EXHIBIT 10.73
AMENDED AND RESTATED
SITE SUBLEASE
Dated as of December 18, 1996
between
FLEET NATIONAL BANK
(not in its individual capacity but
solely as Owner Trustee),
as Sublessor
and
PANDA-BRANDYWINE, L.P.,
as Sublessee
Real Property Located in the County of
Prince George's, Maryland
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS 2
1.1 Defined Terms 2
1.2 Other Definitional Provisions 2
SECTION 2. DEMISING PROVISIONS 2
2.1 Sublease 2
2.2 Severance 3
SECTION 3. TERM 3
SECTION 4. USE 3
SECTION 5. RENT 4
SECTION 6. POSSESSION AND QUIET ENJOYMENT 4
SECTION 7. NO MERGER OF TITLE 4
SECTION 8. RESPONSIBILITY OF SUBLESSOR 4
SECTION 9. SURRENDER 5
SECTION 10. MISCELLANEOUS 5
10.1 Notices 5
10.2 Amendments 5
10.3 Headings, etc. 5
10.4 Successors and Assigns 5
10.5 GOVERNING LAW 6
10.6 Severability 6
10.7 Limitation of Liability 6
10.8 Recording 7
10.9 Sublease; Assignment 7
10.10 Assignment to Indenture Trustee 7
10.11 Subordination 8
Schedule A Legal Description of the Site
Schedule B Description of the Facility
Schedule C-1 Description of the Distilled Water Facility
Exhibit A Memorandum of Lease
AMENDED AND RESTATED
SITE SUBLEASE
AMENDED AND RESTATED SITE SUBLEASE (this "Site
Sublease") dated as of December 18, 1996 made between 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 sublessor (the "Owner Trustee" or "Sublessor"), and
PANDA-BRANDYWINE, L.P., a Delaware limited partnership
("Partnership" or "Sublessee"), as sublessee.
RECITALS:
A. Sublessor is the owner of a leasehold estate in the
real property described on Schedule 1 hereto (the "Site") under
the terms of the Site Lease dated as of March 30, 1995, as
amended by a First Amendment thereto dated as of October 30, 1996
and a Second Amendment thereto dated as of December 18, 1996, and
as further amended and restated pursuant to the Amended and
Restated Site Lease dated as of the date hereof (as the same may
be further amended, supplemented or otherwise modified from time
to time, the "Site Lease") a memorandum of which has been
recorded among the Land Records of Prince George's County,
Maryland and the Land Records of Xxxxxxx County, Maryland (the
"Land Records").
B. Sublessor is the owner of a natural gas-fired
cogeneration facility and a distilled water facility more
particularly described in Schedule 2 attached hereto (the
"Facility") which is or will be located on the Site.
C. Pursuant to the Facility Lease (the "Facility
Lease"), Sublessor has leased and demised the Facility to
Sublessee.
D. Sublessor and Sublessee have entered into that
certain Site Sublease dated as of March 30, 1995 (the "Original
Site Sublease") pursuant to which, Sublessor subleased to
Sublessee, and Sublessee subleased from Sublessor, the Site upon
the terms and conditions set forth in the Original Site Sublease.
A memorandum of the Original Site Sublease has been recorded
among the Land Records and all appropriate transfer and recording
taxes have been paid. Sublessor and Sublessee have amended the
Original Site Sublease pursuant to a First Amendment to Site
Sublease dated as of October 30, 1996 (the "First Amendment") and
a Second Amendment to Site Sublease dated as of December 18, 1996
(the "Second Amendment") (the Original Site Sublease, as amended
by the First Amendment and the Second Amendment, the "Existing
Site Sublease"). The First Amendment and the Second Amendment
released Sublessor's interest in the Easements from the premises
demised by the Existing Site Sublease. 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.
