STATE OF NORTH CAROLINA
COUNTY OF DUPLIN
GROUND LEASE
------------
THIS GROUND LEASE dated the 30th day of November, 1984, by and between
XXXXXXXX XXXXX, INC., a Delaware corporation having an address at Xxxx Xxxxxx
Xxx X-0, Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000 (hereinafter referred to as
"Landlord") and COGENTRIX LEASING CORPORATION, a North Carolina corporation
having an address at Xxx Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000 (hereinafter referred to as "Tenant"),
W I T N E S S E T H:
- - - - - - - - - -
In consideration of Ten ($10.00) Dollars, other good and valuable
consideration, and the mutual covenants contained herein, and intending to be
legally bound hereby, Landlord and Tenant hereby agree with each other as
follows:
ARTICLE I - PREMISES
--------------------
Section 1.1 Landlord hereby leases and lets to Tenant, and Tenant
hereby takes and hires from Landlord, upon and subject to the terms, conditions,
covenants and provisions hereof, all that certain tract, piece or parcel of
land, situated in Kenansville, Duplin County, North Carolina, more particularly
described on Exhibit "A" and depicted on Exhibit "B", both of which exhibits are
annexed hereto and made a part hereof, together with any and all improvements,
appurtenances, rights, privileges and easements benefiting, belonging or
pertaining thereto, and any right, title and interest of Landlord in and to any
land lying in the bed of any street, road or highway (open or proposed) to the
center line thereof, in front of or adjoining said tract, piece or parcel of
land (all the foregoing hereinafter sometimes referred to as the "Demised
Premises" and sometimes referred to as the "Premises").
ARTICLE II - TERM AND EXTENSIONS
--------------------------------
Section 2.1 The initial term of this Lease shall commence as of the
30th day of November, 1984 (the "Commencement Date"), and unless extended
pursuant to the following Section 2.2.1 through 2.2.4 shall end at midnight on
the earlier to occur of (a) seventeen (17) years six (6) months after the
Commencement Date or (b) fifteen (15) years after the Initial Delivery Date as
defined below.
Section 2.2.1 This Lease shall automatically be extended for
two (2) additional successive terms of ten (10) years each and a third
additional term of five (S) years unless the parties mutually agree in
writing to the contrary. Thereafter, this Lease may be extended from
year to year with the mutual consent of the parties in writing.
Section 2.2.2 Each extended term shall be on the same terms,
covenants, conditions, provisions, and agreements as in this Lease
provided, except for term and as otherwise specified in this Lease.
Section 2.2.3 If any of such extensions occur as in this
Section 2.2 provided, such extended term shall commence immediately on
the expiration of the prior term hereof.
Section 2.2.4 If either Tenant or Landlord shall desire to
terminate this Lease at the end of the term then in effect such party
shall notify the other party in writing of its desire by Certified
Mail, Return Receipt Requested, prior to one (1) year before the
expiration of the then current term of this Lease, whether it be the
initial term or an extended term. If the other party agrees to such
termination, it shall so notify the first party within thirty (30) days
of receipt of such initial notice, otherwise this Lease shall be deemed
to be automatically extended for the term set forth in Section 2.2.1
above.
ARTICLE III - RENT
------------------
Section 3.1.1 Tenant covenants and agrees to pay Landlord for
the Demised Premises, without offset or deduction, and without previous
demand therefor, rent for each year of initial and any extended term of
this Lease at the rate of One Dollar ($1.00) per year.
Section 3.1.2 Rent for each year shall be payable by Tenant on
or before the first day of each and every calendar year during the
initial and each extended term of this Lease, and shall be payable at
the address of Landlord first above set forth or at such other place of
which Landlord shall have given written notice at least thirty (30)
days in advance.
2
ARTICLE IV - DEFINITIONS
------------------------
Section 4.1 "Landlord" shall mean, at any given time, only the then
owner of Landlord's interest in the Demised Premises.
Section 4.2 "Tenant" shall mean, at any given time, only the then owner
of Tenant's interest in the Demised Premises.
Section 4.3 "Person" shall mean and include an individual, corporation,
partnership (general or limited), unincorporated association, business trust,
and any governmental entity.
Section 4.4 "Improvements" shall mean all buildings, structures and
improvements hereafter erected on the Demised Premises, including, without
limitation, all common facilities, walkway and road improvements, parking
facilities, landscaping improvements of whatever nature, utility lines (to the
extent of Tenant's interest therein) all apparatus, machinery, devices,
fixtures, appurtenances and equipment necessary for the proper operation and
maintenance of the foregoing, including, without limitation, the following:
steam fixtures; chutes, ducts and tanks; oil burners; furnaces, heaters,
incinerators and boilers; air cooling and air conditioning equipment; washroom,
toilet and lavatory fixtures and equipment; engines, pumps, dynamos, motors,
generators, electrical wiring and equipment; and all additions thereto and
replacements thereof.
Section 4.5 "Governmental Authorities" shall mean all federal, county,
municipal and local governments, and all departments, commissions, boards,
bureaus and offices thereof, having or claiming jurisdiction over the Demised
Premises and/or the Improvements.
Section 4.6 "Personal Property" shall mean, at the time of
determination, all equipment, furniture, furnishings and other personal property
located on or at, and used or useful in connection with the operation or
maintenance of, the Demised Premises.
Section 4.7 "Steam Purchase Contract" shall mean that certain Steam
Purchase Contract of even date herewith between Landlord and Tenant, as amended
from time to time.
Section 4.8 "Initial Delivery Date" shall be that date defined in
Paragraph 3 of the Steam Purchase Contract.
Section 4.9 "Assignment Term" shall have the meaning set forth in
Section 2.02 of the Kenansville Lease.
Section 4.10 "Kenansville Xxxx of Sale" shall mean a Xxxx of Sale and
Assignment from Tenant in favor of the Owner Trustee, pertaining to the
Kenansville Facility, this Lease and the Steam Purchase Agreement, inter alio,
as it may be amended or modified from time to time in accordance with the
provisions thereof and of the Participation Agreement.
3
Section 4.11 "Kenansville Facility" shall mean the Demised Premises,
including all Improvements thereon, those improvements described in Article V
hereof and all easements granted hereunder or in accordance herewith.
Section 4.12 "Kenansville Lease" shall mean the Lease Agreement between
the Owner Trustee, as Lessor, and Tenant, as Lessee, pertaining to the
Kenansville Facility, as it may be amended, modified or supplemented from time
to time in accordance with the provisions thereof and of the Participation
Agreement.
