EXHIBIT 10.73
SITE SUBLEASE
SITE SUBLEASE dated as of March 30, 1995 made
between 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 Loan 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 A hereto (the
"Site") and the holder of certain interests under the
easements described on Schedule B hereto (the "Easements")
under the terms of the Site Lease dated as of the date
hereof (as the same may be amended, supplemented or
otherwise modified from time to time, the "Site Lease") a
memorandum of which is to be 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, or in the future will be, the
owner of a natural gas-fired cogeneration facility and a
distilled water facility more particularly described in
Schedule C attached hereto (the "Facility") which is or will
be located on the Site and the land covered by the
Easements.
C. Pursuant to the Facility Lease to be entered
into on the Lease Closing Date between Sublessor and
Sublessee (the "Facility Lease"), Sublessor will lease and
demise the Facility to Sublessee.
D. In connection with said lease of the Facility,
Sublessor desires to sublease to Sublessee the Site (as
hereinafter defined) together with Site Lessor's interest in
the Easements, and Sublessee desires to sublease the Site
and obtain such interests in the Easements from Sublessor
upon the terms and conditions hereinafter set forth.
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 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 Appendix A to the Construction
Loan Agreement and Lease Commitment, dated as of March 30,
1995, among General Electric Capital Corporation, Panda
Brandywine Corporation and the Partner ship (as the same may
be amended, supplemented or otherwise modified from time to
time, the "Loan Agreement") (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"), together with Sublessor's
interest in and to the Easements, 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 and the Easements "as is" and Sublessor has not
made any covenants, representations or warranties about the
Site or the Easements 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 and the Easements even if
physically attached, are and shall remain personal property,
and are not and shall not be fixtures or an accession to the
Site and the Easements, the title thereto being separate and
distinct from the title to the Site and the Easements, and
shall be treated as personal property with respect to the
rights of all Persons whatsoever and for all purposes of the
Loan Agreement, the Site Lease, this Site Sublease and the
Facility Lease, and title to the Facility shall not, except
as specifically contemplated by the Transaction Documents,
be affected in any way by any instrument dealing with the
Site and the Easements or any part thereof. Notwithstanding
the foregoing, if contrary to the intention of Sublessor and
Sublessee, any Governmental Authority with jurisdiction over
the Site or the Easements determines that any portion of the
Facility is a fixture or accession to the Site or the
Easements, 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 and the Easements 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 Event of 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 the Easements, 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 or interest in the Easements 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 and the
Easements 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 or
interest in the Easements created by this Site Sublease and
(ii) any estate in the Facility or other estate in the Site
and the Easements 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
and the Easements 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 Facility Lease.
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 Loan 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.
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 Transaction
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 Transaction Document creating such
liabilities and obligations to which such Partner or Affiliate
is a party.
(b) Shawmut Bank Connecticut is entering into
this Site Sublease solely as Owner Trustee under the Trust
Agreement and not in its individual capacity. Accordingly,
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 Shawmut Bank Connecticut 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 Shawmut Bank Connecticut 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 Shawmut Bank Connecticut 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 agree
that a Memorandum of Lease substantially in the form annexed
hereto as Exhibit A shall be recorded among the Land Records
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
subsublease 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 Leveraged Lease. If, upon the sale of the
Facility by the Partnership to the Owner Trustee in
accordance with the provisions of the Loan Agreement, GE
Capital exercises its option under subsection 5.8 of the
Loan Agreement to cause the Owner Trustee to borrow funds to
finance (or refinance) a portion of the purchase price of
the Facility, the parties hereto agree to execute a
supplement hereto to provide for such provisions as are
customary and appropriate in respect of leveraged lease
transactions.
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.
SHAWMUT BANK CONNECTICUT, NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Owner Trustee
By: __________________________
Name: Xxxxx X Xxxxxxxx
Title:Assistant Vice President
PANDA BRANDYWINE, L.P.
By: Panda Brandywine Corporation,
its general partner
By: ________________________
Name: Xxxxxx X. Xxxxxx
Title:President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
PERSONALLY APPEARED on this 10th day of April, 1995,
the above-named Xxxxx X. Xxxxxxxx, Assistant Vice President, of SHAWMUT
BANK, CONNECTICUT, NATIONAL ASSOCIATION, a national banking
association, and acknowledged the foregoing to be his free act
and deed in his said capacity and the free act and deed of said
SHAWMUT BANK CONNECTICUT.
Notary Stamp
Xxxxxx Xxxxx
Notary Public, State of New York
No. 00-0000000
Qualified in New York County
Certificate Filed in New York County
Commission Expires October 15, 1996
Notary Public
Type or print name: Xxxxxx Xxxxx
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
PERSONALLY APPEARED on this 10th day of April, 1995,
the above-named Xxxxxx X. Xxxxxx, President 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 PANDABRANDYWINE, L.P.
Notary Stamp
Xxxxxx Xxxxx
Notary Public, State of New York
No. 00-0000000
Qualified in New York County
Certificate Filed in New York County
Commission Expires October 15, 1997
Notary Public
Type or print name: Xxxxxx Xxxxx
