EXHIBIT 10.32.6
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
================================================================================
GROUND SUBLEASE AGREEMENT
(P1)
Dated as of December 30, 1996
between
SUNTRUST BANK, ATLANTA,
not in its individual
capacity but solely as Co-Trustee,
as Ground Sublessor
and
ROCKY MOUNTAIN LEASING CORPORATION,
as Ground Sublessee
Land Located
in Floyd County, Georgia
================================================================================
TABLE OF CONTENTS
Page
----
SECTION 1. DEFINITIONS..................................................... 2
SECTION 2. SUBLEASE OF GROUND INTEREST..................................... 2
Section 2.1. Sublease of Ground Interest........................ 2
Section 2.2. Basic Ground Sublease Term......................... 2
Section 2.3. Renewal Ground Sublease Term....................... 2
Section 2.4. Return of Ground Interest.......................... 3
Section 2.5. Early Termination.................................. 3
Section 2.6. Net Lease.......................................... 3
SECTION 3. RENT FOR THE SUBLEASE OF THE GROUND INTEREST.................... 4
SECTION 4. QUIET ENJOYMENT IN FAVOR OF THE GROUND SUBLESSEE................ 5
Section 4.1. Ground Sublessee's Right of Quiet Enjoyment........ 5
Section 4.2. Conveyances Pursuant to Section 4.2 of Ground
Lease.............................................. 5
SECTION 5. USE OF THE GROUND INTEREST BY GROUND SUBLESSEE.................. 5
SECTION 6. TRANSFER OF GROUND INTEREST..................................... 5
SECTION 7. INSPECTION...................................................... 6
SECTION 8. SECURITY FOR GROUND SUBLESSOR'S OBLIGATION TO THE
LENDER.......................................................... 6
SECTION 9. MISCELLANEOUS................................................... 7
Section 9.1. Amendments and Waivers............................. 7
Section 9.2. Notices............................................ 7
Section 9.3. Survival........................................... 8
Section 9.4. Successors and Assigns............................. 8
Section 9.5. Business Day....................................... 9
Section 9.6. Governing Law...................................... 9
Section 9.7. Severability....................................... 9
Section 9.8. Counterparts....................................... 9
Section 9.9. Headings and Table of Contents..................... 9
Section 9.10. Further Assurances............................... 9
Section 9.11. Effectiveness of Ground Sublease................. 9
Section 9.12. Limitation of Liability.......................... 9
Section 9.13. Measuring Life................................... 10
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 SUBLEASE AGREEMENT (P1)
This GROUND SUBLEASE 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 Sublease"), between 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 the
Owner Participant (together with its successors and permitted assigns, the
"Ground Sublessor"), and ROCKY MOUNTAIN LEASING CORPORATION, a corporation
organized and existing under the laws of the State of Delaware (together with
its successors and permitted assigns, the "Ground Sublessee").
WHEREAS, 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 assigns,
"Oglethorpe") and Georgia Power Company, a corporation organized under the laws
of the State of Georgia (together with its successors and assigns "Georgia
Power") own the Rocky Mountain Site as tenants-in-common under 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 Sublease as
part hereof;
WHEREAS, by the Rocky Mountain Agreements, Oglethorpe and Georgia Power
established their respective rights and obligations as tenants-in-common of the
Rocky Mountain Site and of all improvements thereafter to be constructed, and
all personal property thereafter to be situated, on the Rocky Mountain Site.
Such improvements and personal property owned by Oglethorpe and Georgia Power as
tenants-in-common under Georgia law include the Facility;
WHEREAS, as tenants-in-common of such real and personal property,
Oglethorpe and Georgia Power hold a 74.61% and 25.39% undivided interest,
respectively, in such real and personal property, including the right to
nonexclusive possession of all such real and personal property, subject to the
rights of the other to nonexclusive possession and the terms and conditions of
the Rocky Mountain Agreements;
WHEREAS, pursuant to the Head Lease, the Co-Trustee has acquired from
Oglethorpe, 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;
WHEREAS, pursuant to the Ground Lease, the Co-Trustee has acquired from
Oglethorpe, as Ground Lessor, a leasehold interest in the Ground Interest for a
term equal to approximately 120% of the estimated useful life of the Facility,
subject to extensions as provided therein;
WHEREAS, pursuant to the Facility Lease, the Ground Sublessor, as
Facility Lessor, will lease the Undivided Interest to the Facility Lessee for a
term which shall end prior to the expiration of the term of the Head Lease; and
WHEREAS, pursuant to this Ground Sublease, the Ground Sublessor is
subleasing the Ground Interest to the Ground Sublessee for a term coterminous
with that of the Facility Lease.
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 Sublease, 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 Sublease and
specifically defined herein.
SECTION 2. SUBLEASE OF GROUND INTEREST.
Section 2.1. Sublease of Ground Interest. The Ground Sublessor hereby
subleases the Ground Interest, upon the terms and conditions set forth herein,
to the Ground Sublessee for the term and renewal terms described below, and the
Ground Sublessee hereby subleases the Ground Interest from the Ground Sublessor.
The Ground Sublessor and the Ground Sublessee understand and agree that (a) this
sublease 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 sublease of the Ground Interest is subject and subordinate to the Lien of
the Oglethorpe Mortgage and encumbrances described in the Title Report, (d) this
sublease of the Ground Interest is subject and subordinate to the interest of
the Ground Sublessor in the Ground Interest created pursuant to Section 2.1 of
the Ground Lease and (e) this sublease of the Ground Interest is subject to the
provisions of the Resource Management Agreement.
Section 2.2. Basic Ground Sublease Term. The term of this Ground
Sublease shall commence on the Closing Date and shall terminate at 11:58 p.m.
(New York City time) on the Expiration Date (the "Basic Ground Sublease Term")
subject to early termination pursuant to Section 2.5 hereof and extension for
the Renewal Ground Sublease Term.
Section 2.3. Renewal Ground Sublease Term. If the term of the Facility
Lease shall be renewed for a Renewal Term pursuant to Section 15.4 of the
Facility Lease, the term of the sublease to the Ground Sublessee hereunder will
be automatically renewed for a term which shall
2
be coterminous with the Renewal Term of the Facility Lease (a "Renewal Ground
Sublease Term").
Section 2.4. Return of Ground Interest. Subject to Section 6 hereof, on
the last day of the Ground Sublease Term the Ground Sublessee shall return the
Ground Interest to the Ground Sublessor by returning the same unto the
possession of the Ground Sublessor without representation or warranty other than
that the Ground Interest is free and clear of all Liens other than Liens
permitted on the Ground Interest by Section 6 of the Facility Lease without any
other liability or cost to the Ground Sublessee. Upon returning the Ground
Interest, the Ground Sublessee shall execute, acknowledge and deliver a release
of the Ground Interest to be prepared by the Ground Sublessor at its expense and
in a form reasonably satisfactory to the Ground Sublessee to be duly recorded at
the Ground Sublessee's expense in the Office of the Clerk of the Superior Court
of Floyd County, Georgia. The obligations of the Ground Sublessee under this
Section 2.4 shall survive the termination of this Ground Sublease.
Section 2.5. Early Termination. The Ground Sublease Term shall be deemed
automatically terminated upon the expiration or early termination of the
Facility Lease Term without any action of the Ground Sublessor or any other
Person.
Section 2.6. Net Lease. This Ground Sublease is a "net lease" and
notwithstanding anything herein to the contrary, the Ground Sublessee's
obligation to pay all rent and other sums payable hereunder (and all amounts
payable in lieu of rent and other sums following termination of this Ground
Sublease) shall be absolute and unconditional under any and all circumstances
and shall not be terminated, extinguished, diminished, lost or otherwise
impaired, nor shall the Ground Sublessee's other obligations hereunder or the
Ground Sublessor's rights hereunder 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 Sublease, including without
limitation any of the following circumstances or reasons: (i) any setoff,
counterclaim, recoupment, defense or other right which the Ground Sublessee may
have against the Ground Sublessor, the Trustees, the Owner Participant, or the
Lender or any other Person, including, without limitation, any breach by any of
said parties of any covenant or provision under this Ground Sublease or under
any Operative Document, (ii) any lack or invalidity of title or any defect in
the title, condition, design, operation, merchantability or fitness for use of
the Facility or any Component, or any foreclosure or deed in lieu of foreclosure
of the Oglethorpe Mortgage, or any termination of the leasehold interest granted
by this Ground Sublease as a result thereof by operation of law or contract, or
any eviction by paramount title or otherwise, or any unavailability of the
Facility, the Rocky Mountain Site, any Component, any other portion of the
Facility Lessee's Rocky Mountain Interest or the interest of any other Person or
any part of the foregoing for any reason whatsoever, (iii) any loss or
destruction of, or damage to, the Facility or any Component or interruption or
cessation in the use or possession thereof or any part of the foregoing by the
Ground Sublessee for any reason whatsoever and of whatever duration, (iv) the
condemnation, requisitioning, expropriation, seizure or other taking of title to
or use of the Facility, the Rocky Mountain Site, any Component, any
3
other portion of the Ground Sublessee's Rocky Mountain Interest or any part of
the foregoing by any Governmental Entity or otherwise, (v) the invalidity or
unenforceability or lack of due authorization or other infirmity of this Ground
Sublease or any other Operative Document, (vi) the lack of right, power or
authority of the Ground Sublessor to enter into this Ground Sublease or any
other Operative Document, (vii) any ineligibility of the Facility or any
Component for any particular use, whether or not due to any failure of the
Ground Sublessor or the Facility Operator to comply with any Applicable Law,
(viii) any event of "force majeure" or any frustration, (ix) any legal
requirement similar or dissimilar to the foregoing, any present or future law to
the contrary notwithstanding, (x) any insolvency, bankruptcy, reorganization or
similar proceeding by or against the Ground Sublessee or any other Person, (xi)
any Lien of any Person with respect to the Facility, the Rocky Mountain Site,
any Component, any other portion of the Ground Sublessee's Rocky Mountain
Interest or any part of the foregoing, or (xii) any other cause, whether similar
or dissimilar to the foregoing, any present or future law notwithstanding,
except as expressly set forth herein or in any other Operative Documents, it
being the intention of the parties hereto that all rent and other sums payable
by the Ground Sublessee hereunder (and all amounts payable in lieu of rent and
other sums following termination of this Ground Sublease) be paid in the manner
and at the times provided for herein. Such rent and other sums payable hereunder
shall not be subject to any abatement and the payments thereof shall not be
subject to any setoff or reduction for any reason whatsoever, including any
present or future claims of the Ground Sublessee or any other Person against the
Ground Sublessor or any other Person under this Ground Sublease or otherwise. If
for any reason whatsoever this Ground Sublease shall be terminated in whole or
in part by operation of law or otherwise, except as specifically provided
herein, the Ground Sublessee nonetheless agrees to the extent permitted by
Applicable Law, to pay to the Ground Sublessor any amount due and owing, at the
time such payment would have become due and payable in accordance with the terms
hereof had this Ground Sublease not been so terminated. The provisions of this
Section 2.6 shall survive the termination of this Ground Sublease for any reason
whatsoever. Upon and after the termination of the leasehold hereby granted for
any reason whatsoever, the Ground Sublessee shall pay to the Ground Sublessor,
in lieu of the rent and other sums payable hereunder, an amount equal to such
rent and other sums, and this obligation is expressly agreed to be a covenant of
the Ground Sublessee that is independent of the existence of such leasehold. The
obligations of the Ground Sublessee to pay all amounts hereunder other than rent
and other sums are also covenants that are independent of the existence of such
leasehold and shall survive the termination thereof for any reason whatsoever.
SECTION 3. RENT FOR THE SUBLEASE OF THE GROUND INTEREST.
As rent for the sublease of the Ground Interest for the Ground Sublease
Term, the Ground Sublessee agrees to pay to the Ground Sublessor for the period
commencing on the Closing Date and ending on the Expiration Date annual rent of
$120,273 per year, payable in advance on July 1 of each year during the Ground
Sublease 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 Sublease
4
Term to July 1, 1997. Notwithstanding the foregoing, so long as the Ground
Sublessor shall not be required to pay rent under the Ground Lease in accordance
with Section 3.1 thereof, the Ground Sublessee shall not be required to pay rent
hereunder. For the period from and after the Expiration Date to the end of the
Ground Sublease Term the Ground Sublessee agrees to pay to the Ground Sublessor
annual rent equal in timing and amount to the rent payable under the Ground
Lease.
SECTION 4. QUIET ENJOYMENT IN FAVOR OF THE GROUND SUBLESSEE.
Section 4.1. Ground Sublessee's Right of Quiet Enjoyment. The Ground
Sublessor warrants that it has full right and authority to sublease the Ground
Interest to the Ground Sublessee pursuant to the terms of this Ground Sublease
and agrees that, notwithstanding any provision of any other Operative Document,
during the Ground Sublease Term, the Ground Sublessor shall not through its own
actions or inactions interfere with or interrupt the quiet enjoyment of the use,
operation and possession by the Ground Sublessee of the subleasehold interest in
the Ground Interest pursuant to the terms hereof; provided that the Ground
Sublessor's covenant does not relate to actions of the Lender.
Section 4.2. Conveyances Pursuant to Section 4.2 of Ground Lease. Sales,
grants of leases or easements and conveyances of portions of the Rocky Mountain
Site, rights of way, easements or leasehold interest made by the Ground Lessor
in accordance with Section 4.2 of the Ground Lease shall not constitute a breach
of the Ground Sublessee's right of quiet enjoyment under this Ground Sublease.
Any Released Property sold, leased or otherwise conveyed pursuant to the Ground
Lessor's Release Rights shall automatically, without further act of any Person,
be released from this Ground Sublease.
SECTION 5. USE OF THE GROUND INTEREST BY GROUND SUBLESSEE.
The Ground Sublessee's rights hereunder to use the Ground Interest shall
be limited to the right of the Ground Sublessee, as Facility Lessee, to use the
Ground Interest during the Ground Sublease Term in connection with the use,
operation and maintenance of the Facility in accordance with the terms of the
Rocky Mountain Agreements and the Facility Lease, which shall include the right
to construct, install, operate, use, repair and relocate 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 and utility lines and systems, and any other uses as shall be permitted
by the Rocky Mountain Agreements. Notwithstanding any provision contained in
this Ground Sublease or in any Operative Document, the Ground Sublessee has the
right to perform any and all acts required by
5
an order of the FERC or its successor affecting the Facility or the Rocky
Mountain Site without the prior approval of the Ground Sublessor or any other
party to the Operative Documents.
SECTION 6. TRANSFER OF GROUND INTEREST.
The Ground Sublessee expressly agrees that the Ground Sublessee shall
not transfer its Ground Interest except as part of the Ground Sublessee's
transfer of the Facility Sublessor's Rocky Mountain Interest pursuant to the
Operative Documents. The Ground Sublessee acknowledges (x) that the Ground
Sublessor shall have the right to transfer and convey the Ground Interest as
part of a transfer under and in accordance with Section 10.2, 13.2, 14.4, 15.3,
17.1(c), 17.1(e), 18 or 19 of the Facility Lease in connection with the Ground
Sublessor's transfer thereunder of the Facility Lessor's Rocky Mountain Interest
and the Ground Sublessor and the Ground Sublessee agree to comply with the
provisions of the applicable sections of the Facility Sublease and the Facility
Lease in connection with such transfer to the extent required thereunder, and
(y) the Ground Sublessor's interest hereunder may be transferred together with
the Facility Lessor's interest under the Facility Lease to the Lender or an
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 Sublessor acknowledges
that the Ground Interest will be leased to the Ground Sub-sublessee pursuant to
the Ground Sub-sublease and that the Ground Sublessee, as Ground Sub-sublessor
thereunder, shall have the right to transfer and convey the Ground Interest
under and in accordance with Sections 10.2, 13.2, 14.3, 17.1(c), 17.1(e), 18 or
19 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.
SECTION 7. INSPECTION
During the Ground Sublease Term, at such times as reasonably requested,
each of the Ground Sublessor, the Owner Trustee, the Owner Participant, the
Lender and their representatives may, at reasonable times, on reasonable notice
to the Co-Owners and at their own risk and expense (except, at the expense, but
not risk, of the Ground Sublessee when an Event of Default has occurred and is
continuing), inspect the Rocky Mountain Site; provided, however, that any such
inspection will not interfere with the Co-Owners' normal commercial operation of
the Rocky Mountain Site and will be in accordance with the Facility Operator's
safety and insurance programs.
6
SECTION 8. SECURITY FOR GROUND SUBLESSOR'S OBLIGATION TO THE LENDER
In order to secure the Secured Indebtedness, the Ground Sublessor will
assign for security purposes its rights under this Ground Sublease. The Ground
Sublessee hereby acknowledges that the security interest in this Ground Sublease
will be assigned by the Ground Sublessor to the Lender pursuant to the Loan
Agreement and the Deed to Secure Debt. The Ground Sublessor hereby consents to
such assignment and the creation of such Liens 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 Sublessee 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 Deed to
Secure Debt shall have the rights of the Ground Sublessor under this Ground
Sublease and to the extent set forth in and subject to the exceptions set forth
in the Loan Agreement or the Deed to Secure Debt.
SECTION 9. MISCELLANEOUS.
Section 9.1. Amendments and Waivers. No term, covenant, agreement or
condition of this Ground Sublease 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 9.2. Notices. Unless otherwise expressly specified or permitted
by the terms hereof, all communications and notices provided for herein to a
party hereto shall be in writing or by a telecommunications device capable of
creating a written record, and any such notice shall become effective (a) upon
personal delivery thereof, including, without limitation, by overnight mail or
next business day 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 a copy party may from time to time designate by
written notice to the other parties:
7
If to the Ground Sublessor:
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 Owner Trustee:
Fleet National Bank
777 Main Street
Hartford, Connecticut 06115
Facsimile No.: (860) 986-7920
Telephone No.: (860) 986-4540
Attention: Corporate Trust Administration
and 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
8
If to the Ground Sublessee:
Rocky Mountain Leasing Corporation
c/o Corporation Trust Center
1209 Orange Street, Room 123
Wilmington, Delaware 19801
Facsimile No.: (302) 688-5459
Telephone No.: (302) 777-0250
with copies to:
Sutherland, Asbill & Brennan, L.L.P.
999 Peachtree Street, N.E.
Atlanta, Georgia 30309-3996
Facsimile No.: (404) 853-8806
Telephone No.: (404) 853-8000
Attention: Cada T. Kilgore, III
and to the Lender at its address set forth above.
Section 9.3. 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 Sublease.
Section 9.4. Successors and Assigns.
(a) The Ground Sublessor hereby consents to the entry by the Ground
Sublessee into and performance by the Ground Sublessee of the Operative
Documents, including any assignment pursuant thereto. This Ground Sublease 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 Sublessor may not assign or transfer any of its interests
herein without the consent of the other party hereto.
(c) This Ground Sublease conveys a leasehold estate and not a usufruct.
Section 9.5. 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 Sublease 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
9
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 9.6. Governing Law. This Ground Sublease 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 9.7. 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.
Section 9.8. Counterparts. This Ground Sublease may be executed in any
number of counterparts, each executed counterpart constituting an original but
all together only one instrument.
Section 9.9. Headings and Table of Contents. The headings of the
sections of this Ground Sublease 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 9.10. 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 Sublease.
Section 9.11. Effectiveness of Ground Sublease. This Ground Sublease has
been dated as of the date first above written for convenience only. This Ground
Sublease shall be effective on the date of execution and delivery by the Ground
Sublessee and the Ground Sublessor.
Section 9.12. Limitation of Liability. It is expressly understood and
agreed by the parties hereto that (a) this Ground Sublease 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 Sublessor or by any Person claiming
by, through or under the Ground Sublessee 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
10
the Co-Trustee under this Ground Sublease. 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 9.13. Measuring Life. If and to the extent that any of the
rights and privileges granted under this Ground Sublease, 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 Sublease, 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 Sublease
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 Sublease, whichever of (a) and (b) is shorter.
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IN WITNESS WHEREOF, the undersigned have caused this Ground Sublease to
be duly executed and delivered by their respective officers thereunto duly
authorized.
SUNTRUST BANK, ATLANTA, not in its
individual capacity but solely as Co-Trustee
under the Trust Agreement,
as Ground Sublessor
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. Schadru
- -------------------------------
Unofficial Witness
/s/ David M. Boehm
- -------------------------------
Notary Public
My Commission Expires: March 16, 1998
[Notary Seal]
ROCKY MOUNTAIN LEASING
CORPORATION,
as Ground Sublessee
By: /s/ Eugen Heckl
------------------------------
Name: Eugen Heckl
Title: Vice President
Date: 12/30/96
Signed and delivered
in the presence of:
/s/ Leonard Scott
- -------------------------------
Unofficial Witness
/s/ David M. Boehm
- -------------------------------
Notary Public
My Commission Expires: March 16, 1998
[Notary Seal]
SCHEDULE TO EXHIBIT 10.32.6
GROUND SUBLEASE 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 Sublease
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 Sublease
DEFINITIONS
Refer to Appendix A to Exhibit 10.32.1 of the Form 10-K.
A-1