Exhibit 4.17
EXECUTION COPY
CONSENT TO ASSIGNMENT
THIS CONSENT TO ASSIGNMENT (this "Consent") is executed as of
this 10th day of November, 1999, by Willbros Engineers, Inc., 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 to
any such person and each other person that becomes a secured party under any
Financing Document (collectively, the "Senior Parties") will be secured by a
certain Security Agreement, 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, the Partnership and the Consenting Party have entered
into that certain Engineering Procurement and Construction Contract, dated as of
September 23, 1999 (as amended, restated, modified or otherwise supplemented
from time to time in accordance with the terms thereof, the "Assigned
Agreement");
WHEREAS, the Partnership has notified the Consenting Party
that all of the Partnership's right, title and interest in, to, and under the
Assigned Agreement is to be assigned to the Collateral Agent as security
pursuant to one or more of the Security Documents;
WHEREAS, it is a condition precedent to the issuance of the
Bonds and the other Financing Documents that the Consenting Party execute and
deliver this Consent for the benefit of the Senior Parties;
NOW, THEREFORE, 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:
1. CONSENT TO ASSIGNMENT. Subject to compliance by Collateral Agent
with Section 2 hereof, the Consenting Party (a) consents in all respects to the
pledge and assignment, for collateral security purposes, to the Collateral Agent
of all of Partnership's right, title and interest in, to and under the Assigned
Agreement and (b) acknowledges the right, but not the obligation, of the
Collateral Agent, in the exercise of the Collateral Agent's rights and remedies
under the Security Documents and to exercise all rights of Partnership in
accordance with the Assigned Agreement.
2. PERFORMANCE BY THE CONSENTING PARTY AND EXERCISE OF COLLATERAL
AGENT'S RIGHTS UNDER SECURITY DOCUMENTS. (a) 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, provided that the
Consenting Party is timely paid according to the Assigned Agreement.
(b)The Consenting Party agrees that in the event of a default
by the Partnership in the performance of any of its obligations under the
Assigned Agreement, or upon the occurrence or non-occurrence of any event or
condition under the Assigned Agreement which would immediately or with the
passage of any applicable grace period or the giving of notice, or both, enable
the Consenting Party to terminate or suspend its obligations or exercise any
other right or remedy under the Assigned Agreement or under applicable law
(hereinafter a "default"), the Consenting Party will continue to perform its
obligations under the Assigned Agreement and will not exercise any such right or
remedy until it first gives prompt written notice of such default to the
Collateral Agent and affords the Collateral Agent, the Collateral Agent's
designee and the Senior Parties a period of at least five (5) days (or if such
default is a non-monetary default, such longer period not to exceed ten (10)
days as is required so long as any such party has commenced and is diligently
pursuing appropriate action to cure such default) from receipt of such notice to
cure such default; provided, however, that if any such party is prohibited from
curing any such default by any process, stay or injunction issued by any
governmental authority or pursuant to any bankruptcy or insolvency proceeding
involving the Partnership, then the time periods specified in this Section 2 for
curing a default shall be extended for the period of such prohibition.
(c) (i) 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.
(ii) the Consenting Party will not without prior written
notice to the Collateral Agent assign or otherwise transfer, except by
subcontracts in the ordinary course, any of its right, title and interest in the
Assigned Agreement.
(d) 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 the same as the terms of the Assigned
Agreement.
(e) 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. The Consenting Party agrees to deliver to
the Collateral Agent, concurrently with the delivery thereof to the Partnership,
a copy of each notice of default or demand given by the Consenting Party
pursuant to the Assigned Agreement.
3. LIMITED LIABILITY. The Consenting Party acknowledges and agrees that
neither the Collateral Agent, the Collateral Agent's designee nor the Senior
Parties shall have any liability or obligation under the Assigned Agreement as a
result of this Consent, the Security Documents or otherwise, and neither the
Collateral Agent, the Collateral Agent's designee nor the Senior
Parties shall be obligated or required to (a) perform any of the Partnership's
obligations under the Assigned Agreement, except, in the case of the Collateral
Agent or the Collateral Agent's designee, during any period in which the
Collateral Agent or the Collateral Agent's designee is a Substitute Owner
pursuant to Section 2 hereof, in which case (i) the obligations of such
Substitute Owner shall be no more than that of the Partnership under such
Assigned Agreement and (ii) the sole recourse of the Consenting Party shall be
to such Substitute Owner's interest in the Project, or (b) take any action to
collect or enforce any claim for payment assigned under the Security Documents.
4. NO MODIFICATION OF THE CONSENTING PARTY'S RIGHTS. The parties hereto
acknowledge and agree that neither the execution of this Consent nor any actions
taken by the Consenting Party hereunder (including any forbearance of the
Consenting Party as against Collateral Agent) shall in any way, limit, modify or
otherwise affect the Consenting Party's rights or remedies under the Assigned
Agreement or otherwise.
5. NO DEFAULTS, AMENDMENTS OR ASSIGNMENTS. The Consenting Party
acknowledges that, to the best of its knowledge, as of the date of execution of
this Consent, (a) neither party to the Assigned Agreement is in default of any
of its respective obligations thereunder, (b) the Assigned Agreement has not
been amended, modified or supplemented in any manner and (c) other than as
contemplated hereby in favor of Collateral Agent, the Consenting Party has no
notice of, and has not consented to, any previous assignment of all or any part
of the rights of either party under the Assigned Agreement. The statements made
by the Consenting Party pursuant to this Section 5 are as of the date of this
Consent and the Consenting Party shall have no continuing obligation to notify
Collateral Agent of the occurrence of events or circumstances which would render
such statements inaccurate or untrue.
6. CONSENTS AND APPROVALS. To the best of its knowledge after due
inquiry, the Consenting Party represents and warrants as of the date of this
Consent that 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.
7. PAYMENTS. The Consenting Party will pay all amounts, if any, payable
by it under the Assigned Agreement, in the manner required by the Assigned
Agreement. 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 permitted under the
Assigned Agreement.
8. TERMINATION. (a) The Consenting Party's obligations hereunder are
absolute and unconditional, and the Consenting Party has no right, and shall
have no right, to terminate this Consent or to be released, relieved or
discharged from any obligation or liability hereunder until all obligations
under the Financing Documents have been satisfied in full, notice of which shall
be provided by the Collateral Agent or upon termination of the Assigned
Agreement.
(b) The Consenting Party hereby acknowledges that the
Partnership may from time to time obtain refinancing for the Project (including
privately or publicly placed bonds or
notes), and the Consenting Party agrees that it will promptly upon request
execute in favor of the lenders providing such refinancing a consent to
assignment containing terms and conditions similar to those terms and conditions
contained in this Consent.
9. MISCELLANEOUS.
(a) NOTICES. All notices and other communications hereunder
shall be in writing, shall be deemed given upon receipt thereof by the party or
parties to whom such notice is addressed, shall refer on their face to the
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:
Willbros Engineers, Inc.
0000 Xxxx 00xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxx Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to Partnership:
Tenaska Georgia Partners, L.P.
0000 Xxxxx 000xx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to the Collateral Agent:
The Chase Manhattan Bank
Capital Markets Fiduciary Services
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
International & Project Finance Service Delivery
Telephone: (000) 000-0000
Fax: (000) 000-0000
The above parties may, by notice given hereunder, designate any further or
different addresses to which subsequent notices or other communications shall be
sent.
(b) GOVERNING LAW. THIS CONSENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE PRINCIPLES
THEREOF RELATING TO CONFLICTS OF LAW EXCEPT SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW).
(c) COUNTERPARTS. This Consent may be executed in any number
of counterparts and by the different parties hereto on separate counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall together constitute one and the same instrument.
(d) HEADINGS DESCRIPTIVE. The headings of the several sections
and subsections of this Consent are inserted for convenience only and shall not
in any way affect the meaning or construction of any provision of this Consent.
(e) AMENDMENT; WAIVER. Neither this Consent nor any of the
terms hereof may be terminated, amended, supplemented, waived or modified except
by an instrument in writing signed by the parties hereto.
(f) SUCCESSORS AND ASSIGNS. This Consent may not be assigned
without the prior written consent of the other party, which consent shall not be
unreasonably withheld. This Consent shall be binding upon the parties hereto and
their permitted successors and assigns and shall inure to the benefit of the
parties, their designees and their respective permitted successors and assigns.
(g) FURTHER ASSURANCES. The parties hereto hereby agree to
execute and deliver all such instruments and take all such actions as may be
reasonably necessary to effectuate fully the purposes of this Consent.
(h) NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on the
part of either party hereto in exercising any right, power or privilege
hereunder and no course of dealing between the parties hereto shall operate as a
waiver thereof, nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other exercise, or the further exercise, of any
other right, power or privilege hereunder. The rights and remedies herein
expressly provided are cumulative and not exclusive of any rights or remedies
which either party hereto would otherwise have.
(i) WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE ALL RIGHT OF TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN
CONNECTION WITH THIS CONSENT; PROVIDED THAT, THIS WAIVER SHALL NOT APPLY TO ANY
ACTION, PROCEEDING OR COUNTERCLAIM SOLELY ARISING OUT OF OR BASED, IN ANY WAY,
UPON THE ASSIGNED AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Consent to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first above written.
THE CHASE MANHATTAN BANK Willbros Engineers, Inc.
as Collateral Agent
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxxxx
------------------------------- ----------------------------
Name: Xxxxxxx X. Xxxxxxx Name: Xxxxx X. Xxxxxxx
------------------------------ --------------------------
Title: Assistant Vice President Title: President
----------------------------- -------------------------
Date: Date: November 2, 1999
------------------------------ -------------------------
TENASKA GEORGIA PARTNERS, L.P.
by Tenaska Georgia, Inc.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxx
----------------------------------------
Title: Vice President of Finance & Treasurer
---------------------------------------
Date:
----------------------------------------
(EXH.4.18)63185626V3-WILLBROSENGINEERSCONSENT2
