EXHIBIT 10.72
AMENDED AND RESTATED
SITE LEASE
Dated as of December 18, 1996
between
PANDA-BRANDYWINE, L.P.,
as Site Lessor
and
FLEET NATIONAL BANK
(not in its individual capacity but
solely as Owner Trustee),
as Site Lessee
______________________________
Real Property Located in the County of
Prince George's, Maryland
______________________________
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS 1
ARTICLE II
LEASE OF SITE; TERM;
ELECTION TO TERMINATE; REMOVAL 2
SECTION 2.1. Lease of Site; Term 2
SECTION 2.2. Election to Terminate 2
ARTICLE III
TITLE; SEVERANCE AGREEMENT 3
SECTION 3.1. Title 3
SECTION 3.2. Severance Agreement 3
ARTICLE IV
RENTAL PAYMENTS 3
SECTION 4.1. Rental Payments 3
SECTION 4.2. Method of Payment 4
ARTICLE V
RETURN OF SITE 4
ARTICLE VI
QUIET ENJOYMENT 4
ARTICLE VII
USE OF SITE 5
ARTICLE VIII
EASEMENTS 5
SECTION 8.1. Grant of Easements 5
SECTION 8.2. Exercise of Easements 5
SECTION 8.3. Dedications; Joinder in Recording 5
SECTION 8.4. Termination 6
SECTION 8.5. Easements Appurtenant; No Interference 6
ARTICLE IX
LIENS 6
ARTICLE X
UNDERTAKINGS OF SITE LESSOR 7
SECTION 10.1. Sufficiency of Site Lease; Maintenance 7
SECTION 10.2. Site Lessor to Defend Title 7
ARTICLE XI
TAXES AND CLAIMS 7
SECTION 11.1. Before Lease Termination Date 7
SECTION 11.2. After Lease Termination Date 7
SECTION 11.3. Apportionment 8
SECTION 11.4. Indemnification 8
SECTION 11.5. Additional Indemnification by Site Lessor 9
SECTION 11.6. Survival 9
ARTICLE XII
INSURANCE 10
ARTICLE XIII
CONDEMNATION 10
ARTICLE XIV
SITE LEASE DEFAULTS; REMEDIES 10
ARTICLE XV
SUBLEASE; ASSIGNMENT 11
ARTICLE XVI
LIMITATION OF LIABILITY 12
ARTICLE XVII
NOTICES 13
ARTICLE XVIII
BINDING EFFECT 13
ARTICLE XIX
MISCELLANEOUS 13
SECTION 19.1. Severability 13
SECTION 19.2. Amendments 13
SECTION 19.3. Headings 14
SECTION 19.4. Counterparts 14
SECTION 19.5. GOVERNING LAW 14
SECTION 19.6. No Merger 14
SECTION 19.7. Recording 14
SECTION 19.8. Assignment to Indenture Trustee 14
SECTION 19.9. Certain Rights of Power Purchaser 15
SECTION 19.10. Subordination 16
Schedule 1 Legal Description of Site
Exhibit A Memorandum of Lease
AMENDED AND RESTATED SITE LEASE
AMENDED AND RESTATED SITE LEASE (this "Site Lease")
dated as of December 18, 1996 between PANDA-BRANDYWINE, L.P., a
Delaware limited partnership having an address at 0000 Xxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, as lessor (the
"Partnership" or "Site Lessor"), and FLEET NATIONAL BANK
(formerly known as Shawmut Bank Connecticut, National
Association), a national banking association, not in its
individual capacity but solely as Owner Trustee under the Trust
Agreement (as defined in the Participation Agreement referred to
below), as lessee (the "Owner Trustee" or "Site Lessee"), having
an address at 000 Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000.
RECITALS:
A. Site Lessor is the owner of the Site (as defined
below).
B. Site Lessor and Site Lessee have entered into that
certain Site Lease dated as of March 30, 1995 (the "Original Site
Lease") pursuant to which, Site Lessor leased to Site Lessee, and
Site Lessee leased from Site Lessor, the Site together with Site
Lessor's interest in the Easements, upon the terms and conditions
set forth in the Original Site Lease. A memorandum of the
Original Site Lease has been recorded among the Land Records of
Prince George's County, Maryland and the Land Records of Xxxxxxx
County, Maryland (the "Land Records") and all appropriate
transfer and recording taxes have been paid. Site Lessor and
Site Lessee have amended the Original Site Lease pursuant to a
First Amendment to Site Lease dated as of October 30, 1996 (the
"First Amendment") and a Second Amendment to Site Lease dated as
of December 18, 1996 (the "Second Amendment") (the Original Site
Lease, as amended by the First Amendment and the Second
Amendment, the "Existing Site Lease"). The First Amendment and
the Second Amendment released Site Lessor's interest in the
Easements from the premises demised by the Existing Site Lease.
A First Amendment to Memorandum of Lease dated as of October 30,
1996 and a Second Amendment to Memorandum of Lease dated as of
December 18, 1996 have been recorded in the Land Records.
C. Site Lessor and Site Lessee have agreed to amend
and restate the Existing Site Lease as provided herein.
AGREEMENT:
In consideration of the mutual agreements herein
contained and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Site Lessor and
Site Lessee, intending to be legally bound hereby, hereby agree
to amend and restated the Existing Site Lease as follows:
ARTICLE I
DEFINITIONS
For purposes of this Site Lease, capitalized terms used
herein and not otherwise defined herein shall have the respective
meanings assigned to them in Annex A to the Participation
Agreement, dated as of the date hereof (as the same may be
amended, supplemented or otherwise modified from time to time,
the "Participation Agreement"), among Site Lessor, the Panda
Brandywine Corporation, General Electric Capital Corporation,
Site Lessee, the Security Agent, Credit Suisse, as administrative
agent (the "Administrative Agent"), First Security Bank, National
Association (not in its individual capacity but solely as
indenture trustee (in such capacity, the "Indenture Trustee")
under the Indenture) and the other entities listed on Schedule I
to the Participation Agreement (the "Loan Participants") (such
definitions to be equally applicable to both the singular and
plural forms of the terms defined). Any term defined by
reference to an agreement, instrument or other document shall
have the meaning so assigned to it whether or not such document
is in effect. Unless otherwise indicated, references in this
Site Lease to sections, paragraphs, clauses, appendices,
schedules and exhibits are to the same contained in or attached
to this Site Lease.
ARTICLE II
LEASE OF SITE; TERM;
ELECTION TO TERMINATE; REMOVAL
SECTION 2.1. Lease of Site; Term. Site Lessor hereby
leases and demises to Site Lessee, and Site Lessee hereby leases
and hires from Site Lessor, upon and subject to the terms and
conditions hereof, the parcels of land described in Schedule 1
hereto (the "Site"), TO HAVE AND TO HOLD for a term (the "Site
Lease Term") which shall commence on the date hereof and shall
expire on the earlier of (i) November 1, 2037, and (ii) the
termination of the Facility Lease pursuant to Section 9(c), 9(d)
or 12(b) thereof.
SECTION 2.2. Election to Terminate. Site Lessee may
at any time following the Lease Termination Date at its option,
terminate this Site Lease and the Site Lease Term upon payment of
$1 to Site Lessor. Upon such termination all of Site Lessee's
obligations and liabilities hereunder, including its obligation
to make rental payments hereunder, shall automatically terminate.
ARTICLE III
TITLE; SEVERANCE AGREEMENT
SECTION 3.1. Title. Site Lessor warrants and
represents that (a) it has good and marketable and indefeasible
fee simple title in and to the Site and (b) upon execution and
delivery of this Site Lease, Site Lessee will have (i) good
leasehold title in and to the Site and (ii) good title to the
easements granted to it pursuant to Article VIII hereof, in each
case free and clear of all liens and encumbrances except for
Permitted Liens. Site Lessor further warrants and represents
that such Permitted Liens do not and will not materially
adversely affect the use of the Site, the Facility, and the
easements granted to Site Lessee pursuant to Article VIII hereof,
as contemplated by the Participation Agreement, the Facility
Lease and the other Financing Documents.
SECTION 3.2. Severance Agreement. It is the
intention of Site Lessor and Site Lessee that the Facility and
each portion thereof, and all repairs, replacements,
substitutions and additions thereto, whether now or at any time
hereafter located on the Site, are severed, and shall remain
severed, from the Site even if physically attached, are and shall
remain personal property, and are not and shall not be fixtures
or an accession to the Site, the title thereto being separate and
distinct from the title to the Site, and shall be treated as
personal property with respect to the rights of all Persons
whatsoever and for all purposes of the Participation Agreement,
this Site Lease, the Site Sublease, and the Facility Lease, and
title to the Facility shall not, except as specifically
contemplated by the Financing Documents, be affected in any way
by any instrument dealing with the Site or any part thereof.
Notwithstanding the foregoing, if contrary to the intention of
Site Lessor and Site Lessee, any Governmental Authority with
jurisdiction over the Site determines that any portion of the
Facility is a fixture or accession to the Site, such portion of
the Facility shall constitute part of the Site being leased
hereunder.
ARTICLE IV
RENTAL PAYMENTS
SECTION 4.1. Rental Payments. For the period
commencing on the date hereof and ending on the earlier of (x)
the end of the Site Lease Term and (y) the Lease Termination Date
(but only if on such Lease Termination Date, no Event of Default
or Lease Event of Default shall have occurred and be continuing),
the rent payable by Site Lessee hereunder for the lease of the
Site and the grant of the easements granted pursuant to Article
VIII hereof shall be $1 per year. Site Lessee agrees to pay the
sum of $20 towards such rent in advance upon the execution of
this Site Lease. After the Lease Termination Date (but only if
on such Lease Termination Date, no Event of Default or Lease
Event of Default shall have occurred and be continuing) to the
end of the Site Lease Term, Site Lessee shall pay to Site Lessor,
for the lease of the Site and the grant of the easements granted
pursuant to Article VIII hereof, the Fair Market Rental Value of
the Site and the grant of the easements granted pursuant to
Article VIII hereof, for such period. Such rent shall be payable
quarterly in arrears during the period commencing on the Lease
Termination Date (but only if on such Lease Termination Date, no
Event of Default or Lease Event of Default shall have occurred
and be continuing) and ending on the last day of the Site Lease
Term.
SECTION 4.2. Method of Payment. Rental payments
(other than the rental payment made on the date hereof) shall be
paid to Site Lessor to a bank account with a bank designated by
Site Lessor. Each such payment shall be made by Site Lessee in
immediately available funds by 12:00 noon, New York City time, on
the scheduled date on which such payment shall be due, unless
such scheduled date shall not be a Business Day, in which case
such payment shall be due and payable on the next succeeding
Business Day.
ARTICLE V
RETURN OF SITE
On the last day of the Site Lease Term, Site Lessee
shall peaceably and quietly surrender possession of the Site to
Site Lessor free and clear of all liens and encumbrances except
for Permitted Liens.
ARTICLE VI
QUIET ENJOYMENT
Site Lessor warrants and covenants that neither it nor
any of its successors or assigns shall disturb Site Lessee's
peaceful and quiet use and possession of the Site and will take
no action in violation of Site Lessee's rights to possession and
use of the Facility, the Site and the easements granted to Site
Lessee pursuant to Article VIII hereof in accordance with the
terms of this Site Lease and the other Financing Documents.
ARTICLE VII
USE OF SITE
Site Lessee shall use the Site only for legitimate
business purposes and, so long as the Power Purchase Agreement is
in full force and effect, in a manner consistent with the terms
thereof, and Site Lessee shall not use the Site or permit the
Site to be used for any unlawful use or any use that constitutes
a public or private nuisance upon the Site or any part thereof or
in any manner which will violate or breach the provisions of any
Governmental Actions. After the Lease Termination Date, upon the
request of Site Lessee, Site Lessor shall cooperate with Site
Lessee in obtaining the valid and effective issuance, or, as the
case may be, transfer or amendment of all Governmental Actions
necessary or, in the reasonable opinion of Site Lessee, desirable
for the ownership, operation and possession of the Site by Site
Lessee or any permitted transferee, lessee or assignee thereof of
the Facility or the possession and use of any property covered by
this Site Lease until the expiration or termination of the Site
Lease Term.
ARTICLE VIII
EASEMENTS
SECTION 8.1. Grant of Easements. Subject to the
provisions of Section 8.2 hereof, Site Lessor hereby covenants
and agrees to grant to Site Lessee from time to time such
easements, if any, in, to, over, under and across the lands, if
any, owned by Site Lessor adjacent to the Facility as Site Lessee
shall reasonably determine to be necessary or desirable in
connection with the construction, use, operation or maintenance
of the Facility.
SECTION 8.2. Exercise of Easements. Except as
otherwise provided under the Facility Lease, Site Lessee shall be
responsible for the construction, installation, maintenance and
repair of all improvements and equipment installed by it pursuant
to the easements referred to in this Article VIII.
SECTION 8.3. Dedications; Joinder in Recording.
The parties hereto shall each, to the extent necessary and to the
extent the same shall not result in the loss of compensation
otherwise obtainable from condemnation, join in the execution of
such instruments as may be required by any Governmental Authority
or Applicable Law in order to effectuate widenings of streets or
the installation of public utilities and similar utility
easements under and across portions of the Site. Each party
hereto shall comply, at the expense of Site Lessor, with each
reasonable request of the other party hereto to join in the
execution, delivery and recordation of such instruments as may be
required to locate a specific easement granted herein.
SECTION 8.4. Termination. The easements granted
pursuant to this Article VIII shall terminate at the end of the
Site Lease Term, and Site Lessee shall, upon request and at the
cost and expense of Site Lessor, execute and deliver such
instruments as Site Lessor may reasonably require to confirm the
termination of Site Lessee's interest therein.
SECTION 8.5. Easements Appurtenant; No
Interference. The easements granted to Site Lessee pursuant to
this Article VIII shall be deemed to be appurtenant to the Site
and shall be for the benefit of Site Lessee and its permitted
successors and assigns and any sublessee of the Site or any part
thereof. Site Lessor shall not grant or convey any easement or
other interest that, if used or enjoyed in accordance with its
terms, would interfere with the use and enjoyment of the
Facility, the Site or the easements granted pursuant to this
Article VIII or the operation of the Facility by Site Lessee (or
Lessee under the Facility Lease) or its successors, assigns or
sublessees at any time during the Site Lease Term.
ARTICLE IX
LIENS
From the date hereof until the Lease Termination Date,
Section 7(a) of the Facility Lease and subsection 7.4 of the
Participation Agreement shall apply with respect to Liens on or
with respect to the Site and the Site Lessee's title thereto or
interest therein. During the period, if any, from the Lease
Termination Date to the end of the Site Lease Term, (i) Site
Lessee will keep, or cause to be kept, the Site free and clear of
all Liens in favor of any Person claiming by, through or under
Site Lessee (excluding Site Sublessee under the Site Sublease and
any Person claiming by, through or under Site Sublessee) except
for Permitted Liens and Liens based upon amounts the payment of
which is either not yet delinquent or is bonded, provided that
Site Lessee shall not be required to discharge any such Lien
during any period that Site Lessee shall in good faith be
contesting the validity or the amount of any such Lien so long as
such contest shall not involve any substantial risk of any
material adverse effect on the ability of Site Lessee to perform
its obligations under this Site Lease, or any danger of civil or
criminal liability being imposed on Site Lessor, and (ii) Site
Lessor will keep, or cause to be kept, the Site and the easements
granted pursuant to Article VIII hereof free and clear of Liens
(other than Permitted Liens) in favor of any Person claiming by,
through or under Site Lessor.
ARTICLE X
UNDERTAKINGS OF SITE LESSOR
SECTION 10.1. Sufficiency of Site Lease; Maintenance.
Site Lessor covenants, represents and warrants to Site Lessee
that the Site is sufficient and will, at all times during the
Site Lease Term, be sufficient, or, if the same shall cease to be
so sufficient, Site Lessor will at its expense take such action,
including the conveyance of easements and the grant of common
facilities rights, as is reasonable or necessary, in order to
provide Site Lessee with reasonable means of connecting,
operating, maintaining, modifying, replacing, renewing, repairing
and removing the Facility. In addition, Site Lessor shall use
its reasonable efforts to provide fire and water systems
necessary to maintain, protect and preserve the Site and the
Facility. At all times during the Site Lease Term, Site Lessor,
at its expense, shall maintain the Site in accordance with
Applicable Laws and Prudent Utility Practice, so that it will be
available for the operation of the Facility, including, without
limitation, the maintenance of bridges, roads, equipment, pumps
and pipelines located on the Site.
SECTION 10.2. Site Lessor to Defend Title. Site Lessor
shall, at all times, at Site Lessor's cost and expense, warrant
and defend the leasehold estate in the Site and title to the
easements granted to Site Lessee pursuant to Article VIII hereof
conferred on Site Lessee by this Site Lease, as represented in
subsection 3.9 of the Participation Agreement.
ARTICLE XI
TAXES AND CLAIMS
SECTION 11.1. Before Lease Termination Date. During
the period from the date hereof until the Lease Termination Date,
Section 6.11 of the Participation Agreement and Section 7(a) of
the Facility Lease shall apply with respect to any and all Taxes
and Claims (as defined below) incurred or asserted in any way
relating to, or arising out of, the Site.
SECTION 11.2. After Lease Termination Date. During
the period, if any, from the Lease Termination Date to the end of
the Site Lease Term, Site Lessee shall pay or cause to be paid,
before delinquency, any and all Taxes (including, without
limitation, income and franchise taxes of Site Lessee or any
Affiliate of Site Lessee) assessed, levied, imposed upon or to
become due and payable out of or in respect of the use,
ownership, possession, operation, control or maintenance of the
Site, and Site Lessor shall pay or cause to be paid, before
delinquency, any and all other Taxes (including, without
limitation, income and franchise taxes of Site Lessor or any
Affiliate) in any way relating to or arising out of the Site;
provided, however, that neither Site Lessee nor Site Lessor shall
be required to pay any Tax payable by it pursuant to the
preceding provisions of this Section 11.2 if it shall be
contesting in good faith the validity thereof, so long as such
contest does not involve any risk of the sale, forfeiture,
interference with the use of or loss of any material part of the
Facility or the Site.
SECTION 11.3. Apportionment. If after the Lease
Termination Date and during the Site Lease Term, the Site shall
not be separately assessed but shall be assessed as part of a
larger tract of land, Site Lessor and Site Lessee shall apportion
any Tax resulting from such assessment. Site Lessee's
proportionate share of any such Tax shall be determined by
multiplying the amount of such Tax by a fraction, the numerator
of which shall be the acreage of the Site, and the denominator of
which shall be the acreage of all the land covered by such Tax.
Before the calculation of each party's proportionate share of
such Tax, the amount of any such Tax shall be reduced by an
amount equal to that amount of such Tax attributable to all
improvements located on the larger tract, inclusive of the Site
(including, but not limited to, the Facility). The amount of
Site Lessee's proportionate share of the Tax so calculated shall
be increased by the amount of the Tax allocable to those
improvements owned by Site Lessee and the amount of Site Lessor's
proportionate share of the Tax so calculated shall be increased
by the amount of the Tax allocable to those improvements owned by
Site Lessor. Site Lessor and Site Lessee shall each, on request
of the other, apply individually (if legally required) or join in
the other's application (if legally required) for separate
assessments for the Facility and the Site.
SECTION 11.4. Indemnification. During the period, if
any, from the Lease Termination Date to the end of the Site Lease
Term, Site Lessor and Site Lessee each agrees, subject to the
indemnification provisions of the Financing Documents, to assume
liability for and to indemnify, protect, save and keep harmless
the other party and the other party's permitted successors,
assigns, shareholders, officers, directors and agents, from and
against any and all liabilities, obligations, losses, damages,
penalties, claims, actions, suits, judgments, legal fees, costs,
expenses and disbursements, excluding Taxes (herein collectively
called "Claims"), incurred by or asserted against such other
party, whether or not such other party shall also be indemnified
as to any such Claim by any other Person, in any way relating to
or arising out of the conduct, operation or management of, or any
work, act or thing done in or on, or any accident, injury or
damage caused to any person or property in or on (i) the land
owned or occupied by Site Lessor adjacent to the Site, in the
case of Site Lessor or (ii) the Site, in the case of Site Lessee;
provided, however, that one party shall not be required to
indemnify the other party for (x) any Claim resulting from acts
which constitute the willful misconduct or gross negligence of
such other party or (y) any Claim resulting directly from a
transfer by such other party of all or part of its interest in
this Site Lease or the Site, other than to the party otherwise
indemnified or as a result of a Lease Event of Default or Site
Lease Event of Default. To the extent that one party, in fact,
receives indemnification payments from the other party under the
indemnification provisions of this Section 11.4, the indemnifying
party shall be subrogated, to the extent of such indemnity paid,
to such indemnified party's rights with respect to the
transaction or event requiring or giving rise to such indemnity.
SECTION 11.5. Additional Indemnification by Site
Lessor. Site Lessor hereby assumes liability for and agrees to
indemnify, protect, save and keep harmless Site Lessee and its
permitted successors, assigns, shareholders, officers, directors
and agents from and against any and all Claims in any way
relating to or arising out of the condition of the Site,
including, without limitation, those arising from any act of the
Site Lessor, (i) at the time Site Lessee enters into possession
thereof pursuant to this Site Lease and (ii) at any time prior to
the Lease Termination Date, but not with respect to any condition
caused by the gross negligence or willful misconduct of Site
Lessee. Without in any way limiting the obligation of Site
Lessor to indemnify and hold harmless Site Lessee herein or
pursuant to any other Financing Document, Site Lessor agrees to
indemnify, protect, save and keep harmless Site Lessee and its
successors, assigns, shareholders, officers, directors and agents
from and against all Claims (including response costs such as
clean-up, removal or mitigation costs) in any way relating to or
arising out of the presence or release of any Hazardous Substance
(i) on the Site (A) at the time Site Lessee enters into
possession thereof pursuant to the Site Lease and (B) at any time
prior to the Lease Termination Date or (ii) resulting, directly
or indirectly, from the activities of Site Lessor, its agents,
employees, affiliates or contractors.
SECTION 11.6. Survival. The obligations of Site
Lessor and Site Lessee under this Article XI shall survive the
expiration or termination of this Site Lease and are expressly
made for the benefit of, and shall be enforceable by, the
indemnified party. The extension of any applicable statute of
limitations by one party shall not affect the survival of the
other party's obligations, as the case may be, under this Article
XI. All payments required to be paid pursuant to this Article XI
shall be made directly to, or as otherwise required by, the
indemnified party upon written demand.
ARTICLE XII
INSURANCE
During the period, if any, from the Lease Termination
Date to the end of the Site Lease Term, Site Lessor and Site
Lessee shall maintain or cause to be maintained in effect, with
insurers of recognized responsibility, insurance policies with
respect to the Site, and any improvements or equipment installed
by such party pursuant to the easements referred to in Article
VIII, insuring against such loss or damage to the person and
property of others from such risks and in such amounts as owners
of similar properties maintain with respect to such property;
provided, however, that such party may self-insure against such
risks, by deductible provisions or otherwise, to the extent that
equally creditworthy responsible owners of similar properties
self-insure against such risks with respect to such property.
Any insurance policies maintained in accordance with the
preceding sentence shall name the other party as an additional
insured thereunder.
ARTICLE XIII
CONDEMNATION
If after the Lease Termination Date, all or a
substantial portion of the Site is condemned or transferred in
lieu of condemnation and the remainder is not sufficient to
permit operation of the Facility on a commercial basis, the Site
Lease Term shall terminate at the time title vests in the
condemning authority, and the net proceeds of the condemnation
shall be divided between Site Lessor and Site Lessee in
proportion to the Fair Market Sales Values of their respective
interests in the property condemned. If an insubstantial portion
of the Site is condemned at any time, the Site Lease Term shall
not terminate and the net proceeds of the condemnation shall be
used first to restore the Site, with the balance divided between
Site Lessor and Site Lessee in proportion to the Fair Market
Sales Values of their interests in the property condemned. For
the purposes of this Article XIII the net proceeds of a
condemnation shall mean the total condemnation proceeds less the
costs and expenses incurred in connection with the condemnation
(including legal fees).
ARTICLE XIV
SITE LEASE DEFAULTS; REMEDIES
The term "Site Lease Default", whenever used herein,
shall mean the following event but only if such event occurs
after the Lease Termination Date:
Site Lessee shall fail to pay rent pursuant to Section
4.1 hereof, shall fail to comply with the provisions of
Article IX hereof or shall fail to pay any amounts under
Section 11.2, Section 11.4 and Article XII hereof within 15
days after payment thereof shall have become due and
demanded by Site Lessor.
