EXHIBIT 10.32.10
This instrument, when recorded,
should be returned to:
Xxxxxx X. Xxxxxx
Attorney at Law
The Carnegie Building
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxx, Xxxxxxx 00000-0000
THE PURPOSE OF THIS INSTRUMENT IS TO MAKE TECHNICAL CORRECTIONS TO THAT CERTAIN
ROCKY MOUNTAIN AGREEMENTS SECOND REASSIGNMENT AND ASSUMPTION AGREEMENT (P1),
DATED DECEMBER 30, 1996, RECORDED IN DEED BOOK ____, PAGE ____, OF THE RECORDS
OF THE CLERK OF SUPERIOR COURT OF XXXXX COUNTY, GEORGIA. IT IS THE INTENTION OF
THE PARTIES THAT THIS DOCUMENT SUPERCEDE SUCH OTHER DOCUMENT IN ITS ENTIRETY.
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ROCKY MOUNTAIN AGREEMENTS SECOND
RE-ASSIGNMENT
AND ASSUMPTION AGREEMENT
(P1)
Dated as of December 30, 1996
between
ROCKY MOUNTAIN LEASING CORPORATION,
as Assignor
and
OGLETHORPE POWER CORPORATION
(AN ELECTRIC MEMBERSHIP GENERATION
& TRANSMISSION CORPORATION),
as Assignee
ROCKY MOUNTAIN
PUMPED STORAGE HYDROELECTRIC FACILITY
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ROCKY MOUNTAIN AGREEMENTS
SECOND RE-ASSIGNMENT AND ASSUMPTION AGREEMENT (P1)
This ROCKY MOUNTAIN AGREEMENTS SECOND RE-ASSIGNMENT AND ASSUMPTION
AGREEMENT (P1), dated as of December 30, 1996 (as amended, supplemented or
otherwise modified from time to time in accordance with the provisions hereof,
this "Rocky Mountain Agreements Second Re-assignment"), between ROCKY MOUNTAIN
LEASING CORPORATION, a special purpose Delaware corporation organized under the
laws of the State of Delaware (together with its successors and permitted
assigns, the "Assignor") and OGLETHORPE POWER CORPORATION (AN ELECTRIC
MEMBERSHIP GENERATION & TRANSMISSION CORPORATION), an electric membership
corporation organized under the laws of the State of Georgia (together with its
successors and permitted assigns, the "Assignee").
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 as tenants in common under
Georgia law;
WHEREAS, by the Rocky Mountain Agreements, Oglethorpe and Georgia Power
established their respective rights and obligations as tenants in common of the
Rocky Mountain Site and of all improvements thereafter to be constructed, and
all personal property thereafter to be situated, on the Rocky Mountain Site.
Such improvements and personal property owned by Oglethorpe and Georgia Power as
tenants in common under Georgia law include the Facility;
WHEREAS, as tenants in common of such real and personal property,
Oglethorpe and Georgia Power hold a 74.61% and 25.39% undivided interest,
respectively, in such real and personal property, including the right to
nonexclusive possession of all such real and personal property, subject to the
rights of the other to nonexclusive possession and the terms and conditions of
the Rocky Mountain Agreements;
WHEREAS, pursuant to the Rocky Mountain Agreements Assignment, Oglethorpe
has assigned to the Co-Trustee the Assigned Rocky Mountain Interests for a term
coterminous with that of the Head Lease;
WHEREAS, pursuant to the Rocky Mountain Agreements Re-assignment, the
Co-Trustee has assigned to the Assignor, the Assigned Rocky Mountain Interests
for a term coterminous with that of the Facility Lease;
WHEREAS, by this Rocky Mountain Agreements Second Re-assignment, the
Assignor will assign the Assigned Rocky Mountain Interests to the Assignee for a
term coterminous with that of the Facility Sublease.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
agreements herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. DEFINITIONS.
Capitalized terms used in this Rocky Mountain Agreements Second
Re-assignment and not otherwise defined herein shall have the respective
meanings specified in Appendix A to the Participation Agreement (P1), dated as
of December 30, 1996, among the Assignor, the Assignee, the Owner Trustee, the
Co-Trustee, the Owner Participant and Utrecht-America Finance Co. The general
provisions of Appendix A shall apply to terms used in this Rocky Mountain
Agreements Second Re-assignment as specifically defined herein.
SECTION 2. ASSIGNMENT OF ASSIGNED ROCKY MOUNTAIN INTERESTS TO ASSIGNEE.
The Assignor hereby assigns the Assigned Rocky Mountain Interests to the
Assignee. The assignment effected by this Section 2 shall become effective on
and as of the Closing Date and shall terminate on the expiration or earlier
termination of the Facility Sublease Term.
SECTION 3. ASSUMPTION BY ASSIGNEE.
