EXHIBIT 10.32.15
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
THE PURPOSE OF THIS INSTRUMENT IS TO MAKE TECHNICAL CORRECTIONS TO THAT CERTAIN
DEED TO SECURE DEBT, ASSIGNMENT OF SURETY BOND AND SECURITY AGREEMENT (P1),
DATED DECEMBER 30, 1996, RECORDED IN DEED BOOK ____, PAGE ____, OF THE RECORDS
OF THE CLERK OF SUPERIOR COURT OF XXXXX COUNTY, GEORGIA. IT IS THE INTENTION OF
THE PARTIES THAT THIS DOCUMENT SUPERCEDE SUCH OTHER DOCUMENT IN ITS ENTIRETY.
================================================================================
DEED TO SECURE DEBT,
ASSIGNMENT OF SURETY BOND
AND SECURITY AGREEMENT
(P1)
Dated as of December 30, 1996
from
ROCKY MOUNTAIN LEASING CORPORATION,
as Grantor
to
SUNTRUST BANK, ATLANTA,
not in its individual capacity
but solely as Co-Trustee
ROCKY MOUNTAIN
PUMPED STORAGE HYDROELECTRIC PROJECT
================================================================================
TABLE OF CONTENTS
Page
----
SECTION 1. DEFINED TERMS................................................ 3
SECTION 2. SECURITY AGREEMENT........................................... 3
Section 2.1 Deed to Secure Debt............................ 3
Section 2.2 Security Agreement............................. 3
Section 2.3 Assignment of Subordinate Rights............... 3
SECTION 3. SECURED CLAIMS............................................... 4
SECTION 4. REMEDIES..................................................... 4
Section 4.1 Rights of the Secured Party.................... 4
Section 4.2 Delay or Omission Not a Waiver................. 6
Section 4.3 Restoration of Rights and Remedies............. 7
Section 4.4 Attorney-in-Fact............................... 7
Section 4.5 Security for Secured Party's Obligations
To Lender..................................... 7
Section 4.6 Filings........................................ 7
Section 4.7 The Secured Party's Duties..................... 7
SECTION 5. DISCHARGE.................................................... 8
SECTION 6. REPRESENTATIONS AND WARRANTIES............................... 8
SECTION 7. COVENANT OF THE GRANTOR...................................... 8
SECTION 8. MISCELLANEOUS................................................ 9
Section 8.1 Amendments and Waivers......................... 9
Section 8.2 Notices........................................ 9
Section 8.3 Survival....................................... 10
Section 8.4 Successors and Assigns......................... 11
Section 8.5 Business Day................................... 11
Section 8.6 Governing Law.................................. 11
Section 8.7 Severability................................... 11
Section 8.8 Counterparts................................... 11
Section 8.9 Headings....................................... 11
Section 8.10 Further Assurances............................. 11
Section 8.11 Effectiveness of Surety Bond Deed to
Secure Debt.................................. 11
Section 8.12 Limitation of Liability........................ 12
Section 8.13 WAIVER......................................... 12
LIST OF ATTACHMENTS:
Appendix A Definitions................................................... 14
Schedule 1 Description of the Rocky Mountain Site........................ 15
Facility Description Schedule
Exhibit A-2 - Project Boundary
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
Schedule 2 Description of the Facility................................... 16
Exhibit A-1 - Description of the Entire Rocky Mountain
Property
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
DEED TO SECURE DEBT,
ASSIGNMENT OF SURETY BOND AND SECURITY AGREEMENT
This DEED TO SECURE DEBT, ASSIGNMENT OF SURETY BOND AND SECURITY AGREEMENT
(P1), dated as of December 30, 1996 (this "Surety Bond Deed to Secure Debt"),
from 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 "Grantor"), to SUNTRUST BANK, ATLANTA, a state banking
corporation organized under the laws of the State of Georgia, not in its
individual capacity but solely as Co-Trustee under the Trust Agreement (as
amended or supplemented, the "Trust Agreement") dated as of December 30, 1996
with the Owner Trustee and the Owner Participant (together with its successors
and permitted assigns, the "Secured Party" or "Co-Trustee"), having an address
of X.X. Xxx 0000, Xxxx Xxxx 000, Xxxxxxx, Xxxxxxx 00000.
WHEREAS, the Grantor, Oglethorpe Power Corporation (An Electric Membership
Generation & Transmission Corporation), an electric membership corporation
organized under the laws of the State of Georgia ("Oglethorpe"), the Co-Trustee,
the Owner Trustee, the Owner Participant and Utrecht-America Finance Co., have
entered into a Participation Agreement dated as of December 30, 1996 (the
"Participation Agreement");
WHEREAS, the Rocky Mountain Site and the Facility are more particularly
described in Schedule 1 and Schedule 2 respectively hereto;
WHEREAS, the Grantor and the Co-Trustee have entered into the Facility
Lease of even date herewith; and
WHEREAS, the Grantor and Oglethorpe have entered into the Facility Sublease
of even date herewith; and
WHEREAS, the Secured Party has requested that Grantor enter into this
Surety Bond Deed to Secure Debt to grant and convey a lien, security interest
and security title in favor of the Secured Party, in and to the Sublease
Collateral described herein, to secure the RMLC Secured Obligations (as
hereinafter defined).
NOW, THEREFORE, in consideration of 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:
GRANTING CLAUSE
To secure the due and punctual payment, performance and observance by the
Grantor of (a) all of its obligations under the Ground Sublease and the Facility
Lease, including its obligation (whether now or hereafter existing) under the
Facility Lease to pay Rent and Termination Value or amounts computed by
reference to Termination Value, (b) all of its
obligations under the Participation Agreement, including Section 16 thereof, and
(c) all of its obligations under the other Operative Documents to which Grantor
is a party or by which it is bound, including, without limitation, the Rocky
Mountain Agreements Re-Assignment, (all such obligations under clauses (a), (b)
and (c) being referred to herein collectively, the "RMLC Secured Obligations";
it being acknowledged and agreed that the obligations under clauses (a), (b) and
(c) above are obligations such as rent, performance and payment obligations that
are not indebtedness evidenced by a note or for the payment of borrowed money
and are, therefore, exempt from the payment of intangible recording tax under
the laws of the State of Georgia), the Grantor hereby grants, bargains, sells
and conveys to the Secured Party and grants to the Secured Party security title
to and a security interest in and lien upon each and all of the following
described property, rights and privileges (such property, rights and privileges
being hereinafter referred to collectively as the "Sublease Collateral"):
1. all right, title and interest now held or hereafter acquired
by the Grantor in, to and under, the Rocky Mountain Site, the
Facility, the Facility Sublease, the Rocky Mountain Agreements Second
Re-assignment and the Ground Sub-sublease, (collectively, the
"Sublease Documents"), including all amounts of Sublease Rent payable
to Grantor under the Facility Sublease (including all Sublease Basic
Rent and Sublease Supplemental Rent (including Sublease Termination
Value and Sublease Purchase Option Price)) and insurance proceeds and
condemnation, requisition and other awards and payments of any kind
for or with respect to the Undivided Interest payable to Grantor
(including, without limitation, proceeds and payments received
pursuant to exercise of any of the remedies provided in Section 17 of
the Facility Sublease, and insurance and proceeds under Sections 10,
13, 14, 15 and 18 of the Facility Sublease in respect of termination
of the Facility Sublessor's Rocky Mountain Interest);
2. all moneys and property relating to or arising out of any
Sublease Document that are now or hereafter required to be paid to, or
deposited with, the Grantor pursuant to the terms of any such Sublease
Document;
3. all right, title and interest now held and hereafter acquired
by the Grantor in, to and under the Qualifying Sublease Surety Bond
(or any Qualifying Letter of Credit in replacement thereof) and the
Qualifying Additional Security, including, without limitation, all
amounts payable thereunder; and
4. all proceeds, direct or indirect, of the foregoing of whatever
kind or nature, in each case whether now owned or existing or
hereafter acquired and wherever located, including all claims against
third parties for destruction, loss or damage to any of the foregoing
or otherwise.
TO HAVE AND TO HOLD the Sublease Collateral unto the Secured Party for
the uses and purposes and subject to the terms and provisions set forth in
this Surety Bond Deed to Secure Debt.
2
Notwithstanding any other provision of the Surety Bond Deed to Secure Debt,
any Released Property sold, leased or otherwise conveyed pursuant to the Ground
Lessor's Release Rights under Section 4.2 of the Ground Lease shall
automatically, without further act of any Person, be released from the Lien of
this Surety Bond Deed to Secure Debt. All components that no longer constitute
part of the Undivided Interest in accordance with Section 7.2 of the Facility
Lease shall be automatically released from the Lien of this Surety Bond Deed to
Secure Debt Secured Party, if requested by Grantor or the Facility Lessee, will
at the expense of Grantor of the Facility Lessee, as the case may be, execute
and deliver instruments without representation or warranty of any kind
whatsoever in form and substance reasonably satisfactory to Grantor or Facility
Lessee, as the case may be, and the Secured Party evidencing any such release.
IT IS HEREBY FURTHER COVENANTED AND AGREED by and among the parties hereto
as follows:
SECTION 1. DEFINED TERMS.
The recitals set forth above which are incorporated in this Article I as if
set forth in this Article I in their entirety. Capitalized terms used in this
Surety Bond Deed to Secure Debt and not otherwise defined herein shall have the
respective meanings specified in Appendix A hereto. The general provisions of
Appendix A shall apply to terms used in this Deed to Secure Debt and
specifically defined herein.
SECTION 2. SECURITY AGREEMENT.
Section 2.1 Deed to Secure Debt. This Surety Bond Deed to Secure Debt is
intended to operate and to be construed as a deed passing to the Secured Party
title to the Sublease Collateral that is real property under Georgia law (the
"Real Property") and is made under those provisions of the existing laws of the
State of Georgia relating to deeds to secure debt, and not as a mortgage. In
addition, this Deed to Secure Debt is intended to operate and be construed as a
security agreement under, and in accordance with, the Uniform Commercial Code of
Georgia (the "Georgia UCC") for the benefit of the Secured Party with respect to
the Sublease Collateral that is personal property under Georgia law
("Personalty").
Section 2.2 Security Agreement. The Grantor grants to the Secured Party a
security interest in the Sublease Collateral that is Personalty. This Surety
Bond Deed to Secure Debt, in addition to conveying security title to the
Sublease Collateral that is real estate, is a security agreement as to the
Sublease Collateral that is Personalty and shall support any financing statement
showing the Secured Party's interest with respect thereto.
Section 2.3 Assignment of Certain Rights. (a) To secure further payment and
performance of the RMLC Secured Obligations and all other obligations to Secured
Party imposed upon Grantor by this Surety Bond Deed to Secure Debt, Grantor
hereby assigns and transfers to Secured Party all of Grantor's rights under the
Facility Sublease and the Ground Sub-sublease (the
3
"Assigned Rights") which is coupled with an interest and irrevocable so long as
the RMLC Secured Obligations remain outstanding in whole or in part. Grantor
irrevocably appoints Secured Party as Grantor's true and lawful
attorney-in-fact, having the right, exercisable at Secured Party's option at any
time and from time to time, to the exclusion of Grantor to exercise the Assigned
Rights, exclusive of the Excepted Rights. This assignment of the Assigned Rights
is intended to be an absolute, irrevocable and present assignment, coupled with
an interest, from Grantor to Secured Party and not merely the granting of a
security interest. Upon Secured Party's request, Grantor shall, at Grantor's
expense, execute and cause to be recorded supplemental or additional assignments
of the Assigned Rights; provided, however, that neither this assignment nor the
acceptance of any such supplemental or additional assignments shall be construed
as a consent by Secured Party to any additional lease of all or any part of the
Property or to impose upon Secured Party any obligation with respect thereto.
Except as provided in the Loan Agreement, without first obtaining on each
occasion the prior written approval of Secured Party, Grantor shall not cancel
or permit the modification of any Granting Clause Document (except with respect
solely to Excepted Payments and Excepted Rights) or take any action that is
inconsistent with the foregoing assignment of the Assigned Rights, or attempt to
terminate any of the same or grant any assignment, authorization, power or
direction inconsistent herewith, and any such action, attempted termination or
inconsistent assignment, authorization, power or direction shall be void.
(b) Notwithstanding anything contained in paragraph (a) of this Section
2.3, (i) the rights granted to the Secured Party under this Section 2.3 to
exercise any rights or remedies of the Grantor is a non-exclusive grant and
shall not remove from the Grantor the right also to exercise any such rights or
remedies, provided, however, the Grantor shall not exercise such rights or
remedies without first giving to the Secured Party 10 Business Days' notice of
its intent to so exercise and shall not so exercise in any event if within 10
Business Days' of the giving of such notice the Secured Party notifies the
Grantor that, in its sole discretion, it objects to the exercise thereof by the
Grantor; and (ii) the rights granted to the Secured Party under this Section 2.3
shall not in any event permit the Secured Party to sell or otherwise dispose of
the Grantor's interest as lessor or assignor under the Sublease Documents except
pursuant to the remedies granted hereunder under any other Operative Document,
at law or in equity.
SECTION 3. SECURED CLAIMS.
This Surety Bond Deed to Secure Debt, and the lien and security interest
herein granted to the Secured Party, is made and given to secure RMLC Secured
Obligations. Without limiting the generality of the foregoing, this Surety Bond
Deed to Secure Debt secures the payment of all amounts that constitute part of
the RMLC Secured Obligation and that would be payable to the Secured Party under
the Facility Lease, the Ground Sublease or the Participation Agreement.
4
SECTION 4. REMEDIES.
Section 4.1 Rights of the Secured Party. (A) Upon the happening and during
the occurrence of any Event of Default under the Facility Lease, the Secured
Party may, at its option and in addition to any other rights and remedies said
Secured Party may have under any other Operative Document or at law or in
equity, (i) direct the surety on the Qualifying Sublease Surety Bond (or any
issuer of a Qualifying Letter of Credit issued in replacement of the Qualifying
Sublease Surety Bond) or Qualifying Additional Security to make payment directly
to the Secured Party and the Secured Party shall have the right to exercise any
rights or remedies granted hereunder or thereunder, (ii) direct the Facility
Sublessee under the Facility Sublease and the Ground Sub-sublessee under the
Ground Sub-sublease to make all payments thereunder directly to the Secured
Party (such payments to be held by the Secured Party as security for the RMLC
Secured Obligations and applied in accordance with the following paragraph (B))
and exercise any rights or remedies granted hereunder or thereunder and (iii)
exercise any rights available to the Grantor under the Rocky Mountain Agreements
Second Re-Assignment. The foregoing directions and rights are coupled with an
interest and irrevocable by dissolution or otherwise and are in addition to any
and all other remedies that the Secured Party may have hereunder, under any
other Operative Document, at law or in equity.
(B) Upon the happening and during the occurrence of an Event of Default
under the Facility Lease, Secured Party may direct the Facility Sublessee to pay
all Rent due from time to time under the Facility Sublease directly to the
Lender (or, if the Lien of the Loan Agreement and the Deed to Secure Debt have
been fully released, to Facility Lessor or the then assignee of its rights
hereunder). The foregoing directions and rights are coupled with an interest and
irrevocable by dissolution or otherwise and are in addition to any and all other
remedies that the Secured Party may have hereunder, under any other Operative
Document, at law or in equity.
