EXHIBIT 10.32.3
This instrument, when recorded,
should be returned to:
Robert N. Farrar
Attorney at Law
The Carnegie Building
607 Broad Street, Suite 141
Rome, Georgia 30161-3059
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GROUND LEASE AGREEMENT
(P1)
Dated as of December 30, 1996
between
OGLETHORPE POWER CORPORATION
(AN ELECTRIC MEMBERSHIP GENERATION
& TRANSMISSION CORPORATION),
as Ground Lessor
and
SUNTRUST BANK, ATLANTA,
not in its individual capacity
but solely as Co-Trustee,
as Ground Lessee
Land Located
in Floyd County, Georgia
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TABLE OF CONTENTS
Page
----
SECTION 1. DEFINITIONS..................................................... 2
SECTION 2. LEASE OF GROUND INTEREST........................................ 2
Section 2.1. Lease of Ground Interest........................... 2
Section 2.2. Basic Ground Lease Term............................ 2
Section 2.3. Renewal Ground Lease Term.......................... 2
Section 2.4. Return of Ground Interest.......................... 3
Section 2.5. Nonterminability................................... 3
Section 2.6. Termination Option................................. 3
SECTION 3. RENT FOR THE LEASE OF THE GROUND INTEREST....................... 4
Section 3.1. Annual Rent........................................ 4
Section 3.2. Taxes and Assessments.............................. 4
SECTION 4. QUIET ENJOYMENT IN FAVOR OF THE GROUND LESSEE................... 4
Section 4.1. Right of Quiet Enjoyment........................... 4
Section 4.2. Ground Lessor's Release Rights..................... 5
SECTION 5. USE OF THE GROUND INTEREST BY GROUND LESSEE..................... 5
SECTION 6. TRANSFER OF GROUND INTEREST..................................... 6
SECTION 7. LIENS........................................................... 7
SECTION 8. WAIVER OF PARTITION............................................. 7
SECTION 9. SECURITY FOR GROUND LESSEE'S OBLIGATION TO THE
LENDER.......................................................... 7
SECTION 10. NONMERGER....................................................... 8
SECTION 11. APPLICATION OF PAYMENTS FROM GOVERNMENTAL
ENTITY.......................................................... 8
SECTION 12. MISCELLANEOUS................................................... 8
Section 12.1. Amendments and Waivers............................ 8
Section 12.2. Notices........................................... 8
Section 12.3. Survival......................................... 10
Section 12.4. Successors and Assigns........................... 10
Section 12.5. Business Day..................................... 10
Section 12.6. Governing Law.................................... 10
Section 12.7. Severability..................................... 10
Section 12.8. Counterparts..................................... 10
Section 12.9. Headings and Table of Contents................... 10
Section 12.10. Further Assurances............................... 10
Section 12.11. Effectiveness of Ground Lease.................... 11
Section 12.12. Limitation of Liability.......................... 11
Section 12.13. Measuring Life................................... 11
LIST OF ATTACHMENTS:
Appendix A - Definitions
Schedule 1 - Description of the Rocky Mountain Site
Facility Description Schedule
Exhibit A-2 - Project Boundary Drawing
Exhibit A-3 - Powertunnel and Powerhouse
General Plan and Profile of the
Rocky Mountain Project No.
RM-00-CL-0013 R1
Exhibit A-4 - Description of Equipment
ii
GROUND LEASE AGREEMENT (P1)
This GROUND LEASE AGREEMENT (P1), dated as of December 30, 1996 (as
amended, supplemented or otherwise modified from time to time in accordance with
the provisions hereof, this "Ground Lease"), between OGLETHORPE POWER
CORPORATION (AN ELECTRIC MEMBERSHIP GENERATION & TRANSMISSION CORPORATION), an
electric membership corporation organized under the laws of the State of Georgia
(together with its successors and permitted assigns, the "Ground Lessor"), and
SUNTRUST BANK, ATLANTA, a state banking corporation organized under the laws of
the State of Georgia, not in its individual capacity but solely as Co-Trustee
under the Trust Agreement (P1), dated as of December 30, 1996, with the Owner
Trustee and Philip Morris Capital Corporation (together with its successors and
permitted assigns, the "Ground Lessee").
