EXHIBIT 10.32.18
This instrument, when recorded,
should be returned to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Attorney at Law
The Carnegie Building
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
THE PURPOSE OF THIS INSTRUMENT IS TO MAKE TECHNICAL CORRECTIONS TO THAT CERTAIN
CONSENT NO. 1, DATED DECEMBER 30, 1996, RECORDED IN DEED BOOK ____, PAGE ____,
OF THE RECORDS OF THE CLERK OF SUPERIOR COURT OF ▇▇▇▇▇ COUNTY, GEORGIA. IT IS
THE INTENTION OF THE PARTIES THAT THIS DOCUMENT SUPERCEDE SUCH OTHER DOCUMENT IN
ITS ENTIRETY.
================================================================================
CONSENT NO. 1
Dated as of December 30, 1996
among
GEORGIA POWER COMPANY
and
OGLETHORPE POWER CORPORATION
(AN ELECTRIC MEMBERSHIP GENERATION
& TRANSMISSION CORPORATION)
and
SUNTRUST BANK, ATLANTA,
not in its personal capacity but
solely in its capacity as Co-Trustee
and
FLEET NATIONAL BANK,
not in its personal capacity but
solely in its capacity as Owner Trustee
and
ROCKY MOUNTAIN LEASING CORPORATION
================================================================================
Undivided Interest in Rocky Mountain Pumped
Storage Hydroelectric Project
TABLE OF CONTENTS
Page
----
SECTION 1. DEFINITIONS....................................................... 3
SECTION 2. CONSENTS.......................................................... 3
Section 2.1 Transfers by Oglethorpe................................ 3
Section 2.2 Transfers by the Co-Trustee............................ 4
Section 2.3 Transfers by RMLC...................................... 5
Section 2.4 Certain Matters Pertaining to Rights of Oglethorpe,
the Co-Trustee and RMLC................................ 6
Section 2.5 Oglethorpe Mortgage.................................... 7
SECTION 3. FURTHER AGREEMENTS................................................ 8
SECTION 4. EFFECT OF CONSENT; AMENDMENT OF OPERATIVE
DOCUMENTS......................................................... 8
Section 4.1 Effect of Consent...................................... 8
Section 4.2 Amendments to Documents................................ 8
SECTION 5. CERTAIN RIGHTS OF GEORGIA POWER................................... 9
Section 5.1 Right of First Refusal in Georgia Power................ 9
Section 5.2 Right of Georgia Power to Exercise Purchase Option..... 9
Section 5.3 Restrictions on Transfer of Beneficial Interests....... 10
Section 5.4 Oglethorpe Mortgage.................................... 10
SECTION 6. MUTUAL REPRESENTATIONS AND WARRANTIES.................. 11
Section 6.1 Power and Authority.................................... 11
Section 6.2 Execution, Delivery, Enforceability.................... 11
SECTION 7. CO-OWNERS' REPRESENTATIONS, WARRANTIES AND
COVENANTS......................................................... 11
Section 7.1 No Default............................................. 11
Section 7.2 Ownership.............................................. 11
Section 7.3 Enforceability......................................... 11
Section 7.4 FERC License........................................... 11
SECTION 8. MISCELLANEOUS..................................................... 12
Section 8.1 Governing Law.......................................... 12
Section 8.2 Severability........................................... 12
Section 8.3 Headings and Table of Contents......................... 12
Section 8.4 Successors and Assigns................................. 12
Section 8.5 Amendments and Waivers................................. 12
Section 8.6 Counterparts........................................... 12
Section 8.7 Effectiveness........................................ 12
Section 8.8 Limitation of Liability................................ 12
Page
----
Appendix A - Definitions
2
THIS CONSENT, bearing the number specified on the cover page hereof, dated
as of December 30, 1996 (this "Consent"), among GEORGIA POWER COMPANY, a
corporation organized and existing under the laws of the State of Georgia
(together with its successors and assigns, "Georgia Power"), OGLETHORPE POWER
CORPORATION (AN ELECTRIC MEMBERSHIP GENERATION & TRANSMISSION CORPORATION), an
electric membership corporation organized and existing under the laws of the
State of Georgia (together with its successors and assigns, "Oglethorpe"), and
FLEET NATIONAL BANK, a national banking association organized and existing under
the laws of the State of Georgia (the "Trustee"), and SUNTRUST BANK, ATLANTA, a
state banking corporation, organized and existing under the laws of the United
States (the "Co-Trustee") not in their respective individual capacities, but
solely in their respective trust capacities (collectively, the "Trustees") under
the Trust Agreement (P1) dated as of the date hereof between ▇▇▇▇▇▇ ▇▇▇▇▇▇
Capital Corporation (the "Owner Participant") and the Trustees, as supplemented
(the "Trust Agreement"), and ROCKY MOUNTAIN LEASING CORPORATION, a corporation
organized under the laws of the State of Delaware (together with its successors
and assigns, "RMLC").