Upon the occurrence of a Site Lease Default and so long
as the same shall be continuing, Site Lessor may, at its option,
declare this Site Lease to be in default by written notice to
such effect given to Site Lessee and at any time thereafter, so
long as Site Lessee has not remedied all continuing Site Lease
Defaults, Site Lessor may exercise the following remedies, as
Site Lessor in its sole discretion shall elect:
Site Lessor may exercise any right or remedy that may
be available to it under Applicable Law (including, without
limitation, the offsetting of any sums owing to Site Lessor
hereunder against sums owing by Site Lessor in its capacity
as lessee under the Facility Lease) or proceed by
appropriate court action to enforce the terms hereof or to
recover damages for the breach hereof except that Site
Lessor shall not exercise any right or remedy that may be
available to it hereunder or at law or in equity to rescind
or terminate this Site Lease or take possession of the Site
or the easements granted pursuant to Article VIII hereof.
ARTICLE XV
SUBLEASE; ASSIGNMENT
Site Lessee will not sublease the Site or assign this
Site Lease, except that:
(a) Site Lessee may sublease the Site to the
Partnership (the "Site Sublessee") pursuant to the Site
Sublease; and
(b) At any time after the Lease Termination Date or
the Facility Lease has been declared to be in default
pursuant to Section 15 thereof, Site Lessee may sublease the
Site or assign this Site Lease or any rights hereunder to
any Person in connection with the sale or lease or other
disposition of the Facility or any interest therein to such
Person.
Upon the assumption by any assignee of the obligations of Site
Lessee hereunder, the Site Lessee so assigning shall be
automatically released from such obligations.
ARTICLE XVI
LIMITATION OF LIABILITY
16.1 Partnership. There shall be full recourse to the
Partnership and all of its assets for the liabilities of the
Partnership under this Site Lease, but in no event shall any
Partner, Affiliate of any Partner, or any officer, director or
employee of the Partnership, any Partner or their Affiliates or
any holder of any equity interest in any Partner be personally
liable or obligated for such liabilities of the Partnership,
except as may be specifically provided in any other Financing
Document to which such Partner is a party or in the event of
fraudulent actions, knowing misrepresentations, gross negligence
or willful misconduct by the Partnership, any Partner or any of
their Affiliates in connection with this Site Lease. Subject to
the foregoing limitation on liability, Site Lessee may xxx or
commence any suit, action or proceeding against any Partner or
any Affiliate in order to obtain jurisdiction over the
Partnership to enforce its rights and remedies hereunder.
Nothing herein contained shall limit or be construed to limit the
liabilities and obligations of any Partner or Affiliate thereof
in accordance with the terms of any other Financing Document
creating such liabilities and obligations to which such Partner
or Affiliate is a party.
16.2 Owner Trustee. Fleet National Bank is entering
into this Site Lease solely as Owner Trustee under the Trust
Agreement and not in its individual capacity. Accordingly,
except as may be expressly provided to the contrary, each of the
representations, warranties, undertakings and agreements herein
made on the part of the Site Lessee, is made and intended not as
a personal representation, warranty, undertaking or agreement by
or for the purpose or with the intention of binding Fleet
National Bank personally, but is made and intended for the
purpose of binding only the Trust Estate. This Site Lease is
executed and delivered by the Site Lessee solely in the exercise
of the powers expressly conferred upon it as trustee under the
Trust Agreement; and no personal liability or responsibility is
assumed hereunder by or shall at any time be enforceable against
Fleet National Bank or any successor in trust on account of any
action taken or omitted to be taken or any representation,
warranty, undertaking or agreement hereunder of the Site Lessee,
either expressed or implied, all such personal liability, if any,
being expressly waived by the parties hereto, except that the
parties hereto, or any Person acting by, through or under them,
making a claim hereunder, may look to the Trust Estate for
satisfaction of the same and Fleet National Bank or its successor
in trust, as applicable, shall be personally liable for its own
gross negligence or willful misconduct in the performance of its
duties as Owner Trustee or otherwise.
ARTICLE XVII
NOTICES
Unless otherwise specifically provided for herein, all
notices, consents, directions, approvals, instructions, requests
and other communications required or permitted by the terms
hereof to be given to each party hereto shall be in writing, and
shall become effective when delivered in the manner and to the
address specified in the Participation Agreement.
ARTICLE XVIII
BINDING EFFECT
The terms and provisions of this Site Lease and the
respective rights and obligations hereunder of Site Lessee and
Site Lessor shall be binding upon, and inure to the benefit of,
their respective permitted successors and assigns. Site Lessor
agrees that in the event of the appointment of any successor
trustee or additional trustee pursuant to the terms of the Trust
Agreement and the Participation Agreement which succeeds to the
rights, duties, powers and title of the lessor under the Facility
Lease and Site Lessee hereunder, respectively, such successor
trustee or additional trustee shall succeed to all the rights,
duties, powers and titles of Site Lessee hereunder (or to such
lesser extent as provided for in the appointment of such
successor trustee or additional trustee) without the necessity of
any consent or approval by Site Lessor and without in any way
altering the terms of this Site Lease or Site Lessee's
obligations hereunder. Site Lessee shall give Site Lessor prompt
written notice of any appointment of a successor trustee or
additional trustee.
ARTICLE XIX
MISCELLANEOUS
SECTION 19.1. Severability. Any provision of this
Site Lease that shall be prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof and any such
prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the
parties hereto hereby waive any provision of law that renders any
provision hereof prohibited or unenforceable in any respect.
SECTION 19.2. Amendments. Neither this Site Lease nor
any of the terms hereof may be terminated, amended, supplemented,
waived or modified other than (x) by an instrument in writing
signed by the party against which the enforcement of the
termination, amendment, supplement, waiver or modification shall
be sought and (y) pursuant to the provisions of the Participation
Agreement.
SECTION 19.3. Headings. The headings of the various
Articles and Sections of this Site Lease are for convenience of
reference only and shall not modify, define or limit any of the
terms or provisions hereof.
SECTION 19.4. Counterparts. This Site Lease may be
executed by the parties hereto in separate counterparts, each of
which when so executed and delivered shall be an original, but
all such counterparts shall together constitute but one and the
same instrument.
SECTION 19.5. GOVERNING LAW. THIS SITE LEASE SHALL IN
ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF MARYLAND.
SECTION 19.6. No Merger. There shall not be any
merger of the leasehold estate created hereunder with the fee
estate in the Site or any part thereof or with any other estate
in the Site by reason of the fact that the same Person may
simultaneously acquire, own or hold, as the case may be, directly
or indirectly, (a) the leasehold estate created hereunder or any
interest in or Lien upon the leasehold estate created hereunder,
and (b) the fee estate in the Site or any part thereof or any
other estate in the Site or any interest in or Lien upon such fee
estate or upon such other estate in the Site, unless and until
all Persons having any interest in or Lien upon (i) the leasehold
estate created hereunder and (ii) the fee estate in the Site or
any part thereof or such other interest in the Site, shall join
in a written instrument effecting such merger and shall duly
record the same among the Land Records of Prince George's County,
Maryland.
SECTION 19.7. Recording. Site Lessor and Site Lessee
have recorded among the Land Records a Memorandum of Lease, a
First Amendment to Memorandum of Lease and a Second Amendment to
Memorandum of Lease reflecting the terms of the Existing Site
Lease. Site Lessor and Site Lessee agree that an Amended and
Restated Memorandum of Lease substantially in the form annexed
hereto as Exhibit A shall be recorded among the Land Records of
Prince George's County, Maryland, as soon as possible after the
execution hereof. The memorandum shall expressly state that it
is executed pursuant to provisions contained in this Site Lease,
and is not intended to vary the terms and conditions hereof.
SECTION 19.8. Assignment to Indenture Trustee. In
order to secure the indebtedness evidenced by the Loan
Certificates and certain other obligations as provided in the
Indenture, the Indenture provides, among other things, for the
assignment by the Site Lessee to the Indenture Trustee of all of
its right, title and interest in, to and under this Site Lease,
to the extent set forth in the Indenture, and for the creation of
a Lien on and security interest in the Lessor's Estate in favor
of the Indenture Trustee, and in furtherance thereof, Site Lessor
and Site Lessee have entered into the Security Deposit Agreement.
Site Lessor hereby acknowledges and consents to such assignment
and such security interest and hereby acknowledges that to the
extent set forth in the Indenture, the Indenture Trustee shall
have the right in its own name (in certain cases together with
the Site Lessee and in other cases to the exclusion of the Site
Lessee, all as set forth in Section 3.10 of the Indenture) to
take or refrain from taking action under this Site Lease,
including the right (i) of the Site Lessee to exercise any
election or option, and to make any decision or determination,
and to give any notice, consent, waiver or approval under this
Site Lease or in respect thereof, (ii) to exercise any and all of
the rights, powers and remedies of the Site Lessee hereunder and
(iii) to receive all moneys payable to the Site Lessee under this
Site Lease. Site Lessor will make all payments in accordance
with the Security Deposit Agreement.
SECTION 19.9. Certain Rights of Power Purchaser.
Nothing in this Site Lease shall be deemed to limit the
provisions of the Consent of the Power Purchaser, which
provisions are solely for the benefit of the Power Purchaser and
not the Site Lessee. Without limiting the scope of the
foregoing, Site Lessor agrees, for the exclusive benefit of the
Power Purchaser and not the Site Lessee, that the exercise of
remedies or any similar action under this Site Lease is subject
to, and shall be conducted in a manner consistent with, the Power
Purchaser's rights under (i) the Consent of the Power Purchaser
and (ii) the Power Purchase Agreement and the Transfer Agreement
(to the extent such rights under the Power Purchase Agreement and
the Transfer Agreement are not explicitly waived by the Power
Purchaser in accordance with the terms of the Consent of the
Power Purchaser).
SECTION 19.10. Subordination. Site Lessor and Site
Lessee hereby acknowledge and agree that this Site Lease is
subordinate to the terms of the Deed of Trust and Security
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their respective
officers thereunto duly authorized as of the day and year first
above written.
