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Exhibit 10.18(a)
Execution Copy
ASSIGNMENT AND REASSIGNMENT
OF PROJECT AGREEMENTS
(BA1/2)
Dated as of July 20, 2000
between
PPL MONTANA, LLC,
as Assignor
and
MONTANA OL3 LLC,
as Assignee
COLSTRIP GENERATING UNITS 1 AND 2
AND RELATED COMMON FACILITIES
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TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS............................................. 2
SECTION 2. ASSIGNMENT OF PROJECT AGREEMENTS TO OWNER LESSOR........ 2
Section 2.1 Assignment of Ownership Agreement 1-2............... 2
Section 2.2 Assignment of Operating Agreement 1-2............... 3
Section 2.3 Assignment of Common Facilities Agreement........... 3
Section 2.4 Assumption by the Owner Lessor...................... 3
SECTION 3. REASSIGNMENT OF PROJECT AGREEMENTS TO PPL MONTANA....... 4
Section 3.1 Reassignment of Ownership Agreement 1-2............. 4
Section 3.2 Reassignment of Operating Agreement 1-2............. 4
Section 3.3 Reassignment of Common Facilities Agreement......... 4
Section 3.4 Assumption by PPL Montana........................... 5
SECTION 4. OWNER'S COMMITTEE MEMBER................................ 5
SECTION 5. AMENDMENT OF PROJECT AGREEMENTS......................... 5
SECTION 6. SECURITY FOR OWNER LESSOR'S OBLIGATION UNDER LESSOR NOTE 5
SECTION 7. MISCELLANEOUS........................................... 6
Section 7.1 Amendments and Waivers.............................. 6
Section 7.2 Notices............................................. 6
Section 7.3 Survival............................................ 7
Section 7.4 Successors and Assigns.............................. 7
Section 7.5 Governing Law....................................... 7
Section 7.6 Severability........................................ 8
Section 7.7 Counterparts........................................ 8
Section 7.8 Headings............................................ 8
Section 7.9 Further Assurances.................................. 8
Section 7.10 Effectiveness of Colstrip Agreements Reassignment... 8
Section 7.11 Limitation of Liability............................. 8
Section 7.12 Measuring Life...................................... 8
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ASSIGNMENT AND REASSIGNMENT
OF PROJECT AGREEMENTS
(BA1/2)
This ASSIGNMENT AND REASSIGNMENT OF PROJECT AGREEMENTS (BA1/2), dated
as of July 20, 2000 (this "Agreement"), is entered into between PPL MONTANA,
LLC, a Delaware limited liability company ("PPL Montana") and MONTANA OL3 LLC, a
Delaware limited liability company (the "Owner Lessor").
WHEREAS, the rights and obligations as tenants-in-common of the
co-owners of Units 1 and 2 and the Common Facilities 1-2 are governed by the
Ownership and Operating Agreements 1-2; and the rights and obligations as
tenants-in-common of the co-owners of the Common Facilities 1-2-3-4 are governed
by the Common Facilities Agreement;
WHEREAS, simultaneously herewith, PPL Montana has conveyed to the Owner
Lessor the Undivided Interest pursuant to the Bill of Sale, and has leased to
the Owner Lessor the Ground Interest pursuant to the Site Lease and Sublease;
WHEREAS, the Owner Lessor will lease to PPL Montana the Undivided
Interest pursuant to the Facility Lease, and will sublease to PPL Montana the
Ground Interest pursuant to the Site Lease and Sublease, in each case for the
Facility Lease Term;
WHEREAS, pursuant to this Agreement and the terms hereof, (i) PPL
Montana will assign to the Owner Lessor the Owner Lessor's Percentage of all of
PPL Montana's right, title and interest as "Owner" under the Ownership and
Operating Agreements 1-2, and (ii) the Owner Lessor will reassign all of Owner
Lessor's right, title, and interest under the Ownership and Operating Agreements
1-2 assigned to it by PPL Montana hereunder back to PPL Montana for a term equal
to the Facility Lease Term (unless earlier terminated pursuant to the terms of
this Agreement);
WHEREAS, pursuant to this Agreement and the terms hereof, (i) PPL
Montana will assign to the Owner Lessor the Owner Lessor's Percentage of all of
PPL Montana's right, title and interest as "Owner" under the Common Facilities
Agreement with respect to Colstrip Units 1 and 2, and (ii) the Owner Lessor will
reassign all of Owner Lessor's right, title, and interest under the Common
Facilities Agreement assigned to it by PPL Montana hereunder back to PPL Montana
for a term equal to the Facility Lease Term (unless earlier terminated pursuant
to the terms of this Agreement); and
WHEREAS, the parties to this Agreement desire to clarify the Owner
Lessor's and PPL Montana's rights and obligations relating to the Undivided
Interest under the Ownership and Operating Agreements 1-2 and the Common
Facilities Agreement.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
agreements herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
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SECTION 1. DEFINITIONS
Unless the context hereof shall otherwise require, capitalized terms
used, including those in the recitals, and not otherwise defined herein shall
have the respective meanings set forth in Appendix A to the Participation
Agreement (BA1/2), dated as of July 13, 2000, among PPL Montana, the Owner
Lessor, the Owner Participant named therein, Wilmington Trust Company, in the
capacities referred to therein, and The Chase Manhattan Bank, in the capacities
referred to therein. The general provisions of such Appendix A shall apply to
the terms used in this Agreement and specifically defined herein.
As used in this Agreement, the following terms shall have the
respective meanings assigned thereto as follows:
"Lessor Possession Date" shall mean with respect to the Unit 1 Interest
or the Unit 2 Interest, as the case may be, the earlier to occur of (a) the
expiration of the Facility Lease Term, and (b) the date on which PPL Montana
shall lose possession of the Unit 1 Interest or the Unit 2 Interest, as the case
may be, pursuant to Section 13 (unless it shall have purchased such Unit
Interest), 14 or 17 of the Facility Lease.
"Owner" shall mean the owner of the Undivided Interest under the
Ownership Agreement 1-2.
"Ownership and Operating Agreements 1-2" shall mean a collective
reference to the Ownership Agreement 1-2 and the Operating Agreement 1-2.
"Project Agreements" shall mean the Ownership and Operating Agreements
1-2 and the Common Facilities Agreement.
SECTION 2. ASSIGNMENT OF PROJECT AGREEMENTS TO OWNER LESSOR
Section 2.1 Assignment of Ownership Agreement 1-2.
(a) PPL Montana hereby assigns to the Owner Lessor the Owner
Lessor's Percentage of all of PPL Montana's right, title, and interest under the
Ownership Agreement 1-2. The assignment effected by this Section 2.1(a) shall
terminate only (i) with respect to a Unit Interest or Unit Interests, upon the
early termination of the Facility Lease with respect to such Unit Interest or
Unit Interests pursuant to and in accordance with Section 10 thereof, or (ii) in
whole, if PPL Montana purchases the Undivided Interest upon the early
termination of the Facility Lease pursuant to and in accordance with Section 13
thereof.
(b) The parties hereto agree that, in consequence of the
assignment effected by Section 2.1(a) and the reassignment effected by Section
3.1(a), from and after the Lessor Possession Date with respect to the Unit 1
Interest the Owner Lessor shall have the Owner Lessor's Percentage of all right,
title and interest of PPL Montana in and to, and under the Ownership Agreement
1-2 with respect to Colstrip Unit 1.
(c) The parties hereto agree that, in consequence of the
assignment effected by Section 2.1(a) and the reassignment effected by Section
3.1(a), from and after the Lessor
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Possession Date with respect to the Unit 2 Interest the Owner Lessor shall have
the Owner Lessor's Percentage of all right, title and interest of PPL Montana in
and to, and under, the Ownership Agreement 1-2 with respect to Colstrip Unit 2.
Section 2.2 Assignment of Operating Agreement 1-2. PPL Montana hereby
assigns to the Owner Lessor the Owner Lessor's Percentage of PPL Montana's
right, title, and interest under the Operating Agreement 1-2 as "Owner" of a 50%
undivided interest in Colstrip Units 1 and 2. It is expressly recognized that
this assignment does not include any of PPL Montana's right, title and interest
under the Operating Agreement 1-2 as "Operator" of Colstrip Units 1 and 2. The
assignment effected by this Section 2.2 shall terminate only (i) with respect to
a Unit Interest or Unit Interests, upon the early termination of the Facility
Lease with respect to such Unit Interest or Unit Interests pursuant to and in
accordance with Section 10 thereof, or (ii) in whole, if PPL Montana purchases
the Undivided Interest upon the early termination of the Facility Lease pursuant
to and in accordance with Section 13 thereof.
