Exhibit 10.4
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SITE SUBLEASE
Dated as of May 25, 2004
between
SE RAVENSWOOD TRUST,
as Ground Sublessor
and
KEYSPAN-RAVENSWOOD, LLC
as Ground Sublessee
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TABLE OF CONTENTS
Page
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section 1. DEFINITIONS....................................................................................1
section 2. SUBLEASE OF Facility and Use of Easements......................................................1
Section 2.1. Sublease of the Facility and use of Easements.........................................1
Section 2.2. Basic Site Sublease Term..............................................................2
Section 2.3. Renewal Site Sublease Term............................................................2
Section 2.4. Return of Ground Interest.............................................................2
Section 2.5. Early Termination of Site Sublease Term...............................................2
Section 2.6. Nonterminability......................................................................3
section 3. RENT FOR THE SUBLEASE OF GROUND INTEREST.......................................................3
Section 3.1. Rent..................................................................................3
Section 3.2. Payment...............................................................................3
section 4. QUIET ENJOYMENT IN FAVOR OF THE GROUND SUBLESSEE...............................................4
Section 4.1. Ground Sublessee's Right of Quiet Enjoyment...........................................4
Section 4.2. Conveyances Pursuant to the Site Lease................................................4
section 5. USE OF GROUND INTEREST.........................................................................4
Section 5.1. Use...................................................................................4
Section 5.2. Compliance with Environmental Laws....................................................4
section 6. TRANSFER OF GROUND INTEREST....................................................................5
section 7. SEVERANCE......................................................................................5
section 8. NONMERGER......................................................................................5
section 9. SECURITY FOR OWNER LESSOR'S OBLIGATION UNDER LESSOR NOTE.......................................5
section 10. INSPECTION.....................................................................................6
section 11. MISCELLANEOUS..................................................................................6
Section 11.1. Amendments and Waivers..............................................................6
Section 11.2. Notices.............................................................................6
Section 11.3. Survival............................................................................8
Section 11.4. Successors and Assigns..............................................................8
Section 11.5. Governing Law.......................................................................8
Section 11.6. Severability........................................................................8
Section 11.7. Counterparts........................................................................8
Section 11.8. Headings and Table of Contents......................................................8
i
TABLE OF CONTENTS
(continued)
Section 11.9. Further Assurances..................................................................8
Section 11.10. Limitation of Liability.............................................................9
Section 11.11. Measuring Life......................................................................9
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SITE SUBLEASE
This SITE SUBLEASE, dated as of May 25, 2004 (this "Site Sublease"),
between SE RAVENSWOOD TRUST, a Delaware statutory trust ("Ground Sublessor" or
the "Owner Lessor") and KEYSPAN-RAVENSWOOD, LLC, a New York limited liability
company (the "Ground Sublessee" or the "Company").
W I T N E S S E T H:
WHEREAS, concurrently with the execution and delivery of this Site
Sublease, the Owner Lessor has acquired the Facility from the Company pursuant
to the Deed and Xxxx of Sale;
WHEREAS, concurrently with the execution and delivery of this Site
Sublease, the Company and the Owner Lessor have entered into a Site Lease and
Easement Agreement (the "Site Lease"), pursuant to which the Company leases the
Facility Site, assigns the Easements, grants the Additional Easements and grants
the right to use the Additional Property to the Owner Lessor;
WHEREAS, the Facility Site does not include any part of the Facility or the
Retained Site, and no part of the Facility or the Retained Site is being leased
to the Ground Sublessee hereunder; and
WHEREAS, pursuant to this Site Sublease, the Ground Sublessor is subleasing
the Facility Site and granting the right to use the Easements to the Ground
Sublessee for a term coterminous with that of the Facility Lease.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
agreements herein contained, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
section 1. DEFINITIONS
Unless the context hereof otherwise requires, capitalized terms used in
this Site Sublease, including those in the recitals, and not otherwise defined
herein shall have the respective meanings set forth in the Site Lease and
Appendix A to the Participation Agreement. The general provisions of such
Appendix A to the Participation Agreement shall apply to the terms used in this
Site Sublease.
section 2. SUBLEASE OF FACILITY SITE AND USE OF EASEMENTS
Section 2.1. Sublease of Facility Site and use of Easements. (a) The Ground
Sublessor hereby subleases the Facility Site (as described on Exhibit A hereto)
to the Ground Sublessee, together with the right to use the Easements (as
described on Exhibit B hereto), subject to the Site Lease and the other
Operative Documents. The sublease and other rights in this Section 2.1(a) are
intended to give the Ground Sublessee the right of ingress and egress to the
Facility, the right to use and operate the Facility and the other rights
described in Section 5.
(b) The Ground Sublessor and the Ground Sublessee understand and agree that
(i) the sublease and other rights in Section 2.1(a) are subject to Permitted
Liens and to the terms and conditions of the Site Lease, including, without
limitation, the Ground Sublessee's rights, as the lessor under the Site Lease,
under Sections 4.2, 4.3 and 4.4 of the Site Lease, (ii) the Ground Sublessor
does not have title to the Facility Site or the Retained Site, and (iii) title
to the Facility is vested in the Ground Sublessor and no part of the Facility is
being leased or subleased hereunder.
Section 2.2. Basic Site Sublease Term. The term of this Site Sublease shall
commence on the Closing Date and shall terminate at 11:59 p.m. (New York City
time) on the Expiration Date (the "Basic Site Sublease Term"), subject to early
termination pursuant to Section 2.5 hereof and renewal pursuant to Section 2.3
hereof.
Section 2.3. Renewal Site Sublease Term. If the Company exercises its
option to renew the Facility Lease for one or more Renewal Lease Terms pursuant
to Section 15 of the Facility Lease, the Basic Site Sublease Term shall
automatically and without further act by any Person be renewed for a term or
terms which shall be coterminous with the Renewal Lease Term(s) under the
Facility Lease (each, a "Renewal Site Sublease Term" and, together with the
Basic Site Sublease Term, the "Site Sublease Term").
Section 2.4. Return of Facility Site. Upon the expiration or early
termination of this Site Sublease, the Ground Sublessee shall (a) return the
Facility Site to the Ground Sublessor by surrendering the Facility Site into the
possession of the Ground Sublessor without representation or warranty, other
than a warranty that such Facility Site is free and clear of all Liens other
than Permitted Liens of the type specified in (b) (other than Indenture
Trustee's Liens), (h), (i), (j), (k), (l) or (m) of the definition thereof and
the interests of the Owner Participant and the Owner Lessor under the Operative
Documents without any other liability or cost to the Ground Sublessee, and (b)
upon the request of the Ground Sublessor, execute, acknowledge, and deliver a
release (or termination) of the Facility Site and the right to use the Easements
which release (or termination) shall be prepared by the Ground Sublessor at the
expense of, and in a form reasonably satisfactory to, the Ground Sublessee to be
duly recorded at the Ground Sublessee's expense with the Register's Office,
Queens County, New York. The obligations of the Ground Sublessor and the Ground
Sublessee under this Section 2.4 shall survive the termination of this Site
Sublease.
Section 2.5. Early Termination of Site Sublease Term. Notwithstanding
anything to the contrary in this Site Sublease, the Site Sublease Term shall
automatically terminate upon the expiration, cancellation or early termination
of the Facility Lease. Any such termination under this Section 2.5 shall be
without any further act of any Person. Upon termination of the Site Sublease
Term the Ground Sublessee shall return the Facility Site in accordance with
Section 2.4. Upon the request of the Ground Sublessor, the Ground Sublessee
shall execute, acknowledge, and deliver a termination of the Site Sublease with
respect to the Facility Site and the right to use the Easements which
termination shall be prepared by the Ground Sublessee at its expense and in a
form reasonably satisfactory to the Ground Sublessor to be duly recorded at the
Ground Sublessee's expense with the Register's Office, Queens County, New York.
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Section 2.6. Nonterminability. Subject to Section 2.5 hereof, the Site
Sublease Term shall not be terminated nor shall any of the rights granted or
conveyed hereunder to the Ground Sublessee be extinguished, in whole or in part,
by any circumstance of any character or for any reason whatsoever, including any
of the following: (a) any loss or destruction of, or damage to, the Facility,
any Component thereof or interruption or cessation in the use or possession
thereof or any part thereof by the Ground Sublessee for any reason whatsoever
and of whatever duration, (b) the condemnation, requisitioning, expropriation,
seizure or other taking of title to or use of the Facility, any Component
thereof or any part thereof by any Governmental Entity or otherwise, (c) any
prohibition, limitation or restriction on the use by any Person of all or any
part of its property or the interference with such use by any Person, or any
eviction by paramount title or otherwise, (d) any inadequacy, incorrectness or
failure of the description of the Facility Site or the Easements or any part
thereof or any rights or property in which an interest is intended to be granted
or conveyed by this Site Sublease, (e) the insolvency, bankruptcy,
reorganization or similar proceedings by or against the Ground Sublessor, the
Ground Sublessee or any other Person, (f) the failure by the Ground Sublessee to
comply with Section 3 or 5 or any other provision hereof, or (g) any other
reason whatsoever, whether similar or dissimilar to any of the foregoing.
