Exhibit 10.29
LEASE
BETWEEN
NEWARK GROUP INDUSTRIES, INC.
O'BRIEN (NEWARK) COGENERATION, INC.
Dated: July 18, 1988
TABLE OF CONTENTS
Section Page
1. Term of Lease 1
2. Use 2
3. Acceptance of Demised Premises;
Tenant's Work 2
4. Base Rent 2
S. Additional Rent and Late Charges 3
6. Change In Scope or Amount of Taxation 5
7. Insurance 6
S. Utilities 9
9. Operation, Maintenance and Repair
of Demised Premises 9
10. Requirements of Public Authorities 10
11. Landlord's Right to Cure 10
12. Net Rent 11
13. Destruction 11
14. Indemnification 12
15. No Liability of Landlord 12
16. Removal of Snow, etc. 13
17. Improvements and Alterations 13
18. Signs
14
19. Assignment and Subletting 14
20. Mortgaging 15
21. Air and Water Pollution 18
22. Security 18
23.Condemnation 18
24.Surrender by Tenant at End of Term 21
25.Default by Tenant 22
26.Quiet Enjoyment 25
27.Certificates by Tenant 25
28.Notices 25
29.Captions 26
30.Covenants and Conditions 26
31.waiver of Trial by Jury 26
32.Definition of Term "Landlord" 27
33. Brokerage Representation 27
34. Covenants of Further Assurances 27
35. Entire Agreement 28
36. Applicable Law 28
37. Bind and Inure Clause 28
38. Tenant's Recourse 28
39. Options to Purchase 28
40. Environmental Obligations 30
41. Guaranty 34
42. Relationship to the Agreement 35
43. Continuation of Lease 35
44. Recording 35
Schedule A
Schedule B
Schedule C
Appendix A
Appendix B
THIS LEASE, made the 18th day of July, 1988,
BETWEEN NEWARK GROUP INDUSTRIES, INC., (formerly known as Paperboard
Manufacturers of Newark, Inc.) a New Jersey corporation having an office at
57 Freeman Street, Newark, New Jersey 07105 ("Landlord");
AND O'BRIEN (NEWARK) COGENERATION, INC. , a Delaware corporation,
having an address of 225 South Eighth Street, Philadelphia,
Pennsylvania 19106 ("Tenant");
W I T N E S S E T H
Landlord, for and in consideration of the rents, covenants and
agreements hereinafter mentioned, reserved and contained to be paid, kept
and performed by Tenant, and in consideration of and pursuant to the
covenants and agreements contained in the Steam Purchase Agreement between
Landlord and Tenant dated October 3, 1986, as amended by Amendments dated
March 8, 1988 and July 18, 1988 (as so amended and as it may be amended
from time to time in accordance with the provisions thereof, the
"Agreement"), which Agreement is incorporated herein in its entirety by
reference, has demised and leased and does hereby demise and lease unto
Tenant, and Tenant does hereby lease and hire from Landlord, subject to
easements, encumbrances and restrictions of record (if any) and such state
of facts as an accurate survey and a physical inspection would reveal, a
portion of the lands owned by Landlord known as 60 Lockwood Street, Newark,
New Jersey and as Lots 75 and 58 in Block 2412 on the Newark, New Jersey
municipal tax map ("Entire Property"), which portion leased hereunder to
Tenant is more particularly described on Schedule A annexed hereto and made
a part hereof ("Demised Premises"), together with the parking easements,
interconnection facility easements, temporary construction easements,
access easements and other easements described on Schedule B annexed hereto
and made a part hereof ("Easements"). Landlord and Tenant acknowledge that
(a) Landlord's sole reason for agreeing to enter into this lease is because
of the services to be provided by Tenant pursuant to the Agreement and that
(b) this lease and the Agreement shall be interpreted in pari materia.
1. TERM OF LEASE
Landlord leases unto Tenant and Tenant hires from Landlord the
Demised Premises for a term ("Lease Term" or
"Term") to commence on July 18, 988 ("Commencement Date") and to end,
except as otherwise provided in Section 5.1(B) of the Agreement, 120 days
after the termination of the Agreement or on such other date as may be
provided in this lease or the Agreement, whether following an extension or
renewal hereof or otherwise ("Termination Date").
2. USE.
Tenant may use and occupy the Demised Premises solely for the
construction, testing, operation, management and maintenance of a facility
for the generation of steam and/or electricity ("Facility"). The use of
the Demised Premises by Tenant, however, is and shall continue to be
expressly subject to all applicable terms and provisions of the Agreement
and to all applicable laws, ordinances and rules and regulations of any
governmental instrumentality, board or bureau having jurisdiction thereof.
3. ACCEPTANCE OF DEMISED PREMISES; TENANT'S WORK.
3.1 Tenant acknowledges that it is familiar with the Demised Promises
and, except as set forth in section 40 of this lease, hereby
agrees to accept the Demised Promises in their present condition,
"as is". Tenant further acknowledges that neither Landlord nor
anyone on Landlord's behalf has made any representations or
warranties with respect to the condition of the Demised Premises.
3.2 Tenant shall design and construct the Facility on the Demised
Premises ("Tenant's Work") and install all equipment and fixtures
necessary for the Facility's operation subject to, in accordance
with and according to the time schedule described in the
Agreement. Until the Landlord exercises its rights under section
17 or 24 of this Lease, such equipment and fixtures shall be the
personal property of Tenant and hereafter neither the Landlord
nor any mortgagee of Landlord shall have any interest therein.
4. BASE RENT.
4.1 Tenant covenants and agrees to pay Landlord a base rent ("Base
Rent") during the Term of ONE DOLLAR ($1.00) per year. Base Rent
shall be payable annually on January 1 of each and every year of
the Term without demand.
4.2 If this lease is in effect at the same time that the Agreement is
not in effect, the annual Base Rent payable under this lease shall
automatically be increased
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to the annual fair market rental value of the Demised Premises. The annual
fair market rental value shall be determined as of the time immediately
before the cessation of the Agreement by appraisal of the American
Appraisal Company (or similar appraisal organization). The arbitration
provisions set forth in Article 18 of the Agreement shall be utilized to
settle any dispute as regards "fair market rental value". Such increased
Base Rent shall be payable monthly on the first day of each month.
5. ADDITIONAL RENT AND LATE CHARGES.
5.1 Additional Rent payable by Tenant shall include:
(a) subject to the provisions of section 6 hereunder, all taxes,
assessments, water rents and other similar governmental charges
assessed against or levied upon the Demised Premises or related to the
use or occupancy thereof;
(b) all premiums on insurance policies required to be maintained
on, or in connection with the use of, the Demised Premises pursuant to
this lease;
(c) all other payments required to be made by Tenant under this
lease; and
(d) all other expenses and charges which, during the Term, shall
arise or be levied, assessed or imposed upon or against the Demised
Premises as an incident of the ownership thereof and which are of the
kind customarily paid by owners of land and improvements thereto by
reason of such ownership, it being the intention of the parties that,
during the Term, Tenant shall be chargeable with and shall pay all
sums which an owner of the Demised Premises would Day having regard to
the safeguarding of its investment and the preservation of the
freehold.
5.2 Subject to section 5.3 of this lease, Tenant agrees to pay
each item of Additional Rent on or before the date when each becomes due or
when billed for the same by Landlord, as applicable. Tenant shall furnish
to Landlord, within 30 days after the date upon which any such charge is
payable by Tenant as hereinabove provided, official receipts of the
appropriate taxing or governmental authority, or other proofs satisfactory
to Landlord, evidencing the payment of Additional Rent, except that so long
as Landlord is, pursuant to section 6.5 of this lease, paying and billing
tenant for real estate
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taxes and assessments attributable to the Demised Premises, at Tenant's
request Landlord shall provide Tenant with copies of all such real estate
and assessments bills at the time of billing and evidence of Landlord's
payment of the same. If Tenant shall fail to make any payment or to do any
act required of it by any provision of this lease within any applicable
time periods herein provided (not including cure periods after notice of
default), Landlord may make such payment or do such act and the amount of
such payment or the cost of doing such act, together with interest thereon
at the rate of the Bass Rate then in effect for First Fidelity Bank,
National Association, Now Jersey, plus 2% per annum, shall be deemed
Additional Rent payable by Tenant upon demand by Landlord. The making of
any such payment or the doing of any such act by Landlord shall not
constitute a waiver by Landlord of any right or remedy provided by this
lease upon Tenant's default in the making of such payment or the doing of
such act. All taxes, assessments, water rents and other governmental
charges assessed against or levied upon the Demised Premises shall be
apportioned between Landlord and Tenant at the Commencement Date and
Termination Date.
5.3 Tenant shall have the right to contest or review by appropriate
proceedings or in any other manner permitted by law, at Tenant's
sole cost and expense, in Tenant's name and/or in Landlord's name
(whenever necessary), any tax, assessment or charge, and Landlord
shall, without expense or charge to it, cooperate with Tenant and
execute any documents or pleadings required for such purposes.
If required by Landlord, Tenant shall furnish a surety company
bond or other security reasonably satisfactory to Landlord
against any liens by reason of such contest. The contest by
Tenant may include appeals from any judgments, decrees or orders
until a final nonappealable determination shall be made by a
court or governmental department or authority having jurisdiction
in the matter.
5.4 No payment by Tenant or receipt by Landlord of a lesser amount
than the Base Rent and Additional Rent stipulated in this lease
shall be deemed other than on account of the earliest stipulated
rent, nor shall any endorsement or statement an any check or
payment or any writing accompanying any check or payment of such
rent be deemed an accord and satisfaction, and Landlord may
accept such check or payment without prejudice to Landlord's
right to recover the balance of such rent or pursue any other
remedy provided in this lease.
5.5 If Tenant fails to make any payment o f Base Rent or Additional
Rent within 5 days of its due date,
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Landlord may set off the amount of any such unpaid payments against any
monies then due and owing by Landlord to Tenant pursuant to the Agreement.