PANDA-BRANDYWINE, L.P.
By: Panda Brandywine Corporation,
its general partner
By: ________________________
Name:
Title:
FLEET NATIONAL BANK,
not in its individual capacity but
solely as Owner Trustee
By: _____________________________
Name:
Title:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
PERSONALLY APPEARED on this ___ day of December, 1996
the above-named _________________, _______________, of FLEET
NATIONAL BANK, a national banking association, as Owner Trustee,
and acknowledged the foregoing to be his free act and deed in his
said capacity and the free act and deed of said FLEET NATIONAL
BANK, as Owner Trustee.
Notary Public
Type or print name:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
PERSONALLY APPEARED on this ___ day of December, 199
the above-named ______________, ________________ of PANDA
BRANDYWINE CORPORATION, the general partner of PANDA-BRANDYWINE,
L.P., a Delaware limited partnership, and acknowledged the
foregoing to be his free act and deed in his said capacity and
the free act and deed of said PANDA BRANDYWINE CORPORATION, and
PANDA-BRANDYWINE, L.P.
Notary Public
Type or print name:
Schedule 1
DESCRIPTION OF SITE
Exhibit A to Site Lease
AMENDED AND RESTATED
MEMORANDUM OF LEASE
Notice is hereby given of the following AMENDED AND
RESTATED SITE LEASE:
SITE LESSOR: PANDA-BRANDYWINE, L.P., a Delaware limited
partnership having an address at 0000 Xxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000.
SITE LESSEE: FLEET NATIONAL BANK (formerly known as
Shawmut Bank Connecticut, National
Association), a national banking association,
not in its individual capacity but solely as
owner trustee, having an address at 000 Xxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000.
DATE OF EXECUTION: As of March 30, 1995, as amended by a First
Amendment dated as of October 30, 1996 and a
Second Amendment dated as of December 18,
1996, and as amended and restated as of
December 18, 1996 by an Amended and Restated
Site Lease.
LEASED PREMISES: Parcels of land described in Schedule 1
attached (the "Site") located in Prince
George's County Maryland.
It is the intention of the Site Lessor and
the Site Lessee that the Facility (as defined
in the Site Lease) and each portion thereof,
and all repairs, replacements, substitutions
and additions thereto, whether now or at any
time hereafter located on the Site, are severed,
and shall remain severed, from the Site even if
physically attached, are and shall remain
personal property, and are not and shall not
be fixtures or an accession to the Site, the
title thereto being separate and distinct
from the title to the Site, and shall be
treated as personal property with respect to
the rights of all persons whatsoever and for
all purposes of the Financing Documents (as
defined in the Site Lease), and title to the
Facility shall not, except as specifically
contemplated by the Financing Documents, be
affected in any way by any instrument dealing
with the Site or any part thereof.
Notwithstanding the foregoing, if contrary to
the intention of Site Lessor and Site Lessee,
any Governmental Authority (as defined in the
Site Lease) with jurisdiction over the Site
determines that any portion of the Facility
is a fixture or accession to the Site, such
portion of the Facility shall constitute part
of the Site being leased under the Site
Lease.
TERM OF LEASE: From March 30, 1995 until the earlier of
(i) November 1, 2037, and (ii) the
termination of the contemporaneous lease of
personal property from Site Lessee to Site
Lessor pursuant to Section 9(c), 9(d) or
12(b) of such lease.
OPTION TO PURCHASE: None.
RIGHT OF FIRST
REFUSAL: None.
RIGHT TO RENEW
OR EXTEND: None.
The parties hereto further expressly acknowledge that
this Amended and Restated Memorandum of Lease is being executed
pursuant to the provisions of the Amended and Restated Site Lease
and is not intended to vary the terms or conditions of the
Amended and Restated Site Lease.
Executed as a sealed instrument as of this 18th day of
December, 1996.
PANDA-BRANDYWINE, L.P.
By: Panda Brandywine Corporation,
its general partner
By: _________________________
Name:
Title:
FLEET NATIONAL BANK, not in its
individual capacity but solely as
owner trustee
By: ______________________________
Name:
Title:
This is to certify that the within instrument was
prepared under the supervision of the undersigned who is an
attorney admitted to practice before the Court of Appeals of
Maryland.
___________________________
Name:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
PERSONALLY APPEARED on this ___ day of December, 1996,
the above-named _________________, _________________, of FLEET
NATIONAL BANK, a national banking association, as Owner Trustee,
and acknowledged the foregoing to be his free act and deed in his
said capacity and the free act and deed of said FLEET NATIONAL
BANK, as Owner Trustee.
Notary Public
Type or print name:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
PERSONALLY APPEARED on this ___ day of December, 1996
the above-named ______________, ________________ of PANDA
BRANDYWINE CORPORATION, the general partner of PANDA-BRANDYWINE,
L.P., a Delaware limited partnership, and acknowledged the
foregoing to be his free act and deed in his said capacity and
the free act and deed of said PANDA BRANDYWINE CORPORATION, and
PANDA-BRANDYWINE, L.P.
Notary Public
Type or print name:
