Exhibit 10.32.9
This instrument, when recorded,
should be returned to:
Xxxxxx X. Xxxxxx
Attorney at Law
The Carnegie Building
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxx, Xxxxxxx 00000-0000
================================================================================
GROUND SUB-SUBLEASE AGREEMENT
(P1)
Dated as of December 30, 1996
between
ROCKY MOUNTAIN LEASING CORPORATION,
as Ground Sub-sublessor
and
OGLETHORPE POWER CORPORATION
(AN ELECTRIC MEMBERSHIP GENERATION
& TRANSMISSION CORPORATION),
as Ground Sub-sublessee
Land Located
in Xxxxx County, Georgia
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS....................................................2
SECTION 2. SUB-SUBLEASE OF GROUND INTEREST................................2
Section 2.1. Sub-sublease of Ground Interest...................2
Section 2.2. Basic Ground Sub-sublease Term....................3
Section 2.3. Renewal Ground Sub-sublease Term..................3
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 SUB-SUBLEASE OF THE GROUND INTEREST...............5
SECTION 4. QUIET ENJOYMENT IN FAVOR OF THE GROUND SUB-
SUBLESSEE..............................................................5
Section 4.1. Ground Sub-sublessee's Right of Quiet Enjoyment...5
Section 4.2. Conveyances Pursuant to Section 4.2 of the Ground
Lease.
.............................................................5
SECTION 5. USE OF THE GROUND INTEREST BY GROUND SUB-
SUBLESSEE......................................................5
SECTION 6. TRANSFER OF GROUND INTEREST....................................6
SECTION 7. INSPECTION.....................................................6
SECTION 8. SECURITY FOR GROUND SUBLESSOR'S OBLIGATIONS....................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 Sub-sublease............9
i
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 SUB-SUBLEASE AGREEMENT (P1)
This GROUND SUB-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 Sub-sublease"), between 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 Sub-sublessor"), and OGLETHORPE POWER CORPORATION (AN ELECTRIC
MEMBERSHIP GENERATION & TRANSMISSION CORPORATION), an electric membership
corporation organized under the laws of the State of Georgia (together with its
successors and permitted assigns the "Ground Sub-sublessee").
WHEREAS, the Ground Sublessee 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 Sub-sublease as part
hereof;
WHEREAS, by the Rocky Mountain Agreements, the Ground Sublessee and Georgia
Power established their respective rights and obligations as tenants-in-common
of the Rocky Mountain Site and of all improvements thereafter to be constructed,
and all personal property thereafter to be situated, on the Rocky Mountain Site.
Such improvements and personal property owned by the Ground Sublessee and
Georgia Power as tenants-in-common under Georgia law include the Facility;
WHEREAS, as tenants-in-common of such real and personal property, the
Ground Sublessee and Georgia Power hold a 74.61% and 25.39% undivided interest,
respectively, in such real and personal property, including the right to
nonexclusive possession of all such real and personal property, subject to the
rights of the other to nonexclusive possession and the terms and conditions of
the Rocky Mountain Agreements;
WHEREAS, pursuant to the Head Lease, the Co-Trustee has acquired from the
Ground Sublessee, 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 extension as provided therein;
WHEREAS, pursuant to the Facility Lease, the Facility Lessor has leased the
Undivided Interest to the Ground Sub-sublessor, as Facility Lessee, for a term
which shall end prior to the expiration of the term of the Head Lease;
WHEREAS, pursuant to the Ground Sublease, the Ground Sublessor has leased
to the Ground Sub-sublessor, as Ground Sublessee, the Ground Interest for a term
coterminous with that of the Facility Lease;
WHEREAS, pursuant to the Facility Sublease, the Ground Sub-sublessor, as
Facility Sublessor, will sublease the Undivided Interest to the Ground
Sub-sublessee, as Facility Sublessee, for a term which shall end prior to the
expiration of the term of the Head Lease; and
WHEREAS, pursuant to this Ground Sub-sublease, the Ground Sub-sublessor is
sub-subleasing the Ground Interest to the Ground Sub-sublessee for a term
coterminous with that of the Facility Sublease.
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 Sub-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 Sub-sublease
and specifically defined herein.
SECTION 2. SUB-SUBLEASE OF GROUND INTEREST.
Section 2.1. Sub-sublease of Ground Interest. The Ground Sub-sublessor
hereby sub-subleases the Ground Interest, upon the terms and conditions set
forth herein, to the Ground Sub-sublessee for the term and renewal terms
described below, and the Ground Sub-sublessee hereby sub-subleases the Ground
Interest from the Ground Sub-sublessor. The Ground Sub-sublessor and the Ground
Sub-sublessee understand and agree that (a) this sub-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 sub-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 sub-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, (e) this sub-sublease of the Ground Interest is subject and subordinate
to the interest of the Ground Sub-
2
sublessor in the Ground Interest created pursuant to Section 2.1 of the Ground
Sublease and (f) this sub-sublease of the Ground Interest is subject to the
provisions of the Resource Management Agreement.
Section 2.2. Basic Ground Sub-sublease Term. The term of this Ground
Sub-sublease shall commence on the Closing Date and shall terminate at 11:57
p.m. (New York City time) on the Expiration Date (the "Basic Ground Sub-sublease
Term") subject to early termination pursuant to Section 2.4 terms hereof and
extension for the Renewal Ground Sub-sublease Term.
Section 2.3. Renewal Ground Sub-sublease Term. If the term of the Facility
Sublease shall be renewed for a Sublease Renewal Term pursuant to Section 15.3
of the Facility Sublease, the term of the sub-sublease to the Ground
Sub-sublessee hereunder will be automatically renewed for a term which shall be
coterminous with the Sublease Renewal Term of the Facility Sublease (a "Renewal
Ground Sub-sublease Term").
Section 2.4. Return of Ground Interest. Subject to Section 6 hereof, on the
last day of the Ground Sub-sublease Term the Ground Sub-sublessee shall return
the Ground Interest to the Ground Sub-sublessor by returning the same unto the
possession of the Ground Sub-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 Sublease without
any other liability or cost to the Ground Sub-sublessee. Upon returning the
Ground Interest, the Ground Sub-sublessee shall execute, acknowledge and deliver
a release of the Ground Interest to be prepared by the Ground Sub-sublessor at
its expense and in a form reasonably satisfactory to the Ground Sub-sublessee to
be duly recorded at the Ground Sub-sublessor's expense in the Office of the
Clerk of the Superior Court of Xxxxx County, Georgia. The obligations of the
Ground Sub-sublessee under this Section 2.4 shall survive the termination of
this Ground Sub-sublease.
Section 2.5. Early Termination. The Ground Sub-sublease Term shall be
deemed automatically terminated upon the early termination of the Facility
Sublease Term without any action of the Ground Sub-sublessor or any other
Person.
Section 2.6. Net Lease. This Ground Sub-sublease is a "net lease" and
notwithstanding anything herein to the contrary, the Ground Sub-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
Sub-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 Sub-sublessee's other obligations
hereunder or the Ground Sub-sublessor's rights hereunder be terminated,
extinguished, diminished, lost or otherwise impaired affected, 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 Sub-sublease, including without limitation any of the following
circumstances or reasons: (i) any setoff, counterclaim, recoupment, defense or
other right which the Ground Sub-sublessee may have against the Ground
Sub-sublessor, the Trustees, the Owner Participant, or the Lender or any other
Person, including,
3
without limitation, any breach by any of said parties of any covenant or
provision under this Ground Sub-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 estate granted by this Ground Sub-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 Sub-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 other portion of the Ground
Sub-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 Sub-sublease or any other
Operative Document, (vi) the lack of right, power or authority of the Ground
Sub-sublessor to enter into this Ground Sub-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 Sub-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 Sub-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 Sub-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 Sub-sublessee hereunder (and all amounts payable in lieu of rent
and other sums following termination of this Ground Sub-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 Sub-sublessee or any other Person
against the Ground Sub-sublessor or any other Person under this Ground
Sub-sublease or otherwise. If for any reason whatsoever this Ground Sub-sublease
shall be terminated in whole or in part by operation of law or otherwise, except
as specifically provided herein, the Ground Sub-sublessee nonetheless agrees to
the extent permitted by Applicable Law, to pay to the Ground Sub-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 Sub-sublease not been so
terminated. The provisions of this Section 2.6 shall survive the termination of
this Ground Sub-sublease for any reason whatsoever. Upon and after the
termination of the leasehold hereby granted for any reason whatsoever, the
Ground Sub-sublessee shall pay to the Ground Sub-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
4
to be a covenant of the Ground Sub-sublessee that is independent of the
existence of such leasehold. The obligations of the Ground Sub-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 SUB-SUBLEASE OF THE GROUND INTEREST.
As rent for the sub-sublease of the Ground Interest for the Ground
Sub-sublease Term, the Ground Sub-sublessee agrees to pay to the Ground
Sub-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 Sub-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 Sub-sublease Term to July 1, 1997. Notwithstanding
the foregoing, so long as the Ground Sub-sublessor shall not be required to pay
rent under the Ground Sublease in accordance with Section 3 thereof, the Ground
Sub-sublessee shall not be required to pay rent hereunder. For the period from
and after the Expiration Date to the end of the Ground Sub-sublease Term, the
Ground Sub-sublessee agrees to pay to the Ground Sub-sublessor annual rent equal
in timing and amount to the rent payable by the Ground Sublessee under the
Ground Sublease.
SECTION 4. QUIET ENJOYMENT IN FAVOR OF THE GROUND SUB-SUBLESSEE.
Section 4.1. Ground Sub-sublessee's Right of Quiet Enjoyment. The Ground
Sub-sublessor warrants that it has full right and authority to sub-sublease the
Ground Interest to the Ground Sub-sublessee pursuant to the terms of this Ground
Sub-sublease and agrees that, notwithstanding any provision of any other
Operative Document, during the Ground Sub-sublease Term, the Ground
Sub-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
Sub-sublessee of the sub-subleasehold interest in the Ground Interest pursuant
to the terms hereof.
Section 4.2. Conveyances Pursuant to Section 4.2 of the Ground Lease.
Sales, grants of leases or easements and conveyances of portions of the Rocky
Mountain Site, rights of way, easements or leasehold interests made by the
Ground Lessor in accordance with Section 4.2 of the Ground Lease shall not
constitute a breach of the Ground Sub-sublessee's right of quiet enjoyment under
this Ground Sub-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 Sub-sublease.
5
SECTION 5. USE OF THE GROUND INTEREST BY GROUND SUB-SUBLESSEE.
The Ground Sub-sublessee's rights hereunder to use the Ground Interest
shall be limited to the right of the Ground Sub-sublessee, as Facility
Sublessee, to use the Ground Interest during the Ground Sub-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 Sublease 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 Sub-sublease or in any Operative Document, the Ground Sub-sublessee
has the right to perform any and all acts required by an order of the FERC or
its successor affecting the Facility or the Rocky Mountain Site without the
prior approval of the Ground Sub-sublessor or any other party to the Operative
Documents.
SECTION 6. TRANSFER OF GROUND INTEREST.
The Ground Sub-sublessee expressly agrees that the Ground Sub-sublessee
shall not transfer its Ground Interest except as part of the Ground
Sub-sublessee's transfer of the Facility Sub-sublessee's Rocky Mountain
Interest. The Ground Sub-sublessee acknowledges that the Ground Sub-sublessor
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) or 18 of the
Facility Sublease in connection with the Ground Sub-sublessor's transfer
thereunder of the Facility Sublessor's Rocky Mountain Interest and the Ground
Sub-sublessor agrees to comply with the provisions of the applicable sections of
the Facility Sublease in connection with such transfer to the extent required
thereunder, 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 Sub-sublease Term, at such times as reasonably requested,
each of the Ground Sub-sublessor, the Co-Trustee, the Owner Participant, and 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 Sub-sublessee when a Sublease 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 Rocky Mountain Operator's safety and insurance programs.
6
SECTION 8. SECURITY FOR GROUND SUBLESSOR'S OBLIGATIONS
In order to secure all amounts payable by and all obligations to be
performed by the Ground Sub-sublessor under the Facility Lease, the Ground
Sub-sublessor will assign for security purposes its rights under this Ground
Sub-sublease to the Facility Lessor pursuant to the Facility Sublease Assignment
Agreement. In order to secure the Secured Indebtedness, the Facility Lessor's
right, title and interest in the Facility Sublease Assignment Agreement will be
assigned by the Facility Lessor to the Lender pursuant to the Loan Agreement and
the Deed to Secure Debt. The Ground Sub-sublessee hereby consents to such
assignments and the creation of such Liens and acknowledges receipt of copies of
the Facility Sublease Assignment Agreement, 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 Sub-sublessee shall have received
written notice from the Lender that the assignments pursuant to the Facility
Sublease Assignment Agreement, the Loan Agreement and the Deed to Secure Debt
have been fully terminated the Lender shall have the right to exercise the
rights of the Ground Sub-sublessor under this Ground Sub-sublease to the extent
set forth in the Facility Sublease Assignment Agreement and subject in each case
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 Sub-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 mail or courier service, (b) in the case of notice by United States
mail, certified or registered, postage prepaid, return receipt requested, upon
receipt thereof, or (c) in the case of notice by such a telecommunications
device, upon transmission thereof, provided such transmission is promptly
confirmed by either of the methods set forth in clause (a) or (b) above, in each
case addressed to such party and copy party at its address set forth below or at
such other address as such party or copy party may from time to time designate
by written notice to the other parties:
7
If to the Ground Sub-sublessor:
Rocky Mountain Leasing Corporation
c/o Corporation Trust Center
0000 Xxxxxx Xxxxxx, Xxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
with copies to:
Xxxxxxxxxx, Xxxxxx & Xxxxxxx, L.L.P.
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention:Cada X. Xxxxxxx, III
and to:
Utrecht-America Finance Co.,
c/o Rabobank Nederland, New York Branch
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: General Counsel's Office
If to the Ground Sub-sublessee:
Oglethorpe Power Corporation
0000 Xxxx Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000-0000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Vice President-Finance
with a copy to Utrecht-America Finance Co. at the address set forth
above.
8
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 Sub- sublease.
Section 9.4. Successors and Assigns.
(a) The Ground Sub-sublessor hereby consents to the entry by the Ground
Sub-sublessee into and performance by the Ground Sub-sublessee of the Operative
Documents, including any assignment pursuant thereto. This Ground Sub-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 Sub-sublessor may not assign or transfer any of its
interests herein without the consent of the other party hereto.
(c) This Ground Sub-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 Sub-sublease is not a Business Day, the payment or performance 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 9.6. Governing Law. This Ground Sub-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 Sub-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 Sub-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.
9
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 Sub-sublease.
Section 9.11. Effectiveness of Ground Sub-sublease. This Ground
Sub-sublease has been dated as of the date first above written for convenience
only. This Ground Sub-sublease shall be effective on the date of execution and
delivery by the Ground Sub-sublessee and the Ground Sub-sublessor.
Section 9.12. Measuring Life. If and to the extent that any of the rights
and privileges granted under this Ground Sub-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 Sub-sublease, such options, rights and privileges,
subject to the respective conditions herein 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
Sub-sublease of the following Presidents of the United States: Xxxxxxxx X.
Xxxxxxxxx, Xxxxx X. Xxxxxx, Xxxxxx X. Xxxxxxxxxx, Xxxx X. Xxxxxxx, Xxxxxx X.
Xxxxxxx, Xxxxxxx X. Xxxxx, Xxxxxx X. Xxxx, Xxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx,
Xxxxxx X.X. Xxxx and Xxxxxxx X. Xxxxxxx or (ii) the period provided under the
Uniform Statutory Rule Against Perpetuities or (b) the specific applicable
period of time expressed in this Ground Sub-sublease, whichever of (a) and (b)
is shorter.
10
IN WITNESS WHEREOF, the undersigned have caused this Ground Sub-sublease to
be duly executed and delivered by their respective officers thereunto duly
authorized.
ROCKY MOUNTAIN LEASING
CORPORATION,
as Ground Sub-sublessor
By: /s/ Xxxxx Xxxxx
-------------------
Name: Xxxxx Xxxxx
Title: Vice President
Date: 12/30/96
Signed and delivered
in the presence of:
/s/ Xxxxxxx Xxxxx
-----------------
Unofficial Witness
/s/ Xxxxxxxx X. Xxxxxxx
-----------------------
Notary Public
My Commission Expires: June 2, 1998
------------
[Notary Seal]
OGLETHORPE POWER CORPORATION
(AN ELECTRIC MEMBERSHIP
GENERATION & TRANSMISSION
CORPORATION),
as Ground Sub-sublessee
By: /s/ X. X. Xxxxxxx
-----------------
Name: X. X. Xxxxxxx
Title: President and CEO
Date: 12/30/96
Signed and delivered
in the presence of:
/s/ Xxxx X. Xxxxxxx
-------------------
Unofficial Witness
/s/ Xxxxxxxx X. Xxxxxxx
-----------------------
Notary Public
My Commission Expires:June 2, 1998
[Notary Seal]
SCHEDULE TO EXHIBIT 10.32.9
GROUND SUB-SUBLEASE (P1)
The following table indicates for each transaction the name of the
corresponding Owner Participant:
Agreement Date Owner Participant
--------- ---- -----------------
P1 December 30, 1996 Xxxxxx Xxxxxx Capital Corporation
P2 January 3, 1997 Xxxxxx Xxxxxx 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
Sub-sublease (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 Sub-sublease
-------------------
DEFINITIONS
Refer to Appendix A to Exhibit 10.32.1 of the Form 10-K.
