EXHIBIT 10.32.19
Cross Reference This Instrument when Xxxxx X. Xxxxxxx
Deed Book: ____ recorded should be Coudert Brothers
Pages: _______ returned to: 0000 Xxxxxx xx xxx
Xxxxxxxx
Xxx Xxxx, XX 00000
OPC INTERCREDITOR AND SECURITY AGREEMENT NO. 1
This OPC Intercreditor and Security Agreement No. 1, dated as of December
30, 1996 (this "Agreement") among The United States of America (the
"Government") acting through the Administrator of the Rural Utilities Services,
as successor to the Rural Electrification Administration, SunTrust Bank,
Atlanta, a banking corporation organized under the laws of Georgia which it is
anticipated will be the grantee and act as secured party under the Indenture
referred to below (the "New Mortgagee"), Oglethorpe Power Corporation (An
Electric Membership Generation & Transmission Corporation), an electric
membership corporation organized under the laws of Georgia ("OPC"), Rocky
Mountain Leasing Corporation, a Delaware corporation ("RMLC"), SunTrust Bank,
Atlanta, a banking corporation organized under the laws of Georgia, not in its
individual capacity, but solely as Co-Trustee under the Trust Agreement (the
"Co-Trustee"), Fleet National Bank, a national banking association, not in its
individual capacity, but solely as Owner Trustee under the Trust Agreement (the
"Owner Trustee"), Utrecht-America Finance Co., a Delaware corporation (the
"Lender") and AMBAC Indemnity Corporation, a Wisconsin domiciled stock insurance
corporation ("AMBAC"; each of OPC, RMLC, the Co- Trustee, the Owner Trustee, the
Lender and AMBAC, together with their respective successors and assigns being
also referred to herein as a "Transaction Party" and collectively, the
"Transaction Parties"). Capitalized terms used herein and not defined in Section
19 or elsewhere in this Agreement are used with the meaning set forth in
Appendix A hereto.
RECITALS
A. The Government and OPC are parties to that certain Consolidated Mortgage
and Security Agreement, dated as of September 1, 1994 (as heretofore or
hereafter amended, supplemented, modified or restated, the "OPC Mortgage"; and
together with the OPC Indenture (as hereinafter defined) and any other mortgage
or security agreement hereinafter entered into in substitution or replacement
for the OPC Mortgage or the OPC Indenture (either in connection with the
refinancing or restructuring of the indebtedness currently or hereafter secured
by the OPC Mortgage or the OPC Indenture or otherwise) the "Senior Mortgage and
Security Agreement") pursuant to which OPC has granted to the Government and
certain other Mortgagees (collectively, the "Original Mortgagees"), a first
priority security interest in, and security title to, substantially all of OPC's
property, including, without limitation, OPC's interest in the Rocky Mountain
Site
and the Facility which, in turn, includes OPC's ownership interest in the
Undivided Interest and the Ground Interest and OPC's rights in respect of the
Rocky Mountain Agreements;
B. In connection with the restructuring of OPC (which is currently expected
to be consummated in 1997), OPC proposes to enter into that certain Indenture,
to be dated as of January 1, 1997 (as the same may be amended, supplemented or
modified following the execution and delivery thereof, the "OPC Indenture"),
pursuant to which OPC intends to grant to the New Mortgagee a perfected security
interest in, and security title to, substantially all of OPC's property,
including, without limitation, OPC's ownership interest in the Undivided
Interest and the Ground Interest and OPC's rights in respect of the Rocky
Mountain Agreements;
C. Following the filing and recordation of the OPC Indenture in all
appropriate filing offices, it is anticipated that the security title of the OPC
Mortgage will be released, at which time the security title of the OPC Indenture
will constitute a first perfected security interest in, and security title to,
substantially all of OPC's property, including, without limitation, the
Undivided Interest and the Ground Interest and the Rocky Mountain Agreements;
D. The Participation Agreement contemplates, among other things, that OPC
will lease the Undivided Interest to the Co-Trustee pursuant to the terms of the
Head Lease (which for federal income tax purposes will be treated as a sale by
OPC of the Undivided Interest); that the Co-Trustee will lease the Undivided
Interest to RMLC pursuant to the terms of the Facility Lease (which for federal
income tax purposes will be treated as a "true lease" by the Co-Trustee of the
Undivided Interest); that RMLC will lease the Undivided Interest to OPC pursuant
to the terms of the Facility Sublease (which for federal income tax purposes
will be treated as a "true lease" by RMLC of the Undivided Interest); that OPC
will assign its rights under the Rocky Mountain Agreements (to the extent the
same relate to the Undivided Interest) to the Co-Trustee, the Co-Trustee will
assign its rights under the Rocky Mountain Agreements to RMLC and RMLC will
assign its rights under the Rocky Mountain Agreements to OPC pursuant to the
terms of the Rocky Mountain Agreements Assignment, the Rocky Mountain Agreements
Re-assignment and the Rocky Mountain Agreements Second Re-assignment,
respectively; that OPC will lease the Ground Interest to the Co-Trustee, the
Co-Trustee will sublease the Ground Interest to RMLC and RMLC will, in turn,
sublease the Ground Interest to OPC pursuant to the terms of the Ground Lease,
the Ground Sublease and the Ground Sub-sublease, respectively; that the
Co-Trustee will assign, among other things, all of its rights, title and
interest in the Head Lease, the Facility Lease, the Facility Sublease Assignment
Agreement, the Ground Lease, the Ground Sublease, the Rocky Mountain Agreements
Assignment and the Rocky Mountain Agreements Re-assignment to the Lender as
security for the payment and performance by, among others, the Co-Trustee of the
Secured Indebtedness; and that OPC will grant a security interest in the
Undivided Interest, the Ground Interest and the Rocky Mountain Agreements ( to
the extent the same relate to the Undivided Interest) to the Subordinated
Secured Parties pursuant to the terms of the Subordinated Deed to Secure Debt
and Security Agreement as security for the payment and performance by OPC of the
Secured Obligations (the transactions referred to in this clause D and more
fully described in the Operative Documents being hereinafter referred to as the
"Transactions").
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NOW THEREFORE, the parties hereto hereby agree as follows:
Section 1. Priority of Security Interest and Mortgage in Favor of the
Senior Secured Parties. (a) Each Transaction Party acknowledges and agrees that
the security title and security interest of the Original Mortgagees in the
Undivided Interest, the Ground Interest and the Rocky Mountain Agreements
created by the OPC Mortgage is a first and prior security title and security
interest that is not being released by the Original Mortgagees in connection
with the consummation of the Transactions and that the interest (if any) of each
Transaction Party in the Undivided Interest (including, without limitation, all
Components and Modifications), the Ground Interest, and the Rocky Mountain
Agreements (whether such interest arises by virtue of the Head Lease, the
Facility Lease, the Facility Sublease, the Facility Sublease Assignment
Agreement, the Ground Lease, the Ground Sublease, the Ground Sub-sublease, the
Rocky Mountain Agreements Assignment, the Rocky Mountain Agreements
Re-assignment, the Rocky Mountain Agreements Second Re-assignment, the Deed to
Secure Debt, the Subordinated Deed to Secure Debt and Security Agreement or
otherwise), shall be subject and subordinate in all respects to the security
title and security interest of the Senior Mortgage and Security Agreement. As
between the Transaction Parties and the Senior Secured Parties, the foregoing
priority shall govern irrespective of (a) any statement contained in any of the
Operative Documents to the contrary, (b) the time, order or method of attachment
or perfection of the mortgage and security interests granted thereby, (c) the
time or order of filing or recording of financing statements, (d) any applicable
provision of the Uniform Commercial Code or any applicable law or (e) the
occurrence of any other event or any contingency whatsoever.
(b) In furtherance, but not in limitation, of the foregoing, each of the
Owner Trustee and the Co-Trustee hereby acknowledges and agrees that a security
title and security interest exists in the Undivided Interest (including, without
limitation, all Components and Modifications), the Ground Interest and the Rocky
Mountain Agreements in favor of the Original Mortgagees and any other Senior
Secured Party as security for the performance and payment in full of the OPC
Secured Obligations and that upon the occurrence and continuance of one or more
"Events of Default", as defined in the Senior Mortgage and Security Agreement,
the Senior Secured Parties shall be entitled to exercise any and all remedies
against the Undivided Interest (including, without limitation, all Components
and Modifications), the Ground Interest and the Rocky Mountain Agreements
available to it under the Senior Financing Agreements, at law or otherwise. The
Government agrees to use reasonable efforts to notify the Trustees and the
Lender at least 10 days in advance of the consummation of any foreclosure of its
security interest in the Undivided Interest, the Ground Interest and the Rocky
Mountain Agreements; provided, however, that the Government's failure to do so
shall not give rise to any liability on the part of the Government. Each of the
Owner Trustee and the Co-Trustee hereby authorizes the Government and any other
Senior Secured Party to file any financing statements, fixture filings and
continuation statements indicating the Owner Trustee and the Co-Trustee as
"Debtor" or "Lessee" and the Senior Secured Parties as "Secured Party" or
"Lessor" under the UCC which the Government or such other Senior Secured Party
believes is necessary or desirable in order to confirm perfection of the
security interest referred to above. Such security interest is senior and
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prior to any interest of any Transaction Party in the Undivided Interest, the
Ground Interest, and the Rocky Mountain Agreements. As between the Transaction
Parties and the Senior Secured Parties, the foregoing priority shall govern
irrespective of (a) any statement contained in any of the Operative Documents to
the contrary, (b) the time, order or method of attachment or perfection of the
mortgage and security interests granted thereby, (c) the time or order of filing
or recording of financing statements, (d) any applicable provision of the
Uniform Commercial Code or any applicable law or (e) the occurrence of any other
event or any contingency whatsoever.
