EXHIBIT 10.32.4
This instrument, when recorded,
should be returned to:
Robert N. Farrar
Attorney at Law
The Carnegie Building
607 Broad Street, Suite 141
Rome, Georgia 30161-3059
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ROCKY MOUNTAIN AGREEMENTS ASSIGNMENT AND
ASSUMPTION AGREEMENT
(P1)
Dated as of December 30, 1996
between
OGLETHORPE POWER CORPORATION
(AN ELECTRIC MEMBERSHIP GENERATION
& TRANSMISSION CORPORATION),
as Assignor
and
SUNTRUST BANK, ATLANTA,
not in its individual capacity but
solely as Co-Trustee,
as Assignee
ROCKY MOUNTAIN
PUMPED STORAGE HYDROELECTRIC PROJECT
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ROCKY MOUNTAIN AGREEMENTS
ASSIGNMENT AND ASSUMPTION AGREEMENT (P1)
This ROCKY MOUNTAIN AGREEMENTS ASSIGNMENT AND ASSUMPTION AGREEMENT (P1),
dated as of December 30, 1996 (as amended, supplemented or otherwise modified
from time to time in accordance with the provisions hereof, this "Rocky Mountain
Agreements Assignment"), between OGLETHORPE POWER CORPORATION (AN ELECTRIC
MEMBERSHIP GENERATION & TRANSMISSION CORPORATION), an electric membership
corporation organized under the laws of the State of Georgia (together with its
successors and permitted assigns, the "Assignor"), and SUNTRUST BANK, ATLANTA, a
state banking corporation, not in its individual capacity but solely as
Co-Trustee under the Trust Agreement (P1), dated as of December 30, 1996, with
the Owner Trustee and the Owner Participant (together with its successors and
permitted assigns, the "Assignee").
WHEREAS, the Assignor and Georgia Power Company, a corporation organized
under the laws of the State of Georgia (together with its successors and
permitted assigns, Georgia Power") own the Rocky Mountain Site as tenants in
common under Georgia law;
WHEREAS, by the Rocky Mountain Agreements, the Assignor and Georgia
Power established their respective rights and obligations as tenants in common
of the Rocky Mountain Site and of all improvements thereafter to be constructed,
and all personal property thereafter to be situated, on the Rocky Mountain Site.
Such improvements and personal property owned by the Assignor and Georgia Power
as tenants in common under Georgia law include the Facility;
WHEREAS, as tenants in common of such real and personal property, the
Assignor and Georgia Power hold a 74.61% and 25.39% undivided interest,
respectively, in such real and personal property, including the right to
nonexclusive possession of all such real and personal property, subject to the
rights of the other to nonexclusive possession and the terms and conditions of
the Rocky Mountain Agreements;
WHEREAS, by this Rocky Mountain Agreements Assignment, the Assignor will
assign the Assigned Rocky Mountain Interests to the Assignee for a term which is
coterminous with the term of the Head Lease.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
agreements herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. DEFINITIONS.
Capitalized terms used in this Rocky Mountain Agreements Assignment,
including the recitals, and not otherwise defined herein shall have the
respective meanings specified in Appendix A to the Participation Agreement (P1),
dated as of December 30, 1996, among the
Assignor, the Assignee, Fleet National Bank, not in its individual capacity but
solely as Owner Trustee under the Trust Agreement (the "Owner Trustee"), Rocky
Mountain Leasing Corporation, a Delaware corporation ("RMLC"), Philip Morris
Capital Corporation, a Delaware corporation (the "Owner Participant") and
Utrecht-America Finance Co. The general provisions of Appendix A shall apply to
terms used in this Rocky Mountain Agreements Assignment and specifically defined
herein.
SECTION 2. ASSIGNMENT OF ASSIGNED ROCKY MOUNTAIN INTERESTS TO ASSIGNEE.
The Assignor hereby assigns the Assigned Rocky Mountain Interests to the
Assignee. The assignment effected by this Section 2 shall become effective on
and as of the Closing Date and shall terminate on the expiration or earlier
termination of the Head Lease Term.
SECTION 3. ASSUMPTION BY ASSIGNEE.
