EXHIBIT 10.27
NITROGEN SUPPLY AGREEMENT
BETWEEN
XXXXXX CORPORATION SEMICONDUCTOR SECTOR
MOUNTAINTOP, PENNSYLVANIA FACILITY
AND
LIQUID AIR CORPORATION
MERCHANT GASES DIVISION
XXXXXX SEMICONDUCTOR NITROGEN SUPPLY AGREEMENT
MOUNTAINTOP, PENNSYLVANIA
Table of Contents
1.0 DEFINITIONS
2.0 CONSTRUCTION
3.0 PURCHASE, DELIVERY AND TITLE
4.0 PRICING
5.0 PRICE ADJUSTMENTS
6.0 OWNERSHIP
7.0 OPERATIONS - MAINTENANCE - IMPROVEMENTS
8.0 HSS'S DISTRIBUTION SYSTEM
9.0 SPECIFICATIONS:
10.0 TAXES
11.0 SHUTDOWNS & GUARANTEES
12.0 METERING
13.0 UTILITIES
14.0 INSURANCE
15.0 DEFAULT
16.0 WARRANTIES
17.0 INDEMNIFICATION
18.0 FORCE MAJEURE
19.0 TERM
20.0 ASSIGNMENT
21.0 NOTICE
22.0 GENERAL
APPENDIX A INDENTURE TO LEASE
EXHIBIT 1 METES AND BOUNDS DESCRIPTION OF LEASED
PREMISES
APPENDIX B ESTIMATED UTILITY REQUIREMENTS
APPENDIX C DESCRIPTION OF NORMAL ATMOSPHERIC AIR
APPENDIX D SAMPLE XXXXXX CALENDAR YEAR
APPENDIX E PLOT PLAN FOR LAC FACILITY
NITROGEN SUPPLY SYSTEM
THIS AGREEMENT made and effective as of the 22nd day of Sept., 1992 (hereinafter
referred to as the "Effective Date").
BETWEEN: LIQUID AIR CORPORATION, MERCHANT GASES DIVISION, a corporation duly
incorporated under the laws of the State of Delaware, having its
main office at 0000 Xxxxx Xxxxxxxxxx Xxxxxxxxx, Xxxxxx Xxxxx,
Xxxxxxxxxx 00000 (hereinafter referred to as "LAC")
AND XXXXXX CORPORATION, SEMICONDUCTOR SECTOR, a corporation duly
incorporated under the laws of the State of Delaware, having offices
at Melbourne, Florida (hereinafter referred to as "HSS").
WHEREAS, HSS requires substantial quantities of Nitrogen for use at HSS's Plant
Facilities, and
WHEREAS, under agreements executed previously LAC has installed, owned, operated
and maintained LAC Plant Facilities on the Leased Premises for the supply by LAC
to HSS of HSS's requirements of Nitrogen for HSS's Plant Facilities, and
WHEREAS, except for such obligations for payment for product and facility fees
as may be due on account thereunder, neither party is aware of any claim against
the other under the said previously executed agreements, and
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WHEREAS, under this Agreement, LAC is willing to continue to install, own,
operate and maintain the LAC Plant Facilities (including certain expansions
thereof to be made per this Agreement) for the continued supply by LAC to HSS of
HSS's said Nitrogen requirements,
NOW THEREFORE, the parties covenant and agree as follows:
1.0 - DEFINITIONS
As used in this Agreement:
1.1 HSS's Distribution System shall refer to the system of trunk and service
pipelines leading from the battery limits of the LAC Plant Facility HPH-18
(the #2 plant) and HPN-65 (the #1 plant) for the distribution of Nitrogen
to the various use points within HSS's Plant Facilities.
1.2 HSS's Plant Facilities shall mean the Mountaintop semiconductor operation
located at Mountaintop, Pennsylvania which is and shall be owned and
operated by HSS or any successor to HSS's interest in such plant,
including any alterations or expansion of such facilities made during the
term of this Agreement.
1.3 Completion Date shall mean eight (8) months after the Effective Date or an
earlier date if LAC notifies HSS that the expanded #1 plant is complete
and operational.
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1.4 Contract Year shall mean the period of twelve (12) consecutive months
beginning on the Completion Date, and every period of twelve (12)
consecutive months thereafter during the term of this Agreement.
1.5 Gaseous Nitrogen shall mean all quantities of Nitrogen produced in gaseous
form by the LAC Plant Facility, HPN-18 (#2 plant) and HPN-65 (#1 plant),
and made available for delivery to HSS.
1.6 Hauled-In Liquid Nitrogen shall mean all quantities of Nitrogen in liquid
form which is hauled in from off-site production facilities by LAC and
delivered to HSS.
1.7 LAC Plant Facility shall mean all equipment and facilities previously or
to be installed, owned and operated by LAC on the Leased Premises for the
production, storage, vaporization, compression, and delivery of Nitrogen
in accordance with this Agreement, including any alterations or expansion
of such facilities during the term hereof. The LAC Plant Facility shall be
capable of producing and compressing a maximum of eighteen thousand
(18,000) SCF per hour of Gaseous Nitrogen (plant #2) at ninety (90) PSIG
and an expected maximum after the #1 plant expansion (before the #1 plant
expansion the maximum is forty seven thousand (47,000) SCF per hour) of
sixty-five thousand + /- (65,000 + /-) SCF per hour of Gaseous Nitrogen at
ninety five (95) PSIG,(the "Plant Maximums") and shall include the Liquid
BackUp System.
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1.8 Leased Premises shall mean the property owned by HSS and leased to LAC
pursuant to the terms and conditions of a separate "Indenture of Lease"
attached hereto and made part hereof as Appendix A, on which property the
LAC Plant Facility are or will be located.
1.9 Liquid Back-Up System shall mean at the #2 plant a nine thousand (9,000)
and a six thousand (6,000) gallon liquid Nitrogen storage vessel with
vaporizers, associated piping, valves, and other related equipment capable
of vaporizing up to eighteen thousand (18,000) SCF per hour of Nitrogen.
At the #1 plant, after the plant expansion, the Liquid Back-Up System
shall mean two (2) eleven thousand (11,000) and a nine thousand (9,000)
gallon liquid Nitrogen storage vessel with vaporizers, associated piping,
valves, and other related equipment capable of vaporizing up to an
estimated sixty-five thousand +/- (65,000 +/-) SCF per hour of Nitrogen.
1.10 Major Equipment shall mean main air compressor, heat exchangers, and the
turbine expander, column, metallic structures, main breakers and motors.
1.11 Major Equipment Failure shall mean failure of piece of a Major Equipment
for reasons other than due to LAC's failure to perform reasonable
maintenance as specified in the vendors manuals or for reasons of LAC's
negligence.