Section 2.3 Assignment of Common Facilities Agreement. PPL Montana
hereby assigns to the Owner Lessor the Owner Lessor's Percentage of PPL
Montana's right, title and interest under the Common Facilities Agreement as an
"Owner" of a 50% undivided interest in Colstrip Units 1 and 2. It is expressly
recognized that this assignment does not include any of PPL Montana's right,
title and interest under the Common Facilities Agreement as "Common Facilities
Operator" or as "Owner" of an undivided interest in Colstrip Unit 3. The
assignment effected by this Section 2.3 shall terminate only (i) with respect to
a Unit Interest or Unit Interests, upon the early termination of the Facility
Lease with respect to such Unit Interest or Unit Interests pursuant to and in
accordance with Section 10 thereof, or (ii) in whole, if PPL Montana purchases
the Undivided Interest upon the early termination of the Facility Lease pursuant
to and in accordance with Section 13 thereof.
Section 2.4 Assumption by the Owner Lessor.
(a) Subject to paragraph (c) of this Section 2.4, the Owner
Lessor hereby assumes and agrees to perform, effective as of the Lessor
Possession Date for the Unit 1 Interest, the Owner Lessor's Percentage of all of
the duties and obligations of PPL Montana under the Project Agreements as
"Owner" of a 50% undivided interest in Colstrip Unit 1.
(b) Subject to paragraph (c) of this Section 2.4, the Owner
Lessor hereby assumes and agrees to perform, effective as of the Lessor
Possession Date for the Unit 2 Interest, the Owner Lessor's Percentage of all of
the duties and obligations of PPL Montana under the Project Agreements as
"Owner" of a 50% undivided interest in Colstrip Unit 2.
(c) Notwithstanding anything to the contrary hereinabove set
forth, (i) prior to the Lessor Possession Date for either Unit Interest, the
Owner Lessor shall have no obligation or liability under the Project Agreements,
and (ii) prior to the Lessor Possession Date with respect to any Unit Interest,
the Owner Lessor shall not be liable for any costs of operation or maintenance
of or improvement to Colstrip Units 1 and 2 attributable to such Unit Interest
or the Related Ground Interest.
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SECTION 3. REASSIGNMENT OF PROJECT AGREEMENTS TO PPL MONTANA
Section 3.1 Reassignment of Ownership Agreement 1-2.
(a) The Owner Lessor hereby reassigns all of the Owner
Lessor's right, title, and interest in, to and under the Ownership Agreement 1-2
assigned to it by PPL Montana pursuant to Section 2.1 to PPL Montana. The
reassignment effected by this Section 3.1(a) shall terminate only (i) in whole
on the later to occur of the stated expiration of the Facility Lease Term or any
Renewal Lease Term elected by PPL Montana in accordance with Section 15 of the
Facility Lease, (ii) with respect to one or both Unit Interests, upon the
earlier termination of the Facility Lease with respect to such Unit Interest or
Unit Interests pursuant to and in accordance with Section 10 or 14 of the
Facility Lease, (iii) in whole, upon early termination of the Facility Lease
pursuant to and in accordance with Section 13 thereof, and (iv) in whole, upon
the earlier termination of the Facility Lease pursuant to and in accordance with
Section 17.1(b) of the Facility Lease in consequence of a Lease Event of Default
thereunder.
(b) The parties hereto agree that, in consequence of the
reassignment effected by Section 3.1(a), from and after the date of this
Agreement until the reassignment shall have terminated pursuant to Section
3.1(a), PPL Montana shall, inter alia, have all right, title and interest of the
Owner Lessor in, to and under the Ownership Agreement 1-2.
Section 3.2 Reassignment of Operating Agreement 1-2. The Owner Lessor
hereby reassigns all of Owner Lessor's right, title, and interest in, to and
under the Operating Agreement 1-2 assigned to it by PPL Montana pursuant to
Section 2.2 to PPL Montana. The reassignment effected by this Section 3.2 shall
terminate only (i) in whole on the later to occur of the stated expiration of
the Facility Lease Term or any Renewal Lease Term elected by PPL Montana in
accordance with Section 15 of the Facility Lease, (ii) with respect to one or
both Unit Interests, upon the earlier termination of the Facility Lease with
respect to such Unit Interest as Unit Interests pursuant to and in accordance
with Section 10 or 14 of the Facility Lease, (iii) in whole, upon early
termination of the Facility Lease pursuant to and in accordance with Section 13
thereof, and (iv) in whole, upon the earlier termination of the Facility Lease
pursuant to and in accordance with Section 17.1(b) of the Facility Lease in
consequence of a Lease Event of Default thereunder.
Section 3.3 Reassignment of Common Facilities Agreement. The Owner
Lessor hereby reassigns all of Owner Lessor's right, title, and interest in, to
and under the Common Facilities Agreement assigned to it by PPL Montana pursuant
to Section 2.1 back to PPL Montana. The reassignment effected by this Section
3.3 shall terminate only (i) in whole on the later to occur of the stated
expiration of the Facility Lease Term or any Renewal Lease Term elected by PPL
Montana in accordance with Section 15 of the Facility Lease, (ii) with respect
to one or both Unit Interests, upon the earlier termination of the Facility
Lease with respect to such Unit Interest or Unit Interests pursuant to and in
accordance with Section 10 or 14 of the Facility Lease, (iii) in whole, upon
early termination of the Facility Lease pursuant to and in accordance with
Section 13 thereof, and (iv) in whole, upon the earlier termination of the
Facility Lease pursuant to and in accordance with Section 17.1(b) of the
Facility Lease in consequence of a Lease Event of Default thereunder.
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Section 3.4 Assumption by PPL Montana.
(a) PPL Montana hereby assumes and agrees to perform,
effective as of the date of this Agreement, all of the duties and obligations of
the Owner Lessor relating to the Unit 1 Interest under the Ownership and
Operating Agreements 1-2 and the Common Facilities Agreement arising or relating
to the period prior to the Lessor Possession Date with respect to such Unit
Interest.
(b) PPL Montana hereby assumes and agrees to perform,
effective as of the date of this Agreement, all of the duties and obligations of
the Owner Lessor relating to the Unit 2 Interest under the Ownership and
Operating Agreements 1-2 and the Common Facilities Agreement arising or relating
to the period prior to the Lessor Possession Date with respect to such Unit
Interest.
(c) The parties hereto agree that, in consequence of the
reassignment effected by this Section 3, PPL Montana shall from and after the
date hereof to the applicable Lessor Possession Date for a Unit Interest, be
liable for all costs relating to the operation and maintenance of, or
improvement to Colstrip Units 1 and 2 attributable to such Unit Interest or the
Related Ground Interest.
SECTION 4. OWNER'S COMMITTEE MEMBER.
The Owner Lessor and PPL Montana agree that, assuming that the
Ownership Agreement 1-2 has not been amended to allow each "Owner" to appoint a
separate member to the Owner's Committee, the member to the Owner's Committee to
be appointed by the successors and assigns of MPC's 50% undivided interest in
Colstrip Units 1 and 2 shall be appointed in accordance with the Omnibus Voting
Agreement.
SECTION 5. AMENDMENT OF PROJECT AGREEMENTS.
PPL Montana agrees that it will not, without the prior written consent
of the Owner Lessor, consent to any amendment, modification or supplement to the
Project Agreements that could reasonably be expected to have a material adverse
effect on the rights of the Owner Lessor or, so long as the Lien of the Lease
Indenture shall not have been terminated or discharged, the Lease Indenture
Trustee, or the value of the Undivided Interest, unless such modification or
supplement is required by Applicable Law or is necessary to operate or maintain
the Colstrip Project in compliance with Applicable Law.
SECTION 6. SECURITY FOR OWNER LESSOR'S OBLIGATION UNDER LESSOR NOTE.
In order to secure the Lessor Note, the Owner Lessor will, pursuant to
the Lease Indenture, grant a Lien to the Lease Indenture Trustee in and to all
of the Owner Lessor's right, title and interest in, to and under this Agreement.
PPL Montana hereby consents to such assignment and creation of such Lien and
acknowledges receipt of copies of the Lease Indenture, it being understood that
such consent shall not affect any requirement or the absence of any requirement
for any consent under any other circumstances. Unless and until the Owner Lessor
shall have received written notice from the Lease Indenture Trustee that the
Lien of the Lease Indenture has been fully released, the Lease Indenture Trustee
under the Lease Indenture shall
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have the rights of the Owner Lessor under this Agreement to the extent set forth
in, and subject in each case to, the exceptions set forth in, the Lease
Indenture.
SECTION 7. MISCELLANEOUS
Section 7.1 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
each party hereto.