E. Sublessor and Sublessee have agreed to amend and
restate the Existing Site Sublease 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, Sublessor and
Sublessee, intending to be legally bound hereby, hereby agree to
amend and restate the Existing Site Sublease as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. Unless otherwise defined herein,
capitalized terms used herein shall have the 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 Sublessee, the Panda Brandywine Corporation,
General Electric Capital Corporation, Sublessor, 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.
1.2 Other Definitional Provisions. The words
"hereof," "herein" and "hereunder" and words of similar import
when used in this Site Sublease shall refer to this Site Sublease
as a whole and not to any particular provision hereof. Section,
subsection, Appendix, Exhibit and Schedule references contained
in this Site Sublease are references to Sections, subsections,
Appendices, Exhibits and Schedules in or to this Site Sublease
unless otherwise specified.
SECTION 2. DEMISING PROVISIONS
2.1 Sublease. Sublessor hereby demises and subleases
to Sublessee and Sublessee hereby subleases and hires from
Sublessor, upon and subject to the terms and conditions
hereinafter set forth, the Site and any and all additions,
alterations and improvements from time to time included in the
Site, excluding the Facility (which Site, additions, alterations
and improvements are hereinafter referred to as the "Site"), TO
HAVE AND TO HOLD the same, subject as aforesaid, unto Sublessee
and Sublessee's successors and assigns, commencing on the date
hereof and continuing for the term described in Section 3 hereof.
Sublessee acknowledges that it subleases and hires and takes the
Site "as is" and Sublessor has not made any covenants,
representations or warranties about the Site other than those
expressly set forth herein.
2.2 Severance. It is the intention of the Sublessor
and the Sublessee 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, the Site Lease, this 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 Sublessor and Sublessee, 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.
SECTION 3. TERM
The term of this Site Sublease shall commence on the
date hereof and shall end on the earlier to occur of (i)
expiration or earlier termination of the Facility Lease (taking
into account any renewals of the term thereof) and (ii) the day
before the date of expiration or termination of the Site Lease.
SECTION 4. USE
During the term of this Site Sublease, the Site and the
Easements shall be used by Sublessee as provided in the Site
Lease. Sublessee shall perform all the terms, covenants and
conditions to be performed by Sublessor under the Site Lease
other than any obligation of Sublessor contained in Article IX
and Sections 11.2 and 11.4 thereof.
SECTION 5. RENT
As rent for the Site for the term hereof, Sublessee
shall pay rent of $1 per year. Sublessee agrees to pay to
Sublessor the sum of $20 towards such rent in advance upon
execution of this Site Sublease.
SECTION 6. POSSESSION AND QUIET ENJOYMENT
Subject to the provisions of the Site Lease, and so
long as no Lease Default or Lease Event of Default shall have
occurred and be continuing, neither Sublessor nor any of its
permitted successors and assigns shall disturb Sublessee's
peaceful and quiet use and possession of the Site, and Sublessee
shall enjoy all rights of Sublessor under the Site Lease;
provided, however, Sublessor shall not be responsible for the
acts of predecessors in title to Sublessor. Sublessor warrants
that, as of the date hereof, it has not heretofore assigned or
encumbered its interests acquired pursuant to the Site Lease or
any part thereof.
SECTION 7. NO MERGER OF TITLE
There shall be no merger of this Site Sublease or the
leasehold estate created by this Site Sublease with any estate in
the Facility or other estate in the Site or any part thereof by
reason of the fact that the same Person may acquire, own or hold,
directly or indirectly, (a) this Site Sublease or any interest in
this Site Sublease or in any such leasehold estate and (b) any
estate in the Facility or other estate in the Site or any part
thereof or any interest in such estate, and no such merger shall
occur unless and until all Persons having any interest (including
a security interest) in (i) this Site Sublease or the leasehold
estate created by this Site Sublease and (ii) any estate in the
Facility or other estate in the Site or any part thereof, shall
join in a written instrument effecting such merger and shall duly
record the same among the Land Records.