WHEREAS, The Ground Lessor and Georgia Power Company, a corporation
organized under the laws of the State of Georgia (together with its successors
and assigns, "Georgia Power"); own the Rocky Mountain Site as tenants-in-common
under the laws of the State of Georgia;
WHEREAS, the Rocky Mountain Site is more particularly described in
Schedule 1 hereto, such Schedule 1 being attached to this Ground Lease as part
hereof;
WHEREAS, by the Rocky Mountain Agreements, the Ground Lessor and Georgia
Power established their respective rights and obligations as tenants-in-common
of the Rocky Mountain Site and of all improvements thereafter to be constructed,
and all personal property thereafter to be situated, on the Rocky Mountain Site.
Such improvements and personal property owned by the Ground Lessor and Georgia
Power as tenants-in-common under Georgia law include the Facility;
WHEREAS, as tenants-in-common of such real and personal property, the
Ground Lessor and Georgia Power hold a 74.61% and 25.39% undivided interest,
respectively, in such real and personal property, including the right to
nonexclusive possession of all such real and personal property, subject to the
rights of the other to nonexclusive possession and the terms and conditions of
the Rocky Mountain Agreements;
WHEREAS, pursuant to the Head Lease, the Co-Trustee has acquired from
the Ground Lessor, as Head Lessor, a leasehold interest in the Undivided
Interest in the Facility for a term equal to approximately 120% of the estimated
useful life of the Facility, subject to extension as provided therein; and
WHEREAS, pursuant to this Ground Lease, the Ground Lessor is leasing the
Ground Interest to the Ground Lessee for a term equal to approximately 120% of
the estimated useful life of the Facility, subject to extension as provided
herein.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
agreements herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. DEFINITIONS.
Capitalized terms used in this Ground Lease, including the recitals, and
not otherwise defined herein shall have the respective meanings set forth in
Appendix A hereto unless the context hereof shall otherwise require. The general
provisions of Appendix A shall apply to terms used in this Ground Lease and
specifically defined herein.
SECTION 2. LEASE OF GROUND INTEREST.
Section 2.1. Lease of Ground Interest. The Ground Lessor hereby leases
the Ground Interest, upon the terms and conditions set forth herein, to the
Ground Lessee for the term and renewal terms described below, and the Ground
Lessee hereby leases the Ground Interest from the Ground Lessor. The Ground
Lessor and the Ground Lessee understand and agree that (a) this lease of the
Ground Interest is subject to the limitations identified in the definition of
Ground Interest, (b) legal title to the Rocky Mountain Site remains vested in
the Ground Lessor and Georgia Power as tenants-in-common, (c) this lease of the
Ground Interest is subject and subordinate to the lien of the Oglethorpe
Mortgage and the encumbrances described in the Title Report, and (d) this Ground
Lease is subject to the provisions of the Resource Management Agreement.
Section 2.2. Basic Ground Lease Term. The term of this Ground Lease
shall commence on the Closing Date and shall terminate at 11:59 p.m. (New York
City time) on November 1, 2067 (the "Basic Ground Lease Term") subject to
earlier termination pursuant to the express terms hereof and extension for any
number of Renewal Ground Lease Terms; provided, however, that notwithstanding
anything to the contrary set forth herein, in no event shall the Basic Ground
Lease Term terminate so long as the Ground Lessee's interest under this Ground
Lease shall be subject to the Lien of the Loan Agreement or the security title
of the Deed to Secure Debt.
Section 2.3. Renewal Ground Lease Term. At the expiration of the Basic
Ground Lease Term or any Renewal Ground Lease Term (as hereinafter defined), the
Ground Lessee may extend this Ground Lease for any additional term or number of
additional terms of not less than one year (each, a "Renewal Ground Lease Term"
and, together with the Basic Ground Lease Term, the "Ground Lease Term");
provided that, the Ground Lessee shall be permitted to renew the term of this
Ground Lease for a Renewal Ground Lease Term only if concurrently with such
renewal, the Head Lease is renewed for a Head Lease Renewal Term equal to the
Renewal Ground Lease Term; provided further however upon extension of the Head
Lease pursuant to Section 3.2
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thereof, this Ground Lease shall be automatically extended for a Renewal Ground
Lease Term equal to the Head Lease Renewal Term for which the Head Lease is so
extended.
