Errors having been discovered in the Option Agreement to Lease recorded in the
Clerk's Office of the Circuit Court of Halifax County, Virginia, in Deed Book
645, Page 245, the parties thereto record this Corrected Option Agreement to
Lease in such Clerk's Office to correct such errors.
CORRECTED OPTION AGREEMENT TO LEASE
Dated as of February 29, 1996
among
OLD DOMINION ELECTRIC COOPERATIVE,
and
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity,
but solely as Owner Trustee
Clover Unit 1 Generating Facility
and
Common Facilities
CORRECTED OPTION AGREEMENT TO LEASE
THIS CORRECTED OPTION AGREEMENT TO LEASE, dated as of February 29, 1996
(this "OPTION AGREEMENT"), by and between OLD DOMINION ELECTRIC COOPERATIVE, a
wholesale power supply cooperative organized under the laws of the Commonwealth
of Virginia ("OPTIONOR"), and STATE STREET BANK AND TRUST COMPANY, a
state-chartered trust company organized and existing under the laws of the
Commonwealth of Massachusetts, not in its individual capacity, but as the Owner
Trustee under the Trust Agreement ("OPTIONEE"), recites and provides:
RECITALS.
WHEREAS, capitalized terms used herein and not otherwise defined shall
have the meanings given them in Appendix A - Definitions which is attached
hereto as part hereof and recorded herewith;
WHEREAS, the Clover Real Estate is more particularly described in
Schedule 1 and comprised of the Unit 1 Site described in Schedule 2, the Unit 2
Site described in Schedule 3, and the Common Facilities Site described in
Schedule 4, and certain other property, each such Schedule 1, Schedule 2,
Schedule 3, and Schedule 4 being attached to and made part of the form of the
Deed of Ground Lease and Sublease Agreement (the "DEED OF GROUND LEASE AND
SUBLEASE") which is attached hereto as part hereof, marked Exhibit A and
recorded herewith;
WHEREAS, a copy of the Clover Power Station Plat is attached hereto as
part hereof, marked Exhibit B and recorded herewith;
WHEREAS, Optionor and Virginia Power own the Clover Real Estate as
tenants-in-common;
WHEREAS, by the Clover Agreements, Optionor and Virginia Power
established their respective rights and obligations as tenants-in-common of the
Clover Real Estate and of all improvements thereafter to be constructed, and all
personal property thereafter to be situated, on the Clover Real Estate. Such
improvements and personal property owned by Optionor and Virginia Power as
tenants-in-common include, but are not limited to, (a) the Xxxx 0 Foundation
constructed on the Xxxx 0 Xxxx, (x) the Xxxx 0 Foundation being constructed on
the Unit 2 Site, (c) the Common Facilities Foundation constructed on the Common
Facilities Site, (d) the Unit 1 Equipment situated on the Unit 1 Site, (e) the
Xxxx 0 Equipment being situated on the Unit 2 Site, and (f) the Common
Facilities Equipment situated on the Common Facilities Site;
WHEREAS, as tenants-in-common of such real and personal property, each
of Optionor and Virginia Power owns a 50% undivided interest in such real and
personal property, including the right to nonexclusive possession of all such
real and personal property, subject to (a) the rights of the other to
nonexclusive possession of all such real and personal property and (b) the
terms and conditions of the Clover Agreements;
WHEREAS, Optionor will lease to Optionee (a) the Foundation Interest by
the Foundation Head Lease and (b) the Equipment Interest by the Equipment Head
Lease;
WHEREAS, by the Foundation Operating Lease, Optionee will lease the
Foundation Interest back to Optionor upon a term which shall end prior to the
expiration of the term of the Foundation Head Lease;
WHEREAS, by an Equipment Operating Lease, Owner Trustee will lease the
Equipment Interest back to Optionor upon a term which shall end prior to the
expiration of the term of the Equipment Head Lease;
WHEREAS, although Optionor and Optionee intend that the Foundation
Interest at all times and in all respects be and remain personal property under
Virginia law, they are to record the Foundation Head Lease and the Foundation
Operating Lease in the Halifax Clerk's Office, on the date that this Option
Agreement is recorded in the Halifax Clerk's Office, in order to satisfy the
conditions of Section 55-96 of the Code of Virginia 1950, as amended, in the
event that the Foundation Interest is deemed to be real estate or an interest in
real estate estate for purposes of such Section 55-96. The Equipment Head Lease
and the Equipment Operating Lease are not to be recorded; and
WHEREAS, Optionor now desires to grant and convey to Optionee, its
successors and permitted assigns, the exclusive right and option to lease the
Ground Interest from Optionor, subject to Optionee's agreement to sublease the
Ground Interest simultaneously back to Optionor if Optionee exercises such
option (with each of such lease and such sublease being encumbered by the
Permitted Liens), and Optionee desires to so obtain such right and option from
Optionor upon Optionee's obligation to so sublease the Ground Interest back to
Optionor, all upon the terms and conditions hereinafter set forth.
OPTION AGREEMENT TO LEASE.
NOW THEREFORE, for and in consideration of the mutual promises
hereinafter set forth, $100.00 (the "OPTION FEE") cash in hand paid by Optionee
to Optionor on the date (the "EXECUTION DATE") as of which this Option Agreement
is fully executed and delivered, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Optionor and Optionee
agree as follows.
1. OPTION TO LEASE. Subject to the provisions of this Option Agreement,
Optionor hereby grants and conveys to Optionee, its successors and permitted
assigns, the exclusive right and option (the "OPTION") to lease the Ground
Interest from Optionor upon the terms and conditions of this Option Agreement.
2. DURATION OF OPTION. The period of the Option shall begin on the
Execution Date and shall end at midnight on March 1, 2096 (the "OPTION PERIOD");
unless earlier terminated pursuant to the terms of this Option Agreement.
2
3. EXERCISE OF OPTION. At any time during the Option Period, Optionee
may elect to exercise the Option by giving to Optionor notice of exercise (the
"EXERCISE NOTICE") with which Optionee encloses (a) a counterpart original of
the Deed of Lease and Sublease (in the form attached hereto as part hereof and
marked Exhibit A) as duly executed and acknowledged on behalf of Optionee and
(b) a statement of the amount of the taxes and fees which are to be payable to
the Halifax Clerk's Office for the recordation of the Deed of Lease and Sublease
in the Halifax Clerk's Office (together, the "RECORDATION COST").
4. EARLY TERMINATION OF OPTION PERIOD. The Option Period shall
terminate prior to the scheduled expiration of the Option Period, if (a)
Optionor shall exercise its option to terminate the Equipment Operating Lease
and the Foundation Operating Lease pursuant to Section 10, 13 or 18 of the
Equipment Operating Lease and the Foundation Operating Lease or (b) Optionor
exercises the Purchase Option pursuant to paragraph (a) of Section 15.1 of the
Equipment Operating Lease and the Foundation Purchase Option pursuant to
paragraph (a) of Section 15.1 of the Foundation Operating Lease, or (c) Optionor
exercises its right to terminate the Equipment Head Lease and the Foundation
Head Lease pursuant to Section 10.2 of each such Lease and in each case complies
with its obligations under the Operative Documents in connection therewith.
Optionee shall transfer to Optionor, by a release or termination of the Option
to be prepared by Optionor and in a form reasonably satisfactory to Optionee to
be duly recorded in the Halifax Clerk's Office, all of Optionee's right, title
and interest in and to the Option.
5. LEASE AND SUBLEASE OF THE GROUND INTEREST. If Optionee gives the
Exercise Notice as provided above, Optionor shall, within five (5) Business Days
after receipt thereof, (a) have the counterpart original of the Deed of Lease
and Sublease, which was delivered to it by Optionee pursuant to the Exercise
Notice, duly executed and acknowledged on behalf of Optionor and (b) deliver to
Optionee both such executed and acknowledged counterpart original and
immediately available federal funds in the amount of the Recordation Cost. Upon
such deliveries by Optionor, the Deed of Lease and Sublease shall be deemed
effective, in accordance with its terms, to lease the Ground Interest from
Optionor to Optionee and sublease the Ground Interest from Optionee to Optionor,
in each case encumbered by the Permitted Liens. Optionee shall have such
counterpart original of the Deed of Lease and Sublease recorded in the Halifax
Clerk's Office within three (3) Business Days after receiving the foregoing
deliveries from Optionor.
6. TAXES. Until recordation of the Deed of Lease and Sublease as
provided above in Section 5, Optionor shall be responsible for payment of all
taxes attributable to the Ground Interest.
7. TITLE. Until recordation of the Deed of Lease and Sublease as
provided above in Section 5, Optionor shall not, without Optionee's prior
written consent, (a) convey or lease all or any portion of the Ground Interest,
(b) consent to, or acquiesce in, the condemnation, or taking by exercise of the
power of eminent domain (or by deed in lieu thereof), of all or any portion of
the Ground Interest, or (c) take, fail to take or allow to be taken any
action which may be adverse to title to all or any portion of the Ground
Interest, including the creation, or consent to the imposition of, any
lien (including liens of mechanics and materialmen), encumbrance,
easement,
3
condition, limitation, covenant, restriction, or tenancy upon the Ground
Interest (other than those accepted or waived by Optionee and Permitted
Liens). Notwithstanding the foregoing, Optionor shall have the right, without
Optionee's consent, to (a) grant one or more rights-of-way and easements over or
in respect of any portion of the Clover Real Estate and (b) lease or convey
one or more portions of the Clover Real Estate; provided, however, that (i)
each such grant, lease and conveyance shall be in accordance with the Clover
Agreements and (ii) no such grant, lease or conveyance shall either impair the
use or operation of, or the ability to maintain, improve or rebuild, Clover Unit
1 as contemplated by the Clover Agreements and the Operative Documents or
materially reduce the value of the Clover Real Estate or Clover Unit 1.
8. SECURITY FOR OPTIONEE'S OBLIGATION TO THE LENDERS. In order to
secure all amounts payable, and all obligations to be performed, by Optionee
under the Loan Agreement and the Leasehold Mortgage, Optionee has assigned in
the Loan Agreement to the Agent for the Agent's benefit and the ratable benefit
of the Lenders, and granted and conveyed in the Leasehold Mortgage to the
Trustees for the benefit of the Agent and the ratable benefit of the Lenders,
Optionee's rights under this Option Agreement (and, upon exercise of the Option,
Optionee's rights under the Deed of Lease and Sublease) and granted security
interests in favor of the Agent and the Trustees for the benefit of the Agent in
all of Optionee's right, title and interest in and to the Ground Interest,
including Optionee's interests in this Option Agreement (and, upon exercise of
the Option, Optionee's interests in the Deed of Lease and Sublease), other than
Excepted Payments and Excepted Rights and subject to Old Dominion's right to
quiet enjoyment pursuant to Section 7 of the Ground Lease and Sublease and
Section 9 of the Participation Agreement. Optionor hereby consents to such
grant, conveyance and assignment and to the creation of such security interests
and acknowledges receipt of copies of the Loan Agreement and the Leasehold
Mortgage, it being understood that such consent shall not affect any requirement
or the absence of any requirement for any consent under any other circumstances.
Optionor hereby acknowledges receipt of due notice that Optionee's interest in
this Option has been assigned to the Agent as security pursuant to the Loan
Agreement to the extent provided in the Loan Agreement and granted and conveyed
Optionee's interest in the Option Agreement (and in the Deed of Lease and
Sublease upon exercise of the Option) to the Trustees pursuant to the Leasehold
Mortgage to the extent provided in the Leasehold Mortgage. Unless and until
Optionor shall have received written notice from the Agent that Optionee has the
right to have the Liens of the Loan Agreement discharged, and the Liens of the
Leasehold Mortgage released, the Agent shall have the right to exercise the
rights of Optionee under this Option Agreement (and, upon exercise of the
Option, the rights of Optionee under the Deed of Lease and Sublease) to the
extent set forth in and subject in each case to the exceptions set forth in the
Loan Agreement and the Leasehold Mortgage.
9. AMENDMENTS AND WAIVERS. No term, covenant, agreement or condition
of this Option Agreement may be terminated, amended or compliance therewith
waived (either generally or in a particular instance, retroactively or
prospectively) except by an instrument or instruments in writing executed by
each party hereto.
10. 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
4
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 courier service, (b) in the case of
notice by United States mail, certified or registered, postage prepaid,
return receipt requested, upon receipt thereof, or (c) in the case of notice by
such a telecommunications device, upon transmission thereof, provided such
transmission is promptly confirmed by either of the methods set forth in
clauses (a) or (b) above, addressed to such party at its address set forth
below or, at such other address as such party may from time to time designate by
written notice to the other party hereto:
If to Optionor:
Old Dominion Electric Cooperative
Innsbrook Corporate Center
0000 Xxxxxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Vice President of Accounting and Finance
If to Optionee:
State Street Bank and Trust Company
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Manager-Corporate Trust
A copy of all communications and notices provided for herein shall be sent by
the party giving such communication or notice to Virginia Power at:
Virginia Electric and Power Company
X.X. Xxx 00000
Xxxxxxxx, Xxxxxxxx 00000
Attention: President
11. SURVIVAL. All warranties, representations, indemnities and
covenants made by either party hereto, herein or in any certificate or other
instrument delivered by either such party or on the behalf of such party under
this Option Agreement shall be considered to have been relied upon by the other
party hereto and shall survive the consummation of the transactions
5
contemplated hereby on the Closing Date regardless of any investigation made by
either party or on behalf of either party.
12. ENTIRE AGREEMENT. This Option Agreement contains the entire
agreement between the parties hereto relating to the Option and supersedes all
prior and contemporaneous negotiations, understandings and agreements, written
or oral, between the parties. This Option Agreement shall not be amended or
modified, and no waiver of any provision hereof shall be effective, unless set
forth in a written instrument authorized and executed with the same formality as
this Option Agreement.
13. SUCCESSORS AND ASSIGNS. (a) This Option Agreement shall be binding
upon and shall inure to the benefit of, and shall be enforceable by, the parties
hereto and their respective successors and assigns as permitted by and in
accordance with the terms hereof. Each time a successor Owner Trustee is
appointed in accordance with the terms of the Trust Agreement and Section 5.5 of
the Participation Agreement, such successor Owner Trustee shall, without further
act, succeed to all rights, duties, immunities, and obligations of the
predecessor Owner Trustee hereunder and the predecessor Owner Trustee shall be
released from all further duties and obligations hereunder, all without the
necessity of any consent or approval by the Optionor and without in any way
altering the terms and conditions of this Option Agreement or the rights and
obligations of the Optionee hereunder. The Optionor shall, at its expense, upon
receipt of written notice of the appointment of a successor Owner Trustee under
the Trust Agreement, promptly make such modifications and changes to reflect
such appointment as shall be reasonably requested by such successor Owner
Trustee in any instruments relating to this Option Agreement, all in form and
substance reasonably satisfactory to such successor Owner Trustee.
(b) Except as expressly provided herein or in the Operative Documents,
neither party hereto may assign its interests herein without the consent of the
other party hereto.
14. BUSINESS DAY. Notwithstanding anything herein to the contrary, if
the date on which any payment is to be made pursuant to this Option Agreement 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.
15. GOVERNING LAW. This Option Agreement shall be in all respects
governed by and construed in accordance with the laws of the Commonwealth of
Virginia including all matters of construction, validity and performance.
16. SEVERABILITY. Whenever possible, each provision of this Option
Agreement shall be interpreted in such manner as to be effective and valid under
Applicable Law, but if any provision of this Option Agreement shall be
prohibited by or invalid under Applicable Law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Option Agreement.
6
17. COUNTERPARTS. This Option Agreement may be executed in any number
of counterparts, each executed counterpart constituting an original but all
together only one instrument.
18. HEADINGS. The headings of this Option Agreement are inserted for
purposes of convenience only and shall not be construed to affect the meaning of
any of the provisions hereof.
19. TIME OF THE ESSENCE. Time is of the essence for all purposes of
this Option Agreement.
20. LIMITATIONS OF LIABILITY. It is expressly understood and agreed by
and between the parties hereto and their respective successors and permitted
assigns, that all representations, warranties and undertakings of the Optionee
hereunder shall be binding upon the Optionee only in its capacity as Owner
Trustee under the Trust Agreement, and neither the Optionee in its individual
capacity nor any past, present or future Affiliate, partner, officer, director,
owner, shareholder, agent or employee of it or in any thereof or of any partner
thereof or their legal representatives, successors or assigns shall be liable
for any breach thereof; and all Persons having any claim against the Optionee by
reason of the transactions contemplated hereby shall look only to the Trust
Estate for payment or satisfaction thereof.
21. FURTHER ASSURANCES. Each party hereto will promptly and duly
execute and deliver such further documents and 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 Option Agreement.
22. MEASURING LIVES. If and to the extent that any of the rights and
privileges granted under the provisions of this Option Agreement would, in the
absence of the limitation imposed by this Section 22, 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 Option Agreement, such options,
rights and privileges, subject to the respective conditions governing the
exercise of such options, rights and privileges, will be exercisable only during
(a) a period which will end twenty-one (21) years after the death of the last
survivor of the Boards of Directors of Optionor named in Exhibit C hereto,
together with all such persons' children and grandchildren who are living on the
date of the execution of this Option Agreement or (b) the specific applicable
period of time expressed in this Option Agreement, whichever is shorter.
7
WITNESS the following signatures.
OLD DOMINION ELECTRIC COOPERATIVE,
as Optionor
By:/s/ XXXXXX X. XXXXXX
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Date Executed: July 30, 1996
-------------------------
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee under the
Trust Agreement, as Optionee
By:/s/ X. XXXXXX XXXXX
---------------------------------------
Name: X. Xxxxxx Xxxxx
Title: Vice President
Date Executed: July 30, 1996
-------------------------
0
Xxxxx Xxxxxx Bank and Trust Company having (a) assigned its right,
title and interest under the Option Agreement to Utrecht-America Finance Co., as
Agent, under the Loan Agreement and (b) assigned, transferred, granted and
conveyed its right, title and interest under the Option Agreement to Xxxxx X.
Xxxx and C. Xxxxxxxxxx Xxxxxxxx, as Trustees, under the Leasehold Mortgage, the
Agent and one of the Trustees (upon the direction of the Agent) have executed
this Corrected Option Agreement to Lease for the sole purpose of evidencing
their consent hereto.
AGENT
Utrecht-America Finance Co.
By:/s/ ILLEGIBLE
-------------------------
Title: ______________________
By:/s/ ILLEGIBLE
-------------------------
Title: ______________________
SOLE ACTING TRUSTEE
/s/ XXXXX X. XXXX
-------------------------------------
Xxxxx X. Xxxx, as sole acting trustee
9
STATE OF NEW YORK )
) ss:
CITY/COUNTY OF NEW YORK )
The foregoing instrument was acknowledged before me this 30 day of
July, ____, by Xxxxxx X. Xxxxxx, as Vice President of OLD DOMINION ELECTRIC
COOPERATIVE, a wholesale power supply cooperative organized under the laws of
the Commonwealth of Virginia, on behalf of such cooperative.
/s/ XXXXXXXX XXXXX-XXXXXXX
----------------------------------
Name: Xxxxxxxx Xxxxx-Xxxxxxx
Notary Public
(Notarial Seal)
My commission expires:______________________________________
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
The foregoing instrument was acknowledged before me this 30 day of
July, ____, by X. Xxxxxx Xxxxx as Vice President of STATE STREET BANK AND
TRUST COMPANY, a state chartered trust company organized and existing under the
laws of the Commonwealth of Massachusetts, on behalf of such Trust Company not
in its individual capacity but solely as Owner Trustee under the Trust
Agreement.
/s/ XXXXXXXX XXXXX-XXXXXXX
----------------------------------
Name: Xxxxxxxx Xxxxx-Xxxxxxx
Notary Public
My commission expires:______________________________________
[NOTARIAL SEAL]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
The foregoing instrument was acknowledged before me this 31 day of
July, 1996, by as of Utrecht-America Finance Co., a corporation organized
and existing under the laws of the State of Delaware, on behalf of the
corporation.
/s/ XXXXXX XXXXXXXX
----------------------------------
Name: Xxxxxx Xxxxxxxx
Notary Public
(Notarial Seal)
My Commission expires: _______________________
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
The foregoing instrument was acknowledged before me this 31 day of
July, 1996, by as of Utrecht-America Finance Co., a corporation organized
and existing under the laws of the State of Delaware, on behalf of the
corporation.
/s/ XXXXXX XXXXXXXX
----------------------------------
Name: Xxxxxx Xxxxxxxx
Notary Public
(Notarial Seal)
My Commission expires: _______________________
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
The foregoing instrument was acknowledged before me this 31st day of
July, 1996, by Xxxxx X. Xxxx, as Sole Acting Trustee.
/s/ XXXXXXXX XXXXX-XXXXXXX
----------------------------------
Name: Xxxxxxxx Xxxxx-Xxxxxxx
Notary Public
(Notarial Seal)
My Commission expires: _______________________
APPENDIX A
TO OPTION AGREEMENT TO LEASE
BETWEEN OLD DOMINION ELECTRIC COOPERATIVE (AS OPTIONOR)
AND
STATE STREET BANK AND TRUST COMPANY (AS OPTIONEE)
DEFINITIONS
This Appendix A has been filed separately. See Appendix A to Exhibit 10.35 to
Old Dominion's Form 10-K for the year ended December 31, 1996.
EXHIBIT A
TO OPTION AGREEMENT TO LEASE
BETWEEN OLD DOMINION ELECTRIC COOPERATIVE (AS OPTIONOR)
AND
STATE STREET BANK AND TRUST COMPANY (AS OPTIONEE)
FORM OF THE DEED OF GROUND LEASE AND SUBLEASE AGREEMENT
EXHIBIT B
TO OPTION AGREEMENT TO LEASE
BETWEEN OLD DOMINION ELECTRIC COOPERATIVE (AS OPTIONOR)
AND
STATE STREET BANK AND TRUST COMPANY (AS OPTIONEE)
COPY OF THE CLOVER POWER STATION PLAT
RECORDED IN PLAT BOOK 18, PAGE 50
AND AS RERECORDED AS A CORRECTION IN
PLAT BOOK _____, PAGE ____
EXHIBIT C
TO OPTION AGREEMENT TO LEASE
BETWEEN OLD DOMINION ELECTRIC COOPERATIVE (AS OPTIONOR)
AND
STATE STREET BANK AND TRUST COMPANY (AS OPTIONEE)
LIST OF MEASURING LIVES
The following are the names of the members of the Board of Directors of
Old Dominion Electric Cooperative:
M. Xxxx Xxxxxxxx
Xxxxx X. Xxxxxxxx
Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
X. Xxxxxxx Wine
M. Xxxx Xxxxxx
Xxxxxx X. Xxxxxx
X. Xxxx Bienvenue
Xxxxx X. Xxxxx
Xxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxxx, Xx.
Xxxxxxx X. Xxxxxx
Xxxxx X. Xxxxx
Xxxxxx X. Xxxxxxxx, Xx.
Xxxxx X. Xxxxxxxxx, Xx.
Xxxxxxx X. Xxxxxxxxx
Xxxxxxxx X. Xxxxx, Xx.
Xxxxx X. Xxxxx
Xxxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxxx
Xxxxxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx
Xxxxxxx X. Xxxx, Xx.
EXHIBIT A
to
Option Agreement
FORM OF DEED OF GROUND LEASE AND SUBLEASE AGREEMENT
--------------------------------------------------------------------------------
DEED OF GROUND LEASE AND SUBLEASE AGREEMENT
Dated as of ______________
between
OLD DOMINION ELECTRIC COOPERATIVE,
as Ground Lessor
[To be indexed as both GRANTOR and GRANTEE]
and
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity, but
solely as Owner Trustee,
as Ground Lessee
[To be indexed as both GRANTEE and GRANTOR]
-----------------------------------------------------
Land Located
in Halifax County, Virginia
--------------------------------------------------------------------------------
TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS
SECTION 2. LEASE OF GROUND INTEREST
SECTION 2.1. LEASE OF GROUND INTEREST.................................................... 3
SECTION 2.2. BASIC GROUND LEASE TERM..................................................... 3
SECTION 2.3. RENEWAL GROUND LEASE TERM................................................... 3
SECTION 2.4. RETURN OF GROUND INTEREST................................................... 4
SECTION 2.5. NONTERMINABILITY............................................................ 4
SECTION 3. RENT FOR THE LEASE OF THE GROUND INTEREST
SECTION 3.1. ANNUAL RENT..................................................................... 4
SECTION 3.2. TAXES AND ASSESSMENTS........................................................... 4
SECTION 4. SUBLEASE OF GROUND INTEREST
SECTION 5. RENT FOR THE SUBLEASE OF THE GROUND INTEREST
SECTION 6. QUIET ENJOYMENT IN FAVOR OF THE GROUND LESSEE.
SECTION 7. QUIET ENJOYMENT IN FAVOR OF THE GROUND LESSOR.
SECTION 8. USE OF THE GROUND INTEREST BY GROUND LESSEE
SECTION 9. USE OF THE GROUND INTEREST BY GROUND LESSOR
SECTION 10. EARLY TERMINATION OF GROUND LEASE TERM
SECTION 11. EARLY TERMINATION OF GROUND SUBLEASE TERM
SECTION 12. LIENS
SECTION 13. WAIVER OF PARTITION
SECTION 14. SECURITY FOR GROUND LESSEE'S OBLIGATION TO THE
LENDERS.
SECTION 15. NONMERGER
i
SECTION 16. MISCELLANEOUS
SECTION 16.1. AMENDMENTS AND WAIVERS...................................................... 9
SECTION 16.2. NOTICES..................................................................... 9
SECTION 16.3. SURVIVAL.................................................................... 10
SECTION 16.4. SUCCESSORS AND ASSIGNS...................................................... 10
SECTION 16.5. BUSINESS DAY................................................................ 10
SECTION 16.6. GOVERNING LAW............................................................... 10
SECTION 16.7. SEVERABILITY................................................................ 10
SECTION 16.8. COUNTERPARTS................................................................ 11
SECTION 16.9. HEADINGS AND TABLE OF CONTENTS.............................................. 11
SECTION 16.10. LIMITATIONS OF LIABILITY................................................... 11
SECTION 16.11. FURTHER ASSURANCES......................................................... 11
SECTION 16.12. EFFECTIVENESS OF GROUND LEASE AND SUBLEASE................................. 11
Appendix A - Definitions
Schedule 1 - Description of the Clover Real Estate
Schedule 2 - Description of the Unit 1 Site
Schedule 3 - Description of the Xxxx 0 Xxxx
Xxxxxxxx 4 - Description of Common Facilities Site
ii
DEED OF GROUND LEASE AND SUBLEASE AGREEMENT
THIS DEED OF GROUND LEASE AND SUBLEASE AGREEMENT, dated as of
_______________ (this "Ground Lease and Sublease"), between OLD DOMINION
ELECTRIC COOPERATIVE, a wholesale power supply cooperative organized under the
laws of the Commonwealth of Virginia (the "Ground Lessor", to be indexed as both
GRANTOR and GRANTEE), and STATE STREET BANK AND TRUST COMPANY, a state chartered
trust company organized and existing under the laws of the Commonwealth of
Massachusetts, not in its individual capacity but solely as Owner Trustee under
the Trust Agreement (the "Ground Lessee", to be indexed as both GRANTEE and
GRANTOR).
WHEREAS, capitalized terms used herein and not otherwise defined shall
have the meanings given them in Appendix A - Definitions which is attached
hereto as part hereof.
WHEREAS, the Clover Real Estate is more particularly described in
Schedule 1 and comprised of the Unit 1 Site described in Schedule 2, the Unit 2
Site described in Schedule 3, and the Common Facilities Site described in
Schedule 4, and certain other property, each such Schedule 1, Schedule 2,
Schedule 3, and Schedule 4 being attached to the Ground Lease and Sublease as
part thereof, the form of which Ground Lease and Sublease is marked Exhibit A
and is attached to, and recorded in the Halifax Clerk's Office with, the Option
Agreement of even date herewith.
WHEREAS, a copy of the Clover Power Station Plat is marked Exhibit B
and is attached to, and recorded in the Halifax Clerk's Office with, the Option
Agreement as a part thereof.
WHEREAS, Old Dominion and Virginia Power own the Clover Real Estate as
tenants-in-common.
WHEREAS, by the Clover Agreements, Old Dominion and Virginia Power
established their respective rights and obligations as tenants-in-common of the
Clover Real Estate and of all improvements thereafter to be constructed, and all
personal property thereafter to be situated, on the Clover Real Estate. Such
improvements and personal property owned by Old Dominion and Virginia Power as
tenants-in-common include, but are not limited to, (a) the Xxxx 0 Foundation
constructed on the Xxxx 0 Xxxx, (x) the Xxxx 0 Foundation being constructed on
the Unit 2 Site, (c) the Common Facilities Foundation constructed on the Common
Facilities Site, (d) the Unit 1 Equipment situated on the Unit 1 Site, (e) the
Xxxx 0 Equipment being situated on the Unit 2 Site, and (f) the Common
Facilities Equipment situated on the Common Facilities Site.
WHEREAS, as tenants-in-common of such real and personal property, each
of Old Dominion and Virginia Power owns a 50% undivided interest in such real
and personal property, including the right to nonexclusive possession of all
such real and personal property, subject to (a) the rights of the other to
nonexclusive possession of all such real and personal property, (b) the terms
and conditions of the Clover Agreements and (c) in the case of the Pollution
Control Assets, the rights of the Pollution Control Assets Lessor.
WHEREAS, by the Option Agreement which is recorded in the Halifax
Clerk's Office, Old Dominion granted and conveyed to the Owner Trustee, its
successors and assigns, the exclusive right and option to lease the Ground
Interest from Old Dominion, subject to the Owner Trustee's agreement to sublease
the Ground Interest simultaneously back to Old Dominion upon the terms and
conditions of the Option Agreement if the Owner Trustee exercises such option.
WHEREAS, Old Dominion has leased to the Owner Trustee (a) the
Foundation Interest by the Foundation Head Lease and (b) the Equipment Interest
by the Equipment Head Lease.
WHEREAS, by the Foundation Operating Lease, the Owner Trustee leased
the Foundation Interest back to Old Dominion upon a term which shall end prior
to the expiration of the term of this Foundation Head Lease.
WHEREAS, by the Equipment Operating Lease, the Owner Trustee leased the
Equipment Interest back to Old Dominion upon a term which shall end prior to the
expiration of the term of the Equipment Head Lease.
WHEREAS, although Old Dominion and the Owner Trustee intend that the
Foundation Interest at all times and in all respects be and remain personal
property under Virginia law, they recorded copies of this Foundation Head Lease
and the Foundation Operating Lease in the Halifax Clerk's Office in order to
satisfy the conditions of Section 55-96 of the Code of Virginia 1950, as
amended, in the event that the Foundation Interest is deemed to be real estate
or an interest in real estate for purposes of such Section 55-96. The Equipment
Head Lease and the Equipment Operating Lease are not to be recorded.
WHEREAS, upon the leasing or other conveyance by Old Dominion to the
Unit 2 Parties of the foundation and the equipment in connection with Clover
Unit 2, each of Owner Trustee (on the one hand) and the Unit 2 Parties (on the
other hand) shall share equally all of those rights, and shall be subject
equally to having all of those responsibilities undertaken, which are imposed
upon Old Dominion with respect to the Common Facilities Site, the Common
Facilities Foundation, and the Common Facilities Equipment, as (a)
tenant-in-common with Virginia Power of such property, and (b) a party to the
Clover Agreements.
NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
2
SECTION 1. DEFINITIONS
The capitalized terms used in this Ground Lease and Sublease and not
otherwise defined herein shall have the respective meanings set forth in
Appendix A hereto unless the context hereof shall otherwise require. All
references in this Ground Lease and Sublease to Sections, paragraphs, clauses,
appendices and exhibits are to Sections, paragraphs, clauses, appendices and
exhibits in this Ground Lease and Sublease unless otherwise indicated and the
words "herein", "hereof" and "hereunder" and other words of similar import refer
to this Ground Lease and Sublease as a whole and not to any particular Section
or other subdivision.
Where any provision in this Ground Lease and Sublease refers to action
to be taken by any Person, or which such Person is prohibited from taking, such
provision shall be applicable whether such action is taken directly or
indirectly by such Person.
SECTION 2. LEASE OF GROUND INTEREST
SECTION 2.1. LEASE OF GROUND INTEREST. The Ground Lessor hereby leases
the Ground Interest to the Ground Lessee and the Ground Lessee hereby leases the
Ground Interest from the Ground Lessor on the terms and conditions hereof. The
parties hereto acknowledge and agree that legal title to the Clover Real Estate,
including the Unit 1 Site and the Common Facilities Site, shall at all times
remain in the Ground Lessor and Virginia Power, as tenants-in-common, and that
the Ground Interest is subject to the Lien of the Old Dominion Indenture,
Permitted Encumbrances and the rights of Virginia Power under the Clover
Agreements.
SECTION 2.2. BASIC GROUND LEASE TERM. The term of the foregoing lease
to the Ground Lessee will commence on the date of the execution and delivery of
this Ground Lease and Sublease and will expire at 11:59 p.m. (New York City
time) on March 1, 2045 (the "Basic Ground Lease Term"), unless earlier
terminated pursuant to the terms of this Ground Lease and Sublease; PROVIDED,
HOWEVER, that in no event shall the Basic Ground Lease Term terminate so long as
the Ground Lessee's leasehold interest in the Ground Interest shall be subject
to the Lien of the Leasehold Mortgage.
SECTION 2.3. RENEWAL GROUND LEASE TERM. At the expiration of the Basic
Ground Lease Term and each Renewal Ground Lease Term, by giving at least 180
days prior written notice to the Ground Lessor, the Ground Lessee may extend the
Basic Ground Lease Term or such existing Renewal Ground Lease Term for an
additional term of not less than one year (each a "Renewal 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 (a) concurrently with such
renewal, the Equipment Head Lease and the Foundation Head Lease are renewed for
an Equipment Head Lease Renewal Term and Foundation Head Lease Renewal Term,
respectively, equal to the Renewal Ground Lease Term, and (b) on the date of
such notice and at the commencement of such Renewal Ground Lease Term (i) Clover
Unit 1 Generating Facility continues to be used for the production of electric
capacity and energy on the Clover Real Estate and (ii) the Clover Unit 1
Generating Facility shall not be retired in accordance with Section 11.01(a) of
the Clover Operating Agreement. Notwithstanding the foregoing, if the Ground
Lease Term is not earlier terminated, it shall end on March 1, 2096.
3
SECTION 2.4. RETURN OF GROUND INTEREST. Subject to Section 10, on the
last day of the Ground Lease Term the Ground Lessee shall return the Ground
Interest to the Ground Lessor by surrendering 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 Lessor's Liens and Owner Participant's Liens.
The obligations of the Ground Lessee under this Section 2.4 shall survive the
termination of this Ground Lease and Sublease.
SECTION 2.5. NONTERMINABILITY. Subject to Section 10, the Ground Lease
Term shall not terminate, nor shall any of the rights granted and conveyed
hereunder to the Ground Lessee be extinguished, lost or otherwise impaired, in
whole or in part, by any cause or for any reason whatsoever, including, without
limitation, the following: (a) any damage to or loss or destruction of all or
any part of Clover Unit 1 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 Clover Unit 1 by any Governmental Entity or
otherwise, (c) any prohibition, limitation or restriction on the use by any
party of all or any part of its property or the interference with such use by
any Person, or any eviction by paramount title or otherwise, (d) any inadequacy,
incorrectness or failure of the description of the Clover Real Estate 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 and
Sublease, (e) the insolvency, bankruptcy, reorganization or similar proceedings
by or against the Ground Lessor or the Ground Lessee or any other Person, (f)
failure by the Ground Lessee to comply with Section 2.4, 3 or 8 hereof, or (g)
any other reason whatsoever, whether similar or dissimilar to any of the
foregoing.
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 rent of $100 per year, payable in
advance on March 1 of each year during that portion of the Ground Lease Term
equal to the Ground Sublease Term. From and after the expiration and termination
of the Ground Sublease Term, as rent for the Ground Interest, the Ground Lessee
agrees to pay to the Ground Lessor rent equal to the fair market rental value of
the Ground Interest, such fair market rental value to be determined at the
expiration or termination of the Ground Sublease Term by an appraiser mutually
acceptable to the Ground Lessor and the Ground Lessee.
SECTION 3.2. TAXES AND ASSESSMENTS. From and after the expiration or
termination of the Ground Sublease Term and until the expiration or termination
of the Ground Lease Term, the Ground Lessee agrees to pay to the Ground Lessor
an amount equal to 50% of all Taxes and assessments, general or special, taxed,
charged, levied, assessed or imposed upon the Unit 1 Site and 25% of all Taxes
and assessments, general or special, taxed, charged, levied, assessed or imposed
upon the Common Facilities Site. 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.
4
SECTION 4. SUBLEASE OF GROUND INTEREST
The Ground Lessee hereby subleases the Ground Interest to the Ground
Lessor, and the Ground Lessor hereby subleases the Ground Interest from the
Ground Lessee for a term commencing on the date of execution and delivery of
this Ground Lease and Sublease and expiring at 11:59 p.m. (New York City time)
on the date one day prior to the earlier of the Expiration Date or the date the
Ground Lease Term is earlier terminated pursuant to Section 10 of this Ground
Lease and Sublease (the "Ground Sublease Term").
SECTION 5. RENT FOR THE SUBLEASE OF THE GROUND INTEREST.
As rent for the sublease of the Ground Interest provided in Section 4,
the Ground Lessor agrees to pay to the Ground Lessee annual rent of $100 per
year, payable in advance on March 1 of each year during the Ground Sublease
Term. The Ground Lessor and the Ground Lessee agree that, during the Ground
Sublease Term, each payment of rent by the Ground Lessee for the Ground Interest
pursuant to Section 3.1 and each payment of rent by the Ground Lessor for the
sublease of the Ground Interest pursuant to this Section 5 shall be offset, and
no amounts shall be payable by the Ground Lessee or the Ground Lessor in respect
thereof.
SECTION 6. QUIET ENJOYMENT IN FAVOR OF THE GROUND LESSEE.
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 Sublease and agrees that, notwithstanding any provision of any
other Operative Documents, it shall not through its own actions or inactions
interfere with or interrupt the quiet enjoyment of the use, operation and
possession by the Ground Lessee of the leasehold interest in the Ground Interest
subject to the terms and conditions hereof; PROVIDED, HOWEVER, that the Ground
Lessor makes no covenant with respect to the interruptions of such enjoyment,
use, operation or possession of the Ground Interest by the Indenture Trustee,
the Lenders or the Agent.
Notwithstanding anything in this Ground Lease and Sublease to the
contrary, the Ground Lessor shall have the right, without the Ground Lessee's
permission, without being deemed to breach the foregoing covenant of quiet
enjoyment, to (a) grant one or more rights of way and easements over or in
respect of any portion of the Clover Real Estate and (b) lease or convey one or
more portions of the Clover Real Estate; PROVIDED, HOWEVER, that (i) each such
grant, lease and conveyance shall be in accordance with the Clover Agreements
and (ii) no such grant, lease or conveyance shall either impair the use or
operation of, or the ability to maintain, improve or rebuild, the Clover Unit 1
as contemplated by the Clover Agreements and the Operative Documents or
materially reduce the value of Clover Unit 1.
5
SECTION 7. QUIET ENJOYMENT IN FAVOR OF THE GROUND LESSOR.
The Ground Lessee warrants that it has full right and authority to
sublease the Ground Interest to the Ground Lessor pursuant to the terms of this
Ground Lease and Sublease and agrees that, notwithstanding any provision of any
other Operative Documents, it shall not through its own actions or inactions
interfere with or interrupt the quiet enjoyment of the use, operation and
possession by the Ground Lessor of the subleasehold interest in the Ground
Interest; PROVIDED, HOWEVER, that the Ground Lessee makes no covenant with
respect to the interruption of such enjoyment, use, operation and possession of
the Ground Interest arising from actions of the Indenture Trustee, any Lender or
the Agent.
SECTION 8. 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 to use the Ground Interest in connection with the use,
operation and maintenance of Clover Unit 1 and in accordance with the terms and
provisions of the Clover Agreements, which shall include the right to construct,
install, operate, use, repair and relocate and remove facilities and structures
on or under the Unit 1 Site and the Common Facilities 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, coal, water, limestone and
other commodity transport systems, safety sensor and monitoring systems, fuel
lines and other utility lines and systems, all as reasonably necessary or
advisable for the commercial operation of Clover Unit 1, but in each case, only
to the extent permitted by the Clover Agreements.
SECTION 9. USE OF THE GROUND INTEREST BY GROUND LESSOR.
The Ground Lessor's rights hereunder to use the Ground Interest during
the Ground Sublease Term shall include the right to construct, install, operate,
use, repair and relocate facilities and structures on or under the Unit 1 Site
and the Common Facilities 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, coal, water, limestone and other commodity transport
systems, safety sensor and monitoring systems, fuel lines and other utility
lines and systems, and any other uses as shall be permitted by the Clover
Agreements.
6
SECTION 10. EARLY TERMINATION OF GROUND LEASE TERM.
The Ground Lease Term shall terminate prior to the scheduled expiration
of the Basic Ground Lease Term or Renewal Ground Lease Term, as the case may be,
(a) if the Ground Lessor shall exercise its option to terminate the Equipment
Operating Lease and the Foundation Operating Lease pursuant to Section 10, 13
or 18 of the Equipment Operating Lease and the Foundation Operating Lease or
(b) if the Ground Lessor exercises the Purchase Option pursuant to paragraph
(a) of Section 15.1 of the Equipment Operating Lease and the Foundation Purchase
Option pursuant to paragraph (a) of Section 15.1 of the Foundation Operating
Lease, (c) if the Ground Lessee exercises its right to terminate the
Equipment Head Lease and the Foundation Head Lease pursuant to Section 10.2
of each such lease or (d) 30 days after the Clover Unit 1 Generating Facility
shall be retired from service pursuant to Section 11.01(a) of the Clover
Operating Agreement and all decommissioning activities shall be concluded.
Upon satisfaction of the requirements of the relevant Sections of the
Equipment Operating Lease, the Foundation Operating Lease, the Equipment
Head Lease and the Foundation Head Lease, the Ground Lease Term shall terminate
without any action of any Person whatsoever, and the Ground Lessor and the
Ground Lessee agree to comply with the provisions of the applicable
Sections of the Equipment Operating Lease, the Foundation Operating Lease, the
Equipment Head Lease and the Foundation Head Lease in connection with such
termination. The Ground Lessee shall transfer to the Ground Lessor, by a
release or termination of the Ground Lease Interest to be prepared by the Ground
Lessor and in a form reasonably satisfactory to the Ground Lessee to be duly
recorded in the Halifax Clerk's Office all of the Ground Lessee's right, title
and interest in and to the Ground Interest.
SECTION 11. EARLY TERMINATION OF GROUND SUBLEASE TERM.
The Ground Sublease Term shall terminate prior to the scheduled
expiration of the Ground Sublease Term if (a) the Ground Lessor shall exercise
its option to terminate the Equipment Operating Lease and the Foundation
Operating Lease pursuant to Section 14 of each thereof or (b) the Equipment
Operating Lease and the Foundation Operating Lease shall be terminated pursuant
to Section 17 of each thereof. Upon satisfaction of the requirements of Section
14 of the Equipment Operating Lease and the Foundation Operating Lease or upon
termination of the Equipment Operating Lease and the Foundation Operating Lease
pursuant to Section 17 of each thereof, the Ground Sublease Term shall terminate
without any action of any Person whatsoever, provided, however, that,
notwithstanding the foregoing, in every instance, the Ground Sublease Term shall
end on the day prior to the expiration or earlier termination of the Ground
Lease Term. The Ground Lessor agrees to execute and deliver an instrument, in a
form reasonably satisfactory to the Ground Lessee, evidencing the termination of
the Ground Lessor's subleasehold interest in and to the Ground Interest for
recordation in the Halifax Clerk's Office.
7
SECTION 12. LIENS
The Ground Lessee covenants and agrees that it will not create, incur,
assume or suffer to exist any Lessor's Liens or Owner Participant's Liens on the
Clover Real Estate and the Ground Interest other than the Lien of Leasehold
Mortgage.
SECTION 13. WAIVER OF PARTITION
As permitted by Section 56-90.1 of the Code of Virginia, each of the
Ground Lessor and the Ground Lessee, 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 Clover Real Estate, or any interest or portion
thereof, and such waiver will continue in effect until the earlier of (a)
termination of the Clover Ownership Agreement pursuant to Section 16.01 of the
Clover Ownership Agreement and Clover Operating Agreement pursuant to Section
14.01 of the Clover Operating Agreement in accordance with their terms or (b)
December 31, 2089. Each of the Ground Lessor and the Ground Lessee agrees not to
commence during such period any action of any kind seeking any form of partition
with respect thereto. Each of the Ground Lessor and the Ground Lessee agrees to
incorporate this waiver in all deeds, deeds of trust, and instruments of
conveyance relating to the Clover Real Estate (or any interest or portion
thereof), whether delivered at the Closing or thereafter.
SECTION 14. SECURITY FOR GROUND LESSEE'S OBLIGATION TO THE LENDERS.
In order to secure all amounts payable by, and all obligations to be
performed by, the Ground Lessee under the Leasehold Mortgage, the Ground Lessee
has the right to xxxxx x Xxxx by the Leasehold Mortgage to the Trustees for the
benefit of the Agent and the ratable benefit of the Lenders on all of the Ground
Lessee's right, title and interest in and to the Ground Interest. The Ground
Lessor hereby consents to the grant of such Lien and acknowledges receipt of
copies of the Leasehold Mortgage, 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 Agent that the Lien of the Leasehold Mortgage
has been released, the Agent and the Trustees under the Leasehold Mortgage shall
have the rights of the Ground Lessee under this Ground Lease and Sublease to the
extent set forth in and subject in each case to the exceptions set forth in the
Leasehold Mortgage.
8
SECTION 15. NONMERGER
The remainder in the Ground Interest conveyed by this Ground Lease and
Sublease shall not merge into the interest in the Ground Interest conveyed by
the Ground Lease and Sublease even if such remainder and such interest are at
any time vested in or held by the same person or entity, but this Ground Lease
and Sublease shall nonetheless remain in full force and effect in accordance
with its terms notwithstanding such vesting or holding.
SECTION 16. MISCELLANEOUS
SECTION 16.1. AMENDMENTS AND WAIVERS. No term, covenant, agreement or
condition of this Ground Lease and 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 16.2. 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 courier service, (b) in the case of notice by United States mail,
certified or registered, postage prepaid, return receipt requested, upon receipt
thereof, or (c) in the case of notice by such a telecommunications device, upon
transmission thereof, provided such transmission is promptly confirmed by either
of the methods set forth in clauses (a) or (b) above, in each case addressed to
such party at its address set forth below or at such other address as such party
may from time to time designate by written notice to the other party hereto:
9
If to the Ground Lessor:
Old Dominion Electric Cooperative
Innsbrook Corporate Center
0000 Xxxxxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Vice President of Accounting and Financing
If to the Ground Lessee:
State Street Bank and Trust Company
Xxx Xxxxxxxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Manager - Corporate Trust
A copy of all communications and notices provided for herein shall be sent by
the party giving such communication or notice to Virginia Power at:
Virginia Electric and Power Company
X.X. Xxx 00000
Xxxxxxxx, Xxxxxxxx 00000
Attention: President
SECTION 16.3. SURVIVAL. All warranties, representations, indemnities
and covenants made by either party hereto, herein or in any certificate or other
instrument delivered by either such party or on the behalf of such party under
this Ground Lease and Sublease, shall be considered to have been relied upon by
the other party hereto and shall survive the consummation of the transactions
contemplated hereby on the Closing Date regardless of any investigation made by
either party or on behalf of either party.
SECTION 16.4. SUCCESSORS AND ASSIGNS. (a) This Ground Lease and
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 assigns
as permitted by and in accordance with the terms hereof. Each time a successor
Owner Trustee is appointed in accordance with the terms of the Trust Agreement
and Section 5.5 of the Participation Agreement, such successor Owner Trustee
10
shall, without further act, succeed to all rights, duties, immunities, and
obligations of the predecessor Owner Trustee hereunder and the predecessor Owner
Trustee shall be released from all further duties and obligations hereunder, all
without the necessity of any consent or approval by the Ground Lessor and
without in any way altering the terms and conditions of this Ground Lease and
Sublease or the rights and obligations of the Ground Lessor or the Ground Lessee
hereunder. The Ground Lessee shall, at its expense, upon receipt of written
notice of the appointment of a successor Owner Trustee under the Trust
Agreement, promptly make such modifications and changes to reflect such
appointment as shall be reasonably requested by such successor Owner Trustee in
any instruments relating to this Ground Lease and Sublease, all in form and
substance reasonably satisfactory to such successor Owner Trustee.
