1
Exhibit 10.19
EXECUTION COPY
OMNIBUS VOTING RIGHTS AGREEMENT
(BA/NC-1/2)
Dated as of July 20, 2000
among
PPL MONTANA, LLC,
MONTANA OL1 LLC,
MONTANA OL3 LLC,
THE CHASE MANHATTAN BANK,
as trustee under the Indenture of Trust, Mortgage and Security Agreement
(NC1/2), dated as of July 20, 2000 with Montana OL1 LLC
and
THE CHASE MANHATTAN BANK,
as trustee under the Indenture of Trust, Mortgage and Security Agreement
(BA1/2), dated as of July 20, 2000 with Montana OL3 LLC
COLSTRIP GENERATING UNITS 1 AND 2
AND RELATED COMMON FACILITIES
2
TABLE OF CONTENTS
PAGE
----
SECTION 1. DEFINITIONS; INTERPRETATION OF THIS OMNIBUS VOTING
AGREEMENT................................................. 2
SECTION 2. APPOINTMENT OF REPRESENTATIVE TO OWNER'S COMMITTEE........ 2
SECTION 3. RIGHTS OF INDENTURE TRUSTEES UPON EVENT OF DEFAULT........ 3
SECTION 4. MISCELLANEOUS............................................. 3
Section 4.1. Amendments and Waivers; Termination ................ 3
Section 4.2. Notices ............................................ 3
Section 4.3. Successors and Assigns ............................. 4
Section 4.4. Measuring Life ..................................... 5
Section 4.5. Governing Law ...................................... 5
Section 4.6. Severability ....................................... 5
Section 4.7. Counterparts ....................................... 5
Section 4.8. Headings and Table of Contents ..................... 5
Section 4.9. Limitation of Liability ............................ 5
Section 4.10. Effectiveness ...................................... 6
Section 4.11. No Partnership, Etc ................................ 6
-i-
3
OMNIBUS VOTING RIGHTS AGREEMENT
(BA/NC-1/2)
This OMNIBUS VOTING RIGHTS AGREEMENT (BA/NC-1/2), dated as of July 20,
2000 (this "Omnibus Voting Agreement"), among (i) PPL MONTANA, LLC, a Delaware
limited liability company ("PPL Montana"), (ii) MONTANA OL1 LLC, a Delaware
limited liability company (the "Owner Lessor (1)"), (iii) MONTANA OL3 LLC, a
Delaware limited liability company (the "Owner Lessor (3)" and, together with
the Owner Lessor (1), the "Owner Lessors"), (iv) THE CHASE MANHATTAN BANK, a
banking corporation organized and existing under the laws of the State of New
York, not in its individual capacity, but solely as trustee under the Indenture
of Trust, Mortgage and Security Agreement (NC1/2), dated as of July 20, 2000
("Lease Indenture (1)") with the Owner Lessor (1) (in such capacity, the "Lease
Indenture Trustee (1)") and (v) THE CHASE MANHATTAN BANK, a banking corporation
organized and existing under the laws of the State of New York, not in its
individual capacity, but solely as trustee under the Indenture of Trust,
Mortgage and Security Agreement (BA1/2), dated as of July 20, 2000 ("Lease
Indenture (3)"), with the Owner Lessor (3), (in such capacity, the "Lease
Indenture Trustee (3)", and, together with the Lease Indenture Trustee (1), the
"Lease Indenture Trustees").
