuant
to which the Consenting Party has agreed, INTER ALIA, to guarantee the full and
timely performance of all of the Contractor's obligations under the EPC
Agreement (as amended, supplemented or otherwise modified from time to time in
accordance with its terms, the "Assigned Agreement");
WHEREAS, it is a condition precedent to the issuance of the
Bonds and the other Financing Documents that the Consenting Party execute and
deliver this Consent for the benefit of the Senior Parties;
NOW, THEREFORE, as an inducement to the Senior Parties to
enter into the Financing Documents, and in consideration of good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, and
intending to be legally bound, the Consenting Party hereby agrees as follows:
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SECTION 1. CONSENT TO ASSIGNMENT, ETC.
1.1 CONSENT TO ASSIGNMENT. The Consenting Party (a) acknowledges that
the Collateral Agent and the Senior Parties are entering into the Financing
Documents in reliance upon the execution and delivery by the Consenting Party of
the Assigned Agreement and this Consent, (b) consents in all respects to the
pledge and assignment to the Collateral Agent of all of the Partnership's right,
title and interest in, to and under the Assigned Agreement pursuant to one or
more of the Security Documents and (c) acknowledges the right, but not the
obligation, of the Collateral Agent or the Collateral Agent's designee, in the
exercise of the Collateral Agent's rights and remedies under the Security
Documents, to make all demands, give all notices, take all actions and exercise
all rights of the Partnership in accordance with the Assigned Agreement, and
agrees that in such event the Consenting Party shall continue to perform its
obligations under the Assigned Agreement.
1.2 SUBSTITUTE OWNER. The Consenting Party agrees that, if the
Collateral Agent shall notify the Consenting Party that an event of default
under any of the Financing Documents has occurred and is continuing and that the
Collateral Agent has exercised its rights (a) to have itself or its designee
substituted for the Partnership under the Assigned Agreement or (b) to sell,
assign, transfer or otherwise dispose of the Assigned Agreement to a person,
then the Collateral Agent, the Collateral Agent's designee or such person (each,
a "Substitute Owner") shall be substituted for the Partnership under the
Assigned Agreement and that, in such event, the Consenting Party will continue
to perform its obligations under the Assigned Agreement in favor of the
Substitute Owner.
1.3 [Reserved]
1.4 NO TERMINATION, ASSIGNMENTS OR MATERIAL AMENDMENTS. The Consenting
Party will not, without the prior written consent of the Collateral Agent, enter
into any consensual cancellation or termination of the Assigned Agreement, or
assign or otherwise transfer any of its right, title and interest thereunder or
consent to any such assignment or transfer by the Partnership.
1.5 REPLACEMENT AGREEMENT. In the event that the Assigned Agreement is
terminated as a result of any bankruptcy or insolvency proceeding affecting the
Partnership, the Consenting Party will, at the option of the Collateral Agent
enter into a new agreement with the Collateral Agent (or its transferee or other
nominee that owns or leases the Project) having terms substantially the same as
the terms of the Assigned Agreement.
1.6 NO LIABILITY. The Consenting Party acknowledges and agrees that
neither the Collateral Agent, the Collateral Agent's designee or the Senior
Parties shall have any liability or obligation under the Assigned Agreement as a
result of this Consent, the Security Documents or otherwise.
1.7 PERFORMANCE UNDER ASSIGNED AGREEMENTS. The Consenting Party shall
perform and comply with all material terms and provisions of the Assigned
Agreement to be performed or complied with by it and shall maintain the Assigned
Agreement in full force and effect in accordance with its terms.
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1.8 DELIVERY OF NOTICES. The Consenting Party shall deliver to the
Collateral Agent, concurrently with the delivery thereof to the Partnership, a
copy of each notice, request or demand given by the Consenting Party pursuant to
the Assigned Agreement.
1.9 ACKNOWLEDGMENTS. The Consenting Party agrees to execute such
acknowledgments or other similar instruments as the Collateral Agent shall
reasonably request in connection with the transactions provided for in this
Consent.
SECTION 2. PAYMENTS UNDER THE ASSIGNED AGREEMENT
2.1 PAYMENTS. The Consenting Party will pay all amounts payable by it
under the Assigned Agreement, if any, in the manner required by the Assigned
Agreement directly into the account specified on Exhibit A hereto, or to such
other person or account as shall be specified from time to time by the
Collateral Agent to the Consenting Party in writing.
2.2 NO OFFSET, ETC. All payments required to be made by the Consenting
Party under the Assigned Agreement shall be made without any offset, recoupment,
abatement, withholding, reduction or defense whatsoever, except as specifically
permitted under the Assigned Agreement.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE CONSENTING PARTY
In order to induce the Collateral Agent and the Senior Parties to enter
into the Financing Documents, the Consenting Party makes the following
representations and warranties, which shall survive the execution and delivery
of this Consent and the Assigned Agreement and the consummation of the
transactions contemplated hereby and thereby.
3.1 ORGANIZATION; POWER AND AUTHORITY. The Consenting Party is a
limited liability partnership duly organized, validly existing and in good
standing under the laws of the state of its formation, and is duly qualified,
authorized to do business and in good standing in every jurisdiction in which it
owns or leases real property or in which the nature of its business requires it
to be so qualified, and has all requisite power and authority, corporate or
otherwise, to enter into and to perform its obligations hereunder and under the
Assigned Agreement, and to carry out the terms hereof and thereof and the
transactions contemplated hereby and thereby.
3.2 AUTHORIZATION. The execution, delivery and performance by the
Consenting Party of this Consent and the Assigned Agreement have been duly
authorized by all necessary corporate and partnership action on the part of the
Consenting Party and do not require any approval or consent of any holder (or
any trustee for any holder) of any indebtedness or other obligation of (a) the
Consenting Party or (b) any other person or entity, except approvals or consents
which have previously been obtained.
3.3 EXECUTION AND DELIVERY; BINDING AGREEMENTS. Each of this Consent
and the Assigned Agreement is in full force and effect, has been duly executed
and delivered on behalf of the Consenting Party by the appropriate members of
the Consenting Party, and constitutes the legal, valid and binding obligation of
the Consenting Party, enforceable against the Consenting
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Party in accordance with its terms except as the enforceability thereof may be
limited by (a) bankruptcy, insolvency, reorganization, or other similar laws
affecting the enforcement of creditors' rights generally and (b) general
equitable principles (whether considered in a proceeding in equity or at law).
3.4 LITIGATION. There is no legislation, litigation, action, suit,
proceeding or investigation pending or (to the best of the Consenting Party's
knowledge after due inquiry) threatened against the Consenting Party before or
by any court, administrative agency, arbitrator or governmental authority, body
or agency which, if adversely determined, individually or in the aggregate, (a)
could adversely affect the performance by the Consenting Party of its
obligations hereunder or under the Assigned Agreement, or which could modify or
otherwise adversely affect the Approvals (as defined in Section 3.6), (b)
questions the validity, binding effect or enforceability hereof or of the
Assigned Agreement, any action taken or to be taken pursuant hereto or thereto
or any of the transactions contemplated hereby or thereby or (c) could have a
material adverse effect upon (i) the business, operations, properties, assets,
or condition (financial or otherwise) of the Consenting Party, (ii) the ability
of the Consenting Party to perform under the Assigned Agreement or this Consent,
(iii) the business, operations, properties, assets, prospects or condition
(financial or otherwise) of the Project, (iv) the value, validity, perfection
and enforceability of the liens granted to the Collateral Agent under the
Security Documents or (v) the ability of the Collateral Agent or the Senior
Parties to enforce any of their material rights and remedies under the Assigned
Agreement or this Consent (collectively, a "Material Adverse Effect").
3.5 COMPLIANCE WITH OTHER INSTRUMENTS, ETC. The Consenting Party is not
in violation of its certificate of limited liability partnership, limited
liability partnership agreement, or other organizational documents, and the
execution, delivery and performance by the Consenting Party of this Consent and
the Assigned Agreement and the consummation of the transactions contemplated
hereby and thereby will not result in any violation of, breach of or default
under any term of its certificate of limited partnership, limited partnership
agreement, or other organizational documents, or of any contract or agreement to
which it is a party or by which it or its property is bound, or of any license,
permit, franchise, judgment, writ, injunction, decree, order, charter, law,
ordinance, rule or regulation applicable to it, except for any such violations
which, individually or in the aggregate, would not have a Material Adverse
Effect on the Consenting Party.
3.6 GOVERNMENT CONSENT. No consent, order, authorization, waiver,
approval or any other action, or registration, declaration or filing with, any
person, board or body, public or private (collectively, the "Approvals"), is
required to be obtained by the Consenting Party in connection with the
execution, delivery or performance of the Assigned Agreement or the consummation
of the transactions contemplated thereunder, except as listed in Exhibit B
hereto. All such Approvals listed on Exhibit B, except for those set forth in
Part II thereof (the "Deferred Approvals"), are Final (as defined below). An
Approval shall be "Final" if it has been validly issued, is in full force and
effect, is not subject to any condition (other than compliance with the terms
thereof), does not impose restrictions or requirements inconsistent with the
terms of the Assigned Agreement, and is final and not subject to any appeal. The
Consenting Party reasonably believes that each Deferred Approval will be
obtained in the ordinary course of business prior to the time when such Deferred
Approval is required to be Final.
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3.7 NO DEFAULT OR AMENDMENT. Neither the Consenting Party nor, to the
best of the Consenting Party's knowledge after due inquiry, any other party to
the Assigned Agreement is in default of any of its obligations thereunder. The
Consenting Party has no existing counterclaims, offsets or defenses against the
Partnership. The Consenting Party and, to the best of the Consenting Party's
knowledge after due inquiry, each other party to the Assigned Agreement have
complied with all conditions precedent to the respective obligations of such
party to perform under the Assigned Agreement. To the best of the Consenting
Party's knowledge after due inquiry, no event or condition exists which would
either immediately or with the passage of any applicable grace period or giving
of notice, or both, enable either the Consenting Party or the Partnership to
terminate or suspend its obligations under the Assigned Agreement. The Assigned
Agreement has not been amended, modified or supplemented in any manner.
3.8 NO PREVIOUS ASSIGNMENTS. The Consenting Party has no notice of, and
has not consented to, any previous assignment of all or any part of its rights
under the Assigned Agreement.
3.9 REPRESENTATIONS AND WARRANTIES. All representations, warranties and
other statements made by the Consenting Party in the Assigned Agreement were
true and correct as of the date when made and are true and correct as of the
date of this Consent.
SECTION 4. OPINION OF IN-HOUSE COUNSEL
The Consenting Party shall deliver an opinion of in-house counsel
relating to the Assigned Agreement and this Consent, which opinion shall be
substantially in the form attached hereto as Exhibit C.
SECTION 5. MISCELLANEOUS
5.1 NOTICES. All notices and other communications hereunder shall be in
writing, shall be deemed given upon receipt thereof by the party or parties to
whom such notice is addressed, shall refer on their face to the Assigned
Agreement (although failure to so refer shall not render any such notice of
communication ineffective), shall be sent by first class mail, by personal
delivery or by a nationally recognized courier service, and shall be directed as
follows:
If to the Consenting Party: X.X. Xxxxxx Company
527 Xxxxxxx (78221-1738)
X.X. Xxx 000000
Xxx Xxxxxxx, XX 00000-0000
Attention: X.X. Xxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
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Copy to: Xxxxxx X. Xxxxxxx, Xx.
General Counsel
000 X. Xx. Xxxx'x Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to the Partnership: Tenaska Georgia Partners, L.P.
0000 Xxxxx 000xx Xxxxxx, Xxxxx 000
Xxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to the Collateral Agent: The Chase Manhattan Bank
Capital Markets Fiduciary Services
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
International & Project Finance Service Delivery
Telephone: (000) 000-0000
Fax: (000) 000-0000
The above parties may, by notice given hereunder, designate any further or
different addresses to which subsequent notices or other communications shall be
sent.
5.2 GOVERNING LAW; SUBMISSION TO JURISDICTION. (a) THIS CONSENT AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE
WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT
TO THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW EXCEPT SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW).
(b) Any legal action or proceeding with respect to this
Consent and any action for enforcement of any judgment in respect thereof may be
brought in the courts of the State of New York or of the United States of
America for the Southern District of New York, and, by execution and delivery of
this Consent, each of the Consenting Party, the Partnership and the Collateral
Agent hereby accepts for itself and in respect of its property, generally and
unconditionally, the non-exclusive jurisdiction of the aforesaid courts and
appellate courts from any appeal thereof. Each of the Consenting Party, the
Partnership and the Collateral Agent irrevocably consents to the service of
process out of any of the aforementioned courts in any
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such action or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to the Consenting Party at its notice address
provided pursuant to Section 5.1 hereof. Each of the Consenting Party, the
Partnership and the Collateral Agent hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection with this
Consent brought in the courts referred to above and hereby further irrevocably
waives and agrees not to plead or claim in any such court that any such action
or proceeding brought in any such court has been brought in an inconvenient
forum. Nothing herein shall affect the right of the Collateral Agent or its
designees to serve process in any other manner permitted by law or to commence
legal proceedings or otherwise proceed against the Consenting Party in any other
jurisdiction.
5.3 COUNTERPARTS. This Consent may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
5.4 HEADINGS DESCRIPTIVE. The headings of the several sections and
subsections of this Consent are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Consent.
5.5 SEVERABILITY. In case any provision in or obligation under this
Consent shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
5.6 AMENDMENT, WAIVER. Neither this Consent nor any of the terms hereof
may be terminated, amended, supplemented, waived or modified except by an
instrument in writing signed by the Consenting Party, the Partnership, and the
Collateral Agent.
5.7 TERMINATION. (a) The Consenting Party's obligations hereunder are
absolute and unconditional, and the Consenting Party has no right, and shall
have no right, to terminate this Consent or to be released, relieved or
discharged from any obligation or liability hereunder until all Loans and all
other obligations under the Financing Documents (the "Finance Liabilities") have
been indefeasibly satisfied in full, notice of which shall be provided by the
Collateral Agent when all such obligations have been so satisfied (the
"Termination Notice").
(b) In the event that the Collateral Agent delivers the
Termination Notice to the Consenting Party pursuant to this Section 5.7, this
Consent shall terminate for all purposes as to the Collateral Agent and the
Financing Documents and the Collateral Agent and the Senior Parties shall have
no further rights or obligations under this Consent; provided, however, that the
Consenting Party agrees that this Consent shall continue to apply for the
benefit of the Partnership and the providers of new credit facilities to replace
the Financing Documents (the "New Lender") provided that (i) within five (5)
days following delivery by the Collateral Agent to the Consenting Party of the
Termination Notice pursuant to this Section 5.7, the New Lender or an agent,
trustee or other representative of the New Lender, shall have notified the
Consenting Party that it undertakes the prospective obligations of the
"Collateral Agent" under this Consent, and shall have supplied substitute notice
address information for Section 5.1 and new payment
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instructions (countersigned on behalf of the Partnership) for Exhibit A, (ii)
the amount of the new credit facilities do not exceed the original amount of
commitment by the Senior Parties to make loans and extend other credit
facilities under the Financing Documents, and (iii) thereafter, (w) the term
"Finance Liabilities" under this Consent will be deemed to refer to the new
credit facilities, (x) the term "Collateral Agent" or "Senior Parties" shall be
deemed to refer to the New Lender or any agent or trustee for the New Lender,
(y) the term "Financing Documents" shall be deemed to refer to the credit
agreement, indenture or other instrument providing for the new credit facilities
and (z) the term "Security Documents" shall be deemed to refer to the security
agreements under which the Assigned Agreement is assigned as collateral to
secure performance of the obligations of the Partnership under the new credit
facilities.
5.8 SUCCESSORS AND ASSIGNS. This Consent shall be binding upon the
parties hereto and their permitted successors and assigns and shall inure to the
benefit of the parties, their designees and their respective permitted
successors and assigns.
5.9 FURTHER ASSURANCES. The parties hereto hereby agree to execute and
deliver all such instruments and take all such action as may be necessary to
effectuate fully the purposes of this Consent.
5.10 WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, THE CONSENTING PARTY, THE PARTNERSHIP AND THE COLLATERAL AGENT HEREBY
IRREVOCABLY WAIVE ALL RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THIS CONSENT.
5.11 SURVIVAL. All agreements, statements, representations and
warranties made by the Consenting Party herein shall be considered to have been
relied upon by the Collateral Agent and the Senior Parties and shall survive the
execution and delivery of this Consent.
5.12 NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on the part of
the Collateral Agent in exercising any right, power or privilege hereunder and
no course of dealing between the Consenting Party and the Collateral Agent shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, power or privilege hereunder preclude any other exercise, or the further
exercise, of any other right, power or privilege hereunder. The rights and
remedies herein expressly provided are cumulative and not exclusive of any
rights or remedies which the Collateral Agent would otherwise have.
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IN WITNESS WHEREOF, the Consenting Party, the Partnership and the
Collateral Agent have caused this Consent to be duly executed and delivered by
their respective officers thereunto duly authorized as of the date first above
written.
X.X. Xxxxxx Company
By: /s/ XXXXXX X. XXXX
-----------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
TENASKA GEORGIA PARTNERS, L.P.
By: TENASKA GEORGIA, INC.
Managing General Partner
By: /s/ XXXXXXX X. XXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President of Finance &
Treasurer
THE CHASE MANHATTAN BANK, as Collateral Agent
By: /s/ XXXXXXX X. XXXXXXX
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Vice President
Exhibit A to
CONSENT AND AGREEMENT
PAYMENT INSTRUCTIONS
Chase Manhattan Bank ABA# 021 000 021
000 Xxxx 00xx Xxxxxx, 00xx Xx. Account Number: 507 891325
NY, NY 10001 Account Name: The Chase Manhattan Bank, as
Collateral Agent
Tenaska Georgia Partners, L.P.,
Concentration Account
Vista Account Number: 294570000
For Further Credit to: Trust Acct. No. C29457, The Chase
Manhattan Bank, as Collateral Agent, Tenaska Georgia -
Construction Fund. Attention: X. Xxxxxxx
Exhibit B to
CONSENT AND AGREEMENT
APPROVALS
I. None
II. None
Exhibit C to
CONSENT AND AGREEMENT
FORM OF OPINION OF COUNSEL
November _____, 1999
[OTHER ADDRESSEE]
Tenaska Georgia Partners, L.P.
0000 Xxxxx 000xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Re: Natural gas-fired electric generating facility located in
Heard County, Georgia (the "Project")
Ladies and Gentlemen:
I and other staff attorneys have acted as counsel to X. X. Xxxxxx
Company, a Delaware corporation (the "Guarantor"), in connection with the
Project to be constructed by Tenaska Georgia Partners, L.P., a Delaware limited
partnership ("TGP"), for which the Guarantor has entered into a Guaranty of
Obligations, dated ________, 1999, (the "Guaranty") in favor of TGP, to induce
TGP to enter into an Engineering, Procurement and Construction Agreement, dated
as of September 15, 1999 with Xxxxxx Construction Corporation. This opinion is
delivered to you pursuant to the Bond Purchase Agreement dated _______________
(the "Bond Purchase Agreement") by and among TGP, Xxxxxxx, Sachs & Co., and the
purchaser of the taxable bonds thereunder (the "Bondholders").
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of the following:
(1) the Guaranty;
(2) the Consent and Agreement of Xxxxxx, dated ________
("Consent");
(3) the Certificate of Incorporation and Bylaws of the
Guarantor; and
(4) the resolutions authorizing the execution and delivery
of the Guaranty and Consent by the Guarantor.
The documents referred to in items (iii) and (iv) above are hereinafter
collectively referred to as the "Governing Documents" and the Guaranty and the
Consent are hereinafter collectively referred to as the "Documents". In
addition, we have examined and are familiar with originals or copies, certified
or otherwise identified to our satisfaction, of such other documents as we have
deemed necessary or appropriate as a basis for the opinions set forth below.
In our examination we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals, the conformity
to original documents of all documents submitted to us as certified or
photostatic copies, and the authenticity of the originals of such copies. In
rendering the opinions expressed below, we have further assumed, without any
independent investigation or verification of any kind, that each Document we
have examined is the valid and binding obligation of each party thereto other
than the Guarantor.
I am admitted to the bar of the State of Texas. I express no opinion as
to the law of any jurisdiction other than (i) the laws of the State of Texas and
(ii) the federal laws of the United States of America and (iii) the laws of the
State of Delaware pertaining to corporations and to limited partnerships.
Based upon the foregoing and subject to the limitations,
qualifications, exceptions and assumptions set forth herein, I am of the opinion
that:
1. The Guarantor is a Delaware corporation, duly organized,
validly existing and in good standing under the laws of
the State of Delaware. The Guarantor is duly qualified
to transact business in each jurisdiction in which it
owns or leases real property or in which the nature of
its business requires it to be so qualified.
2. The Guarantor has full power and authority to enter
into, deliver and perform its obligations under each of
the Documents.
3. The Guarantor has taken all necessary corporate action
to authorize the execution, delivery and performance by
it of each Document.
4. The Guarantor has duly executed and delivered each
Document.
5. Each Document constitutes the valid and binding
obligation of the Guarantor enforceable against the
Guarantor in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar
laws affecting enforcement of creditors' rights
generally and by general principles of equity
(regardless of whether enforcement is sought in a
proceeding in equity or at law).
6. The execution, delivery and performance by the Guarantor
of the Documents will not: (i) contravene any applicable
provision of any law, regulation, ruling, order or
decree of any governmental authority to which or by
which the Guarantor or any of its property or assets is
subject or bound or (ii) violate any provision of the
Governing Documents of the Guarantor. The execution,
delivery and performance by the Guarantor of the
Documents do not and will not, to the best of our
knowledge after due inquiry, conflict with, result in
any breach of, or constitute a default under, or result
in the creation or imposition of (or the obligation to
create or impose) any lien or encumbrance upon any of
the property or assets of the Guarantor pursuant to any
provision of any securities issued by the Guarantor, or
any indenture, mortgage, deed of trust, contract,
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undertaking, document, instrument or other agreement to
which the Guarantor is a party or by which it or any of
its property or assets is bound.
7. No consent, order, authorization, waiver, approval or
any other action, or registration, declaration or filing
with, any person, board or body, public or private, is
required to be obtained by the Guarantor in connection
with the execution, delivery or performance of the
Documents or the consummation of the transactions
contemplated thereby.
8. To the best of our knowledge after due inquiry, there
are no pending or threatened actions or proceedings
affecting the Guarantor or any of its properties or
assets that individually or in the aggregate could
prohibit or limit in any way the execution, delivery and
performance by the Guarantor of any of the Documents.
This opinion is being furnished only to the Addressees, and their
respective successors and assigns and is solely for the benefit of such parties.
Very truly yours,
--------------------
Attorney
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