The Assignee hereby assumes, and agrees to perform, any and all liabilities
and obligations of the Assignor incurred with respect to the Assigned Rocky
Mountain Interests. This assumption shall terminate (except with respect to any
liability or obligation which has accrued prior to such termination) on the
expiration or earlier termination of the Facility Sublease Term.
SECTION 4. AMENDMENTS TO AND ACTIONS UNDER THE ROCKY MOUNTAIN AGREEMENTS.
The Assignee agrees that it will not, without the prior written consent of
the Assignor, the Owner Trustee and the Lender which consents may not be
unreasonably withheld, amend, grant a waiver or consent under, or take any
action or omit to take any action under the Rocky Mountain Ownership Agreement
or the Rocky Mountain Operating Agreement, which could materially, adversely
affect the value, utility or useful life of the Facility or the interest of the
Assignor or the Owner Participant therein, unless such amendment, waiver,
consent, action or inaction is required by law. The parties hereto agree that
any grant of a waiver by Assignee of an assignment by Georgia Power of its
independent dispatch rights under Section 7.02 of the
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Rocky Mountain Operating Agreement without an assignment of Oglethorpe's
independent dispatch rights under such section to the Owner Trustee could
materially adversely affect the interest of the Owner Participant.
SECTION 5. SECURITY FOR ASSIGNOR'S OBLIGATION TO THE LENDER.
In order to secure all amounts payable by and all obligations to be
performed by the Assignor under the Facility Lease, the Assignor will assign for
security purposes its rights under this Rocky Mountain Agreements Second
Re-assignment to the Facility Lessor pursuant to the Facility Sublease
Assignment Agreement. In order to secure the Secured Indebtedness, the Facility
Lessor's right, title and interest in the Facility Sublease Assignment Agreement
will be assigned by the Facility Lessor to the Lender pursuant to the Loan
Agreement and the Deed to Secure Debt. The Assignee hereby consents to such
assignments and the creation of such Liens and acknowledges receipt of copies of
the Facility Sublease Assignment Agreement, the Loan Agreement and the Deed to
Secure Debt, it being understood that such consent shall not affect any
requirement or the absence of any requirement for any consent under any other
circumstances. Unless and until the Assignor shall have received written notice
from the Lender that the assignment pursuant to the Facility Sublease Assignment
Agreement, the Loan Agreement and the Deed to Secure Debt have been fully
terminated the Lender shall have the right to exercise the rights of the
Assignor under this Rocky Mountain Agreements Second Re-assignment to the extent
set forth in the Facility Sublease Assignment Agreement and subject in each case
to the exceptions set forth in the Loan Agreement and the Deed to Secure Debt.
SECTION 6. MISCELLANEOUS.
Section 6.1. Amendments and Waivers. No term, covenant, agreement or
condition of this Assignment and Assumption 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 6.2. Notices. Unless otherwise expressly specified or permitted by
the terms hereof, all communications and notices provided for herein to a party
hereto shall be in writing or by a telecommunications device capable of creating
a written record, and any such notice shall become effective (a) upon personal
delivery thereof, including, without limitation, by overnight mail or courier
service, (b) in the case of notice by United States mail, certified or
registered, postage prepaid, return receipt requested, upon receipt thereof, or
(c) in the case of notice by such a telecommunications device, upon transmission
thereof, provided such transmission is promptly confirmed by either of the
methods set forth in clauses (a) or (b) above, in each case addressed to such
party and copy party at its address set forth below or at
3
such other address as such party or copy party may from time to time designate
by written notice to the other parties:
If to the Assignor:
Rocky Mountain Leasing Corporation
c/o Corporation Trust Center
0000 Xxxxxx Xxxxxx, Xxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
with copies to:
Xxxxxxxxxx, Xxxxxx & Xxxxxxx, L.L.P.
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Cada X. Xxxxxxx, III
to the Owner Participant:
Xxxxxx Xxxxxx Capital Corporation
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxx, Xxx Xxxx 00000-0000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Vice President, Leasing with a copy to
Director, Portfolio Administration
and to the Lender:
Utrecht-America Finance Co.,
c/o Rabobank Nederland, New York Branch
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile No.: (000) 000-0000
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Telephone No.: (000) 000-0000
Attention: General Counsel's Office
If to the Assignee:
Oglethorpe Power Corporation
0000 Xxxx Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000-0000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Vice President - Finance
Section 6.3. Survival. Except as expressly set forth herein, the warranties
and covenants made by each party hereto shall not survive the expiration or
termination of this Rocky Mountain Agreements Second Re-assignment.
Section 6.4. Successors and Assigns.
(a) This Rocky Mountain Agreements Second Re-assignment shall be
binding upon and shall inure to the benefit of, and shall be enforceable by, the
parties hereto and their respective successors and permitted assigns as
permitted by and in accordance with the terms hereof.