Section 7.2 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 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 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 PPL Montana:
303 North Broadway, Suite 400
Billings, MT 59101
Telephone No.: (406) 869-5100
Facsimile No.: (406) 869-5149
Attention: Vice President and General Counsel
If to the Owner Lessor:
Montana OL3 LLC
c/o Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Telephone No.: (302) 651-1000
Facsimile No.: (302) 651-8882
Attention: Corporate Trust Administration
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with a copy to:
Montana OP3 LLC
c/o Bell Atlantic Credit Corporation
245 Park Avenue, 40th Floor
New York, New York 10167
Telephone No.: (212) 557-4799
Facsimile No.: (212) 557-4569
Attention: Asset Administrator
and to the Lease Indenture Trustee:
c/o The Chase Manhattan Bank
Capital Markets Fiduciary Services
450 West 33rd Street, 15th Floor
New York, New York 10001-2697
Telephone No.: (212) 946-7557
Facsimile No.: (212) 946-8177/8
Attention: Annette M. Marsula
If to the Pass Through Trustee:
c/o The Chase Manhattan Bank
Capital Markets Fiduciary Services
450 West 33rd Street, 15th Floor
New York, New York 10001-2697
Telephone No.: (212) 946-7557
Facsimile No.: (212) 946-8177/8
A copy of all notices provided for herein shall be sent by the party
giving such notice to each of the other parties hereto.
Section 7.3 Survival. Except as expressly set forth herein, the
warranties and covenants made by each party hereto shall not survive the
expiration or termination of this Agreement.
Section 7.4 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, PPL Montana may not assign or transfer any of its interests
herein without the consent of the Owner Lessor.
Section 7.5 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
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construction, validity and performance (without giving effect to the conflicts
of laws provision thereof, other than New York General Obligations Law Section
5-1401), except to the extent the laws of the State of Montana are mandatorily
applicable under the laws of the State of Montana.
Section 7.6 Severability. If any provision hereof shall be invalid,
illegal or unenforceable under Applicable Law, the validity, legality and
enforceability of the remaining provisions hereof shall not be affected or
impaired thereby.
Section 7.7 Counterparts. This Agreement may be executed in any number
of counterparts, each executed counterpart constituting an original but all
together only one instrument.
Section 7.8 Headings. The headings of the sections and the table of
contents 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 7.9 Further Assurances. Each party hereto will promptly and
duly execute and deliver such further documents to make such further assurances
for and take such further action reasonably requested by any party to whom such
first party is obligated, all as may be reasonably necessary to carry out more
effectively the intent and purpose of this Agreement.
Section 7.10 Effectiveness of Colstrip Agreements Reassignment. This
Agreement has been dated as of the date first above written for convenience
only. This Agreement shall become effective on July 20, 2000, the date of
execution and delivery by each of PPL Montana and the Owner Lessor.
Section 7.11 Limitation of Liability. It is expressly understood and
agreed by the parties hereto that (a) this Agreement is executed and delivered
by Wilmington Trust Company ("Wilmington"), not individually or personally but
solely as Lessor Manager under the LLC Agreement, in the exercise of the powers
and authority conferred and vested in it pursuant thereto, (b) each of the
representations, undertakings and agreements herein made on the part of the
Owner Lessor is made and intended not as personal representations, undertakings
and agreements by Wilmington but is made and intended for the purpose for
binding only the Owner Lessor, (c) nothing herein contained shall be construed
as creating any liability on Wilmington 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 (d) under no circumstances shall
Wilmington, be personally liable for the payment of any indebtedness or expenses
of the Owner Lessor or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Owner Lessor
under this Agreement.
Section 7.12 Measuring Life. If and to the extent that any of the
rights and privileges granted under this Agreement, would, in the absence of the
limitation imposed by this sentence, be invalid or unenforceable as being in
violation of the rule against perpetuities or any other rule or law relating to
the vesting of interests in property or the suspension of the power of
alienation of property, then it is agreed that notwithstanding any other
provision of this Agreement, such options, rights and privileges, subject to the
respective conditions hereof governing the exercise
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of such options, rights and privileges, will be exercisable only during (a) the
longer of (i) a period which will end twenty-one (21) years after the death of
the last survivor of the descendants living on the date of the execution of this
Agreement, of the following Presidents of the United States: Franklin D.
Roosevelt, Harry S. Truman, Dwight D. Eisenhower, John F. Kennedy, Lyndon B.
Johnson, Richard M. Nixon, Gerald R. Ford, James E. Carter, Ronald W. Reagan,
George H.W. Bush and William J. Clinton or (ii) the period provided under the
Uniform Statutory Rule Against Perpetuities or (b) the specific applicable
period of time expressed in this Agreement, whichever of (a) and (b) is shorter.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers thereunto duly authorized.
PPL MONTANA, LLC
By: /s/ Paul A. Farr
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Name: Paul A. Farr
Title: Vice President
MONTANA OL3 LLC
By: Wilmington Trust Company,
not in its individual capacity, but solely
as Lessor Manager
By: /s/ James P. Lawler
---------------------------------------
Name: James P. Lawler
Title: Vice President