W I T N E S S E T H:
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
Agreement 1-2 and the Operating Agreement 1-2 ("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 each Owner
Lessor such Owner Lessor's respective Undivided Interest with respect to Units 1
and 2 pursuant to each Owner Lessor's respective ▇▇▇▇ of Sale, and has leased to
each Owner Lessor such Owner Lessor's respective Ground Interest with respect to
Units 1 and 2 pursuant to such Owner Lessor's respective Site Lease and
Sublease;
WHEREAS, each Owner Lessor will lease to PPL Montana such Owner Lessor's
respective Undivided Interest with respect to Units 1 and 2 pursuant to such
Owner Lessor's respective Facility Lease, and will sublease to PPL Montana such
Owner Lessor's respective Ground Interest with respect to Units 1 and 2 pursuant
to such Owner Lessor's respective Site Lease and Sublease, in each case, for
such Owner Lessor's respective Facility Lease Term;
WHEREAS, pursuant to separate Assignment and Reassignment Agreements, each
dated as of July 20, 2000 between PPL Montana, LLC and each Owner Lessor
(collectively, the "Assignment and Reassignments"), (i) PPL Montana assigned to
the applicable Owner Lessor all of PPL Montana's right, title and interest as
"Owner" under the Ownership and Operating
4
Agreements 1-2 and the Common Facilities Agreement to the extent related to such
Owner Lessor's Undivided Interest with respect to Units 1 and 2, and (ii) each
Owner Lessor reassigned all of such Owner Lessor's right, title, and interest
with respect to Units 1 and 2 under the Ownership and Operating Agreements 1-2
and the Common Facilities Agreement assigned to it by PPL Montana back to PPL
Montana for a term equal to its Facility Lease Term (unless terminated earlier
pursuant to the terms of its Assignment and Reassignment);
WHEREAS, each Assignment and Reassignment contemplates that the
appointment of the representative to the Owner's Committee under the Ownership
and Operating Agreements 1-2 on behalf of each Undivided Interest with respect
to Units 1 and 2 assigned to the applicable Owner Lessor pursuant to such
Assignment and Reassignment shall be made in accordance with this Omnibus Voting
Agreement; and
WHEREAS, pursuant to this Omnibus Voting Agreement and the terms hereof,
(i) the Owner Lessor (1), the Owner Lessor (3), the Lease Indenture Trustee (1),
the Lease Indenture Trustee (3), and PPL Montana will establish the terms under
which the representative to the Owner's Committee in respect of the interests of
each Owner Lessor in Units 1 and 2 will be appointed, and (ii) the Owner Lessor
(1), the Owner Lessor (3), and PPL Montana will agree with the Lease Indenture
Trustee (1) and the Lease Indenture Trustee (3) that the Lease Indenture Trustee
(1) or the Lease Indenture Trustee (3) may appoint such representative to the
Owner's Committee in certain circumstances.
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; INTERPRETATION OF THIS OMNIBUS VOTING AGREEMENT
The capitalized terms used in this Omnibus Voting Agreement, including the
foregoing recitals, and not otherwise defined herein shall have the respective
meanings specified in Appendix A to the Participation Agreements referred to in
the Assignment and Reassignments. The general provisions of each Appendix A
shall apply to terms used in this Omnibus Voting Agreement and specifically
defined herein.
SECTION 2. APPOINTMENT OF REPRESENTATIVE TO OWNER'S COMMITTEE.
The Owner Lessor (1), the Owner Lessor (3) and PPL Montana agree that the
representative to the Owner's Committee appointed pursuant to Section 10 of the
Ownership Agreement 1-2 shall be appointed by the owner or owners of the
Undivided Interests with respect to Units 1 and 2 who own more than 50% in the
aggregate of such Undivided Interests. For purposes of this ▇▇▇▇▇▇▇ ▇, ▇▇▇
▇▇▇▇▇▇▇ shall be deemed to be the owner of any Undivided Interest for which the
Lessor Possession Date (as defined in the relevant Assignment and Reassignment)
shall not have occurred.
2
5
SECTION 3. RIGHTS OF INDENTURE TRUSTEES UPON EVENT OF DEFAULT.
Notwithstanding any other provision of this Omnibus Voting Agreement or
any other Operative Document to the contrary, each of the parties to this
Omnibus Voting Agreement agrees that, upon the occurrence and during the
continuance of a Lease Event of Default under the Facility Lease of either Owner
Lessor, the Lease Indenture Trustee which is a party to the Lease Indenture in
respect of which the Lease Event of Default shall have occurred and is
continuing, shall, so long as the Lien of the respective Lease Indenture shall
not have been terminated or discharged, have the right, to the exclusion of PPL
Montana and either Owner Lessor, to appoint the representative to the Owner's
Committee and direct all such representative's actions and votes thereunder.
Upon the occurrence and during the continuance of a Lease Event of Default under
both Facility Leases, both Lease Indenture Trustees shall, so long as the Lien
of their respective Lease Indentures shall not have been terminated or
discharged, have the right to the exclusion of PPL Montana and either Owner
Lessor, to jointly appoint the representative to the Owner's Committee and
direct all such representative's actions and votes thereunder.
SECTION 4. MISCELLANEOUS
Section 4.1. Amendments and Waivers; Termination. No term, covenant,
agreement or condition of this Omnibus Voting 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. Notwithstanding the foregoing, if the
Ownership and Operating Agreements 1-2 are amended or clarified so as to permit
each Owner (as defined therein) and such direct or subsequent transferee thereof
(including any lessee) the right to appoint a separate member to the Owner's
Committee, this Agreement shall terminate and be of no further force and effect.
Section 4.2. 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:
3
6
If to PPL Montana:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Vice President and General Counsel
If to the Owner Lessor (1):
Montana OL1 LLC
c/o Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
If to the Owner Lessor (3):
Montana OL3 LLC
c/o Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
If to the Lease Indenture Trustee (1):
The Chase Manhattan Bank
Capital Markets Fiduciary Services
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇/8
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
4
7
If to the Lease Indenture Trustee (3):
The Chase Manhattan Bank
Capital Markets Fiduciary Services
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇/8
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Section 4.3. Successors and Assigns. This Omnibus Voting 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 assigns as permitted by
and in accordance with the terms hereof. Except as expressly provided herein or
in the other Operative Documents (as defined in each respective Assignment and
Reassignment), no party hereto may assign its interests herein without the
consent of the other parties hereto. If any party hereto transfers or assigns
any of its Undivided Interest, then such party shall assign all of its rights
and obligations under this Omnibus Voting Agreement related to such transferred
or assigned interest to the proposed transferee or assignee. Any attempted or
purported transfer and assignment other than in accordance with this Section
shall be void and of no effect.
Section 4.4. Measuring Life. If and to the extent that any of the rights
and privileges granted under this Omnibus Voting 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 Omnibus Voting Agreement, 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 Facility
Lease of the following Presidents of the United States: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ or (ii) the period provided under the Uniform
Statutory Rule Against Perpetuities or (b) the specific applicable period of
time expressed in this Omnibus Voting Agreement, whichever of (a) and (b) is
shorter.
Section 4.5. Governing Law. This Omnibus Voting Agreement has been
delivered in the State of New York and 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 without giving effect to the
conflicts of laws provisions thereof except New York General Obligations Law
Section 5-1401.
Section 4.6. 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.
5
8
Section 4.7. Counterparts. This Omnibus Voting Agreement may be executed
in any number of counterparts, each executed counterpart constituting an
original but all together only one agreement.
Section 4.8. Headings and Table of Contents. The headings of the sections
of this Omnibus Voting Agreement 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 4.9. Limitation of Liability. (a) It is expressly understood and
agreed by the parties hereto that (a) this Omnibus Voting Agreement is executed
and delivered by Wilmington Trust Company ("Wilmington"), not individually or
personally but solely as Lessor Manager under the relevant LLC Agreement, in the
exercise of the powers and authority conferred and vested in it pursuant
thereto, (b) each of the undertakings and agreements herein made on the part of
each Owner Lessor are made and intended not as personal undertakings and
agreements by Wilmington but are made and intended for the purpose for binding
only an 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 either Owner Lessor or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by either Owner Lessor
under this Omnibus Voting Agreement.
(b) It is expressly understood and agreed by the parties hereto that (a)
this Omnibus Voting Agreement is executed and delivered by The Chase Manhattan
Bank ("Chase"), not individually or personally but solely as Lease Indenture
Trustee under the relevant Lease Indenture, in the exercise of the powers and
authority conferred and vested in it pursuant thereto, (b) each of the
undertakings and agreements herein made in such capacity are made and intended
not as personal undertakings and agreements by Chase but are made and intended
in its capacity as Lease Indenture Trustee, (c) nothing herein contained shall
be construed as creating any liability on Chase 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 Chase be personally liable for the payment of any indebtedness or expenses
in its capacity as Lease Indenture Trustee or be liable for the breach or
failure of any obligation, representation, warranty or covenant made or
undertaken in such capacity under this Omnibus Voting Agreement.
Section 4.10. Effectiveness. This Omnibus Voting Agreement has been dated
as of the date first above written for convenience only. This Omnibus Voting
Agreement shall become effective on July 20, 2000, the date of execution and
delivery by each of the parties hereto.
Section 4.11. No Partnership, Etc. The parties hereto intend that nothing
contained in this Omnibus Voting Agreement shall be deemed or construed to
create a partnership, joint venture or other co-ownership arrangement by and
among any of them.
6
9
[BLANK PAGE]
7
10
IN WITNESS WHEREOF, the parties hereto have caused this Omnibus Voting
Agreement to be executed and delivered by their respective officers thereunto
duly authorized.
PPL MONTANA, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
MONTANA OL1 LLC
By: Wilmington Trust Company, not in its
individual capacity but solely as Lessor
Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:Vice President
MONTANA OL3 LLC
By: Wilmington Trust Company, not in its
individual capacity but solely as its
Independent Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
THE CHASE MANHATTAN BANK
not in its individual capacity, but solely as
Lease Indenture Trustee (1) under the Lease
Indenture (1)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
THE CHASE MANHATTAN BANK,
not in its individual capacity, but solely as
Lease Indenture Trustee (3) under the Lease
Indenture (3)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President