EXHIBIT 10.32.16
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
================================================================================
SUBORDINATED DEED TO SECURE DEBT AND
SECURITY AGREEMENT
(P1)
Dated as of December 30, 1996
from
OGLETHORPE POWER CORPORATION (AN ELECTRIC MEMBERSHIP
GENERATION & TRANSMISSION CORPORATION),
AS GRANTOR
TO
AMBAC INDEMNITY CORPORATION,
AND
SUNTRUST BANK, ATLANTA,
NOT IN ITS INDIVIDUAL CAPACITY
BUT SOLELY AS CO-TRUSTEE,
ROCKY MOUNTAIN
PUMPED STORAGE HYDROELECTRIC PROJECT
================================================================================
TABLE OF CONTENTS
Page
----
SECTION 1. DEFINITIONS...................................................... 4
Section 1.1. Subordinated Deed to Secure Debt............. 4
Section 1.2. Security Agreement........................... 4
Section 1.3. Secured Claims............................... 4
SECTION 2. DISTRIBUTION OF PROCEEDS FROM SALE OF SUBORDINATED
COLLATERAL....................................................... 5
SECTION 3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF
OGLETHORPE; SUBORDINATED DEED TO SECURE DEBT;
EVENTS OF DEFAULT; REMEDIES...................................... 5
Section 3.1. Subordinated Deed to Secure Debt Event of
Default...................................... 5
Section 3.2. Other Rights of Subordinated Secured Parties. 5
Section 3.3. Delay or Omission Not a Waiver............... 7
Section 3.4. Restoration of Rights and Remedies........... 7
SECTION 4. ATTORNEY-IN-FACT; FINANCING STATEMENTS........................... 7
SECTION 5. LIMITATION ON SUBORDINATE SECURED PARTIES' RIGHTS................ 7
SECTION 6. MISCELLANEOUS.................................................... 8
Section 6.1. Reconveyance; Release of Components.......... 8
Section 6.2. No Legal Title to Subordinated Collateral in
Subordinated Secured Parties................. 8
Section 6.3. Notices...................................... 9
Section 6.4. Survival..................................... 11
Section 6.5. Successors and Assigns....................... 11
Section 6.6. Business Day................................. 11
Section 6.7. Governing Law................................ 11
Section 6.8. Severability................................. 11
Section 6.9. Counterparts................................. 11
Section 6.10. Headings and Table of Contents............... 11
Section 6.11. Further Assurances........................... 11
Section 6.12. No Oral Modifications or Continuing Waivers.. 12
Section 6.13. Effectiveness of this Subordinated Deed to
Secure Debt.................................. 12
Section 6.14. Limitation of Liability...................... 12
Section 6.15. WAIVER....................................... 12
Section 6.16. Waiver of Marshaling......................... 13
i
LIST OF ATTACHMENTS:
Schedule 1 - Description of the Rocky Mountain Site
Facility Description Schedule
Exhibit A-2 - Project Boundary Drawing
Exhibit A-3 - Powertunnel and Powerhouse General Plan
and Profile of the Rocky Mountain Project
No. RM-00-CL-0013 R1
Exhibit A-4 - Description of Equipment
Schedule 2 - Description of the Facility
Facility Description Schedule
Exhibit A-1 - Description of the Entire Rocky Mountain
Property
Exhibit A-2 - Project Boundary Drawing
Exhibit A-3 - Powertunnel and Powerhouse General Plan
and Profile of the Rocky Mountain Project
No. RM-00-CL-0013 R1
Exhibit A-4 - Description of Equipment
ii
SUBORDINATED DEED TO SECURE DEBT AND SECURITY AGREEMENT (P1)
This SUBORDINATED DEED TO SECURE DEBT AND SECURITY AGREEMENT (P1),
dated as of December 30, 1996 (this "Subordinated Deed to Secure Debt" or this
"Agreement"), from OGLETHORPE POWER CORPORATION (AN ELECTRIC MEMBERSHIP
GENERATING & TRANSMISSION CORPORATION), an electric membership corporation
organized under the laws of the State of Georgia (together with its successors
and assigns, "Oglethorpe"), to AMBAC INDEMNITY CORPORATION, a
Wisconsin-domiciled stock insurance corporation (together with its successors
and assigns, "AMBAC") and SUNTRUST BANK, ATLANTA, a state banking corporation
not in its individual capacity but solely as Co-Trustee under the Trust
Agreement (together with its successors and assigns, sometimes referred to
herein as the "Facility Lessor") (together with AMBAC).
