EXHIBIT 10.32.7
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 RE-ASSIGNMENT AND
ASSUMPTION AGREEMENT
(P1)
Dated as of December 30, 1996
between
SUNTRUST BANK, ATLANTA,
not in its individual capacity but
solely as Co-Trustee,
as Assignor
and
ROCKY MOUNTAIN LEASING CORPORATION,
as Assignee
ROCKY MOUNTAIN PUMPED
STORAGE HYDROELECTRIC PROJECT
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ROCKY MOUNTAIN AGREEMENTS
RE-ASSIGNMENT AND ASSUMPTION AGREEMENT (P1)
This ROCKY MOUNTAIN AGREEMENTS RE-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 Re-assignment"), between 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 "Assignor") and ROCKY MOUNTAIN LEASING CORPORATION, a
corporation organized under the laws of the State of Delaware (together with its
successors and permitted assigns, the "Assignee").
WHEREAS, 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 assigns,
"Oglethorpe") and Georgia Power Company, a corporation organized under the laws
of the State of Georgia ("Georgia Power") own the Rocky Mountain Site as tenants
in common under Georgia law;
WHEREAS, by the Rocky Mountain Agreements, Oglethorpe 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 Oglethorpe and Georgia Power as
tenants in common under Georgia law include the Facility;
WHEREAS, as tenants in common of such real and personal property,
Oglethorpe 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, pursuant to the Rocky Mountain Agreements Assignment, Oglethorpe
has assigned to the Assignor the Assigned Rocky Mountain Interests for a term
coterminous with that of the Head Lease; and
WHEREAS, by this Rocky Mountain Agreements Re-assignment, the Assignor
will assign the Assigned Rocky Mountain Interests to the Assignee for a term
coterminous with that of the Facility 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 Re-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 Oglethorpe, the Assignor, the Assignee,
Fleet National Bank, not in its individual capacity but solely as Owner Trustee
under the Trust Agreement (the "Owner Trustee"), 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 Re-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 Facility 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. 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 Facility Lease
Term. Simultaneously herewith, Oglethorpe is executing and delivering the Rocky
Mountain Agreements Second Re-assignment pursuant to which Oglethorpe 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 Oglethorpe and agrees that during the effective period of the
assumption and agreement by Oglethorpe pursuant to the Rocky Mountain Agreements
Second Re-assignment, (i) by entering into the Rocky Mountain Agreements Second
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 Oglethorpe in the performance of the
liabilities and obligations assumed and agreed to be performed by Oglethorpe in
accordance with the Rocky Mountain Agreements Second 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 Oglethorpe (other than full and complete performance) in the performance
of the liabilities and obligations assumed and agreed to be performed by
Oglethorpe in accordance with the Rocky Mountain Agreements
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Second 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 Oglethorpe on
the Assigned Rocky Mountain Interests).
SECTION 4. AMENDMENTS TO AND ACTIONS UNDER THE ROCKY MOUNTAIN AGREEMENTS.
The Assignee agrees that it will not, without the prior written consent of
the Assignor and the Lender which consent may not be unreasonably withheld,
amend, grant a waiver or consent under, or take any action or omit to take any
action under the Rocky Mountain Ownership Agreement or the Rocky Mountain
Operating Agreement, which could materially adversely affect the value, utility
or useful life of the Facility or the interest of the Assignor or the Owner
Participant therein, unless such amendment, waiver, consent, action or inaction
is required by Applicable Law. The parties hereto agree that any grant of a
waiver by Assignee of an assignment by Georgia Power of its independent dispatch
rights under Section 7.02 of the Rocky Mountain Operating Agreement without an
assignment of Oglethorpe's independent dispatch rights under such section to the
Assignor could materially adversely affect the interest of the Owner
Participant. The Assignee agrees that it will not grant any consent required
pursuant to Section 4 of the Rocky Mountain Agreements Second Re-assignment
without the prior written consent of the Assignor and the Lender.
SECTION 5. SECURITY FOR ASSIGNOR'S OBLIGATION TO THE LENDER
In order to secure the Secured Indebtedness, the Assignor will assign for
security purposes its rights under this Rocky Mountain Agreements Re-assignment.
The Assignee hereby acknowledges that the Assignor's security interest in this
Rocky Mountain Agreements Re-assignment will be assigned by the Assignor to the
Lender pursuant to the Loan Agreement and the Deed to Secure Debt. The Assignee
hereby consents to such assignment and the creation of such Liens 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 Assignee shall have received written notice from the Lender
that the Lien of the Loan Agreement and the security title of the Deed to Secure
Debt have been fully released, the Lender under the Loan Agreement and the Deed
to Secure Debt shall have the rights of the Assignor under this Rocky Mountain
Agreements Re-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 6. MISCELLANEOUS.
Section 6.1. Amendments and Waivers. No term, covenant, agreement or
condition of this Rocky Mountain Agreements Re-assignment may be terminated,
amended or compliance
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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 6.2. 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 clauses (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 parties:
If to the Assignor:
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:
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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
If to the Assignee:
Rocky Mountain Leasing Corporation
c/o Corporation Trust Center
1209 Orange Street, Room 123
Wilmington, Delaware 19801
Facsimile No.: (302) 658-5459
Telephone No.: (302) 777-0250
with copies to:
Sutherland, Asbill & Brennan, L.L.P.
999 Peachtree Street, N.E.
Atlanta, Georgia 30309-3996
Facsimile No.: (404) 853-8806
Telephone No.: (404) 853-3000
Attention: Cada T. Kilgore, III
and to the Lender at the address set forth above.
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Section 6.3. 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 Re-assignment.
Section 6.4. Successors and Assigns.
(a) This Rocky Mountain Agreements Re-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 permitted 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 Re-assignment without the written consent of the Assignor to
Oglethorpe pursuant to the Rocky Mountain Agreements Second Reassignment. Except
as expressly provided in the Operative Documents, the Assignee may not assign
its interests herein without the consent of the Assignor.
Section 6.5. Governing Law. This Rocky Mountain Agreements Re-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 6.6. Severability. If any provision hereof shall be invalid,
illegal or unenforceable under Applicable Law, the validity, legality and
enforceability of the remaining provisions hereof shall not be affected or
impaired thereby.
Section 6.7. Counterparts. This Rocky Mountain Agreements Re-assignment
may be executed in any number of counterparts, each executed counterpart
constituting an original but all together only one instrument.
Section 6.8. Headings. The headings of the sections of this Rocky Mountain
Agreements Re-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 6.9. 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
Re-assignment.
Section 6.10. Effectiveness of Assignment. This Rocky Mountain Agreements
Re-assignment has been dated as of the date first above written for convenience
only. This
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Rocky Mountain Agreements Re-assignment shall be effective on the date of
execution and delivery by each of the Assignee and the Assignor.
Section 6.11. Limitation of Liability. It is expressly understood and
agreed by the parties hereto that (a) this Rocky Mountain Agreements
Re-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 of 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
Re-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 6.12. Measuring Life. If and to the extent that any of the rights
and privileges granted under this Rocky Mountain Agreements Re-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
Re-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
Re-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 Re-assignment, whichever of (a)
and (b) is shorter.
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IN WITNESS WHEREOF, the parties hereto have caused this Rocky
Mountain Agreements Re-assignment to be duly executed by their respective
officers thereunto duly authorized.
SUNTRUST BANK, ATLANTA, not in its
individual capacity but solely as Co-Trustee under
the Trust Agreement,
as Assignor,
By:/s/ Bryan Echols
------------------------------------------
Name: Bryan Echols
Title: Vice President
Date: December 30, 1996
By:/s/ Sandra Thompson
------------------------------------------
Name: Sandra Thompson
Title: Vice President
Date: December 30, 1996
Signed and delivered
in the presence of:
/s/ Kuon F. Kanbot
- ------------------------------
Unofficial Witness
/s/ David M. Boehm
- ------------------------------
Notary Public
My Commission Expires: March 16, 1998
[Notary Seal]
ROCKY MOUNTAIN LEASING
CORPORATION,
as Assignee,
By:/s/ Eugen Heckl
----------------------------------
Name: Eugen Heckl
Title: Vice President
Date: December 30, 1996
Signed and delivered
in the presence of:
/s/ Leonard Scott
- ------------------------------------
Unofficial Witness
/s/ David M. Boehm
- ------------------------------------
Notary Public
My Commission Expires: March 16, 1998
[Notary Seal]
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SCHEDULE TO EXHIBIT 10.32.7
ROCKY MOUNTAIN AGREEMENTS RE-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
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