Exhibit 10.30
GROUND LEASE
BETWEEN
E. I. DU PONT DE NEMOURS AND COMPANY
AND
O'BRIEN ENERGY SYSTEMS, INC.
TABLE OF CONTENTS
Paragraph Page
1. PREMISES LEASED 2
2. CONSTRUCTION OF FACILITIES BY TENANT 4
3. TERM 9
4. RENT 9
5. CONDITION PREECEDENT 9
6. TAXES AND ASSESSMENTS 10
7. USE 12
8. REPAIR AND MAINTENANCE 12
9. UTILITIES 13
10. INDEMNIFICATION 13
11. REQUIREMENTS OF PUBLIC AUTHORITY 13
12. ACCESS TO PREMISES 15
13. ASSIGNMENT AND SUBLETTING 15
14. SIGNS 15
15. INSURANCE 15
16. WAIVER OF SUBROGATION 16
17. CASUALTY 17
18. CONDEMNATION 17
19. FEE MORTGAGES 20
TABLE OF CONTENTS (cont'd)
Paragraph Page
20. DEFAULT 21
21. BANKRUPTCY AND INSOLVENCY 21
22. WAIVERS 22
23. NOTICES 22
24. SURRENDER 23
25. GOVERNING LAW 23
26. PARTIAL INVALIDITY 23
27. SHORT FORM LEASE 23
28. SUCCESSION 24
GROUND LEASE
THIS LEASE AGREEMENT, entered into this 2nd day of , 1986, s by and
between E. I.DU PONT DE NEMOURS ND COMPANY, a Delaware corporation, having
its principal office and place of business at 1007 Market Street,
Wilmington, Delaware 19898 ("LANDLORD"), and O'BRIEN ENERGY SYSTEMS. INC.,
a Delaware corporation of Philadelphia, Pennsylvania, ("TENANT").
W I T N E S S E T H :
WHEREAS,
(a) LANDLORD is the owner of a tract of land situate in the Borough
of Sayreville. Middlesex County, State of New Jersey, and as more
particularly described herein: and
(b) It is the intent of the parties hereto that LANDLORD shall lease
said land to TENANT upon and; subject to the conditions and
limitations hereinafter expressed: and
(c) It is the intent of the parties hereto that TENANT will erect a
cogeneration facility on said land from which LANDLORD shall
purchase steam pursuant to a certain steam purchase contract
between the parties hereto ("STEAM CONTRACT").
NOW, THEREFORE, the parties hereto. intending to be legally bound, agree as
follows;
1. PREMISES LEASED. LANDLORD, for and in consideration of the
rents, covenants and agreements hereinafter reserved, mentioned and
contained an the part of TENANT, its successors and permitted assigns, to
be kept, paid, observed, and performed, has leased, rented, let and demigod
and by these presents does lease, rent and demise unto TENANT, and TENANT
does hereby take and hire, upon and subject to the conditions and
limitations hereinafter expressed, all that piece, parcel or tract of land
with the buildings and improvements thereon now or hereafter erected,
situate in Borough of Sayreville, Middlesex County, New Jersey, as more
particularly described as follows:
BEGINNING at a concrete monument set in the southerly side of
Washing Road, 50' wide, said point being a common corner for the
parcel herein being described and lands now or formerly of New
Jersey Highway Authority; Thence thereby the two (2) following
described courses and distances: (1) SO1--06'-OO"E, 338.19' to a
set concrete monument and (2) S86-47'-09"E, 156.06' to a concrete
monument set at a corner of other lands of E. I. du Pont de Nemours
and Company the six (6) following described courses and distances:
(1) S28'-49'-27"W, 450.74' to an iron pipe set, last described
course also crossing and running along, in part, a 40' wide Jersey
Central Power and Light Co. easement, (2) S33'-30"-27"W, 175.92' to
a nail set in asphalt, last described course also continuing along
westerly side of a Jersey Central Power and Light Co. easement at
varying width, (3) N61'-10'-33"W, 267.36' to an iron pipe set, (4)
N28-49'-27"E, 445.00' to a concrete monument set in
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the southerly side of said 40' wide Jersey Central Power and Light
Co. easement, (5) S83-53'-33"E, 110.00' to a concrete monument set
in the said 40' wide Jersey Central Power and Light Co. easement,
Last described course also being along the said 40' wide Jersey
Central Power & Light Co. Easement, in part, and (6) NO1-06'-00"W,
382.02' to a found iron pipe an the said southerly side of
Washington Road, last described course also recrossing said 40'
wide Jersey Central Power and Light Co. easement, Thence along the
said southerly side of Washington Road NSS*-54'-00"E, 70.00' to the
point and place of BEGINNING.