The Assignee hereby assumes, and agrees to perform, any and all
liabilities and obligations of the Assignor incurred with respect to the
Assigned Rocky Mountain Interests, recourse with respect to such obligations to
be limited to the Assignee's interest in the Undivided Interest with respect to
any obligations based on circumstances occurring prior to the termination of the
Facility Lease. This assumption shall terminate (except with respect to any
liability or obligation which has accrued prior to such termination) on the
expiration or earlier termination of the Head Lease Term. Simultaneously
herewith, RMLC is executing and delivering the Rocky Mountain Agreements
Re-assignment pursuant to which RMLC will assume and agree to perform any and
all liabilities and obligations of the Assignee incurred with respect to the
Assigned Rocky Mountain Interests resulting from the Assignee's assumption of
the liabilities and the obligations of the Assignor under this Section 3. The
Assignor acknowledges such assumption and agreement by RMLC and agrees that
during the effective period of the assumption and agreement by RMLC pursuant to
the Rocky Mountain Agreements Re-assignment, (i) by entering into the Facility
Lease and the Rocky Mountain Agreements Re-assignment, the Assignee shall be
deemed to have complied with all duties or obligations with respect to the
liabilities or obligations assumed or agreed to be performed by the Assignee in
respect of the Assigned Rocky Mountain Interests under this Section 3, (ii) any
default by RMLC in the performance of the liabilities and obligations assumed
and agreed to be performed by RMLC in accordance with the Rocky Mountain
Agreements Re-assignment, shall not be (or be deemed to be) a default by the
Assignee in the performance of the liabilities and obligations assumed and
agreed to be performed by the Assignee under this Section 3 and (iii) the
consequences of any action or inaction on the part of RMLC (other than full and
complete performance) in the performance of the liabilities and obligations
assumed and agreed to be performed by RMLC in accordance with the Rocky Mountain
Agreements Re-assignment, or otherwise with respect to the Assigned Rocky
Mountain Interests, shall not be attributed to the Assignee (including, without
limitation, any Liens, incurred, assumed or suffered to exist by RMLC on the
Assigned Rocky Mountain Interests).
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SECTION 4. NONTERMINABILITY.
Subject to Section 2 hereof notwithstanding anything herein or otherwise
to the contrary, neither the rights of the Assignee nor the obligations of the
Assignor under this Rocky Mountain Agreements Assignment shall be terminated,
extinguished, diminished, lost or otherwise impaired by any circumstances of any
character or for any reason whatsoever, whether or not the same involves the
loss of all or any part of the interest assigned by this Rocky Mountain
Agreements Assignment, including, without limitation, any of the following
circumstances or reasons: (a) any damage to or loss or destruction of all or any
part of the Facility for any reason whatsoever and of whatever duration, (b) the
condemnation, requisition (by eminent domain or otherwise), seizure or other
taking of title or use of all or any part of the Facility by any Governmental
Entity or otherwise, (c) any prohibition, limitation or restriction on the use
by any Person of all or any part of its property or the interference with such
use by any Person, or any foreclosure or deed in lieu of foreclosure of the
Oglethorpe Mortgage, or any termination of the interests created by this Rocky
Mountain Agreements Assignment as a result thereof by operation of law or
contract, or any eviction by paramount title or otherwise, (d) any inadequacy,
incorrectness or failure of the description of the Facility or the Assigned
Rocky Mountain Interests or any part thereof or any rights or property in which
an interest is intended to be granted or conveyed by this Rocky Mountain
Agreements Assignment, (e) the insolvency, bankruptcy, reorganization or similar
proceedings by or against the Assignor, the Assignee or any other Person, (f)
the failure by the Assignee to comply with any provision hereof or of any other
Operative Document or (g) any other reason whatsoever, whether similar or
dissimilar to any of the foregoing.
SECTION 5. TERMINATION OPTION.
After the expiration or earlier termination of the Facility Lease Term,
the Assignee may terminate this Rocky Mountain Agreements Assignment upon thirty
days prior written notice to the Assignor; provided, however, that the Assignee
shall simultaneously terminate the Head Lease pursuant to Section 3.5 thereof.
SECTION 6. SECURITY FOR ASSIGNEE'S OBLIGATION TO THE LENDER.
In the order to secure the Secured Indebtedness, the Assignee will by
the Loan Agreement grant and assign a Lien, and by the Deed to Secure Debt
convey security title, to the Lender in, to and under this Rocky Mountain
Agreements Assignment and the Facility Lessor's Rocky Mountain Interest (other
than Excepted Payments and Excepted Rights). The Assignor hereby consents to
such assignment and the creation of such Lien and security title and
acknowledges receipt of copies of the Loan Agreement and the Deed to Secure
Debt, it being understood that such consent shall not affect any requirement or
the absence of any requirement for any consent under any other circumstances.
Unless and until the Assignor shall have received written notice from the Lender
that the Lien of the Loan Agreement and
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the security title of the Deed to Secure Debt have been fully terminated, the
Lender shall have the right to exercise the rights of the Assignee under this
Rocky Mountain Agreements Assignment to the extent set forth in and subject in
each case to the exceptions set forth in the Loan Agreement or the Deed to
Secure Debt.
SECTION 7. MISCELLANEOUS.
Section 7.1. Amendments and Waivers. No term, covenant, agreement or
condition of this Rocky Mountain Agreements Assignment may be terminated,
amended or compliance therewith waived (either generally or in a particular
instance, retroactively or prospectively) except by an instrument or instruments
in writing executed by each party hereto.
Section 7.2. Notices. Unless otherwise expressly specified or permitted
by the terms hereof, all communications and notices provided for herein to a
party hereto shall be in writing or by a telecommunications device capable of
creating a written record, and any such notice shall become effective (a) upon
personal delivery thereof, including, without limitation, by overnight mail or
courier service, (b) in the case of notice by United States mail, certified or
registered, postage prepaid, return receipt requested, upon receipt thereof, or
(c) in the case of notice by such a telecommunications device, upon transmission
thereof, provided such transmission is promptly confirmed by either of the
methods set forth in clause (a) or (b) above, in each case addressed to such
party and copy party at its address set forth below or at such other address as
such party or copy party may from time to time designate by written notice to
the other party:
If to the Assignor:
Oglethorpe Power Corporation
2100 East Exchange Place
Tucker, Georgia 30085-1349
Facsimile No.: (770) 270-7325
Telephone No.: (770) 270-7940
Attention: Vice President - Finance
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If to the Assignee:
SunTrust Bank, Atlanta
P.O. Box 4625
Mail Code 008
Atlanta, Georgia 30302
Facsimile No.: (404) 332-3966
Telephone No.: (404) 588-7813
Attention: Corporate Trust Department
with copies to the Owner Participant:
Philip Morris Capital Corporation
800 Westchester Avenue
Rye Brook, New York 10573-1301
Facsimile No.: (914) 335-1297
Telephone No.: (914) 335-5000
Attention: Vice President, Leasing with a copy to
Director, Portfolio Administration
to the Owner Trustee:
Fleet National Bank
777 Main Street
Hartford, Connecticut 06115
Facsimile No.: (860) 986-7920
Telephone No.: (860) 986-4540
Attention: Corporate Trust Administration
and to the Lender:
Utrecht-America Finance Co.,
c/o Rabobank Nederland, New York Branch
245 Park Avenue
New York, New York 10167-0062
Facsimile No.: (212) 916-7880
Telephone No.: (212) 916-7864
Attention: General Counsel's Office
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Section 7.3. Survival. Except as expressly set forth herein, the
warranties and covenants made by each party hereto shall not survive the
expiration or termination of this Rocky Mountain Agreements Assignment.
Section 7.4. Successors and Assigns.
(a) This Rocky Mountain Agreements Assignment shall be binding
upon and shall inure to the benefit of, and shall be enforceable by, the parties
hereto and their respective successors and assigns as permitted by and in
accordance with the terms hereof.
(b) Except as expressly provided herein or in any other
Operative Document, the Assignor may not assign or transfer any of its interests
herein without the consent of the Assignee. The Assignor expressly agrees that
the Assignee shall be permitted to assign its rights under this Rocky Mountain
Agreements Assignment without the written consent of the Assignor (i) to RMLC
pursuant to the Rocky Mountain Agreements Re-assignment and (ii) in connection
with a transfer of the Facility Lessor's Rocky Mountain Interest pursuant to the
terms of the Facility Lease and the Head Lease. Except as expressly provided in
the Operative Documents, the Assignee may not assign its interests herein prior
to the expiration or early termination of the Facility Lease Term without the
consent of the Assignor.
Section 7.5. Governing Law. This Rocky Mountain Agreement Assignment
shall be in all respects governed by and construed in accordance with the laws
of the State of New York including all matters of construction, validity and
performance, except to the extent the law of the State of Georgia is mandatorily
applicable.
Section 7.6. Severability. If any provision hereof shall be invalid,
illegal or unenforceable under Applicable Law, the validity, legality or
enforceability of the remaining provisions hereof shall not be affected or
impaired thereby.
Section 7.7. Counterparts. This Rocky Mountain Agreements Assignment may
be executed in any number of counterparts, each executed counterpart
constituting an original but all together only one instrument.
Section 7.8. Headings. The headings of the sections of this Rocky
Mountain Agreements Assignment are inserted for purposes of convenience only and
shall not be construed to affect the meaning or construction of any of the
provisions hereof.
Section 7.9. Further Assurances. Each party hereto will promptly and
duly execute and deliver such further documents to make such further assurances
for and take such further action reasonably requested by any party to whom such
first party is obligated, all as may be reasonably necessary to carry out more
effectively the intent and purpose of this Rocky Mountain Agreements Assignment.
Section 7.10. Effectiveness of Assignment and Assumption. This Rocky
Mountain Agreements Assignment has been dated as of the date first above written
for convenience only.
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This Rocky Mountain Agreements Assignment shall be effective on the date of
execution and delivery by each of the Assignee and the Assignor.
Section 7.11. Limitation of Liability. It is expressly understood and
agreed by the parties hereto that (a) this Rocky Mountain Agreements Assignment
is executed and delivered by SunTrust Bank, Atlanta, not individually or
personally but solely as Co-Trustee under the Trust Agreement, in the exercise
of the powers and authority conferred and vested in it, (b) each of the
representations, undertakings and agreements herein made on the part of the
Co-Trustee is made and intended not as personal representations, undertakings
and agreements by SunTrust Bank, Atlanta, but is made and intended for the
purpose for binding only the Co-Trustee, (c) nothing herein contained shall be
construed as creating any liability on SunTrust Bank, Atlanta, individually or
personally, to perform any covenant either expressed or implied contained
herein, all such liability, if any, being expressly waived by the Assignor or by
any Person claiming by, through or under the Assignor and (d) under no
circumstances shall SunTrust Bank, Atlanta be personally liable for the payment
of any indebtedness or expenses of the Co-Trustee or be liable for the breach or
failure of any obligation, representation, warranty or covenant made or
undertaken by the Co-Trustee under this Rocky Mountain Agreements Assignment. In
addition, each of the parties hereto acknowledges and agrees that the Co-Trustee
has been appointed by the Owner Participant and Owner Trustee for the purpose of
exercising those trust powers in the State of Georgia which may not be exercised
by the Owner Trustee under applicable law, and that, except as otherwise
required by applicable law, the Co-Trustee shall not be obligated to take any
action hereunder unless expressly directed in writing by the Owner Trustee or
the Owner Participant in accordance with the terms of the Trust Agreement.
Section 7.12. Measuring Life. If and to the extent that any of the
rights and privileges granted under this Rocky Mountain Agreements Assignment,
would, in the absence of the limitation imposed by this sentence, be invalid or
unenforceable as being in violation of the rule against perpetuities or any
other rule or law relating to the vesting of interests in property or the
suspension of the power of alienation of property, then it is agreed that
notwithstanding any other provision of this Rocky Mountain Agreements
Assignment, such options, rights and privileges, subject to the respective
conditions hereof governing the exercise of such options, rights and privileges,
will be exercisable only during (a) the longer of (i) a period which will end
twenty-one (21) years after the death of the last survivor of the descendants
living on the date of the execution of this Rocky Mountain Agreements
Assignment, of the following Presidents of the United States: Franklin D.
Roosevelt, Harry S. Truman, Dwight D. Eisenhower, John F. Kennedy, Lyndon B.
Johnson, Richard M. Nixon, Gerald R. Ford, James E. Carter, Ronald W. Reagan,
George Bush and William J. Clinton or (ii) the period provided under the Uniform
Statutory Rule Against Perpetuities or (b) the specific applicable period of
time expressed in this Rocky Mountain Agreements Assignment, whichever of (a)
and (b) is shorter.
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IN WITNESS WHEREOF, the parties hereto have caused this Rocky
Mountain Agreements Assignment to be duly executed by their respective officers
thereunto duly authorized.
OGLETHORPE POWER CORPORATION
(AN ELECTRIC MEMBERSHIP
GENERATION & TRANSMISSION
CORPORATION),
as Assignor
By: /s/ T. D. Kilgore
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Name: T. D. Kilgore
Title: President and CEO
Date: 12/30/96
Signed and delivered
in the presence of:
/s/ Gary M. Bullock
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Unofficial Witness
/s/ Patricia R. Bouldin
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Notary Public
My Commission Expires: March 16, 1998
[Notary Seal]
SUNTRUST BANK, ATLANTA, not in its
individual capacity but solely as Co-Trustee
under the Trust Agreement,
as Assignee,
By: /s/ Bryan Echols
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Name: Bryan Echols
Title: Vice President
Date: 12/30/96
By: /s/ Sandra Thompson
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Name: Sandra Thompson
Title: Vice President
Date: 12/30/96
Signed and delivered
in the presence of:
/s/ Leonard Scott
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Unofficial Witness
/s/ David M. Boehm
- -------------------------------
Notary Public
My Commission Expires: March 16, 1998
[Notary Seal]
SCHEDULE TO EXHIBIT 10.32.4
ROCKY MOUNTAIN AGREEMENTS ASSIGNMENT AND ASSUMPTION AGREEMENT (P1)
The following table indicates for each transaction the name of the
corresponding Owner Participant:
Agreement Date Owner Participant
--------- ----------------- --------------------------------------
P1 December 30, 1996 Philip Morris Capital Corporation
P2 January 3, 1997 Philip Morris Capital Corporation
F3 December 30, 1996 First Chicago Leasing Corporation
F4 December 30, 1996 First Chicago Leasing Corporation
N5 December 30, 1996 NationsBanc Leasing & R.E. Corporation
N6 January 3, 1997 NationsBanc Leasing & R.E. Corporation