SECTION 8. RESPONSIBILITY OF SUBLESSOR
Sublessor shall have no duty, responsibility, liability
or obligation to Sublessee in respect of the Site for the use,
maintenance or condition of the Facility, except as provided in
Section 6 hereof and in the Site Lease (which obligations are
hereby incorporated herein by reference). Sublessor shall have
no liability or obligation whatsoever to Sublessee under this
Site Sublease by reason of termination of the Site Lease in the
absence of any breach by Sublessor of its express affirmative
obligations to Sublessee hereunder or under the Site Lease.
SECTION 9. SURRENDER
At the termination of this Site Sublease, Sublessee
shall forthwith quit and surrender the Site and the Easements and
deliver the Site and the Easements to Sublessor in the same
condition, reasonable wear and tear excepted, as on the date
hereof. Subject to any applicable provisions of the Site Lease
and except as provided in Section 8 of the Facility Lease, all
improvements affixed to the Site and the Easements shall be and
remain the property of Sublessor from and after the termination
of this Site Sublease.
SECTION 10. MISCELLANEOUS
10.1 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.
10.2 Amendments. Neither this Site Sublease nor any
of the terms hereof may be terminated, amended, supplemented,
waived or modified orally, but only (x) by an instrument in
writing signed by the party against which enforcement of the
termination, amendment, supplement, waiver or modification shall
be sought and (y) pursuant to the provisions of the Participation
Agreement.
10.3 Headings, etc. The headings of various Sections
and subsections of this Site Sublease are for convenience of
reference only and shall not modify, define, expand or limit any
of the terms or provisions hereof.
10.4 Successors and Assigns. The terms of this Site
Sublease shall be binding upon and inure to the benefit of
Sublessee and Sublessor and their permitted respective successors
and assigns. Sublessee 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
Sublessor hereunder, respectively, such successor trustee or
additional trustee shall succeed to all the rights, duties,
powers and titles of Sublessor 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 Sublessee and without in any way altering
the terms of this Sublease or Sublessee's obligations hereunder.
Sublessor shall give Sublessee prompt written notice of any
appointment of a successor trustee or additional trustee.
Sublessee shall attorn to any such successor trustee or
additional trustee.
10.5 GOVERNING LAW. THIS SITE SUBLEASE HAS BEEN
DELIVERED IN AND SHALL BE GOVERNED BY AND BE CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MARYLAND.
10.6 Severability. Any provision of this Site
Sublease that is 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 such prohibition or
unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
10.7 Limitation of Liability. (a) There shall be
full recourse to the Partnership and all of its assets for the
liabilities of the Partnership under this Site Sublease, 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
Sublease. Subject to the foregoing limitation on liability,
Sublessor 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.
(b) Fleet National Bank is entering into this Site
Sublease 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 Sublessor, 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 Sublease is executed and
delivered by the Sublessor 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 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 Sublessor, 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.
10.8 Recording. Sublessor and Sublessee 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 Sublease.
Sublessor and Sublessee 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 as soon as possible after the execution hereof.
The memorandum shall expressly state that it is executed pursuant
to provisions contained in this Site Sublease, and is not
intended to vary the terms and conditions hereof.
10.9 Sublease; Assignment. Sublessee will not sub-
sublease the Site or assign this Site Sublease, except that
Sublessee may sub-sublease the Site to Brandywine Water Company
pursuant to the Steam Lease.
10.10 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
Sublessor to the Indenture Trustee of all of its right, title and
interest in, to and under this Site Sublease, 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, Sublessor and
Sublessee have entered into the Security Deposit Agreement.
Sublessee 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
Sublessor and in other cases to the exclusion of the Sublessor,
all as set forth in Section 3.10 of the Indenture) to take or
refrain from taking action under this Site Sublease, including
the right (i) of the Sublessor 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 Sublease
or in respect thereof, (ii) to exercise any and all of the
rights, powers and remedies of the Sublessor hereunder and (iii)
to receive all moneys payable to the Sublessor under this Site
Sublease. Sublessee will make all payments in accordance with
the Security Deposit Agreement.