section 3. RENT
Section 3.1. Rent. (a) The Ground Sublessee shall pay to the Ground
Sublessor the rent stipulated in Section 3.1(b) as consideration for the right
to possession and use of the Facility Site and for the easements and other
rights, privileges and licenses granted, conveyed and otherwise made available
to the Ground Sublessee hereunder for the Site Sublease Term.
(b) No rent shall be allocated to the first three months of the Site
Sublease Term. Thereafter, allocated rent shall be $243,000 per calendar year
(or a ratable portion thereof in the case of a partial calendar year) for the
first half of the remaining portion of the Site Sublease Term through the
Expiration Date under the Facility Lease and $297,000 per calendar year (or a
ratable portion thereof in the case of a partial calendar year) for the second
half of the remaining portion of the Site Lease Term through the Expiration Date
under the Facility Lease. In the event of any renewal of the Facility Lease, the
allocated rent shall be $270,000 per calendar year (or a ratable portion thereof
in the case of a partial calendar year) for the portion of the Site Sublease
Term following the Expiration Date under the Facility Lease through the end of
the Facility Lease Term. Subject to Section 3.2 hereof, the rent allocated to
each full or partial calendar year hereunder shall be paid by the Ground
Sublessee to the Ground Sublessor on December 31 of each year in the amount
allocated to such year (or in the event of a termination of this Site Sublease
prior to December 31 of a year, the rent payable for such year shall be paid on
the last day of the term hereof in the amount allocated to the portion of the
year in which this Site Sublease terminates through the date of such
termination).
(c) The Ground Sublessor and the Ground Sublessee agree that no other
consideration shall be due and payable from the Ground Sublessee for the rights
granted hereunder.
Section 3.2. Payment. The Ground Sublessor and the Ground Sublessee agree
that, during the Site Sublease Term, each payment of rent by the Ground
Sublessor, as lessee, pursuant to Section 3.1 of the Site Lease and each payment
of rent by the Ground Sublessee pursuant to Section 3.1 hereof shall be offset,
and no amounts shall be payable by the Ground Sublessor or the Ground Sublessee
in respect thereof.
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section 4. QUIET ENJOYMENT IN FAVOR OF THE GROUND SUBLESSEE
Section 4.1. Ground Sublessee's Right of Quiet Enjoyment. The Ground
Sublessor expressly agrees that, so long as no Lease Event of Default has
occurred and is continuing, neither the Ground Sublessor nor any party acting
by, through or under the Ground Sublessor (other than the Indenture Trustee)
shall take or cause to be taken any action contrary to the Ground Sublessee's
rights under this Site Sublease, including the right to possession, use and
quiet enjoyment of the Facility Site and the Easements.
Section 4.2. Conveyances Pursuant to the Site Lease. Grants of leases or
easements and conveyances of portions of the Facility Site, rights of way,
easements or leasehold interests made or reserved by the Ground Sublessee in
accordance with Section 4.2 or 4.3 of the Site Lease shall not constitute a
breach of the Ground Sublessee's right of quiet enjoyment under this Site
Sublease. In light of the nature of the Released Property to be granted,
released, leased or conveyed, either (x) this Site Sublease shall be subject to
the interest created in connection with the Released Property or (y) the
Released Property shall no longer be a part of the Facility Site and shall
automatically be deemed to be subject to or released from the effect of this
Site Sublease and any Lien on the Facility Site or otherwise under this Site
Sublease, in either case, without the necessity of the execution, delivery or
recording of any further instrument whatsoever. Any grant, sublease, assignment,
encumbrance or conveyance by the Ground Sublessor of its rights, title or
interest under this Site Sublease shall not constitute a breach of the Ground
Sublessee's right of quiet enjoyment under this Site Sublease; provided that
such grant, sublease, assignment, encumbrance or conveyance expressly provides
that the Ground Sublessor's interest under this Site Sublease is subject to the
Ground Sublessee's release rights set forth in Sections 4.2 and 4.3 of the Site
Lease, that any Released Property shall automatically be deemed to be released
from the effect of any such grant, sublease, assignment, encumbrance or
conveyance without the necessity of the execution, delivery or recording of any
further instrument whatsoever, and that the other party to such grant, sublease,
assignment, encumbrance or conveyance shall, at the request and expense of the
Ground Sublessee, execute and deliver such documents and instruments as may be
reasonably requested by the Ground Sublessee to evidence the foregoing.