6. CHANGE IN SCOPE OR AMOUNT OF TAXATION.
6.1 If at any time during the Term the method or scope of taxation
prevailing an the date hereof shall be altered, modified or
enlarged so as to cause the method of taxation to be changed in
whole or in part so that in substitution for the real estate
taxes now assessed there may be, in whole or in part, a capital
levy or other imposition based on the value of the Demised
Premises or the rents received therefrom, or some other form of
assessment based in whole or in part on some other valuation of
the Landlord's real property comprising the Demised Premises,
then the substituted tax or imposition shall be payable and
discharged by Tenant in the manner required pursuant to the law
promulgated which shall authorize the change in the scope of
taxation and as required by the terms and conditions of this
lease.
6.2 Nothing contained in this lease shall require Tenant to pay any
franchise, estate, inheritance, succession, capital levy or transfer tax of
Landlord, or federal income or state income tax or excess profits or
revenue tax or other tax based upon Landlord's income, except to the extent
(a) such taxes are imposed in whole or partial substitution for real
property taxes and (b) Landlord's transfer taxes are payable by Tenant
under section 39.
6.3 If any tax which Tenant is required to pay pursuant to sections
6.1 or 6.2 above is a graduated tax, Tenant shall be required to pay only
the portion thereof which would have been payable by Landlord if the
Demised Premises were the only real property owned by Landlord.
6.4 Notwithstanding anything in this lease (except section 6.5) to
the contrary and pursuant to Article 12 of the Agreement, (a) Tenant shall
be solely responsible for any sales, use, property, income or other taxes
relating to the Facility and its components or the operation of the
Facility and, except as otherwise provided by section 12.3 of the
Agreement, the sale of energy produced therein and (b) Landlord shall be
solely responsible for any sales, use, property, income or other taxes
relating to Landlord's Plant (as that term is defined in Article 1 of the
Agreement), its components or appurtenances or the sale of the products
produced therein.
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6.5 Notwithstanding section 6.3, so long as single real estate tax
bills or bills for assessments attributable to the Entire Property of which
the Demised Premises are only a part are submitted during the term of this
lease by the municipal or other authorities having jurisdiction, Landlord
shall pay such bills to the appropriate authorities and Tenant shall be
responsible for (a) 9.1% of the land portion of such tax bills, or such
other prorated amount if the tax lot configurations are altered from their
present configuration, such latter amount to be calculated on the new
percentage that the Demised Premises is of the Entire Property following
such alteration, plus (b) 100% of the taxes attributable on such tax bills
to the buildings and improvements now or to be located within the Demised
Promises including, but not limited to, the Facility, plus (c) that portion
of any bills for assessments determined by multiplying the total amount of
any such bill by a fraction the numerator of which is the total amount of
Tenant's taxes computed in accordance with (b) above and the denominator of
which is the total amount of taxes attributable on such tax bills to all
buildings and improvements located within the Entire Property, including
the Demised Premises. Landlord shall be responsible for 100% of the taxes
attributable on such tax bills to the buildings and improvements now or to
be located within that portion of the Entire Property not being leased to
Tenant hereunder. If there is a dispute between the parties regarding the
amount of taxes attributable to. buildings and improvements located within
the Demised Premises, the parties agree that the attribution contained in
the records of the tax assessor of the City of Newark shall control. If
such records do not contain the necessary attribution, such attribution
shall be determined by an independent M.A.I. appraiser selected by
Landlord. Landlord shall bill Tenant for Tenant's share of all real estate
tax bills and bills for assessments and Tenant shall pay such bills as
Additional Rent within 10 days of its receipt of such bills.
6.6 Landlord agrees (a) not to bill Tenant for installments of taxes
or assessments more than 30 days before the respective dates upon which
such installments are due and (b) to elect to pay all assessments which may
be paid in installments in as many installments as shall be permissible
under applicable law, except that Tenant agrees to pay any additional costs
or expenses incurred by Landlord as a result of such election.
7. INSURANCE.
7. 1 Tenant shall keep the improvements on the Demised Premises
insured against loss or damage by fire
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and risks embraced within "all risk coverage" in the locality where the
Demised Premises are located in an amount not less than 100% of full
insurable value. The term "full insurable value" means the actual
replacement cost as defined in the standard "replacement cost" endorsement.
Tenant shall also obtain boiler explosion and casualty insurance in an
amount not less than ten million dollars ($10,000,000). All insurance
policies shall be issued by a company or companies and in a form or forms
reasonably satisfactory to Landlord and shall name Landlord and any
mortgagees of both Tenant and Landlord as additional insureds but not loss
payees. Tenant agrees to use any proceeds received from the insurance
policies to repair, restore, replace and/or rebuild any damaged
improvements on the Demised Premises so that the fair market value of the
Demised Premises will not be decreased from that prevailing prior to the
casualty, except as otherwise provided in either section 13 of this lease
or in the Construction and Term Credit Agreement dated as of July 18, 1988
between Tenant and National Westminster Bank PLC, including only such
amendments which may be made from time to time with the consent of Landlord
("Credit Agreement").
7.2 Tenant shall obtain and maintain a Landlord's and Tenant's
comprehensive general Public Liability Insurance Policy for the joint and
several benefit of Landlord and Tenant, in an amount not less than
$5,000,000. Tenant shall also obtain blanket contractual insurance in an
amount deemed adequate by Landlord to cover the indemnity obligations of
Tenant pursuant to all of the terms and provisions of both this lease and
the Agreement. Tenant shall provide and keep in force insurance for such
other insurable hazards and in such amounts as similarly situated premises
are then commonly insured.
7.3 Prior to the earlier of (a) the Commencement Date or (b) the
date when Tenant has access to the Demised Premises for any purpose,
Tenant shall deliver to Landlord certificates evidencing the issuance of
each of the policies required by sections 7.1 and 7.2 and also evidencing
that the policies are then in effect. Tenant shall deliver original
insurance policies to Landlord within 15 days from the date when Tenant is
required to deliver the certificates. All insurance policies shall
provide for 30 days advance notice in writing to Landlord and to the
respective mortgagees of Tenant or Landlord prior to cancellation or
modification.
7.4 The premiums on any insurance policies which Landlord elects to
keep in force beyond the Termination Date shall be apportioned as between
Landlord and Tenant
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in such manner that Landlord shall reimburse Tenant for that pro rata
portion of the unearned premiums on any policies which remain in force
beyond the Termination Date as a result of Landlord's election.
7.5 Neither Landlord nor its agents or servants shall be liable and
Tenant waives all claims for damage, regardless of the cause thereof, to
persons or property sustained by Tenant, its agent and servants or any
occupant of the Demised Premises resulting from the Demised Promises or any
part thereof or any part or any equipment or appurtenances becoming out of
repair, or resulting from any accident in on or about the Demised Promises
or resulting directly or indirectly from any act or neglect of the Tenant
or occupant or any other person including Landlord's agents and servants
other than such injury or harm as may be caused solely and conclusively by
the fault or negligence of Landlord, its directors, officers, employees or
representatives. All property belonging to Tenant or any occupant of the
Demised Promises shall be there at the risk of the Tenant or such other
person only and Landlord shall not be responsible or liable for damages
thereto or misappropriation thereof. Except as otherwise provided in
section 15.2(B) of the Agreement, Tenant agrees to look solely to the
proceeds of its own insurance for indemnity against personal injury,
casualty loss and business interruption.
7.6 Except as otherwise provided in section 15.2(A) of the Agreement,
Landlord agrees to look solely to the proceeds of its own insurance for
indemnity against personal injury, casualty loss and business interruption.
7.7 Each party will use its best efforts to cause each insurance
policy carried by it with respect to the Entire Property or the Demised
Premises, as applicable, to be written so as to provide that the insurer
waives all right of recovery by way of subrogation against the other party
in connection with any loss or damage covered by the policy.
7.8 Every 2 years during the Term on the anniversary of the
Commencement Date, Landlord shall have the right to give Tenant notice that
Landlord is requiring Tenant to increase the amount of coverage under each
insurance policy held by Tenant in connection with its operation of the
Facility. The maximum new insurance coverage amount which Landlord can
require for each policy shall be calculated by multiplying the total amount
of insurance coverage in effect as of the Commencement Date by a fraction,
the Numerator of which is the Consumer Price Index for Urban Wage Earners
and Clerical Workers
8
for New York - Northeastern New Jersey ("CPI") as of the day of the
applicable 2-year anniversary date and the denominator Of I which is the
CPI as of the Commencement Date. (For example, if the CPI is 200 on the
Commencement Date and 220 on the first day of the applicable 2-year
anniversary date, the new amount of insurance required would be determined
as follows: 220 X Insurance Amount as of the Commencement Date.)
220
in no event shall the amount of insurance coverage for any policy decrease
in any 2-year period from that payable for the prior 2-year period.
8. UTILITIES.
Tenant shall, at its own cost and expense, pay all utility meter and
service charges, including but not limited to those for gas, sewer,
electricity, water, standby sprinkler charges and any hookup charges and
deposits required by utility suppliers with respect to the Demised
Promises. Tenant shall be responsible at its sole cost and expense for
arranging installation of separate motors for all utilities servicing the
Demised Promises. Except an provided in the preceding sentence, all costs
relating to the construction. operation and maintenance of conduits, pipes
and drain fixtures for water, waste water, steam or any other utilities
shall be allocated between Landlord and Tenant in accordance with all of
the terms and provisions of the Agreement including but not limited to
Article 4 and 10 thereof.
9. OPERATION, MAINTENANCE AND REPAIR OF DEMISED PREMISES.
Tenant shall keep. operate and maintain the Demised Promises in a good
state of repair and condition, except for ordinary wear and tear. Tenant
shall make all repairs and replacements of every kind and character
necessary to preserve and maintain the Demised Premises, the Facility and
the appurtenances belonging thereto in accordance with reasonable business
practices, and, except as set forth in section 4.2 or otherwise in the
Agreement, will not call upon Landlord during the Term for the making of
any repairs or replacements whatsoever. All repairs and replacements shall
(a) be performed in a good and workmanlike manner, (b) be at least
substantially equal in quality and usefulness to the original work, (c) be
of first-class modern character and (d) not diminish the fair market value
of the Demised Premises. Notwithstanding anything in this lease to -he
contrary and in addition to the provisions of this section 9, Tenant shall
keep, operate, maintain and repair the Demised Premises and the
9
Facility in accordance with all of the terms and provisions of the
Agreement including, but not limited to, sections 4.1, 7.1, 7.2. 7.3, 7.4
and 10.1 thereof.
10. REQUIREMENTS OF PUBLIC AUTHORITIES.
Tenant shall suffer no waste or injury in or about the Demised
Premises and shall comply at its sole expense with all federal, state,
county and municipal laws, ordinances and regulations applicable to the use
and occupancy of the Demised Premises including without limiting the
generality of the foregoing, (a) compliance with all "Laws" and
"Regulations" as those terms are defined in the Agreement, (b) the
obtaining of all necessary permits or licenses including, but not limited
to, the permits described in section 4.2(B) and Appendix C of the
Agreement, (c) the securing of all necessary land use approvals including,
but not limited to, a subdivision of the Entire Premises if and when Tenant
acquires the Demised Premises, and (d) the making of any structural or
nonstructural repairs or replacements of any improvements to the Facility
or the Demised Premises that may be required in order to comply with said
Laws, ordinances and Regulations. In addition, except as set forth in
section 40 of this lease, Tenant shall effect the correction, prevention
and abatement of nuisances, violations or other grievances in, upon or
connected with the Demised Premises and the Facility and shall also
promptly comply with all rules. orders and regulations of the Board of Fire
Underwriters and any insurance company insuring the Demised Premises or any
improvements thereon. To the extent required by the terms and provisions
of the Agreement, Landlord will cooperate when necessary with Tenant's
efforts to satisfy the requirements of public authorities. Any
environmental permits, licenses or authorizations that have been
transferred by Landlord to Tenant shall be returned or transferred to
Landlord at the end of the Term in accordance with the terms and provisions
of section 4.2 of the Agreement.
11. LANDLORD'S RIGHT TO CURE
Landlord and its agents and workmen shall have the right (a) in an
emergency and (b) in a non-emergency situation upon advance notice, at
reasonable times and only if accompanied by a representative of Tenant, to
enter into and upon the Demised Premises for the purpose of inspection and
examination of the state of repair and condition thereof. Landlord's entry
and inspection shall be conducted subject to Tenant's reasonable safety
procedures. Landlord may, but shall not be obligated to make such repairs
as shall be necessary as a consequence
10
of any failure of Tenant to meet its obligations under this lease or the
Agreement within applicable time periods herein provided (not including
cure periods after notice of default) . The cost of any such repairs
undertaken by Landlord, together with interest thereon at the rate of the
Base Rate then in effect for First Fidelity Bank, National Association, New
Jersey, plus 2% per annum, shall be deemed to be Additional Rent payable by
Tenant upon demand by Landlord. The making of any such repairs by Landlord
shall not constitute a waiver by Landlord of any right or remedy provided
by this lease or the Agreement upon Tenant's default in the making of
repairs.
12. NET RENT.
It is the purpose and intent of Landlord and Tenant that the rent
shall be absolutely not to Landlord, so that this lease shall yield. not,
to Landlord, the Base Rent and Additional Rent specified in sections 4 and
5 of this lease during the Term without any abatement, deduction, set-off
or counterclaim, and that all costs, expenses and obligations of every kind
and nature whatsoever relating to the Demised Premises which may arise or
become due during or in respect to the Term (except interest, amortization
or any other charge or obligation arising in connection with any mortgage
placed on the Demised Premises by Landlord. unless the charge or obligation
arises solely as a result of an Event of Default by Tenant hereunder) shall
be paid by Tenant, except for such obligations and charges as have
otherwise expressly been assumed by Landlord in accordance with the terms
and conditions of this lease or the Agreement.
13. DESTRUCTION.
13.1 If the Facility or other improvements on the Demised Promises or
any part thereof shall be damaged or destroyed by fire,
explosion, lightning, vandalism or any other casualty or cause,
Tenant shall, except as otherwise provided in the Credit
Agreement, at its own cost and expense, repair, restore, replace
and/or rebuild the improvements or take such other action as may
be necessary so as not to diminish the fair market value of the
Demised Premises from that prevailing prior to the damage or
destruction. Notwithstanding any such damage or destruction by
any casualty or cause, this lease shall continue in full force
and effect and there shall be no abatement of Base Rent and
Additional Rent payable under this lease and Tenant shall not be
discharged or relieved from any of its other obligations under
this lease. Tenant expressly waives any rights now or hereafter
conferred upon it by statute or otherwise to quit or
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surrender this lease or the Demised Premises or any part thereof,
or to any suspension, diminution, abatement or reduction of rent,
on account of any such damage or destruction. Tenant's failure
either (a) to commence (which shall include the preparation of
architectural drawings and the good faith adjustment of claims
with insurers) such repairs, restoration, replacing and/or
rebuilding within 60 days following any such damage or
destruction or (b) to pursue diligently the completion of the
same shall be deemed a default by Tenant under this lease and the
Agreement.
13.2 Notwithstanding anything in section 13. 1 to the contrary, if all
or substantially all of the Facility shall be damaged or
destroyed by any casualty or cause during the last 5 years of the
original Term or during any extension of the Term, Tenant shall
have the right to cancel this lease by giving written notice to
Landlord within 60 days after such damage or destruction provided
Tenant removes the Facility from the Demised Promises, levels the
land to grade level and thereafter paves the Demised Premises
with six inches of concrete as a parking lot. In case of such
cancellation, Tenant shall have the right to retain insurance
proceeds except that Landlord shall be entitled to receive from
Tenant that portion of all insurance proceeds equal to (a) the
total of all insurance proceeds received minus (b) the fair
market value of the Facility immediately prior to such damage or
destruction.
14. INDEMNIFICATION.
To the extent set forth in section 15.2(A) of the Agreement, Tenant
shall indemnify and save harmless Landlord, except an provided in section
40 of this lease, from all fines, penalties, costs, suits, proceedings,
liabilities, damages, claims and actions of any kind arising out of the use
and occupation of or in any way connected with the Demised Premises, or by
reason of any breach or nonperformance of any covenant or condition of this
lease by Tenant. Except as otherwise provided in section 15.2(B) of the
Agreement, this indemnification shall extend to all claims by any person or
party for death or injury to persons and damage to any property, and to
legal expenses, including reasonable attorney's fees, incurred by Landlord
in the defense of such claims or in the enforcement of any provision of
this lease.
15. NO LIABILITY OF LANDLORD.
Except as provided for in section 15.2(B) of the Agreement or in
section 40 of this lease, Landlord,
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whether as owner of the Demised Premises or in any other capacity, shall
not be liable for any damage or injury which may be sustained by Tenant or
any other person as a consequence of the failure, breakage, leakage or
obstruction of the water, plumbing, steam, gas, sewer, waste or spoil
pipes, roof, drains, leaders, gutters, valleys, downspouts or the like, or
of the electrical, ventilation, air conditioning, gas, power, conveyor,
refrigeration, sprinkler, heating or other systems, elevators or hoisting
equipment, if any, in the Facility and on, over and under the Demised
Premises and the Entire Property; or by reason of the elements; or
resulting from acts, conduct or omissions on the part of Tenant or of
Tenant's agents, employees. guests, licensees, invitees, assiqnees or
successors, or on the part of any other person or party.
16. REMOVAL OF SNOW, ETC.
Tenant agrees (a) to remove or cause to be removed, as the need for
the same arises, all snow and ice from any sidewalks, driveways and parking
areas within the Demised Premises, (b) to keep the sidewalks, driveways and
parking areas clean and free from any and all defects, obstructions and
encumbrances and (c) to keep the Demised Premises in a neat, clean and
orderly condition.
17. IMPROVEMENTS AND ALTERATIONS.
Tenant covenants and agrees that it will construct the Facility and
make any other improvements, changes, installations, renovations, additions
or alterations in and about the Demised Premises in accordance with the
terms and provisions of the Agreement and this lease. Tenant shall provide
Landlord with "as built" plans for any work completed by Tenant pursuant to
this section 17. After Tenant constructs the Facility and if Tenant
installs or makes any other improvements, additions, installations,
renovations, changes or alterations to the Demised Premises, such
improvements shall be the property of Tenant as provided in section 3.2
hereof. The Facility and all other improvements, changes, additions,
installations, renovations or alterations (including all equipment and
movable trade fixtures necessary to maintain the Facility as an ongoing
operating Facility) shall be subject to purchase by Landlord, in accordance
with the terms and provisions of the Agreement, subject to the lien of the
mortgage, if then outstanding, in favor of the leasehold mortgagee as
contemplated by the Credit Agreement, which mortgage shall remain a lien on
the Facility and any such improvements until all obligations of Tenant to
such leasehold mortgagee are satisfied in
13
full or discharged. If Landlord has not exercised such right to purchase,
upon Landlord's giving 6 months advance notice to Tenant before the
Termination Date or upon Landlord's giving 30 days advance notice before or
after Tenant's removal from or abandonment of the Demised Premises,
whichever is applicable, Tenant shall remove forthwith the Facility and all
other improvements, additions, installations, renovations, changes or
alterations, level the land to grade level and thereafter pave the Demised
Premises with six inches of concrete as a parking lot. if Tenant exercises
any of its options to purchase the Demised Premises described in section 39
hereunder, any improvements, additions, alterations, installations,
renovations or changes not already the property of Tenant shall become the
property of Tenant upon the closing of the purchase of the Demised
Premises.
18. SIGNS.
Tenant may erect and maintain signs advertising its business,
provided, however, that all signs comply with all laws, ordinances and
regulations of any governmental authority having jurisdiction and that
Tenant has received the prior written approval of Landlord which approval
shall not be unreasonably withheld. Upon the termination of this lease,
Tenant shall remove such sign or signs and shall repair any damage to the
Demised Premises caused by the erection or removal thereof.
19. ASSIGNMENT AND SUBLETTING.
19.1 Tenant may not sublet all or any portion of the Demised Promises
or assign this lease without Landlord's prior written consent
except to the extent permitted under this lease and under the
terms and provisions of the Agreement. Tenant may collaterally
sublet all or any portion of the Demised Premises or collaterally
assign this lease without Landlord's consent to any leasehold
mortgagee of Tenant who agrees in writing to assume the
obligations of Tenant under the Agreement and this lease in the
event that such mortgagee (a) forecloses on its mortgage, (b)
takes possession of the Demised Premises or (c) assumes the
management of the Tenant's operations, provided, however, that
any such leasehold mortgagee may neither further assign this
lease nor sublet all or any portion of the Demised Premises
without Landlord's prior written consent, such consent not to be
unreasonably withheld. Landlord shall consent to any further
assignment by any such leasehold mortgagee if such assignee (a)
executes a written assumption of all of Tenant's obligations
under this lease and the Agreement,
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(b) possesses substantially the same technical expertise and experience in
the cogeneration field as the Tenant, (c) has substantially the same net
worth as the aggregate net worth of Tenant and O'Brien Energy Systems, Inc.
on the date hereof, (d) cures all of Tenant's defaults, if any, under this
lease and the Agreement (if then in effect) which are capable of being
cured and (e) agrees to pay all reasonable expenses (including, but not
limited to attorney's fees) incurred by Landlord in connection with its
request for assignment or subletting or with its entering into a new lease
pursuant to section 20.3 of this lease.
19.2 If this lease is assigned as set forth in section 19.1, or if the
Demised Premises or any part thereof is occupied by anybody other
than Tenant, Landlord may collect rent from the assignee or
occupant and apply the net amount collected to the rent herein
reserved. Notwithstanding any assignment, Tenant herein shall
remain liable for the payment of Bass Rent and Additional Rent
reserved hereunder and for the performance of all obligations
imposed upon Tenant by this lease.
20. MORTGAGING.
20.1 Notwithstanding anything in this Section 20 or this lease to the
contrary, Landlord and Tenant may each mortgage, hypothecate or
encumber its interest in this lease only (a) in connection and in
accordance with either party's exercise of its rights pursuant to
Articles 17 and 19 of the Agreement and (b) in accordance with
this section 20. Tenant may mortgage, hypothecate or encumber
its interest in this lease only in connection with any financing
relating to its construction. maintenance or operation of the
Facility and such leasehold interest may not be collaterally
mortgaged, hypothecated or encumbered in connection with any
other financing transaction entered into by Tenant.
20.2 If Tenant mortgages or encumber its interest in this lease
pursuant to and in compliance with this section 20, all rights
acquired by such mortgagee shall be subject to all the covenants,
conditions and restrictions set forth in this lease and the
Agreement, and to all rights and interests of Landlord in the
Demised Premises and the Entire Property.
20.3 Tenant's mortgagee under any such mortgage may enforce the
mortgage and acquire title (either in its own name or in a
nominee) to the leasehold estate hereunder in any lawful way, and
by its representative or by a receiver, as the case may be, take
possession of and manage the Demised Premises. Upon foreclosure
of the
15
mortgage, the leasehold estate may be sold or assigned by such
mortgagee or nominee subject to the mortgagee's satisfaction of
all the provisions of section 19.1 of this lease, and Landlord
will recognize the person, firm or corporation acquiring the
leasehold estate as the Tenant hereunder and will enter into a
new lease with that person, firm or corporation on the same terms
and provisions of this lease. Notwithstanding the preceding
sentence, Landlord shall have no obligation to enter into such
new lease unless and until that person, firm or corporation has
(a) cured all of Tenant's defaults, if any, under this lease
which are capable of being cured and (b) has agreed to pay all
reasonable expenses (including but not limited to attorney's
fees) incurred by Landlord in connection with its entering into
such new lease.
20.4 If, at the time of the occurrence of any Event of Default
described in section 25 of this lease, the Tenant's leasehold
estate created hereby is subject to a first mortgage, provided
that the mortgagee thereunder has filed written notice with
Landlord together with an address for service, the Landlord shall
notify such mortgagee in writing of the existence of the Event of
Default, specifying the nature thereof. Landlord shall also give
written notice of any default by Tenant known to Landlord which,
with the lapse of time or giving of notice, or both, would become
an Event of Default, including but not limited to notice of
Tenant's failure to perform or observe any of its obligations
under Article 3 or section 6.2 of the Agreement, such notice to
be given immediately following such defaults. The mortgagee
shall have a period of 15 days after the date of notice within
which to cure the Event of Default, or if it cannot reasonably be
cured within said 15-day period but is capable of being cured,
within which to diligently begin to cure the same, in which
latter case the mortgagee shall diligently prosecute to
conclusion all acts necessary to cure the Event of Default.
Notwithstanding anything in the preceding sentence to the
contrary, the Mortgagee shall with respect to an Event of Default
pursuant to section 16.2(i) of the Agreement, have no cure period
beyond the time periods set forth in section 16.2(i). in the
event of failure by the mortgagee to cure or diligently begin to
cure, Landlord may terminate this lease as herein provided
without further notice to the mortgagee. The Lease Term may be
preserved if the mortgagee within the cure periods set forth in
this section (a) cures all monetary defaults hereunder and under
the Agreement, (b) cures any default under section 16.2(i) of the
Agreement, (c) diligently commences to cure any nonmonetary
default hereunder an under the Agreement which default is capable
of being cured (except under 16.2(i) of the Agreement) and
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diligently prosecutes such cure to conclusion, (d) notifies
Landlord in writing of its or its nominee's intention to continue
to perform and observe all Of Tenant's covenants and obligations
hereunder and under the Agreement upon completion of its
foreclosure proceedings in accordance with section 20.3, and (e)
without delay, commences and diligently prosecutes to conclusion
foreclosure proceedings under its mortgage while keeping all
monetary and other obligations hereunder and under the Agreement
current.
20.5 As used in this lease as a noun (but not as a verb), the word
"mortgage" includes any instrument evidencing a loan or loans to
Tenant made at any time during the Lease Term which is or are
secured in whole or in part by a specific charge against the
leasehold interest of Tenant hereby created or any part of such
leasehold interest and includes all renewals, modifications,
consolidations, replacement and extensions of such instrument or
loan and shall include each and every debenture, mortgage. deed
of trust or other evidence of security given by way of
assignment, sublease or charge upon such leasehold interest and
which matures by its terms before, or is not renewable by the
obligor to a date beyond, the date herein provided for the
termination of this lease. The word mortgagee" means the
mortgagee of a mortgage by Tenant and the successors and assigns
of such mortgagee. The word "foreclosure" shall encompass the
acquisition of the leasehold estate by judicial proceedings or
otherwise, including the exercise of a power of sale contained in
a mortgage.
20.6 Landlord will at the request and cost of Tenant and the
mortgagee:
(a) enter into a direct agreement with the first mortgagee described
in section 20.4 confirming the provisions of this section,
including an agreement not to make any material modification of
this lease without the prior written consent of such mortgagee;
and
(b) execute, date and deliver a certificate as to the status of this
lease, including as to whether it is in full force and effect, is
modified or unmodified, confirming the rent payable and the state
of the accounts between Landlord and Tenant, the existence or
nonexistence of defaults and any other matters pertaining to this
lease.
20.7 Tenant and the mortgagee shall give Landlord notice advising of
the existence of such first
17
quasi-public use, by any power or authority having the right to take the
same by condemnation, eminent demain or otherwise, the amount awarded for
compensation for the whole of the Demised Premises so taken shall be paid
to Landlord. Tenant hereby expressly grants unto Landlord the entire
amount of the award or compensation, expressly disclaiming all right, title
and interest therein, and agrees that it shall have no claim for any damage
or loss against Landlord by reason of the condemnation or taking except
that any amount awarded as compensation for the improvements to the Demised
Premises, including the Facility (but excluding the value of Tenant's
interest in the unexpired term of this lease), shall be paid to Tenant.
Landlord acknowledges that Tenant's first leasehold mortgagee is entitled
to receive or hold all proceeds which are due and payable to Tenant
hereunder and agrees that Landlord shall hold all such proceeds due Tenant
in trust for such leasehold mortgagee. This lease shall terminate as of
the date title to all of the Demised Premises shall vest in the taking body
or the date Tenant is ousted from possession of the Demised Premises,
whichever is earlier. Landlord and Tenant shall thereupon be released of
and from all obligations and liabilities to each other accruing hereunder
thereafter. Tenant shall pay all Base Rent and Additional Rent accrued up
to the time of the Termination Date, and if any rent has been paid in
advance Landlord shall return the surplus.
23.2 If a part but less than the entire Demised Premises and all of
the improvements thereon is so taken by such power or authority
as aforesaid, then this lease, together with all of the
agreements, covenants, conditions and obligations herein
contained shall continue in full force and effect for the balance
of the Term as if the taking had not occurred. The amount
awarded for compensation for the part of the Demised Premises so
taken shall be paid to Landlord. Tenant hereby grants unto
Landlord the entire amount of the award or compensation,
expressly disclaiming all right, title and interest therein, and
agrees that it shall have no claim for any damages or loss
against Landlord by reason of such condemnation or taking, except
that any amount awarded as compensation for the improvements to
the Demised Premises, including the Facility (but excluding the
value of Tenant's interest in the unexpired term of this lease),
shall be paid to Tenant. In the event of a partial taking such
that Tenant's reasonable use of the Demised Premises shall be
materially impaired, Tenant shall have the right to terminate
this lease as of the date title shall vest in
19
the taking body or the date Tenant is ousted from Possession of
the portion taken, whichever is earlier, by giving Landlord
written notice. Landlord shall give written notice to Tenant of
such proposed taking specifying the portion of the Demised
Premises to be taken. Tenant shall give its written notice of
termination within 60 days after the giving of Landlord's notice.
Tenant's notice shall state the date of termination (not prior to
the date of Tenant's actual ouster from possession of the portion
of the Demised Premises so taken) and upon that date all Base
Rent and Additional Rent shall be apportioned and paid.
Thereafter neither Landlord nor Tenant shall have any obligations
to or rights against the other party hereunder.
23.3 If the temporary USO Of the whole or any part of the Demised
Premises shall be taken by any lawful power or authority by the
exercise of the right of condemnation, eminent domain or
otherwise, or by agreement between Tenant and those authorized to
exercise such right, Tenant shall give prompt notice thereof to
Landlord. Landlord shall give prompt notice to Tenant of any
notice Landlord receives regarding on temporary taking of the use
of the whole or any part of the Demised Premises. In that event
the Term shall not be reduced or affected in any way and Tenant
shall continue to pay in full the Base Rent, Additional Rent and
other charges herein reserved without reduction or abatement.
Tenant shall be entitled to receive for itself any award or
payment made for such use, provided, however, that if the period
of temporary use shall extend beyond the Termination Date, the
award or payment shall be ratably apportioned between Landlord
and Tenant.
23.4 The terms "condemnation", "taking" or similar terms as herein
used shall mean the acquisition by a public or other authority
having the right to take the same by condemnation or eminent
domain or otherwise, regardless of whether such taking is the
result of actual condemnation or of voluntary conveyance by
Landlord.
23.5 Tenant agrees to execute and deliver any instruments as may be
deemed necessary by Landlord to expedite any condemnation
proceeding or to effectuate a proper transfer of title to such
governmental or other authority seeking to take or acquire the
Demised Premises or any portion thereof. Each party agrees to
give the other and Tenant's first leasehold mortgagee, if any,
notice of any condemnation or similar proceeding.
23.6 Tenant shall have the right to participate in and appear at
any condemnation proceeding involving the
20
Demised Premises and to file an independent claim only with
respect to the improvements to the Demised Premises, including
the Facility (but excluding any claim with respect to Tenant's
interest in the unexpired term of this lease). If, however,
Tenant shall assert a claim or right to claim, except for a claim
permitted by the provisions of the immediately preceding
sentence, Tenant shall be liable to Landlord for all damages
sustained and all expenses incurred by Landlord, including
counsel fees and costs of legal proceedings, as a result of the
assertion by Tenant of that claim.
24. SURRENDER BY TENANT AT END OF TERM
24.1 Subject to and except as otherwise provided by the provisions of
section 17 of this lease, Tenant will surrender possession of the
Demised Premises and remove all goods and chattels, including
equipment and moveable trade fixtures, and other personal
property in the possession of Tenant at the end of the Term or at
such other time as Landlord may be entitled to re-enter and take
possession of the Demised Premises pursuant to any provision of
this lease. Tenant shall leave the Demised Premises in good
order and condition. Upon surrender of possession of the Demised
Promises, all improvements, additions, installations,
renovations, changes or alterations to the Demised Promises shall
become the property of Landlord , subject to the lien of the
mortgage in favor of the. leasehold mortgagee, if then in effect,
as contemplated by the Credit Agreement, which mortgage shall
remain a lien on the Facility and any such improvements until all
obligations of Tenant to such leasehold mortgages are satisfied
in full or discharged. In default of surrender of possession and
removal of goods and chattels at the time aforesaid, Tenant will
pay to Landlord (a) the Basic Rent and Additional Rent reserved
by the terms of this lease for such period as Tenant either holds
over in possession of the Demised Premises or allows its goods
and chattels or other personal property to remain in the Demised
Premises and (b) statutory penalties and all other damages which
Landlord shall suffer by reason of Tenant holding over in
violation of the terms and provisions of this lease, including
all reasonable claims for damages made by any succeeding tenant
or purchaser of the Demised Premises against Landlord which may
be founded upon delay by Landlord in giving possession of the
Demised Premises to such succeeding tenant or purchaser, so far
as such damages are occasioned by the unlawful holding over of
Tenant.
24.2 Subject to and except as otherwise provided by the provisions of
section 17 of this lease, if Tenant
21
fails to remove all goods and chattels and other personal
property in possession of Tenant, by whomsoever owned, at the end
of the Term or at such other time as Landlord may be entitled to
re-enter and take possession of the Demised Premises pursuant to
any provision of this lease, Tenant hereby irrevocably makes,
constitutes and appoints Landlord as the agent and attorney-in-
fact of Tenant to remove all goods and chattels and other
personal property from the Demised Premises to a reasonably safe
place of storage, the moving and storage to be at the sale cost
and expense of Tenant. Tenant covenants and agrees to reimburse
and pay to Landlord all expenses which Landlord incurs for the
removal and storage of all such goods and chattels. Without
limiting the foregoing, Tenant shall be deemed to have abandoned
such goods, chattels and other personal property and Landlord may
elect that the same shall become its property.
24.3 No act or thing done by Landlord shall be deemed an acceptance of
the surrender of the Demised Premises unless Landlord shall
execute a written release of Tenant and unless Tenant and any
first leasehold mortgagee of Tenant shall also execute such
written release. Tenant's liability hereunder shall not be
terminated by the execution by Landlord of a new lease of the
Demised Premises.
25. DEFAULT BY TENANT.
25.1 if before or during the Term there shall occur any of the
following events ("Events of Default"):
(a) except as otherwise provided in section 25.2, if Tenant shall
make a general assignment for the benefit of creditors, or shall admit in
writing its inability to pay its debts as they become due, or shall file a
petition in bankruptcy, or shall be adjudicated a bankrupt or insolvent, or
shall file a petition seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any present
or future statute, law or regulation, or shall file an answer admitting or
not contesting the material allegations of a petition against it in any
such proceeding, or shall seek or consent to or acquiesce in the
appointment of any trustee, receiver or liquidator of Tenant or any
material part of its assets; or
(b) except as otherwise provided in section 25.2, if, within 60 days
after the commencement of any proceeding against Tenant seeking any
reorganization, arrangement, composition, readjustment, liquidation,
22
dissolution or similar relief under any present or future statute, law or
regulation, the proceeding shall not have been dismissed, or if, within 60
days after the appointment without the consent or acquiescence of Tenant of
any trustee, receiver or liquidator of Tenant or of any material part of
its assets, the appointment shall not have been vacated; or
(c) except as otherwise provided in section 25.2, if the interest of
Tenant in the Demised Premises shall be sold under execution or other legal
process; or
(d) if Tenant shall fail to pay any installment of Base Rent or
Additional Rent when the same is due and the failure shall continue for 10
days after Landlord gives Tenant notice thereof; or
(e) if Tenant shall fail to perform or observe any requirement,
obligation, agreement. covenant or condition of this lease, other than the
payment of any installment of Base Rent or Additional Rent, and any such
failure shall continue for 30 days after Landlord gives Tenant notice
thereof, or if such failure cannot be remedied within 30 days, then for a
reasonable time thereafter, provided Tenant diligently commences to remedy
the failure within the 30-day period and prosecutes the same to completion
with diligence; or
(f) if any representation or warranty contained in this lease shall
prove to be incorrect in any material respect on the date upon which it was
made; or
(g) if an Event of Default occurs pursuant to section 16.2 of the
Agreement; or
(h) if there is an event of default by Tenant under any financial
agreement involving more than $2,000,000 which relates to the construction
or operation of the Facility and which is not cured within any applicable
grace periods; or
(i) if Tenant fails to obtain or maintain any material permit or
license required to construct or operate the Facility;
(j) if there is an assignment for the benefit of creditors of
Guarantor; or
(k) if Guarantor is adjudged a bankrupt or a petition is filed by or
against Guarantor under the provisions of any state insolvency law or under
the provisions of federal bankruptcy laws; or
23
(l) if the business or principal assets of Guarantor are placed in
the hands of a receiver, assignee or trustee; or
(m) if Guarantor is dissolved;
then at any time following any of such Events of Default, Landlord shall
have all of the rights available to Landlord pursuant to section 16.4 of
the Agreement, including, but not limited to, Landlord's right to terminate
this lease and the Agreement except as otherwise provided in sections 25.2
or 20 hereof.
25.2 The events of default set forth in subsections 25.1(a), (b), (c),
(f) and (h) above shall not constitute an Event of Default or
otherwise affect the validity of this lease so long as Tenant, in
its status as Seller under the Agreement, continues to provide
all of the services described in the Agreement on the part of
Seller to be performed and complies with its other obligations
under this lease and the Agreement, and in such event, this lease
shall continue to remain in full force in accordance with the
terms herein contained.
25.3 The non-prevailinq party agrees to pay all costs of proceedings
brought or defended by the prevailing party for the enforcement
of any terms and conditions of this lease, including reasonable
attorney's fees and expenses, which, if Landlord is the
prevailing party, shall be deemed Additional Rent for the period
with respect to which the Event of Default occurred, payable
immediately upon the final disposition of any suit.
25.4 Except as limited by section 16.4 of the Agreement, no remedy
herein conferred upon or reserved to Landlord is intended to be
exclusive of any other remedy herein or provided by law or the
Agreement, but each shall be cumulative and shall be in addition
to every other remedy given hereunder or now or hereafter
existing at law or in equity or by statute. The receipt and
acceptance by Landlord of rent with knowledge of the default by
Tenant in any of Tenant's obligations under this lease shall not
be domed a waiver by Landlord of the default. Nothing contained
in this lease shall limit or prejudice the right of Landlord to
prove for and obtain in proceedings for bankruptcy or insolvency
an amount equal to the maximum allowed by any statute or rule of
law in effect at the time when, and governing the proceedings in
which, the damages are to be proved, whether or not the amount be
greater, equal to or less than the amount of the loss or damages
referred to above.
24
25.5 No waiver by Landlord of any Event of Default or any default by
Tenant in any covenant, agreement or obligation under this lease
or the Agreement shall operate to waive or affect any subsequent
Event of Default or default in any covenant, agreement or
obligation hereunder or in the Agreement, nor shall any
forbearance by Landlord to enforce a right or remedy upon an -
Event of Default or any such default be a waiver of any of its
rights and remedies with respect to that or any subsequent
default or in any other manner operate to the prejudice of
Landlord.
26. QUIET ENJOYMENT.
Landlord covenants that Tenant, on paying the rental and performing
the covenants and conditions contained in this lease, may peaceably and
quietly have, hold and enjoy the Demised Premises for the term aforesaid.
27. CERTIFICATES.
Each party agrees at any time and from time to time during the Lease
Term, within 10 days after written request from the other party, to
execute, acknowledge and deliver to the other party or to a third party a
statement in writing certifying that this lease is unmodified and in full
force and effect (or if there have been modifications, that the. same is in
full force and effect as modified and stating the modifications), and the
dates to which the Base Rent, Additional Rent and other charges have been
paid in advance, if any, and stating whether or not, to the best knowledge
of the party making such certificate, the other party is in default in the
performance of any covenant, agreement or condition contained in this
lease, and, if so, specifying each such default of which such party may
have knowledge. Such third party shall have the right to rely upon the
contents of any such written statement.
28. NOTICES.
28.1 Whenever it is provided herein that notice, demand, request or
other communication shall or may be given to or served upon
either of the parties, or if either of the parties shall desire
to give or serve upon the other any notice, demand, request or
other communication with respect hereto or the Demised Premises,
the notice shall be in writing, and. any law or statute to the
contrary notwithstanding, shall be given or served as follows:
25
(a) if given or served by Landlord, by hand delivery, by overnight
nationwide courier delivery service or by mailing the same to Tenant by
registered or certified mail, postage prepaid, return receipt requested,
addressed to Tenant at the Demised Premises or at such other address as
Tenant may from time to time designate by notice given to Landlord in the
manner herein provided, with a copy to any first mortgagee of which
Landlord has notice under section 21.6; and
(b) if given or served by Tenant, by hand delivery, by overnight
nationwide courier delivery service or by mailing the same to Landlord by
registered or certified mail, postage prepaid, return receipt requested,
addressed to Landlord at the address first set forth above or at such other
address as Landlord may from time to time designate by notice given to
Tenant in the manner herein provided.
28.2 Every notice, demand, request or other communication hereunder
shall be deemed to have been given or served (a) at the time that the same
shall be hand delivered or delivered by the courier delivery service or (b)
3 days after the same shall be deposited in the United States mails,
postage prepaid, in the manner aforesaid. No notice given by Landlord
shall be effective unless given to any first mortgagee of which Landlord
has notice under section 21.6.
29. CAPTIONS.
The captions to the sections of this lease are inserted only as a
matter of convenience and for reference and in no way define, limit or
describe the scope or intent of this lease or any part thereof nor in any
way affect this lease or any part thereof.
30. COVENANTS AND CONDITIONS.
All of the terms and provisions of this lease shall be deemed and
construed to be "covenants" and "conditions" to be performed by the
respective parties as though words specifically expressing or importing
covenants and conditions were used in each separate term and provision
hereof.
31. WAIVER OF TRIAL BY JURY.
Landlord and Tenant hereby mutually waive their rights to trial by
jury in any action, proceeding or counterclaim brought by either of the
parties hereto
26
against the other on any matters whatsoever arising out of or in any way
connected with this lease, Tenant's use or occupancy of the Demised
Premises, and any claim of injury or damage.
32. DEFINITION OF TERM "LANDLORD"
When the term "Landlord" is used in this lease it shall be construed
to mean and include only the then owner of the fee title of the Demised
Premises. Upon the transfer by Landlord of the fee title to the Demised
Premises, Landlord shall give Tenant notice in writing of the name and
address of Landlord's transferee. In such event the former Landlord shall
be automatically freed and relieved from and after the date of such
transfer of title of all personal liability with respect to the performance
of any of the covenants and obligations on the part of Landlord herein
contained to be performed so long as the transfer and conveyance by
Landlord is expressly subject to the assumption by the grantee or
transferee of such covenants and obligations of Landlord.
33. BROKERAGE REPRESENTATION.
Tenant hereby represents and warrants to Landlord that it did not see
the Demised Premises with, nor was it introduced to the Demised Premises
by, any real estate broker or agent thereof. Tenant further represents and
warrants that it knows of no person who is entitled to a real estate
brokerage commission or sum in lieu thereof in connection with the
execution of this lease or the creation of the tenancy effected by this
lease.
34. COVENANTS OF FURTHER ASSURANCES.
34.1 If, in connection with Landlord's obtaining financing for the
Demised Premises or the Entire Property, a lender shall request reasonable
modifications in this lease as a condition to such financing, Tenant will,
contingent upon Tenant's obtaining the prior consent of its mortgagee, not
unreasonably withhold, delay or defer its written consent thereto, provided
that such modifications do not in Tenant's reasonable judgment (a)
materially increase the obligations of Tenant hereunder or under the
Agreement or (b) materially adversely affect the leasehold interest hereby
created or Tenant's use and enjoyment of the Demised Premises pursuant
hereto or to the Agreement.
34.2 If in connection with Tenant's obtaining financing for the
Facility or the Demised Premises, a lender shall request reasonable
modifications in this
27
lease as a condition to such financing, Landlord will , contingent upon
Landlord's obtaining the prior consent of it mortgagee to such
modifications, not unreasonably withhold, delay or defer its written
consent thereto, provided that such modifications do not in Landlord's
reasonable judgment (a) materially decrease the obligations of Tenant
hereunder or under the Agreement (b) materially increase the Landlord's
obligation hereunder or thereunder or (c) materially adversely affect
Landlord's estate and interest hereunder.
35. ENTIRE AGREEMENT
This lease contains the entire agreement between the parties and shall
not be modified in any manner except by an instrument in writing executed
by the parties.
36. APPLICABLE LAW.
This lease and the performance thereof shall be governed by and
construed in accordance with the laws of the state of Now Jersey.
37. BIND AND INURE CLAUSE.
The terms, covenants and conditions of this lease shall be binding
upon and inure to the benefit of each of the parties hereto, and their
respective successors and assigns.
38. TENANT'S RECOURSE.
In any action or proceeding brought by Tenant against Landlord on this
lease, Tenant shall look solely to the Demised Premises for the payment of
any damages or satisfaction of any liabilities or obligations of Landlord,
and no judgment obtained by Tenant shall be enforceable against, or a lien
upon, any property of Landlord other than the Demised Premises. This
section 38 shall have no applicability to Landlord's liability to Tenant
under the Agreement.
39. OPTIONS TO PURCHASE.
39.1 Tenant shall have the right, option and/or obligation to purchase
the Demised Premises only to the extent that those rights,
options and obligations are given to or required of Tenant under
the terms and provisions of the Agreement, including but not
limited to Article 5 and section 11.1 of the Agreement.
28
39.2 If Tenant elects or is required to purchase the Demised Premises
under section 39.1 of this lease, title thereto (including title
to all easements which (a) were theretofore granted by Landlord
to Tenant pursuant to this lease and (b) are necessary in order
"or Tenant to continue operating the Facility) will be conveyed
to Tenant by a Bargain and Sale Deed with Covenant against
Grantor's Acts and a properly executed Affidavit of Title,
subject to all agreements and restrictions of record (but free of
all mortgages and other liens and encumbrances placed by Landlord
on the Demised Premises which are capable of satisfaction by the
payment of a fixed sum of money), all applicable provisions of
the Agreement and all facts which a survey and physical
inspection of the Demised Promises would reveal. Tenant shall be
obligated at its sole cost and expense to obtain all governmental
approvals necessary to consummate such purchase including, but
not limited to, the obtaining of any subdivision and, subject to
the provisions of section 40 of this lease, environmental
approvals (including the complete cost of any necessary
environmental cleanup). If Landlord is unable in good faith to
convey title as specified herein because of circumstances beyond
Landlord's reasonable control, Landlord shall be released from
the obligation to convey title, and shall not be liable to Tenant
for any damages resulting therefrom.
39.3 If Tenant purchases the Demised Premises, Landlord shall have the
right, option and/or obligation thereafter to repurchase the
Demised. Premises only to the extent that those rights, options
and obligations are given to or required of Landlord under the
terms and provisions of the Agreement. The repurchase rights of
Landlord shall be reflected in any deed from Landlord to Tenant.
39.4 Landlord shall have the right, option and/or obligation to
purchase the Facility only to the extent that those rights,
options and obligations are given to or required of Landlord
under the terms and provisions of Agreement including, but not
limited to, Article 5 and section 16.4 of the Agreement. Any
purchase of the Facility and the improvements shall be subject to
the lion of the mortgage, if then in effect, in favor of the
leasehold mortgagee as contemplated by the Credit Agreement,
which mortgage shall remain a lien on the Facility and the
improvements until all obligations of Tenant to such leasehold
mortgagee are satisfied in full or discharged.
39.5 Neither Landlord nor Tenant may assign their respective options
and obligations to purchase the
29
Demised Premises or the Facility, as applicable, except to the extent
permitted by their respective mortgages and as otherwise permitted under
the terms and provisions of the, Agreement.
39.6 TENANT AIM LANDLORD AGREE THAT TIME IS OF THE ESSENCE NOT ONLY
IN EXERCISING ALL OF THEIR RESPECTIVE PURCHASE OPTIONS AND/OR
OBLIGATIONS BUT ALSO IN CLOSING THS PURCHASE THEREAFTER. TENANT
AND LANDLORD ALSO AGREE THAT TIME IS OF THE ESSENCE REGARDING THE
NOTICE OF TERMINATION DESCRIBED IN SECTION 5.1(ii) OF THE
AGREEMENT.
40. ENVIRONMENTAL OBLIGATIONS.
40.1 For purposes of this section,
(a) "Hazardous Substances" include any pollutants, dangerous
substances or any "hazardous wastes" or "hazardous substances" as defined
in or pursuant to the Environmental Cleanup Responsibility Act (N.J.S.A.
13: 1K-6 et seq.) ("ECRA"), the Spill Compensation and Control Act
(N.J.S.A. 58:10-23.11 et seq.), the Resource Conservation and Recovery Act
(42 U.S. SS6901 et seq.), the Comprehensive Environmental Response
Compensation and Liability Act (42 U.S.C. SS9601 et seq.) or any other
state or federal environmental law or regulation.
(b) "Enforcement Notice" means a summons, citation, directive, order,
claim, litigation, investigation, judgment, letter or other communication,
written or oral, actual or threatened, from the Now Jersey Department of
Environmental Protection ("NJDEP"), the United states Environmental
Protection Agency "USEPA") or other Federal, State or local agency or
authority, or any other entity or any individual, concerning any
intentional or unintentional action or omission resulting or which might
result in the Releasing of Hazardous Substances into the waters or onto the
lands of the State of New Jersey, or into waters outside the jurisdiction
of the State of New Jersey where damage may have resulted to the lands,
waters, fish, shellfish, wildlife, biota, air or other resources owned,
managed, hold In trust or otherwise controlled by, or within the
jurisdiction of. the State of Now Jersey, or into the 'environment', as
such term is defined in 42 U.S.C. SS9601(8).
(c) "Releasing', means releasing, spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching,
disposing, dumping or otherwise placing.
30
40.2 The Demised Premises shall not be used and/or occupied by the
Tenant to generate, manufacture, refine, transport, treat, store,
handle, dispose, transfer or process Hazardous Substances, except
as disclosed by the Tenant in Appendix A. Notwithstanding the
previous sentence, Tenant shall be permitted to generate,
manufacture, refine, transport, treat, store, handle, dispose,
transfer or process Hazardous Substances in addition to those
listed in Appendix A if and only if (a) Tenant obtains Landlord's
prior written consent, such consent not to be unreasonably
withheld, and (b) the Hazardous Substances are necessary or
appropriate in connection with Tenant's operation of the Facility
and (c) Tenant proves to Landlord's reasonable satisfaction that
all such Hazardous Substances will be used in accordance with all
applicable requirements of all applicable public authorities.
40.3 The Demised Premises shall not be used by as a "Major Facility",
as such term is defined as a "Major Facility" in N.J.S.A. 58:10-
23.llb(l).
40.4 The Tenant shall not suffer or permit any lien to attach to the
Demised Premises as a result of the chief executive of the New
Jersey Spill Compensation Fund ("Spill Fund" or "Fund") expending
monies from the Fund to pay for "Damages", as such term is
defined in N.J.S.A. 58:10-23.11(g) ("Damages") and/or "Cleanup
and Removal Costs", as such term is defined in N.J.S.A.
58:1023.11b(d) ("Cleanup and Removal Costs"), arising after the
Commencement Date from any intentional or unintentional action or
omission of the Tenant, user and/or operator of the Demised
Premises, resulting in the Releasing of Hazardous Substances into
the waters or onto the lands of the State of Now Jersey, or into
waters outside the jurisdiction of the State of New Jersey where
damage may have resulted to the lands, waters, fish,
shellfish, wildlife, biota, air or other resources owned,
managed, held in trust or otherwise controlled by, or within the
jurisdiction of, the State of New Jersey. Under no circumstances
shall Tenant be responsible for Damages or Cleanup and Removal
Costs for the remediation of Hazardous Substances Released at the
Demised Premises prior to the Commencement Date or Released by
Landlord.
40.5 Tenant shall not suffer or permit any Enforcement Notice or any
facts which might result in any Enforcement Notice with respect
to the Demised Premises arising, in either case, after the
Commencement Date from any intentional or unintentional action or
omission of the Tenant, user and/or operator of the Demised
Premises,
31
resulting in the Release of Hazardous Substances on or after the
Commencement Date.
40.6 If the Tenant obtains knowledge of the assertion of any lien, as
set forth in section 40.4, or an Enforcement Notice, as set forth
in section 40.5, or obtains knowledge of facts which may give
rise to such lien or Enforcement Notice, whether written or oral,
it shall promptly notify the Landlord in writing.
40.7 At the request of Landlord during and after the Term, in the
event of an Enforcement Notice or other circumstances leading
Landlord reasonably to conclude an Enforcement Notice could issue
as a result of events, actions or facts occurring or arising
after the Commencement Date, the Tenant will retain an
environmental consultant, acceptable to the Landlord. to conduct
an appropriate on-site inspection of the Demised Premises,
including if necessary a geohydrological survey of soil and
subsurface conditions as well as other tests, to determine the
presence of such Hazardous Substances and the consultant shall
certify to the Landlord whether, in his professional judgment,
there exists any evidence of the presence of Hazardous Substances
on or in the Demised Premises.
40.8 If there shall be filed a lien against the Demised Premises by
the NJDEP pursuant to and in accordance with the provisions of
N.J.S.A. 58:10-23.11f(f) as a result of the chief executive of
the Spill Fund having expended monies from the Spill Fund to pay
for Damages and/or Cleanup and Removal Costs attributable to the
Releasing of Hazardous Substances after the Commencement Date,
the Tenant shall immediately either (a) pay the claim and remove
the lien from the Demised Premises, or (b) furnish M a bond
satisfactory to the Landlord in the amount of -he claim out of
which the lien arises, (ii) a cash deposit in the amount of the
claim out of which the lien arises, or (iii) other security
reasonably satisfactory to the Landlord in an amount sufficient
to discharge the claim out of which the lien arises.
40.9 The Tenant warrants and represents that the Standard Industrial
Code ("SIC Code") number for the activities to be carried on
within the Demised Premises is 4931, and that no other activities
having any different SIC Code numbers shall be conducted on the
Demised Premises without the Landlord's prior written consent,
which consent may be arbitrarily withheld.
40.10 Compliance with the provisions of ECRA ("ECRA Compliance" or
"ECRA Clearance") shall be accomplished by either (a) obtaining
an "ECRA Nonapplicability
32
Letter" from the NJDEP (if ECRA is not applicable) or (b)
submitting to the NJDEP a "Negative Declaration", as such term is
defined in N.J.A.C. 7:1-3.3 ("Negative Declaration") or in lieu
thereof submitting and implementing a "cleanup plan", as such
term is defined in N.J.A.C. 7:1-3.3 ("Cleanup Plan"). The
allocation of responsibility between Tenant and Landlord for ECRA
compliance shall be as follows (subject to the allocation of
costs pursuant to section 40.11):
(a) if ECRA Compliance is necessary because Tenant has exercised any of
its rights under the Agreement to purchase either the Demised Premises
or the Entire Property (including the Demised Premises), Tenant shall
be responsible for ECRA Compliance for both such acquisition and any
subsequent resale of said property pursuant to the Agreement; and
(b) if ECRA Compliance is necessary because Tenant ceases its operations
at the Facility, Tenant shall be responsible for ECRA compliance; and
(c) if ECRA Compliance is necessary for any reason other than the reasons
set forth in subsections 40.10(a) or (b), the party whose actions
caused ECRA Compliance to be necessary shall be responsible for such
compliance.
Notwithstanding anything in this section 40.10 to the contrary, Tenant and
Landlord agree to cooperate with each other and to exchange information
relating to ECRA Compliance regardless of which party is responsible for
such Compliance.
40.11 The allocation of responsibility as between Tenant and Landlord
for the payment of any and all costs and fees ("ECRA Costs") associated
with ECRA compliance shall be as follows:
(a) all of that portion of ECRA Costs which relates either
to (i) obtaining an ECRA Nonapplicability Letter or (ii) submitting a
Negative Declaration to the NJDEP, excluding the submission and
implementation of any necessary sampling plan, shall be paid by the party
who is responsible for ECRA compliance pursuant to section 40.io above; and
(b) all of that portion of ECRA Costs which relates to
submitting and implementing a sampling plan or
33
a cleanup Plan shall be paid by, and the submission and implementation of
the Cleanup Plan shall. to the extent permitted by NJDEP under ECRA, be
controlled by (i) Landlord if the Hazardous Substances requiring
remediation were either Released prior to the Commencement Date or Released
by Landlord and (ii) Tenant if the Hazardous Substances requiring
remediation were Released after the Commencement Date and were not Released
by Landlord.
40.12 Unless Tenant delivers an ECRA Nonapplicability Letter to
Landlord on or before 6 months prior to the end of the Term,
Tenant shall commence its ECRA compliance efforts relating to its
cessation of operations at east 6 months prior to the end of the
Term and diligently pursue such efforts to conclusion. Tenant
shall keep Landlord fully informed of its progress in obtaining
ECRA Clearance by sending a copy of all correspondence and
documents to Landlord and by delivering an ECRA Compliance status
report to Landlord every 30 days during the 6-month clearance
period. it is understood and agreed by Tenant that Landlord shall
have the right to rely an and shall rely on all statements,
representations, warranties and commitments made by Tenant to the
NJDEP pursuant to this section an if such statements,
representations, warranties and commitments had been made
directly to the Landlord, if Tenant fails to obtain ECRA
Clearance on or before the and of the Term, Tenant shall be
liable to Landlord as a holdover tenant, without limiting any
other liability of Tenant to Landlord resulting from its default
under this lease.
40.13 Whenever the terms ECRA, Spill Fund, Major Facility and similar
terms and statutory references are used in this lease, they shall be deemed
to include any similar, future or successor statutory references and/or
terms as may apply to the Demised Premises and its use and occupancy by
Tenant under this lease.
41. GUARANTY.
O'Brien Energy Systems, Inc., of which Tenant is a wholly-owned
subsidiary, will execute as Appendix 3 to this lease an appropriate
guaranty of the due and punctual performance of all of Tenant's obligations
under this lease. This guaranty will continue in full force and
34
effect for the duration of this lease unless Landlord and Tenant mutually
agree to terminate it, whereupon it will have no further force or effect.
42. RELATIONSHIP TO THE AGREEMENT.
Notwithstanding anything in this lease to the contrary, in case of any
ambiguity or contradiction between the terms and provisions of this lease
and the terms and provisions of the Agreement, the terms and provisions of
the Agreement shall control.
43. CONTINUATION OF LEASE
Notwithstanding any provision of this lease or the Agreement to the
contrary, unless this lease is otherwise continued in connection with the
assumption of the Agreement by a purchaser of the "Plant" pursuant to
section 5.1(B) of the Agreement (in which case this lease will continue as
presently written), so long as there is then no Event of Default by Tenant
under this lease, this lease shall not terminate upon the exercise by the
Landlord of its rights to sell or abandon the "Plant" as provided in
Section 5.1(B) of the Agreement (unless the Tenant purchases the Demised
Premises pursuant to such Section 5.1(B)) but shall continue in effect
until the twenty-fifth anniversary of the Commencement Date, provided that
the parties shall enter into a new lease (or amend this lease) which shall
be on the same terms hereof except that (a) Base Rent shall be renegotiated
to a fair market rental for comparable premises and (b) all references
herein to the Agreement (other than those relating to the production of
steam by Tenant and the purchase thereof by Landlord, which references
shall be delted) shall, to the extent required to effectuate the purposes
of this lease, be replaced by provisions comparable to the provisions of
the Agreement.
44. RECORDING.
The parties agree that a memorandum of lease in the form attached
hereto as Schedule C ("Memorandum of Lease") shall be recorded in the Essex
County Register's Office, immediately following the Commencement Date.
Neither party shall have the right to record either this entire lease or
any writing other than the Memorandum of Lease which describes the terms
and provisions of this lease.
35
IN WITNESS WHEREOF, the parties have executed or have caused this
lease to be executed by their duly authorized officers and their corporate
seals to be hereunto affixed and attested, all as of the day and year first
above written.
ATTEST
By: /s/ William D. Harper
William D. Harper
V.P. and Secretary
ATTEST
By: /s/ Carlene B. Balickie
Carlene B. Balickie
Assistant Secretary
NEWARK GROUP INDUSTRIES, INC. (Landlord)
By: /s/ Connie B. Smith
Connie B. Smith
V.P.
O'BRIEN (NEWARK) COGENERATION, INC. (Tenant)
By: /s/ Sanders Newman
Sanders Newman
Secretary
SCHEDULE A
Legal Description of Property
To be Leased to O'Brien (Newark) Cogeneration, Inc.
In the City of Newark, N.J.
By Newark Group Industries, Inc.
Beginning at a point in the North Easterly Section of Lot 75, Block 2412,
said point being distant 28.0' South of the Southerly R.O.W. of the Central
Railroad of N.J. and 60.0' Westerly Property Line of Blanchard and running
thence:
(1) S13-02'12"E a distance of 110.00' to a point; and thence
(2) Sl-30'00"W a distance of 62.54' to a point; and thence
(3) N88-30'00"W a distance of 191.00' to a point; and thence
(4) Nl-30'00"E a distance of 175.00' to a point; and thence
(5) S86-26'00"E a distance of 163.49' to the point or place of Beginning.
SCHEDULE B-1
[Drawing of lease area]
Steam Purchase Agreement between Landlord and Tenant dated October 3, 1986
as amended by Amendments dated March 8, 1988 and July 18. 1988 (as so
amended and as it may be amended from time to time in accordance with the
provisions thereof, the "Agreement"), will terminate 120 days after the
termination of the Agreement or on such other date as may be provided in
the Lease or the Agreement, whether following an extension or renewal
hereof or otherwise.
3. The Lease provides the Tenant with (a) the right to extend the
lease term for successive additional terms of five (5) years each but only
in connection with the renewal of the Agreement and upon the terms
contained therein and (b) the right to purchase the Demised Premises and
the Entire Property, such purchase rights of Tenant being exercisable upon
the terms and conditions as more particularly set forth in the Lease and
the Agreement.
4. All of the terms, covenants and conditions of the Lease are fully
and particularly set forth in the Lease executed by the parties, which is
incorporated herein by reference as if herein set forth in full.
IN WITNESS WHEREOF, the parties have set their hands and seals or
caused this Memorandum of Lease to be executed by their proper corporate
officers and their
corporate seals to be affixed, as of the day and year first above written.
ATTEST:
[Seal]
ATTEST:
[Seal]
NEWARK GROUP INDUSTRIES, INC., Landlord
By:
O'BRIEN (NEWARK) COGENERATION, INC., Tenant
By:
STATE OF NEW JERSEY:
COUNTY or ESSEX:
BE IT REMEMBERED, that on this day of July, 1988, before me,
the subscriber, an Attorney-at-Law of the State of New Jersey, personally
appeared who, being by me duly sworn and on his oath, deposed and
made proof to my satisfaction that he is the of Newark Group
Industries, Inc., and the person who has signed the within instrument, and
I having first made known to him the contents thereof, he did acknowledge
that he signed, sealed with the proper corporate seal and delivered the
same as such officer an behalf of the corporation as its voluntary act and
deed, made by virtue of authority from its board of directors, for the uses
and purposes therein expressed.
Attorney-at-Law of New Jersey
STATE OF NEW JERSEY:
COUNTY OF ESSEX:
BE IT REMEMBERED, that an this day of 19 , before me, the
subscriber, a Notary Public of the State of , County of
personally appeared who, being by me duly sworn and on this oath,
deposed and made proof to my satisfaction that he is the of ,and
the person who has signed the within instrument; and I having first made
known to him the contents thereof, he did acknowledge that he signed,
sealed with the proper corporate seal and delivered the same as such
officer on behalf of the corporation as its voluntary act and deed, made by
virtue of authority from its board of directors, for the uses and purposes
therein expressed.
Notary Public
(Apply Raised Seal and Stamp indicating expiration date of Commission)
Prepared by:
APPENDIX A
Tenant's Hazardous Substance List
Type of
Hazardous substance
1. No 2 Fuel
or Kerosene
2. Ammonia
Selective
3. Drew Chemical
Adjunct B or F
(or equivalent)t
Neutral orthophosphate
4. Mekor (R) 70 (or
equivalent):
Volatile organic oxygen
Scavenger/Metal passivator
5. Amercor 8750
Inhibitor (or
Equivalent):
Neutralizing Amines
6. Advantage (R) 202
Deposit Inhibitor
(or equivalent):
Polymeric Antiscalant-
Sequesterant (as a substitute
for Item 3)
7. PerforMax
4021/403
Chlorine
Sulfuric Acid
8. Lubricants
9. Sulfuric Acid
10. Sodium Hydroxide
(Caustic Soda)
11. Sodium Sulfite
12. Solvents
(Degreasers)
MEMORANDUM OF LEASE
THIS MEMORANDUM OF LEASE made this 18th day of July, 1988,
BETWEEN NEWARK GROUP INDUSTRIES, a New Jersey corporation located at 57
Freeman Street, Newark, New Jersey 07105 ("Landlord"),
AND O'BRIEN (NEWARK) COGENERATION, INC., a Delaware corporation located at
225 South Eighth Street, Philadelphia, Pennsylvania 19106 ("Tenant"),
W I T N E S S T H":
1. The parties do hereby acknowledge and declare that they have
entered into a lease dated as of July 18, 1988, ("Lease") for a portion of
the land in the City of Newark, County of Essex and State of Now Jersey,
located at 60 Lockwood Street and being known and designated as Lots 75 and
58, Block 2412 on the Newark, New Jersey Tax Maps ("Entire Property"), and
more particularly described in Schedule A hereto ("Demised Premises").
2. The Lease commenced an July 18, 1988 and, except as
otherwise Provided in Section 5.1(B) of the Steam Purchase Agreement
between Landlord and Tenant dated October 3, 1986 an amended by Amendments
dated March 8, 1986 and July Is, 1988 (as so amended and as it may be
amended from time to time in accordance with the
Prepared by:
/s/ Margaret F. Black
Margaret F. Black, Esq.
Sills Cummis Zuckerman Radin
Tischman Epstein & Gross
provisions thereof, the "Agreement"), will terminate 120 days after the
termination of the Agreement or on such other date as may be provided in
the Lease or the Agreement, whether following an extension or renewal
hereof or otherwise.
3. The Lease provides the Tenant with (a) the right to extend
the lease term for Successive additional terms of five (5) years each but
only in connection with the renewal of the Agreement and upon the terms
contained therein and (b) the right to purchase the Demised Premises and
the Entire Property, such purchase rights of Tenant being exercisable upon
the terms and conditions as more particularly set forth in the Lease and
the Agreement.
4. All of the terms, covenants and conditions of the Lease are
fully and particularly sot forth in the Lease executed by the parties,
which in incorporated herein by reference as if herein set forth in full.
2
IN WITNESS WHEREOF, the parties have set their hands and seals or caused
this Memorandum of Lease to be executed by their proper corporate officers
as of the day and year first above written.
ATTEST
By: /s/ William D. Harper
William D. Harper, V.P. and Secretary
ATTEST
By: /s/ Carlene B. Balickie
Carlene B. Balickie, Assistant Secretary
NEWARK GROUP INDUSTRIES, INC. (Landlord)
By: /s/ Connie B. Smith
Connie B. Smith, V.P.
O'BRIEN (NEWARK) COGENERATION, INC. (Tenant)
By: /s/ Sanders Newman
Sanders D. Newman
Secretary
STATE OF NEW JERSEY, COUNTY OF ESSEX SS:
I CERTIFY that on July 20, 1988,
SANDERS D. NEWMAN
personally came before me and this person acknowledged under oath,
to my satisfaction that:
(a) this person signed, sealed and delivered the attached document as
Secretary of O'Brien (Newark) Cogeneration, Inc., the corporation named in
this document:
(b) the proper corporate seal was affixed; and
(c) this document was signed and made by the corporation as its
voluntary act and deed by virtue of authority from its Board of Directors.
/s/ Margaret F. Black
Notary Public/Attorney at Law
Of New Jersey
STATE OF NM JERSEY, COUNTY OF ESSEX SS:
I CERTIFY that on July 15, 1988,
CONNIE B. SMITH
personally came before me and this person acknowledged under oath, to my
satisfaction that:
(a) this person signed, sealed and delivered the attached document as
Vice President of Newark Group Industries, Inc., the corporation named in
this document:
(b) the proper corporate seal was affixed; and
(c) this document was signed and made by the corporation as its
voluntary act and deed by virtue of authority from its Board of Directors.
/s/ Margaret F. Black
Margaret F. Black
Attorney at Law of New Jersey