(b) Except as expressly provided herein or in the Operative Documents,
neither party hereto may assign its interests herein without the consent of the
other party hereto.
SECTION 16.5. BUSINESS DAY. Notwithstanding anything herein to the
contrary, if the date on which any payment is to be made pursuant to this Ground
Lease and 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 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 16.6. GOVERNING LAW. THIS GROUND LEASE AND SUBLEASE SHALL
BE IN ALL RESPECTS GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE COMMONWEALTH OF VIRGINIA INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE.
SECTION 16.7. SEVERABILITY. Whenever possible, each provision of this
Ground Lease and Sublease shall be interpreted in such manner as to be effective
and valid under Applicable Law, but if any provision of this Ground Lease and
Sublease shall be prohibited by or invalid under Applicable Law, such provision
shall be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions
of this Ground Lease and Sublease.
SECTION 16.8. COUNTERPARTS. This Ground Lease and Sublease may be
executed in any number of counterparts, each executed counterpart constituting
an original but all together only one instrument.
SECTION 16.9. HEADINGS AND TABLE OF CONTENTS. The headings of the
sections of this Ground Lease and 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.
11
SECTION 16.10. LIMITATIONS OF LIABILITY. It is expressly understood and
agreed by and between the parties hereto and their respective successors and
permitted assigns, that all representations, warranties and undertakings of the
Ground Lessee hereunder shall be binding upon the Ground Lessee only in its
capacity as Owner Trustee under the Trust Agreement, and neither the Ground
Lessee in its individual capacity nor any past, present or future Affiliate,
partner, officer, director, any owner, shareholder, agent or employee of it or
in any thereof or of any partner thereof or their legal representatives,
successors or assigns shall be liable for any breach thereof; and all Persons
having any claim against the Ground Lessee by reason of the transactions
contemplated hereby shall look only to the Trust Estate for payment or
satisfaction thereof.
SECTION 16.11. 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 and Sublease.
SECTION 16.12. EFFECTIVENESS OF GROUND LEASE AND SUBLEASE. This Ground
Lease and Sublease has been dated as of the date first above written for
convenience only. This Ground Lease and Sublease shall be effective on the date
of execution and delivery by each of the Ground Lessee and the Ground Lessor.
12
IN WITNESS WHEREOF, the undersigned have caused this Ground Lease and
Sublease to be duly executed and delivered by their respective officers
thereunto duly authorized.
OLD DOMINION ELECTRIC COOPERATIVE,
a wholesale power supply cooperative
organized under the laws of the
Commonwealth of Virginia as
Ground Lessor
By:_____________________________________ [Seal]
Name:
Title:
Date:
STATE STREET BANK AND TRUST COMPANY,
a state chartered trust company
organized under the laws of the
Commonwealth of Massachusetts,
not in its individual capacity,
but solely as Owner Trustee
under the Trust Agreement, as
Ground Lessee
By:_____________________________________ [Seal]
Name:
Title:
Date:
STATE OF )
) ss.:
COUNTY OF )
The foregoing instrument was acknowledged before me this __ day of
_______, ____, by ________________ as ______________ of Old Dominion Electric
Cooperative, a wholesale power supply cooperative organized under the laws of
the Commonwealth of Virginia, on behalf of said cooperative.
----------------------------------
Name:
Notary Public
(Notarial Seal)
My Commission expires: _________________________
STATE OF )
) ss.:
COUNTY OF )
The foregoing instrument was acknowledged before me this __ day of
_______, _____, by _______________ as ______________ of State Street Bank and
Trust Company, a state chartered trust company organized under the laws of the
Commonwealth of Massachusetts, as Owner Trustee on behalf of said corporation.
----------------------------------
Name:
Notary Public
(Notarial Seal)
My Commission expires: _______________________
APPENDIX A
TO
GROUND LEASE
AND SUBLEASE
DEFINITIONS
SCHEDULE 1
TO
GROUND LEASE
AND SUBLEASE
DESCRIPTION OF THE CLOVER REAL ESTATE
All that certain parcel of land belonging, lying and being in the Roanoke
Magisterial district of Halifax County, Virginia and all appurtenances thereto
belonging, and more particularly described as follows:
AND BEING a portion of the same land and appurtenances acquired by Old Dominion
Electric Cooperative ("Old Dominion") as tenant in common with Virginia Electric
and Power Company ("Virginia Power") by deeds which are recorded in the Halifax
Clerk's Office as follows:
Grantors Date of Deed Deed Book Page Number
___________ ____________ _________ ___________
Clover Project Corp. May 30, 1990 550 465
Xxxxxxx X. Xxxxxxxx, et al. October 1, 1990 556 367
Xxxxxxx X. Xxxxxxx, et al. July 3, 1991 570 8
Xxxxxxx X. Xxxxxxx, et al. March 14, 1991 561 353
Xxxxxx Xxxxx, et al. July 24, 1991 569 844
Burlington Industries October 23, 1991 570 13
X. X. Xxxxxx, et al. May 22, 1992 579 412
Norfolk Southern Railway June 9, 1992 579 771
Company
A-1
LESS AND EXCEPT, however, those certain parcels of land conveyed by Old Dominion
and Virginia Power by deeds which are recorded in the Halifax Clerk's Office as
follows:
Grantees Date of Deed Deed Book Page Number
-------- ------------ --------- -----------
Xxxxxxx X. Xxxxxxx, et al. October 7, 1991 570 10
Commonwealth of Virginia June 23, 1992 580 576
Commonwealth of Virginia December 1, 1994 632 57
Commonwealth of Virginia June 1, 1995 632 255
SUBJECT, however, to all existing exceptions, reservations, easements,
conditions, restrictions, covenants, agreements, limitations and waivers of
record that may apply to the foregoing parcel of land.
A-2
SCHEDULE 2
TO
GROUND LEASE
AND SUBLEASE
DESCRIPTION OF THE UNIT 1 SITE
ALL those two certain parcels of land lying and being in Roanoke Magisterial
district of Halifax County, Virginia, with all appurtenances thereunto
belonging, being those portions of the Clover Real Estate which are outlined and
marked on the Clover Power Station Plat as Parcel I and Parcel II of the Unit 1
Site.
B-1
SCHEDULE 3
TO
GROUND LEASE
AND SUBLEASE
DESCRIPTION OF THE UNIT 2 SITE
ALL those certain parcels of land lying and being in Roanoke Magisterial
district of Halifax County, Virginia, with all appurtenances thereunto
belonging, being those portions of the Clover Real Estate which are outlined and
marked on the Clover Power Station Plat as Parcel I and Parcel II of the Unit 2
Site.
C-1
SCHEDULE 4
TO
GROUND LEASE
AND SUBLEASE
DESCRIPTION OF COMMON FACILITIES SITE
ALL that certain parcel of land lying and being in Roanoke Magisterial district
of Halifax County, Virginia, with all appurtenances thereunto belonging,
outlined and marked as Parcel "B" on the Clover Power Station Plat, LESS AND
EXCEPT those parcels of real estate outlined and marked on the Clover Power
Station Plat as Parcel I and Parcel II of the Unit 1 Site and Parcel I and II of
the Unit 2 Site.
D-1