(C) Upon the happening and during the occurrence of an Event of Default
under the Facility Lease, Secured Party may, at its option and in addition to
any other rights and remedies the Secured Party may have under any other
Operative Document or at law or in equity:
(i) if at the time such action is lawful and always subject to
compliance with Applicable Law, either with or without taking possession,
and either before or after taking possession, and without instituting any
legal proceedings whatsoever, sell and dispose of the Sublease Collateral,
or any part thereof, or interest therein, at auction at the usual place for
conducting sales at the courthouse in the county in which the Sublease
Collateral, or any part thereof, is located, to the highest bidder for
cash, after advertising the time, terms and place of such sale once a week
for four weeks immediately preceding such sale (but without regard to the
number of days intervening between the date of publication of the first
advertisement and the date of sale) in a newspaper published in such
county, or in the paper in which the Sheriff's advertisements for such
county are then being published, all other notice being hereby waived by
Grantor. The Secured Party may thereupon execute and deliver to the
purchaser at such sale a conveyance of the Sublease Collateral so sold,
which conveyance shall contain recitals as to the Event of Default under
5
the Facility Lease upon which the execution of the power of sale herein
granted depends, and Grantor hereby constitutes and appoints the Secured
Party the true and lawful agent and attorney in fact of Grantor to make
such recitals, sale and conveyance, and all of the acts of the Secured
Party as such attorney in fact is hereby ratified and confirmed. Grantor
agrees that such recitals shall be binding and conclusive upon Grantor and
that the conveyance to be made by the Secured Party shall divest Grantor of
all right, title, interest, equity and right of redemption, including any
statutory redemption, in and to the Sublease Collateral. The Secured Party
shall collect the proceeds of such sale, and after applying and paying the
same, or reserving therefrom an amount sufficient, to pay and satisfy all
of the RMLC Secured Obligations (and reasonable attorneys' fees) and all
costs and expenses of such sale, shall pay any surplus to Grantor, all as
provided by Applicable Law. The power and agency hereby granted are coupled
with an interest and are irrevocable by dissolution or otherwise and are in
addition to any and all other remedies that the Secured Party may have
hereunder, under any other Operative Documents, at law or in equity. The
Secured Party may bid and become the purchaser at any such sale, in which
event the Secured Party will be entitled to a credit for the RMLC Secured
Obligations against the purchase price payable at such sale; or
(ii) proceed to protect and enforce this Surety Bond Deed to Secure
Debt and the RMLC Secured Obligations held by it by suit or suits or
proceedings in equity, at law or in bankruptcy, and for the specific
performance of any covenant or agreement herein or therein contained or in
execution or aid of any power herein granted, or for foreclosure hereunder
or thereunder, or for the appointment of a receiver or receivers for the
Sublease Collateral or any part thereof, or for the recovery of judgment
for the RMLC Secured Obligations or for the enforcement of any other
proper, legal or equitable remedy available under Applicable Law; or
(iii) either in person, by agent or by a receiver appointed by a
court, and without regard to the adequacy of any security for the RMLC
Secured Obligations, subject in all cases to the provisions of Applicable
Law, (a) to enter upon and take possession of all or any part of the
Sublease Collateral that is real property (the "Real Property"), (b) in its
own name to xxx for or otherwise collect all rents comprising a part of the
Sublease Collateral, including those past due and unpaid, and (c) to apply
said rents so collected, less costs and expenses of operation and
collection (including reasonable attorneys' fees actually incurred), upon
any of the RMLC Secured Obligations. The collection of said rents, the
entering upon and taking possession of the Real Property or the application
of all or any portion of said rents shall not cure or waive any Event of
Default under the Facility Lease or notice of any Event of Default under
the Facility Lease or invalidate any act done in response to any Event of
Default under the Facility Lease or pursuant to any notice of any Event of
Default under the Facility Lease.
Section 4.2 Delay or Omission Not a Waiver. No delay or omission by the
Secured Party in the exercise of any right or remedy hereunder accruing upon any
Event of Default under the Facility Lease will impair any such right or remedy
or constitute a waiver of any Event of Default under the Facility Lease or be
deemed to be in acquiescence therein. Every
6
right and remedy given by this Section 4 or by Applicable Law to the Secured
Party may be exercised from time to time, and as often as may be deemed
expedient, by the Secured Party.
Section 4.3 Restoration of Rights and Remedies. If the Secured Party has
instituted any proceeding to enforce any right, power or remedy under this
Surety Bond Deed to Secure Debt and such proceeding has been discontinued or
abandoned or for any reason has been determined adverse to the Secured Party,
then Grantor and the Secured Party shall, subject to any determination in such
proceeding, be restored to their former positions hereunder and all rights,
remedies and powers of the Secured Party shall continue as if no such proceeding
has been instituted.
Section 4.4 Attorney-in-Fact. Grantor hereby appoints and constitutes the
Secured Party as the true and lawful attorney-in-fact of Grantor for the purpose
of taking any action permitted by this Surety Bond Deed to Secure Debt in
connection with the enforcement of the Lien of this Surety Bond Deed to Secure
Debt, with full power (in the name of Grantor or otherwise), at any time
following an Event of Default under the Facility Lease and during the
continuance thereof, to ask, require, demand and receive any and all amounts and
claims for amounts due and to become due under or arising out of the Sublease
Collateral, to endorse any check or other instrument or order in connection
therewith and to file any claim or take any action or institute any proceeding
to collect any portion of the Sublease Collateral. Upon the written instruction
of the Secured Party, Grantor shall execute any financing statement (and any
continuation statement with respect to any such financing statement), or any
other document necessary for the Secured Party to obtain the full benefits of
the Lien of this Surety Bond Deed to Secure Debt and as may be specified in such
instructions.
Section 4.5 Security for Secured Party's Obligations To Lender. In order to
secure the RMLC Secured Obligations, the Secured Party will by the Loan
Agreement assign and xxxxx x Xxxx, and by the Deed to Secure Debt convey
security title, to the Lender in and to all of the Secured Party's right, title
and interest in, to and under this Surety Bond Deed to Secure Debt. The Grantor
hereby consents to such assignment and to the creation of such Lien and security
title and acknowledges receipt of copies of the Loan Agreement and the Deed to
Secure Debt. Unless and until Grantor shall have received written notice from
the Lender that the Lien of the Loan Agreement and the security title of the
Deed to Secure Debt have been fully released, the Lender shall have the rights
of the Secured Party under this Surety Bond Deed to Secure Debt to the extent
set forth in and subject in each case to the exceptions set forth in the Loan
Agreement or the Deed to Secure Debt.
Section 4.6 Filings. The Grantor agrees that it shall, at its own expense,
execute and deliver all financing statements necessary to perfect the Secured
Party's interest in the Sublease Collateral or any other document reasonably
requested by the Secured Party to perfect, protect, enforce, or otherwise give
effect to the Secured Party's rights and remedies hereunder.
Section 4.7 The Secured Party's Duties. The powers conferred on the Secured
Party hereunder are solely to protect its interest in the Sublease Collateral
and shall not impose any duty upon it to exercise any such powers. Except for
the accounting for monies actually
7
received by it hereunder, the Secured Party shall have no duty as to the
Sublease Collateral or other matters relative to the Sublease Collateral,
whether or not the Secured Party has or is deemed to have knowledge of such
matters, or as to the taking of any necessary steps to preserve rights against
any parties or any other rights pertaining to the Sublease Collateral.
SECTION 5. DISCHARGE.
This Surety Bond Deed to Secure Debt and the Lien created hereby shall
remain in full force and effect until all of the RMLC Secured Obligations shall
have been paid in full. The Secured Party agrees that when the RMLC Secured
Obligations shall have been fully paid and discharged, the Secured Party at the
written request and cost of the Grantor, will reconvey the Sublease Collateral
in the manner provided by Applicable Law by an instrument of reconveyance
without representation or warranty of any kind whatsoever in form and substance
reasonably satisfactory to Grantor and the Secured Party.
SECTION 6. REPRESENTATIONS AND WARRANTIES.
The Grantor represents and warrants (a) that it is fully authorized to
grant security title to and a security interest in the Sublease Collateral, (b)
that it is the legal and beneficial owner of the Qualifying Sublease Surety Bond
and the other Sublease Collateral, (c) that, except for the security title and
security interest herein granted to the Secured Party, it has not made any
conveyance, sale, assignment, pledge, hypothecation or other transfer of the
Sublease Collateral, (d) that the Sublease Collateral is free and clear of all
Liens other than the security title and security interest herein granted and (e)
that the Secured Party has hereby acquired a security interest and security
title in, on and to the Sublease Collateral.
SECTION 7. COVENANT OF THE GRANTOR.
The Grantor shall not, without the prior written consent of the Secured
Party, as long as the Lien of the Loan Agreement or security title of the Deed
to Secure Debt have not been fully released, the Lender and thereafter the prior
written consent of the Owner Participant (a) sell, assign or otherwise dispose
of, or grant any option with respect to the Sublease Collateral, (b) create or
permit any Lien upon or with respect to the Sublease Collateral, except for the
assignment created hereby, (c) terminate, amend or modify, or waive compliance
with any term, covenant, agreement or condition of the Sublease Documents or the
Qualifying Sublease Surety Bond (or any Qualifying Letter of Credit issued in
replacement of the Qualifying Sublease Surety Bond) or Qualifying Additional
Security or (d) exercise any rights under the Sublease Collateral, including,
without limitation, options, elections, determinations, consents, approvals,
waivers or giving of notices by Grantor, as Facility Sublessor or Ground
Sub-sublessor under the Facility Sublease or Ground Sub-sublease, respectively.
The Grantor shall immediately inform the Secured Party in the event that an
attachment is levied upon the Sublease Collateral or if another
8
event occurs that might affect or purport to affect the Secured Party's interest
in the Sublease Collateral.
SECTION 8. MISCELLANEOUS.
Section 8.1 Amendments and Waivers. No term, covenant, agreement or
condition of this Surety Bond Deed to Secure Debt 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 the party against whom enforcement of such change is sought.
Section 8.2 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 and copy party at its address set forth below or at such other address as
such party or copy party may from time to time designate by written notice to
the other parties:
If to the Grantor:
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
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Officer
and to:
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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 Secured Party:
SunTrust Bank, Atlanta
X.X. Xxx 0000
Xxxx Xxxx 000
Xxxxxxx, Xxxxxxx 00000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Corporate Trust Department
with copies to the Owner Trustee:
Fleet National Bank
000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Corporate Trust Administration
to the Owner Participant:
Xxxxxx Xxxxxx Capital Corporation
000 Xxxxxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Vice President, Leasing with a copy to
Director, Portfolio Administration
and with a copy to Utrecht-America Finance Co. at the address set
forth above.
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Section 8.3 Survival. Except as expressly set forth herein, the warranties
and covenants made by each party hereto, shall survive the expiration or
termination of this Surety Bond Deed to Secure Debt.
Section 8.4 Successors and Assigns.
(a) This Surety Bond Deed to Secure Debt 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.
(b) Except as expressly provided herein or in any other Operative Document,
the Grantor may not assign its interests herein without the consent of the
Secured Party. Except as expressly provided in the Operative Documents, the
Secured Party may not assign its interests herein during the Facility Sublease
Term without the consent of the Grantor.
Section 8.5 Business Day. Notwithstanding anything herein to the contrary,
if the date on which any payment is to be made pursuant to this Surety Bond Deed
to Secure Debt 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 8.6 Governing Law. This Surety Bond Deed to Secure Debt 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 8.7 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 8.8 Counterparts. This Surety Bond Deed to Secure Debt may be
executed in any number of counterparts, each executed counterpart constituting
an original but all together only one Surety Bond Deed to Secure Debt.
Section 8.9 Headings. The headings of the sections of this Surety Bond Deed
to Secure Debt are inserted for purposes of convenience only and shall not be
construed to affect the meaning or construction of any of the provisions hereof.
Section 8.10 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 Surety Bond Deed to Secure Debt.
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Section 8.11 Effectiveness of Surety Bond Deed to Secure Debt. This Surety
Bond Deed to Secure Debt has been dated as of the date first above written for
convenience only. This Surety Bond Deed to Secure Debt shall be effective on the
date of execution and delivery by each of the Secured Party and the Grantor.
Section 8.12 Limitation of Liability. It is expressly understood and agreed
by the parties hereto that (a) this Surety Bond Deed to Secure Debt is executed
and delivered by SunTrust Bank, Atlanta, not individually or personally but
solely as Co-Trustee under the Trust Agreement, in the exercise of the powers
and authority conferred and vested in it, and Fleet National Bank, not
individually or personally but solely as Owner Trustee under the Trust
Agreement, in the exercise of the powers and authority conferred and vested in
it, (b) each of the representations, undertakings and agreements herein made on
the part of each of the Co-Trustee and the Owner Trustee is made and intended
not as personal representations, undertakings and agreements by SunTrust Bank,
Atlanta and Fleet National Bank, respectively, but is made and intended for the
purpose for binding only the Co-Trustee and the Owner Trustee, respectively, (c)
nothing herein contained shall be construed as creating any liability on either
SunTrust Bank, Atlanta or Fleet National Bank, individually or personally, to
perform any covenant either expressed or implied contained herein, all such
liability, if any, being expressly waived by the parties hereto or by any Person
claiming by, through or under the parties hereto and (d) under no circumstances
shall either SunTrust Bank, Atlanta or Fleet National Bank, be personally liable
for the payment of any indebtedness or expenses of the Co-Trustee or the Owner
Trustee, respectively, or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Co-Trustee or the
Owner Trustee, respectively, under this Surety Bond Deed to Secure Debt. In
addition, each of the parties hereto acknowledges and agrees that the Co-Trustee
has been appointed by the Owner Participant and Owner Trustee for the limited
purpose of exercising those trust powers in the State of Georgia which may not
be exercised by the Owner Trustee under applicable law, and that, except as
otherwise required by applicable law, the Co-Trustee shall not be obligated to
take any action hereunder unless expressly directed in writing by the Owner
Trustee or the Owner Participant in accordance with the terms of the Trust
Agreement.
Section 8.13 WAIVER. GRANTOR HEREBY WAIVES ANY RIGHT GRANTOR MAY HAVE UNDER
THE CONSTITUTION OF THE STATE OF GEORGIA OR THE CONSTITUTION OF THE UNITED
STATES OF AMERICA TO NOTICE OR TO A JUDICIAL HEARING PRIOR TO THE EXERCISE OF
ANY RIGHT OR REMEDY PROVIDED BY THIS INSTRUMENT TO SECURED PARTY, AND GRANTOR
WAIVES ANY RIGHTS, IF ANY, THAT GRANTOR MAY HAVE TO SET ASIDE OR INVALIDATE ANY
SALE DULY CONSUMMATED IN ACCORDANCE WITH THE PROVISIONS OF THIS INSTRUMENT ON
THE GROUND (IF SUCH BE THE CASE) THAT THE SALE WAS CONSUMMATED WITHOUT A PRIOR
JUDICIAL HEARING. ALL WAIVERS BY GRANTOR IN THIS SECTION HAVE BEEN MADE
VOLUNTARILY, INTELLIGENTLY AND KNOWINGLY, AFTER GRANTOR HAS BEEN FIRST INFORMED
BY COUNSEL OF GRANTOR'S OWN CHOOSING AS TO POSSIBLE ALTERNATIVE RIGHTS, AND HAVE
BEEN MADE AS AN INTENTIONAL RELINQUISHMENT AND ABANDONMENT OF A KNOWN RIGHT AND
PRIVILEGE.
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IN WITNESS WHEREOF, the Grantor has caused this Surety Bond Deed to Secure
Debt to be duly executed and delivered by its officer thereunto duly authorized.
ROCKY MOUNTAIN LEASING
CORPORATION
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/ Xxxxx X. Xxxxxx
----------------------------
Notary Public
My Commission Expires: March 16, 1998
[Notary Seal] ---------------
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SCHEDULE TO EXHIBIT 10.32.15
DEED TO SECURE DEBT, ASSIGNMENT OF SURETY BOND AND SECURITY AGREEMENT (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 Deed to Secure
Debt, Assignment of Surety Bond and Security Agreement (P1) are not filed
herewith; however, the registrant hereby agrees that such Exhibits and Schedules
will be provided to the Commission upon request.
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APPENDIX A
Definitions
Refer to Appendix A to Exhibit 10.32.1 of the Form 10-K.
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