(c) For the avoidance of doubt, each Transaction Party acknowledges and
agrees that a disposition of the Undivided Interest, the Ground Interest or the
Rocky Mountain Agreements by any Senior Secured Party pursuant to an exercise of
remedies under the Senior Mortgage and Security Agreement shall, without further
act, divest such Transaction Party of its interest (if any) in the property so
disposed of (whether such interest arises by virtue of the Head Lease, the
Facility Lease, the Facility Sublease, the Ground Lease, the Ground Sublease,
the Ground Sub-sublease, the Rocky Mountain Agreements Assignment, the Rocky
Mountain Agreements Re-assignment, the Rocky Mountain Agreements Second
Re-assignment, the Deed to Secure Debt, the Subordinated Deed to Secure Debt and
Security Agreement or otherwise) subject to the Transaction Parties' continuing
interest in the proceeds (if any) of such disposition in excess of the OPC
Secured Obligations. Notwithstanding the foregoing provisions of this Section
1(c), a divestiture of any Transaction Party's interest in the Undivided
Interest (including, without limitation, all Components and Modifications), the
Ground Interest or the Rocky Mountain Agreements shall not affect any
Transaction Party's or the Owner Participant's claims against any other
Transaction Party (or the Owner Participant) for rents, principal, interest and
other sums payable under any Operative Document in accordance with its terms or
for damages as a result of such other Transaction Party's (or the Owner
Participant) breach of its obligations under any of the Operative Documents.
(d) By its execution and delivery of this Agreement, the Government
consents, to the extent such consent is required by law or agreement or
necessary to prevent any default or "Event of Default" from occurring under the
Senior Financing Agreements (and each of them) solely as a result of the
Transactions, to the execution and delivery by OPC of the Operative Documents to
which it is a party, the consummation of the Transactions contemplated thereby
and the exercise by the Transaction Parties of their rights thereunder
(consistent with the terms of this Agreement).
For the avoidance of doubt, notwithstanding the consummation of the
Transactions, OPC shall remain bound by its covenants in the Senior Mortgage and
Security Agreement including, without limitation, covenants as to maintenance,
insurance, inspection, lien lifting and loss or damage involving the Facility
(it being understood that OPC's lien lifting covenant shall not extend to the
liens or encumbrances expressly permitted hereby).
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(e) Notwithstanding any other provision hereof to the contrary, the
Government acknowledges and agrees that the property released from the lien of
the OPC Mortgage pursuant to the Partial Release has been released from the lien
of the OPC Mortgage contemporaneously with the effectiveness of this Agreement
and all recitals and agreements as to the existence or priority of the lien of
the Senior Mortgage and Security Agreement shall be understood to apply to
property of OPC other than such released property.
Section 2. Limitation on Exercise of Remedies by Subordinated Secured
Parties. So long as any of the OPC Secured Obligations remain outstanding and
are secured by a security title on the Undivided Interest, the Ground Interest
and the Rocky Mountain Agreements, neither AMBAC, nor the Co-Trustee shall, so
long as any Subordinated Deed to Secure Debt and Security Agreement Event of
Default shall have occurred and be continuing, exercise its rights under the
Subordinated Deed to Secure Debt and Security Agreement to foreclose upon the
collateral covered thereby without the prior written consent of the Government
(which consent may be given or withheld in its sole and absolute discretion).
Section 3. Waivers by Transaction Parties. Each Transaction Party waives to
the fullest extent permitted by applicable law any requirement regarding, and
agrees not to demand, request, plead or otherwise claim the benefit of, any
marshaling, appraisal, valuation or other similar right that may otherwise be
available under applicable law or any other similar rights a creditor or secured
creditor may have under applicable law; any right under Section 9-504(l)(c) of
the Uniform Commercial Code as in effect in the State of New York (the "UCC") to
application of the proceeds of disposition; any right to notice and objection
under Section 9-505(2) of the UCC and promptness, diligence, notice of
acceptance and any other notice with respect to this Agreement; and any
requirement that the Senior Secured Parties or any Senior Creditor protect,
secure, perfect or insure any security title or security interest on the
Undivided Interest, the Ground Interest or the Rocky Mountain Agreements or any
other collateral subject to any Senior Mortgage and Security Agreement (the
"Senior Collateral") or any other property subject to any other mortgage or
security agreement benefiting the Senior Secured Parties or exhaust any right or
take any action against OPC, or any other person or entity or any Senior
Collateral, or any other collateral; and any other right relating to the
exercise by the Senior Secured Parties or any Senior Creditor of any right or
remedy provided in the Senior Mortgage and Security Agreement, hereunder or at
law, including, without limitation, the provisions of Article 9 of the Uniform
Commercial Code as in effect in any applicable jurisdiction; provided, that the
foregoing waivers shall not include a waiver by such Transaction Party of its
rights under any mandatorily non- waivable provision of applicable law.
No Transaction Party shall contest, or bring (or join in) any action or
proceeding for the purpose of contesting, the validity, perfection or priority
of, or seeking to avoid, this Agreement, any Senior Mortgage and Security
Agreement or any rights of the Senior Secured Parties hereunder or thereunder in
or with respect to the Undivided Interest, the Ground Interest or the Rocky
Mountain Agreements or the validity or reasonableness of any action or failure
to act in respect of the Undivided Interest, the Ground Interest or the Rocky
Mountain Agreements by such
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Senior Secured Parties, including, without limitation, the timing, method or
manner of disposing of or liquidating any or all of the Undivided Interest, the
Ground Interest or the Rocky Mountain Agreements, including, without limitation,
the price and percentage of consideration received in cash, of any such
disposition or liquidation or any failure to dispose of or liquidate any or all
of the Undivided Interest, the Ground Interest or the Rocky Mountain Agreements.
Section 4. Workouts and Restructurings Relating to the Facility and Rocky
Mountain Site. If the Senior Secured Parties (or their nominee or designee)
shall accept a conveyance or transfer of the Undivided Interest, the Ground
Interest or the Rocky Mountain Agreements or any portion thereof from OPC by
deed in lieu of foreclosure, or shall agree to the sale, auction or transfer of
the Undivided Interest, the Ground Interest or the Rocky Mountain Agreements or
any portion thereof as part of a settlement of an action relating to a default
under the Senior Financing Agreements or otherwise as part of a so-called
"workout" with OPC and the Senior Secured Parties or the Senior Creditors, such
conveyance, sale or transfer shall be made free and clear of the interests of
any of the Transaction Parties in and to the Undivided Interest, the Ground
Interest, and the Rocky Mountain Agreements. The Government agrees to use
reasonable efforts to notify the Trustees and the Lender at least 10 days in
advance of the consummation of any sale, auction, conveyance or transfer
referred to in this Section 4; provided, however, that the Government's failure
to do so shall not give rise to any liability on the part of the Government.
Without limiting the generality of Section 8, each Transaction Party agrees to
execute and deliver to the Government such instruments and/or releases or
terminations of security titles or interest, without warranty, as reasonably
requested by the Government to give effect to the foregoing provisions of this
Section 4.
Section 5. Concerning the Operative Documents. (a) All Loan Certificates,
all Additional Loan Certificates and any loan certificates issued in connection
with a refinancing of the Loan Certificates shall contain language substantially
similar to that contained in the Loan Certificate issued on the Closing Date to
the effect that the security interest and security title of the Lender in the
Undivided Interest, the Ground Interest and the Rocky Mountain Agreements is
subject and subordinate to the security title in favor of the Senior Secured
Parties, as more fully set out in this Agreement.
(b) Each Transaction Party hereby agrees that all property insurance
proceeds relating to insurance policies purchased by OPC received by such
Transaction Party from insurers, and all proceeds received by such Transaction
Party from any governmental entity in connection with the condemnation,
confiscation or any other taking, in either case involving the Undivided
Interest or the Ground Interest, shall be held by such Transaction Party in
trust for the benefit of the Senior Secured Parties and promptly paid over to
the Government, as long as the OPC Mortgage remains in effect and thereafter to
the trustee under the OPC Indenture in each case for distribution or application
as required by the Senior Financing Agreements. Any such proceeds which are
required to be disbursed to OPC by the Senior Secured Parties pursuant to the
Senior Financing Agreements shall to the extent required by the Operative
Documents be paid to the Lender for distribution pursuant to the Loan Agreement.
For purposes of the preceding sentence,
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the Senior Secured Parties shall be entitled to rely on a statement from the
Lender as to whether or not such proceeds are required to be paid to the Lender
pursuant to the Operative Documents.
Section 6. No Agency Relationship. This Agreement shall not create an
agency relationship between the Senior Secured Parties and the Transaction
Parties. The Senior Secured Parties and their respective officers, directors,
employees and agents shall not be responsible, directly or indirectly, to the
Transaction Parties for any action taken or omitted by the Senior Secured
Parties hereunder or under any Senior Mortgage and Security Agreement or any
other agreement or instrument relating thereto or otherwise, nor shall it be
liable or responsible for any loss, cost or expense suffered or incurred by the
Transaction Parties. The Senior Secured Parties may each rely and shall be
protected in acting or refraining from acting upon any written notice,
instrument or request furnished to it hereunder and believed by it to be genuine
and to have been signed or presented by the proper party. Each Senior Secured
Party may consult with counsel of its own choice and shall have full and
complete authorization and protection for any action taken or suffered by it
hereunder in good faith and in accordance with the advice of such counsel.
Section 7. Further Assurances. Each Transaction Party will, at the expense
of OPC, at any time and from time to time, promptly execute and deliver all such
other instruments and documents, without warranty, and take all further action,
that the Senior Secured Parties or any Senior Creditor through the Senior
Secured Parties may reasonably request, in order to protect or confirm any right
or interest granted or purported to be granted hereby or to enable the Senior
Secured Parties to exercise and enforce their rights and remedies hereunder.
