EXHIBIT 10.32.14
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EQUITY FUNDING PLEDGE AGREEMENT
(P1)
Dated as of December 30, 1996
between
ROCKY MOUNTAIN LEASING CORPORATION,
as Pledgor
and
SUNTRUST BANK, ATLANTA,
as Pledgee
ROCKY MOUNTAIN
PUMPED STORAGE HYDROELECTRIC FACILITY
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TABLE OF CONTENTS
Page
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SECTION 1. DEFINED TERMS................................................. 1
SECTION 2. PLEDGE........................................................ 1
SECTION 3. SECURED CLAIMS................................................ 2
SECTION 4. REMEDIES...................................................... 2
Section 4.1. Rights of the Pledgee........................... 2
Section 4.2. Filings......................................... 2
Section 4.3. Attorney-in-Fact................................ 2
Section 4.4. The Pledgee's Duties............................ 3
SECTION 5. DISCHARGE..................................................... 3
SECTION 6. REPRESENTATIONS AND WARRANTIES................................ 3
Section 6.1. Unlimited Holder................................ 3
Section 6.2. Rights in the Equity Funding Agreement.......... 3
SECTION 7. COVENANT OF THE PLEDGOR....................................... 3
SECTION 8. MISCELLANEOUS................................................. 4
Section 8.1. Amendments and Waivers.......................... 4
Section 8.2. Notices......................................... 4
Section 8.3. Survival........................................ 5
Section 8.4. Successors and Assigns.......................... 5
Section 8.5. Business Day.................................... 5
Section 8.6. Governing Law................................... 5
Section 8.7. Severability.................................... 5
Section 8.8. Counterparts.................................... 5
Section 8.9. Headings........................................ 6
Section 8.10. Further Assurances.............................. 6
Section 8.11. Effectiveness of Agreement...................... 6
Section 8.12. Limitation of Liability......................... 6
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EQUITY FUNDING PLEDGE AGREEMENT (P1)
This EQUITY FUNDING PLEDGE AGREEMENT (P1), dated as of December 30, 1996
(this "Pledge Agreement" or this "Agreement"), between ROCKY MOUNTAIN LEASING
CORPORATION, a corporation organized and existing under the laws of the State of
Delaware, as pledgor (the "Pledgor"), and SUNTRUST BANK, ATLANTA, a state
banking corporation organized under the laws of the State of Georgia, 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
as supplemented (the "Pledgee").
WHEREAS, the Pledgor, the Pledgee, Oglethorpe Power Corporation (An
Electric Membership Generation & Transmission Corporation), an electric
membership corporation organized under the laws of the State of Georgia
("Oglethorpe"), Philip Morris Capital Corporation, a Delaware corporation (the
"Owner Participant"), Fleet National Bank, not in its individual capacity but
solely as Owner Trustee under the Trust Agreement (the "Owner Trustee") and
Utrecht-America Finance Co. (the "Lender"), have entered into a Participation
Agreement (P1) dated as of December 30, 1996 (the "Participation Agreement");
WHEREAS, the Pledgor and the Pledgee have entered into the Facility Lease
of even date herewith; and
WHEREAS, the Pledgor has entered into an Equity Funding Agreement (P1) with
AIG Matched Funding Corp., a Delaware corporation ("AIGMFC"), dated as of
December 30, 1996 (the "Equity Funding Agreement"), the Pledgor's rights, if
any, in which the Pledgor is willing to pledge to the Pledgee to secure its
obligations under the Facility Lease.
NOW, THEREFORE, in consideration of 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. DEFINED TERMS.
Capitalized terms used in this Agreement, including the recitals, and not
otherwise defined herein shall have the respective meanings specified in
Appendix A to the Participation Agreement. The general provisions of Appendix A
shall apply to terms used in this Agreement and specifically defined herein.
SECTION 2. PLEDGE.
The Pledgor hereby transfers, assigns, pledges and grants a first priority
security interest in each and all of its right, title and interest, if any, in
the Equity Funding Agreement (including, without limitation, the right, if any,
of the Pledgor to receive all amounts payable under the Equity Funding Agreement
in accordance therewith, to give and receive any notice, consent, waiver or
approval or take any other action under the Equity Funding Agreement) and all
instruments and certificates evidencing the Equity Funding Agreement and all
interest, cash, instruments or other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all
of the Equity Funding Agreement and all proceeds of the Equity Funding Agreement
to the Pledgee for its benefit, and the Pledgee hereby accepts such transfer,
assignment, pledge and security interest.
SECTION 3. SECURED CLAIMS.
The purpose of this pledge is to secure the Pledgor's obligation (whether
now or thereafter existing) under the Facility Lease to pay the Equity Portion
of Basic Rent and the Equity Portion of Termination Value or amounts computed by
reference to the Equity Portion of Termination Value. All of the foregoing
obligations shall be referred to as "Secured Claims."
Without limiting the generality of the foregoing, this Agreement secures
the payment of all amounts that constitute part of the Secured Claims and that
would be payable to the Pledgee under the Facility Lease but for the fact that
they are unenforceable or not allowable due to (a) the existence of a
bankruptcy, insolvency, reorganization, arrangement or moratorium involving the
Pledgor or (b) other laws relating to, or effecting the enforcement of,
creditor's rights generally against the Pledgor.
SECTION 4. REMEDIES.
Section 4.1. Rights of the Pledgee. Upon the happening and during the
occurrence of any Event of Default under the Facility Lease, the Pledgee may (in
addition to any other actions permitted under the other Operative Documents or
by statute or at law or in equity) exercise any rights or remedies granted
hereunder. The Pledgee may enforce the right of pledge created hereby to the
fullest extent possible in accordance with, and shall be entitled to all rights,
remedies and benefits afforded to pledgees under, the laws of the State of New
York. To the extent necessary to realize the benefit of the pledge of the
rights, if any, of the Pledgor in the Equity Funding Agreement effected by
Section 2, the Pledgor authorizes the Pledgee to exercise any of its rights
under the Equity Funding Agreement.
Section 4.2. Filings. The Pledgor agrees that it shall, at its own expense,
execute and deliver all financing statements necessary to perfect the Pledgee's
or any assignee's interest in the rights, if any, of the Pledgor in the Equity
Funding Agreement or any assignment or other
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document reasonably requested by the Pledgee or the Owner Participant to
perfect, protect, enforce, or otherwise give effect to the Pledgee's rights and
remedies hereunder.
Section 4.3. Attorney-in-Fact. If the Pledgor is unable or unwilling to
sign such assignments, financing statements or other documents and to file
financing statements or other public notices or recording with the appropriate
authorities, as and when reasonably requested by counsel to the Pledgee or by
counsel to the Owner Participant, the Pledgor hereby authorizes the Pledgee to
sign as the Pledgor's true and lawful agent and attorney-in-fact any such
assignments, financing statement or other documents and to make any such
filings.
Section 4.4. The Pledgee's Duties. The powers conferred on the Pledgee
hereunder are solely to protect its interest in the rights, if any, of the
Pledgor in the Equity Funding Agreement and shall not impose any duty upon it to
exercise any such powers. Except for the accounting for monies actually received
by it hereunder, the Pledgee shall have no duty as to the Equity Funding
Agreement or other matters relative to the Equity Funding Agreement, whether or
not the Pledgee has or is deemed to have knowledge of such matters, or as to the
taking of any necessary steps to preserve rights against any parties or any
other rights pertaining to the Equity Funding Agreement.
SECTION 5. DISCHARGE.
The Pledgee agrees that when the Secured Claims shall have been fully paid
and discharged, the Pledgee, at the written request and cost of the Pledgor,
shall immediately confirm the release of the rights, if any, of the Pledgor in
the Equity Funding Agreement from any Lien created pursuant to this Agreement
and of all claims that the Pledgee may have hereunder.
SECTION 6. REPRESENTATIONS AND WARRANTIES.
Section 6.1. Unlimited Holder. The Pledgor represents and warrants that it
is the legal and beneficial owner of the rights, if any, of the Pledgor in the
Equity Funding Agreement and that the rights, if any, of the Pledgor in the
Equity Funding Agreement are not subject to any Lien or any other right of any
third party, except as provided by the Operative Documents.