Section 4.13 "Kenansville Mortgage" shall mean the Deed of Trust,
Assignment of Leases, Rents, Issues and Profits and Security Agreement among
Tenant, the North Carolina Trustee and GECC, pertaining to the Kenansville
Facility, this Lease and the Steam Purchase Contract, inter olio, as it may be
amended or modified from time to time in accordance with the provisions thereof
and of the Participation Agreement.
Section 4.14 "North Carolina Trustee" shall mean The Fidelity Company,
a North Carolina corporation.
Section 4.15 "Owner Trustee" shall mean United States Trust Company of
New York, a New York corporation, not in its individual capacity (except as
expressly provided in the Participation Agreement and the Trust Agreement) but
solely as Owner Trustee under the Trust Agreement, and its successors and
assigns as such owner Trustee.
Section 4.16 "Participation Agreement" shall mean the Participation
Agreement dated as of November 1, 1984, among Tenant, Cogentrix of North
Carolina, Inc., General Electric Credit Corporation ("GECC") and the Owner
Trustee, as it may be amended, modified or supplemented from tithe to time in
accordance with the terms thereof.
Section 4.17 "Trust Agreement" shall mean the Trust Agreement dated as
of November 1, 1984 between GECC and the Owner Trustee, as it may be amended or
modified from time to time by agreement between the parties thereto.
ARTICLE V - USE OF PREMISES
---------------------------
Section 5.1 The Demised Premises may be used for a steam and electric
power cogeneration plant and related lawful purposes, including without
limitation, a manufacturing plant or plants using steam produced by said
facility, provided that no such manufacturing plant may commence operations
unless in Tenant's reasonable opinion the qualification of Tenant's cogeneration
facility under the federal Public Utility Regulatory Policies Act of 1978, as
then amended ("PURPA"), is in jeopardy solely by reason of Landlord's breach of
the Steam Purchase Contract.
4
ARTICLE VI - TAXES AND UTILITY EXPENSES
---------------------------------------
Section 6.1.1 Tenant shall, during the term of this Lease, as
additional rent, pay and discharge punctually, as and when the same
shall become due and payable, all taxes, special and general
assessments, water rents, rates and charges, sewer rents and other
governmental impositions and charges of every kind and nature
whatsoever, extraordinary as well as ordinary (hereinafter referred to
as "Taxes"), and each and every installment thereof which shall or may
during the term of this Lease be charged, levied, laid, assessed,
imposed, become due and payable, or liens upon or for or with respect
to the Demised Premises or any part thereof, or any Improvements,
appurtenances or Personal Property thereon or therein or any part
thereof, together with all interest and penalties thereon, under or by
virtue of all present or future laws, ordinances, requirements, orders,
directives, rules or regulations of Governmental Authorities whatsoever
(all of which shall also be included in the term "Taxes" as heretofore
defined) and all charges for sewer, water, steam, heat, gas, hot water,
electricity, light and power, and other service or services, furnished
to the Demised Premises during the term of this Lease.
Section 6.1.2 To the extent that the same may be permitted by
law, Tenant or its designees shall have the right to apply for the
conversion of any assessment for local improvements assessed. during
the term of this Lease in order to cause the same to be payable in
annual installments spread over the life of the improvements, and upon
such conversion Tenant shall pay and discharge punctually said
installments as they shall become due and payable during the term of
this Lease. Landlord agrees to permit the application-for the foregoing
conversion to be filed in Landlord's name, if necessary, and shall
execute any and all documents requested by Tenant to accomplish the
foregoing result.
Section 6.1.3 Tenant shall be deemed to have complied with the
covenants of this section 6.1 if payment of such Taxes shall have been
made either (i) within any period allowed by law or by the Governmental
Authority imposing the same during which payment is permitted without
penalty or interest or (ii) before the same shall become a lien upon
the Demised Premises, and Tenant shall produce and exhibit to Landlord
satisfactory evidence of such payment, if Landlord shall demand the
same in writing.
5
Section 6.2.1 All Taxes and assessments (which have been
converted into installments as set forth in Section 6.1.2) which shall
become payable during the calendar year in which the term of this Lease
terminates shall be apportioned pro rata between Landlord and Tenant in
accordance with the portion of such year during which such term shall
be in effect.
Section 6.3.1 Tenant or its designees shall have the right to
contest or review all such Taxes by legal proceedings, or in such other
manner as it may deem suitable (which, if instituted, Tenant or its
designees shall conduct promptly at its own cost and expense; and free
of any expense to Landlord, and, if necessary, in the name of and with
the cooperation of Landlord and Landlord shall execute all documents
necessary to accomplish the foregoing). Notwithstanding the foregoing,
Tenant shall promptly pay all such taxes if at any time the Demised
Premises or any part thereof shall then be immediately subject to
forfeiture, or if Landlord shall be subject to any civil or criminal
liability, arising out of the non-payment thereof.
Section 6.3.2 The legal proceedings. referred to in Section
6.3.1 shall include appropriate certiorari proceedings and appeals from
orders therein and appeals from any judgments, decrees or orders. In
the event of any reduction, cancellation or discharge, Tenant shall pay
the amount finally levied or assessed against the Demised Premises or
adjudicated to be due and payable on any such contested Taxes.
Section 6.4 Landlord covenants and agrees that if there shall be any
refunds or rebates on account of the Taxes paid by Tenant under the provisions
of this Lease, such refund or rebate shall belong to Tenant.
Section 6.5 Landlord further covenants and agrees on request of Tenant
at any time, but without cost to Landlord, to make application individually (if
legally required) or to join in Tenant's application (if legally required) for a
separate tax assessment for the Demised Premises.' Landlord hereby agrees upon
request of Tenant to execute such instruments and to give Tenant such assistance
in connection with such applications as shall be-required by Tenant. If such a
separate assessment cannot be obtained, Taxes shall be apportioned between the
Demised Premises and any other property of Landlord included in the same tax
parcel based upon the relative tax valuations of the land, improvements, and
personal property on the Demised Premises and the remainder of the tax parcel,
6
as may be mutually agreed by Landlord and Tenant, or failing agreement within
thirty (30) days prior to the last date for paying such taxes without interest
or penalty, taxes shall be apportioned by binding arbitration conducted in
accordance with the rules of the American Arbitration Association. If
apportionment has not been finally determined by the last date for payment of
such taxes without penalty or interest, Landlord shall pay all disputed amounts
of taxes and when apportionment is finally determined Tenant shall reimburse
Landlord for any excess tax paid by Landlord, plus interest at a floating rate
equal to the announced "prime rate" of NCNB National Bank of North Carolina.
Section 6.6 Nothing herein or in this Lease otherwise contained shall
require or be construed to require Tenant to pay any inheritance, estate,
succession, gift, franchise, income or profit taxes, that are or may be imposed
upon Landlord.
ARTICLE VII - IMPROVEMENTS, REPAIRS, ADDITIONS, REPLACEMENTS
------------------------------------------------------------
Section 7.1 Tenant shall have the right, at its own cost and expense,
to construction any part or all of the Demised Premises, at any time and from
time to time, such improvements as Tenant shall from time to time determine,
subject to Land lord's rights of approval under Paragraph 1 of the Steam
Purchase Contract, provided that the same shall be in compliance with all then
applicable zoning, building and other codes and ordinances and shall be designed
for the purposes permitted under Section 5.1, which approval shall not be
unreasonably withheld or delayed, and which approval shall conclusively be
deemed given if such plans are submitted to Landlord for approval if notice of
disapproval, and the reasons therefor, is not given to Tenant within twenty-one
(21) days after the date of submission.
Section 7.2 Tenant shall, at all times during the term of this Lease,
and at its own cost and expense, keep and maintain or cause to be kept and
maintained in repair and good condition (ordinary wear and tear excepted), the
Improvements, and shall use all reasonable precaution to prevent waste, damage
or injury. Landlord shall not be required to furnish any services or facilities
(including, without limitation, water, sewer or other utilities) or to make any
improvements, repairs or alterations in or to the Demises Premises during the
term of this Lease (including, without limitation, any roads or other means of
access to the Demised Premises).
Section 7.3 Tenant may, at its option and at its own cost and expense,
at any time and from time to time, make such alterations, changes, replacements,
improvements and additions in and to the Demised Premises, and the Improvements
and additions and the Improvements, as it may deem desirable consistent with the
purposes permitted under Section 5.1, including the demolition of any
Improvement(s), subject to Landlord's rights of approval under Paragraph 1 of
the Steam Purchase Contract.
7
Section 7.4 Until the expiration or sooner termination of this Lease
(subject, however, to the rights of the holder of any leasehold Mortgage (as
hereinafter defined) to obtain a new lease as set forth herein) title to any
improvements, the personal property and any alteration, change or addition
thereto shall remain solely in Tenant; and Tenant alone shall be entitled to
deduct all depreciation on Tenants' income tax returns for all improvements,
personal property, additions, changes or alterations. In no event shall the
construction of Improvements be considered as rent.
Section 7.5 On the last day or sooner termination of the term of this
Lease, Tenant shall quit and surrender the Demised Premises. At the end of the
term of this Lease, Tenant shall remove all of the Improvements, including
without limitation the machinery, controls, wiring, piping and other equipment
located in or constituting part of the Improvements (whether or not the same are
fixtures or leasehold improvements at law); in the event of termination of this
Lease other than at the end of the initial or extended term hereof, Tenant shall
have sixty (60) days following the date of termination to accomplish such
removal.
ARTICLE VIII - REQUIREMENTS OF PUBLIC AUTHORITY
-----------------------------------------------
Section 8.1 During the term of this Lease, Tenant shall, at its own
cost and expense, promptly observe and comply with all present and future laws,
ordinances, requirements, orders, directives, rules and regulations of the
Governmental Authorities applicable to the Demised Premises whether the same are
in force at the commencement of the term of this Lease or may in the future be
passed, enacted or directed, and Tenant shall pay all costs, expenses,
liabilities, losses, damages, fines, penalties, claims and demands, including
reasonable counsel fees, that may in any manner arise out of or be imposed
because of the failure of Tenant to comply with the covenants of this Article 8.
Section 8.2 Tenant shall have the right to contest by appropriate legal
proceedings diligently conducted in good faith, in the name of the Tenant, or
Landlord (if legally required), or both (if legally required), without cost or
expense to Landlord, the validity or application of any law, ordinance, rule,
regulation or requirement of the nature referred to in Section 8.1 and, if by
the terms of any such law, ordinance, order, rule, regulation or requirement
compliance therewith may legally be delayed pending the prosecution of any such
proceeding, Tenant may delay such compliance. Therewith until the final
determination of such proceeding.
8
Section 8.3 Landlord agrees to execute and. deliver any appropriate
papers or other instruments which may be necessary or proper to permit Tenant so
to contest the validity or application of any such law,, ordinance, order, rule,
regulation or requirement and to fully cooperate with Tenant in such contest.
ARTICLE IX - COVENANT AGAINST LIENS
-----------------------------------
Section 9.1 If, because of any act or omission of Tenant, any
mechanic's lien or other lien, charge or order for the payment of money shall be
filed against Landlord or any portion of the Demised Premises (other than a
leasehold Mortgage described in Article XIX), Tenant shall, at its own cost and
expense, cause the same to be discharged of record by bonding or otherwise sixty
(60) days after written notice from Landlord to Tenant of the filing thereof;
and Tenant shall indemnify and save harmless Landlord against and from all
costs, liabilities, suits, penalties, claims and demands, including reasonable
counsel fees, resulting therefrom.
ARTICLE X - ACCESS TO PREMISES
------------------------------
Section 10.1 Landlord or Landlord's agents and designees shall have the
right, but not the obligation, to enter upon the Demised Premises at all
reasonable times, consistent with Tenants reasonable safety and operational
requirements, to examine same and to exhibit the Demised Premises to prospective
purchasers and prospective tenants, but in the latter case only during the last
six (6) months of the term of this Lease.
ARTICLE XI - ASSIGNMENT AND SUBLETTING
--------------------------------------
Section 11.1 Tenant shall have the right to assign its rights and
duties under this Lease either as collateral security or to another entity
created in connection with the financing arrangements entered into by Tenant, by
notifying Landlord of such assignment. In the event of any such assignment,
Tenant shall remain liable for performance hereunder. Landlord agrees to execute
a "Consent and Agreement" concurrently with the execution of this Lease in form
mutually satisfactory to the parties. Subject to the foregoing, this Lease shall
be binding upon and shall inure to the benefit of the parties, their successors
and assigns.
ARTICLE XII - SIGNS
-------------------
Section 12.1 Tenant shall have the right to install, maintain and
replace in, on or over or in front of the Demised Premises or in any part
thereof such signs relating to Tenant's operations, identifying Tenant or
erected to comply with applicable laws or regulations, as Tenant may reasonably
desire, provided that (a) Tenant shall comply with any applicable requirements
of Governmental Authorities having jurisdiction and shall obtain any necessary
permits for such purposes, and (b) such signs shall be approved by Landlord,
which approval shall not be unreasonably withheld or delayed.
9
ARTICLE XIII - INDEMNITY
------------------------
Section 13.1 Tenant shall indemnify and save harmless Landlord from and
against any and all liability, damage, penalties or judgments arising from
injury to person or property sustained by anyone in and about the Demised
Premises resulting from any act or acts or omission or omissions of Tenant, or
Tenant's officers, agents, servants, employees, or contractors provided that
Tenant shall not be liable to Landlord for any consequential damages arising
from Tenant's failure to comply with the Steam Purchase Contract. Tenant shall,
at its own cost and expense, defend any and all suits or actions which may be
brought against Landlord or in which Landlord may be impleaded with others upon
any such above-mentioned matter, claim or claims, except as may result from the
acts set forth in the exception in Section 13.2.
Section 13.2 Except for its willful acts or gross negligence or the
willful acts or gross negligence of its officers, agents, servants, employees or
contractors, Landlord shall not be responsible or liable for any damage or
..injury to the personal property or the Improvements, or to any person or
persons, at any time on the Demised Premises, including any damage or injury to
Tenant or to any of Tenant's officer, agents, servants, employees or
contractors.
Section 13.3 Landlord shall indemnify and save harmless Tenant from and
against any and all liability, damage, penalties or judgments arising from
injury to person or property sustained by anyone in and about any of Landlord's
property adjacent to the Demised Premises resulting from any act or acts or
omission or omissions of Landlord, or Landlord's officers, agents, servants,
employees, or contractors. Landlord shall, at its own cost and expense, defend
any and all suits or actions which may be brought against Tenant or in which
Tenant may be impleaded with others upon any such above-mentioned matter, claim
or claims, except as may result from the acts set forth in the exception in
Section 13.4.
Section 13.4 Except for its willful acts or gross negligence or the
willful acts or gross negligence of its officers, agents, servants, employees or
contractors, Tenant shall not be responsible or liable for any damage or injury
to the personal property or the improvements, or to any person or persons, at
any time on any of Landlord's property adjacent to the Demised Premises,
including any damage or injury to Landlord or to any of Landlord's officers,
agents, servants, employees or contractors.
10
ARTICLE XIV - INSURANCE
-----------------------
Section 14.1 Tenant shall, at no expense to Landlord provide and keep
in force (or cause to be provided and kept in force), during the term of this
Lease, general liability insurance in an insurance company or companies selected
by Tenant, and reasonably satisfactory to the holder of any mortgage permitted
pursuant to the provisions of Article XIX hereof (all of such mortgages, whether
in the form of mortgages, deeds to. secure debt, deeds of trust, conditional
deeds, or other like form, being hereinafter collectively referred to as
"Mortgage" or "Mortgages" and the holders) or beneficiary(ies) thereof as
"Mortgagee(s)"), or if there shall not be such a Mortgage, to Landlord, in the
amount of at least Five Million ($5,000,000.00) Dollars with respect to injury
or death to one or more than one person in any one accident or other occurrence
and One Hundred Thousand $100,000.00) Dollars with respect to damages to
property. Such policy or policies shall include Landlord and each such Mortgagee
as named insureds. Tenant agrees to deliver certificates of such insurance to
Landlord at the beginning of the term of this Lease and thereafter not less than
ten (10) days prior to the expiration of any such policy. Such insurance shall
be nancancellable without ten (10) days' written notice to Landlord, and to each
such Mortgagee.
Section 14.2 During the term of this Lease, Tenant shall keep the
Improvements insured for the benefit of Landlord and Tenant and the Mortgagees
as their respective interests may appear, against loss or damage by fire and
customary extended coverage in at least the greater of (a) the minimum amount
necessary to avoid the effect of co-insurance provisions of the applicable
policies, or (b) 807. of the insurable value of the Improvements. All such
policies shall be held by the holder of any such Mortgage, if any, or by Tenant,
:so long as there shall be no such Mortgages. Landlord shall be provided with
certificates of such insurance.All proceeds payable at any time and from time to
time by and insurance company under such policies shall be payable to the
Mortgagees, if any, or, if none, shall be paid as hereinafter set forth. If any
such proceeds are paid to a Mortgagee, same shall be applied in accordance with
the terms of such Mortgage, provided, however if Tenant fails to rebuild the
Improvements in accordance with the provisions of Article XVI hereof, the
proceeds shall first be applied in repayment of any Mortgage indebtedness. The
balance then remaining, if any, shall be paid to Tenant. In the event the
parties are unable to agree as to the amounts to be paid pursuant to the
provisions set forth herein within thirty (30) days after the date of the
payment of the proceeds, which proceeds shall be deposited with a bank or other
lending institution in escrow in the name of Landlord and Tenant until final
11
determination of such values, the amounts of such respective interest shall be
determined by arbitration (in accordance with the rules then obtaining of the
American Arbitration Association) in Charlotte, North Carolina. Landlord shall,
at Tenant's cost and expense, cooperate fully with Tenant in order to obtain the
largest possible recovery and execute any and all consents and other instruments
and take all other actions necessary or desirable in order to effectuate the
same and to cause such proceeds to be paid as hereinbefore provided and Landlord
shall not carry any insurance concurrent in coverage and contributing in the
event of loss with any insurance required to be furnished by Tenant hereunder if
the effect of such separate insurance would be to reduce the protection or the
payment to be made under Tenant's insurance.
ARTICLE XV - WAIVER OF SUBROGRATION
-----------------------------------
Section 15.1 All insurance policies carried by either party covering
the Demised Premises, including but not limited to contents, fire and casualty
insurance, shall expressly waive any right on the part of the insurer against
the other party. The parties hereto agree that their policies will include such
waiver clause or endorsement.
ARTICLE XVI - DESTRUCTION
-------------------------
Section 16.1 In the event that, at any time during the term of this
Lease, the Improvements shall be destroyed or damaged in whole or in part by
fire or other casualty, then, Tenant, at its own cost and expense, shall
(subject to the provisions of Section 16.2) cause the same to be repaired,
replaced or rebuilt within a period of time which, under all prevailing
circumstances, shall be reasonable.
Section 16.2 In the event that at any time subsequent to the first five
(5) years of the initial term of this Lease or during any extended term hereof,
any of the Improvements shall have been damaged or destroyed by fire or any
other cause whatsoever, then, notwithstanding the provisions of Section 16.1 or
any other provisions of this Lease, Tenant shall have the right (subject to the
rights of Mortgagees), but not the obligation, to elect not to repair, replace
or rebuild the improvements and to terminate this Lease by giving written notice
of termination to Landlord on or prior to the date twelve (12) months after the
occurrence of such damage or destruction, and upon the giving of such notice of
termination the term of this Lease shall expire and come to an end on the last
day of the calendar month in which such notice shall be given, with the same
force and effect as if said day had been originally fixed herein as the
expiration date of the term of this Lease, and neither party shall have any
further rights or liabilities hereunder.
12
ARTICLE XVII - EMINENT DOMAIN
-----------------------------
Section 1.7.1 If the whole or a part of the Demised Premises
or any easement appurtenant thereto or granted herein to Tenant or any
part of Landlord's property adjacent to the Demised Premises shall be
taken for any public or quasi-public use under any statute or by right
of eminent domain or by purchase in lieu thereof, which in any such
event renders the Demised Premises unsuitable for the conduct of
Tenant's business thereon, in Tenant's reasonable judgment, then Tenant
shall have the right, but not the obligation, to terminate this Lease
by giving written notice of such termination to Landlord on or prior to
the date one hundred and eighty (180) days after the date of such
taking (or purchase), and upon the giving of such notice of termination
the term of this Lease shall expire and come to an end on the last day
of the calendar month in which such notice shall be given, with the
same force and effect as if said day had been originally fixed herein
as the expiration date of the term of this Lease.
Section 17.2 In the event of taking (or purchase) resulting in the
termination of this Lease pursuant to the provisions of Section 17.1, the
parties hereto agree to cooperate in applying for and in prosecuting any claim
for such taking and further agree that the aggregate net award, after deducting
all expenses and costs (including attorneys' fees) incurred in connection
therewith, shall be divided between them in proportion to the fair market sales
value of their respective interests in the property condemned which, in the case
of the Landlord, shall be the Landlord's interest in the land constituting the
portion of the Demised Premises so condemned considered as vacant and unimproved
land but subject to this Lease assuming this Lease would have continued through
its initial and succeeding three additional terms.
Section 17.3 In the event of a taking (or purchase) not resulting in
the termination of this Lease, pursuant to the provisions of section 17.1, the
parties hereto agree to xxxxxx ate in applying for and in prosecuting any claim
for any such taking and Tenant shall, at no cost or expense to Landlord, make
(or cause to be made) all repairs to the Improvements affected by such taking
(or purchase) to the extent necessary to restore the same to a complete
architectural unit to the extent practical, taking into consideration the amount
of land remaining after any such taking or purchase.
Section 17.3.1 All compensation available or paid to Landlord
and Tenant upon such a taking (or purchase) which does not result in
the termination of this Lease shall be paid to Tenant for the purpose
of paying towards the cost of such restoration, or, in the event that
the parties hereto agree that only a portion of the aggregate award is
sufficient to so restore, then only such portion as agreed upon shall
be paid to Tenant for such purpose and the balance shall be distributed
in the same manner as is provided in Section 17.2 to the extent of any
funds remaining.
13
Section 17.3.2 All compensation for any temporary taking of
the Demised Premises shall be to Tenant without participation by
Landlord, unless the term of such taking shall extend beyond the term
of this Lease, in which case such compensation shall be prorated on a
per diem basis between Landlord and Tenant.
Section 17.4 In case the respective portions of any award to be
received by Landlord, Tenant and the holder or holders of any Mortgage or
Mortgages shall not be fixed in the proceedings for such taking in accordance
with the agreement of the parties set forth in this Article XVII, and if the
parties shall not . agree in writing on such respective portions within thirty
(30) days after the date of the final determination of the amount of such award,
the amounts of such respective portions shall be determined by arbitration (in
accordance with the rules then obtaining of the American Arbitration
Association) Charlotte, North Carolina.
ARTICLE XVIII - EASEMENTS
-------------------------
Section 18.1 In addition to the leasehold estate granted in this Lease,
but as an appurtenance to said leasehold, Land lord grants to Tenant the
following easements described on Exhibit C attached hereto and incorporated
herein by this reference for the initial and any extended term of this Lease
over portions of the property owned by Landlord adjacent to the Demised
Premises.
ARTICLE XIX - LEASEHOLD MORTGAGES
---------------------------------
Section 19.1 Tenant and every successor and assign of Tenant is hereby
given the right by Landlord in addition to any other rights herein granted,
without Landlord's prior written consent, to mortgage (including conveyance by
deed of trust) its interests in this Lease, or any part or parts thereof under
one or more leasehold Mortgage(s) and assign this Lease, or any part or parts
thereof, as collateral security for such Mortgage(s), upon the condition that
all rights acquired under such Mortgage(s) shall be subject to each and all of
the covenants, conditions and restrictions set forth in this Lease, and to all
rights and interests of Landlord herein, none of which covenants, conditions or
restrictions is or shall be waived by Landlord by reason of the right given so
to mortgage such interest in this Lease, except as expressly provided herein. If
Tenant and/or Tenant's successors and assigns shall mortgage this leasehold, or
any part or parts thereof, and if the holder(s) of such Mortgage(s) shall,
14
within thirty (30) days of execution send to Landlord a true copy thereof
together with written native specifying the name and address of the Mortgagees)
and the pertinent recording date with respect to such Mortgage(s) Landlord
agrees that so long as any such leasehold Mortgage(s) shall remain unsatisfied
of record or until written notice of satisfaction is given by the holder(s) to
Landlord, the following provisions shall apply:
Section 19.1.1 There shall be no cancellation, surrender or
modification of this Lease by joint action of Landlord and Tenant
without the prior consent in writing of the leasehold Mortgagee(s).
Section 19.1.2 Landlord shall, upon serving Tenant with any
notice of default, simultaneously serve a copy of such notice upon the
holder(s) of such leasehold Mortgage(s). The leasehold Mortgagees)
shall thereupon have the same period of time provided to Tenant
pursuant to Article XXIII hereof (as extended by Article XX hereof),
after service of such notice upon it, to remedy or cause to be remedied
the defaults complained of, and Landlord shall accept such performance
by or at the instigation of such leasehold Mortgagees) as if the same
had been done by Tenant.
Section 19.1.3 Anything herein contained notwithstanding,
while such leasehold Mortgages) remains unsatisfied of record, or until
written notice of satisfaction is given by the holders) to Landlord, if
any default shall occur which, pursuant to any provision of this Lease,
entitles Landlord to terminate this Lease, and if before the expiration
of thirty (30) days from the date of service of notice of termination
upon such leasehold Mortgagees) such leasehold Mortgagees) shall have
notified Landlord of its (their) desire to nullify such notice and
shall have paid to Landlord all rent and other payments herein provided
for, and then in default, and shall have complied or shall commence the
work of complying with ail of the other requirements of this Lease,
except as provided in Section 19.1.4., if any are then in default, and
shall prosecute the same to completion with reasonable diligence, then
in such event Landlord shall not be entitled to terminate this Lease
and any notice of termination theretofore given shall be void and of no
effect.
Section 19.1.4 If Landlord shall elect to terminate this Lease
by reason of default of Tenant, the leasehold Mortgagees) shall not
only have the right to nullify any notice of termination by curing such
default, as aforesaid, but shall also have the right to postpone and
extend the specified date for the termination of this Lease as fixed by
Landlord in its notice of termination, for a period of not more than
six (6) months, provided that such leasehold Mortgagees) shall cure or
cause to be cured any then existing money defaults and meanwhile pay
the rent and comply with and perform all of the other terms, conditions
and provisions of this Lease on Tenant's part to be complied with and
performed, other than past non-monetary defaults, and provided further
that the leasehold Mortgagees) shall forthwith take steps to acquire or
sell Tenant's interest in this Lease by foreclosure of the Mortgage(s)
15
or otherwise and shall prosecute the same to completion with all due
diligence. If at the end of said six (6) month period the leasehold
Mortgagees) shall be actively engaged in steps to acquire or sell
Tenant's interest herein, the time of said Mortgagees) to comply with
the provisions of this section 19.1.4 shall be extended for such period
as shall be reasonably necessary to complete such steps with reasonable
diligence and continuity.
Section 19.1.5 Landlord agrees that the name of the leasehold
Mortgaqee(s) may be added to the "Loss Payable Endorsement" of any and
all insurance policies required to be carried by Tenant hereunder on
condition that the insurance proceeds are to be applied in the manner
specified in this Lease and that the leasehold Mortgage(s) or
collateral document shall so provide.
Section 19.1.6 Landlord agrees that in the event of
termination of this Lease by reason of any default by Tenant that
Landlord will enter into a new lease of the Demised Premises with the
leasehold Mortgagees) or nominee(s), for the remainder of the term,
effective as of the date of such termination, at the rent and upon the
terms, provisions, covenants and agreements as herein contained and
subject only to the same conditions of title as this Lease is subject
to on the date of the execution hereof, and to the rights, if any, of
any parties then in possession of any part of the Demised Premises,
provided:
Section 19.1.6.1 Said Mortgagees) or nominees) shall
make written request upon Landlord for such new lease within
fifteen (15)days after the date of such termination and such
written request is accompanied by payment to Landlord of sums
then due to Landlord under this Lease;
Section 19.1.6.2 Said Mortgagees) or nominees) shall
pay to Landlord at the time of the execution and delivery of
said new lease, any and all sums which would, at the time of
the execution and delivery thereof, be due pursuant to this
Lease but for such termination, and in addition thereto, any
expenses, including reasonable attorneys' fees, to which
Landlord shall have been subjected by reason of such default;
16
Section 19.1.6.3 Said Mortgagees) or its nominees)
shall perform and observe all covenants herein contained on
Tenant's part to be performed and shall further remedy any
other conditions which Tenant under the terminated lease was
obligated to perform under the terms of this Lease;
Section 19.1.6.4 The tenant under such new lease
shall have the same right, title and interest in and to the
improvements and personal property as Tenant under the
terminated lease had;
Section 19.1.7 Nothing herein contained shall require said
leasehold Mortgagees) or nominees) to cure any default of Tenant
referred to in Article 24 hereof;
Section 19.1.8 The proceeds from any insurance policies or
arising from a condemnation are to be held by any leasehold Mortgagees)
and distributed pursuant to the provisions of this Lease, but the
leasehold Mortgagees) may reserve rights to apply to the Mortgage debt
all, or any part, of Tenant's share of such proceeds pursuant to such
Mortgage(s);
Section 19.1.9 The leasehold Mortgagees) shall be given notice
of any arbitration proceedings by the parties hereto, and shall have
the right to intervene therein and be made party to such proceed ings,
and the parties hereto do hereby consent to such intervention. In the
event that the leasehold Mortgagees) shall not elect to intervene or
become party to such proceedings, the leasehold Mortgagees) shall
receive notice of, and a copy of any award or decision made in said
arbitration proceedings; and
Section 19.1.10 Landlord shall, upon request, execute,
acknowledge and deliver to each leasehold Mortgagee, an agreement
prepared at the sole cost and expense of Tenant, in form satisfactory
to such leasehold Mortgagee(s), between Landlord, Tenant and leasehold
Mortgagee(s), agreeing to all of the provisions of this Article XIX.
The term "Mortgage", whenever used herein, shall include whatever
security instruments are used in the locale of the Demised Premises,
such as, without limitation, deeds to secure debt, deeds of trust and
conditional deeds, as well as financing statements, security agreements
and other documentation required pursuant to the Uniform Commercial
Code.
17
Section 19.2 Any transfer, conveyance., sublease or assignment provided
for in this Article XIX or Article XI shall be a transfer, conveyance, sublease
or assignment of each of the Steam Purchase Contract and this Lease to the same
Person, it being the intent of the parties that the primary obligor of each of
the Steam Purchase Contract and this Lease shall at all times be the same
Person. Such assignee or sublessee shall be liable for obligations or duties of
Tenant under the Steam Purchase Contract and this Lease to the extent set forth
below:
(i) following any assignment to the Owner Trustee pursuant to
the Kenansville Xxxx of Sale, the Owner Trustee shall be obligated to
perform and Tenant shall be relieved from all such obligations and
duties except as set forth in (ii) below;
(ii) during the Assignment Term, Tenant shall be liable for
all such obligations and duties and the Owner Trustee shall be relieved
from all such obligations and duties;
(iii) any other assignee (other than a security assignee) and
sublessee shall be liable for such obligations and duties only to the
extent arising after such assignment and the Owner Trustee or Tenant,
as the case may be, shall be relieved of all such obligations and
duties; and
(iv) a security assignee (including GECC and the North
Carolina Trustee pursuant to the Kenansville Mortgage) shall not be
liable for such obligations and duties except to the extent such
obligations and duties are assumed by such assignee on and after
enforcement of such security and except as set forth in this Article
XIX.
ARTICLE XX - FORCE MAJEURE
--------------------------
Section 20.1 In the event that Landlord or Tenant or any Mortgagee
shall be delayed, hindered in or prevented from the performance of any act
required hereunder by reason of strikes, lock-outs, labor troubles, inability to
18
procure materials, failure of power, restrictive governmental laws or
regulations, riots, insurrection, the act, failure to act or default of the
other party, war or other reason beyond their control, then performance of such
act shall be excused for the period of the delay and the period for the
performance of any such act shall be extended for a period equivalent to the
period of such delay.
ARTICLE XXI - PERFORMANCE BY OTHERS
-----------------------------------
Section 21.1 Any act required to be performed by Tenant pursuant to the
terms of this Lease may be performed by others on Tenant's behalf and the
performance of such act shall be deemed to be performance by Tenant and shall be
acceptable as Tenant's act by Landlord.
ARTICLE XXII - QUIET ENJOYMENT
------------------------------
Section 22.1 Tenant, upon paying the rent and all other sums and
charges to be paid by it as herein provided, and observing and keeping all
covenants, warranties, agreements and conditions of this Lease on its part to be
kept, shall quietly have and enjoy the Demised Premises during the term of this
Lease, without hindrance or molestation by anyone.
Section 22.2 Landlord represents and warrants to Tenant that it has fee
simple title to the Demised Premises and the power and authority to execute and
deliver this Lease and to carry out and perform all covenants to be performed by
it hereunder. Landlord further represents and warrants to Tenant that:
Section 22.2.1 The Demised Premises is free from all
encumbrances, liens, defects in title, violations of law, leases,
tenancies, easements, restrictions and agreements, except as set forth
in Exhibit D, annexed hereto; and
Section 22.2.2 At the time of the commencement of the term of
this Lease, sole and undisturbed physical possession of the entire
Demised Premises will be delivered to Tenant free and clear of all
liens, defects in title, encumbrances, restrictions, agreements,
easements, tenancies and violations of law, except as set forth in
Exhibit D, annexed hereto.
19
ARTICLE XXIII - DEFAULTS
------------------------
Section 23.1 In the event any one or more of the following event shall
have occurred and shall not have been remedied as hereinafter provided:
Section 23.1.1 The occurrence of any event set forth in
Article XXIV hereof, without the curing of same as therein provided;
Section 23.1.2 Tenant's,failure to pay any installment of
rent, when the same shall be due and payable and the continuance of
such failure for a period of fifteen (15) days after notice in writing
from Landlord to Tenant specifying in detail the nature of such
failure;
Section 23.1.3 Tenant's failure to perform any of the other
covenants, conditions and agreements herein contained an Tenant's part
to be kept or performed and the continuance of such failure without the
curing of same within a reasonable time after notice in writing from
Landlord to Tenant specifying in detail the nature of such failure; for
purposes of this section, one hundred eighty (180) days shall be
conclusively presumed a reasonable time to cure a breach hereunder
(except as such time may be extended pursuant to Section 23.2),
provided, that such 180-day period shall be extended by an event that
would constitute force majeure as defined in Article XX; or
Section 23.1.4 The occurrence of any default or event of
default under the Steam Purchase Contract and the continuation of any
such breach beyond any applicable cure period (as extended by force
majeure as provided therein).
then, Landlord may, at its option, give to Tenant a notice of election to end
the term of this Lease upon a date specified in such notice, which date shall be
not earlier than the expiration of any applicable cure period and upon such
date, the term and estate hereby created and interest of Tenant hereunder shall
likewise cease without further notice or lapse of time, as fully and with like
effect as if the entire term of this Lease had elapsed, but Tenant shall
continue to be liable to Landlord as hereinafter provided.
Section 23.2 In the event that Landlord gives notice of a default of
such a nature that it cannot be cured within such one hundred eighty (180) day
period then such default shall not be deemed to continue for such time (not to
exceed an additional one hundred eighty (180) days) so long as Tenant, after
receiving such notice, proceeds to cure the default as soon as reasonable
possible and continues to take all steps necessary to complete the same within a
period of time which, under all prevailing circumstances, shall be reasonable.
No default shall be deemed to continue if and so long as Tenant shall be delayed
in or prevented from curing the same by any cause specified in Article XX.
20
Section 23.3 Notwithstanding anything to the contrary contained in this
Article XXIII, in the event that any defaults) of Tenant shall be cured in any
manner hereinabove provided, such defaults) shall be deemed never to have
occurred and Tenant's rights hereunder shall continue unaffected by such
default(s).
Section 23.4 Upon any termination of the term of this Lease pursuant to
Section 23.1, or at any time thereafter, Landlord may, in addition to and
without prejudice to any other rights and remedies Landlord shall have at law or
in equity, re-enter the Demised Premises, and recover possession thereof and
dispossess any or all occupants of the Demised Premises in the manner prescribed
by the statute relating to summary proceedings; or similar statutes; but Tenant
in such case shall remain liable to Landlord as hereinafter provided.
Section 23.5 In case of any such default, re-entry, expiration and/or
dispossess by summary proceedings:
Section 23.5.1 The rent shall become due thereupon and be paid
up to the time of such re-entry, expiration and/or dispossess;
Section 23.5.2 Landlord may, subject to Article XIX, relet the
Demised Premises or any part or parts thereof, either in the name of
Landlord or otherwise, for a term-or terms which may, at Landlord's
option, be less than or exceed the period which. would otherwise have
constituted the balance of the term of this Lease and may grant
concessions or free rent; and
Section 23.5.3 Tenant or the legal representatives of Tenant
shall also pay Landlord as liquidated damages for the failure of Tenant
to observe and perform Tenant's covenants herein contained any
deficiency between the rent hereby reserved and/or covenanted to be
paid and the net amount, if any, of the rents collected on account of
the lease or leases of the Demised Premises for each month of the
period which would otherwise have constituted the balance of the term
of this Lease.
21
ARTICLE XXIV - BANKRUPTCY AND INSOLVENCY
----------------------------------------
Section 24.1 If, after the commencement of the term of this Lease:
Section 24.1.1 Tenant, while having title to the tenant's
interest hereunder, shall be finally adjudged to be insolvent;
Section 24.1.2 A receiver or trustee shall be appointed for
the aforesaid Tenant's property and affairs;
Section 24.1.3 The aforesaid Tenant shall make an assignment
for the benefit of creditors or shall file a petition in bankruptcy or
insolvency or for reorganization or shall make application for the
appointment of a receiver; or
Section 24.1.4 Any execution or attachment shall be issued
against the aforesaid Tenant or any of the aforesaid Tenant's property,
whereby the Demised Premises or any improvements shall be taken or
occupied or attempted to be taken or. occupied by someone other than
the aforesaid Tenant, except as may herein be permitted;
and such adjudication, appointment, assignment, petition,execution or attachment
shall not be set aside, vacated, discharged or bonded within one hundred and
twenty (120) days after the issuance of the same, then a default hereunder shall
be deemed to have occurred so that the .provisions of Article XXIII and hereof
shall become effective and Landlord shall have the rights and remedies provided
for therein. Notwithstanding anything to the contrary hereinabove contained,
upon the occurrence of a default pursuant to this Article XXIV if the rent due
and payable hereunder shall continue to be paid and the other covenants,
conditions and agreements of this Lease on Tenant's part to be kept and
performed shall continue to be kept and performed, no event of default shall
have been deemed to have occurred and the provisions of Article XXIII hereof
shall not become effective.
ARTICLE XXV - WAIVERS
---------------------
Section 25.1 Failure o(pound) Landlord or Tenant to complain of any act
or omission on the part of the other party no matter how long the same may
continue, shall not be deemed to be a waiver by said party of any of its rights
hereunder. No waiver by Landlord or Tenant at any time, express or implied, of
any breach of any provision of this Lease shall be deemed a waiver of a breach
of any other provision of this Lease or a consent to any subsequent breach of
22
the same or any other provision. No acceptance by Landlord of any partial
payment shall constitute an accord or satisfaction but shall only be deemed a
part payment on account.
ARTICLE XXVI - NOTICES
----------------------
Section 26.1 Every notice, approval, consent or other communication
authorized or required by this Lease shall not be effective unless same shall be
in writing and shall be deemed given to the other party at its address or telex
number herein above first mentioned, or such other address or telex number as
either party may designate by notice given from time to time in accordance with
this Article XXVI and shall be either delivered personally or sent by telex,
telegraph or postage prepaid by United States registered or certified mail,
return receipt requested, and shall be deemed to have been made or given (i) if,
given by telex, when transmitted and the appropriate answerback is received and
(ii) if given by any other means, when delivered. The rent payable by Tenant
hereunder shall be paid to Landlord at the same place where a ,notice to
Landlord is herein required to be directed.
ARTICLE XXVII - CERTIFICATES
----------------------------
Section 27.1 Either party shall, without charge, at any time and from
time to time hereafter, within ten (10) days after written request of the other,
certify by written instrument duly executed and acknowledged to any mortgagee or
purchaser, or proposed mortgagee or proposed purchaser, or any other person,
specified in such request: as to whether this Lease has been supplemented or
amended, and if so, the substance and manner of such supplement or amendment; as
to the validity and force and effect of this Lease, in accordance with its tenor
as then constituted; as to the existence of any default thereunder; as to the
existence of any offsets, counterclaims or defenses thereto on the part of such
other party; as to the commencement and expiration dates of the term of this
Lease; and as to any other matters as may reasonably be so requested. Any such
certificate may be relied upon by the party requesting it and any other person,
to whom the same may be exhibited or delivered, and the contents of such
certificate shall be binding on the party executing same.
ARTICLE XXVIII - GOVERNING LAW
------------------------------
Section 28.1 This lease and the performance thereof shall be governed,
interpreted, construed and regulated by the laws of the State of North Carolina.
23
ARTICLE XXIX - PARTIAL INVALIDITY
---------------------------------
Section 29.1. If any term, covenant, condition or provision of this
Lease or the application thereof to any person or circumstance shall, at any
time or to any extent, be invalid or unenforceable, the remainder of this Lease,
or the application of such term or provision to persons or-circumstances other
than those as to which it is held to persons or circumstances other than those
as to which it is held invalid or unenforceable, shall not be affected thereby,
and each term, covenant, condition and provision of this Lease shall be valid
and be enforced to the fullest extent permitted by law.
ARTICLE XXX - SHORT FORM LEASE
------------------------------
Section 30.1 The parties will at any time, at the request of either
one, promptly execute duplicate originals of an instrument, in recordable form,
which will constitute a memorandum or short form of lease, setting forth a
description of the Demised Premises, the easement rights granted to Tenant
herein, the term of this Lease and any other portions thereof, excepting the
rental provisions, as either party may request.
ARTICLE XXXI - INTERPRETATION
-----------------------------
Section 31.1 Wherever herein the singular number is used, the same
shall include the plural, and the masculine gender shall include the feminine
and neuter genders, and vice versa, as the context shall require. The captions
or headings used herein are for reference and convenience only, and shall not
enter into the interpretation hereof. This Lease may be executed in several
counterparts; each of which shall be an original, but all of which shall
constitute one and the same instrument.
ARTICLE XXXII - ENTIRE AGREEMENT
--------------------------------
Section 32.1 No oral statement or prior written matter shall have any
force or effect. Tenant agrees that it is not relying on any representations or
agreements other than those contained in this Lease. This Agreement shall not be
modified or cancelled except by writing subscribed by all parties.
ARTICLE XXXIII - PARTIES
------------------------
Section 33.1 Except as herein otherwise expressly provided, the
covenants, conditions and agreements contained in this Lease shall bind and
inure to the benefit of Landlord and Tenant and their respective heirs,
successors, administrators and assigns.
24
ARTICLE XXXIV - TENANT'S COVENANT
Section 34.1 Tenant hereby covenants and agrees that it shall comply
with the terms of the Steam Purchase Contract.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals
the day and year first above written.
"LANDLORD:"
XXXXXXXX XXXXX, INC.
ATTEST:
By_______________________________
BY:____________________________
Secretary Title____________________________
[Corporate Seal]
"TENANT:"
COGENTRIX LEASING CO
ATTEST:
By:______________________________
BY:____________________________
Secretary
Title:___________________________
[Corporate Seal]
25
