EXHIBIT 10.27
STEAM LEASE
Dated as of December 18, 1996
between
PANDA-BRANDYWINE, L.P.
and
BRANDYWINE WATER COMPANY
Distilled Water Facility located in
Brandywine, Maryland, Prince George's County
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS 2
1.1 Defined Terms 2
1.2 Other Definitional Provisions 2
SECTION 2. DEMISING PROVISIONS; SUBORDINATION 2
2.1 Sublease of the Distilled Water Facility 2
2.2 Right to Use the Distilled Water Facility
Premises 2
2.3 Severance 3
2.4 Subordination 3
SECTION 3. TERM 3
SECTION 4. USE 3
SECTION 5. RENT; PROFIT SHARING 4
SECTION 6. POSSESSION AND QUIET ENJOYMENT 4
SECTION 7. NO MERGER OF TITLE 4
SECTION 8. RESPONSIBILITY OF LESSOR 4
SECTION 9. NO ASSIGNMENT OR FURTHER SUBLEASE 5
SECTION 10. SURRENDER 5
SECTION 11. MISCELLANEOUS 5
11.1 Notices 5
11.2 Amendments 5
11.3 Headings, etc. 6
11.4 Successors and Assigns 6
11.5 GOVERNING LAW 6
11.6 Severability 6
11.7 Limitation of Liability 6
SCHEDULES AND EXHIBITS
Schedule A Description of the Distilled Water Facility
Schedule B Legal Description of Distilled Water Facility Premises
STEAM LEASE
THIS STEAM LEASE, dated as of December 18, 1996, is
made between PANDA-BRANDYWINE, L.P., a Delaware limited
partnership ("Lessor" or the "Partnership"), and BRANDYWINE WATER
COMPANY, a Delaware corporation ("Lessee").
RECITALS:
A. Lessor is the owner of a subleasehold estate in the
Site under the terms of the Site Sublease dated as of March 30,
1995 as amended as of October 30, 1996, and as of December 18,
1996, and as further amended and restated as of December 18,
1996, (as the same may be further amended, supplemented or
otherwise modified from time to time, the "Site Sublease") a
memorandum of which has been recorded among the Land Records of
Prince George's County, Maryland.
X. Xxxxxx is the lessee of a distilled water facility
more particularly described in Schedule A attached hereto (the
"Distilled Water Facility") which is located on a portion of the
Site as shown on the as-built survey of the site delivered
pursuant to Section 5.1(h) of the Participation Agreement (as
defined below) ("the Distilled Water Facility Premises") under
the terms of the Facility Lease dated as of the date hereof
between Fleet National Bank (formerly known as Shawmut Bank
Connecticut, National Association), not in its individual
capacity, but solely as owner trustee (in such capacity, the
"Owner Trustee") and the Lessor (as the same may be amended,
supplemented or otherwise modified from time to time, the
"Facility Lease").
C. The Distilled Water Facility is comprised of the
equipment described in Part I of Schedule A (the "Distilled Water
Facility Equipment") and the other property described in Part II
of Schedule A (the "Distilled Water Facility Property").
X. Xxxxxx desires to sublease the Distilled Water
Facility Equipment to Lessee and Lessee desires to sublease the
Distilled Water Facility Equipment from the Lessor 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, Lessor and the
Lessee, 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 Annex A to the Participation Agreement, dated as of
December 18, 1996, among the Partnership, the General Partner,
the Owner Participant, the Owner Trustee, Fleet National Bank,
not in its individual capacity but solely as Security Agent,
First Security Bank, National Association, not in its individual
capacity but solely as Indenture Trustee under the Indenture,
Credit Suisse, as administrative agent (the "Administrative
Agent") and the other entities listed on Schedule I thereto (the
"Loan Participants") (as the same may be amended, supplemented or
otherwise modified from time to time, the "Participation
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 Steam Lease shall refer to this Steam Lease as
a whole and not to any particular provision hereof. Section,
subsection, Appendix, Exhibit and Schedule references contained
in this Steam Lease are references to Sections, subsections,
Appendices, Exhibits and Schedules in or to this Steam Lease
unless otherwise specified.
SECTION 2. DEMISING PROVISIONS; SUBORDINATION
2.1 Sublease of the Distilled Water Facility. Lessor
hereby subleases to Lessee and Lessee hereby subleases from
Lessor, upon and subject to the terms and conditions hereinafter
set forth, the Distilled Water Facility Equipment TO HAVE AND TO
HOLD the same, subject as aforesaid, unto Lessee and Lessee's
successors and assigns, commencing on the date hereof and
continuing for the term described in Section 3 hereof. LESSEE
ACKNOWLEDGES THAT IT SUBLEASES AND HIRES THE DISTILLED WATER
FACILITY EQUIPMENT "AS IS" AND LESSOR HAS NOT MADE ANY COVENANTS,
REPRESENTATIONS OR WARRANTIES ABOUT THE DISTILLED WATER FACILITY
EQUIPMENT OTHER THAN THOSE EXPRESSLY SET FORTH HEREIN.
2.2 Right to Use the Distilled Water Facility
Premises. So long as this Steam Lease is in effect, Lessor
grants to Lessee the right to occupy and use the Distilled Water
Facility Premises and the Distilled Water Facility Property, and
the right of ingress and egress thereto, solely for the purposes
of using and enjoying the Distilled Water Facility Equipment.
The foregoing right shall terminate automatically if and when
Lessee's rights under this Lease terminate.
2.3 Severance. The Distilled Water Facility Equipment
and each portion thereof, and all repairs, replacements,
substitutions and additions thereto, whether now or at any time
hereafter located on the Distilled Water Facility Premises or
attached to the Distilled Water Facility Property, are severed,
and shall remain severed, from the Distilled Water Facility
Premises and the Distilled Water Facility Property even if
physically attached, are and shall remain personal property, and
are not and shall not be fixtures or an accession to the
Distilled Water Facility Premises or the Distilled Water Facility
Property, the title thereto being separate and distinct from the
title to the Distilled Water Facility Premises and the Distilled
Water Facility Property, 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,
the Site Sublease, the Facility Lease and this Steam Lease, and
title to the Distilled Water Facility Equipment shall not, except
as specifically contemplated by the Transaction Documents, be
affected in any way by any instrument dealing with the Distilled
Water Facility Premises or the Distilled Water Facility Property
or any part thereof.
2.4 Subordination. Lessee covenants and agrees for
itself and its successors and assigns that all of its rights
under this Steam Lease are hereby expressly made subject and
subordinate to the rights of the Security Agent, for the benefit
of GE Capital and the Owner Trustee (and, by collateral
assignment, the Indenture Trustee), under each of the Amended and
Restated Deed of Trust and Security Agreement dated as of
December 18, 1996 by the Partnership to Chicago Title Insurance
Company, as trustee for the Security Agent (the "Deed of Trust"),
the Site Lease, the Site Sublease and the Facility Lease.
SECTION 3. TERM
The term of this Steam Lease shall commence on the date
hereof and shall end on the earlier to occur of the expiration or
earlier termination of (i) the Facility Lease (taking into
account any renewals of the term thereof), (ii) the Site Sublease
and (iii) the Steam Sales Agreement.
SECTION 4. USE
During the term of this Steam Lease, the Distilled
Water Facility and the Distilled Water Facility Premises shall be
used by Lessee as provided in the Facility Lease and the Site
Sublease. The Lessee shall perform all the terms, covenants and
conditions to be performed by Lessor (i) under the Site Sublease,
with respect to the Distilled Water Facility Premises and (ii)
under the Facility Lease with respect to the Distilled Water
Facility (which obligations are hereby incorporated herein by
reference).
SECTION 5. RENT; PROFIT SHARING
As rent for the lease of the Distilled Water Facility
Equipment and the use of the Distilled Water Facility Property
and the Distilled Water Facility Premises for the term hereof,
Lessee shall pay to Lessor all amounts payable to Lessee in
connection with the operation of the Distilled Water Facility and
the sale of its products. In return, Lessor shall pay to Lessee
such portion of the cash as is available to be distributed to
Lessor's partners as Lessor and Lessee shall agree is fair.
SECTION 6. POSSESSION AND QUIET ENJOYMENT
Subject to the provisions of the Site Lease, the Site
Sublease and the Facility Lease, and so long as no Lease Event of
Default shall have occurred and be continuing, Lessor shall not
disturb Lessee's peaceful and quiet use and possession of the
Distilled Water Facility and the Distilled Water Facility
Premises; provided, however, Lessor shall not be responsible for
the acts of predecessors in title to Lessor.
SECTION 7. NO MERGER OF TITLE
There shall be no merger of this Steam Lease or the
leasehold estate created by this Steam Lease with any estate in
the Distilled Water Facility Equipment or other estate in the
Distilled Water Facility Premises or the Distilled Water Facility
Property or any part thereof by reason of the fact that the same
Person may acquire, own or hold, directly or indirectly, (a) this
Steam Lease or any interest in this Steam Lease or in any such
leasehold estate and (b) any estate in the Distilled Water
Facility Equipment 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 Steam Lease or the leasehold estate created by this
Steam Lease and (ii) any estate in the Distilled Water Facility
Equipment or other estate in the Distilled Facility Premises or
the Distilled Water Facility Property or any part thereof, shall
join in a written instrument effecting such merger.
SECTION 8. RESPONSIBILITY OF LESSOR
Lessor shall have no duty, responsibility, liability or
obligation to Lessee in respect of the Distilled Water Facility
or the Distilled Water Facility Premises for the use, maintenance
or condition of the Distilled Water Facility, or the Distilled
Water Facility Premises except as provided in Section 6 hereof
and in the Facility Lease, Site Lease and Site Sublease (which
obligations are hereby incorporated herein by reference). Lessor
shall have no liability or obligation whatsoever to Lessee under
this Steam Lease by reason of termination of the Facility Lease
or the Site Sublease in the absence of any breach by Lessor of
its express affirmative obligations to Lessee hereunder.
SECTION 9. NO ASSIGNMENT OR FURTHER SUBLEASE
Lessee will not, without the prior written consent of
the Owner Trustee, assign or further sublease or otherwise in any
manner deliver, transfer or relinquish possession of all or any
portion of the Distilled Water Facility or the Distilled Water
Facility Premises or assign any of its rights hereunder.
SECTION 10. SURRENDER
At the termination of this Steam Lease, Lessee shall
forthwith quit and surrender the Distilled Water Facility and
deliver the Distilled Water Facility to Lessor in the same
condition, reasonable wear and tear excepted, as on the date
hereof. Subject to any applicable provisions of the Site Lease,
Site Sublease and except as provided in Section 8 of the Facility
Lease, all improvements affixed to the Distilled Water Facility
and the Distilled Water Facility Premises shall be and remain the
property of Lessor from and after the termination of this Steam
Lease.
SECTION 11. MISCELLANEOUS
11.1 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 be deemed to have been given when
delivered to the other party by registered or certified mail,
return receipt requested, addressed as follows:
For Lessor:
Panda-Brandywine, L.P.
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Chairman & General Counsel
For Lessee:
Brandywine Water Company
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Chairman & General Counsel
11.2 Amendments. Neither this Steam Lease nor any of
the terms hereof may be terminated, amended, supplemented, waived
or modified orally, but only by an instrument in writing signed
by the party against which enforcement of the termination,
amendment, supplement, waiver or modification shall be sought.
11.3 Headings, etc. The headings of various Sections
and subsections of this Steam Lease are for convenience of
reference only and shall not modify, define, expand or limit any
of the terms or provisions hereof.
11.4 Successors and Assigns. The terms of this Steam
Lease shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.
11.5 GOVERNING LAW. THIS STEAM LEASE HAS BEEN
DELIVERED IN AND SHALL BE GOVERNED BY AND BE CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MARYLAND.
11.6 Severability. Any provision of this Steam Lease
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.
11.7 Limitation of Liability. There shall be full
recourse to Lessor and all of its assets for the liabilities of
Lessor under this Steam Lease, but in no event shall any Partner
or any officer, director or holder of any equity interest in any
Partner be personally liable or obligated for such liabilities of
Lessor, except as may be specifically provided in any other
Transaction Document to which such Partner is a party. Subject
to the foregoing limitation on liability, Lessee may xxx or
commence any suit, action or proceeding against, any Partner or
any officer, director or holder of any equity interest in any
Partner in order to obtain jurisdiction over Lessor to enforce
its rights and remedies hereunder. Nothing herein contained
shall limit or be construed to limit the liabilities and
obligations of any Partner in accordance with the terms of any
other Transaction Document creating such liabilities and
obligations to which such Partner, is a party.
IN WITNESS WHEREOF, the parties hereto have caused this
Steam Lease to be duly executed by their respective officers
thereunto duly authorized as of the day and year first above
written.
BRANDYWINE WATER COMPANY
By: /S/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title:
PANDA-BRANDYWINE, L.P.
By: Panda Brandywine Corporation,
its general partner
By:
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
Schedule A
to the
Steam Lease
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 in one or more sites to be
designed and furnished by Aqua-Chem
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, F.P., acid, potable
water, including small sore and eye wash station
Electrical equipment including: MCCs, transformer, C/B's, 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)