section 5. USE OF FACILITY SITE AND EASEMENTS
Section 5.1. Use. The Ground Sublessee's rights hereunder to use the
Facility Site and the Easements during the Site Sublease Term shall be limited
to the right of the Ground Sublessee to use the Facility Site and Easements in
connection with the use, operation, maintenance, repair, upgrade, improvement,
alteration, removal, restoration and modification of the Facility in accordance
with the terms of the Operative Documents.
Section 5.2. Compliance with Environmental Laws. The Ground Sublessee will
comply with all Environmental Laws of any Governmental Entity having
jurisdiction as the same pertain to the Facility Site, unless such noncompliance
could not reasonably be expected to result in a Material Adverse Effect;
provided however that the Ground Sublessee may, in good faith and by appropriate
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proceedings, diligently contest the validity or applicability of any
Environmental Law in any reasonable manner that (A) does not involve any risk of
foreclosure, sale or forfeiture or loss of the Facility or the Facility Site (in
each case unless such risk is not material) or the impairment of the use,
operation or maintenance of the Facility in any material respect, and (B) could
not result in any criminal liability being incurred by, or could not reasonably
be expected to have any material adverse effect on the interests of, the Owner
Participant or the Ground Sublessor.
section 6. TRANSFER OF FACILITY SITE
The Ground Sublessee expressly agrees that the Ground Sublessee shall not
transfer or sublease the Facility Site except as part of the Ground Sublessee's
transfer of the Lessee's Interest in and pursuant to the Operative Documents.
The Ground Sublessor acknowledges that the Ground Sublessee shall have the right
to sublease or assign the Facility Site to a Person that is a sublessee or
assignee of the Facility in accordance with Section 19 of the Facility Lease or
Section 12.2 of the Participation Agreement.
section 7. SEVERANCE
The Facility, Components, Replacement Components, all equipment at any time
acquired by the Ground Sublessor and located on the Facility Site and each part
thereof have been severed from the Facility Site and from title thereto, shall
be considered as personal property of the Ground Sublessor, and even though
attached or affixed to or installed upon the Facility Site, as the case may be,
shall not be considered to be fixtures or a part of the Facility Site.
section 8. NONMERGER
The reversionary interest of the Ground Sublessee in the Facility Site
shall not merge into any interest in the Facility Site conveyed by this Site
Sublease even if such reversionary interest and such interest leased are at any
time vested in or held directly or indirectly by the same Person, but this Site
Sublease shall nonetheless remain in full force and effect in accordance with
its terms notwithstanding such vesting or holding unless and until the Person
holding such interests shall execute an instrument effecting such merger and
shall duly record such instrument. No such instrument of merger shall be
executed and recorded unless and until the Lien of the Indenture on the
Indenture Estate has been terminated or discharged in accordance with the terms
thereof.
section 9. SECURITY FOR GROUND SUBLESSOR'S OBLIGATION UNDER
NOTES
In order to secure the Notes, the Ground Sublessor will, by the Indenture,
assign and xxxxx x Xxxx to the Indenture Trustee in and to, inter alia, all of
the Ground Sublessor's right, title and interest in, to and under the Site
Lease, this Site Sublease and the Ground Interest (other than Excepted Payments
and Excepted Rights). The Ground Sublessee hereby consents to such assignment
and creation of such Lien and any sale arising from or in connection with the
exercise of remedies and acknowledges receipt of copies of the Indenture, it
being understood that such consent shall not affect any requirement or the
absence of any requirement for any consent under any other circumstances. Unless
and until the Ground Sublessee shall have received written notice from the
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Indenture Trustee that the Lien of the Indenture has been terminated or
discharged, the Indenture Trustee under the Indenture shall have the rights of
the Ground Sublessor under this Site Sublease to the extent set forth in and
subject in each case to the exceptions set forth in the Indenture.