(b) Except as expressly provided herein or in any other Operative
Document, the Assignor may not assign or transfer any of its interests herein
without the consent of the Assignee. Except as expressly provided in the
Operative Documents, the Assignee may not assign its interests herein without
the consent of the Assignor and the Owner Trustee.
Section 6.5. Governing Law. This Rocky Mountain Agreements Second
Re-assignment shall be in all respects governed by and construed in accordance
with the laws of the State of New York including all matters of construction,
validity and performance, except to the extent the law of the State of Georgia
is mandatorily applicable.
Section 6.6. Severability. If any provision hereof shall be invalid,
illegal or unenforceable under Applicable Law, the validity, legality and
enforceability of the remaining provisions hereof shall not be affected or
impaired thereby.
Section 6.7. Counterparts. This Rocky Mountain Agreements Second
Re-assignment may be executed in any number of counterparts, each executed
counterpart constituting an original but all together only one instrument.
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Section 6.8. Headings. The headings of the sections of this Rocky Mountain
Agreements Second Re-assignment are inserted for purposes of convenience only
and shall not be construed to affect the meaning or construction of any of the
provisions hereof.
Section 6.9. Further Assurances. Each party hereto will promptly and duly
execute and deliver such further documents to make such further assurances for
and take such further action reasonably requested by any party to whom such
first party is obligated, all as may be reasonably necessary to carry out more
effectively the intent and purpose of this Rocky Mountain Agreements Second
Re-assignment.
Section 6.10. Effectiveness of Rocky Mountain Agreements Second
Re-assignment. This Rocky Mountain Agreements Second Re-assignment has been
dated as of the date first above written for convenience only. This Rocky
Mountain Agreements Second Re-assignment shall be effective on the date of
execution and delivery by each of the Assignee and the Assignor.
Section 6.11. Measuring Life. If and to the extent that any of the rights
and privileges granted under this Rocky Mountain Agreements Second
Re-assignment, would, in the absence of the limitation imposed by this sentence,
be invalid or unenforceable as being in violation of the rule against
perpetuities or any other rule or law relating to the vesting of interests in
property or the suspension of the power of alienation of property, then it is
agreed that notwithstanding any other provision of this Rocky Mountain
Agreements Second Re- assignment, such options, rights and privileges, subject
to the respective conditions hereof governing the exercise of such options,
rights and privileges, will be exercisable only during (a) the longer of (i) a
period which will end twenty-one (21) years after the death of the last survivor
of the descendants living on the date of the execution of this Rocky Mountain
Agreements Second Re-assignment, of the following Presidents of the United
States: Xxxxxxxx X. Xxxxxxxxx, Xxxxx X. Xxxxxx, Xxxxxx X. Xxxxxxxxxx, Xxxx X.
Xxxxxxx, Xxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxx, Xxxxxx X. Xxxx, Xxxxx X. Xxxxxx,
Xxxxxx X. Xxxxxx, Xxxxxx X.X. Xxxx and Xxxxxxx X. Xxxxxxx or (ii) the period
provided under the Uniform Statutory Rule Against Perpetuities or (b) the
specific applicable period of time expressed in this Rocky Mountain Agreements
Second Re-assignment, whichever of (a) and (b) is shorter.
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IN WITNESS WHEREOF, the parties hereto have caused this Rocky Mountain
Agreements Second Re-assignment to be duly executed by their respective officers
thereunto duly authorized.
ROCKY MOUNTAIN LEASING
CORPORATION,
as Assignor
By: /s/ Xxxxx Xxxxx
-----------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
Date: December 30, 1996
Signed and delivered
in the presence of:
/s/ Xxxxxxx Xxxxx
-----------------------
Unofficial Witness
/s/ Xxxxx X. Xxxxx
-----------------------
Notary Public
My Commission Expires: March 16, 1998
[Notary Seal] ---------------
OGLETHORPE POWER CORPORATION
(AN ELECTRIC MEMBERSHIP
GENERATION & TRANSMISSION
CORPORATION),
As Assignee
By: /s/ X. X. Xxxxxxx
-------------------------------
Name: X. X. Xxxxxxx
Title: President and CEO
Date: December 30, 1996
Signed and delivered
in the presence of:
/a/ Xxxx X. Xxxxxxx
-----------------------
Unofficial Witness
/s/ Xxxxx X. Xxxxx
-----------------------
Notary Public
My Commission Expires: March 16, 1998
[Notary Seal] --------------
SCHEDULE TO EXHIBIT 10.32.10
ROCKY MOUNTAIN AGREEMENTS SECOND RE-ASSIGNMENT AND ASSUMPTION AGREEMENT (P1)
The following table indicates for each transaction the name of the
corresponding Owner Participant:
Agreement Date Owner Participant
---------- ------------------ --------------------------------------
P1 December 30, 1996 Xxxxxx Xxxxxx Capital Corporation
P2 January 3, 1997 Xxxxxx Xxxxxx 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