Section 2.4. Return of Ground Interest. Subject to Section 6 hereof, on
the last day of the Ground Lease Term, the Ground Lessee shall return the Ground
Interest to the Ground Lessor by returning the same unto the possession of the
Ground Lessor without representation or warranty other than that the Ground
Interest is free and clear of all Facility Lessor's Liens and a warranty by the
Owner Participant as to the absence of any Owner Participant's Liens without any
other liability or cost to the Ground Lessee. Upon returning the Ground
Interest, the Ground Lessee shall execute, acknowledge and deliver a release of
the Ground Interest, to be prepared by the Ground Lessor at its expense and in a
form reasonably satisfactory to the Ground Lessee to be duly recorded at the
Ground Lessor's expense in the Office of the Clerk of the Superior Court of
Floyd County, Georgia. The obligations of the Ground Lessee under this Section
2.4 shall survive the termination of this Ground Lease.
Section 2.5. Nonterminability. Subject to Sections 2.2 and 2.6 hereof,
notwithstanding anything herein or otherwise to the contrary, neither the rights
of the Ground Lessee nor the obligations of the Ground Lessor under this Ground
Lease shall be terminated, extinguished, diminished, lost or otherwise impaired
by any circumstance of any character or for any reason whatsoever, whether or
not the same involves the loss of all or any part of the leasehold estate
granted by this Ground Lease, including without limitation any of the following
circumstances or reasons: (a) any damage to or loss or destruction of all or any
part of the Facility for any reason whatsoever and of whatever duration, (b) the
condemnation, requisition (by eminent domain or otherwise), seizure or other
taking of title or use of all or any part of the Facility by any Governmental
Entity or otherwise, (c) any prohibition, limitation or restriction on the use
by any Person of all or any part of its property or the interference with such
use by any Person, or any foreclosure or deed in lieu of foreclosure of the
Oglethorpe Mortgage, or any termination of the leasehold estate granted by this
Ground Lease as a result thereof by operation of law or contract, or any
eviction by paramount title or otherwise, (d) any inadequacy, incorrectness or
failure of the description of the Rocky Mountain Site or the Ground Interest or
any part thereof or any rights or property in which an interest is intended to
be granted or conveyed by this Ground Lease, the Ground Sublease or the Ground
Sub-sublease, (e) the insolvency, bankruptcy, reorganization or similar
proceedings by or against the Ground Lessor, the Ground Lessee or any other
Person, (f) the failure by the Ground Lessee to comply with Section 2.4, 3 or 5
or any other provision hereof or of any other Operative Document, or (g) any
other reason whatsoever, whether similar or dissimilar to any of the foregoing.
The provisions of this Section 2.5 shall survive the termination of this Lease
for any reason whatsoever. The obligations of the Ground Lessor under this
Section 2.5 are covenants that are independent of the existence of such
leasehold and shall survive the termination thereof for any reason whatsoever.
Section 2.6. Termination Option. After the expiration or earlier
termination of the Ground Sublease Term, subject to the proviso at the end of
Section 2.2 hereof, the Ground Lessee may terminate this Ground Lease upon
thirty days prior written notice to the Ground Lessor;
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provided, however, that this Ground Lease shall simultaneously terminate upon
the expiration or earlier termination of the Head Lease pursuant to Section 3.5
thereof.
SECTION 3. RENT FOR THE LEASE OF THE GROUND INTEREST.
Section 3.1. Annual Rent. As rent for the Ground Interest, the Ground
Lessee agrees to pay to the Ground Lessor, for the period commencing on the
Closing Date and ending on the Expiration Date, annual rent of $120,273 per
year, in advance on July 1 of each year during the Ground Lease Term; provided
that the first payment of rent shall be payable on the Closing Date and shall be
prorated from the beginning of the Ground Lease Term to July 1, 1997.
Notwithstanding the foregoing, so long as Oglethorpe is the Ground Sub-sublessee
under the Ground Sub-sublease, the Ground Lessee shall not be required to pay
such rent hereunder. For the period from and after the Expiration Date to the
end of the Ground Lease Term the Ground Lessee agrees to pay to the Ground
Lessor annual rent equal to the annual Fair Market Rental Value of the Ground
Interest without regard to the existence of the Facility on the Rocky Mountain
Site on a net-lease basis. Such Fair Market Rental Value shall be determined by
July 1, 2027 and each fifth (5th) anniversary thereof through the remaining
Ground Lease Term by agreement of the parties or, if they shall fail to agree,
by the Appraisal Procedure, the costs of which shall be paid by the Ground
Lessor. Such annual rent shall be payable semi-annually in arrears on January 1
and each July 1 and thereafter during the Ground Lease Term (apportioned for the
number of days then elapsed since the last prior payment), except that if any
date for payment falls on a day other than a Business Day, such date for payment
shall be extended to the next succeeding Business Day.
Section 3.2. Taxes and Assessments. From and after the expiration or
termination of the Ground Sublease Term and until the expiration of the Ground
Lease Term or surrender of the Ground Interest to the Ground Lessor pursuant to
Section 6, the Ground Lessee agrees to pay to the Ground Lessor an amount equal
to the Facility Lessor's Percentage of all Taxes and assessments, general or
special, taxed, charged, levied, assessed or imposed upon the Rocky Mountain
Site (it being understood that the Ground Lessee shall not be responsible for
any income taxes imposed against the Ground Lessor for the rent hereunder; or
for any sales, use, excise or similar taxes payable by the Ground Lessor; or any
corporate franchise or doing business tax or similar tax or fee payable by the
Ground Lessor). Such payment shall be due upon demand by the Ground Lessor, but
in no event shall such amounts be due prior to the date such Taxes and
assessments are due and payable to a taxing or assessing Governmental Entity.
SECTION 4. QUIET ENJOYMENT IN FAVOR OF THE GROUND LESSEE.
Section 4.1. Right of Quiet Enjoyment. The Ground Lessor warrants that
it has full right and authority to lease the Ground Interest to the Ground
Lessee pursuant to the terms of this Ground Lease and covenants that,
notwithstanding any provision of any other Operative
4
Document, during the Ground Lease Term, neither the Ground Lessor nor any
Affiliate nor any other Person claiming title superior to or by, through or
under the Ground Lessor (other than the obligees or any trustee under the
Oglethorpe Mortgage) shall interfere with or interrupt the quiet enjoyment of
the use, operation and possession by the Ground Lessee of the Ground Interest
pursuant to the terms hereof.
Section 4.2. Ground Lessor's Release Rights. Notwithstanding Section 4.1
or any other provisions in this Ground Lease to the contrary, the Ground Lessor
shall have the right from time to time, without being deemed to breach the
foregoing covenant of quiet enjoyment or any other provision of this Ground
Lease, to (a) sell, grant or convey one or more portions of or interests of any
kind or nature in one or more portions of the Rocky Mountain Site, (b) grant,
create or release one or more rights of way and easements over or in respect of
any portions of the Rocky Mountain Site and (c) lease or convey one or more
leasehold interests in one or more portions of the Rocky Mountain Site to one or
more lessees of leasehold interests (collectively the "Ground Lessor's Release
Rights"); provided, however, that (i) each such sale, grant, release, lease or
conveyance shall be in accordance with the Rocky Mountain Agreements and (ii) no
such sale, grant, release, lease or conveyance shall impair the use or operation
of, or the ability to maintain, improve or rebuild, the Facility as contemplated
by the Rocky Mountain Agreements and the Operative Documents or reduce the
value, utility or useful life of the Facility, impair the use of the Ground
Interest as it is then used in connection with the Facility, impair in any
manner the use of the Facility or cause the Facility to become "limited use"
property or materially reduce the value, utility or useful life of the Rocky
Mountain Site or materially impair the use of the Rocky Mountain Site; provided,
further, any third party may conclusively, and without further act, inquiry or
investigation, rely upon an Officer's Certificate of the Ground Lessor to the
effect that any such sale, grant, release or conveyance complies with clause
(ii) of this Section 4.2 without the necessity of any further inquiry,
investigation or determination; and provided further that any property,
interest, right of way, easement, or leasehold interest (the "Released
Property") so sold, granted, released, leased or conveyed shall no longer be a
part of the Ground Interest and shall automatically be deemed to be released
from the effect of this Ground Lease and any Lien on the Ground Interest or
otherwise under this Ground Lease, without the necessity of the execution,
delivery or recording of any further instrument whatsoever. The Ground Lessee
agrees that during the Ground Lease Term, the Ground Lessee will not (a) grant
any security interest, leasehold mortgage or deed to secure debt, except as
provided in Section 9 or in the other Operative Documents, or any other Lien,
(b) sub-lease or assign this Ground Lease or (c) otherwise encumber, cause to be
encumbered or convey all or part of the Ground Lessee's interest hereunder
unless such grant, sub-lease, assignment, encumbrance or conveyance expressly
provides that the Ground Lessee's interest under this Ground Lease is subject to
the Ground Lessor's Release Rights set forth in this Section 4 and that any
Released Property shall automatically be deemed to be released from the effect
of any such Lien, grant, sub-lease, assignment, encumbrance or conveyance
without the necessity of the execution, delivery or recording of any further
instrument whatsoever.
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SECTION 5. USE OF THE GROUND INTEREST BY GROUND LESSEE.
The Ground Lessee's rights hereunder to use the Ground Interest shall be
limited to the right of the Ground Lessee, as Head Lessee, to use the Ground
Interest in connection with the use, operation and maintenance of the Facility
in accordance with the terms and provisions of the Rocky Mountain Agreements and
the FERC License and any renewal or extension thereof and the Head Lease, which
shall include the right to construct, install, operate, use, repair and relocate
and remove facilities and structures on or under the Rocky Mountain Site,
including buildings, roads, paths, walkways, sanitary sewers, storm drains,
water and gas mains, waste disposal systems, electric power lines, telephone,
television and telecommunication lines, fire protection systems, safety sensor
and monitoring systems, utility lines and systems, all as reasonably necessary
or advisable for the commercial operation of the Facility. Notwithstanding any
provision contained in this Ground Lease or in any Operative Document, the
Ground Lessee has the right to perform any and all acts required by an order of
the FERC or its successor affecting the Facility or the Rocky Mountain Site
without the prior approval of the Ground Lessor or any other party to the
Operative Documents.
SECTION 6. TRANSFER OF GROUND INTEREST.
The Ground Lessee agrees that, prior to the expiration of or earlier
termination of the Facility Sublease Term, it will not transfer or convey the
Ground Interest except as part of the Head Lessee's transfer of the Facility
Lessor's Rocky Mountain Interest pursuant to the Operative Documents. The Ground
Lessor acknowledges that (x) the Ground Lessee shall have the right to transfer
and convey the Ground Interest or any interest therein as part of a transfer
under and in accordance with Sections 10.2, 13.2, 14.4, 15.3, 17.1(c), 17.1(e)
and 18 of the Facility Lease in connection with the Ground Lessee's transfer
thereunder of the Facility Lessor's Rocky Mountain Interest and the Ground
Lessee and the Ground Lessor agree to comply with the provisions of the
applicable sections of the Facility Lease and the Head Lease in connection with
such transfer to the extent required thereunder, and (y) the Ground Lessee's
interest hereunder may be transferred together with the Head Lessee's interest
under the Head Lease to the Lender or any Affiliate of the Lender or any other
Person who is the purchaser thereof in foreclosure of the security title of the
Deed to Secure Debt or the Lien of the Loan Agreement or by deed in lieu of any
such foreclosure or after any such foreclosure or deed in lieu of foreclosure.
The Ground Lessor acknowledges that the Ground Interest will be leased to the
Ground Sub-sublessee pursuant to the Ground Sub-sublease and that the Ground
Sub-sublessor shall have the right to transfer and convey the Ground Interest or
any interest therein under and in accordance with Sections 10.2, 13.2, 14.3,
17.1(c), 17.1(e) and 18 of the Facility Sublease in connection with the Facility
Sublessor's transfer thereunder of the Facility Sublessor's Rocky Mountain
Interest, and the Ground Sub-sublessee shall have the right to sublease the
Ground Interest to a person which is a sublessee of the Undivided Interest in
accordance with Section 19 of the Facility Sublease. The Ground Lessee may
convey and transfer the Ground Interest to a Replacement Facility Lessee which
enters into a Replacement Facility Lease in accordance with Section 15.3 of the
Facility
6
Lease for a term coterminous with such Replacement Facility Lease.
Notwithstanding anything else contained herein, the Ground Lessee may convey and
transfer the Ground Lessee's right, title and interest in the Ground Interest to
(i) Georgia Power in connection with Georgia Power's exercise of its rights
under Section 5.2 of the Georgia Power Consent or (ii) to any other Person
following expiration or earlier termination of the Facility Lease Term.
SECTION 7. LIENS.
Section 7.1. Ground Lessee Covenant. Prior to the expiration or
termination of the Facility Sublease Term, the Ground Lessee agrees that it will
not, directly or indirectly, create, incur, assume or suffer to exist any
Facility Lessor's Liens on or with respect to the Ground Interest or the Rocky
Mountain Site other than the Lien of the Loan Agreement and the security title
of the Deed to Secure Debt, and the Ground Lessee shall promptly notify the
Ground Lessor of the imposition of any such Lien of which the Ground Lessee is
aware and shall promptly, at its own expense, take such action as may be
necessary to fully discharge or release any such Lien.
Section 7.2. Ground Lessor Covenant. The Ground Lessor agrees that it
will not directly or indirectly, (i) create, incur, assume or suffer to exist
any Lien on or with respect to the Ground Interest other than Permitted Liens,
or (ii) subject to the Ground Lessor's Release Rights, assign, convey or
otherwise transfer its interest in the Ground Interest, and the Ground Lessor
shall promptly notify the Ground Lessee of the imposition of any such Lien of
which the Ground Lessor is aware and shall promptly, at its own expense, take
such action as may be necessary to fully discharge or release any such Lien.
SECTION 8. WAIVER OF PARTITION.
As permitted by Applicable Law, the Ground Lessor, on its own behalf and
on behalf of its successors and assigns, hereby waives any right, whether
pursuant to statute or common law, to partition the Rocky Mountain Site or any
interest or portion thereof, including the Ground Interest or any interest or
portion thereof, and such waiver will continue in effect until the termination
of the Rocky Mountain Ownership Agreement and Rocky Mountain Operating Agreement
in accordance with their terms. The Ground Lessor agrees not to commence during
such period any action of any kind seeking any form of partition with respect
thereto.
SECTION 9. SECURITY FOR GROUND LESSEE'S OBLIGATION TO THE LENDER.
In order to secure the Secured Indebtedness, the Ground Lessee will by
the Loan Agreement assign and grant a Lien, and by the Deed to Secure Debt grant
security title to the Lender in and to all of the Ground Lessee's right, title
and interest in, to and under this Ground Lease and the Ground Interest (other
than Excepted Payments and Excepted Rights). The Ground
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Lessor hereby consents to such assignment and creation of such Lien and security
title and acknowledges receipt of copies of the Loan Agreement and the Deed to
Secure Debt, it being understood that such consent shall not affect any
requirement or the absence of any requirement for any consent under any other
circumstances. Unless and until the Ground Lessor shall have received written
notice from the Lender that the Lien of the Loan Agreement and the security
title of the Deed to Secure Debt have been fully released, the Lender under the
Loan Agreement and the security title of the Deed to Secure Debt shall have the
rights of the Ground Lessee under this Ground Lease to the extent set forth in
and subject in each case to the exceptions set forth in the Loan Agreement or
the Deed to Secure Debt.
SECTION 10. NONMERGER.
The reversionary interest of the Head Lessor in the Rocky Mountain Site
shall not merge into any interest in the Ground Interest conveyed by the Ground
Lease even if such reversionary interest and such interest leased are at any
time vested in or held directly or indirectly by the same Person, but this
Ground Lease shall nonetheless remain in full force and effect in accordance
with its terms notwithstanding such vesting or holding.
