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EXHIBIT 10.92
LEASE AGREEMENT
BETWEEN
BAYONNE INDUSTRIES, INC.
AND
IMTT-BAYONNE
("LESSOR")
AND
COGEN TECHNOLOGIES NJ, INC.
("LESSEE")
May 22, 1986
Record and return to: Prepared by:
/s/ XXXX X. AIN, ESQ.
-----------------------------------
Xxxxxx X. Xxxxxx, Esq. Xxxx X. Ain, Esq.
Xxxxxxxxx, Xxxxx & Van Ness, Feldman, Xxxxxxxxx
Xxxxxx & Xxxxxx
280 Corporate Center 0000 Xxxxxx Xxxxxxxxx Xx., X.X.
0 Xxxxxx Xxxx Xxxx Xxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000 Xxxxxxxxxx, X.X. 00000
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TABLE OF CONTENTS
PAGE
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ARTICLE 1
DEFINITIONS................................................. 2
ARTICLE 2
DEMISED PREMISES............................................ 6
ARTICLE 3
TERM........................................................ 6
3.1 Base Term........................................... 6
3.2 Termination......................................... 6
3.3 Renewal of Lease Agreement.......................... 7
3.4 Extension Upon Termination.......................... 7
ARTICLE 4
RENT........................................................ 8
4.1 Base Term Rent .................................... 8
4.2 Renewal Term Rent ................................. 8
4.3 Additional Rent ................................... 9
ARTICLE 5
USE OF PREMISES
AND OWNERSHIP OF IMPROVEMENTS.............................. 10
5.1 Use Limited ...................................... 10
5.2 Safe and Lawful Use .............................. 10
5.3 Maintenance of Governmental Authorizations ....... 11
5.4 Lessee's Right to Contest ........................ 11
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5.5 Effect on Lessor's Insurance ....................... 12
5.6 Ownership of Improvements .......................... 13
ARTICLE 6
QUIET ENJOYMENT ............................................. 13
6.1 Lessee's Possession ................................ 13
6.2 Access by Lessor ................................... 13
6.3 Access by Lessee for Steam Interconnection ......... 13
ARTICLE 7
TAXES ....................................................... 14
7.1 Payment of Taxes ................................... 14
7.2 Compliance and Evidence of Payment.................. 14
7.3 Tax Appeals ........................................ 15
7.4 Proration .......................................... 15
7.5 Refunds and Rebates ................................ 16
ARTICLE 8
UTILITY EXPENSES ............................................ 16
ARTICLE 9
REIMBURSEMENT ............................................... 16
9.1 Reimbursement of Lessor ............................ 16
9.2 Reimbursement of Lessee ............................ 17
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ARTICLE 10
PRIOR USE; ENVIRONMENTAL RESPONSIBILITY ..................... 17
10.1 Prior Use of Demised Premises ..................... 17
10.2 Environmental Damage Responsibility ............... 18
ARTICLE 11
LIENS ....................................................... 19
ARTICLE 12
INSURANCE ................................................... 20
12.1 Responsibility of Lessee .......................... 20
12.2 Conditions Concerning Insurance Carriers .......... 20
ARTICLE 13
PERMITTED ENCUMBRANCES ON LEASEHOLD
INTERESTS AND IMPROVEMENTS .................................. 21
ARTICLE 14
EMINENT DOMAIN .............................................. 22
14.1 Distribution of Award ............................. 22
14.2 Partial Taking .................................... 23
ARTICLE 15
TERMINATION ................................................. 23
15.1 Lessor's Right to Terminate ....................... 23
15.2 Lessee's Right to Terminate ....................... 24
15.3 Prepaid Rent Nonrefundable ........................ 25
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15.4 Notice to Financiers and Opportunity to Cure ...... 26
15.5 Written Notice of Termination ..................... 28
15.6 Condition of Demised Premises at Termination ...... 28
ARTICLE 16
REMEDIES UPON LESSEE'S BREACH ............................... 28
ARTICLE 17
ATTENDANT LAND RIGHTS ....................................... 30
ARTICLE 18
MORTGAGE PRIORITY ........................................... 31
ARTICLE 19
NONWAIVER ................................................... 31
ARTICLE 20
FORCE MAJEURE ............................................... 32
20.1 Definition ........................................ 32
20.2 Burden of Proof ................................... 32
20.3 Effect of Force Majeure ........................... 32
20.4 Prepaid Rent Nonrefundable ........................ 33
ARTICLE 21
SUCCESSORS AND ASSIGNS ...................................... 33
ARTICLE 22
MISCELLANEOUS ............................................... 38
22.1 Duplicates; Recordation .......................... 38
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22.2 Consent Not to be Unreasonably Withheld .......... 38
22.3 Termination of Preexisting Lease ................. 38
22.4 Covenants Running with Land ...................... 38
22.5 Notice ........................................... 39
22.6 Amendments ....................................... 40
22.7 Choice of Law .................................... 40
22.8 Severability ..................................... 40
22.9 Other Agreements.................................. 40
22.10 Captions ........................................ 41
Exhibits
A. Property Description
B. Map of Demised Premises
C. Example of GNP Deflator Adjustment
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THIS LEASE AGREEMENT made and entered into as of May 22, 1986, by and
between Bayonne Industries, Inc., a New Jersey corporation, and
IMTT-Bayonne, a Delaware partnership (collectively referred to as the
"Lessor"), and Cogen Technologies NJ, Inc., a Delaware corporation and its
successors and assigns (the "Lessee").
WHEREAS, Lessor, IMTT-Bayonne, operates a tank terminal facility
located at Bayonne, New Jersey ("Lessor's Plant" or "Bayonne Facility"),
which Plant utilizes steam for industrial purposes;
WHEREAS, Lessor, Bayonne Industries, Inc., is the owner of the property
whereon the Bayonne Facility is located and IMTT-Bayonne leases such
property from Bayonne Industries, Inc.;
WHEREAS, IMTT-Bayonne and Lessee have entered into an Agreement for the
Sale of Steam and Electricity From a Cogeneration Facility (the "Steam Sale
Agreement"); and
WHEREAS, the Lessor desires to lease to Lessee the land upon which the
Cogeneration Facility will be located;
NOW, THEREFORE, in consideration of the mutual covenants and
obligations contained herein and other valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the Lessor and Lessee agree
as follows:
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ARTICLE 1
DEFINITIONS
The following terms when used herein shall have the following meanings,
unless a different meaning shall be expressly stated or shall be apparent
from the context:
1.1 "Affiliate" means a corporation or other entity that directly or
indirectly, through one or more intermediaries, controls, or is controlled
by, or is under common control with, another corporation or entity.
1.2 "Annual Period" means any one of a succession of consecutive
12-month periods, the first of which shall begin on the date of execution of
this Lease Agreement if such date is the first day of a calendar month, or
otherwise on the first day of the month immediately following the month in
which such execution occurs.
1.3 "Bayonne Facility" means the tank terminal facility located at
Bayonne, New Jersey, and all appurtenant property owned or leased at that
location by IMTT, BI, or any Affiliates thereof.
1.4 "BI" means Bayonne Industries, Inc., a New Jersey corporation
having its principal place of business at the Foot of Xxxx 00xx Xxxxxx,
Xxxxxxx, Xxx Xxxxxx 00000.
1.5 "Boiler House" means the building located at the Bayonne Facility
that houses the Steam Producing Facilities except that interior portion of
the building unrelated to the Steam Producing Facilities.
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1.6 "Cogen" means Cogen Technologies NJ, Inc., a Delaware corporation,
having its principal place of business at 00000 Xxxxxxx Xxxxx Xxxxx, Xxxxx
000, Xxxxxxx, Xxxxx 00000.
1.7 "Cogeneration Facility" means the waste heat boilers, gas and steam
turbines, generators and all appurtenant structures, equipment including
interconnection facilities, owned or leased and operated by Lessee for the
purpose of producing electricity, steam or other forms of useful thermal
output, but such term does not include real property interests.
1.8 "Date of Initial Commercial Operation" means 12:01 A.M. on the day
Lessee designates in writing as the initial date of commercial operation of
the Cogeneration Facility.
1.9 "Easement" means that certain easement of even date herewith from
BI and IMTT to Cogen pursuant to which BI and IMTT grant to Cogen ingress
and egress over the Bayonne Facility to the Boiler House, including all
exhibits and amendments thereto that may be made from time to time, and any
other easements, rights of way or licenses that may be granted to Cogen
under this Lease Agreement.
1.10 "Financier" means any person lending money for the construction
and operation of the Cogeneration Facility, any person providing funds for
refinancing or take-out of any such loans, and the nominee or designee of
any such person.
1.11 "IMTT" means IMTT-Bayonne, a Delaware partnership.
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1.12 "Lease Agreement" or "Ground Lease" means this contract, including
all exhibits and amendments thereto that may be made from time to time.
1.13 "Leasehold Improvements" means the Cogeneration Facility and any
other improvements constructed or placed on the Demised Premises by Lessee.
1.14 "Note" means the promissory note of Cogen dated May 22, 1986,
payable to Bayonne Industries, Inc. in the principal amount of
$2,600,000.00.
1.15 "Option Agreement" means that certain option agreement of even
date herewith between Cogen and BI, including all exhibits and amendments
thereto that may be made from time to time.
1.16 "Party" or "Parties" means the signatories of this Lease Agreement
and their permitted successors and assigns.
1.17 "Prime Rate" means the interest rate (sometimes referred to as the
"Base Rate") for large commercial loans to creditworthy entities published
by First National Bank of Chicago, or its successor bank, as such rate may
be in effect from time to time.
1.18 "Purchase and Sale Agreement" means that certain agreement of even
date herewith pursuant to which Cogen purchases and Lessor sells the Steam
Producing Facilities, including all exhibits and amendments thereto that may
be made from time to time.
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1.19 "Rent Note" means the promissory note of even date herewith of
Cogen dated May 22, 1986, payable to BI in the principal amount of
$600,000.00 delivered pursuant to Article 4.1 hereof.
1.20 "Security Agreement" means that certain agreement of even date
herewith between Cogen and BI executed and delivered by Cogen as security
for the payment of the Note, including all exhibits and amendments that may
be made from time to time.
1.21 "SPF Lease" means that certain Steam Producing Facilities Lease
Agreement of even date herewith between Cogen, as lessor, and IMTT, as
lessee, pursuant to which the Steam Producing Facilities will be leased to
IMTT, including all exhibits and amendments thereto that may be made from
time to time.
1.22 "Steam Producing Facilities" means the existing boilers and
appurtenant structures and equipment located inside the Boiler House, and
all additions, replacements, improvements, substitutions, and increments
thereto, but not including the Boiler House, located at the Bayonne Facility
and operated for the purpose of producing steam for industrial purposes at
the Bayonne Facility.
1.23 "Steam Sale Agreement" means that certain agreement between Cogen
and IMTT dated June 13, 1985, for the sale of steam and electricity from a
cogeneration plant, including all exhibits and amendments thereto that may
be made from time to time.
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ARTICLE 2
DEMISED PREMISES
Upon the terms and conditions hereinafter set forth, and in
consideration of the payment of the rents and the prompt performance by the
Lessee of the covenants and agreements contained herein, the Lessor does
lease, let, and demise to the Lessee and the Lessee hereby leases from the
Lessor, that certain real property situated in the County of Xxxxxx, State
of New Jersey, as described in Exhibit A hereto and as more fully shown on
Exhibit B hereto attached (hereinafter referred to as the "Demised
Premises").
ARTICLE 3
TERM
3.1 Base Term. This Lease Agreement shall be effective upon the date of
execution and shall continue in effect for a Base Term of twenty (20) Annual
Periods after the date of execution.
3.2 Termination. Notwithstanding the preceding paragraph, if the Date
of Initial Commercial Operation of the Cogeneration Facility has not
occurred prior to the last day of the month which is twenty (20) months
following the execution of this Lease Agreement, Lessor may thereafter
terminate this Lease Agreement by providing Lessee and each Financier thirty
(30) days written notice, unless prior to the expiration of such thirty (30)
day
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period, Lessee has commenced a program of continuous construction of the
Cogeneration Facility and does not, of its own volition, subsequently
discontinue such construction program.
3.3 Renewal of Lease Agreement. Upon the expiration of the Base Term,
this Lease Agreement shall automatically be extended for two (2) succeeding
terms (hereinafter referred to as the "Renewal Terms"), unless Lessee elects
to terminate this Lease Agreement at the expiration of the Base Term or the
first Renewal Term. In the event that this Lease Agreement terminates during
the Base Term pursuant to Article 15, Lessee shall not owe Lessor Renewal
Term rent pursuant to Article 4.2. The first Renewal Term shall be for two
(2) Annual Periods and the second Renewal Term shall be for ten (10) Annual
Periods. Termination of this Lease Agreement pursuant to this Article 3.3
shall be valid only if Lessee provides written notice of its intent to
terminate to Lessor at least nine (9) months prior to the expiration of the
Base Term or the first Renewal Term. Upon expiration of the second Renewal
Term, this Lease Agreement may be continued thereafter by mutual agreement
of the Parties.
3.4 Extension Upon Termination. Upon any termination of this Lease
Agreement, it shall be automatically extended for one additional twelve (12)
month period solely for the purposes described in Article 15.6.
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ARTICLE 4
RENT
4.1 Base-Term Rent. This Lease Agreement is made for and in
consideration of a rental amount of Six Hundred Thousand Dollars
($600,000.00) which is due upon the execution of this Lease Agreement, and
payable by delivery to BI of a promissory note (the Rent Note) with Lessee
as maker, due and payable, in full, twenty-four (24) months from the
execution of this Lease Agreement, bearing interest at the rate of one
percent (1%) over the Prime Rate, with interest, due from date of execution
of this Lease Agreement until paid and said interest being payable monthly
commencing thirty (30) days from the execution of this Lease Agreement. In
the event that Lessee elects to terminate this Lease Agreement for any
reason within six (6) months of the execution of this Lease Agreement, and
Lessee pays to Lessor a certified check made to the order of BI in the sum
of Sixty Thousand Dollars ($60,000.00), the above-described Rent Note shall
be returned to Lessee marked "paid" or "cancelled".
4.2 Renewal Term Rent.
A. For the Renewal Terms, Lessee shall pay to Lessor beginning upon
the first day of the first calendar month of the Renewal Term and upon the
first day of each succeeding calendar month for the duration of the Renewal
Term a rental amount of Five Thousand Dollars ($5,000.00) per month, to be
adjusted as provided in Article 4.2B.
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B. The Renewal Term Rent shall be adjusted upward at an
annual percentage rate equal to the annual percentage increase in the GNP
Deflator, if any, which has occurred during the immediately preceding
calendar year, commencing with calendar year 1988 and for each year
thereafter. The increase, if any, will be implemented at the beginning of
each Renewal Term Annual Period. In no event will the Renewal Term Rent ever
be adjusted downward or decreased, provided, however, that in the event of a
decrease in the GNP Deflator, the Renewal Term Rent will not be adjusted
upward until the GNP Deflator has exceeded a level equal to that in the year
immediately preceding the year(s) in which the GNP Deflator decreased.
C. The GNP Deflator is defined as the percentage which when
divided into the then current Gross National Product will yield Gross
National Product in 1982 dollars (or constant dollars for the then
applicable base year). GNP Deflator percentages are published by the U.S.
Department of Commerce in its bulletin "Survey of Current Business" and/or
the Federal Reserve Bulletin. An example of the operation of the GNP
Deflator is attached as Exhibit C.
4.3 Additional Rent. In addition to the rent set forth in Articles 4.1
and 4.2, Lessee shall comply with all of the obligations to pay taxes set
forth in Article 7 and to make payments set forth in Article 8 and Article 9
of this Lease Agreement, which obligations shall be collectively referred to
as
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"Additional Rent." Any payments made by a Financier pursuant to Article
21.7(2)(i) shall also be Additional Rent.
ARTICLE 5
USE OF PREMISES
AND OWNERSHIP OF IMPROVEMENTS
5.1 Use Limited. The Demised Premises shall be used (i) only for the
erection, construction, operation, maintenance, modification,
reconstruction, and replacement of the Cogeneration Facility or (ii) with
the consent of Lessor, for any other lawful use.
5.2 Safe and Lawful Use. Lessee shall not use, occupy, suffer or permit
the Demised Premises or any part thereof to be used during the term hereof
in any manner or occupied for any purpose contrary to any applicable and
duly adopted laws, ordinances, rules and any public authority regulations
nor in derogation, violation or in nonconformity with any safety codes and
recognized Industry Safety Standards and guidelines applicable to Lessee's
operation on the Demised Premises. Lessee shall use, maintain and occupy the
Demised Premises in a careful, safe, lawful and proper manner and will not
commit nor permit any public or private nuisance to be committed on the
Demised Premises. Lessee shall not use nor permit the use of the Demised
Premises in any way which will injure the reputation of the same or which
shall constitute an unreasonable interference with
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Lessor's business or a nuisance, annoyance or inconvenience to the Lessor or
any neighbors of Lessor or which shall damage Lessor or any neighbors of
Lessor. The safe and lawful erection, construction, operation, maintenance,
modification, reconstruction, or replacement of a Cogeneration Facility
shall not be construed to constitute a nuisance, annoyance or inconvenience
on the Demised Premises.
5.3 Maintenance of Governmental Authorizations. Lessee shall be
responsible for obtaining and maintaining all necessary government
authorizations, licenses, permits and certificates for its utilization of
the Demised Premises and shall carry on its operations in compliance with
all such authorizations, licenses, permits and certificates.
5.4 Lessee's Right to Contest.
A. Lessee shall have the right to contest by appropriate legal
proceedings diligently conducted in good faith, in the name of the Lessee,
or Lessor (if legally required and consented to by Lessor), or both (if
legally required and consented to by Lessor), without cost or expense to
Lessor, the validity or application of any law, ordinance, order, rule,
regulation or requirement of the nature referred to in Articles 5.2 and 5.3.
If by the terms of any such law, ordinance, order, rule, regulation or
requirement, compliance therewith may legally be delayed pending the
prosecution of any such proceeding, Lessee may delay such compliance
therewith until the final determination of such proceeding.
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X. Xxxxxx agrees to execute and deliver any appropriate papers or
other instruments which may be necessary or proper to permit Lessee to so
contest the validity or application of any such law, ordinance, order, rule,
regulation or requirement and to fully cooperate with Lessee in such
contest, all at Lessee's expense.
5.5 Effect on Lessor's Insurance. Except with regard to the permitted
uses under Article 5.1, Lessee shall put nothing on the Demised Premises nor
undertake any activity which would forfeit Lessor's insurance on its Bayonne
Facility or the insurance required hereunder. Should any installation made
or action taken by Lessee, whether authorized or unauthorized under this
Lease Agreement, increase the premium of any of Lessor's insurance policies
on its Bayonne Facility or the insurance required hereunder, then Lessee is
obligated to pay such increased premiums on Lessor's insurance policies.
Should the Lessee's operation and maintenance of the Cogeneration Facility
be conducted in an unsafe manner so as to render the Lessor unable to secure
insurance on its Bayonne Facility, then Lessee hereby grants to Lessor the
right to require Lessee, upon written notice from Lessor, to immediately
take such action as is necessary to operate and maintain the Cogeneration
Facility in a safe manner.
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5.6 Ownership of Improvements. Lessee warrants that it or its assignees
will be the owner of any Leasehold Improvements erected, installed, or
located on the Demised Premises by it. Lessor agrees that same shall be the
sole property of the Lessee, and Lessor shall have no legal or equitable
ownership interest therein.
ARTICLE 6
QUIET ENJOYMENT
6.1 Lessee's Possession. Lessor warrants that it has good title to the
Demised Premises free and clear of all liens and encumbrances other than
those set forth in Title Report No. 00-00-00000 of Chicago Title Insurance
Company of even date herewith. Lessor covenants and agrees with Lessee that
so long as the Lessee keeps and performs all of the covenants and conditions
required to be kept and performed by the Lessee, the Lessee shall have quiet
and undisturbed and continued possession of the Demised Premises, free from
any claims against the Lessor and all persons claiming under, by or through
the Lessor.
6.2 Access by Lessor. Lessor, its agents and representatives, at all
reasonable times, may enter the Demised Premises to inspect the same for the
purposes of ascertaining compliance with terms of this Lease Agreement.
6.3 Access by Lessee for Steam Interconnection. Lessee shall have the
right to enter, at reasonable times, the premises
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of the Lessor in order to construct, operate, and maintain steam or electric
interconnection facilities necessary to carry out the Steam Sale Agreement
and any other steam agreement with Exxon Company, U.S.A. or any other
person, or any other electric power sales arrangements, but only in
accordance with the provisions of Article 17 of this Lease Agreement.
ARTICLE 7
TAXES
7.1 Payment of Taxes. Lessee shall be responsible for all taxes
relating to the Demised Premises and any buildings or improvements erected
thereon by Lessee, as well as all equipment and/or fixtures located thereon
by Lessee. Lessor shall deliver to Lessee promptly after receipt copies of
all tax bills relating to the tax lot of which the Demised Premises are a
portion together with a calculation made in accordance with Article 7.4 of
the taxes owed by Lessor on the nonleased portion of the tax lot together
with a check for Lessor's pro rata share of such aforesaid tax bills.
Thereafter, Lessee shall be responsible to remit to the responsible tax
authorities payment of taxes for the entire tax lot of which the Demised
Premises are a portion.
7.2 Compliance and Evidence of Payment. Lessee shall be deemed to have
complied with the covenants of this Article regarding all taxes if payment
of such taxes shall have been made either within any period allowed by law
or by the governmental
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authority imposing the same during which payment is permitted without
penalty or interest or before the same shall become a lien upon the Demised
Premises provided Lessee pays any and all penalties, late charges and/or
interest in connection therewith, and Lessee shall produce and exhibit to
Lessor, if requested to do so in writing by Lessor, satisfactory evidence of
such payment. Notwithstanding the foregoing and subject only to Article 7.1,
Lessee shall promptly pay all such taxes where no legal delay has been
obtained.
7.3 Tax Appeals. Lessee or its designees shall have the right, with
Lessor's knowledge and consent, to contest or review all such taxes by legal
proceedings, or in such other manner as it may deem suitable which, if
necessary, may be in the name of and with the cooperation of the Lessor and
Lessor shall execute all documents necessary to accomplish the foregoing.
Notwithstanding the foregoing and subject only to Article 7.1, Lessee shall
promptly pay all such taxes where no legal delay has been obtained.
7.4 Proration. The Parties hereto understand and agree that the real
property taxes relating to the Demised Premises shall be prorated
proportionately between Lessor and Lessee: (i) for the first and last year
of this Lease Agreement, and (ii) to the extent that the Demised Premises
are not a separately assessed tax lot, based upon the respective percentages
of the acreage of the tax lot compared to the acreage leased herein.
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7.5 Refunds and Rebates. Any refunds or rebates on account of the taxes
paid with respect to the Demised Premises shall be prorated in accordance
with the provisions of Article 7.4(ii). Any such refunds received by Lessor
or Lessee a part of which are for the benefit of the other shall be received
by either Party in trust and paid forthwith to the Party entitled to such
portion of the refund. Lessor will, upon the request of Lessee, sign any
receipts which may be necessary to secure the payment of any such refund or
rebate.
ARTICLE 8
UTILITY EXPENSES
Lessee shall contract separately for and pay when due all the rents or
charges for utilities, including but not limited to electricity, gas, water,
sewerage and sewer assessments, used by the Lessee, which are or may be
assessed or imposed upon the Demised Premises and if not paid, such rents or
charges shall become payable as Additional Rent with the installment of rent
next due or within thirty (30) days of demand therefor, whichever occurs
sooner.
ARTICLE 9
REIMBURSEMENT
9.1 Reimbursement of Lessor. If the Lessee shall fail or refuse to
comply with and perform any conditions and covenants of
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this Lease Agreement, the Lessor may (but shall be under no obligation to)
carry out and perform such conditions and covenants, for the account of the
Lessee. Any cost or expense so incurred by Lessor shall be payable on demand
or shall be added to the installment of rent due immediately thereafter.
This remedy shall be in addition to such other remedies as the Lessor may
have hereunder by reason of the breach by the Lessee of any of the covenants
and conditions of this Lease Agreement.
9.2 Reimbursement of Lessee. If the Lessor shall fail or refuse to
comply with and perform any conditions and covenants of this Lease
Agreement, the Lessee may (but shall be under no obligation to) carry out
and perform such conditions and covenants, for the account of the Lessor.
Any cost and expense paid by Lessee shall be payable by Lessor on demand.
This remedy shall be in addition to such other remedies as the Lessee may
have hereunder by reason of the breach by the Lessor of any of the covenants
and conditions of this Lease Agreement.
ARTICLE 10
PRIOR USE; ENVIRONMENTAL RESPONSIBILITY
10.1 Prior Use of Demised Premises. Lessor makes no warranty that the
Demised Premises are suitable for Lessee's purposes; however, Lessor has no
knowledge that the Demised Premises are unsuitable for Lessee's purposes.
Lessee acknowledges that Lessor: (1) acquired the Demised Premises on
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the 19th day of July, 1984; (2) has not placed any improvements thereon; and
(3) has conducted no activities thereon nor put the Demised Premises to any
use whatsoever from the date of its acquisition thereof through the date of
the execution of this Lease Agreement. If the Demised Premises cannot be
used for Lessee's purposes as specified in Article 5, then Lessee may cancel
this Lease Agreement without liability or penalty to either Party.
10.2 Environmental Damage Responsibility. Lessor agrees that Lessee
shall be liable only for any environmental loss, damage, cost, or expense
arising from its construction, operation, and maintenance of the
Cogeneration Facility and Lessor shall not be entitled to claim any right of
contribution or otherwise hold Lessee liable for any environmental losses,
damages, costs, or expenses which result from actions which occurred prior
to the effective date of this Lease Agreement or which occurred or occurs by
reason of actions of the Lessor or other parties beyond the reasonable
control of the Lessee, it being specifically understood that Exxon Company,
U.S.A. is a party beyond the reasonable control of Lessee. Lessee and Lessor
shall cooperate with each other to assist in the defense of any claim made
against one or both of the Parties to this Lease Agreement which relates to
environmental damage not caused by the Parties, including pursuing any third
parties. Unless prohibited by any applicable insurance policy carried by
either Party,
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Lessor and Lessee agree to subrogate the other Party to any rights that they
may have against third parties with respect to environmental liability in
connection with the Demised Premises.
ARTICLE 11
LIENS
If any mechanics', materialmen's or other liens shall be filed against
the Demised Premises by reason of labor performed or materials furnished to
the Lessee in the erection, construction, completion, alteration, repair or
addition to any building or improvement, the Lessee shall within thirty (30)
days thereafter, at the Lessee's own cost and expense, cause such lien or
liens to be satisfied, removed, cancelled, erased and discharged of record
together with any Notices of Intention that may have been filed either by
payment thereof or by bonding the lien in accordance with the laws of the
State of New Jersey. Should Lessee fail to comply with the foregoing, Lessor
may at its option have the lien removed by bonding same, all at Lessee's
expense. Failure to do so shall entitle the Lessor to resort to such
remedies as are provided herein in the case of any default of this Lease
Agreement, in addition to such as are permitted by law. Lessee shall at no
time cause or permit a mortgage or any other security device of any nature
to be inscribed against the Demised Premises except as otherwise provided in
Article 13 with regard to Lessee's leasehold interest.
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ARTICLE 12
INSURANCE
12.1 Responsibility of Lessee. Lessee shall provide and maintain, for
the joint benefit of the Lessee and Lessor (and mortgagees, if any) during
the entire term of this Lease Agreement, public liability insurance against
claims for: (1) bodily injury and death occurring on or about the Demised
Premises; (2) property damage; and (3) for any claims or acts that Lessee or
Lessor can be held legally liable for, regardless of the jurisdiction.
Lessee shall also provide and maintain Worker's Compensation Insurance in
statutory limits. Lessor shall have the right, from time to time, to make
such reasonable requirements with reference to insurance that will
reasonably cover liabilities to which the Lessor may be exposed by virtue of
this Lease Agreement, but in no event will Lessor require that Lessee carry
limits in excess of those carried by Lessor. Any insurance called for
hereunder shall also provide coverage for any claims resulting from Lessee's
use of any of Lessor's land pursuant to Article 17 hereof.
12.2 Conditions Concerning Insurance Carriers. Insurance companies
issuing policies required in this Lease Agreement shall be qualified to do
business in New Jersey and shall have a financial rating of A12 or better
according to "Best's Insurance Reports, Fire and Casualty," edition current
at the inception date of each policy. To the extent permissible by law, all
27
-21-
insurance policies required to be furnished by the Lessee hereunder shall
name both Lessee and Lessor (and mortgagees, if any) as named insureds and
each such policy shall be non-cancellable with respect to Lessor without
thirty (30) days written notice to the Lessor. The policy or policies of
insurance or certified copies thereof shall be delivered to Lessor, together
with evidence of the payment of the premiums therefor, not less than fifteen
(15) days prior to the commencement of the term of this Lease Agreement or
the date when the Lessee shall enter into possession of the Demised
Premises, whichever occurs sooner. At least fifteen (15) days prior to the
expiration or termination date of any policy, Lessee shall deliver a renewal
or replacement policy with proof of the payment of the premium therefor;
provided, however, that in the event that Lessee cannot deliver a renewal or
replacement policy within such period, Lessee shall deliver to Lessor a
binder or certificate of insurance as soon as possible.
ARTICLE 13
PERMITTED ENCUMBRANCES ON
LEASEHOLD INTERESTS AND IMPROVEMENTS
Lessee may, at any time and from time to time during the term of this
Lease Agreement and without the consent of Lessor, encumber Lessee's
interest in the leasehold estate created by this Lease Agreement to any
Financier by way of a lien, leasehold
28
-22-
mortgage or deed of trust containing such provisions as Lessee shall deem
fit and proper. The rights of Lessor will remain superior to those of such
Financiers in all instances except those in which Lessee encumbers Leasehold
Improvements placed upon the Demised Premises by Lessee. Lessee is hereby
specifically granted the right to encumber the Leasehold Improvements and
Lessor hereby subordinates any rights that it may have against said
Leasehold Improvements in favor of a Financier, it being understood that
nothing in this Article 13 shall adversely affect any rights of Lessor or
any Financier under Articles 21.6 and 21.7 of this Lease Agreement.
ARTICLE 14
EMINENT DOMAIN
14.1 Distribution of Award. If the Demised Premises and/or attendant
rights of way or other land rights shall be taken or condemned, in whole or
in part, by any competent authority, the Parties hereto agree to cooperate
in applying for and in prosecuting any claim for such taking and further
agree that the aggregate net award, after a pro rata deduction of all
expenses and costs, including attorneys' fees, incurred in connection
therewith, payable to both Lessor and Lessee (or if required, to any
mortgagee) shall be distributed as follows: (1) the portion of the award (or
moneys received) relating to the taking of the Cogeneration Facility or the
expense of dismantling and moving
29
-23-
the Cogeneration Facility shall be paid to the Lessee; (2) the portion of
the award (or moneys received) relating to the value of the Demised Premises
for the remainder of the Base Term of this Lease Agreement shall be paid to
Lessee; and (3) the portion of the award (or moneys received) relating to
the value of the land constituting the Demised Premises shall be paid to the
Lessor.
14.2 Partial Taking. In the event of a partial taking of the Demised
Premises and/or attendant rights of way, and if such partial taking renders
the continuation of normal operations at the Cogeneration Facility
impossible, impracticable, or unduly onerous, Lessee may elect to terminate
this Lease Agreement by giving notice to the Lessor within three (3) months
after such taking or condemnation. If such notice of termination is given,
this Lease Agreement shall terminate as of the date on which such notice is
given.
ARTICLE 15
TERMINATION
15.1 Lessor's Right to Terminate. Lessor shall have the right to
terminate this Lease Agreement upon the occurrence of any of the following
events:
A. The Lessee shall fail to make timely payment of any of the rent
pursuant to Articles 4, 7, 8, 9, and 21.7(2)(i) when due and payable, which
failure continues for thirty (30) days after written notice thereof; or
30
-24-
B. The Lessee shall fail to perform any of the covenants or
obligations of this Lease Agreement required to be kept and performed by
Lessee, other than the payment of rent covered in Paragraph A above, which
failure continues for a period of thirty (30) days after written notice of
such nonperformance; provided, however, that this Lease Agreement shall not
terminate if Lessee shall diligently commence to cure such default within
such thirty (30) day period and for so long as Lessee diligently continues
such efforts.
15.2 Lessee's Right to Terminate. Lessee shall have the right to
terminate this Lease Agreement upon the occurrence of any of the following
events:
A. Lessor shall fail to perform any of the covenants or
obligations of this Lease Agreement required to be kept and performed by
Lessor, which failure continues for a period of thirty (30) days after
written notice of such nonperformance; provided, however, that this Lease
Agreement shall not terminate if Lessor shall diligently commence to cure
such default within such thirty (30) day period and for so long as Lessor
diligently continues such efforts;
B. Lessee terminates the Steam Sale Agreement by reason of
Lessor's breach under Article 15 of the Steam Sale Agreement;
C. The Cogeneration Facility is damaged or destroyed such that the
Cogeneration Facility cannot be made operational at
31
-25-
normal production capacity within two (2) years after the occurrence;
D. There is a partial taking or condemnation with respect to
the Demised Premises or any building or improvement thereon such that the
continuation of normal operations at the Cogeneration Facility is
impossible, impracticable or unduly onerous;
E. Lessee fails to receive or maintain the authorizations
necessary to lawfully construct, operate and maintain the Cogeneration
Facility;
F. For any reason within six (6) months of the date of
execution of this Lease Agreement, provided Lessee pays Sixty Thousand
Dollars ($60,000.00) to Lessor on or prior to the expiration of such six (6)
month period; or
G. The Demised Premises cannot be used for Lessee's purposes
as specified in Article 5.
15.3 Prepaid Rent Nonrefundable. In the event that Lessee terminates
this Lease Agreement pursuant to Articles 15.2 A, B, C, D, E or G, Lessee
shall not be entitled to any refund of the prepaid rent called for by this
Lease Agreement. However, this Article 15.3 shall not preclude Lessee from
the recovery from Lessor of any damages due as the result of a breach of
this Lease Agreement.
32
-26-
15.4 Notice to Financiers and Opportunity to Cure.
A. Lessor shall look only to Lessee or to any successor of Lessee
under Article 21.3 to satisfy all obligations hereunder. No Financier shall
have any obligation to satisfy any obligation or indebtedness of Lessee to
Lessor, except the obligations and indebtedness to Lessor required under the
terms of this Lease Agreement.
B. Notwithstanding the provisions of Article 15.4A, a Financier
shall be liable to the Lessor for uninsured liabilities only to the extent
such liabilities represent defaults or breaches hereunder caused by
Financier's actions. Financier's liability to Lessor for uninsured
liabilities which have not been caused by Financier's actions shall be
limited to the extent of such Financier's interest in the Cogeneration
Facility.
C. Lessee shall promptly notify the Lessor of the names and
addresses of all Financiers. Notwithstanding Article 3.2 or Article 15.1,
Lessor shall not terminate this Lease Agreement until it has given thirty
(30) days written notice of any breach thereof to each of such Financiers,
and Lessor hereby agrees to promptly notify all such Financiers of any
breach. If Lessor fails to give such notice, Lessor shall not be liable for
damages to any Financier as a result of such failure, but any termination of
this Lease Agreement shall be of no force and effect. Thereafter, Lessor
shall not terminate this Lease Agreement as a result of any such breach if
within such thirty (30) day period any Financier has either:
33
-27-
(i) cured the breach if it can be cured by payment of money; or
(ii) if the breach cannot be so cured, caused the initiation of
and is diligently pursuing proceedings to give the Financier possession
of the Demised Premises or has diligently commenced to cure the breach
and for so long as the Financier diligently continues such efforts.
D. If a Financier is prohibited by any process or injunction issued
by any court or by reason of any action by any court having jurisdiction of
any bankruptcy or insolvency proceeding involving the Lessee or by an
automatic stay thereunder from curing such breach (other than a breach that
may be cured by the payment of money), the time specified above in Article
15.4C shall be extended for the period of such prohibition.
E. Nothing in this Lease Agreement shall require a Financier to
cure any default hereunder in advance of entering upon the Demised Premises
with the purpose of continuing to operate the Cogeneration Facility thereon.
Actions by a Financier against Leasehold Improvements under a mortgage or
other security right or encumbrance shall not in themselves be deemed an
election by Financier to continue operation of the Cogeneration Facility.
34
-28-
15.5 Written Notice of Termination. Termination of this Lease Agreement
shall be valid only if the terminating Party provides written notice of its
intent to terminate to the other Party.
15.6 Condition of Demised Premises at Termination. At the termination of
this Lease Agreement, for any reason, Lessee shall, at its sole cost, remove
all Leasehold Improvements from the Demised Premises and any personal
property owned by Lessee and located at the Bayonne Facility within twelve
(12) months of the termination and shall restore the Demised Premises to its
same condition prior to the commencement of this Lease Agreement, with the
exception of any foundation laid at or near ground level, and shall repair
any damage to the Demised Premises caused during the term of this Lease
Agreement. In the event Lessee's Leasehold Improvements are not so removed,
all such Leasehold Improvements shall be deemed abandoned to Lessor without
any payment being due from Lessor, reserving to Lessor all rights for
damages resulting from Lessee's failure to remove Leasehold Improvements and
restore the Demised Premises as described above.
ARTICLE 16
REMEDIES UPON LESSEE'S BREACH
If there should occur any event under Article 15.1 which results in
Lessor terminating this Lease Agreement, or if during the term hereof the
Demised Premises or any part thereof shall be
35
-29-
or become abandoned or deserted, vacated or vacant, or should the Lessee be
evicted by summary proceedings or otherwise, the Lessor, in addition to any
other remedies herein contained or as may be permitted by law, including but
not limited to Distress and/or Landlord's Lien Proceedings, may either by
force or otherwise, without being liable for prosecution therefor, or for
damages, re-enter the said Demised Premises and the same have and again
possess and enjoy; and, as agent for the Lessee or otherwise, re-let the
Demised Premises and receive the rents therefor and apply the same, first to
the payment of such expenses, reasonable attorney fees and costs, as the
Lessor may have been put to in re-entering and repossessing the same and in
making such repairs and alterations as may be necessary, and second to the
payment of rents due hereunder. The Lessee shall remain liable for such
rents as may be in arrears and also the rents as may accrue subsequent to
the re-entry by the Lessor, to the extent of the difference between the
rents reserved hereunder and the rents, if any, received by the Lessor
during the remainder of the unexpired term hereof, after deducting the
aforementioned expenses, fees and costs, the same to be paid as such
deficiencies arise and are ascertained each month.
36
-30-
ARTICLE 17
ATTENDANT LAND RIGHTS
In connection with this Lease Agreement of the Demised Premises and for
so long as this Lease Agreement shall remain effective, Lessor hereby grants
to Lessee all attendant rights of way and other land rights required for
Lessee: (1) to install or erect any equipment or other property to be used
by Lessee to interconnect with Lessor or any third-party purchasers of steam
or electrical power, or to otherwise transmit or receive steam or electrical
power to or from the Demised Premises; and (2) to arrange for the provision
of normal utility services to the Cogeneration Facility. Notwithstanding the
foregoing, Lessor shall retain the right to designate the location of all
such rights of way and/or other land rights. Lessor shall commit such rights
of way and/or land rights otherwise granted to writing in recordable form
and shall provide that the term thereof shall extend for a period of twelve
(12) months following the termination of this Lease Agreement solely for the
purposes set forth in Article 15.6. Lessor shall grant Lessee and its
business invitees and licensees an easement for reasonable ingress and
egress over Lessor's property to the Demised Premises, which ingress and
egress shall not unreasonably interfere with the operation and use of
Lessor's Plant. Lessor agrees to execute any and all documents, agreements
and instruments and to take all other actions, in order to effectuate the
same, all at Lessee's cost and expense.
37
-31-
ARTICLE 18
MORTGAGE PRIORITY
This Lease Agreement shall be a prior lien against the Demised
Premises with respect to any mortgages that may hereafter be placed upon the
Demised Premises. The recording of this Lease Agreement shall have
preference and precedence and be superior and prior in lien to any mortgage
on the Demised Premises.
ARTICLE 19
NONWAIVER
The various rights, remedies, options, and elections of the Lessor and
Lessee, expressed herein, are cumulative, and the failure of the Lessor or
Lessee to enforce strict performance by the other Party of the conditions
and covenants of this Lease Agreement or to exercise any election or option
or to resort or have recourse to any remedy herein conferred or the
acceptance by the Lessor of any installment of rent after any breach by the
Lessee in any one or more instances, shall not be construed or deemed to be
a waiver or a relinquishment for the future by the Lessor of any such
conditions and covenants, options, elections, or remedies, but the same
shall continue in full force and effect.
38
-32-
ARTICLE 20
FORCE MAJEURE
20.1 Definition. "Force Majeure" means unforeseeable causes beyond the
reasonable control of and without the willful fault or negligence of the
Party claiming Force Majeure. It shall include failure to perform due to
causes beyond that Party's control, including but not limited to war,
sabotage, acts of God, riots, drought or accidents not reasonably
foreseeable.
20.2 Burden of Proof. The burden of proof as to whether a Force Majeure
has occurred shall be upon the Party claiming the Force Majeure.
20.3 Effect of Force Majeure. If either Party is rendered wholly or
partly unable to perform its obligations under this Lease Agreement because
of Force Majeure, that Party shall be excused from whatever performance is
affected by the Force Majeure to the extent so affected, provided that: (1)
the nonperforming Party, within one (1) week after the occurrence of the
Force Majeure, gives the other Party written notice describing the
particulars of the occurrence; (2) the suspension of performance shall be
of no greater scope and of no longer duration than is required by the Force
Majeure; and (3) no obligations of either Party that matured before the
occurrence of the Force Majeure shall be excused as a result of such
occurrence.
39
-33-
20.4 Prepaid Rent Nonrefundable. In the event that this Lease Agreement
is terminated or suspended pursuant to the provisions of this Article 20,
Lessee shall not be entitled to any refund of the prepaid rent called for by
this Lease Agreement.
ARTICLE 21
SUCCESSORS AND ASSIGNS
21.1 This Agreement shall be binding upon and inure to the benefit of
the Parties and any permitted assignees as provided herein.
21.2 Except as is expressly set forth in this Lease Agreement, neither
the rights nor the obligations under this Lease Agreement may be assigned,
pledged, hypothecated or otherwise transferred.
21.3 Lessee is expressly permitted to assign this Agreement as provided
in this Article 21.3. Lessee may assign this Agreement to Cogen Technologies
NJ Venture, provided that such assignment shall be of no force and effect
unless and until Cogen Technologies NJ Venture shall have assumed in writing
all of Lessee's obligations under the following instruments and notes, and
shall have agreed in writing to cure any existing defaults and breaches
hereunder and thereunder:
40
-34-
(1) The Steam Sale Agreement
(2) The Purchase and Sale Agreement
(3) The Option Agreement
(4) The SPF Lease
(5) The Note
(6) The Security Agreement
(7) The Rent Note
Lessee may assign this Agreement to any Financier which shall be obligated
hereunder only as provided in Articles 21.6 and 21.7 of this Lease
Agreement.
21.4 Lessor is expressly permitted to assign this Lease Agreement to any
person or entity, provided that such assignment shall be of no force and
effect unless and until such person or entity shall have assumed in writing
all of Lessor's obligations under this Lease Agreement and under the
agreements referred to in Article 21.3, with the exception of the Note and
the Rent Note, and shall have agreed in writing to cure any defaults and
breaches hereunder and thereunder. In the event that the Bayonne Facility is
assigned, sold, transferred, leased or subleased to any other party, which
action would affect Lessor's ability to fulfill its obligations under the
Steam Sale Agreement, the Purchase and Sale Agreement, the Easement or the
SPF Lease, the Lessor may not do so unless the assignee, buyer, transferee,
lessee or sublessee assumes Lessor's obligations under the foregoing
agreements.
41
-35-
21.5 Notwithstanding any such assignment by Lessor or Lessee, the
assignor shall remain fully liable for its obligations hereunder.
21.6 No Financier succeeding to Lessee's rights under this Lease
Agreement by reason of the exercise of its remedies against Lessee under a
leasehold mortgage or security agreement shall be required to cure any
defaults under, or assume Lessee's obligations under, any agreement (other
than this Lease Agreement, the Rent Note, the first $2,400,000.00 of
installments of principal, with interest thereon, under the Note, and the
obligations under Article 21.7(2) of this Lease Agreement) in order to
succeed to Lessee's interest under this Lease Agreement. If a Financier
does not cure defaults under, and assume Lessee's obligation under, all such
other agreements, no subsequent assignee of a Financier shall be obligated
to do so and Lessor shall not be obligated to such Financier or any
subsequent assignee of a Financier under any of such agreements. A Financier
shall be entitled to the rights accorded to a Financier under Article 15 of
this Lease Agreement in performing its obligations under Articles 21.6 and
21.7.
21.7 During the period beginning on the date of execution of this Lease
Agreement and ending at the expiration of the Base Term of the Steam Sale
Agreement as specified therein, a Financier may not assume Lessee's
obligations and rights under this Lease Agreement, unless, within ninety
(90) days following
42
-36-
the date on which it has commenced the exercise of its remedies against
Lessee, the Financier either:
(1) assumes all of the Lessee's obligations under the agreements
referred to in Article 21.3 in which event any termination of any
such instrument by Lessor or any exercise by Lessor of its rights
thereunder shall be null and void and such instruments shall be
reinstated, or
(2) agrees to pay to Lessor on or before the beginning of each
remaining Annual Period, up to the end of the Tenth Annual Period
following the Date of Initial Commercial Operation, the amount of
$500,000.00 as Additional Rent for such period, except that:
(i) with respect to the Annual Period during which such
Financier has commenced its remedies against Lessee, the
amount payable shall be determined by multiplying
$500,000.00 by a factor, which shall be equal to one (1)
minus a fraction the numerator of which is the number of k
lbs. of steam which was furnished by Lessee to Lessor under
the Steam Sale Agreement during such Annual Period up to and
including the expiration of such ninety (90) day period (but
in no event
43
-37-
greater than 450,000 k lbs. for purposes of this
calculation), and the denominator of which is 450,000 k lbs.
of steam; and
(ii) the Financier may terminate this Lease Agreement and its
obligations hereunder prior to the end of the Tenth Annual
Period following the Date of Initial Commercial Operation by
giving written notice to the Lessor of its election to
terminate the Lease Agreement 90 days prior to the beginning
of any remaining Annual Period for which it would otherwise
be obligated to pay rent under this Article 21.7(2) and
thereafter, the Financier shall have no future obligation to
pay any further rent under this Article 21.7(2).
If within such ninety (90) day period, the Financier does not assume all of
Lessee's obligations referred to in Article 21.7(l) or does not agree to pay
the Additional Rent pursuant to Article 21.7(2), this Lease Agreement shall
terminate effective as of the end of such ninety (90) day period.
44
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ARTICLE 22
MISCELLANEOUS
22.1 Duplicates; Recordation. The Parties will at any time, at the
request of either Party, promptly execute duplicate originals of an
instrument, in recordable form, which will constitute a short form of this
Lease Agreement, setting forth a description of the Demised Premises, the
term of the Lease Agreement and any other portions thereof, excepting the
rental provisions, as either Party may request.
22.2 Consent Not to be Unreasonably Withheld. Whenever the Lessee
requests any consent, permission, or approval which may be required or
desired by the Lessee pursuant to the provisions hereof, the Lessor shall
not unreasonably withhold or postpone the grant of such consent, permission,
or approval.
22.3 Termination of Preexisting Lease. By executing this Lease
Agreement, BI and IMTT hereby terminate any leasehold interest that may
exist with regard to the Demised Premises and such leasehold interest shall
hereafter be of no force and effect.
22.4 Covenants Running with Land. All covenants, promises, conditions,
and obligations herein contained or implied by law are covenants running
with the land and shall attach and bind and inure to the benefit of the
Lessor and Lessee and their respective successors and assigns, except as
otherwise provided herein.
45
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22.5 Notice. All notices, including communications and statements which
are required or permitted under the terms of this Lease Agreement, shall be
in writing, except as otherwise provided. Service of a notice may be
accomplished by personal service, telegram or registered or certified mail.
If a notice is sent by registered or certified mail, it shall be deemed
served within three (3) days, excluding Saturdays, Sundays or legal Federal
holidays, except as otherwise demonstrated by a signed receipt. If a notice
is served by telegram, it shall be deemed served eighteen (18) hours after
delivery to the telegram company. Notices may be sent to the Parties at the
following addresses:
(a) Lessee: Cogen Technologies NJ, Inc.
00000 Xxxxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attn: Xx. Xxxxxx X. XxXxxx
President
With information copy to:
Cogen Technologies NJ, Inc.
Foot of X. 00xx Xxxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Attn: Plant Manager
(b) Lessor: IMTT-Bayonne
Foot of X. 00xx Xxxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxx Xxxxxxx
or
International-Matex Tank Terminals
Ninth Floor
000 Xx. Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxxx
Partnership Manager
46
-40-
22.6 Amendments. No amendment or modification of the terms of this
Lease Agreement shall be binding on either the Lessor or Lessee unless
reduced to writing and signed by both Parties.
22.7 Choice of Law. This Lease Agreement shall be governed by and
construed in accordance with the laws of the State of New Jersey.
22.8 Severability. Should any part of this Lease Agreement, for any
reason, be declared invalid, such decision shall not affect the validity of
the remaining portions, which remaining portions shall remain in force and
effect as if this Lease Agreement had been executed with the invalid portion
thereof eliminated, and it is hereby declared the intention of the Parties
hereto that they would have executed the remaining portion of this Lease
Agreement without including therein any such part, parts or portion which
may for any reason be hereafter declared invalid. Notwithstanding the
foregoing sentence, should any term or provision of this Lease Agreement, be
found invalid by any court or regulatory body having jurisdiction thereover,
the Parties shall immediately renegotiate such term or provision of the
Lease Agreement to eliminate such invalidity.
22.9 Other Agreements. This Lease Agreement supercedes any and all
oral or written agreements and understandings heretofore made relating to
the subject matters herein, and this Lease Agreement constitutes the entire
agreement and understanding of the Parties relating to the subject matters
herein.
47
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22.10 Captions. All indices, titles, subject headings, section titles
and similar items are provided for the purpose of reference and convenience
and are not intended to be inclusive, definitive or to affect the meaning,
content or scope of this Lease Agreement.
IN WITNESS WHEREOF the Parties have entered into this Lease Agreement
to be signed in quadruplicate original as of the date first written above.
[SEAL]
ATTEST: BAYONNE INDUSTRIES, INC.
/s/ XXXXXXXX X. XXXXXXXX BY: /s/ XXXXXXX X. XXXXXXXX
--------------------------- ------------------------------
Xxxxxxxx X. Xxxxxxxx Xxxxxxx X. Xxxxxxxx
Assistant Secretary Executive Vice President/
Secretary
WITNESS: IMTT-BAYONNE
/s/ XXXXXXXX X. XXXXXXXX BY: /s/ XXXXXXX X. XXXXXXXX
--------------------------- ------------------------------
Xxxxxxxx X. Xxxxxxxx Xxxxxxx X. Xxxxxxxx
Secretary
[SEAL]
ATTEST: COGEN TECHNOLOGIES NJ, INC.
/s/ XXXX X. XXXX BY: /s/ XXXXXX X. XXXXXX
--------------------------- ------------------------------
Xxxx X. Xxxx Xxxxxx X. XxXxxx
Assistant Secretary President
48
STATE OF NEW YORK :
ss.:
COUNTY OF NEW YORK :
BE IT REMEMBERED, that on this 22nd day of May, 1986, before me, the
subscriber, a notary public personally appeared Xxxxxxx X. Xxxxxxxx, who,
being by me duly sworn on his oath, deposed and made proof to my
satisfaction that he is the Executive Vice-President of Bayonne Industries,
Inc., and the person who has signed the within instrument; and I having
first made known to him the contents thereof, he did acknowledge that he
signed, sealed with the proper corporate seal and delivered the same as such
officer on behalf of the corporation as its voluntary act and deed, made by
virtue of authority from its board of directors, for the uses and purposes
therein expressed.
/s/ [ILLEGIBLE]
-----------------------------
[ILLEGIBLE]
STATE OF NEW YORK :
ss.:
COUNTY OF NEW YORK :
BE IT REMEMBERED, that on this 22nd day of May, 1986, before me, the
subscriber, a notary public personally appeared Xxxxxx X. XxXxxx, who, being
by me duly sworn on his oath, deposed and made proof to my satisfaction that
he is the President of Cogen Technologies NJ, Inc., and the person who has
signed the within instrument; and I having first made known to him the
contents thereof, he did acknowledge that he signed, sealed with the proper
corporate seal and delivered the same as such officer on behalf of the
corporation as its voluntary act and deed, made by virtue of authority from
its board of directors, for the uses and purposes therein expressed.
/s/ [ILLEGIBLE]
-----------------------------
[ILLEGIBLE]
00
XXXXX XX XXX XXXX :
ss.:
COUNTY OF NEW YORK :
BE IT REMEMBERED, that on this 22nd day of May, 1986, before me, the
subscriber, personally appeared Xxxxxxx X. Xxxxxxxx, who, being by me duly
sworn on his oath, deposed and made proof to my satisfaction that he is an
authorized signatory of IMTT-Bayonne, the partnership named in the within
instrument; and I having first made known to him the contents thereof, he
did acknowledge that he signed, sealed and delivered the same as such
authorized signatory on behalf of the partnership as its voluntary act and
deed, being duly authorized to do so under the partnership, agreement, for
the uses and purposes therein expressed.
/s/ [ILLEGIBLE]
-----------------------------
[ILLEGIBLE]
50
EXHIBIT A
DESCRIPTION OF A PORTION OF
PARCEL 007A
CITY OF BAYONNE, XXXXXX COUNTY, NEW JERSEY
BEGINNING at a point in the easterly right-of-way line of Ramp A where the
same is intersected by the southeasterly right-of-way line of the Xxxxxx
Avenue Branch Rail Road as depicted on a map entitled "New Jersey Department
of Transportation General Property Parcel Map, Route 169 (1953), Section 2,"
dated July 1977, Sheet 7 of 14 and from said point running; thence,
1. Curving to the right in a northeasterly line direction, along said
southeasterly right-of-way line of the Xxxxxx Avenue Branch Rail Road,
along a curve having a radius of 443.37 feet and an arc length of
274.21 feet to a point, said curve having a cord bearing of North 48
degrees 07' 05.4" East; thence,
2. North 75 degrees 59' 11" East, along the southerly line of lands now or
formerly Conrail, distant 746.44 feet to a point and a proposed lease
line; thence,
3. South 14 degrees 00' 49" East, distant 214.11 feet to a point on lands
now or formerly Bayonne Industries; thence,
4. South 75 degrees 59' 11" West, along said line of lands now or formerly
Bayonne Industries, distant 945.00 feet to a point marked by a
monument; thence,
5. North 38 degrees 28' 06" West, distant 96.64 feet to the above
described point or place of BEGINNING.
Containing 4.54 acres of land.
The above description is for a piece of property being a portion of Parcel
007A to be leased from Bayonne Industries.
Revised May 1985
51
EXHIBIT B
52
EXHIBIT C
GNP DEFLATOR
Example
Current rate Revised rate
------------ ------------
$5,000 $5,204
Calculations
------------
Billions of Dollars
1983 1984
---------- ----------
X. Xxxxx National Product
A. Current dollars $3,401.6 $3,774.7
B. Constant (in this
case 1982) dollars 3,275.2 3,492.0
II. Deflator (A/B) 1.38593 1.080956
III. Percentage increase
1.080956 - 1.038593 0.042363
------------------- = -------- 0.040789
1.038593 1.038593
IV. Comments
A. The revised rate is the percentage increase as calculated above and
applied to the current rate.
B. See U.S. Dept. of Commerce, Bureau of Economic Analysis publication
"Survey of Current Business" for December, 1985, Tables 1.1 and 1.2,
page 20.
C. See "Federal Reserve Bulletin" for February, 1986, Table 2.16, page
A51.