OPC, at its own cost and expense, will cause any financing statements and
fixture filings (and continuation statements with respect thereto) referred to
in Section 1(b) to be recorded or filed at such places and times in such manner,
and will take all such other actions or cause such actions to be taken, as may
be required by the Senior Mortgage and Security Agreement to establish,
preserve, protect and perfect the Senior Secured Parties' first priority
security title and security interest in and to the Undivided Interest, the
Ground Interest and the Rocky Mountain Agreements. Without limiting the
generality of the foregoing, upon execution and delivery of the OPC Indenture
each Transaction Party agrees, at the cost and expense of OPC, to execute and
deliver and file and record such further documents or instruments as the
Government may reasonably request to order to confirm the rights of the Senior
Secured Parties hereunder.
Section 8. Specific Performance. The Senior Secured Parties are hereby
authorized, to the maximum extent permitted by applicable law, to demand
specific performance of this Agreement at any time when any Transaction Party
shall have failed to comply with any of the provisions of this Agreement
applicable to it. Each Transaction Party hereby irrevocably waives, to the
maximum extent permitted by applicable law, any defense based on the adequacy of
a remedy at law that might be asserted as a bar to such remedy of specific
performance.
Section 9. Non-Impairment. Nothing in this Agreement shall impair, as
between OPC on the one hand and the Senior Creditors on the other, the OPC
Secured Obligations or impair, as between OPC on the one hand and the other
Transaction Parties and the Owner
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Participant on the other, the obligations of OPC under the Operative Documents.
For the avoidance of doubt, the parties hereto expressly agree that the exercise
by the Senior Secured Parties and/or the Senior Creditors of their respective
rights and remedies hereunder and under the Senior Financing Agreements,
including, without limitation, foreclosure on the Undivided Interest, the Ground
Interest and the Rocky Mountain Agreements, shall in no way affect any claims
that any Transaction Party or the Owner Participant may have against any other
Transaction Party or the Owner Participant for rents, principal, interest and
other sums payable under any Operative Document in accordance with its terms or
as a result of the latter's breach of its obligations under any of the Operative
Documents.
Section 10. Inconsistent Provisions. By executing this Intercreditor
Agreement neither the Government or any other Senior Secured Party or Senior
Creditor becomes a party to nor shall be bound by any term, provision, covenant,
agreement, recital or definition of terms set forth in any of the Operative
Documents. Notwithstanding any other provision hereof to the contrary (including
without limitation, Section 1(d)), as between the Senior Secured Parties and the
Senior Creditors on the one hand and the Transaction Parties on the other, in
the event of any conflict between the definitions, terms or provisions of any of
the Operative Documents and the definitions, terms and provisions of this
Agreement, this Agreement shall control, with respect to the subjects addressed
herein.
Section 11. Effectiveness of Agreement. Each party hereto represents and
warrants as to itself that this Agreement constitutes the legal, valid and
binding agreement of such party enforceable against it in accordance with its
terms, except as the same may be limited by bankruptcy, insolvency or other
similar laws relating to or affecting the rights of creditors generally and by
general principles of equity. This Agreement has been dated as of the date first
above written for convenience only and shall become effective upon execution and
delivery hereof by the parties hereto. This Agreement shall remain in full force
and effect ,subject to termination by written agreement of the parties hereto,
unless and until (x) the OPC Secured Obligations are paid in full or (y) all
obligations owing to any Transaction Party, other than OPC, pursuant to the
Operative Documents (or any of them) shall have been paid in full and the
Operative Documents terminated (whether by expiration of time or otherwise) or
(z) the Senior Mortgage and Security Agreement shall have been released in
accordance with its terms. Subject to the preceding sentence, all rights,
interest, agreements and obligations of the Senior Secured Parties and the
Transaction Parties under this Agreement, shall remain in full force and effect
irrespective of:
(i) any lack of validity or enforceability of the Senior Financing
Agreements;
(ii) any change in the time, manner or place of payment of, the security
for, or in any other term of, all or any of the OPC Secured
Obligations or any other extension, renewal, amendment (including,
without limitation, in the maximum amount of indebtedness which can be
secured by the Senior Mortgage and Security Agreement), waiver,
refinancing or restructuring of or any consent to departure from the
Senior Financing Agreements;
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(iii) any exchange, release or non-perfection of the Senior Collateral or
any other collateral, or any release or amendment or waiver of or
consent to departure from any guaranty, for all or any of the OPC
Secured Obligations; or
(iv) any other circumstance that might otherwise constitute a defense
available to, or a discharge of, OPC or a debtor.
This Agreement shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the OPC Secured Obligations is
rescinded or must otherwise be returned by the Senior Secured Parties or any
Senior Creditor upon the insolvency, bankruptcy or reorganization of OPC, or
otherwise, all as though such payment had not been made.