SECTION 11. APPLICATION OF PAYMENTS FROM GOVERNMENTAL ENTITY.
Subject to the provisions of the Oglethorpe Mortgage, any payments
received at any time by the Ground Lessor or by the Ground Lessee from any
Governmental Entity with respect to an Event of Loss shall be paid over to the
Ground Lessor or the Ground Lessee, or retained by the Ground Lessor and the
Ground Lessee, as their respective interests may appear. Any payments received
at any time during or with respect to the Ground Lease Term by the Ground Lessor
or by the Ground Lessee from any Governmental Entity with respect to the
seizure, expropriation, condemnation or requisition of the use of, or title to,
the Ground Interest not constituting an Event of Loss shall be paid over to, or
retained by, the Ground Lessee.
SECTION 12. MISCELLANEOUS.
Section 12.1. Amendments and Waivers. No term, covenant, agreement or
condition of this Ground Lease 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 12.2. Notices. Unless otherwise expressly specified or permitted
by the terms hereof, all communications and notices provided for herein to a
party hereto shall be in writing or by a telecommunications device capable of
creating a written record, and any such notice shall become effective (a) upon
personal delivery thereof, including, without limitation, by overnight
8
mail or next business day 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 clause (a) or (b)
above, in each case addressed to such party and copy party at its address set
forth below or at such other address as such party or copy party may from time
to time designate by written notice to the other parties:
If to the Ground Lessor:
Oglethorpe Power Corporation
2100 East Exchange Place
Tucker, Georgia 30085-1349
Facsimile No.: (770) 270-7325
Telephone No.: (770) 270-7920
Attention: Vice President - Finance
If to the Ground Lessee:
SunTrust Bank, Atlanta
P.O. Box 4625
Mail Code 008
Atlanta, Georgia 30302
Facsimile No.: (404) 332-3966
Telephone No.: (404) 588-7813
Attention: Corporate Trust Department
with copies to the Lender:
Utrecht-America Finance Co.,
c/o Rabobank Nederland, New York Branch
245 Park Avenue
New York, New York 10167-0062
Facsimile No.: (212) 916-7880
Telephone No.: (212) 916-7864
Attention: General Counsel's Office
and to the Owner Trustee:
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Fleet National Bank
777 Main Street
Hartford, Connecticut 06115
Facsimile No.: (860) 986-7920
Telephone No.: (860) 986-4540
Attention: Corporate Trust Administration
Section 12.3. Survival. Except as expressly set forth herein, the
warranties and covenants made by each party hereto shall not survive the
expiration or termination of this Ground Lease.
Section 12.4. Successors and Assigns.
(a) The Ground Lessor hereby consents to the entry by the Ground Lessee
into and performance by the Ground Lessee of the Operative Documents, including
any assignment pursuant thereto. This Ground Lease shall be binding upon and
shall inure to the benefit of, and shall be enforceable by, the parties hereto
and their respective successors and permitted assigns as permitted by and in
accordance with the terms hereof.
(b) Except as expressly provided herein or in the other Operative
Documents, the Ground Lessor may not assign or transfer any of its interests
herein without the consent of the other party hereto.
(c) This Ground Lease conveys a leasehold estate and not a usufruct.
Section 12.5. Business Day. Notwithstanding anything herein to the
contrary, if the date on which any payment or performance is to be made pursuant
to this Ground Lease is not a Business Day, the payment otherwise payable on
such date shall be payable on the next succeeding Business Day with the same
force and effect as if made on such scheduled date and (provided such payment is
made on such succeeding Business Day) no interest shall accrue on the amount of
such payment from and after such scheduled date to the time of such payment on
such next succeeding Business Day.
Section 12.6. Governing Law. This Ground Lease shall be in all respects
governed by and construed in accordance with the laws of the State of New York
including all matters of construction, validity and performance except to the
extent the law of the State of Georgia is mandatorily applicable.
Section 12.7. 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.
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Section 12.8. Counterparts. This Ground Lease may be executed in any
number of counterparts, each executed counterpart constituting an original but
all together only one instrument.