10.11 Subordination. Sublessor and Sublessee hereby
acknowledge and agree that this Site Sublease is subordinate to
the terms of the Deed of Trust and Security Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Site Sublease to be duly executed by their respective officers
thereunto duly authorized as of the day and year first above
written.
FLEET NATIONAL BANK, not in its
individual capacity but solely as
Owner Trustee
By: _____________________________
Name:
Title:
PANDA-BRANDYWINE, L.P.
By: Panda Brandywine Corporation,
its general partner
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, 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:
Schedule A
to the
Site Sublease
DESCRIPTION OF THE SITE
Schedule B
to the
Site Sublease
FACILITY DESCRIPTION
The Brandywine Cogeneration facility is a 230 megawatt
natural gas-fired electric generating power plant located in
Prince George's County, Maryland. This facility consists of, but
is not limited to, the following equipment:
Steam Generator
Air Pollution Control Equipment
Turbine Generator
Condenser
Cooling Tower
Distributed Control System
Instrumentation
Switchyard
Fuel Handling
Fans
Feedwater Pumps
Circulation Pumps
Fire Protection
Demineralizer
Piping and Valves
Electrical and Wiring
Concrete
Insulation
Buildings
Distilled Water Facility (described on Schedule B-2
attached hereto)
Schedule B-2
to the
Site Sublease
DISTILLED WATER FACILITY DESCRIPTION
The Distilled Water facility is located in Prince
George's County, Maryland. This facility consists of, but is not
limited to, the following:
Part I
Piperacks and miscellaneous supports (including grating)
Packaged distilled water system
Distilled water storage tank - 220,000 gallons
Truck filling pumps
Sump pumps
12" steam supply from Facility
Piping for Distilled Water Facility systems: circ. water, drains,
pump suction and discharge, tank, sumps, fire protection,
acid, potable water, including safety shower and eye wash
station
Electrical equipment including: MCCs, transformer, circuit
breakers, panels and local control stations
Raceway including conduit, cable tray and fittings
Wire, cable and terminations
Lighting, grounding and miscellaneous systems
Instrumentation
Insulation
Part II
Structural excavation for foundations
Backfill and placement for foundations
Paving required including subbase and base course
Chain link fence
Drainage pipe
Catch basins
Landscaping - trees and shrubs
Foundations and slabs for building, tank, equipment, sumps,
piperack and loading/unloading area
Painting
Pre-engineered building - 40'x50'x26' (including doors, HVAC and
fire protection)
Exhibit A to Site Sublease
AMENDED AND RESTATED
MEMORANDUM OF LEASE
Notice is hereby given of the following AMENDED AND
RESTATED SITE SUBLEASE:
SUBLESSOR: 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.
SUBLESSEE: PANDA-BRANDYWINE, L.P., a Delaware
limited partnership, having an address at
0000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx
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 Sublease.
SUBLEASED PREMISES: Parcels of land described in Schedule 1
attached (the "Site") located in Prince
George's County, Maryland.
It is the intention of the Sublessor and the
Sublessee that the Facility (as defined in the
Site Sublease) 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 Sublease), 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 Sublessor and
Sublessee, any Governmental Authority (as
defined in the Site Sublease) 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 Sublease.
TERM OF LEASE: From March 30, 1995 until the earlier to
occur of (i) expiration or earlier
termination of the contemporaneous lease of
personal property from Sublessor to Sublessee
and (ii) the day before the date of
expiration or termination of the Site Lease
(as defined in the Site Sublease).
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
Sublease and is not intended to vary the terms or conditions of
the Amended and Restated Site Sublease.
Executed as a sealed instrument as of the 18th day of
December, 1996.
FLEET NATIONAL BANK,
not in its individual capacity but
solely as owner trustee
By: _______________________________
Name:
Title:
PANDA-BRANDYWINE, L.P.
By: Panda Brandywine Corporation,
its General Partner
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:
