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EXHIBIT 10.67
EASEMENT AGREEMENT
THIS EASEMENT AGREEMENT (this "Agreement") is made and entered into as
of the 22nd day of February, 1993 (the "Effective Date"), by and between CAMDEN
PAPERBOARD CORPORATION, a New Jersey corporation ("Grantor") and CAMDEN XXXXX
X.X. (D/B/A Camden Cogen Limited Partnership), a Delaware limited partnership
("Grantee").
W I T N E S S E T H:
WHEREAS, Grantor is the fee owner of those certain tracts or parcels of
land situated in Camden, Camden County, New Jersey, more fully described on
Exhibit A attached hereto (the "Property"); and
WHEREAS, Grantee desires to obtain and Grantor desires to grant to
Grantee an easement (the "Easement") over, under, upon, through and across the
land (the "Area") which constitutes a portion of the Property and which is
described on Exhibit B attached hereto, for the purposes of constructing,
installing, operating, maintaining, inspecting, altering, repairing, replacing,
relocating and removing within the Area certain underground pipes and other
appurtenant facilities, all to enable the conveyance of steam from and return of
condensate to a certain facility located in Camden, Camden County, New Jersey
owned by Grantee and more fully described on Exhibit C attached hereto (the
"Facility").
NOW THEREFORE, for and in consideration of the sum of Ten and No/100
Dollars ($10.00) and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties intend to be legally
bound by this Agreement and agree as follows:
1. Definitions. The following terms used in this Agreement shall have
the following meanings:
A. "Easement Rights" means the rights described as follows:
(1) the right to construct, install, operate,
maintain, inspect, alter, repair, replace, relocate and remove
the Improvements (hereinafter defined) within the Area; and
(2) the right of ingress and egress for pedestrian,
vehicular and other traffic over those portions of the
Property as Grantee may reasonably require to construct,
install, operate, maintain, inspect, alter, repair, replace,
relocate and remove the Improvements; and
Prepared by: /s/ XXXXX X. XXXXXX
--------------------------
Xxxxx X. Xxxxxx
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(3) the right to convey steam to or through or
receive condensate from or through the Area; and
(4) the right to trim and cut vegetation growing on,
within or over the Area and to remove fences, pavement, and
other obstructions thereon, subject to Paragraph 7 herein, as
is reasonable in the exercise of the Easement Rights without
unreasonably impeding Grantor's use of the Property.
B. "Improvements" means the permanent structures, pipes,
conduits, manholes and other appurtenant facilities and improvements
constructed or placed on the Area by Grantee or its agents in
connection with Grantee's provision of thermal energy to Grantor in
accordance with the terms of that certain Energy Purchase Agreement
dated December 18, 1989 (the "Steam Purchase Contract"), by and between
Grantor and Grantee.
2. Grant of Easement. Grantor hereby grants, warrants, bargains, sells
and conveys unto Grantee, its successors and assigns, the Easement over, under,
upon, through and across and otherwise grants, warrants, bargains, sells and
conveys unto Grantee, its successors and assigns, the Easement Rights covering
the Property, free and clear of all liens, easements and other encumbrances;
subject, however, to the other matters set forth herein.
3. Term. Grantee shall have the right to use the Easement until the
termination of the Steam Purchase Contract, subject to modifications by the
written agreement of Grantee and Grantor. Grantor shall notify Grantee's lender
(the "Lender") in writing at least thirty (30) days prior to the expiration of
this Agreement due to the termination of the Steam Purchase Contract, and allow
Lender the opportunity to cure any default of Grantee hereunder or under the
Steam Purchase Contract.
4. Improvements. The Improvements are and shall remain the property
of Grantee, which shall be responsible for and shall pay all taxes, applicable
assessments and other governmental charges resulting from ownership or use of
the Improvements. All cable, pipe and wire installations in the Area shall be
underground, except where the same surface to interconnect with Grantor's boiler
room. Any damage to permitted improvements within the Area as a result of
installation, or maintenance of, cable, pipes or wires installed by the Grantee
in exercising its rights hereunder shall be repaired or replaced at the expense
of the Grantee.
5. Indemnification. A. Grantee shall defend, indemnify and hold Grantor
and its employees and agents harmless from and against all claims, actions,
liabilities, losses, damages and expenses (including reasonable attorneys' fees)
whether for injury to person or damage to property incurred by or asserted
against Grantor or its
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employees or agents which is either (a) caused by the activities of Grantee or
its employees or agents upon the Property; (b) due to the placement by Grantee
of any Improvements or other materials upon the Property or (c) otherwise
arising out of Grantee's use, occupancy or operation of the Area or Improvements
or the exercise of Grantee's rights hereunder. Notwithstanding the foregoing,
Grantee shall not be liable to Grantor or its employees or agents for any
environmental loss, damage, cost or expense which results from the condition of
the Property existing prior to the Effective Date or from the activities of
Grantor or its employees or agents on or with respect to the Property. Nothing
contained herein shall be deemed to indemnify any party hereto against its own
gross negligence or willful misconduct. In the event the Easement and the
Easement Rights granted hereunder are owned by any party pursuant to foreclosure
proceedings or deed in lieu of foreclosure, Grantor agrees to look solely to the
interest of such party and its successors in and to the Facility (or the
proceeds of the sale or disposition thereof) for the collection of any judgment
obtained by Grantor under this Paragraph 5A, and no other assets of such party
or its successors shall be subject to levy, execution, or other enforcement
procedure for the satisfaction of such judgment.
B. Grantor shall defend, indemnify and hold Grantee and its employees
and agents harmless from and against all claims, actions, liabilities, losses,
damages and expenses (including reasonable attorneys' fees) whether for injury
to person or damage to property incurred by or asserted against Grantee or its
employees or agents which is, and to the extent, either (a) caused by the gross
negligence or willful misconduct of Grantor or its employees or agents upon the
Area or (b) due to the gross negligence or willful misconduct in the placement
by Grantor of any materials upon the Area.
6. Representations. Grantor hereby represents that it is the fee owner
of the Property, and that, except for the matters set forth herein, the Area is
free and clear of all liens, easements and other encumbrances.
7. Use of Easement. All Improvements shall be installed so as not to
interfere with the operations of Grantor or the rights of any party having an
interest superior to the interests created hereunder in favor of Grantee.
Further, Grantor fully reserves the right to (i) maintain, repair and replace
any structures that exist on the surface of the Easement as of the date of this
Agreement and to use the same for any purposes which will not interfere with
Grantee's use and enjoyment of the Easement Rights hereby granted, (ii) pave and
landscape the surface of the Easement and to use same for the parking of motor
vehicles, and for driveways, roadways and sidewalks, and for other purposes
which will not interfere with the Grantee's use and enjoyment of the Easement
Rights hereby granted, (iii) grant additional easements across the surface of
the Area so long as the use of such easements does not interfere with the
Easement herein granted and such other easements through the Area that Grantee
consents to in writing, such consent not to be unreasonably withheld, and (iv)
relocate the Easement if required for future construction or other purpose,
provided that (a) Grantor pays the cost and expense for such relocation, (b)
Grantor gives Grantee at
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least thirty (30) days advance written notice of its desire to relocate the
Easement, (c) at least thirty (30) days before construction is to begin on the
relocation, Grantor submits the plans for such relocation to Grantee for
Grantee's review and comment, and (d) any such relocation is performed in such a
manner as to cause minimal interference with Grantee's use and enjoyment of the
Easement Rights hereby granted.
8. Burial of Pipes. The underground pipes, conduits and other
facilities installed under this Agreement shall be buried and maintained by
Grantee or its successors, assigns or agents at a depth of at least three feet
below the surface of the Area or at any greater depth which may be required by
applicable governmental statutes or regulations or standard industrial practice,
except where such pipes, conduits and other facilities surface to interconnect
with Grantor's boiler room.
9. Recording. This Agreement will be recorded in the appropriate real
property records of Camden County, New Jersey.
10. Assignments. This Agreement shall be freely assignable by Grantee.
Any assignee of this Agreement shall take such assignment subject to all the
terms and conditions set forth herein. The Easement and the Easement Rights
created herein shall be irrevocable and shall run with the land for so long as
Grantee, its successors and assigns are obligated to furnish thermal energy to
Grantor pursuant to the Steam Purchase Contract, and shall bind all permitted
subsequent purchasers, transferees, successors and assignees of the parties
hereto.
11. Notices. All notices, requests, consents, demands and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be given to each applicable party hereto at its address or
facsimile number set forth in this paragraph or at such other address or
facsimile number as such party may hereafter specify for such purpose by notice
to the other parties, and shall be either delivered personally or sent by
facsimile or mail postage prepaid, and shall be deemed to have been made or
given (a) if given by facsimile, when sent and the appropriate confirmation is
received, and (b) if given by any other means, when delivered.
Unless changed in accordance with this paragraph, the addresses for all
such communications shall be as follows:
If to Grantor:
Camden Paperboard Corporation
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx
Facsimile No.: (000) 000-0000
Attention: Xx. Xxxxx X. Xxxxxxx
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If to Grantee:
Camden Xxxxx X.X.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Facsimile No.: (000) 000-0000
Attention: R. Xxxx XxXxxx, Xx.