RECITALS:
WHEREAS, Georgia Power and Oglethorpe (collectively, the "Co-Owners") are
owners of undivided interests in certain real and personal property located in
▇▇▇▇▇ County, Georgia, commonly known as the Rocky Mountain Pumped Storage
Hydroelectric Project (as more particularly described in Appendix A, the
"Facility"), and are parties to that certain Rocky Mountain Pumped Storage
Hydroelectric Project Ownership Participation Agreement by and between
Oglethorpe and Georgia Power, dated as of November 18, 1988 (the same as
supplemented, modified or amended is referred to herein as the "Rocky Mountain
Ownership Agreement"), which establishes rights and obligations of the parties
thereto as owners of undivided ownership interests in the Facility;
WHEREAS, Georgia Power and Oglethorpe also are parties to that certain
Rocky Mountain Pumped Storage Hydroelectric Project Rocky Mountain Operating
Agreement by and between Oglethorpe and Georgia Power, dated as of November 18,
1988 (the same as supplemented, modified or amended is referred to herein as the
"Rocky Mountain Operating Agreement"), which establishes the respective rights
and obligations of the parties thereto with respect to the management, control,
operation and maintenance of the Facility;
WHEREAS, Sections 7.01, 7.02 and 7.03 of the Rocky Mountain Ownership
Agreement grant the parties thereto certain rights in connection with a proposed
sale, lease, assignment or other transfer of an undivided ownership interest in
the Facility or any portion thereof, or any rights under the Rocky Mountain
Ownership Agreement, and sets forth additional conditions respecting transfers
of such interests, and Section 10.01 of the Rocky Mountain Operating Agreement
imposes certain conditions upon a sale, transfer or assignment of an undivided
ownership interest in the Facility or any portion thereof;
1
WHEREAS, Oglethorpe wishes inter alia to (i) lease an undivided interest in
its undivided interest in the Facility and the Rocky Mountain Site to the
Co-Trustee pursuant to the Head Lease and the Ground Lease, respectively, (ii)
assign its rights under the Rocky Mountain Ownership Agreement and Rocky
Mountain Operating Agreement to the extent they relate to the undivided interest
referred to in clause (i) hereinabove to the Co-Trustee pursuant to the Rocky
Mountain Agreements Assignment, and (iii) engage in other related transactions
as set forth herein;
WHEREAS, Co-Trustee wishes inter alia to (i) lease the undivided interest
leased to it by Oglethorpe in the Facility and the Rocky Mountain Site to RMLC
pursuant to the Facility Lease and the Ground Sublease, respectively, (ii)
assign the rights assigned to it by Oglethorpe under the Rocky Mountain
Agreements Assignment to RMLC pursuant to the Rocky Mountain Agreements
Reassignment, and (iii) engage in other related transactions as set forth
herein;
WHEREAS, the Facility Lease provides that (i) RMLC may purchase the
Co-Trustee's interest in the Facility at the end of the term of the Facility
Lease and (ii) if RMLC does not elect to exercise its purchase option, the
Co-Trustee may either extend the term of the Facility Lease or require RMLC to
return possession and control of the undivided interest to the Co-Trustee or a
substitute lessee.
WHEREAS, RMLC wishes inter alia to (i) lease the undivided interest leased
to it by the Co-Trustee in the Facility and the Rocky Mountain Site to
Oglethorpe pursuant to the Facility Sublease and the Ground Sub-sublease,
respectively, (ii) assign the rights assigned to it by the Co-Trustee under the
Rocky Mountain Agreements Re-Assignment to Oglethorpe pursuant to the Rocky
Mountain Agreements Second Re-Assignment, and (iii) engage in other related
transactions as set forth herein;
WHEREAS, the Facility Sublease provides that (i) Oglethorpe may purchase
RMLC's interest in the Facility at the end of the term of the Facility Sublease
and (ii) if Oglethorpe does not elect to exercise its purchase option, RMLC may
either extend the term of the Facility Sublease or require Oglethorpe to return
possession and control of the undivided interest to RMLC or a substitute lessee.
WHEREAS, Oglethorpe has asked Georgia Power, and Georgia Power is willing,
to consent to the transfers and to the related assignments and assumptions
described herein, and to waive its rights of first refusal, but only on the
terms and conditions set forth in this Consent.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, each of the
undersigned hereby consents and agrees as follows:
2
SECTION 1. DEFINITIONS
Unless the context otherwise requires, the capitalized terms used and not
otherwise defined herein shall have the respective meanings assigned thereto in
the Rocky Mountain Ownership Agreement, the Rocky Mountain Operating Agreement,
and in Appendix A attached hereto and incorporated herein by reference. The
general provisions of Appendix A shall apply to the terms used in this Consent
(including the introduction and recitals hereof) and specifically defined
herein.