1.12 Month or Monthly shall mean a Xxxxxx calendar month. Xxxxxx will always
pay 12 facility fee payments per legal calendar year. An example of a
Xxxxxx calendar for the year is in Appendix C.
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1.13 Nitrogen shall mean all quantities of all types of bulk liquid and gaseous
Nitrogen (except cylinder gases) used in the HSS Plant Facilities.
1.14 Point(s) of Delivery in the case of Gaseous Nitrogen shall be the point on
the Nitrogen pipelines immediately downstream of the gas-phase flow meters
at the point of connection between the LAC Plant Facility and the HSS's
Distribution System. In the case of Hauled-In Liquid Nitrogen, Point of
Delivery shall be the point or points at which said Nitrogen enters the
storage vessel being part of the Liquid Back-up System.
1.15 PSIG shall mean pounds per square inch gauge.
1.16 Standard Cubic Foot (SCF) shall mean the unit of measurement for all
purposes hereunder, representing that quantity of dry gas which would
occupy a volume of one cubic foot at seventy (70) degrees Fahrenheit
temperature and 14.696 pounds per square inch absolute pressure.
1.17 SCFH shall mean standard cubic feet per hour.
2.0 - CONSTRUCTION
2.1 Upon the Effective Date LAC shall commence its efforts to obtain and
maintain all permits and licenses necessary for the construction expansion
of the LAC #1 Plant Facility. HSS shall use all reasonable efforts to
assist LAC in obtaining and maintaining
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such permits and licenses. Should LAC, despite exerting every reasonable
effort, be unable to obtain all permits and licenses necessary for the
construction of the expansion of the LAC #1 Plant (HPN-65) as contemplated
hereunder within one hundred and twenty (120) days of the Effective Date,
LAC shall so notify HSS in writing, and those parts of this Agreement
relating to the plant expansion may then be suspended by either party by
written notice to the other at any time thereafter until such time as all
such permits and licenses have been obtained. Unless otherwise agreed upon
in writing by LAC and HSS, LAC shall not, during the period prior to
obtaining all necessary permits and licenses, undertake or commence any
work on the design, engineering, fabrication, procurement or construction
of the LAC Plant Facility.
2.2 Promptly upon LAC obtaining all necessary permits and licenses, LAC shall,
at its sole expense, make necessary and appropriate preparations for, and
thereafter proceed with design, engineering, fabrication, procurement, and
construction of the LAC #1 Plant Facility expansion upon the Leased
Premises. Liquid Air Engineering Corporation (LAEC) has recommended to
Liquid Air that the existing #1 plant functioning at 47,000 SCFH can be
expanded to an expected 65,000 +/- SCFH. LAC will use all reasonable
efforts to have the LAC #1 Plant Facility operational within eight months
of the Effective Date.
2.3 During the preparation for and construction of the expansion of the #1
Plant within the LAC Plant Facility and at all times as applicable during
the Term hereof as set forth in Section of this Agreement, LAC shall:
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a. Designate a competent superintendent who, on behalf of LAC, shall
have complete charge of all work on and operation of the LAC Plant
Facilities.
b. Comply with all laws, ordinances, codes, statutes and regulations
applicable to the construction, installation and operation of the
LAC Plant Facilities.
c. Indemnify and hold harmless HSS from all mechanics' and suppliers'
liens arising out of the labor and materials furnished by or to LAC
or its subcontractors in connection with the construction and
operation of the LAC Plant Facilities on the Leased Premises, except
for all such liens resulting from the acts of HSS, including its
employees, agents or assigns.
d. Take all reasonable precautions to keep the Leased Premises and the
lands contiguous thereto free from accumulation of waste materials
caused by LAC's activities hereunder (including those of LAC's
subcontractors), and upon completion of all work, remove all surplus
materials.
e. Take all reasonable precautions to protect HSS's property from
damage arising from acts of LAC, its subcontractors, or employees;
LAC shall not however, be responsible for any damage to HSS's
property caused by acts of HSS, its contractors, employees, agents
or assigns.
2.4 At all times during the Term of this Agreement (including the period of
construction of the #1 Plant within the LAC Plant Facility) HSS shall:
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a. make available to LAC space on the premises of the HSS's Plant
Facilities adjacent to the Leased Premises for use by LAC for
temporary storage of construction materials and equipment, on the
condition however, that all risk of damage to and loss of such
materials and equipment shall lie with LAC, except with respect to
damage or loss caused by the negligence or otherwise wrongful
conduct of HSS, its employees, agents or assigns.
b. Provide LAC free and clear access appropriate to LAC's use of the
Leased Premises via hard-surface roadways, from a public access
highway to the Leased Premises and on HSS's lands contiguous thereto
at all times without charge, obstruction, or delays and provide LAC
with rights-of-way across HSS's contiguous lands for installation
and operation of utilities and services necessary or appropriate to
the operation of the LAC Plant Facility on the Leased Premises.
c. Prevent unauthorized persons from tampering with, repairing, moving
or having access to the LAC Plant Facility.
d. Install and maintain, at its cost and expense, the HSS's
Distribution Systems as required for the safe and proper receipt and
handling of Nitrogen supplied by LAC hereunder.
e. Notify LAC immediately of any damage to or malfunction of any
component of the LAC Plant Facility whether real or apparent.
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f. Provide to LAC the additional property needed at the #1 Plant for
the new liquid nitrogen vaporization system as included in APPENDIX
A, EXHIBIT 1 DESCRIPTION OF LEASED PREMISES. Additionally, the plot
plan for #1 plant is included as APPENDIX E.
3.0 - PURCHASE, DELIVERY AND TITLE
3.1 As of the Effective Date, and continuing through the end of the Term as
set forth in Section 19.1 hereof, LAC will continue to sell and deliver to
HSS and HSS will continue to purchase and receive from LAC HSS's entire
requirements for Nitrogen (both bulk liquid and gaseous forms, except
cylinder gases) for use by HSS at its plant Facilities as follows:
a. Gaseous Nitrogen will be produced and delivered by LAC up to the
Plant Maximums (either, as applicable, the current Maximums as of
the Effective Date, or the increased Maximums as of the commencement
of operations of the expanded #1 Plant within the LAC Plant
Facility) during periods when the production and compression
equipment of the LAC Plant Facility are in normal operation to meet
HSS's instantaneous Gaseous Nitrogen requirements, which shall not
exceed the Plant Maximums.
b. Hauled-In Liquid Nitrogen will be withdrawn from the Liquid Back-Up
System, to the extent available, vaporized and supplied in its
gaseous form as follows:
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i. Whenever HSS's instantaneous gaseous Nitrogen requirements exceed
the actual instantaneous Gaseous Nitrogen capacity of either plant within
the LAC Plant Facility, and
ii. Whenever all or part of the LAC Plant Facility are inoperative.
c. Hauled-In Liquid Nitrogen such as liquid nitrogen for dewars to
supply other HSS's requirements as may exist and the price shall be
according to 4.1(b).
3.2 Delivery of all Nitrogen to HSS hereunder shall be made at the Points of
Delivery. Title and risk of loss to all Nitrogen supplied hereunder will
pass to HSS at said Points of Delivery. Risk of loss shall remain with LAC
until such time.
4.0 - PRICING
4.1 Subject to the provisions of Paragraph 5.0 hereunder, in consideration of
the costs LAC shall/has incurred to install, own, operate and maintain the
LAC Plant Facility (and of the additional costs that it will incur for
such purposes) for the delivery of Nitrogen to HSS, HSS shall pay to LAC
each and every month during the Term of this Agreement, notwithstanding
anything else to the contrary contained herein (including Paragraph 18.0)
in accordance with the following schedule:
(a) [REDACTED]
(b) For all quantities of Hauled-In Liquid Nitrogen delivered by LAC,
except for liquid nitrogen used within the LAC Facility for plant
operation and except for
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special price provided for in subpart (c) below which shall apply
during non-operation of Plant #1 in connection with the expansion
thereof, HSS shall pay LAC a unit price equal to LACs prevailing
Demand Schedule Price in effect for Liquid Nitrogen plus
transportation charges per LAC's current standard cartage rates from
LAC's nearest point of manufacture (This will not include the
facility fee listed in the demand schedule, as that charge is
covered in the facility fee for the #1 and #2 plants nor the demand
charge listed in the demand schedule). Said price shall be adjusted
by LAC from time to time to reflect changes in LAC's Schedule Price
and such new price shall become effective upon thirty (30) days
written notice to HSS. Upon HSS's request, LAC shall provide
documentation on a confidential basis that said pricing for
Hauled-In Liquid Nitrogen is consistent with the price charged to
other similar LAC customers, corrected for local conditions such as
energy and distribution costs and local supply and demand conditions
and local competitive factors.
(a) [REDACTED]
4.2 Payment terms for all amounts due and payable by HSS to LAC hereunder
shall be net twenty five (25) days from date of invoice. LAC shall have
the right to charge HSS late payment fees on any past due amount at an
interest rate of one percent (1%) per month. Any billing dispute must be
made in writing within twenty-five (25) days after the date of invoice;
otherwise, the amounts indicated on invoice shall be considered by both
parties to be final and binding.
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5.0 - PRICE ADJUSTMENTS
5.1 [REDACTED]
6.0 - OWNERSHIP
It is understood and Agreed that the LAC Plant Facilities, including any
improvements, additions, expansions, or modifications made thereto is and shall
remain absolutely the property of LAC at all times. HSS shall promptly remove
any liens, claims or encumbrances caused by HSS including their employees,
agents and contractors against the LAC Plant Facility.
7.0 - OPERATIONS - MAINTENANCE - IMPROVEMENTS
7.1 LAC shall, at its own cost, operate and perform such maintenance and
repair work on the LAC Plant Facility as required to maintain the facility
in good working order and condition. LAC shall perform such work and
operate the LAC Plant Facility in a prudent and efficient manner in
accordance with generally accepted industry standards.
7.2 Subject to written approval by HSS, and HSS's agreement therein to the
costs thereof, LAC shall make capital improvements and/or replace Major
Equipment of the LAC Plant Facility from time to time as may be (i)
requested by HSS, (ii) mandated by governmental authorities, (iii)
necessitated because of changes in HSS's requirements for product, or (iv)
required by the air quality surrounding the LAC Plant Facility. Such work
shall be performed by LAC for the account of HSS by the parties' agreeing
in advance to a fair and reasonable increase in the Monthly Facility Fee
as necessary to provide for any
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increases in LAC's operating cost (including, but not limited to, the
additional cost of taxes and insurance) and for the amortization over the
remaining term of this Agreement of all agreed upon costs of LAC to
perform such work. Should HSS not agree to pay said costs, LAC shall have
no obligation to run the Plant Facility if its operation is deemed by LAC
to be dangerous or in violation of any law or regulation.
7.3 While the purity specifications set forth in Paragraph 9.0 herein are
sufficient for the current needs of HSS, the parties hereto acknowledge
that LAC is currently capable of supplying Gaseous Nitrogen with greater
purity specifications than set forth in Paragraph 9.0. LAC also
recognizes, that HSS is in an industry which requires ever increasing
industrial gas purity, and consequently agrees to review any written
request by HSS to improve the purity of the Gaseous Nitrogen produced by
the LAC Plant Facility. Providing LAC is able to modify the LAC Plant
Facility to meet such additional purity requirements and HSS agrees to pay
for such additional costs as set forth in Paragraph 7.2, LAC shall so
inform HSS and, following completion of the plant modifications and
payment therefor by HSS, such specification shall become a part of this
agreement.
In the event that HSS requires a new facility to produce Gaseous Nitrogen
of significantly higher purity, HSS shall have the right and option to
contract for the purchase thereof from a new facility, and in connection
therewith, to terminate this agreement by making a payment to LAC
calculated in accordance with Section 19.2 hereof and by complying with
the following conditions:
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1. HSS shall issue a Request for Quotation ("RFQ") to LAC and such other parties
as HSS deems to be capable and qualified, requesting that such parties submit a
proposal for supplying HSS's Gaseous Nitrogen requirements in accordance with
the specifications and other terms and conditions specified in the RFQ. HSS
agrees to send LAC an identical copy of the RFQ including all amendments
thereof.
2. If LAC fails to submit a proposal within the period specified in any RFQ
(which period shall be at least 30 days), LAC shall be considered
non-responsive, and HSS shall be free to conclude a new supply agreement with
any other party pursuant to the RFQ which LAC failed to respond to. In such case
this agreement shall terminate upon the date the new supplier of Gaseous
Nitrogen commences delivery of Gaseous Nitrogen and HSS makes the payment set
forth in Paragraph 19.2.
3. If LAC submits a proposal and HSS deems LAC's proposal to be most favorable,
the parties shall enter into a new Nitrogen Supply Agreement based on the terms
of LAC's proposal and HSS shall make the payment set forth in paragraph 19.2
upon start up of the new facility.
8.0 - HSS'S DISTRIBUTION SYSTEM
HSS shall be responsible, at its cost, for maintaining HSS's Distribution System
in a condition suitable for receiving gaseous Nitrogen at working pressures up
to one hundred ten (110) PSIG for the #2 plant and up to one hundred twenty
(120) PSIG for the #1 plant at all times during the term of this Agreement. The
pre-expansion working pressures will be the same as the post expansion working
pressures.
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9.0 - SPECIFICATIONS
9.1 All Gaseous Nitrogen delivered by LAC hereunder at a flow rate not
exceeding eighteen thousand (18,000) SCFH for the #2 Plant and at a flow
rate not exceeding forty seven thousand (47,000) SCFH for the existing
pre-expansion Plant and an expected sixty five thousand + /- (65,000 + /-)
SCFH after the expansion for the #1 Plant, shall be in accordance with the
following specifications:
Nitrogen
--------
1. PURITY (Vol % Minimum) 99.999 (incl. inerts)
2. IMPURITIES
COMBINED O(2) & MOISTURE (PPM MAXIMUM) 1.0
HYDROGEN (PPM EXPECTED) 1.0
CARBON DIOXIDE (PPM MAXIMUM) 1.0
HYDROCARBON (AS METHANE) (PPM MAXIMUM) 1.0
CARBON MONOXIDE (PPM EXPECTED) 1.0
3. PRESSURE AT POINT OF DELIVERY (PSIG)#2 PLANT 90
PRESSURE AT POINT OF DELIVERY (PSIG)#1 PLANT 95
9.2 All Hauled-In Liquid Nitrogen shall comply with the Compressed Gas
Association's standards and LAC's standard specifications.
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9.3 The design and operation of the LAC Plant Facility by LAC hereunder is
predicated on the use of atmospheric air containing only commonly
occurring atmospheric contaminants and corrosive components. If due to new
or changed operations at HSS Plant Facilities, the purity of the
atmosphere at HSS Plant Facilities decreases below the atmosphere that is
defined in the typical air analysis attached hereto as Appendix D to such
an extent that, in the opinion of LAC, operation of the LAC Plant
Facilities is hazardous, then HSS will correct the condition, or if HSS
does not correct the condition, then LAC may alter the LAC Plant Facility
to eliminate the hazards and HSS will pay for any equipment needed by LAC
and the installation, operation and maintenance of same. To the extent
practicable, LAC will use the most cost effective and environmentally
compliant required means to eliminate the hazards.
10.0 - TAXES
10.1 Effective upon the Effective Date, HSS shall pay directly or shall be
obligated to reimburse to LAC upon demand the amount of any taxes (other
than net income or excess profit taxes or like taxes related to income or
excess profits), including but not limited to sales, excise and property
taxes, or charges and fees paid by LAC which may be imposed by the United
States Government or any state or local governmental authority upon, or
measured by (i) the acquisition cost or assessed value of equipment
installed as part of the LAC Plant Facility or (ii) the production,
delivery, or use of the equipment or (iii) the sale or use of Nitrogen
sold to HSS hereunder. It is self evident that Xxxxxx shall not have to
pay any tax twice.
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10.2 If at any time after the Effective Date any new net income or excess
profit taxes or like taxes related to income or excess profits is imposed
on LAC by any governmental authority or if the rate, provided by law, of
any existing net income or excess profit taxes or like taxes related to
income or excess profits is increased over current levels, then LAC shall
have the right to increase the monthly Facility Fee to HSS to the degree
that LAC can reasonably demonstrate to an independent auditor, acceptable
to both parties, that the profitability to LAC is directly decreased
thereby. LAC shall only have the right to one such increase during the
term of this Agreement and said increase shall become effective on the
date the notice is received by HSS.
11.0 - SHUTDOWNS
11.1 LAC will have the right, from time to time, to shut down the production
and compression facilities of the LAC Plant Facilities for such periods of
time as may be necessary for LAC to perform scheduled plant turnarounds
consistent with proper operation. LAC shall cooperate with HSS by
notifying HSS in advance and when possible to schedule shutdowns for
maintenance so as to coincide with HSS's period of least demand for
Nitrogen. During any such downtime period, LAC will deliver HSS's gaseous
Nitrogen requirements by vaporizing Hauled-In Liquid Nitrogen from the
Liquid Back-Up System.
11.2 In the event that downtime of the LAC Plant Facility, for reasons other
than force majeure, solely attributable to LAC, exceeds 350 hours for the
#1 plant and 350 hours for the #2 plant in any sliding two year period of
the Agreement, commencing with the Completion Date, then during any
downtime exceeding 350 hours per plant in any said
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two year period, LAC's price to HSS for vaporized Hauled-In Liquid
Nitrogen, up to 47,000 SCFH for Plant #1 before the expansion thereof is
made operational and 65,000 SCFH after it is made operational, and up to
18,000 SCFH for Plant #2, shall be equal to the average power cost to HSS
for the production of a like quantity of Gaseous Nitrogen at the LAC Plant
Facility during the most recent on-stream month. All other conditions of
the Agreement including payment of the monthly Facility Fees shall remain
in full force and effect. However any monthly Facility Fee adjustment
called for and pursuant to Paragraph 5.1 shall also be made during such
downtime periods. Said price adjustment(s) shall be the sole remedy of HSS
for any downtime. Downtime due to the #1 plant rebuild is not to be
figured in the 350 hrs in any two year period.
12.0 - METERING
LAC, at its expense, will install and maintain metering equipment as part of the
LAC Plant Facility to measure the quantity of Gaseous Nitrogen delivered to HSS.
HSS shall have the right, at its cost and upon reasonable notice to LAC, to test
the accuracy of the meters at any time. Deliveries of Hauled-In Liquid Nitrogen
shall be measured by LAC, using the method it regularly uses for the type of
delivery made.
13.0 - UTILITIES
HSS shall be responsible for providing to the battery limits of the Leased
Premises, at no expense to LAC, all electrical power, cooling water, steam and
other utilities necessary for the construction, operation and maintenance of the
LAC Plant Facilities by LAC in accordance with
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the terms hereof. Such utilities as needed by LAC, which are the responsibility
of HSS, are set forth and attached on Appendix B.
14.0 - INSURANCE
14.1 During the term of this Agreement, LAC and HSS shall each purchase and
maintain at their respective expense a General Liability insurance policy,
for such amounts as they may consider adequate to protect their respective
interests with the following minimums:
a. Comprehensive General and Automobile Liability -
Bodily Injury and Property Damage $1,000,000 per occurrence Combined
Single Limit;
b. Worker's Compensation and Employer Liability within statutory
limits.
14.2 LAC shall take and maintain at its expense over the term of this Agreement
Fire and `Multiple Risk insurance coverage on the LAC Plant Facility. The
terms of such insurance coverage shall be and remain consistent with the
insurance coverage LAC typically carries on its own plants.
15.0 - DEFAULT
15.1 If a voluntary or involuntary petition is filed by or against LAC under
any bankruptcy law (including a petition for reorganization, extension of
payment, composition or adjustment of liabilities), or if a receiver
should be appointed for LAC, or if any adjustment or execution is levied
against all or part of the property of LAC, or if LAC
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shall default in the performance of any material covenant to be performed
by it under this Agreement and, within thirty (30) days after written
notice thereof from HSS, shall not cure such default, bankruptcy, levy, or
receivership within thirty days (or, in the case of non-monetary defaults
which are of such type that they cannot reasonably be cured within thirty
days, shall not commence to cure such default within thirty (30) days and
thereafter diligently pursue such cure), HSS may, without prejudice to any
other right or remedy it might have, terminate this Agreement by written
notice and the payments set forth in Paragraph 4.0 and 5.0 herein shall
cease as of the date set for termination in said written notice.
15.2 If a voluntary or involuntary petition be filed by or against HSS under
any bankruptcy law (including a petition for reorganization, extension of
payment, or adjustment of liabilities), or if a receiver should be
appointed for HSS, or if an adjustment or execution is levied against all
or part of the property of HSS, or if HSS shall default in the performance
of any material covenant to be performed by it under this Agreement,
including but not limited to HSS's obligation to make certain fixed
monthly Facility Fee payments to LAC as set forth in Paragraph 4.1(a), and
within thirty (30) days after written notice thereof from LAC, shall not
cure such default, bankruptcy, levy, or receivership within thirty days
(or, in the case of non-monetary defaults which are of such type that they
cannot reasonably be cured within thirty days, shall not commence to cure
such default within thirty (30) days and thereafter diligently pursue such
cure), LAC may, without prejudice to any other right or remedy it might
have and without relieving HSS of its obligations to make fixed monthly
Facility Fee payments to LAC as set forth in Paragraph 4.1 (a) until the
expiration of the term hereof, terminate this Agreement with
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the exception of the Indenture of Lease which shall continue at LAC's
option until the earlier of the date LAC removes its Plant Facility from
the Leased Premises or its stated expiration date.
15.3 Should LAC be in material default under this Agreement and should this
Agreement be terminated by HSS as provided elsewhere herein, then the
Indenture of Lease attached hereto as Appendix A shall be subject to
termination or shall terminate, as the case may be.
15.4 LAC shall have the right to terminate this Agreement at any time on notice
to HSS in the event of any termination of the Indenture of Lease Agreement
attached hereto.
16.0 - WARRANTIES
LAC MAKES NO GUARANTEE OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND
SPECIFICALLY BUT WITHOUT LIMITING THE GENERALITY OF THE FOREGOING MAKES NO
WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR ANY PARTICULAR PURPOSE, EXCEPT
THAT THE NITROGEN DELIVERED HEREUNDER SHALL CONFORM TO THE SPECIFICATIONS HEREIN
PROVIDED FOR. LAC assumes no responsibility for events resulting from the use or
non-suitability for any purpose of any Nitrogen delivered hereunder.
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17.0 - INDEMNIFICATION
17.1 HSS and LAC covenant and agree, subject to 17.2 below, to indemnify and
hold one another harmless from and against any and all claims, losses,
demands actions or causes of action, including any and all cost or expense
of any nature or kind related thereto, suffered by or brought against LAC
or HSS, as the case may be, resulting from the negligence of the
indemnifying party, their employees, agents or assigns and arising from or
incidental to the maintenance and operation of the LAC Plant Facility, in
the case of LAC's indemnity obligations, and HSS's Plant Facilities in the
case of HSS's indemnity obligations, except to the extent that any such
claim, loss demand, action or cause of action results from or is
attributable to the negligent acts or omissions of HSS or LAC, its
employees, agents or assigns, as the case may be.
17.2 Notwithstanding anything else to the contrary contained in this Agreement,
neither LAC nor HSS shall be liable to each other for SPECIAL, INDIRECT,
CONSEQUENTIAL, OR INCIDENTAL DAMAGES, howsoever occurring.
18.0 - FORCE MAJEURE
18.1 If the performance of the obligations hereunder of either party (other
than the obligations to make payment) are prevented, delayed, restricted,
or interfered with by reason of:
a. Act of God, fire, explosion, strike, lockout, labor dispute,
casualty or accident, lack or failure of transportation facilities,
epidemic, cyclone, flood, earthquake, drought, lack or failure of
sources of supply of labor, power, cooling water or
24
materials, Major Equipment failure (LAC will maintain all equipment
according to vendor specifications and industry accepted standards),
environmental contamination (except if environmental contamination
is caused by the fault of the party claiming force majeure. LAC will
follow all industry accepted standards for environmental
considerations); or,
b. War, revolution, civil insurrection, acts of public enemies,
blockage or embargo; or,
c. Any law, order, proclamation, regulation, ordinance, demand or
requirement of any government or of any subdivision, authority, or
representatives of any government, whether subsequently declared
valid or invalid; or,
d. Any other causes similar or dissimilar to those above enumerated
beyond the reasonable control of the party invoking force majeure,
provided however, adverse economic or business conditions shall not
be considered reasons of force majeure hereunder, then the party so
prevented, provided it gives prompt written notice to the other
party, shall be excused from all performance of its obligations
hereunder to the extent its obligations are so prevented, delayed,
interfered with, or restricted as a result of such force majeure
event. Neither party shall be required to make any concession or
grant any demand or request in order to bring to an end any strike
or other concerted act of workers, but each party shall exert its
best efforts to continue in the performance of its obligations under
this
25
Agreement, and to bring the period of force majeure to an end as
expeditiously as possible.
18.2 If for any period a force majeure covered by Paragraph 18.1 reduces or
fully interrupts the production, compression, or delivery of Gaseous
Nitrogen from the LAC Plant Facilities, LAC shall use its best effort to
supply and deliver HSS's Nitrogen requirements to the extent necessary by
means of vaporized Hauled-In Liquid Nitrogen in accordance with Paragraph
3.1.
19.0 - TERM
19.1 The Term of this agreement shall (as indicated above) begin on the
Effective Date and, except as otherwise herein specifically provided,
shall continue for an Initial Period beginning on the said Effective date
and continuing until the end of 120th month following the Completion Date.
After the end of the said 120th month the Term shall further continue for
one year terms unless written notice of termination is given by either
party at least twelve (12) months prior to the end of the said 120th month
or of any anniversary thereof. It is further understood, however, that if,
as of August 15, 1993, the expanded #1 Plant has not been completed and
made operational (unless its not having been completed or become
operational is for reasons of force majeure, in which case, at LAC's
option, the August 15th, 1993 date shall be further extended by the period
of force majeure), HSS or LAC shall have the right, by notification of the
other party within 30 days following the August 15th, 1993 date (such
notice to be effective within 12 months thereafter) to terminate this
Agreement insofar as it relates to Plant #1.
26
19.2 HSS shall have the option of terminating this agreement subject to the
conditions set forth in paragraph 7.3, at any time after two (2) years
from the Completion Date and prior to the expiration of the Initial Period
hereof, by giving LAC at least a twelve (12) months prior written notice
of termination. Upon the effective date of such termination and as a
condition thereof, HSS shall pay to LAC a lump sum cancellation fee
(prorated for fractional parts of a year) calculated as follows:
Residual Life Cancellation Fee Expressed As
of the The Monthly Facility
Initial Period Fee Multiplied By
-------------- -----------------------------
8 Years 30 Months
7 Years 26 Months
6 Years 22 Months
5 Years 17 Months
4 Years 14 Months
3 Years 10 Months
2 Years 5 Months
1 Year 3 Months
27
20.0 - ASSIGNMENT
Neither LAC nor HSS shall assign this Agreement or any rights or obligations
contained herein without the prior written consent of the other party, which
consent shall not be unreasonably withheld; provided however, that: (i) without
requesting HSS's approval, LAC may assign this Agreement or all or any part of
the payments due it hereunder to any subsidiary or affiliate, or to any bank,
leasing company, insurance company, investment syndicate, or other, similar
financial entity, although in either case LAC shall remain liable to HSS for all
of its obligations hereunder and payment to an assignee of any amount hereunder
shall be subject to set off or recoupment for any present or future claim(s)
which HSS may have against LAC, and (ii) without requesting LAC's approval, HSS
may assign this Agreement in its entirety to any financially responsible, wholly
owned subsidiary of HSS operating HSS's Plant Facilities provided that HSS shall
remain primarily liable to LAC for all obligations hereunder. LAC has the right
to require that HSS's obligations hereunder shall inure to and be binding upon
any successor in interest to HSS's Plant Facilities.
21.0 - NOTICE
All notices, orders, statements, reports, payments or other communications
between the parties hereto required or made necessary by the terms of this
Agreement shall be in writing and shall be considered as having been delivered
on the date of delivery if delivered personally or on the third day after
mailing if sent by regular or certified mail, to:
28
XXXXXX CORPORATION SEMICONDUCTOR SECTOR
000 Xxxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Purchasing Manager
COPY: Sector Counsel
LIQUID AIR CORPORATION
Merchant Gases Division
0000 Xxxxx Xxxxxxxxxx Xxxxxxxxx
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Business Manager, On-Site Gases
COPY: Vice President - Legal and Corporate Affairs
22.0 - GENERAL
22.1 This Agreement between the parties hereto shall supersede all previous and
contemporaneous writings, oral understandings and negotiations with
reference to the subject matter hereof, and replaces and supersedes the
following agreements between the parties (and the related indentures of
lease thereunder) except for moneys owing on account by HSS to LAC for
product purchases (including Facility Fees but not termination fees for
the #2 plant contract replaced by this contract) prior to termination of
29
the previous agreements. Neither party is aware of any claim that it has
or is intending to assert against the other under the said previous
agreements.
- Agreement entitled Nitrogen Supply Agreement dated March 28, 1990 relating
to #2 plant:
- Agreement entitled Nitrogen Supply Agreement dated January 1st, 1987
relating to #1 plant.
22.2 Should any provision of this Agreement become unenforceable, invalid or be
declared illegal, then that provision shall be considered severed from the
rest of this Agreement and shall not affect the validity of the remainder
of this Agreement.
22.3 It is agreed that LAC is an independent contractor for the performance of
all work and the supply of all products and services under this Agreement
and that for accomplishment of the desired result with respect to the
performance of all work and supply of the products and services hereunder.
HSS is not to exercise any control over LAC's methods or means of
accomplishment, or independent contractors, except as specifically set
forth herein.
22.4 This Agreement can be modified only by written instrument executed by duly
authorized representatives of both LAC and HSS.
30
22.5 This Agreement shall be governed and construed and the rights of the
parties hereto shall be enforced according to the laws of the State of
Pennsylvania.
31
IN WITNESS WHEREOF, the parties hereto have signed before the witnesses as of
the date and year first above written.
XXXXXX CORPORATION SEMICONDUCTOR SECTOR
/s/ Xxxxxx X. Xxxxxxx PER: [illegible]
------------------------------------ -----------------------------------
WITNESS:
TITLE: VP - General Manager,
Manufacturing
---------------------------------
32
LIQUID AIR CORPORATION
MERCHANT GASES DIVISION
[illegible] PER: [illegible]
------------------------------------ -----------
WITNESS:
TITLE: President - Merchant Gases
---------------------------------
33
APPENDIX A
INDENTURE OF LEASE
THIS LEASE, is made as of the _____ day of __________, 19___, between XXXXXX
CORPORATION SEMICONDUCTOR SECTOR, a corporation under the laws of the State of
Delaware, having offices at Melbourne, Florida, hereinafter called "Lessor" and
LIQUID AIR CORPORATION, a corporation duly incorporated under the laws of the
State of Delaware with a place of business at 0000 Xxxxx Xxxxxxxxxx Xxxxxxxxx,
Xxxxxx Xxxxx, Xxxxxxxxxx 00000, hereinafter called "Lessee".
WITNESSETH
WHEREAS:
The Lessor has entered into an agreement dated __________, 19___, with the
Lessee providing for the on-site supply of Nitrogen by the Lessee to the Lessor
("Nitrogen Supply Agreement").
Whereas the said Nitrogen Supply Agreement replaces and supersedes two similar
supply agreements between Lessee and Lessor, and
34
Whereas each of the said previous supply agreements included within it an
Indenture of Lease covering premises occupied by Lessee in connection with its
production and supply activities under the said supply agreements, and
Whereas Lessor and Lessee wish to continue through this one, new Indenture of
Lease, without interruption, the lease relationship established under the
aforesaid prior Indentures of Lease
NOW, THEREFORE, the parties hereto agree as follows:
35
1.0 - AGREEMENT TO LEASE
The Lessor hereby agrees to lease to the Lessee the Property described in
Exhibit I (comprising the land previously leased plus a small addition thereto)
hereof in consideration of payment of One Dollar ($1.00) by Lessee, receipt of
which is hereby acknowledged by Lessor. This lease supersedes and replaces the
Indentures of Lease referred to hereinabove and continues the lease relationship
set forth therein. The Lessee hereby accepts the leased premises "as is" having
made the rental payment set forth herein.
2.0 - TERM
The initial term of this Lease shall commence on the Effective Date of the
Nitrogen Supply Agreement and continue until the end of the one hundred
twentieth month following the Completion Date referred to in the said Nitrogen
Supply Agreement ("Initial Term"), except as provided in Paragraph 7.3 or 19.2
of the said Nitrogen Supply Agreement. Subject to the Initial Term, the term of
this Lease shall be extended for such further periods as may be necessary to
conform with any extensions of the Nitrogen Supply Agreement.
3.0 - LESSEE'S IMPROVEMENTS
3.1 The Lessor and the Lessee agree that the Property shall be used by the
Lessee to operate and maintain thereon a Nitrogen generating facility and
associated equipment for the purpose of supplying Lessor with gaseous
Nitrogen. Lessee is prohibited from using the premises for anything other
than the purpose stated herein. Lessee will obtain any
36
necessary permits or licenses required to conduct its business on the
property described in this Agreement and agrees to comply with all laws
applicable to its manner of use.
3.2 The Lessor acknowledges and covenants that the Nitrogen generating
facility placed on the Property including without limitation any and all
buildings, machinery, storage tanks and equipment, and all supplies and
spare parts stored on the Property (the Nitrogen generating facility and
all supplies and spare parts thereof are collectively referred to
hereinafter as "Lessee's Improvements") shall be and shall remain at all
times personal property of the Lessee without regard to the manner of
affixation of the Lessee's Improvements. The Lessee's Improvements include
those already in existence and in place (which Lessee may continue to
locate and operate on the Property notwithstanding the superseding of the
prior leases pursuant to which the said Lessee Improvements were placed on
the Property) by Lessee in connection with the intended expansion thereof
by Lessee.
3.3 The Lessor shall permit the Lessee to erect a fence around the property
and to post one or more signs in conspicuous places on the property and on
the Lessee's Improvements identifying the Lessee's Improvements as
belonging to the Lessee. Without limiting the generality of the foregoing,
the Lessee may firmly affix to any Lessee's Improvement on the Property
one or more decalcomania or metal plates showing the Lessee as the owner.
3.4 The Lessor will not deliver or indirectly create, incur, assume or suffer
to exist any mortgage, security interest, pledge, lien, charge,
encumbrance or claim on or with respect to Lessee's leasehold interest or
Lessee's Improvements, title thereto or any interest
37
therein, and the Lessor shall promptly at its own expense, take such
action as may be necessary duly to discharge any such mortgage, security
interest, pledge, lien, charge, encumbrance or claim, except where such
relates to fixtures which are part of the heating, plumbing and sewage
disposal, water supply, air conditioning and power and lighting systems,
none of which will, in the considered judgment of Lessor significantly
interfere with Lessee's use of the LAC Plant Facility. If the Lessor fails
to promptly discharge any such mortgage, security interest, pledge, lien,
charge, encumbrance of claims, except where such relates to fixtures which
are part of the heating, plumbing and sewage disposal, water supply, air
conditioning and power and lighting systems, the Lessor shall deliver to
the Lessee a payment bond, in form and substance satisfactory to the
Lessee, covering the claim, failing which Lessee shall secure same for
cost of Lessor.
3.5 The Lessor covenants that it will at all times waive any claim it may have
against the Lessee's Improvements, including without limitation any claim
based on the laws of the state in which the Lessee's Improvements are
fixtures and form a part of the realty.
3.6 The Lessor shall not permit any indebtedness of the Lessor to be secured
by an interest in the Lessee's Improvements or the Property and shall
indemnify and save harmless the Lessee from any loss, cost, damage, injury
or expense suffered by reason of any claim of third persons whomsoever
(whether as purchaser, secured party or otherwise) who assert rights in
the Lessee's leasehold interest, the Property, or the Lessee's
Improvements.
3.7 The Lessee will not directly or indirectly create, incur, assume or suffer
to exist any mortgage, security interest, pledge, lien, charge,
encumbrance or claim on or with respect
38
to the Property, or, title thereto or any interest therein, and the Lessee
shall promptly at its own expense, take such action as may be necessary
duly to discharge any such mortgage, security interest, pledge, lien,
charge, encumbrance or claim. If Lessee fails to promptly discharge any
such mortgage, security interest, pledge, lien, charge, encumbrance of
claims, the Lessee shall deliver to the Lessor a payment bond, in form and
substance satisfactory to the Lessor, covering the claim, failing which
Lessor shall secure same for cost of Lessee.
3.8 The Lessee shall not permit any indebtedness of the Lessee to be secured
by an interest in the Property and shall indemnify and save harmless the
Lessor from any loss, cost, damage, injure or expense suffered by reason
of any claim of third persons whomsoever (whether as purchaser, secured
party or otherwise) who assert rights in the Property.
4.0 - UTILITIES AND TAXES
4.1 The Lessor agrees to pay for the installation, maintenance and cost of all
utilities necessary for the Lessee's operation of the Lessee's LAC Plant
Facility on the Property as set forth in the Nitrogen Supply Agreement.
4.2 The Lessor shall pay or cause to be paid all taxes, assessments
(including, but not limited to, all assessments for public improvement or
benefit), rates and charges for public utilities, excises, levies, license
and permit fees and other governmental charges, general and special,
ordinary and extraordinary, of any kind and nature whatsoever,
(hereinafter referred to collectively as the "Taxes") which at any time
during the term of this Lease
39
may have been or may be assessed, levied, imposed upon or become due or
payable out of, or in respect of, or become a lien on, the Property or the
Lessee's Improvements, or both, or this Lease. If the Lessor shall fail to
pay any Taxes when due, the Lessee may pay such Taxes then due provided
Lessee has furnished Lessor a minimum of thirty days notice to pay such
taxes and the Lessor shall promptly reimburse Lessee. Nothing herein is
intended to impose upon the Lessee an obligation to pay any such Taxes.
5.0 - ACCESS
The Lessor hereby grants the Lessee for the term of this Lease and any extension
or renewal thereof, a non-exclusive, irrevocable right-of-way over existing
roads on Lessor's property for the purpose of providing ingress and egress to
and from the Property for the Lessee and any of its employees, contractors,
agents, representatives, business visitors, vehicles, equipment, and pipelines.
Lessee agrees that its employees, agents, and representatives shall observe and
comply with all safety rules and regulations established by Lessor and delivered
to Lessee while such individuals are on or in the vicinity of Lessor's property.
6.0 - TERMINATION
6.1 Except as provided in the Nitrogen Supply Agreement, neither party shall
terminate this Lease during the period the Nitrogen Supply Agreement
remains in force. The Lessor further covenants that during the term of
this Lease it shall not disturb the quiet enjoyment of the Lessee on the
Property, provided that Lessee is not in default under this Agreement.
40
6.2 Upon expiration or termination of this Lease, the Lessee shall remove the
Lessee's Improvements from the Property as soon as practical but no later
than twelve (12) months after such expiration or termination date, and
shall surrender the Property to the Lessor in a generally level and clear
condition.
6.3 If the Lessee fails to remove the Lessee's Improvements after twelve (12)
months of the expiration or termination of this Lease, as applicable, the
Lessor may at its option remove the Lessee's Improvements upon giving ten
(10) days' notice to the Lessee and at the expense of the Lessee and such
expense shall become due and payable upon presentation of satisfactory
evidence of such expense having been incurred by Lessor.
6.4 If the Property and the Lessee's Improvements are taken by right of
eminent domain or other authority of law during the term of this Lease,
this Lease shall immediately terminate. Any compensation paid for the
taking of the Property and the Lessee's Improvement shall be prorated in
the ratio of the value of the Property to the value of the Lessee's
Improvements and that amount attributable to the Lessee's Improvements
shall be paid promptly to the Lessee.
7.0 - GOVERNING LAW
This Lease shall be governed by and construed under the laws of the State of
Pennsylvania.
41
8.0 - NOTICES
Any notice required or permitted by the terms of this Lease or otherwise shall
be deemed to have been duly given if securely sealed in a postpaid envelope and
mailed by certified mail, return receipt requested, and if to be given to the
Lessor, addressed as follow:
XXXXXX CORPORATION SEMICONDUCTOR SECTOR
000 Xxxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Purchasing Manager
and, if to be given to the Lessee, addressed as follows:
LIQUID AIR CORPORATION
Merchant Gases Division
0000 Xxxxx Xxxxxxxxxx Xxxxxxxxx
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Vice President - Legal and Corporate Affairs
Any party may change its address by giving notice in the manner provided herein.
9.0 - GENERAL
9.1 This Lease shall not be assignable by either party, except in Accordance
with the Nitrogen Supply Agreement.
42
9.2 Subject to Paragraph 9.1, the terms, covenants and conditions of this
Lease shall be binding upon and shall be enforceable by the Lessor and the
Lessee and their respective successors and assigns.
9.3 If any one or more of the provisions contained in this Lease shall be
invalid, illegal or unenforceable in any respect under any applicable law,
the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired.
9.4 This Lease shall not be amended, altered or changed except by written
agreement signed by both parties.
9.5 The Lessor and the Lessee agree that this Lease may be recorded with the
recorder's office for the Mountaintop, Pennsylvania, area at any time
after the date hereof, and the parties agree to execute at the request of
either party of all other documents or instruments necessary or
appropriate to perfect the Lessee's rights and interest hereunder and/or
for registration of this Lease.
9.6 This lease is part of the Nitrogen Supply Agreement and in the event of
conflict, the terms of the Nitrogen Supply Agreement shall prevail.
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be duly and
properly executed as of the day and year first above written.
43
XXXXXX CORPORATION SEMICONDUCTOR SECTOR
PER:
------------------------------------ -----------------------------------
ATTEST: LESSOR
TITLE:
---------------------------------
LIQUID AIR CORPORATION
MERCHANT GASES DIVISION
PER:
------------------------------------ -----------------------------------
ATTEST: LESSOR
TITLE:
---------------------------------
ADD ACKNOWLEDGEMENTS
44
EXHIBIT I TO APPENDIX A
METES AND BOUNDS DESCRIPTION OF PROPERTY
Note: Exhibit I to Appendix A consisting of the metes and bounds of the
Property covered by the Indenture of Lease as depicted on Appendix E to the
Product Supply Agreement, shall be furnished by Buyer to Seller in form
satisfactory to Seller, by no later than the 30th day following the Effective
Date of the Agreement. If Buyer fails to do so, Seller shall have the right, in
addition to all other rights it then has, to terminate the Product Supply
Agreement for default, in accordance with Section 15.0 thereof. Upon receipt of
the said Exhibit I by Seller from Buyer, Seller shall be authorized to attach it
to the original of the Indenture of Lease for use in making recordation thereof.
Agreed:
SELLER - Liquid Air Corporation
By
-----------------------------------
BUYER - Xxxxxx Corporation Semiconductor Sector
By
-----------------------------------
45
ACKNOWLEDGEMENT
State of California )
) ss.:
County of Contra Costa )
On this _____ day of September, 1992, before me, the undersigned notary,
personally appeared _________________________ who acknowledged herself/himself
to be the an officer, namely the _________________________ of Liquid Air
Corporation, and that, as such, she/he, being authorized to do so, executed the
foregoing Indenture of Lease for the said corporation for the purposes therein
contained.
In witness whereof, I have sent my hand and official seal hereto.
X
----------------------------------------
Name
-----------------------------------
Notary Public, Contra Costa County
State of California
Seal of Notary
Date________________________________
46
ACKNOWLEDGEMENT
State of Florida )
) ss.:
County of Brevard )
On this _____ day of September, 1992, before me, the undersigned,
personally appeared Xxxxxxx X. Xxxxxx who acknowledged himself to be an officer,
namely the Vice President-General Manager Manufacturing of Xxxxxx Corporation,
Semiconductor Sector, and that, as such, he being authorized to do so, executed
the foregoing Indenture of Lease for the said corporation for the purposes
therein contained.
In witness whereof, I have set my hand and official seal hereto
----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Controller and Assistant Secretary
Xxxxxx Corporation
Semiconductor Sector
Seal of Notary
WITNESS my hand and seal this ___ day of __________ 1992.
Signed _____________________________
My Commission Expires:
47
ACKNOWLEDGEMENT
State of Pennsylvania )
) ss.:
County of ________________ )
On this _____ day of June, 1992, before me, the undersigned, personally
appeared __________________________ who acknowledged herself/himself to be the
an officer, namely the ____________________________ Xxxxxx Corporation, and
that, as such, she/he, being authorized to do so, executed the foregoing
Indenture of Lease for the said corporation for the purposes therein contained.
In witness whereof, I have sent my hand and official seal hereto.
X
----------------------------------------
Name
-----------------------------------
Title
----------------------------------
Seal of Notary
Date _______________________________
00
XXXXXXXX X
ESTIMATED UTILITY REQUIREMENTS
HSS shall supply LAC Plant Facility with its entire Plant design utility
requirements at no charge to LAC. Said utilities shall be delivered to the
battery limits of the LAC Plant Facility. The estimated requirements at the
plant design conditions are as follows:
A. ELECTRIC POWER
1. 480 volt, 3 phase, 60 cycle
2. Expected Total Operating Demand:
#2 facility = 195 KW for 18,000 SCFH
#1 facility = 705 KW for 65,000 SCFH
B. COOLING WATER
#2 Plant = 10 gallons per minute
#1 Plant = 6.0 gallons per minute
C. POTABLE WATER AND SEWAGE
Hookups to be provided by HSS for fire fighting capability and personnel
requirements. Expected sewer load is nominal.
49
APPENDIX C
SAMPLE XXXXXX CALENDAR YEAR
50
APPENDIX "D"
Normal Atmospheric Air
Gas Concentration
Nitrogen 78.11%
Oxygen 20.96%
Argon 0.93%
C0(2) 350 ppm
Neon 18 ppm
Helium 5 ppm
Methane 2 to 6 ppm
Hydrocarbons (C2 +) <2 ppm
Nitrogen Oxides <1 ppm
Carbon Monoxide <1 ppm
Krypton 1.1 ppm
Hydrogen 0.3 to 0.5 ppm
Ozone, 0(3) <0.2 ppm
Xenon 0.09 ppm
Water according to ambient humidity
S0(x) Nil
51
APPENDIX E
Plot Plan for LAC Facility
52