Section 6.2. Rights in the Equity Funding Agreement. The Pledgor represents
and warrants that the pledge of the rights, if any, of the Pledgor in the Equity
Funding Agreement under this Agreement vest in the Pledgee a valid first
priority security interest in the rights, if any, of the Pledgor in the Equity
Funding Agreement, as contemplated by this Agreement, subject to the provisions,
if applicable, of Section 9-306 of the Uniform Commercial Code as in effect in
New York.
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SECTION 7. COVENANT OF THE PLEDGOR.
The Pledgor shall not, without the prior written consent of the Pledgee,
(a) sell, assign or otherwise dispose of, or grant any option with respect to,
the rights, if any, of the Pledgor in the Equity Funding Agreement, or (b)
create or permit any Lien upon or with respect to the rights, if any, of the
Pledgor in the Equity Funding Agreement, except for the pledge created hereby.
SECTION 8. MISCELLANEOUS.
Section 8.1. Amendments and Waivers. No term, covenant, agreement or
condition of this Agreement 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 the
party against whom enforcement of such change is sought.
Section 8.2. 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 at its address set forth below or at such other address as such party may
from time to time designate by written notice to the other parties hereto:
If to the Pledgor:
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
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with copies to:
Sutherland, Asbill & Brennan
999 Peachtree Street, N.E.
Atlanta, Georgia 30309-3996
Facsimile No.: (404) 853-8806
Telephone No.: (404) 853-3000
Attention: Cada T. Kilgore, III
If to the Pledgee:
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
and 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
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Section 8.3. 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 Agreement.
Section 8.4. Successors and Assigns.
(a) This Agreement 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 Pledgor may not assign its interests herein without the consent of the
Pledgee and AIGMFC. Except as expressly provided in the Operative Documents, the
Pledgee may not assign its interests herein during the Term of the Facility
Lease without the consent of the Pledgor and AIGMFC.
Section 8.5. Business Day. Notwithstanding anything herein to the contrary,
if the date on which any payment is to be made pursuant to this Agreement is not
a Business Day, the payment otherwise payable on such date shall be payable on
the next succeeding Business Day with the same force and effect as if made on
such scheduled date and (provided such payment is made on such succeeding
Business Day) no interest shall accrue on the amount of such payment from and
after such scheduled date to the time of such payment on such next succeeding
Business Day.
Section 8.6. Governing Law. This Agreement 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.
Section 8.7. 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 8.8. Counterparts. This Agreement may be executed in any number of
counterparts, each executed counterpart constituting an original but all
together only one Agreement.
Section 8.9. Headings. The headings of the sections of this Agreement 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 8.10. 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 Agreement.
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Section 8.11. Effectiveness of Agreement. This Agreement has been dated as
of the date first above written for convenience only. This Agreement shall be
effective on the date of execution and delivery by each of the Pledgee and the
Pledgor.
Section 8.12. Limitation of Liability. It is expressly understood and
agreed by the parties hereto that (a) this Agreement 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 expressly or impliedly contained herein, all such liability,
if any, being expressly waived by the parties hereto or by any Person claiming
by, through or under the parties hereto 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 Agreement or any other Operative Documents. 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.
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IN WITNESS WHEREOF, the Pledgor and the Pledgee have caused this Pledge
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized.
ROCKY MOUNTAIN LEASING
CORPORATION,
as Pledgor
By:/s/ Eugen Heckl
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Name: Eugen Heckl
Title: Vice President
Date: December 30, 1996
SUNTRUST BANK, ATLANTA,
not in its individual capacity but solely as
Co-Trustee under the Trust Agreement,
as Pledgee
By:/s/ Bryan Echols
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Name: Bryan Echols
Title: Vice President
Date: December 30, 1996
By:/s/ Sandra Thompson
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Name: Sandra Thompson
Title: Vice Presidsent
Date: December 30, 1996
Acknowledged and consented to by:
AIG MATCHED FUNDING CORP.
By:/s/ Kathleen Furlong
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Name: Kathleen M. Furlong
Title: Treasurer
Date:
SCHEDULE TO EXHIBIT 10.32.14
EQUITY FUNDING PLEDGE 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