SECTION 2. CONSENTS
Section 2.1 Transfers by Oglethorpe. Pursuant to Sections 7.01, 7.02 and
7.03 of the Rocky Mountain Ownership Agreement and Section 10.01 of the Rocky
Mountain Operating Agreement, and subject to the terms and conditions of this
Consent, Georgia Power hereby (i) consents to, and (ii) waives the right of
first refusal granted it pursuant to Section 7.01 of the Rocky Mountain
Ownership Agreement with respect to, each of the following:
(a) The lease of the Undivided Interest from Oglethorpe to the
Co-Trustee under the Head Lease and the transactions provided for or
contemplated therein and the exercise by each of the parties thereto of their
respective rights and obligations thereunder, including, without limitation, the
exercise of remedies thereunder;
(b) The lease of the Ground Interest from Oglethorpe to the Co-Trustee
under the Ground Lease and the transactions provided for or contemplated therein
and the exercise by each of the parties thereto of their respective rights and
obligations thereunder, including, without limitation, the exercise of remedies
thereunder;
(c) The assignment by Oglethorpe to the Co-Trustee pursuant to the
Rocky Mountain Agreements Assignment of the Assigned Rocky Mountain Interests
and the transactions provided for or contemplated therein and the exercise by
each of the parties thereto of their respective rights and obligations;
(d) Any renewal or extension of the Head Lease or the Ground Lease by
the Co-Trustee pursuant to the terms thereof; and
(e) The grant by Oglethorpe of a security interest in Oglethorpe's
interest in the Undivided Interest, the Ground Interest, the Rocky Mountain
Ownership Agreement and the Rocky Mountain Operating Agreement pursuant to the
Subordinated Deed to Secure Debt and the transactions provided for or
contemplated therein and the exercise by each of the parties thereto of their
respective rights and obligations thereunder, including, without limitation, the
exercise of remedies thereunder.
Notwithstanding anything in this Section 2 to the contrary, and except as
otherwise set forth in Section 5.1, any proposed sale, lease, assignment or
other transfer to any Person other than a
3
party to the Operative Documents of the Undivided Interest, the Rocky Mountain
Site or the Rocky Mountain Agreements pursuant to the agreements referred to
above shall be subject to a right of first refusal identical to that set forth
in Section 5.1.
Section 2.2 Transfers by the Co-Trustee. Pursuant to Sections 7.01, 7.02
and 7.03 of the Rocky Mountain Ownership Agreement and Section 10.01 of the
Rocky Mountain Operating Agreement, and subject to the terms and conditions of
this Consent, each Co-Owner hereby (i) consents to, and (ii) waives the right of
first refusal granted it pursuant to Section 7.01 of the Rocky Mountain
Ownership Agreement with respect to, each of the following:
(a) The lease of the Undivided Interest from the Co-Trustee to RMLC
under the Facility Lease and the transactions provided for therein and the
exercise by each of the parties thereto of their respective rights and
obligations thereunder, including the exercise of remedies thereunder;
(b) The lease of the Ground Interest from the Co-Trustee to RMLC under
the Ground Sublease and the transactions provided for therein and the exercise
by each of the parties thereto of their respective rights and obligations
thereunder, including the exercise of remedies thereunder;
(c) The assignment by the Co-Trustee to RMLC pursuant to the Rocky
Mountain Agreements Re-assignment of the Assigned Rocky Mountain Interests and
the transactions provided for therein;
(d) The subsequent transfer, if any, by the Co-Trustee to RMLC of the
Undivided Interest and the Ground Interest in accordance with the terms of the
Facility Lease and the Ground Sublease;
(e) Any renewal or extension of the Facility Lease or the Ground
Sublease by the Co-Trustee in accordance with the terms of the Facility Lease
and the Ground Sublease; and
(f) The pledge and mortgage by the Co-Trustee to the Lender of, and
the grant of a security interest pursuant to the Loan Agreement and the Deed to
Secure Debt and the transactions provided for therein and the exercise by each
of the parties thereto of their respective rights and obligations thereunder,
including the exercise of remedies thereunder in favor of the Lender in, (i) the
Co-Trustee's interest in the Undivided Interest under the Head Lease, (ii) the
Co-Trustee's interest in the Ground Interest under the Ground Lease, (iii) the
Co-Trustee's interest in the Assigned Rocky Mountain Interests under the Rocky
Mountain Agreements Assignment and (iv) the Co-Trustee's interest in the
Facility Sublease, the Ground Sub-sublease and the Rocky Mountain Agreements
Second Re-assignment to the extent assigned to the Co-Trustee pursuant to the
Assignment of Facility Sublease.
Notwithstanding anything in this Section 2 to the contrary, and except as
otherwise set forth in Section 5.1, any proposed sale, lease, assignment or
other transfer to any Person other than a
4
party to the Operative Documents of the Undivided Interest, the Rocky Mountain
Site or the Rocky Mountain Agreements pursuant to the agreements referred to
above shall be subject to a right of first refusal identical to that set forth
in Section 5.1.
Section 2.3 Transfers by RMLC. Pursuant to Sections 7.01, 7.02 and
7.03 of the Rocky Mountain Ownership Agreement and Section 10.01 of the Rocky
Mountain Operating Agreement, and subject to the terms and conditions of this
Consent, each Co-Owner and the Co-Trustee hereby (i) consents to, and (ii)
waives the right of first refusal granted it pursuant to Section 7.01 of the
Rocky Mountain Ownership Agreement with respect to, each of the following:
(a) The lease of the Undivided Interest from RMLC to Oglethorpe under
the Facility Sublease and the transactions provided for therein and the exercise
by each of the parties thereto of their respective rights and obligations
thereunder, including the exercise of remedies thereunder;
(b) The lease of the Ground Interest from RMLC to Oglethorpe under the
Ground Sub-sublease and the transactions provided for therein and the exercise
by each of the parties thereto of their respective rights and obligations
thereunder, including the exercise of remedies thereunder;
(c) The assignment by RMLC to Oglethorpe pursuant to the Rocky
Mountain Agreements Second Re-Assignment of the Assigned Rocky Mountain
Interests and the transactions provided for therein;
(d) The subsequent transfer, if any, by RMLC to Oglethorpe of the
Undivided Interest or the Ground Interest in accordance with the Facility
Sublease and the Ground Sub-sublease;
(e) Any renewal or extension of the Facility Sublease or Ground
Sub-sublease by RMLC or Oglethorpe in accordance with the terms of the Facility
Sublease and the Ground Sub-sublease; and
(f) The pledge and mortgage by RMLC to the Co-Trustee of, and the
grant of a security interest in favor of the Co-Trustee in, the Facility
Sublease, the Ground Sub-sublease and the Rocky Mountain Agreements Second
Re-assignment and the transactions provided for therein, including the exercise
of remedies thereunder.
Notwithstanding anything in this Section 2 to the contrary, and except as
otherwise set forth in Section 5.1, any proposed sale, lease, assignment or
other transfer to any Person other than a party to the Operative Documents of
the Undivided Interest, the Rocky Mountain Site or the Rocky Mountain Agreements
pursuant to the agreements referred to above shall be subject to a right of
first refusal identical to that set forth in Section 5.1.
5
Section 2.4 Certain Matters Pertaining to Rights of Oglethorpe, the
Co-Trustee and RMLC. Each of the undersigned agrees that:
(a) Rights of Oglethorpe, RMLC and the Co-Trustee as Participants. The
Rocky Mountain Agreements Assignment provides for Oglethorpe to assign to the
Co-Trustee, for a period commencing on the Closing Date and terminating at the
end of the Head Lease Term, all right, title, estate and interest of Oglethorpe,
as a Participant (as such term is defined in the Rocky Mountain Ownership
Agreement) in, to and under each of the Rocky Mountain Ownership Agreement and
the Rocky Mountain Operating Agreement to the extent of the Assigned Rocky
Mountain Interests. The Rocky Mountain Agreements Re-assignment provides for the
Co-Trustee to assign to RMLC, for a period commencing on the Closing Date and
terminating at the end of the Facility Lease Term, all right, title, estate and
interest of the Co-Trustee as a Participant in, to and under each of the Rocky
Mountain Ownership Agreement and the Rocky Mountain Operating Agreement to the
extent of the Assigned Rocky Mountain Interests. The Rocky Mountain Agreements
Second Re-assignment further provides for RMLC to assign to Oglethorpe, for a
period commencing on the Closing Date and terminating at the end of the Facility
Sublease Term, all right, title, estate and interest of RMLC as a Participant
in, to and under each of the Rocky Mountain Ownership Agreement and the Rocky
Mountain Operating Agreement to the extent of the Assigned Rocky Mountain
Interests. From and after delivery of the Rocky Mountain Agreements Second
Re-assignment and continuing until the earlier of (x) exercise of any remedy
under Section 17 of the Facility Sublease and (y) termination of the Facility
Sublease, Oglethorpe shall, for all purposes under the Rocky Mountain Ownership
Agreement and the Rocky Mountain Operating Agreement, possess all of the rights
and obligations of a "Participant" (as defined in the Rocky Mountain Agreements)
with respect to the Undivided Interest and the Ground Interest, including,
without limitation, all rights to give consents or approvals or otherwise to
vote as a Participant with respect to the Undivided Interest and the Ground
Interest in accordance with the provisions of the Rocky Mountain Ownership
Agreement and the Rocky Mountain Operating Agreement and the Operative
Documents. Notwithstanding the provisions of the preceding sentence, after the
Closing Date, the Co-Trustee and RMLC shall have the right, upon reasonable
notice to Oglethorpe, to inspect the Facility in accordance with the provisions
of the Facility Lease and Ground Sublease, and Facility Sublease and Ground
Sub-sublease, respectively. Until the end of the Facility Sublease Term, unless
otherwise provided in the Operative Documents, any amounts payable to the
Participants pursuant to the Rocky Mountain Ownership Agreement in respect of
the Undivided Interest or the Ground Interest in connection with the loss,
damage, destruction, transfer or other disposition of the Facility or the Rocky
Mountain Site shall be payable to Oglethorpe to the extent of Oglethorpe's
percentage undivided interest in each thereof, subject to and in accordance with
the terms of the Rocky Mountain Ownership Agreement and the Rocky Mountain
Operating Agreement.
