EXHIBIT 10.72
SITE LEASE
DATED AS OF MARCH 30, 1995
between
PANDA-BRANDYWINE, L.P.
as Site Lessor
and
SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION
(not in its individual capacity
but solely as Owner Trustee),
as Site Lessee
Real Property Located in the Counties of
Prince George's and Xxxxxxx, Maryland
TABLE OF CONTENTS
Definitions 1
Article II Lease of Site; Term; Election to
Terminate; Removal 1
Section 2.1 Lease of Site; Term 1
Section 2.2 Election to Terminate 1
Article III TITLE; SEVERANCE AGREEMENT 2
Section 3.1 Title 2
Section 3.2 Severance Agreement 2
Article IV RENTAL PAYMENTS 2
Section 4.1 Rental Payments 2
Section 4.2 Method of Payment 3
Article V RETURN OF SITE 3
Article VI QUIET ENJOYMENT 3
Article VII USE OF SITE 4
Article VIII EASEMENTS 4
Section 8.1 Grant of Easements 4
Section 8.2 Exercise of Easements 4
Section 8.3 Dedications; Joinder in Recording 4
Section 8.4 Termination 5
Section 8.5 Easements Appurtenant; No Interference 5
Article IX LIENS 5
Article X UNDERTAKINGS OF SITE LESSOR 6
Section 10.1 Sufficiency of Site Lease;
Maintenance 6
Section 10.2 Site Lessor to Defend Title 6
Article XI TAXES AND CLAIMS 6
Section 11.1 Before Lease Termination Date 6
Section 11.2 After Lease Termination Date 6
Section 11.3 Apportionment 7
Section 11.4 Indemnification 7
Section 11.5 Additional Indemnification by
Site Lessor 8
Section 11.6 Survival 8
Article XII INSURANCE 9
Article XIII CONDEMNATION 9
Article XIV SITE LEASE DEFAULTS; REMEDIES 9
Article XV SUBLEASE; ASSIGNMENT 10
Article XVI LIMITATION OF LIABILITY 11
Article XVII NOTICES 12
Article XVIII Binding Effect 12
Article XIX MISCELLANEOUS 12
Section 19.1 Severability 12
Section 19.2 Amendments 12
Section 19.3 Headings 12
Section 19.4 Counterparts 12
Section 19.5 GOVERNING LAW 13
Section 19.6 No Merger 13
Section 19.7 Recording 13
Section 19.8 Leveraged Lease 13
Section 19.9 Certain Rights of Power Purchaser 13
Schedule 1 Legal Description of Site
Schedule 2 Legal Description of Easements
Exhibit A Memorandum of Lease
SITE LEASE
SITE LEASE dated as of March 30, 1995 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
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 lessee (the
"Owner Trustee" or "Site Lessee"), having an address at 000
Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000.
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 Appendix A to the
Construction Loan Agreement and Lease Commitment dated as of
March 30, 1995 among the Partnership, Panda Brandywine
Corporation and General Electric Capital Corporation (as the
same may be amended, supplemented or otherwise modified, the
"Loan Agreement"). 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"), together with
Site Lessor's interests in and to the easements described in
Schedule 2 hereto (the "Easements"), 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 good
title in and to the Easements and (b) upon execution and
delivery of this Site Lease, Site Lessee will have (i) good
leasehold title in and to the Site and good title in and to
the Easements 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, the Easements and
the easements granted to Site Lessee pursuant to Article VIII
hereof, as contemplated by the Loan Agreement, the Facility
Lease and the other Transaction 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 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, this Site Lease, the 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 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 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.
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, the right to use the
Easements 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, the
right to use the Easements and the grant of the easements
granted pursuant to Article VIII hereof, the Fair Market
Rental Value of the Site, the right to use the Easements 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, the Easements
and the easements granted to Site Lessee pursuant to Article
VIII hereof in accordance with the terms of this Site Lease
and the other Transaction 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 Easements or
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, the
Easements 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 Loan Agreement shall apply with respect to Liens on or
with respect to the Site, the Easements 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, the Easements 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 and the Easements are 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 the interests in the Easements 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 Loan Agreement.
ARTICLE XI
TAXES AND CLAIMS
SECTION 11I.1. Before Lease Termination Date.
During the period from the date hereof until the Lease
Termination Date, Section 6.11 of the Loan 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 or the Easements.
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 Easements, 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 and Easements;
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 Loan
Documents and the Lease 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 an Event of
Default, 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
Transaction 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 and/or the Easements 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 and/or the Easements 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 and the
Easements, 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, the Easements 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 at any time after the Loan Agreement has been
declared to be in default pursuant to Section 8 thereof,
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 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 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 Transaction
Document creating such liabilities and obligations to which
such Partner or Affiliate is a party.
16.2 Owner Trustee. Shawmut Bank Connecticut is
entering into this Site Lease 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 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 Shawmut Bank Connecticut 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 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 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
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.
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 Facility Lease.
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.
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 subsection 9.1 of the Loan 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 and interest in the Easements
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 and interest in the Easements 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 the County of Prince George's,
Maryland and the County of Xxxxxxx, Maryland (collectively,
the "Land Records").
SECTION 19.7. Recording. Site Lessor and Site
Lessee 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 Lease, and is
not intended to vary the terms and conditions hereof.
SECTION 19.8. 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.
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).
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: Xxxxxx X. Xxxxxx
Title:President
SHAWMUT BANK CONNECTICUT,
NATIONAL ASSOCIATION, not in its
individual capacity but solely
as Owner Trustee
By: _____________________
Name: Xxxxx X.
Xxxxxxxx Title:
Assistant Vice
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, NATIONAL ASSOCIATION.
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: Xxxxx 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 PANDA BRANDYWINE, L.P.
Notary Stamp
Xxxxxx Xxxxx
Notary Public, State of New York
No. 00-0000000
Qaulified in New York County
Certificate Filed in New York County
Commission Expires October 15, 1996
Notary Public
Type or print name: Xxxxxx Xxxxx