section 10. INSPECTION
During the Site Sublease Term, each of the Owner Participant, the Ground
Sublessor, the Owner Trustee and, so long as the Lien of the Indenture shall not
have been terminated or discharged, the Indenture Trustee and the Pass Through
Trustee and each of their respective representatives may, during normal business
hours, on reasonable (and, in any event, not less than five (5) Business Days')
notice to the Ground Sublessee and at their own risk and expense (except, at the
expense but not risk, of the Ground Sublessee when a Significant Lease Default
or a Lease Event of Default has occurred and is continuing), inspect the
Facility Site; provided, however, that so long as no Significant Lease Default,
Lease Event of Default or Lease Default occasioned by a breach of the Ground
Sublessee's obligations under Section 7.1 of the Facility Lease shall have
occurred and be continuing, each such Person shall only be entitled to make one
inspection in any 12-month period, provided, further, however, that any such
Person may make more than one inspection during the last twelve (12) months of
the Site Sublease Term unless the Ground Sublessee has exercised its option
under Section 15 of the Facility Lease to renew the Facility Lease and thereby
extending the Site Sublease Term beyond such 12-month period. Any such
inspection will not unreasonably interfere with the operation or maintenance of
the Facility, of any facility located on the Retained Site or of any Additional
Property, or the conduct by the Ground Sublessee of its business and will be in
accordance with the Ground Sublessee's and any operator of the Facility's
safety, security, insurance and confidentiality programs. In no event shall any
of the Ground Sublessor, the Owner Participant, the Owner Trustee, the Indenture
Trustee or the Pass Through Trustee have any duty or obligation to make any such
inspection and such Persons shall not incur any liability or obligation by
reason of not making any such inspection.
section 11. MISCELLANEOUS
Section 11.1. Amendments and Waivers. No term, covenant, agreement or
condition of this Site Sublease may be terminated, amended or compliance
therewith waived (either generally or in a particular instance, retroactively or
prospectively) except by an instrument or instruments in writing executed by
each party hereto.
Section 11.2. Notices. Unless otherwise expressly specified or permitted by
the terms hereof, all communications and notices provided for herein shall be in
writing or by a telecommunications device capable of creating a written record,
and any such notice shall become effective (a) upon personal delivery thereof,
including by overnight mail or courier service, (b) in the case of notice by
United States mail, certified or registered, postage prepaid, return receipt
requested, upon receipt thereof, or (c) in the case of notice by such a
telecommunications device, upon transmission thereof, provided such transmission
is promptly confirmed by either of the methods set forth in clauses (a) or (b)
above, in each case addressed to such party hereto and copy party at its address
set forth below or at such other address as such party or copy party may from
time to time designate by written notice to the other parties:
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If to the Ground Sublessee:
KeySpan-Ravenswood, LLC
c/o KeySpan Corporation
Xxx XxxxxXxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Ground Sublessor:
SE Ravenswood Trust
c/o Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Corporate Trust Administration
with a copy to the Owner Participant:
SE Ravenswood Lease, L.L.C.
c/o Southern Energy Finance Company, Inc.
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Director of Capital Markets and Leasing
with a copy to:
c/o Southern Energy Finance Company, Inc.
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Financial Manager
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and to the Indenture Trustee (for so long as the Lien of the Indenture
has not been terminated or discharged):
Xxxxx Fargo Bank Northwest, N.A.
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx XX 00000
Telephone No. (000) 000-0000
Facsimile No. (000) 000-0000
Attention: Corporate Trust Services
and to the Pass Through Trustee (for so long as the Lien of the
Indenture has not been terminated or discharged):
Xxxxx Fargo Bank Northwest, N.A.
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx XX 00000
Telephone No. (000) 000-0000
Facsimile No. (000) 000-0000
Attention: Corporate Trust Services
Section 11.3. Survival. Except as expressly set forth herein, the
warranties and covenants made by each party hereto shall not survive the
expiration or termination of this Site Sublease in accordance with its terms.
Section 11.4. Successors and Assigns. This Site Sublease shall be binding
upon and shall inure to the benefit of, and shall be enforceable by, the parties
hereto and their respective successors and permitted assigns as permitted by and
in accordance with the terms hereof.
Section 11.5. Governing Law. This Site Sublease has been delivered in the
State of New York and shall be in all respects governed by and construed in
accordance with the laws of the State of New York, including all matters of
construction, validity and performance.
Section 11.6. Severability. Any provision of this Site Sublease that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 11.7. Counterparts. This Site Sublease may be executed 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 11.8. Headings and Table of Contents. The headings of the sections
of this Site Sublease and the Table of Contents are inserted for purposes of
convenience only and shall not be construed to affect the meaning or
construction of any of the provisions hereof.
Section 11.9. Further Assurances. Each party hereto will promptly and duly
execute and deliver such further documents to make such further assurances for
and take such further action reasonably requested by the other party, all as may
8
be reasonably necessary to carry out more effectively the intent and purpose of
this Site Sublease.
Section 11.10. Limitation of Liability. It is expressly understood and
agreed by the parties hereto that (a) this Site Sublease is executed and
delivered by the Trust Company, not individually or personally but solely as
Owner Trustee under the Trust Agreement, in the exercise of the powers and
authority conferred and vested in it pursuant thereto, (b) each of the
representations, undertakings and agreements herein made on the part of the
Owner Lessor is made and intended not as personal representations, undertakings
and agreements by the Trust Company, but is made and intended for the purpose
for binding only the Owner Lessor, (c) nothing herein contained shall be
construed as creating any liability on the Trust Company, individually or
personally, to perform any covenant either expressed or implied contained
herein, all such liability, if any, being expressly waived by the parties hereto
or by any Person claiming by, through or under the parties hereto and (d) under
no circumstances shall the Trust Company be personally liable for the payment of
any indebtedness or expenses of the Owner Lessor or be liable for the breach or
failure of any obligation, representation, warranty or covenant made or
undertaken by the Owner Lessor under this Site Sublease.
Section 11.11. Measuring Life. If and to the extent that any of the rights
and privileges granted under this Site Sublease, would, in the absence of the
limitation imposed by this sentence, be invalid or unenforceable as being in
violation of the rule against perpetuities or any other rule or law relating to
the vesting of interests in property or the suspension of the power of
alienation of property, then it is agreed that notwithstanding any other
provision of this Site Sublease, such options, rights and privileges, subject to
the respective conditions hereof governing the exercise of such options, rights
and privileges, will be exercisable only during (a) the longer of (i) a period
which will end twenty-one (21) years after the death of the last survivor of the
descendants living on the date of the execution of this Site Sublease of the
following Presidents of the United States: Xxxxxxxx X. Xxxxxxxxx, Xxxxx X.
Xxxxxx, Xxxxxx X. Xxxxxxxxxx, Xxxx X. Xxxxxxx, Xxxxxx X. Xxxxxxx, Xxxxxxx X.
Xxxxx, Xxxxxx X. Xxxx, Xxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx, Xxxxxx X.X. Xxxx,
Xxxxxxx X. Xxxxxxx and Xxxxxx X. Xxxx or (ii) the period provided under the
Uniform Statutory Rule Against Perpetuities or (b) the specific applicable
period of time expressed in this Site Sublease, whichever of (a) and (b) is
shorter.
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IN WITNESS WHEREOF, the parties hereto have caused this Site Sublease to be
duly executed and delivered under seal by their respective officers thereunto
duly authorized.
SE RAVENSWOOD TRUST ,
as Ground Sublessor
By: Wilmington Trust Company, not in its individual
capacity but solely as Owner Trustee
By:
-----------------------------------------
Name:
Title:
KEYSPAN-RAVENSWOOD, LLC,
as Ground Sublessee
By:
-----------------------------------------
Name:
Title:
00
XXXXX XX XXX XXXX )
) ss:
COUNTY OF NEW YORK )
On this ___ day of May 2004, before me, the undersigned,
personally appeared _________________, personally known to me or proved to me on
the basis of satisfactory evidence to be the individual whose name is subscribed
to the within instrument and acknowledged to me that he/she executed the same in
his/her capacity, and that by his/her signature on the instrument, the
individual, or the person on behalf of which the individual acted, executed the
instrument.
----------------------
Notary
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On this ___ day of May 2004, before me, the undersigned,
personally appeared _________________, personally known to me or proved to me on
the basis of satisfactory evidence to be the individual whose name is subscribed
to the within instrument and acknowledged to me that he/she executed the same in
his/her capacity, and that by his/her signature on the instrument, the
individual, or the person on behalf of which the individual acted, executed the
instrument.
----------------------
Notary
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EXHIBIT A
to
Site Sublease
-------------
DESCRIPTION OF FACILITY SITE
----------------------------
All that certain piece or parcel of land, situate, lying, and being at
Ravenswood Cogeneration Facility in Long Island City, the Borough and County of
Queens, City and State of New York, bounded and described as follows:
Beginning at the point of a newly constructed building within Parcel "A" having
coordinates of N277358.47 and E607681.66 in the New York State Plane Coordinate
System of 1927, which beginning point is distant the following three courses
from an angle point on the westerly side of Xxxxxx Boulevard (75 feet wide),
which angle point is located at the intersection of 38th Avenue (75 feet wide),
as said Boulevard and Avenue are shown on map #4297, titled "the Elimination of
00xx Xxxxxx and 38th Avenue between Xxxxxx Boulevard and the East River, along
with the layout of Sewer Easements", dated November 28, 1962 and adopted by the
Board of Estimate of the City of New York on July 25th, 1963 (Map #4297) which
map was filed at Topographical Bureau, Borough of Queens, City of New York on
August 9, 1963 thence;
A. North 25o02'04" East a distance of 476.77 feet in the right of way of
Xxxxxx Boulevard to a point, thence;
X. Xxxxx 00x00'00" Xxxx a distance of 214.15 feet at right angle from the
previous course to a point being the original point of beginning of the Con
Edison Lease area, thence;
C. South 23o48'54" West a distance of 9.07 feet to the point of beginning of
the Facility Site, running thence;
1. Xxxxx 00x00'00" Xxxx a distance of 43.51 feet along the perimeter of the
said Facility Site area to a point, thence;
2. North 32o20'17" East a distance of 4.31 feet along the same to a point,
thence;
3. Xxxxx 00x00'00" Xxxx a distance of 22.03 feet along the same to a point,
thence;
4. North 30o48'33" East a distance of 0.55 feet along the same to a point,
thence;
5. Xxxxx 00x00'00" Xxxx a distance of 30.24 feet along the same to a point,
thence;
6. South 30o48'33" West a distance of 30.23 feet along the same to a point,
thence;
7. Xxxxx 00x00'00" Xxxx a distance of 30.52 feet along the same to a point,
thence;
8. South 30o48'33" West a distance of 13.79 feet along the same to a point,
thence;
9. Xxxxx 00x00'00" Xxxx a distance of 9.74 feet along the same to a point,
thence;
10. South 30o48'33" West a distance of 107.85 feet along the same to a point,
thence;
11. North 59o11'27" West a distance of 20.80 feet along the same to a point,
thence;
12. South 30o48'33" West a distance of 85.62 feet along the same to a point,
thence;
13. Xxxxx 00x00'00" Xxxx a distance of 28.29 feet along the same to a point,
thence;
14. South 30o48'33" West a distance of 82.39 feet along the same to a point,
thence;
15. North 59o11'27" West a distance of 57.01 feet along the same to a point,
thence;
16. North 30o48'33" East a distance of 13.49 feet along the same to a point,
thence;
17. North 59o11'27" West a distance of 51.01 feet along the same to a point,
thence;
18. North 30o48'33" East a distance of 16.72 feet along the same to a point,
thence;
19. North 59o11'27" West a distance of 41.34 feet along the same to a point,
thence;
20. North 30o48'33" East a distance of 18.65 feet along the same to a point,
thence;
21. North 59o11'27" West a distance of 123.57 feet along the same to a point,
thence;
22. North 30o48'33" East a distance of 163.89 feet to a point, thence;
23. Xxxxx 00x00'00" Xxxx a distance of 6.58 feet to a point, thence;
24. Xxxxx 00x00'00" Xxxx a distance of 10.27 feet along facility site area to a
point, thence;
25. Xxxxx 00x00'00" Xxxx a distance of 117.09 feet along said facility site
area to a point, thence;
26. North 30o48'33" East a distance of 76.07 feet along the same to a point,
thence;
27. North 59o11'27" West a distance of 4.63 feet along the same to a point,
thence;
28. North 30o48'33" East a distance of 25.31 feet along the same to the Point
and Place of Beginning.
Containing: 1.380 Acres (60,095 Square Feet), more or less.
Being known as the Facility Site, on map entitled "Facility Site Within Parcel
"A", Long Island City, Queens, New York", prepared by GEOD Corporation, dated
April 22, 2004, as last revised May 24, 2004.
EXHIBIT B
to
Site Sublease Agreement
-----------------------
DESCRIPTION OF EASEMENTS
------------------------
A. The easements originally granted to the Ground Lessor pursuant to that
certain Supplemental (Ravenswood) Easement Agreement ("SREA"), dated as of
February 4, 2003, by and among Consolidated Edison Company of New York, Inc.,
Steam House Leasing, LLC and the Ground Lessor (the "SREA Easements"), which
agreement shall be recorded in the Queens County Register's Office immediately
prior to the Memorandum of Site Lease, as follows:
1. Installation, erection, construction, reconstruction, maintenance,
repair, rebuilding, modification, renovation, inspection, testing and operation
of a concrete "stack" and the concrete foundation on which it is constructed.
2. Installation, erection, construction, reconstruction, maintenance,
repair, rebuilding, modification, renovation, inspection, testing and operation
of a building to house the Continuous Emission Monitoring System "CEMS".
3. Installation, erection, construction, reconstruction, maintenance,
repair, rebuilding, modification, renovation, inspection, testing and operation
of an "Aqueous Ammonia Tank in Dike," as well as an area appurtenant thereto for
the installation, erection, construction, reconstruction, maintenance, repair,
rebuilding, modification, renovation, inspection, testing and operation of an
oil water separator.
4. Installation, erection, construction, reconstruction, maintenance,
repair, rebuilding, modification, renovation, inspection, testing and operation
of (A) a building to house a gas compressor and (B) lubricating oil containment
and storage tanks and systems, a hot gas scrubber, coalescing filter, recycling
cooler, fuel gas heater, related piping and electrical conduits.
5. Installation, erection, construction, reconstruction, maintenance,
repair, rebuilding, modification, renovation, inspection, testing and operation
of (A) an underground kerosene fuel line and (B) electric lines located in an
underground trench.
6. Installation, erection, construction, reconstruction, maintenance,
repair, rebuilding, modification, renovation, inspection, testing and operation
of a 12 foot wide underground common utility trench.
7. Installation, erection, construction, reconstruction, maintenance,
repair, rebuilding, modification, renovation, inspection, testing and operation
of an above grade export steam line.
8. Installation, erection, construction, reconstruction, maintenance,
repair, rebuilding, modification, renovation, inspection, testing and operation
of a "138 KV underground cable line".
9. Installation, erection, construction, reconstruction, maintenance,
repair, rebuilding, modification, renovation, inspection, testing and operation
of a "Sanitary Sewer Line".
10. Installation, erection, construction, reconstruction, maintenance,
repair, rebuilding, modification, renovation, inspection, testing and operation
of a "12" Fire Protection Loop".
11. Installation, erection, construction, reconstruction, maintenance,
repair, rebuilding, modification, renovation, inspection, testing and operation
of a "31G04 Feeder Breaker G4E," and appurtenant equipment (including, but not
limited to, appurtenant generator breakers, motor operated disconnect switches,
ground switches, voltage regulators, transformers, manually operated disconnect
switches, circuit breakers).
12. Installation, erection, construction, reconstruction, maintenance,
repair, rebuilding, modification, renovation, inspection, testing and operation
of a "Natural Gas Feeder Line".
B. The easements originally granted to the Ground Lessor as described in
Schedule 2.02(a)(5), Schedule 2.02(a)(8) and Schedule 2.03(3) of that certain
Amended and Restated Ravenswood Declaration of Easements Agreement ("DOE"),
dated June 18, 1999, by and among Consolidated Edison Company of New York, Inc.,
Steam House Leasing, LLC and the Ground Lessor (the "DOE Easements," and
collectively with the SREA Easements, the "Easements"), recorded in the Queens
County Register's Office on June 30, 1999 in Reel 5294, Page 2470, as follows:
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1. An Easement over a portion of Xxxxxx Substation for the maintenance,
repair, operation, inspection and replacement of electrical feeders X0X, X0X,
X0X, X0X, X0X, and C2A.
2. An Easement over a portion of Xxxxxx Substation for the maintenance,
repair, operation and inspection of the Discharge Tunnel.
3. An Easement for the operation, inspection, testing, repair, replacement
and maintenance of all steam piping downstream of the 2 6" revenue meters.
The Easements are depicted on the attached Survey prepared by GEOD Corporation,
dated April 22, 2004, as last revised May 24, 2004 (provided, however, that any
conflict between the description on the Survey and the actual location of the
Easement shall be resolved in favor of the actual location of the Easement).
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