Section 12. Amendments to this Agreement. No amendment of this Agreement
shall be effective unless in writing and signed by the party against whom
enforcement is sought. No waiver of any provision of this Agreement nor consent
to any departure, therefrom shall in any event be effective unless the same
shall be in writing and signed by the affected party, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
Section 13. Expenses. OPC shall pay, upon demand, to the Senior Secured
Parties and the Transaction Parties the amount of any and all reasonable
expenses, including, without limitation, the reasonable fees and expenses of
counsel, that the Senior Secured Parties or any other Senior Creditor and the
Transaction Parties may incur in connection with the exercise or enforcement of
any of the rights or interest of the Senior Secured Parties and the Transaction
Parties hereunder.
Section 14. Notices. All demands, notices and other communications provided
for hereunder shall be in writing, (including telecopier communication) and, if
to any Transaction Parties, mailed or communicated or delivered to it as
provided in the Participation Agreement and if to the Government or AMBAC,
mailed or communicated or delivered to it as follows:
if to the Government:
Administrator
Rural Utilities Service
United States Department of Agriculture
0000 Xxxxxxxxxxxx Xxxxxx X.X.
Xxxxxxxxxx, X.X. 00000-0000
Fax:
if to AMBAC:
Ambac Indemnity Corporation
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Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: President
Fax: 000-000-0000
or at such other address as shall be designated by a party hereto in a written
notice to each other party complying with the terms of this subparagraph. All
such demand, notices and other communications shall be effective when received.
Section 15. Waiver. No failure on the part of any party hereto to exercise,
and no delay in exercising, any right hereunder shall operate as a waiver
thereof or of any right under any Senior Financing Agreement or Operative
Document or any other document related thereto; nor shall any single or partial
exercise of any right hereunder preclude any other or further exercise thereof
or the exercise of any other right hereunder or under any Senior Financing
Agreement or Operative Document. The remedies herein provided are cumulative and
not exclusive of any remedies provided by law.
Section 16. Assignment. This Agreement is a continuing agreement and shall
(i) be binding upon the parties hereto and their successors and permitted
assigns and (ii) inure to the benefit of and be enforceable by the parties
hereto and their respective successors and assigns. Without limiting the
generality of the foregoing clause (ii), any Senior Secured Party or Senior
Creditor may assign or otherwise transfer all or any part or portion of its
rights and obligations under the Senior Financing Agreements to any other
Person, and such other Person shall thereupon become vested with all the rights
in respect thereof granted to such Senior Secured Party or Senior Creditor
herein or otherwise. So long as the Undivided Interest and the Ground Interest
remain subject to any security title in favor of the Senior Secured Parties,
each Transaction Party (other than the Lender) agrees that it will not assign or
otherwise transfer any of its interest in the Undivided Interest, the Ground
Interest, the Rocky Mountain Agreements or the Operative Documents unless the
Person to whom such disposition is made shall have delivered to the Senior
Secured Parties on or before the date such assignment or transfer is consummated
a written agreement to be bound by the terms of this Agreement.
Section 17. Invalidity. If any provisions of this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions hereof shall not in any way be affected or impaired.
Section 18. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws (excluding conflict of law rules) of the
State of New York.
Section 19. Definitions. As used herein, the following capitalized terms
are used with the meanings set forth below:
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"OPC Indenture" shall have the meaning set forth in Recital B.
"OPC Mortgage" shall have the meaning set forth in Recital A.
"OPC Secured Obligations" shall mean all obligations, whether now existing
or hereafter incurred, of OPC secured by any Senior Mortgage and Security
Agreement.
"Partial Release" shall mean that certain Partial Release of Security
Interest dated as of December 30, 1996 made by the Original Mortgagees.
"Senior Creditor" shall mean any creditor holding claims against OPC which
are secured by the security title or security interest of any Senior
Mortgage and Security Agreement.
"Senior Collateral" shall have the meaning specified in Section 3.
"Senior Financing Agreements" shall mean the Senior Mortgage and Security
Agreement and any other agreement, indenture or instrument relating thereto
and shall include, without limitation, in the case of the OPC Mortgage, the
notes secured by the security title of the OPC Mortgage and the "REA Loan
Contract", the "CoBank Loan Agreements", the "Credit Agreement" and the
"Pollution Control Loan Agreement", as such terms are defined in the OPC
Mortgage, and in the case of the OPC Indenture, the "Obligations" secured
by the security title of the OPC Indenture.
"Senior Mortgage and Security Agreement" shall have the meaning set forth
in Recital A.
"Senior Secured Party" shall mean with respect to the OPC Mortgage, each of
the Original Mortgagees (or any successor thereto), and with respect to the
OPC Indenture, the New Mortgagee (or any successor thereto).
"UCC" shall have the meaning set forth in Section 3.
Section 20. Closing Conditions. The obligation of the Government to execute
and deliver this Agreement shall be subject to:
(a) receipt by the Government of a copy of all Operative Documents and
all certificates, instruments, documents and opinions of counsel related
thereto and delivered on the Closing Date (and in the case of opinions of
counsel, each such opinion shall, except as otherwise agreed to by the
Government, also be addressed to the Senior Secured Parties or delivered
together with a reliance letter from such counsel);
(b) receipt by the Government of opinions of counsel to each of the
Transaction Parties as to the validity and enforceability of this
Agreement, such opinions to be in form and substance reasonably acceptable
to the Senior Secured Parties;
-11-
(c) receipt by the Government of one or more opinions of OPC's counsel
as to the existence of a perfected security title and the security interest
in favor of the Senior Secured Parties in the Undivided Interest, the
Ground Interest and the Rocky Mountain Agreements and as to the continuity
of such security title and security interest after giving effect to the
consummation of the Transactions, such opinions to be in form and substance
reasonably acceptable to the Senior Secured Parties; and
(d) receipt by Rabobank of an amount (as agreed to between the
Government and OPC), which amount is to be held in escrow pursuant to an
Escrow Agreement among the Government, OPC and Rabobank.
Section 21. Security Agreement. This Agreement constitutes a security
agreement under, and in accordance with, the UCC for the benefit of the Secured
Parties as secured parties and shall support any financing statements showing
the Co-Trustee's interest as "debtor" or "lessee" and the Senior Secured Parties
interest as "secured parties" or "lessors" with respect to the Undivided
Interest, the Ground Interest and the Rocky Mountain Agreements (to the extent
assigned to the Co-Trustee).
Section 22. Limitation on Liability. (a) It is expressly understood and
agreed by the parties hereto that (a) this Agreement is executed and delivered
by SunTrust Bank, Atlanta, not individually or personally but solely as
Co-Trustee, under the Trust Agreement, in the exercise of the powers and
authority conferred and vested in it and at the express direction of the Owner
Trustee, (b) each of the representations, undertakings and agreements herein
made on the part of the Co-Trustee is made and intended not as personal
representations, undertakings and agreements by SunTrust Bank, Atlanta, but is
made and intended for the purpose of binding only the Co-Trustee, (c) nothing
herein contained shall be construed as creating any liability on Sun Trust Bank,
Atlanta, individually or personally, to perform any covenant either express or
implied contained herein, all such liability, if any, being expressly waived by
each of the Transaction Parties or by any Person claiming by, through or under
any of the Transaction Parties and (d) under no circumstances shall SunTrust
Bank, Atlanta be personally liable for the payment of any indebtedness or
expenses of the Co-Trustee or be liable for the breach or failure of any
obligation, representation, warranty or covenant made or undertaken by the
Co-Trustee under this Agreement. In addition, each of the parties hereto
acknowledges and agrees that the Co-Trustee has been appointed by the Owner
Participant and Owner Trustee for the purpose of exercising those trust powers
in the State of Georgia which may not be exercised by the Owner Trustee under
applicable law, and that, except as otherwise required by applicable law, the
Co-Trustee shall not be obligated to take any action hereunder or undertake any
other duty with respect to this Agreement unless expressly directed in writing
by the Owner Trustee or the Owner Participant in accordance with the terms of
the Trust Agreement.
-12-
(b) It is expressly understood and agreed by the parties hereto that (a)
this Agreement is executed and delivered by Fleet National Bank not individually
or personally but solely as Owner Trustee, under the Trust Agreement, (b) each
of the representations, undertakings and agreements herein made on the part of
the Owner Trustee is made and intended not as personal representations,
undertakings and agreements by Fleet National Bank, but is made and intended for
the purpose of binding only the Owner Trustee, (c) nothing herein contained
shall be construed as creating any liability on Fleet National Bank,
individually or personally, to perform any covenant either express or implied
contained herein, all such liability, if any, being expressly waived by each of
the Transaction Parties or by any Person claiming by, through or under any of
the Transaction Parties and (d) under no circumstances shall Fleet National Bank
be personally liable for the payment of any indebtedness or expenses of the
Owner Trustee or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Owner Trustee
under this Agreement. In addition, each of the parties hereto acknowledges and
agrees that except as otherwise required by applicable law, the Owner Trustee
shall not be obligated to take any action hereunder or undertake any other duty
with respect to this Agreement unless expressly directed in writing by the Owner
Participant in accordance with the terms of the Trust Agreement.
-13-
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date hereof.
UNITED STATES OF AMERICA
acting by and through the
Administrator of the Rural
Utilities Service
By: /s/ Xxxxx Xxxxx
--------------------------------------
Name: /s/ Xxxxx Xxxxx
Title: Administrator - RUS
Signed and delivered in the
presence of
/s/ Xxxxxxx X. Xxxxxx
-------------------------------
Unofficial Witness
/s/ Xxxxxxx X. Xxxxx
-------------------------------
Notary Public
My Commission Expires: April 25, 2002
[Notary Seal] --------------
-00-
XXXXXXXX XXXX, XXXXXXX, not in its individual
capacity but solely as the New Mortgagee
By: /s/ Xxxxx Xxxxxx
------------------------------------------
Name: Xxxxx Xxxxxx
----------------------------------------
Title: Vice President
---------------------------------------
Signed and delivered in the By: /s/ Xxxxxx Tyompson
presence of ------------------------------------------
Name: Xxxxxx Xxxxxxxx
----------------------------------------
Title: Vice President
---------------------------------------
/s/ E. M. Schandru
-------------------------------
Unofficial Witness
/s/ Xxxxx X. Xxxxx
-------------------------------
Notary Public
My Commission Expires: March 16, 1998
[Notary Seal] --------------
-00-
XXXXXXXX XXXX, XXXXXXX, not in its
individual capacity but solely as Co-Trustee
under the Trust Agreement
By: /s/ Xxxxx Xxxxxx
------------------------------------------
Name: Xxxxx Xxxxxx
----------------------------------------
Title: Vice President
---------------------------------------
Signed and delivered in the By: /s/ Xxxxxx Tyompson
presence of ------------------------------------------
Name: Xxxxxx Xxxxxxxx
----------------------------------------
Title: Vice President
---------------------------------------
/s/ E. M. Schandru
-------------------------------
Unofficial Witness
/s/ Xxxxx X. Xxxxx
-------------------------------
Notary Public
My Commission Expires: March 16, 1998
[Notary Seal] --------------
-16-
OGLETHORPE POWER CORPORATION (AN
ELECTRIC GENERATION AND TRANSMISSION
CORPORATION)
By: /s/ X. X. Xxxxxxx
-----------------------------------------
Name: X. X. Xxxxxxx
---------------------------------------
Title: President and CEO
--------------------------------------
Signed and delivered in the Attest: /s/ Xxxx X. Xxxxxxx
presence of -------------------------------------
Name: Xxxx X. Xxxxxxx
---------------------------------------
Title: Secretary-Treasurer
--------------------------------------
/s/ X. X. Xxxxxx
------------------------------
Unofficial Witness
/s/ Xxxxx X. Xxxxx
------------------------------
Notary Public
My Commission Expires: March 16, 1998
[Notary Seal] ---------------
-17-
ROCKY MOUNTAIN LEASING CORPORATION
By: /s/ Xxxxx Xxxxx
-----------------------------------------
Name: Xxxxx Xxxxx
---------------------------------------
Title: Vice President
--------------------------------------
Signed and delivered in the Attest: /s/ X. X. Xxxxxx
presence of ---------------------------------------
Name: Xxxxx X. Xxxxxx
---------------------------------------
Title: Secretary-Treasurer
--------------------------------------
/s/ Xxxxxxx Xxxxx
------------------------------
Unofficial Witness
/s/ Xxxxx X. Xxxxx
------------------------------
Notary Public
My Commission Expires: March 16, 1998
[Notary Seal] --------------
-18-
FLEET NATIONAL BANK, not in its individual
capacity, but solely as Owner Trustee under the
Trust Agreement
By: /s/ Xxxxx XxXxxxxx
------------------------------------------
Name: Xxxxx XxXxxxxx
----------------------------------------
Title: Vice President
---------------------------------------
Signed and delivered in the
presence of
/s/ D. E. McGru
--------------------------------
Unofficial Witness
/s/ Xxxxx X. Xxxxx
--------------------------------
Notary Public
My Commission Expires: March 16, 1998
[Notary Seal] ---------------
-19-
UTRECHT-AMERICA FINANCE CO.
By: /s/ X. X. den Xxxx /s/ Xxxxx X. Xxxxx
------------------------------------------
Name: X. X. den Xxxx Xxxxx X. Xxxxx
----------------------------------------
Title: Vice President Asst. Treasurer
---------------------------------------
Signed and delivered in the
presence of
/s/ Xxxx XxXxxxx
-------------------------------
Unofficial Witness
/s/ Xxxxxxxx X. Xxxxxxx
-------------------------------
Notary Public
My Commission Expires: November 30, 1998
[Notary Seal] -----------------
-20-
AMBAC INDEMNITY CORPORATION
By: /s/ X. X. Xxxxxxx
----------------------------------------
Name: X. X. Xxxxxxx
--------------------------------------
Title: First Vice President
-------------------------------------
Signed and delivered in the
presence of
/s/ D. E. McGru
-----------------------------
Unofficial Witness
/s/ Xxxxx X. Xxxxx
-----------------------------
Notary Public
My Commission Expires: March 16, 1998
[Notary Seal] --------------
-21-
Schedule to Exhibit 10.32.19
OPC Intercreditor and Security Agreement
The following table indicates for each transaction the name of the
corresponding Owner Participant:
Agreement Date Owner Participant
---------- ------------------ ----------------------------------------
1 December 30, 1996 Xxxxxx Xxxxxx Capital Corporation
2 January 3, 1997 Xxxxxx Xxxxxx 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
-22-