(b) Obligations of Oglethorpe, RMLC and the Co-Trustee as
Participants. Georgia Power will look solely to Oglethorpe and any permitted
successor or assignee of Oglethorpe's interest under the Facility Sublease for
payment and performance of all indebtedness, obligations and liabilities arising
under the Rocky Mountain Ownership Agreement, the Rocky Mountain Operating
Agreement and the FERC License or otherwise
6
prior to the end of the Facility Lease or the Facility Sublease with respect to
the Facility, the Rocky Mountain Site, the Undivided Interest and the Ground
Interest, including, without being limited to, Operating Costs arising in
connection with operation of the Facility and obligations under the FERC
License; and RMLC, the Trustees, the Owner Participant and the Lender shall have
no responsibility or liability for any of the foregoing. The parties hereto
agree, however, that should Oglethorpe default in any payment required to be
made under the Rocky Mountain Ownership Agreement or the Rocky Mountain
Operating Agreement, any right of RMLC or the Co-Trustee, or their successors
and assigns, to the capacity and energy allocable to the Undivided Interest is
subject to the rights of Georgia Power under the provisions of Article VI of the
Rocky Mountain Ownership Agreement and Article VI of the Rocky Mountain
Operating Agreement until all defaults properly allocable to the Undivided
Interest in accordance with Article VI of the Rocky Mountain Ownership
Agreement, Article VI of the Rocky Mountain Operating Agreement, or both, as the
case may be, together with interest at the rate provided for therein (compounded
as set forth therein) have been paid in full.
(c) Rights of RMLC Upon Sublease Event of Default. Upon the exercise
of any remedy under Section 17 of the Facility Sublease in which the Facility
Sublessor terminates the Facility Sublessee's rights in the Rocky Mountain
Agreements, RMLC shall have the Facility Lessor's Percentage in all right,
title, estate, interest, duties and obligations in, to and under each of the
Rocky Mountain Ownership Agreement and Rocky Mountain Operating Agreement, to
the extent and only to the extent of the Facility Lessor's Percentage in
Assigned Rocky Mountain Interests and the right to give consents or approvals or
otherwise to vote. Any action taken by any "Participant" to meet, or consider
decisions, with respect to the Undivided Interest from and after the exercise of
any remedy under Section 17 of the Facility Sublease in which the Facility
Sublessor terminates the Facility Sublessee's rights in the Rocky Mountain
Agreements, shall at all times be subject to the rights and obligations of RMLC
as a "Participant" under and subject to the provisions of the Rocky Mountain
Ownership Agreement and the Rocky Mountain Operating Agreement.
(d) Rights of Co-Trustee after Facility Lease Event of Default. Upon
the exercise of any remedy under Section 17 of the Facility Lease in which the
Facility Lessor terminates the Facility Lessee's rights in the Rocky Mountain
Agreements, the Co-Trustee shall have the Facility Lessor's Percentage in all
right, title, estate, interest, duties and obligations in, to and under each of
the Rocky Mountain Ownership Agreement and Rocky Mountain Operating Agreement,
to the extent and only to the extent of the Facility Lessor's Percentage in the
Assigned Rocky Mountain Interests and the right to give consents or approvals or
otherwise to vote. Any action taken by any "Participant" to meet, or consider
decisions, with respect to the Undivided Interest from and after the exercise of
any remedy under Section 17 of the Facility Lease in which the Facility Lessor
terminates the Facility Lessee's rights in the Rocky Mountain Agreements shall
at all times be subject to the rights and obligations of the Co-Trustee as a
"Participant" under and subject to the provisions of the Rocky Mountain
Ownership Agreement and the Rocky Mountain Operating Agreement.
Section 2.5 Oglethorpe Mortgage. Notwithstanding the foregoing, any
rights that Oglethorpe, the Co-Trustee, RMLC, the Lender and AMBAC have with
respect to the Rocky
7
Mountain Agreements shall be and are expressly subject and subordinate to the
lien of the Oglethorpe Mortgage.
SECTION 3. FURTHER AGREEMENTS.
Oglethorpe agrees to indemnify and hold harmless and defend Georgia Power
from and against any and all claims, judgments, loss, damage, cost or expense,
including without limitation, attorney's fees, arising out of or alleged to
arise out of any act done by, or any failure of performance of any act by,
Georgia Power which is required of Georgia Power under this Consent,
irrespective of the fault of Georgia Power with respect thereto, and
irrespective of whether such claims arise in tort, contract, strict liability or
otherwise. The foregoing indemnity shall not have any adverse affect on Georgia
Power's obligations to the Co-Trustee or RMLC under this Consent.
SECTION 4. EFFECT OF CONSENT; AMENDMENT OF OPERATIVE DOCUMENTS.
Section 4.1 Effect of Consent. Except as specifically provided herein,
nothing contained in this Consent shall be construed as modifying the Rocky
Mountain Ownership Agreement or the Rocky Mountain Operating Agreement or as
modifying in any way the rights or obligations of the parties thereto. By
executing this Consent, Georgia Power does not become a party to and shall not
be bound by any term, provision, covenant, agreement, recital or definition of
terms set forth in any of the Transaction Documents other than the Rocky
Mountain Ownership Agreement, the Rocky Mountain Operating Agreement and this
Consent. In the event of any conflict between the definitions, terms or
provisions of any of the documents entered into by Oglethorpe and others or the
Co-Trustee and others relating to the transactions contemplated by this Consent,
including, without limitation, the Operative Documents, and the definitions,
terms and provisions of the Rocky Mountain Ownership Agreement, the Rocky
Mountain Operating Agreement, or both, the Rocky Mountain Ownership Agreement
and the Rocky Mountain Operating Agreement shall control, with respect to the
subjects addressed therein, except as specifically otherwise provided elsewhere
in this Consent.
Section 4.2 Amendments to Documents. Oglethorpe, RMLC and the Co-Trustee
each agrees that it will not agree to any amendment to the Operative Documents
or any other documents executed in connection therewith which would materially
adversely affect the rights of Georgia Power under this Consent, the Rocky
Mountain Ownership Agreement or the Rocky Mountain Operating Agreement, without
Georgia Power's further consent which consent shall not be unreasonably
withheld.
8
SECTION 5. CERTAIN RIGHTS OF GEORGIA POWER.
Section 5.1 Right of First Refusal in Georgia Power. If at any time during
the Head Lease Term the Co-Trustee shall seek to sell, lease, convey, transfer,
assign, encumber or alienate in any manner its interest in the Facility Lessor's
Rocky Mountain Interest or any portion or portions thereof, to any Person other
than RMLC, Oglethorpe or to a Replacement Lessee pursuant to Section 15.2 of the
Facility Lease if neither RMLC nor Georgia Power elects to exercise the Purchase
Option under Section 15.1 of the Facility Lease or Section 5.2 hereof,
respectively, such sale, lease, conveyance or other transfer, shall be subject
to Georgia Power's right of first refusal on the terms and conditions set forth
in this Section 5.1. Georgia Power's exercise of such right shall be made by
accepting or rejecting a contract proposed by the Co-Trustee which contract
shall be open for acceptance by Georgia Power for a period of thirty (30) days
after receipt and in the event such offer is accepted by Georgia Power, the
Co-Trustee and Georgia Power shall proceed to a closing pursuant to the terms of
the aforesaid contract in an expeditious manner but in any event no later than
fifteen days after such contract is accepted; provided, however, that Co-Trustee
shall have the right to convey a security interest in the Facility Lessor's
Rocky Mountain Interest pursuant to the Loan Agreement and the Deed to Secure
Debt or any successor Loan Agreement entered into pursuant to Section 15.5 of
the Facility Lease as well as enter into the Facility Lease and permit RMLC to
enter into the Facility Sublease. If Georgia Power does not give such notice to
the Co-Trustee within such thirty (30) day period and proceed to a closing
pursuant to the terms of such contract in an expeditious manner but in any event
no later than fifteen days after such notice is given, the Co-Trustee will be
free to proceed to effect a transaction on terms and conditions that are not
materially different from those offered to Georgia Power for a period of one
year following such offer, after which any such sale, lease, conveyance,
transfer, assignment or encumbrance shall be subject to Georgia Power's right of
first refusal set forth in this Section 5.1. Following a sale to a Person other
than Georgia Power in accordance with this Section 5.2, Georgia Power's rights
with respect to any subsequent sales, leases, conveyances or other transfers
hereunder shall be governed by the Rocky Mountain Agreements. Notwithstanding
any provision to the contrary, it is agreed and understood that any transfer of
its interest in the Undivided Interest under the Head Lease by the Co-Trustee to
any successor Trustee pursuant to Section 9 of the Trust Agreement shall not be
subject to the provisions of this Section 5.1. In connection with Georgia
Power's exercise of the right of first refusal pursuant to this Section 5.1 with
respect to the Undivided Interest, the Ground Interest and the Assigned Rocky
Mountain Interests shall be conveyed to Georgia Power.
Section 5.2 Right of Georgia Power to Exercise Purchase Option. If RMLC
shall not elect the Purchase Option pursuant to Section 15.1 of the Facility
Lease, Georgia Power shall have the right to purchase the Undivided Interest on
the Expiration Date on the terms and conditions set forth in this Section 5.2.
Georgia Power shall give RMLC, the Owner Participant and the Co-Trustee written
notice of its irrevocable election to exercise the purchase option provided by
this Section 5.2 by the date no later than the earlier of (i) the date 60 days
following the date eighteen months prior to the Expiration Date and (ii) the
date 60 days following receipt by Georgia Power from the RMLC of notice of its
election not to exercise the Purchase Option. If Georgia Power shall not give
the notice contemplated by the
9
preceding sentence, it will have no right to purchase the Undivided Interest
pursuant to this Section 5.2. If Georgia Power shall give notice of its election
to purchase the Undivided Interest pursuant to this Section 5.2, it shall become
unconditionally obligated to pay in immediately available funds on the
Expiration Date all amounts of the Purchase Option Price and, without
duplication of its covenant set forth in the succeeding sentence, RMLC shall be
obligated to pay on the Expiration Date the amounts set forth in clauses (a)(ii)
and (a)(iii) of Section 15.1 of the Facility Lease. If Georgia Power elects to
purchase the Undivided Interest in accordance with this Section 5.2 and RMLC and
Oglethorpe have complied with all of their obligations under the Operative
Documents as of the Expiration Date, the Co-Trustee and the RMLC each agree to
comply with their respective covenants set forth in Section 15.1 of the Facility
Lease (other than, in the case of RMLC, the covenant to pay any amounts of the
Purchase Option Price) in order to permit Georgia Power to purchase the
Undivided Interest in accordance with such Section 15.1 of the Facility Lease.
Other than as set forth in the preceding sentence and Section 15.4 of the
Facility Lease, RMLC shall have no obligations in connection with Georgia
Power's exercise of the election set forth in this Section 5.2. In connection
with Georgia Power's exercise of the purchase option provided by this Section
5.2, the Ground Interest and the Assigned Rocky Mountain Interest shall be
conveyed to Georgia Power.
Section 5.3 Restrictions on Transfer of Beneficial Interests. In addition
to the criteria set forth in Section 5.1 of the Participation Agreement relating
to an assignment, conveyance or transfer of all or a portion of its interests in
the Beneficial Interest, any such Transferee of such interest will not be a
direct competitor of Georgia Power, unless such limitation is waived by Georgia
Power. For purposes of this Section, a "direct competitor of Georgia Power"
shall mean an entity which, or an Affiliate of which, is significantly involved
as a seller of capacity and energy at wholesale or retail within the service
territory of Georgia Power.
Section 5.4 Oglethorpe Mortgage. Georgia Power acknowledges and agrees that
any transfer to it of any or all of the Facility Lessor's Rocky Mountain
Interest pursuant to Section 5.1 hereof or any purchase by it of the Undivided
Interest, Ground Interest and the Assigned Rocky Mountain Interest pursuant to
Section 5.2 hereof shall be subject and subordinate to the lien of the
Oglethorpe Mortgage (unless the lien of the Oglethorpe Mortgage shall have been
released with respect to the Undivided Interest, the Ground Interest and the
Assigned Rocky Mountain Agreements) and that in connection with any such
transfer or purchase, Georgia Power shall execute and deliver any documents or
instruments (including, without limitation, UCC-1s) that the secured parties
under the Oglethorpe Mortgage may reasonably request in order to establish and
maintain such secured parties' security interest (and the priority thereof) with
respect to the Undivided Interest, the Ground Interest and the Assigned Rocky
Mountain Agreements.
10
SECTION 6. MUTUAL REPRESENTATIONS AND WARRANTIES.
Each of Georgia Power and Oglethorpe represents and warrants to RMLC, the
Owner Participant and the Co-Trustee, and RMLC and the Co-Trustee represents to
each of Georgia Power and Oglethorpe that:
Section 6.1 Power and Authority. It has the corporate power and authority
to execute this Consent.
Section 6.2 Execution, Delivery, Enforceability. This Consent has been duly
authorized, executed and delivered by it or on its behalf and constitutes its
legal, valid and binding obligation, enforceable against it in accordance with
its terms.
SECTION 7. CO-OWNERS' REPRESENTATIONS, WARRANTIES AND COVENANTS.
Each of Georgia Power and Oglethorpe represents, warrants and covenants to
RMLC, the Owner Participant and the Co-Trustee that:
Section 7.1 No Default. To the best of its knowledge, no default under the
Rocky Mountain Ownership Agreement or the Rocky Mountain Operating Agreement has
occurred and is continuing; provided, however, that the parties to the Rocky
Mountain Ownership Agreement, the Rocky Mountain Operating Agreement or both may
be performing their respective rights and obligations under such agreements
other than in accordance with the strict terms thereof.
Section 7.2 Ownership. It is the owner of an undivided interest in the
Facility and the Rocky Mountain Site and has not sold, leased or otherwise
transferred an interest therein to any Person other than another Co-Owner.
Section 7.3 Enforceability. Each of the Rocky Mountain Ownership Agreement
and the Rocky Mountain Operating Agreement constitutes valid and binding
obligations of Oglethorpe and Georgia Power enforceable in accordance with their
respective terms, except as the same may be limited by bankruptcy, insolvency,
fraudulent, conveyance, reorganization, arrangement, moratorium or other laws
relating to or affecting the rights of creditors generally and by general
principles of equity. It will fully perform its obligations under the Rocky
Mountain Agreement in accordance with its terms.
Section 7.4 FERC License. It has fully performed all of the obligations
under the FERC License. During the Facility Sublease Term, it will fully perform
the obligations with respect to the FERC License in Section 10.05 of the Rocky
Mountain Ownership Agreement and not look to the Co-Trustee or RMLC for any
contribution or other responsibility for such obligations. It will perform the
obligations set forth in Section 10.05 of the Rocky Mountain Ownership Agreement
assuming that such provision includes a reference to the Co-Trustee and
11
RMLC as well as Oglethorpe and Georgia Power and cooperate in all respects with
the efforts of the Co-Trustee, RMLC and Oglethorpe to obtain a renewal of the
FERC License.
SECTION 8. MISCELLANEOUS.
Section 8.1 Governing Law. This Consent shall be in all respects governed
by and construed in accordance with the laws of the State of Georgia including
all matters of construction, validity and performance.