WHEREAS, Oglethorpe and Georgia Power Company, a corporation organized
under the laws of the State of Georgia (together with its successors and
assigns, "Georgia Power") own the Rocky Mountain Site and the Facility as
tenants-in-common under Georgia law;
WHEREAS, the Rocky Mountain Site and the Facility are more particularly
described in Schedule 1 and Schedule 2 respectively hereto;
WHEREAS, Oglethorpe, the Owner Participant, the Facility Lessor, the Owner
Trustee, Rocky Mountain Leasing Corporation, a Delaware corporation (together
with its successors and assigns, "RMLC"), and Utrecht-America Finance Co. have
entered into the Participation Agreement (P1), dated as of December 30, 1996
(the "Participation Agreement");
WHEREAS, pursuant to the Participation Agreement, (i) Oglethorpe has leased
an undivided interest in its interest as tenant in common in the Facility to the
Facility Lessor pursuant to the Head Lease, (ii) the Facility Lessor has leased
such Undivided Interest in the Facility to RMLC pursuant to the Facility Lease,
(iii) RMLC has leased such Undivided Interest in the Facility to Oglethorpe
pursuant to the Facility Sublease, (iv) Oglethorpe has leased an undivided
interest in its interest as a tenant in common in the Rocky Mountain Site to the
Facility Lessor pursuant to the Ground Lease, (v) the Facility Lessor has leased
such Ground Interest in the Rocky Mountain Site to RMLC pursuant to the Ground
Sublease, (vi) RMLC has leased such Ground Interest in the Rocky Mountain Site
to Oglethorpe pursuant to the Ground Sub-sublease, (vii) Oglethorpe has assigned
a portion of its rights and obligations under the Rocky Mountain Agreements to
the Facility Lessor, and the Facility Lessor has assumed such portion of
Oglethorpe's obligations, pursuant to the Rocky Mountain Agreements Assignment,
(viii) the Facility Lessor has assigned such rights and obligations under the
Rocky Mountain Agreements to RMLC, and RMLC has assumed such obligations,
pursuant to the Rocky Mountains Agreements Re-assignment and (ix) RMLC has
assigned
such rights and obligations under the Rocky Mountain Agreements to Oglethorpe,
and Oglethorpe has assumed such obligations pursuant to the Rocky Mountain
Agreements Second Re-assignment;
WHEREAS, Oglethorpe has agreed to secure its obligations to the Facility
Lessor under the Overall Transaction, by providing a lien, security title and
security interest in its remainder interest in the Undivided Interest, an
undivided interest equal to the Facility Lessor's Percentage in the Rocky
Mountain Site and its interest in the Rocky Mountain Agreements to the extent it
relates to the Undivided Interest;
WHEREAS, pursuant to the Participation Agreement, Oglethorpe has obtained
from AMBAC the Qualifying Surety Bonds to support its Covered Obligations;
WHEREAS, pursuant to the AMBAC Guaranty, Oglethorpe has agreed to reimburse
AMBAC for any payments made under the Qualifying Surety Bonds and to secure such
reimbursement obligation by providing a lien, security title and security
interest identified in the fifth "WHEREAS" clause above; and
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:
GRANTING CLAUSE
To secure all of the due and punctual payment, performance and
observance by Oglethorpe of all of (a) Oglethorpe's obligations to the Facility
Lessor and the Owner Participant under the Operative Documents and (b)
Oglethorpe's obligations to AMBAC under the AMBAC Guaranty (items (a) and (b)
collectively referred to hereinafter as the "Secured Obligations"; it being
acknowledged and agreed that the Secured Obligations are obligations such as
reimbursement and indemnification obligations and are not indebtedness evidenced
by a note or for the payment of borrowed money and are therefore exempt from the
payment of intangible recording tax under the laws of the State of Georgia),
Oglethorpe hereby grants, bargains, sells and conveys unto AMBAC and the
Facility Lessor (for itself and for the benefit of the Owner Participant)
(collectively, the "Subordinated Secured Parties") all rights, title and
interests of Oglethorpe in, to and under, and grants to the Subordinated Secured
Parties a security interest in, each and all of the following described
property, rights and privileges (such property, rights and privileges being
hereinafter referred collectively, the "Subordinated Collateral"):
1. all right, title and interest now held or hereafter acquired by
Oglethorpe in and to the undivided interest in the Facility leased to the
Facility Lessor under the Head
2
Lease, other than any such right, title or interest under or pursuant to
the Head Lease or any other Senior Document (defined below and hereinafter
so called);
2. all right, title and interest now held or hereafter acquired by
Oglethorpe in and to the undivided interest in the Rocky Mountain Site
leased to the Facility Lessor under the Ground Lease, other than any such
right, title or interest under or pursuant to the Ground Lease or any other
Senior Document;
3. all right, title and interest now held or hereafter acquired by
Oglethorpe in and to the undivided interest in the Rocky Mountain
Agreements assigned to the Facility Lessor under the Rocky Mountain
Agreements Assignment, other than any such right, title or interest under
or pursuant to the Rocky Mountain Agreements Assignment or any other Senior
Document;
4. all of the rents, royalties, issues, profits, revenue, income and other
benefits of the Undivided Interest for the Ground interest payable to
Oglethorpe, arising from the use or enjoyment of all or any portion thereof
or from any lease or agreement pertaining thereto, whether now due, past
due, or to become due, other than any such rents, royalties, issues,
profits, revenue, income and other benefits (including, without limitation,
the Head Lease Rent) under or pursuant to the Head Lease or any other
Senior Document; and
5. all proceeds of paragraphs 1, 2 and 3, above, of whatever kind or
nature, in each case whether now owned or existing or hereafter acquired
and wherever located, including all claims against third parties for
destruction, loss or damage to any of the foregoing or otherwise.
PROVIDED, HOWEVER, the foregoing conveyance and grant are, in all respects,
subject, subordinate and inferior in priority, to the following:
A. the Lien of the Oglethorpe Mortgage (including any amendment,
supplement, future advance or issuance of additional indebtedness
thereunder);
B. the Rocky Mountain Agreements (including any extension, amendment,
supplement, substitution or replacement thereto) and the rights of the
parties thereto; and
C. the Head Lease, the Facility Lease, the Facility Sublease, the Ground
Lease, the Ground Sublease, the Ground Sub-sublease, the Rocky Mountain
Agreements Assignment, the Rocky Mountain Agreements Re-Assignment, the
Rocky Mountain Agreements Second Re-Assignment, the Loan Certificate, the
Loan Agreement, the Deed to Secure Debt, the Participation Agreement and
the other Operative Documents (including any extension, amendment,
supplement, substitution or replacement of any
3
thereof now or hereafter in effect, whether or not made with or without the
consent of the Subordinated Secured Parties, and any future advances or
issuance of additional indebtedness under any thereof or under any such
extension, amendment, supplement, substitution or replacement), other than
this Subordinated Deed to Secure Debt; and
D. all rights, titles, interests and liens of the parties to and secured by
the documents referred to in the foregoing clauses A, B and C, other than
this Subordinated Deed to Secure Debt (the documents referred to in the
foregoing clauses A, B and C, other than this Subordinated Deed to Secure
Debt, are herein referred to as the "Senior Documents"), including, without
limitation, the respective rights of quiet enjoyment under certain of the
Senior Documents (such rights, titles, interests and liens under the Senior
Documents are herein referred to collectively as the "Senior Rights"; the
obligees or any trustee under the Oglethorpe Mortgage, the Lender under the
Loan Agreement and the other parties to the Senior Documents and holders of
the Senior Rights (as such parties and holders only) are herein referred to
collectively as the "Senior Parties").
TO HAVE AND TO HOLD the Subordinated Collateral unto the Subordinated
Secured Parties, their successor and assigns, in fee simple forever.
IT IS HEREBY FURTHER COVENANTED AND AGREED by and among the parties
hereto as follows:
SECTION 1. DEFINITIONS
For purposes of this Subordinated Deed to Secure Debt, capitalized terms
used and not otherwise defined herein shall have the meanings assigned to them
in Appendix A hereto. The general provisions of Appendix A shall apply to terms
used in this Subordinated Deed to Secure Debt and specifically defined herein.
Section 1.1. Subordinated Deed to Secure Debt. This Subordinated Deed to
Secure Debt is intended to operate and to be construed as a deed passing title
to the Subordinated Collateral which is real property under Georgia law (subject
and subordinate as herein provided to the Senior Documents and Senior Rights)
and so is made under those provisions of the existing laws of the State of
Georgia relating to deeds to secure debt, and not as a mortgage. In addition
this Subordinate Deed to Secure Debt is intended to operate as a security
agreement under, and in accordance with the Uniform Commercial Code of Georgia
for the benefit of the Subordinated Secured Parties.
Section 1.2. Security Agreement. Oglethorpe grants to the Subordinated
Secured Parties a security interest in the Subordinated Collateral (subject and
subordinate as herein provided to the Senior Documents and Senior Rights). This
Subordinated Deed to
4
Secure Debt, in addition to conveying security title to real estate, is a
security agreement as to any portion of the Subordinated Collateral that is
personal property under Georgia law (subject and subordinate as herein provided
to the Senior Documents and Senior Rights) and shall support any financing
statement showing the Subordinated Secured Parties' interest with respect
thereto, and is intended to operate and to be construed as a deed passing title
to the Subordinated Collateral which is real property under Georgia law and so
is made under those provisions of the existing laws of the State of Georgia
relating to deeds to secure debt, and not as a mortgage.
Section 1.3. Secured Claims. This Subordinated Deed to Secure Debt, and
the assignment and security interest herein granted to the Subordinated Secured
Parties, is made and given to secure the Secured Obligations. Without limiting
the generality of the foregoing, this Subordinated Deed to Secure Debt secures
the payment of all amounts that would be payable by Oglethorpe to the
Subordinated Secured Parties under the Operative Documents.
SECTION 2. DISTRIBUTION OF PROCEEDS FROM SALE OF SUBORDINATED COLLATERAL
Any amounts received in respect of a sale of any of the Subordinated
Collateral after a Subordinated Deed to Secure Debt Event of Default (as defined
herein) shall have occurred and be continuing shall be applied or distributed
ratably among AMBAC, the Owner Participant and the Facility Lessor, pari passu,
according to the Secured Obligations held by each.
Upon payment in full of the Secured Obligations, the balance, if any, of
such amounts remaining shall be distributed to Oglethorpe.
SECTION 3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF OGLETHORPE; SUBORDINATED
DEED TO SECURE DEBT; EVENTS OF DEFAULT; REMEDIES
Section 3.1. Subordinated Deed to Secure Debt Event of Default. The term
"Subordinated Deed to Secure Debt Event of Default," wherever used herein, shall
mean the occurrence of a Head Lessor Event of Default or the failure of
Oglethorpe to promptly perform any of its obligations under this Subordinated
Deed to Secure Debt or the AMBAC Guaranty.
Section 3.2. Other Rights of Subordinated Secured Parties. Subject to
Section 5 hereof, Oglethorpe agrees that when any Subordinated Deed to Secure
Debt Event of Default has occurred and is continuing, the Subordinated Secured
Parties may, subject to and only upon satisfaction of the conditions precedent
described in Section 5 hereof, without limitation
5
of all other rights and remedies available at law or in equity in such event,
exercise any one or more or all, and in any order, of the following remedies, it
being expressly understood that no remedy herein conferred is intended to be
exclusive of any other remedy or remedies, but that each and every remedy is
cumulative and is in addition to every other remedy given herein or now or
hereafter existing at law or in equity or by statute:
(a) directly, or by agents or attorneys, and subject to compliance
with Applicable Law, to take possession of all or any part of the
Subordinated Collateral, and having and holding the same to use, operate,
manage and control the Subordinated Collateral and to conduct the business
thereof and collect and receive all earnings, revenues, rents, issues,
proceeds and income of the Subordinated Collateral and every part thereof,
all for the sole purpose of providing for the payment of amounts secured
hereunder and, for such purpose, to maintain, repair and renew the
Subordinated Collateral and make replacements, alterations, additions and
improvements thereto and remove and dispose of any portion of the
Subordinated Collateral and otherwise to exercise any and all of the rights
and powers of Oglethorpe in respect thereof;
(b) proceed to exercise all rights, privileges and remedies of
Oglethorpe under the Head Lease, Ground Lease or other Operative Documents
either in the name of the Subordinated Secured Parties or in the name of
Oglethorpe for the use and benefit of the Subordinated Secured Parties;
(c) if at the time such action is lawful and always subject to
compliance with Applicable Law, either with or without taking possession,
and either before or after taking possession, and without instituting any
legal proceedings whatsoever, sell the Subordinated Collateral, or any part
thereof, or interest therein, at auction at the usual place for conducting
sales at the courthouse in the county in which the Subordinated Collateral,
or any part thereof, is located, to the highest bidder for cash, after
advertising the time, terms and place of such sale once a week for four
weeks immediately preceding such sale (but without regard to the number of
days intervening between the date of publication of the first advertisement
and the date of sale) in a newspaper published in such county, or in the
paper in which the sheriff's advertisements for such county are then being
published, all other notice being hereby waived by Oglethorpe. The
Subordinated Secured Parties may thereupon execute and deliver to the
purchaser at such sale a conveyance of the Subordinated Collateral in fee
simple, which conveyance shall contain recitals as to the Subordinated Deed
to Secure Debt Event of Default upon which the execution of the power of
sale herein granted depends, and Oglethorpe hereby constitutes and appoints
the Subordinated Secured Parties the true and lawful agent and attorney in
fact of Oglethorpe to make such recitals, sale and conveyance, and all of
the acts of the Subordinated Secured Parties as such attorney in fact are
hereby ratified and confirmed. Oglethorpe agrees that such recitals shall
be binding and conclusive upon Oglethorpe and that the conveyance to be
made by the Subordinated Secured Parties shall divest Oglethorpe of all
right, title,
6
interest, equity and right of redemption, including any statutory
redemption, in and to the Subordinated Collateral. The Subordinated Secured
Parties shall collect the proceeds of such sale, and after reserving
therefrom the entire debt secured hereby (and reasonable attorneys' fees
actually incurred) and all costs and expenses of such sale, shall pay any
surplus to Oglethorpe, all as provided by Applicable Law. The power and
agency hereby granted are coupled with an interest and are irrevocable by
dissolution, or otherwise, and are in addition to any and all other
remedies that the Subordinated Secured Parties may have hereunder, at law
or in equity. The Subordinated Secured Parties may bid and become the
purchaser at any such sale in which event the Subordinated Secured Parties
will be entitled to a credit for the Secured Obligations against the
purchase price payable at such sale; and
(d) proceed to protect and enforce this Subordinated Deed to Secure
Debt and the Secured Obligations held by it by suit or suits or proceedings
in equity, at law or in bankruptcy, and for the specific performance of any
covenant or agreement herein or therein contained or in execution or aid of
any power herein granted, or for foreclosure hereunder or thereunder, or
for the appointment of a receiver or receivers for the Subordinated
Collateral or any part thereof, or for the recovery of judgment for the
Secured Obligations or for the enforcement of any other proper, legal or
equitable remedy available under Applicable Law.
Section 3.3. Delay or Omission Not a Waiver. No delay or omission by the
Subordinated Secured Parties in the exercise of any right or remedy accruing
upon any Subordinated Deed to Secure Debt Event of Default will impair any such
right or remedy or constitute a waiver of any Subordinated Deed to Secure Debt
Event of Default or be deemed to be an acquiescence therein. Every right and
remedy given by this Section 3 or by law to the Subordinated Secured Parties may
be exercised from time to time, and as often as may be deemed expedient, by the
Subordinated Secured Parties.
Section 3.4. Restoration of Rights and Remedies. If the Subordinated
Secured Parties have instituted any proceeding to enforce any right, power or
remedy under this Subordinated Deed to Secure Debt and such proceeding has been
discontinued or abandoned or for any reason has been determined adverse to the
Subordinated Secured Parties, then Oglethorpe and the Subordinated Secured
Parties shall, subject to any determination in such proceeding, be restored to
their former positions hereunder and all rights, remedies and powers of the
Subordinated Secured Parties shall continue as if no such proceeding has been
instituted.
7
SECTION 4. ATTORNEY-IN-FACT; FINANCING STATEMENTS
Oglethorpe hereby appoints and constitutes the Subordinated Secured
Parties as the true and lawful attorney-in-fact of Oglethorpe for the purpose of
taking any action permitted by this Subordinated Deed to Secure Debt in
connection with the enforcement of the Lien of this Subordinated Deed to Secure
Debt, with full power (in the name of Oglethorpe or otherwise), at any time
following a Subordinated Deed to Secure Debt Event of Default and during the
continuance thereof, to ask, require, demand and receive any and all amounts and
claims for amounts due and to become due under or arising out of the Operative
Documents (to the extent that such moneys and claims constitute part of the
Subordinated Collateral), to endorse any check or other instrument or order in
connection therewith and to file any claim or take any action or institute any
proceeding to collect any portion of the Subordinated Collateral. Upon the
written instructions of the Subordinated Secured Parties, Oglethorpe shall
execute any financing statement (and any continuation statement with respect to
any such financing statement), or any other document necessary for the
Subordinated Secured Parties to obtain the full benefits of the Lien of this
Subordinated Deed to Secure Debt and as may be specified in such instructions.
SECTION 5. LIMITATION ON SUBORDINATE SECURED PARTIES' RIGHTS
Notwithstanding anything to the contrary in this Subordinated Deed to
Secure Debt, until (a) all Subordinated Collateral is fully released from the
Liens of the Oglethorpe Mortgage, (b) all Secured Indebtedness under the Loan
Agreement and Deed to Secure Debt has been paid in full and the Lien on the Loan
Agreement and security title of the Deed to Secure Debt have been fully released
and (c) payment in full of all of the obligation of the Head Lessor under the
Head Lease, the Facility Lessee under the Facility Lease and the Facility
Sublessee under the Facility Sublease, (i) the Subordinated Secured Parties
shall not (A) exercise any rights or enforce any remedies or assert any claim
with respect to the Subordinated Collateral granted to the Subordinated Secured
Parties under this Subordinated Deed to Secure Debt, (B) seek to foreclose the
Liens granted pursuant to this Subordinated Deed to Secure Debt or sell the
Subordinated Collateral, or (C) take any action, directly or indirectly, or
institute any proceedings, directly or indirectly, with respect to any of the
foregoing; (ii) in the event any right, remedy or provision of or with respect
to this Subordinated Deed to Secure Debt conflicts with any right, remedy or
provision of or with respect to any Senior Document or Senior Right, as between
the Senior Parties and the Subordinated Secured Parties, the right, remedy or
provision of or with respect to the Senior Document or Senior Right shall govern
to the extent of any inconsistency and that extent only; (iii) neither this
Section 5 nor any other provision of this Subordinated Deed to Secure Debt shall
be terminated, amended or otherwise modified without the prior written consent
of each of the Senior Parties, which consent may be granted or withheld by each
Senior Party in its sole, subjective discretion; and (iv) this Section 5, and
any other provisions of this Subordinated Deed to Secure Debt that benefit the
Senior Parties, shall inure directly to the
8
benefit of the Senior Parties and their respective successors and assigns under
the Senior Documents or as holders of the Senior Rights.
SECTION 6. MISCELLANEOUS
Section 6.1. Reconveyance; Release of Components. (a) Upon payment in
full by Oglethorpe of the Secured Obligations, the Subordinated Secured Parties
will, at the expense of Oglethorpe, reconvey the Subordinated Collateral in the
manner provided by Applicable Law by an instrument of reconveyance without
representation or warranty of any kind whatsoever in form and substance
reasonably satisfactory to Oglethorpe and the Subordinated Secured Parties.
(b) Notwithstanding any other provision of this Subordinated Deed to
Secure Debt, any Released Property sold, leased or otherwise conveyed pursuant
to the Ground Lessor's Release Rights shall automatically, without the further
act of any Person, be released from the lien, security title and security
interest of this Subordinated Deed to Secure Debt. All Components that no longer
constitute part of the Facility in accordance with Section 7.2 of the Facility
Lease, shall be automatically released from the lien, security title and
security interest of this Subordinated Deed to Secure Debt. The Subordinated
Secured Parties, if requested by Oglethorpe and at Oglethorpe's expense, shall
execute and deliver such instruments in form and substance satisfactory to
Oglethorpe evidencing such release.
Section 6.2. No Legal Title to Subordinated Collateral in Subordinated
Secured Parties. (a) The Subordinated Secured Parties shall not, except as may
result from its exercise of remedies hereunder, or under the other Operative
Documents, have legal title to any part of the Subordinated Collateral. No
transfer, by operation of law or otherwise, of any Secured Obligations or other
right, title and interest of the Subordinated Secured Parties in and to the
Subordinated Collateral or hereunder shall operate to terminate this
Subordinated Deed to Secure Debt or entitle the Subordinated Secured Parties to
an accounting or to the transfer to it of any legal title to any part of the
Subordinated Collateral.
(b) Each Subordinated Secured Party shall have no further interest in, or
right with respect to, the Subordinated Collateral under this Subordinated Deed
to Secure Debt when and if the principal and interest on all Secured Obligations
held by such Subordinated Secured Party and all sums payable to such
Subordinated Secured Party hereunder and under such Secured Obligations shall
have been paid in full.
Section 6.3. Notices. Unless otherwise expressly specified or permitted
by the terms hereof, all communications and notices provided for herein 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
9
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 each
party hereto at its address set forth below or, in the case of any such party
hereto, at such other address as such party may from time to time designate by
written notice to the other parties hereto:
If to AMBAC:
AMBAC Indemnity Corporation
One State Street Plaza
New York, New York 10004
Facsimile No.: (212) 344-5297
Telephone No.: (212) 668-0340
Attention: General Counsel
If to Oglethorpe:
Oglethorpe Power Corporation
2100 East Exchange Place
Tucker, Georgia 30085-1349
Facsimile No.: (770) 270-7325
Telephone No.: (7700-270-7940
Attention: Vice President - Finance
If to the Facility Lessor:
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:
10
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:
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
Section 6.4. 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 Subordinated Deed to Secure Debt.
Section 6.5. Successors and Assigns. This Subordinated Deed to Secure Debt
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. Except as expressly
provided herein or in the other Operative Documents, no party hereto may assign
its interests herein without the consent of the other parties hereto.
Section 6.6. Business Day. Notwithstanding anything herein or in any other
Operative Document to the contrary, if the date on which any payment is to be
made pursuant
11
to this Subordinated Deed to Secure Debt or any other Operative Document 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 6.7. Governing Law. This Subordinated Deed to Secure Debt 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 6.8. 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 6.9. Counterparts. This Subordinated Deed to Secure Debt may be
executed in any number of counterparts, each executed counterpart constituting
an original but all together only one Agreement.
Section 6.10. Headings and Table of Contents. The headings of the sections
of this Subordinated Deed to Secure Debt and the Table of Contents 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 6.11. Further Assurances. Each party hereto shall promptly and duly
execute and deliver such documents and provide 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 Subordinated Deed to Secure Debt.
Section 6.12. No Oral Modifications or Continuing Waivers. No term or
provision of this Subordinated Deed to Secure Debt may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the party or the Person against whom enforcement of the change, waiver,
discharge or termination is sought.
Section 6.13. Effectiveness of this Subordinated Deed to Secure Debt. This
Subordinated Deed to Secure Debt has been dated as of the date first above
written for convenience only. This Subordinated Deed to Secure Debt shall be
effective on the date of execution and delivery by each of the parties hereto.
Section 6.14. Limitation of Liability. It is expressly understood and
agreed by the parties hereto that nothing herein contained shall be construed as
creating any liability on
12
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 parties hereto or by any Person claiming by, through or
under the parties hereto and under no circumstances shall SunTrust Bank, Atlanta
be personally liable for the payment of any indebtedness or expenses of the
Trust or be liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by the Co-Trustee under this
Subordinated Deed to Secure Debt. In addition, each of the parties hereto
acknowledges and agrees that the Co-Trustee has been appointed by the Owner
Participant and the 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 6.15. WAIVER. OGLETHORPE HEREBY WAIVES ANY RIGHT OGLETHORPE MAY
HAVE UNDER THE CONSTITUTION OF THE STATE OF GEORGIA OR THE CONSTITUTION OF THE
UNITED STATES OF AMERICA TO NOTICE OR TO A JUDICIAL HEARING PRIOR TO THE
EXERCISE OF ANY RIGHT OR REMEDY PROVIDED BY THIS INSTRUMENT TO THE SUBORDINATED
SECURED PARTIES, AND OGLETHORPE WAIVES ANY RIGHTS, IF ANY, THAT OGLETHORPE MAY
HAVE TO SET ASIDE OR INVALIDATE ANY SALE DULY CONSUMMATED IN ACCORDANCE WITH THE
PROVISIONS OF THIS INSTRUMENT ON THE GROUND (IF SUCH BE THE CASE) THAT THE SALE
WAS CONSUMMATED WITHOUT A PRIOR JUDICIAL HEARING. ALL WAIVERS BY OGLETHORPE IN
THIS PARAGRAPH HAVE BEEN MADE VOLUNTARILY, INTELLIGENTLY AND KNOWINGLY, AFTER
OGLETHORPE HAS BEEN FIRST INFORMED BY COUNSEL OF OGLETHORPE'S OWN CHOOSING AS TO
POSSIBLE ALTERNATIVE RIGHTS, AND HAVE BEEN MADE AS AN INTENTIONAL RELINQUISHMENT
AND ABANDONMENT OF A KNOWN RIGHT AND PRIVILEGE.
Section 6.16. Waiver of Marshaling. Oglethorpe, for itself and for all
persons hereafter claiming through or under it or who may at any time hereafter
become holders of liens junior to the lien of this Subordinated Deed to Secure
Debt, hereby expressly waives and releases all rights to direct the order in
which any of the Subordinated Collateral shall be sold in the event of any sale
or sales pursuant hereto and to have any of the Subordinated Collateral and/or
any other property now or hereafter constituting security for any of the Secured
Obligations marshaled upon any foreclosure of this Subordinated Deed to Secure
Debt.
13
IN WITNESS WHEREOF, Oglethorpe has caused this Subordinated Deed to Secure
Debt to be duly executed and delivered by its officer thereunto duly authorized,
as of the day and year first above written.
OGLETHORPE POWER CORPORATION
(AN ELECTRIC MEMBERSHIP GENERATION &
TRANSMISSION CORPORATION), AS GRANTOR
By: /s/ T. D. Kilgore
---------------------------------------------
Name: T. D. Kilgore
Title: President and Chief Executive Officer
Date: December 30, 1996
Signed, sealed and delivered in
the presence of:
/s/ Gary M. Bullock
- ---------------------------------
Unofficial Witness
/s/ David M. Boehm
- ---------------------------------
Notary Public
My commission expires: March 16, 1998
[Notary Seal]
14
SCHEDULE TO EXHIBIT 10.32.16
SUBORDINATED DEED TO SECURE DEBT AND SECURITY 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 Subordinated Deed to Secure Debt and
Security Agreement (P1) are not filed herewith; however, the registrant hereby
agrees that such Exhibits and Schedules will be provided to the Commission upon
request.