If to Lender:
General Electric Capital Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Project Financing Investments--
Transportation and Industrial
Financing Division
12. Modifications. Any modifications of this Agreement must be made in
writing and executed by the parties hereto.
13. Exhibits. All Exhibits attached to and referenced in this Agreement
are incorporated herein and made a part hereof for all purposes.
14. Paragraph Headings. Paragraph headings contained in this Agreement
are for convenience only and shall not be considered in interpreting or
construing this Agreement.
15. Consent to Jurisdiction. Grantor and Grantee hereby irrevocably
submit to the jurisdiction of any state or federal court sitting in Camden
County, New Jersey, in any action or proceeding arising out of or related to
this Agreement, and agree that no such party shall bring any such action or
proceeding in any other court, or seek to remove such action or proceeding to
any other court; provided, however, notwithstanding any other provision of this
Agreement to the contrary, this Paragraph 15 will not be binding on any
transferee, successor or assignee of Grantee or of the general partner of
Grantee pursuant to foreclosure or a conveyance in lieu of foreclosure or
incident to the exercise of any remedy under the security documentation executed
by Grantee or the general partner of Grantee.
16. Choice of Law. This Agreement shall be interpreted, construed and
enforced in accordance with the internal laws of the State of New Jersey,
without regard to conflicts of law rules.
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17. Severability. If any provision of this Agreement is determined by a
court of competent jurisdiction to be invalid or unenforceable, the remainder
of this Agreement shall nonetheless remain in full force and effect.
EXECUTED on the dates of the acknowledgements set forth below, to be
effective for all purposes as of the Effective Date.
ATTEST: CAMDEN PAPERBOARD CORPORATION,
a New Jersey corporation
/s/ [ILLEGIBLE] By /s/ XXXXX XXXXXXX
----------------------------- ---------------------------
Secretary Name: Xxxxx Xxxxxxx
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Title: Vice President
General Manager
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(SEAL)
CAMDEN XXXXX X.X., d/b/a Camden Cogen
Limited Partnership, a Delaware limited
partnership
By: COGEN TECHNOLOGIES CAMDEN GP
LIMITED PARTNERSHIP, its general
partner
ATTEST: By: COGEN TECHNOLOGIES CAMDEN INC., its
general partner
/s/ XXXXXXX XXXXXXXX By /s/ R. XXXX XXXXXX, XX.
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Asst. Secretary Name: R. Xxxx XxXxxx, Xx.
----------------------------
Title: Vice President
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(SEAL)
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XXX XXXXX XX XXX XXXXXX )
)
COUNTY OF CAMDEN )
BE IT REMEMBERED, that on this 3rd day of March, 1993, before me, the
subscriber, a notary public, personally appeared Xxxx Dekzek, who is the
Secretary of CAMDEN PAPERBOARD CORPORATION, a New Jersey corporation, who I am
satisfied is the person who signed this instrument, and he acknowledged that he
signed, sealed with the corporate seal, and delivered the same as such officer
aforesaid, and that this instrument is the voluntary act and deed of such
corporation, on behalf of CAMDEN PAPERBOARD CORPORATION.
Given under my hand and seal of office this 3rd day of March, 1993.
/s/ XXXXXXXX X. XXXXXXX
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Notary Public in and for Gloucester
County, N.J.
My Commission Expires: Nov 4, 0000
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XXX XXXXX XX XXXXX )
)
COUNTY OF XXXXXX )
BE IT REMEMBERED, that on this 22nd day of February, 1993, before me, the
subscriber, a notary public, personally appeared R. Xxxx XxXxxx, Xx., who is the
Vice President of COGEN TECHNOLOGIES CAMDEN, INC., General Partner of COGEN
TECHNOLOGIES CAMDEN GP LIMITED PARTNERSHIP, which is the General Partner of
CAMDEN XXXXX X.X., D/B/A CAMDEN COGEN LIMITED PARTNERSHIP, a Delaware limited
partnership, who I am satisfied is the person who signed this instrument, and he
acknowledged that he signed, sealed with the corporate seal, and delivered the
same as such officer aforesaid, and that this instrument is the voluntary act
and deed of such corporation, on behalf of CAMDEN XXXXX X.X.
Given under my hand and seal of office this 22nd day of February, 1993.
=============================== /s/ XXXXXXXXX XXXXXX
XXXXXXXXX XXXXXX ---------------------------------------------
[SEAL] NOTARY PUBLIC, STATE OF Notary Public in and for Xxxxxx County, Texas
TEXAS MY COMMISSION
EXPIRES JULY 30, 1996
=============================== My Commission Expires: July 30, 1996
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WHEN RECORDED, RETURN TO:
Xxxxx X. Xxxxxx
Xxxxxxxxx & Xxxxxxxx
0000 XxXxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
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