Section 12.9. Headings and Table of Contents. The headings of the
sections of this Ground Lease 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 12.10. Further Assurances. Each party hereto will promptly and
duly execute and deliver such further documents to make such further assurances
for and take such further action reasonably requested by any party to whom such
first party is obligated, all as may be reasonably necessary to carry out more
effectively the intent and purpose of this Ground Lease.
Section 12.11. Effectiveness of Ground Lease. This Ground Lease has been
dated as of the date first above written for convenience only. This Ground Lease
shall be effective on the date of execution and delivery by the Ground Lessee
and the Ground Lessor.
Section 12.12. Limitation of Liability. It is expressly understood and
agreed by the parties hereto that (a) this Ground Lease 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, (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 for binding
only the Co-Trustee, (c) nothing herein contained shall be construed as creating
any liability on SunTrust Bank, Atlanta, individually or personally, to perform
any covenant either expressed or implied contained herein, all such liability,
if any, being expressly waived by the Ground Lessor or by any Person claiming
by, through or under the Ground Lessor 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 Ground Lease. 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 unless expressly
directed in writing by the Owner Trustee or the Owner Participant in accordance
with the terms of the Trust Agreement.
Section 12.13. Measuring Life. If and to the extent that any of the
rights and privileges granted under this Ground Lease, 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 Ground
11
Lease, 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 Ground Lease of the following Presidents of the
United States: Franklin D. Roosevelt, Harry S. Truman, Dwight D. Eisenhower,
John F. Kennedy, Lyndon B. Johnson, Richard M. Nixon, Gerald R. Ford, James E.
Carter, Ronald W. Reagan, George H.W. Bush and William J. Clinton or (ii) the
period provided under the Uniform Statutory Rule Against Perpetuities or (b) the
specific applicable period of time expressed in this Ground Lease, whichever of
(a) and (b) is shorter.
12
IN WITNESS WHEREOF, the undersigned have caused this Ground Lease to be
duly executed and delivered by their respective officers thereunto duly
authorized.
OGLETHORPE POWER CORPORATION
(AN ELECTRIC MEMBERSHIP
GENERATION & TRANSMISSION
CORPORATION),
as Ground Lessor
By: /s/ T. D. Kilgore
------------------------------
Name: T. D. Kilgore
Title: President and CEO
Date: 12/30/96
Signed and delivered
in the presence of:
/s/ Gary M. Bullock
- -------------------------------
Unofficial Witness
/s/ Patricia R. Bouldin
- -------------------------------
Notary Public
My Commission Expires: June 2, 1998
[Notary Seal]
SUNTRUST BANK, ATLANTA, not in its
individual capacity but solely as Co-Trustee
under the Trust Agreement,
as Ground Lessee
By: /s/ Bryan Echols
------------------------------
Name: Bryan Echols
Title: Vice President
Date: 12/30/96
By: /s/ Sandra Thompson
------------------------------
Name: Sandra Thompson
Title: Vice President
Date: 12/30/96
Signed and delivered
in the presence of:
/s/ E. M. Shadru
- -------------------------------
Unofficial Witness
/s/ Patricia R. Bouldin
- -------------------------------
Notary Public
My Commission Expires: June 2, 1998
[Notary Seal]
SCHEDULE TO EXHIBIT 10.32.3
GROUND LEASE AGREEMENT (P1)
The following table indicates for each transaction the name of the
corresponding Owner Participant:
Agreement Date Owner Participant
--------- ----------------- --------------------------------------
P1 December 30, 1996 Philip Morris Capital Corporation
P2 January 3, 1997 Philip Morris Capital Corporation
F3 December 30, 1996 First Chicago Leasing Corporation
F4 December 30, 1996 First Chicago Leasing Corporation
N5 December 30, 1996 NationsBanc Leasing & R.E. Corporation
N6 January 3, 1997 NationsBanc Leasing & R.E. Corporation
Other than Appendix A, the Exhibits and Schedules to the Ground Lease
Agreement (P1) 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
Ground Lease
DEFINITIONS
Refer to Appendix A to Exhibit 10.32.1 of the Form 10-K.
A-1