EXHIBIT 10.32.11
================================================================================
PAYMENT UNDERTAKING AGREEMENT
(P1)
Dated as of December 30, 1996
among
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., NEW YORK BRANCH
and
ROCKY MOUNTAIN LEASING CORPORATION
-----------------------------
Oglethorpe Power Corporation
Rocky Mountain Pumped Storage Hydroelectric Project
================================================================================
TABLE OF CONTENTS
------------------
Page
----
ARTICLE 1
Definitions
Section 1.01. Definitions.............................................1
ARTICLE 2
Payments
Section 2.01. Payment of Undertaking Fee by the Facility Lessee.......3
Section 2.02. Payment of Scheduled Amounts............................4
Section 2.03. Payment of Full Termination Amount......................4
Section 2.04. Release.................................................4
Section 2.05. Overdue Interest........................................5
Section 2.06. Payments by the Payment Undertaking Issuer..............5
Section 2.07. Withholding Taxes.......................................5
Section 2.08. Breakage Costs..........................................6
Section 2.09. Increased Costs.........................................6
Section 2.10. Direct Obligations......................................8
ARTICLE 3
Representations, Warranties and Covenants
Section 3.01. Representations and Warranties of the Payment
Undertaking Issuer..............................................8
Section 3.02. Covenants of the Payment Undertaking Issuer.............9
Section 3.03. Covenant of the Facility Lessee to Give Certain Notices.9
ARTICLE 4
Miscellaneous
Section 4.01. Termination.............................................9
Section 4.02. Assignment.............................................10
Section 4.03. Notices................................................10
Section 4.04. Waiver.................................................10
Section 4.05. Amendment and Waiver...................................10
Section 4.06. Governing Law..........................................10
Section 4.07. Interpretation.........................................11
Section 4.08. Counterparts...........................................11
Section 4.09. Severability...........................................11
Section 4.10. Service of Process and Jurisdiction....................11
Section 4.11. Waiver of Jury Trial...................................12
Section 4.12. Judgment Currency......................................12
Section 4.13. Further Assurances.....................................13
Section 4.14. Third-Party Beneficiaries..............................13
i
PAYMENT UNDERTAKING AGREEMENT
(P1)
This PAYMENT UNDERTAKING AGREEMENT (P1), dated as of December 30, 1996,
among COOPERATIEVE CENTRALE RAIFFEISEN- BOERENLEENBANK B.A., NEW YORK BRANCH, as
the Payment Undertaking Issuer (the "Payment Undertaking Issuer"), and ROCKY
MOUNTAIN LEASING CORPORATION (the "Facility Lessee").
WITNESSETH THAT:
WHEREAS, Oglethorpe Power Corporation (an Electric Membership Generation &
Transmission Corporation), the Facility Lessee, Fleet National Bank, not in its
individual capacity, except as specifically provided therein, but solely as
Owner Trustee (the "Owner Trustee"), SunTrust Bank, Atlanta, not in its
individual capacity but solely as Co-Trustee (the "Co-Trustee"), Philip Morris
Capital Corporation (the "Owner Participant") and Utrecht-America Finance Co.
(the "Lender") have entered into the Participation Agreement (P1) dated as of
December 30, 1996 (the "Participation Agreement");
WHEREAS, the Co-Trustee and the Facility Lessee have entered into the
Facility Lease Agreement (P1) dated as of December 30, 1996 (the "Facility
Lease");
WHEREAS, the Trustees and the Lender have entered into the Loan and
Security Agreement (P1) dated as of December 30, 1996 (the "Loan Agreement");
WHEREAS, in consideration for the payment by the Facility Lessee of certain
amounts, the Payment Undertaking Issuer is willing to make certain payments on
the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing, it is HEREBY AGREED
that:
ARTICLE 1
Definitions
Section 1.01. Definitions. For the purposes of this Agreement, terms
defined in Appendix A to the Participation Agreement shall have the meanings
given such terms in such Appendix A, and the following terms shall have the
meanings indicated:
"Full Termination Amount" means, as to the Full Termination Date, the
amount set forth on Schedule B opposite the Full Termination Date.
"Full Termination Date" means (1) prior to the Release Event, the first to
occur of :
(i) the Expiration Date (without giving effect to any extension or
renewal thereof); or
(ii) the date upon which Termination Value or an amount computed with
reference to, or in lieu of, Termination Value is payable under the
Facility Lease; or
(iii) the date on which the Loan Certificate is refinanced pursuant to
Section 15.1 of the Participation Agreement; or
(iv) the date on which the Loan Certificate is purchased by any party
to an Operative Document or its designee (in each case other than by any
Affiliate of the Lender) pursuant to the terms of any Operative Document
(except pursuant to Section 17.3 of the Participation Agreement in
connection with providing Acceptable Substitute Credit Protection); or
(v) any other date on which the Facility Lease terminates by its
terms;
and (2) after the Release Event, the earlier of the Expiration Date and the date
set forth in Schedule B hereto next following the date on which a notice of
termination of this Agreement is delivered in accordance with clause (b) of
Section 4.01 hereof.
"Release Event" means the delivery to the Payment Undertaking Issuer of
notice by the Owner Trustee or the Lender and the acknowledgment by the Lender
pursuant to Section 17.1(a) of the Participation Agreement.
"Scheduled Amount" means, as to each Scheduled Payment Date, the amount set
forth opposite such date on Schedule A hereto.
"Scheduled Payment Date" means each date set forth on Schedule A hereto.
"Undertaking Fee" means the sum of $268,753,750.00 payable on the Closing
Date by the Facility Lessee to the Payment Undertaking Issuer.
2
ARTICLE 2
Payments
Section 2.01. Payment of Undertaking Fee by the Facility Lessee. (a) Time
and Manner of Payment. On the Closing Date, the Facility Lessee shall pay the
Undertaking Fee to the account of the Payment Undertaking Issuer, Account No.
802-6002-533, at Cooperatieve Centrale Raiffeisen-Boerenleenbank, B.A., New York
Branch by wire transfer of immediately available funds. The Undertaking Fee
shall be an absolute, unconditional, final and non-refundable payment of an
amount due to the Payment Undertaking Issuer in consideration of its entering
into this Agreement and shall not under any circumstances or for any reason
whatsoever be refundable to, or recoverable by, the Facility Lessee.
(b) Payment of Undertaking Fee Absolute. The Facility Lessee hereby
acknowledges that payment of the Undertaking Fee by the Facility Lessee is
absolute, unconditional and irrevocable and that no part of the Undertaking Fee
shall be refundable to the Facility Lessee under any circumstance or for any
reason. The Facility Lessee agrees that (i) it will not have any, right, title
or interest in or to the Undertaking Fee paid to the Payment Undertaking Issuer
upon the payment thereof and the amount so paid will thereupon cease to be an
asset of the Facility Lessee and shall become an asset solely of the Payment
Undertaking Issuer, (ii) such payment will be irrevocable once made and will not
be subject to avoidance or recapture by the Facility Lessee or any Facility
Lessee Creditor and (iii) none of the Facility Lessee or any Facility Lessee
Creditor will be entitled to assert any Lien or claim or to exercise remedies,
with respect to such payment. For purposes of the foregoing, a "Facility Lessee
Creditor" is any creditor of the Facility Lessee, the Facility Lessee as a
debtor in a Chapter 9 or other bankruptcy proceeding, or any trustee, receiver,
liquidator, custodian or similar official of the Facility Lessee appointed as
such in an involuntary case, voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to the Facility Lessee
or its assets.
(c) Obligation of Payment Undertaking Issuer Absolute. The obligation of
the Payment Undertaking Issuer to pay Scheduled Amounts and the Full Termination
Amount in accordance with the terms of this Agreement constitutes an absolute,
irrevocable, and unconditional obligation of the Payment Undertaking Issuer
itself, without regard to any circumstance, including without limitation, the
application, or the effects of the application, of any bankruptcy law or
regulation, the order of any court in any bankruptcy proceeding, the bankruptcy
or insolvency of or any other matter affecting any party hereto or the Facility
Lessee or any other Person, and such payments shall be made by the Payment
Undertaking Issuer in accordance with the terms hereof.
3
(d) Waiver of Setoff. The Payment Undertaking Issuer hereby waives all
rights it may have under Applicable Law, its general operating conditions or
otherwise to offset or otherwise satisfy its obligations under this Agreement
against any claims that it may have or have the ability to assert against the
Facility Sublessee, the Facility Lessee or either Trustee or any other Person
under the Loan Certificates or otherwise.
Section 2.02. Payment of Scheduled Amounts. Unless the Payment Undertaking
Issuer shall have paid the Full Termination Amount prior to such Scheduled
Payment Date, the Payment Undertaking Issuer shall pay to the Owner Trustee, on
each Scheduled Payment Date prior to the Release Event, the Scheduled Amount for
such Scheduled Payment Date without further act or notice by any Person. After
the Release Event, the Payment Undertaking Issuer shall pay each Scheduled
Amount to the Owner Trustee or as otherwise designated by the Owner Trustee at
least 5 Business Days in advance of the due date of such payment.
Section 2.03. Payment of Full Termination Amount. (a) Subject to receipt
from the Owner Trustee or the Lender of at least five Business Days' prior
written notice of the occurrence of the Full Termination Date (which notice
shall specify the event causing such Full Termination Date), the Payment
Undertaking Issuer shall pay to the Owner Trustee on the Full Termination Date
set forth in such notice the Full Termination Amount specified on Schedule B
hereto with respect to such Full Termination Date.
(b) If the Full Termination Date is a Scheduled Payment Date, the Payment
Undertaking Issuer shall also pay to the Owner Trustee the Scheduled Amount
payable on such Scheduled Payment Date.
(c) After the Release Event, the Payment Undertaking Issuer shall pay the
Full Termination Amount to the Owner Trustee or as otherwise designated by the
Owner Trustee at least 5 Business Days in advance of the due date of such
payment.
Section 2.04. Release. Upon payment in full of the amounts specified in
Section 2.03, the Payment Undertaking Issuer shall be released from the payment
of any future Scheduled Amounts and Full Termination Amount. Except as expressly
provided in this Article, the Payment Undertaking Issuer shall have no
obligation to make any payment hereunder.
Section 2.05. Overdue Interest. Any amount payable by the Payment
Undertaking Issuer or the Facility Lessee hereunder not paid when due shall bear
interest at the Overdue Rate from the date such amount was due to the date such
amount is paid.
4
Section 2.06. Payments by the Payment Undertaking Issuer. (a) All payments
required to be made hereunder by the Payment Undertaking Issuer shall be made in
immediately available funds prior to 11:00 A.M., New York City time, on the due
date therefor. If any payment hereunder is due on a date which is not a Business
Day, then such payment shall be made on the next following Business Day without
interest.
(b) The Facility Lessee and the Payment Undertaking Issuer acknowledge that
all right, title and interest, if any, of the Facility Lessee hereunder have
been irrevocably assigned and pledged to the Trustees under the Payment
Undertaking Pledge Agreement and assigned, pledged and repledged to the Lender
under the Loan Agreement and that, prior to the Release Event, all right, title
and interest of the Trustees hereunder have been irrevocably assigned to the
Lender under the Loan Agreement and the Payment Undertaking Pledge Agreement and
that, notwithstanding anything herein to the contrary, prior to the Release
Event, all amounts payable by the Payment Undertaking Issuer hereunder shall be
paid directly to the Lender as herein provided.
(c) All payments payable (i) to the Lender shall be paid to the Lender to
its account (No. 802-6002-533) with Cooperatieve Centrale Raiffeisen-
Boerenleenbank B.A., New York Branch or to such other account in the United
States as the Lender shall have specified in a notice to the Payment Undertaking
Issuer at least 10 Business Days prior to the date on which such payment shall
be due or (ii) to the Owner Trustee shall be paid to the Owner Trustee to its
account at Fleet National Bank, ABA No. 011-900-445, Account No. 0067548290, or
to such other account in the United States as the Owner Trustee shall have
specified in a notice to the Payment Undertaking Issuer at least 10 Business
Days prior to the date on which such payment shall be due.
Section 2.07. Withholding Taxes. If any deduction or withholding of Tax is
required to be made from any payment to be made by the Payment Undertaking
Issuer to the Lender, the Payment Undertaking Issuer shall (i) (a) if the
Release Event shall not have occurred at the time or (b) if the Release Event
shall have occurred and the Payment Undertaking Issuer is neither a US Person
(as defined in Section 7701(a)(30) of the Internal Revenue Code of 1986, as
amended) nor the US branch of a foreign corporation at the time, increase the
amount paid so that the net amount actually paid to the Lender equals the amount
due and payable (and no increase shall be made in the amount paid in any other
case), (ii) pay to the relevant taxation or other authorities within the period
for payment permitted by Applicable Law the full amount of the deduction or
withholding Tax and (iii) notify the Facility Lessee and the Owner Trustee as
soon as practicable of the amount so deducted or withheld. The Facility Lessee
will indemnify and hold harmless the Payment Undertaking Issuer on an After Tax
Basis with respect to the assertion by any taxation authority that the Payment
5
Undertaking Issuer failed to deduct or withhold as required by Applicable Law,
unless such a failure constitutes gross negligence or wilful misconduct of the
Payment Undertaking Issuer.
Section 2.08. Breakage Costs. If this Agreement remains in effect after the
Release Event and the Payment Undertaking Issuer is required to make a payment
hereunder either on a date other than a Scheduled Payment Date or on a Scheduled
Payment Date but in an amount other than the Scheduled Amount due on such date,
the Facility Lessee shall reimburse the Payment Undertaking Issuer on demand for
any resulting loss, cost or expense incurred by it, including without limitation
any loss incurred in obtaining, liquidating or employing deposits from third
parties, provided that the Payment Undertaking Issuer shall have delivered to
the Facility Lessee a certificate as to the amount of such loss or expense,
which certificate shall be conclusive in the absence of manifest error.
Section 2.09. Increased Costs. (a) If this Agreement remains in effect
after the Release Event, the Facility Lessee shall pay directly to the Payment
Undertaking Issuer from time to time on request such amounts as the Payment
Undertaking Issuer may determine to be necessary to compensate it for any costs
thereafter incurred (other than increases pursuant to Section 2.07 hereof of
amounts paid by the Payment Undertaking Issuer hereunder) which the Payment
Undertaking Issuer reasonably determines are attributable to its making or
maintaining the payment undertaking hereunder or the funding arrangements in
respect thereof, or any reduction in the amount of the Undertaking Fee which the
Payment Undertaking Issuer may retain, resulting from any change or proposed
change in or any introduction of Applicable Law (including regulations,
policies, directives and guidelines issued by any governmental body, central
bank or other fiscal or monetary or accounting authority or other national,
international, state or local organization which purport to regulate the
treatment of rights and obligations similar to the payment undertaking of the
Payment Undertaking Issuer hereunder and any interpretation of Applicable Law by
any authority having jurisdiction) by the United States, The Netherlands or any
other jurisdiction in which the Payment Undertaking Issuer or any other obligor
under this Agreement is organized or has its principal office or lending office
or interpretation or application of any Applicable Law, whether or not having
the force of law, which is enacted or promulgated after the date hereof (a
"Regulatory Change") and such Regulatory Change:
(i) imposes or modifies any reserve, special deposit, deposit
insurance or similar requirements relating to any extensions of credit or
other assets of, or any deposits with or other liabilities of, the Payment
Undertaking Issuer; or
6
(ii) imposes any other condition affecting this Agreement or its
payment undertaking hereunder; or
(iii) requires the payment undertaking hereunder to be shown on the
balance sheet of the Payment Undertaking Issuer.
(b) The Payment Undertaking Issuer will notify the Facility Lessee of any
event occurring after the date hereof that will entitle the Payment Undertaking
Issuer to compensation under subsection (a) of this Section as promptly as
practicable after the Payment Undertaking Issuer obtains Actual Knowledge
thereof; provided that the Payment Undertaking Issuer will make reasonable
efforts and will take reasonable actions if such efforts and/or actions will
avoid the need for, or reduce the amount of, such compensation and will not, in
the sole opinion of the Payment Undertaking Issuer, be disadvantageous to the
Payment Undertaking Issuer. The Payment Undertaking Issuer will furnish to the
Facility Lessee a certificate setting forth the basis and amount of each request
by the Payment Undertaking Issuer for compensation under subsection (a) of this
Section, and the Facility Lessee shall have no responsibility for the validity
and accuracy of any such certificate and shall have no obligation to make any
investigation relating thereto. Determinations and allocations by the Payment
Undertaking Issuer for purposes of this Section of the effect of any Regulatory
Change pursuant to subsection (a) hereof, and of the amounts required to
compensate the Payment Undertaking Issuer under this Section, shall be
conclusive absent manifest error.
(c) No amounts shall be payable under subsection (a) of this Section to the
Payment Undertaking Issuer that arise from the gross negligence or willful
misconduct of the Payment Undertaking Issuer or from its failure to comply with
any request from any central bank or other applicable governmental authority. If
the Payment Undertaking Issuer transfers its obligations hereunder, the Facility
Lessee shall not be obligated to pay to any subsequent obligor hereunder any
amounts payable under this Section in excess of the amount that otherwise would
have been payable to the Payment Undertaking Issuer if it had continued to be
the obligor hereunder, unless such transfer is made with the Facility Lessee's
consent or at a time when the circumstances giving rise to such greater payment
did not exist.
Section 2.10. Direct Obligations. The payment obligations of the Payment
Undertaking Issuer hereunder constitute direct obligations to the Trustees and
the Lender, as assignee of the Trustees' rights, enforceable by the Trustees and
the Lender against the Payment Undertaking Issuer in accordance with the terms
of this Agreement. The right of the Trustees and the Lender to receive payments
hereunder represents a separate and independent right of each such Person.
7
ARTICLE 3
Representations, Warranties and Covenants
Section 3.01. Representations and Warranties of the Payment Undertaking
Issuer. The Payment Undertaking Issuer represents and warrants that:
(a) Organization and Powers. The Payment Undertaking Issuer is duly
organized and validly exists under the law of The Netherlands, has full power
and authority to execute, deliver and perform this Agreement.
(b) Due Authorization. The execution, delivery and performance of this
Agreement by the Payment Undertaking Issuer have been duly authorized by all
necessary action on its part.
(c) No Conflict. Neither the execution, delivery or performance of this
Agreement by the Payment Undertaking Issuer nor the consummation or performance
by the Payment Undertaking Issuer of the transactions contemplated hereby will
contravene any Applicable Law or conflict with, result in any violation of, or
constitute a default under, any term of its constituent documents or any
agreement, mortgage, contract, indenture, lease or other instrument to which it
is a party or by which it is bound.
(d) Governmental Consents. Neither the execution and the delivery by the
Payment Undertaking Issuer of this Agreement nor the consummation by the Payment
Undertaking Issuer of the transactions contemplated hereby will require the
consent, authorization, order or approval of, the giving of notice to, the
registration with, or the taking of any other action in respect of, any
governmental authority or agency, which has not been taken or obtained.
(e) Legal, Valid and Binding Obligations. This Agreement has been duly
executed and delivered by the Payment Undertaking Issuer and, assuming due
authorization, execution and delivery of this Agreement by the other party
hereto, constitutes the legal, valid and binding obligation of the Payment
Undertaking Issuer enforceable against it in accordance with its terms except as
such enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the rights of creditors generally or
by general principles of equity regardless of whether enforcement is pursuant to
a proceeding in equity or at law.
(f) The Payment Undertaking Issuer is actively engaged in the business of
entering into payment undertakings and is entering into this Agreement for its
own account in the ordinary course of its banking business and not for or on
behalf of any other Person. All arrangements, agreements or understandings by
8
contract or by law with respect to this Agreement or the Payment Undertaking
Issuer's rights and obligations under this Agreement between or among the
Payment Undertaking Issuer and any party to any Operative Document are set forth
in the Operative Documents.
Section 3.02. Covenants of the Payment Undertaking Issuer. For so long as
the Payment Undertaking Issuer's obligations hereunder shall not have been
terminated in accordance with the terms hereof, the Payment Undertaking Issuer
expressly acknowledges and agrees that it (i) shall not convey or transfer any
obligation hereunder to any Lender without the Owner Trustee's and the Owner
Participant's consent and (ii) shall maintain a distinct legal identity separate
from any Lender which is an Affiliate of the Payment Undertaking Issuer.
Section 3.03. Covenant of the Facility Lessee to Give Certain Notices. The
Facility Lessee hereby covenants and agrees that it will deliver to the Payment
Undertaking Issuer written notice at least five Business Days in advance of the
Full Termination Date specifying the event which will cause the Full Termination
Date and the date thereof.
ARTICLE 4
Miscellaneous
Section 4.01. Termination. This Agreement shall terminate (a) on or prior
to the Release Event, upon the payment in full of the Full Termination Amount
and all Scheduled Amounts required to be made simultaneously with or prior to
such payment or (b) after the Release Event, on the earlier of the Expiration
Date and the date set forth in Schedule B next following the date on which
either the Owner Trustee or the Payment Undertaking Issuer delivers to the other
a written notice of termination.
Section 4.02. Assignment. (a) Any payment in accordance with the provisions
hereof by the Payment Undertaking Issuer to the Trustees or their respective
permitted assignee or permitted designee shall release the Payment Undertaking
Issuer from any further liability to either Trustee and any other Person in
respect of such payment.
(b) Prior to the Release Event, the Facility Lessee may not assign or
pledge its rights hereunder, if any, to any Person other than the Trustees
(which shall be entitled to reassign, pledge or repledge such rights only to the
Lender). The Payment Undertaking Issuer may assign its rights and obligations
hereunder
9
to any of its Affiliates (other than the Lender) if the Payment Undertaking
Issuer guarantees fully the obligations of such Affiliate hereunder.
Section 4.03. Notices. (a) All notices, demands or other communications
hereunder shall be given or made in the manner, and with the same effect, as
provided in Section 18.4 of the Participation Agreement, at the respective
addresses therefor set forth in the Participation Agreement or, in the case of
the Payment Undertaking Issuer, at the end of this Agreement, or at such other
address as may be designated by notice from such party to all other parties
hereto.
(b) The Payment Undertaking Issuer may rely upon any notice under Section
2.03, 2.04 or 3.03 hereof purported to be signed by a properly authorized
officer or other representative of the appropriate signatory without inquiry as
to whether the matters stated therein are true.
Section 4.04. Waiver. Any forbearance, failure, or delay by any party
hereto and any permitted assignee thereof in exercising any right or power shall
not preclude the further exercise thereof, and all of such rights and powers
shall continue in full force and effect until specifically waived by such party
or such assignee, as the case may be.
Section 4.05. Amendment and Waiver. Neither this Agreement nor any
provision hereof may be changed, waived, discharged or terminated orally, but
only by a writing signed by the Payment Undertaking Issuer, the Facility Lessee
and each Trustee and consented to in writing by the Owner Participant and the
Lender.
Section 4.06. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 4.07. Interpretation. The headings of the articles and sections
hereof are for convenience of reference only and shall not affect the meaning or
construction of any provision hereof.
Section 4.08. Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute but
one and the same instrument. To the extent, if any, that this Agreement
constitutes chattel paper or an instrument (as such terms are defined in the
Uniform Commercial Code as in effect in any applicable jurisdiction), no
security interest in this Agreement may be created through the transfer or
possession of any counterpart hereof other than the original counterpart, which
shall be
10
identified as the counterpart containing the receipt therefor executed by the
Lender on or immediately following the signature page thereof.
Section 4.09. Severability. If any provision of this Agreement is 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 4.10. Service of Process and Jurisdiction. (a) Submission to
Jurisdiction. Each of the parties hereto (i) hereby irrevocably submits to the
nonexclusive jurisdiction of the Supreme Court of the State of New York, New
York County (without prejudice to the right of any party to remove to the United
States District Court for the Southern District of New York) and to the
jurisdiction of the United States District Court for the Southern District of
New York, for the purposes of any suit, action or other proceeding arising out
of this Agreement or the subject matter hereof or any of the transactions
contemplated hereby brought by any of the parties hereto or their successors or
assigns, (ii) hereby irrevocably agrees that all claims in respect of such
action or proceeding may be heard and determined in such New York State court
or, to the fullest extent permitted by Applicable Law, in such Federal court,
and (iii) to the extent permitted by Applicable Law, hereby irrevocably waives,
and agrees not to assert, by way of motion, as a defense, or otherwise, in any
such suit, action or proceeding any claim that is not personally subject to the
jurisdiction of the above-named courts, that the suit, action or proceeding is
brought in an inconvenient forum, that the venue of the suit, action or
proceeding is improper or that this Agreement or the subject matter hereof may
not be enforced in or by such court. A final judgment obtained in respect of any
action, suit or proceeding referred to in this Section shall be conclusive and
may be enforced in other jurisdictions by suit as the judgment or in any manner
as provided by Applicable law. The Facility Lessee irrevocably appoints CT
Corporation System, with an office at 1633 Broadway, New York, New York 10019,
as its agent to receive on its behalf service of copies of the summons and
complaint and any other process which may be served in any such action or
proceeding (such agent, with respect to the Facility Lessee, being the "Process
Agent").
(b) Service of Process. Each of the parties hereto hereby consents to
service of process in connection with the subject matter specified in the first
sentence of subsection (a) of this Section in connection with the
above-mentioned courts in New York by registered mail, Federal Express, DHL or
similar courier at the address to which notices to it are to be given, or to
such party in the case of the Process Agent at the Process Agent's above
address, it being agreed that service in such manner shall constitute valid
service upon such party or its successors or assigns in connection with any such
action or proceeding only; provided that nothing in this Section shall affect
the right of any of such parties or its successors
11
or assigns to serve legal process in any other manner permitted by law or affect
the right of such party or its successors or assigns to bring any action or
proceeding against any other such party or its property in the courts of other
jurisdictions.
Section 4.11. Waiver of Jury Trial. EACH OF THE FACILITY LESSEE AND THE
PAYMENT UNDERTAKING ISSUER HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 4.12. Judgment Currency. (a) This is an international financing
transaction in accordance with which the specification of Dollars is of the
essence, and Dollars shall be the currency of account in the case of all
obligations under this Agreement. The payment obligations of the Payment
Undertaking Issuer hereunder shall not be discharged by an amount paid in a
currency or in a place other than that specified with respect to such
obligations, whether pursuant to a judgment or otherwise, to the extent that the
amount so paid on prompt conversion to Dollars and transfer to the specified
place of payment under normal banking procedures does not yield the amount of
Dollars, in such place, due hereunder. To such extent, the obligee of such
obligations shall have a separate cause of action against the party making
payment thereof. If, for the purpose of obtaining a judgment in any court with
respect to any obligation of the Payment Undertaking Issuer hereunder, it shall
be necessary to convert to any other currency any amount in Dollars due
hereunder and a change shall occur between the rate of exchange applied in
making such conversion and the rate of exchange prevailing on the date of
payment of such judgment, the Payment Undertaking Issuer agrees to pay such
additional amounts (if any) as may be necessary to insure that the amount paid
on the date of payment is the amount in such other currency which, when
converted into Dollars and transferred to New York, New York in accordance with
normal banking procedures will result in the amount then due hereunder in
Dollars.
(b) Any amount due from the Payment Undertaking Issuer shall be due as a
separate debt and shall not be affected by or merged into any judgment being
obtained from any other sum due hereunder or in respect of this Agreement. In no
event, however, shall the Payment Undertaking Issuer be required to pay a larger
amount in such other currency at the rate of exchange in effect on the date of
payment than the amount of Dollars stated to be due hereunder, so that in any
event the obligations of the Payment Undertaking Issuer hereunder will be
effectively maintained as Dollar obligations.
12
Section 4.13. Further Assurances. The parties agree to execute promptly and
duly deliver to each other such further documents and assurances and to take
such further actions as are necessary or desirable, in each case at the sole
cost and expense of the Facility Lessee, in order effectively to carry out the
intent and purpose of this Agreement.
Section 4.14. Third-Party Beneficiaries. The obligations of the Payment
Undertaking Issuer hereunder are intended to be for the benefit of each Trustee,
each of which shall be a third-party beneficiary hereof.
13
IN WITNESS WHEREOF, each of the Payment Undertaking Issuer and the Facility
Lessee has executed this Agreement as of the date and year first above written.
IN WITNESS WHEREOF, each of the Payment Undertaking Issuer and the Facility
Lessee has executed this Agreement as of the date and year first above written.
COOPERATIEVE CENTRALE
RAIFFEISEN - BOERENLEENBANK
B.A., NEW YORK BRANCH
By: /s/ J. W. Den Baas
---------------------------------
Name: J. W. Den Baas
Title: Managing Director
Address: 245 Park Avenue
New York, New York 10167
ROCKY MOUNTAIN LEASING
CORPORATION
By: /s/ Eugen Heckl
---------------------------------
Name: Eugen Heckl
Title: Vice President
Address:
Acknowledged, as third party beneficiaries:
FLEET NATIONAL BANK,
not in its individual capacity
but solely as Owner Trustee
By: /s/ Frank McDonald
------------------------------
Name: Frank McDonald
Title: Vice President
SUNTRUST BANK, ATLANTA
not in its individual capacity,
14
but solely as Co-Trustee
By: /s/ Bryan Echols
------------------------------
Name: Bryan Echols
Title: Vice President
By: /s/ Sandra Thompson
------------------------------
Name: Sandra Thompson
Title: Vice President
15
ALL OF THE RIGHT, TITLE AND INTEREST OF THE TRUSTEES IN RESPECT OF THIS
AGREEMENT AND THE PAYMENT OBLIGATIONS OF THE PAYMENT UNDERTAKING ISSUER
HEREUNDER HAVE BEEN ASSIGNED AND PLEDGED TO, AND ARE SUBJECT TO A FIRST PRIORITY
SECURITY INTEREST IN FAVOR OF, THE UNDERSIGNED UNDER THE LOAN AND SECURITY
AGREEMENT (P1) DATED AS OF DECEMBER 30, 1996 (THE "LOAN AND SECURITY
AGREEMENT"). ALL OF THE RIGHT, TITLE AND INTEREST, IF ANY, OF THE FACILITY
LESSEE IN RESPECT OF THIS AGREEMENT HAVE BEEN ASSIGNED AND PLEDGED TO AND ARE
SUBJECT TO A FIRST PRIORITY SECURITY INTEREST IN FAVOR OF THE TRUSTEES UNDER THE
PAYMENT UNDERTAKING PLEDGE AGREEMENT (P1) DATED AS OF DECEMBER 30, 1996, AND
HAVE BEEN ASSIGNED, PLEDGED AND REPLEDGED TO THE LENDER UNDER THE LOAN AND
SECURITY AGREEMENT. THIS AGREEMENT HAS BEEN EXECUTED IN SEVERAL COUNTERPARTS.
ONLY THE ORIGINAL COUNTERPART CONTAINS THIS RECEIPT THEREFOR EXECUTED BY THE
UNDERSIGNED ON OR IMMEDIATELY FOLLOWING THE SIGNATURE PAGE HEREOF. SEE SECTION
4.08 HEREOF FOR INFORMATION CONCERNING THE RIGHTS OF THE HOLDERS OF THE VARIOUS
COUNTERPARTS HEREOF.
Receipt of this original counterpart of this Agreement is hereby
acknowledged as of December 30 , 1996.
UTRECHT-AMERICA FINANCE CO.
By:
---------------------------
Name:
Title:
16
Schedule to Exhibit 10.32.11
Payment Undertaking 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
The Exhibits and Schedules to the Payment Undertaking Agreement (P1) are
not filed herewith; however, the registrant hereby agrees that such Exhibits and
Schedules will be provided to the Commission upon request.
17