Section 8.2 Severability. If any provision hereof shall be invalid, illegal
or unenforceable under Applicable Law, the validity, legality and enforceability
of the remaining provisions hereof shall not be affected or impaired thereby.
Section 8.3 Headings and Table of Contents. The headings of the sections of
this Consent 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 8.4 Successors and Assigns. This Consent 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, the Operative Documents and the Rocky Mountain
Agreements.
Section 8.5 Amendments and Waivers. No term, covenant, agreement or
condition of this Consent 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 8.6 Counterparts. This Consent may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute but
one and the same instrument.
Section 8.7 Effectiveness. This Consent has been dated as of the date first
above written for convenience only. This Consent shall be effective on the date
of execution and delivery by all of the parties hereto.
Section 8.8 Limitation of Liability. It is expressly understood and agreed
by the parties hereto that (a) this Consent is executed and delivered by
SunTrust Bank and Fleet National Bank, not individually but solely as a Trustee
under the Trust Agreement bearing the number on the cover page hereto, in the
exercise of the powers and authority conferred and vested in it, (b) each of the
representations, undertakings and agreements herein made on the part of the
Co-Trustee or the Non-Georgia Trustee in their respective trust capacities only
is made and intended not as personal representations, undertakings and
agreements by SunTrust Bank or Fleet National Bank but is made and intended for
the purpose for binding only the Co-Trustee or the Non-Georgia Trustee in their
respective trust capacities only, (c) nothing
12
herein contained shall be construed as creating any liability on SunTrust Bank
or Fleet National Bank, 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, (d) under no circumstances shall SunTrust Bank or
Fleet National Bank be personally liable for the payment of any indebtedness or
expenses of the Co-Trustee or the Non-Georgia Trustee in their respective trust
capacities only or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Co-Trustee under
this Consent or (e) the Owner Participant shall have no liability to Georgia
Power under this Consent or any other Transaction Document during the term of
the Facility Lease.
13
IN WITNESS WHEREOF, the undersigned have executed this Consent under seal
as of the day and year first hereinabove written.
Signed and delivered in the presence of: GEORGIA POWER COMPANY
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------- ------------------------------
Unofficial Witness Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Title: Senior Vice President
--------------------------
s/s ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Notary Public
My Commission Expires: August 11, 1998
---------------
[NOTARY SEAL]
Signed and delivered in the presence of: OGLETHORPE POWER CORPORATION
(AN ELECTRIC MEMBERSHIP
GENERATION & TRANSMISSION
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ CORPORATION)
----------------------------------------
Unofficial Witness
By:/s/ ▇. ▇. ▇▇▇▇▇▇▇
------------------------------
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Name: ▇. ▇. ▇▇▇▇▇▇▇
---------------------------------------- ---------------------------
Notary Public Title: President and CEO
--------------------------
My Commission Expires:January 19, 1998
[NOTARY SEAL]
Signed and delivered in the presence of: SUNTRUST BANK, ATLANTA, not in its
individual capacity, but solely as
Co-Trustee under the Trust Agreement
/s/ E. M. Schadru
--------------------------------------
Unofficial Witness
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------- ---------------------------------
Notary Public Name: ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Title: Vice President
-----------------------------
My Commission Expires: Jan 19, 1998 By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Notary Public ------------ ---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
Title: Vice President
[NOTARY SEAL] -----------------------------
Signed and delivered in the presence of: ROCKY MOUNTAIN LEASING
CORPORATION
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ By:/s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------- ---------------------------------
Unofficial Witness Name: ▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Title: Vice President
-----------------------------
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Notary Public
My Commission Expires:Jan 19, 1998
[NOTARY SEAL]
Signed and delivered in the presence of: FLEET NATIONAL BANK, not in its
individual capacity, but solely as
Trustee under the Trust Agreement
/s/ D. E. McGrum By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------- ---------------------------------
Unofficial Witness Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
Title: Vice President
-----------------------------
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Notary Public
My Commission Expires: 1/19/98
---------
[NOTARY SEAL]
SCHEDULE TO EXHIBIT 10.32.18
CONSENT NO.1
The following table indicates for each transaction the name of the
corresponding Owner Participant:
Agreement Date Owner Participant
--------- ------------------- --------------------------------------
1 December 30, 1996 ▇▇▇▇▇▇ ▇▇▇▇▇▇ Capital Corporation
2 January 3, 1997 ▇▇▇▇▇▇ ▇▇▇▇▇▇ Capital Corporation
3 December 30, 1996 First Chicago Leasing Corporation
4 December 30, 1996 First Chicago Leasing Corporation
5 December 30, 1996 NationsBanc Leasing & R.E. Corporation
6 January 3, 1997 NationsBanc Leasing & R.E. Corporation
Other than Appendix A, the Exhibits and Schedules to the Consent No.1 are
not filed herewith; however, the registrant hereby agrees that such Exhibits and
Schedules will be provided to the Commission upon request.
Appendix A
to
Consent No. 1
Definitions
Refer to Appendix A to Exhibit 10.32.1 of the Form 10-K.