Containing within said described mates and bounds 4.02 acres of
land. be the same, more or less.
The aforementioned property is also shown on a survey entitled
"PROPERTY PLAN FOR PROPERTY OF E. I. DU PONT DE NEMOURS AND
COMPANY, PARLIN WORKS" dated December 1, 1986 prepared by MANN-
TALLEY ENGINEERS & SURVEYORS, PROJECT NO. 1186-12, a copy of which
is attached hereto as EXHIBIT "A".
The aforementioned property is subject to the following:
(1) all matters of record and any state of facts that is
apparent or that an accurate survey or inspection of the
aforementioned property would disclose:
(2) all agreements not of record but in use;
(3) present and future zoning laws, ordinances, resolutions, and
regulations of all boards, bureaus, or commissions and
bodies of any municipal, county, state or federal sovereign
now
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or hereafter having or acquiring jurisdiction of the
aforementioned property and the use. and improvements
thereof:
(4) The effect of all present and future laws and ordinances
relating to TENANT'S, or Occupants use of the aforementioned
property:
(5) violations of laws and ordinances that might be disclosed by
an examination and inspection or search of the
aforementioned property as of the date first above written;
(6) the condition and state of repair of the aforementioned
property as the same may be an the date first above written;
(7) all taxes, assessments, water meter and water charges, sewer
rents accrued or unaccrued. fixed or not fixed:
(8) any defects of title or any encumbrances affecting the
aforementioned property or any encroachments existing as of
the date first above written.
The aforementioned property and all improvements, rights, easements
and appurtenances thereunto belonging are hereinafter referred to as
"LEASED PREMISES".
TO HAVE AND TO HOLD the same, subject as aforesaid, unto TENANT and,
subject to the terms, covenants, agreements, provisions, conditions and
limitations hereof, for the term described herein.
2. CONSTRUCTION OF FACILITIES BY TENANT.
(a) Provided the conditions Of STEAM CONTRACT Article 13
"Preconditions to Performance" are satisfied, TENANT covenants
and agrees to construct a cogeneration facility with
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related improvements on the LEASED PREMISES, without cost or expense to
LANDLORD, in accordance with the requirements at all laws, ordinances,
codes, orders. rules, and regulations of all governmental authorities
having jurisdiction over the LEASED PREMISES and as such facility is more
particularly described in STEAM CONTRACT . At such time as final
certificates of occupancy or equivalent use certificates shall be issued,
TENANT shall be doomed to be in compliance with this subparagraph (a) as to
any buildings, structures, and improvements constructed on the LEASED
PREMISES.
(b) In the event TENANT, in the course of its construction requires
an electrical service connection from LEASED PREMISES to an
electrical transmission line, upon TENANT's request LANDLORD
agrees to provide an easement for such electrical connection
along a way as designated by LANDLORD across its lands.
(c) TENANT, at its own cost and expense, shall apply for and
prosecute with reasonable diligence, all necessary permits and
licenses required for the construction mentioned in subparagraph
(a) of this Paragraph. LANDLORD, without cost or expense to
itself, shall cooperate with TENANT in securing building and
other permits and authorizations necessary from time to time for
this performance of any construction, alterations or other work
permitted to be done by TENANT under this Lease, but such
cooperation by LANDLORD shall not be construed as consent to the
filing of a mechanic's lien or a notice of intention to file a
mechanic's lien or any claim relating thereto.
(d) Throughout the duration of this Lease, TENANT agrees that all
installations or buildings, structures, and improvements that may
be erected on the LEASED PREMISES by
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TENANT or any subtenants. including, but not limited to, all plumbing,
electrical, heating, air-conditioning and Ventilation equipment and
systems, and all other equipment, will be installed, operated, and
maintained in accordance with the law and with the regulations and
requirements of any and all governmental authorities, agencies, or
departments, having jurisdiction thereof, without cost or expense to
LANDLORD.
(e) If, at any time during the term of this Lease, any liens or
claims of mechanics. laborers, or materialmen shall be filed
against the LEASED PREMISES, or any part of parts thereof, for
any work, labor, or materials furnished, alleged to have been
furnished or to be furnished pursuant to the written agreement by
TENANT or any person holding thereunder, TENANT, within 7 days
after:
(i) The date of the filing or recording of any such lien, or the
filing or recording of any notice of intention to file a lien
or claim of lien; and
(ii) The receipt by TENANT from LANDLORD of written notice of such
filing and recording at TENANT's own cost and expense, it of
record, shall cause the same to be discharged by payment,
bond, or otherwise; or at the option of TENANT, TENANT shall
deposit, in trust, with LANDLORD or with a title company
licensed to do business in the State of New Jersey, a sum of
money equal to the amount of such recorded lien, plus ton
(101) percent thereof, to be applied:
(a) To such portion of the amount. if any, an may be
determined to be due and owing to the lienor in a final
judgment of a court of competent jurisdiction. when and if
such
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final judgment is no longer subject to appeal, or
(b)To the payment to the Lienor of all or a portion of said
sum when, as any and if written notice shall be sent by
TENANT expressly authorizing such payment.
(f) TENANT is authorized to demolish all existing building(s),
structures, and improvements located on the LEASED PREMISES, and
to remove, raze, and/or destroy such trees, plants, shrubs, and
topsoil as TENANT may deem necessary, provided that it does so in
accordance with all Federal, state and local laws and further
provided that such plans for demolition are first reviewed and
approved by LANDLORD. TENANT acknowledges that asbestos say be
contained within the buildings scheduled to be removed.
(g) In the event that TENANT contents any lion or claim, TENANT shall
prosecute the contest with reasonable diligence, and TENANT shall
at all times effectually stay or prevent any official or judicial
sale of the LEASED PREMISES and TENANT shall pay or otherwise
satisfy any final judgment (unless TENANT shall appeal same, in
which event the last appeal shall be the determining factor)
which may be entered against it and thereafter promptly procure
record satisfaction of the release of the lion. Subject to
TENANT's rights as set forth in this Lease, if TENANT shall
ultimately fail to procure a discharge at any such lion, LANDLORD
after at least fourteen (14) days' written notice to TENANT (or
lesser time if the LEASED PREMISES are threatened with sale or
foreclosure), may procure the discharge of such lion by payment
or otherwise, and all costs and expenses which LANDLORD may
sustain thereby shall be paid by TENANT as additional rent under
the provisions of
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this Lease. In the event that any action shall be brought
against LANDLORD to enforce any such lion, and provided TENANT
may exercise all of its rights set forth in this Lease, and
provided further that TENANT shall have received written notice
of such action and an opportunity to defend the same, TENANT
shall pay any judgment that may be entered against LANDLORD, and,
in addition thereto, shall pay all costs and expenses that may be
incurred by LANDLORD in the defense of any such action, provided
such judgment shall be final and no longer subject to appeal.
(h) Prior to commencing construction of any buildings or
improvements. TENANT, without cost to LANDLORD, shall obtain
from the general contractor in charge of construction of any
buildings and improvements a performance bond and a labor and
material payment bond, in the amount at the estimated cost of
same issued by a reputable surety company licensed to do business
in the State of New Jersey guaranteeing the completion of said
buildings and improvements and payment of all costs therefor and
incident thereto, or in some instances, at LANDLORD's option, to
furnish to the LANDLORD a surety bond naming the TENANT as
obligor thereunder. which bond in form, substance, and amount
shall be subject to LANDLORD's approval, which it shall not
unreasonably withhold, which bond shall name LANDLORD, as co-
obligee as its respective interests may appear and a certificate
or true copy thereof shall be delivered to LANDLORD. LANDLORD
however may waive this requirement if in its sale discretion it
is satisfied as to the reputation and credit worthiness of the
contractor selected by TENANT 'or construction of the facility.
TENANT shall notify LANDLORD by prior written notice as to its
selected contractor and LANDLCRD shall have seven (7) days
thereafter to elect approval or non-approval.
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(i) If TENANT shall deliver to LANDLORD a financial statement of
TENANT or any person(s) or entities having an interest in TENANT
indicating a net worth of not less than Eighty Million Dollars
which party shall guarantee to LANDLORD the items as would be set
forth in the bonds described above, LANDLORD hereby waives the
requirements of subparagraph (h) hereof.
3. TERM. The term of this Lease shall commence upon the date first
above written and shall expire upon termination of the STEAM CONTRACT.
Should STEAM CONTRACT be cancelled, terminated, or otherwise and for any
reason other than LANDLORD's default, then the term of this Lease shall and
unless TENANT has elected to conduct an affiliated thermal consuming
business in accordance with Article 3(D) of STEAM CONTRACT, and in such
case the term hereunder shall not terminate with STEAM CONTRACT but shall
continue for the term originally specified in Article 5 of STEAM CONTRACT.
4. RENT. TENANT'S covenants and agrees to pay LANDLORD for LEASED
PREMISES, an annual base rental of One Dollar ($1.00) during the term of
this Lease payable at the office of LANDLORD as follows:
E. 1. du Pont de Nemours and Company
Corporate Real Estate
Materials and Logistics Department
1007 Market Street
Wilmington, Delaware 19898
or at such other place or places as LANDLORD shall from time to time give
TENANT written notice at least thirty (30). days in advance.
5. CONDITION PRECEDENT.
As a condition precedent to this agreement, LANDLORD shall have
received a Certificate of non applicability from the State of New Jersey
evidencing that the transaction
9
contemplated herein is not subject to New Jersey's Environmental Cleanup
Responsibility Act (ECRA).
6. TAXES AND ASSESSMENTS.
(a) Commencing with the date first above written and ending with the
termination, cancellation or expiration of this Lease, TENANT shall
reimburse LANDLORD for all real estate taxes and any and all assessments,
including special assessments, or any tax that may be levied, assessed or
imposed by the State of New Jersey or by any political or taxing
subdivision thereof, upon or measured by the rents hereunder or the income
arising therefrom in lieu of or as a substitute in whole or in part, for
any tax upon LEASED PREMISES or which are or may become a lien upon LEASED
PREMISES, and all other governmental charges levied against LEASED PREMISES
which become due and payable during the term hereof. TENANT'S obligation
to pay taxes. special assessments and other impositions shall be contingent
upon and subject to the following provisions and conditions;
(i) TENANT may take the benefit of the provisions of any statute or
ordinance permitting any special assessment to be, paid over a
period of time, and TENANT shall be obligated to pay only the
installment of such special assessments as shall become due and
payable during the term hereof. Any installment falling due
after the expiration of the term hereof shall be payable by
LANDLORD, even though such unpaid installments shall constitute
a lien or liens until paid.
(ii) TENANT shall pay its prorata share of taxes, special
assessments, other impositions or installments thereof which
become due and payable
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during the years in which the obligation to pay rental
hereunder commences and ceases, such prorata share to be
determined on the basis which the number of months of the then
current tax year for which TENANT is to pay rent shall bear to
the entire number of months in said tax year.
(b) Nothing in this Lease shall be construed to require TENANT to pay
any franchise, income, corporation, inheritance, succession, gift, estate,
realty transfer, capital or other tax (except the taxes and assessments
provided for in subparagraph (a) of this Paragraph which may be charged or
assessed against LANDLORD or any income, excess profit or revenue tax or
any other tax which may be assessed against or become a lien upon LEASED
PREMISES or the rent accruing therefrom.
(c) Except if contested as hereinafter provided, TENANT, upon due
notice by LANDLORD or from the taxing authority, shall pay each tax,
assessment, or installment thereof, and other imposition before any fine,
penalty, interest, or costs may be added by nonpayment.
(d) TENANT shall not be required to pay any tax. assessment or other
imposition required by the terms of this Lease to be paid so long as TENANT
at its own expense shall, in good faith and with due diligence, contest the
same or the validity thereof by appropriate legal proceedings. In such a
case, TENANT may institute such proceedings in its own name or in the name
of LANDLORD or in both names as may be necessary, and TENANT shall
indemnify LANDLORD and save it harmless from and against all costs, charges
or liabilities in connection with any such proceeding: provided, however,
that TENANT shall take no action and shall delay no proceeding so as to
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jeopardize title of LANDLORD to LEASED PREMISES or its other lands situated
in Middlesex County, New Jersey. TENANT shall give LANDLORD prompt written
notice of the commencement of any such proceedings.
(e) TENANT shall furnish to LANDLORD, within forty-five (45) days
after the date when any tax, special assessment or other imposition is
payable, copies of the official receipts, or other reasonable proof
satisfactory to LANDLORD evidencing payment thereof.
(f) TENANT shall pay any and all taxes on its personal property
located on LEASED PREMISES directly to the taxing authority.
7. USE. LEASED PREMISES shall be used only for the construction and
operation of a cogeneration facility in connection with those services and
products to be supplied to LANDLORD under STEAM CONTRACT or if said use is
voided by the provisions of Article 3(D) of STEAM CONTRACT, then a use
consistent with the operation of an affiliated thermal consuming business
shall be allowable. TENANT shall not use or occupy LEASED PREMISES or
permit the same to be used or occupied contrary to any appropriate
governmental statute, rule, order, ordinance or regulation applicable
thereto or in any manner which would violate any certificate of occupancy
affecting the same, or which would cause structural injury to the
improvements or cause the value or usefulness of LEASED PREMISES or any
part thereof to diminish or which would constitute a public or private
nuisance or waste.
8. REPAIR AND MAINTENANCE. TENANT agrees that, at its sole cost and
expense, it shall keep and maintain LEASED PREMISES, including any altered,
rebuilt or additional buildings, structures and other improvements thereto,
in good
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repair. replacement and appearance during the continuance of this Lease and
will with reasonable promptness make all structural and nonstructural,
foreseen and unforeseen, and ordinary and extraordinary changes and repairs
of every kind and nature which may be required to be made upon or in
connection with LEASED PREMISES or any part thereof in order to keep and
maintain LEASED PREMISES in such good repair, replacement and appearance.
LANDLORD shall not be required to maintain, repair. or rebuild. or to make
any alterations, replacements or renewals of any nature or description to
LEASED PREMISES or any part thereof, whether ordinary or extraordinary,
structural or nonstructural, foreseen or unforeseen, or to maintain LEASED
PREMISES or any part thereof in any way, and TENANT hereby expressly waives
any right to make repairs or replacements at the expense of LANDLORD which
may be provided for in any statute or law in effect at the time of the
execution of this Lease or any statute or law which may thereafter be
enacted.
9. UTILITIES. TENANT shall supply and pay for all gas, electricity,
water, sewer. heat and other utilities used on LEASED PREMISES by TENANT.
10. INDEMNIFICATION. TENANT shall indemnify and save LANDLORD
harmless from and against any and all loss, costs, damages, claims, actions
or liability on account of the injury to or death of any person or persons
or the damage to or destruction of any property arising from or growing out
of TENANT'S use and occupancy of LEASED PREMISES unless such loss, costs,
damages, claims. actions or liability is caused solely by the fault,
failure or negligence of LANDLORD.
11. REQUIREMENTS OF PUBLIC AUTHORITY.
(a) During the term of this Lease, TENANT shall. At its own cost
and expense, promptly observe and comply with all
13
present and future laws, ordinances, requirements, orders, directives.
rules and regulations of the Federal, State, County, Town, Village and City
Governments and of all other governmental authorities affecting LEASED
PREMISES or appurtenances thereto or any part thereof whether the same are
in force at the commencement of the term of this Lease or may in the future
be passed, enacted or directed, and TENANT shall pay all costs, expenses,
liabilities, losses, damages, fines, penalties. claims and demands.
including reasonable counsel fees, that may in any manner arise out of or
be imposed because of the failure of TENANT to comply with the covenants of
this Paragraph.
(b) If TENANT or this Lease is subject to New Jersey's Environmental
Clean-Up Responsibility Act (ECRA), the responsibility for clean-up if any,
or compliance with such Act. shall root with the party which was the source
of the hazardous substance or waste which must be cleaned up. Any wastes
or other hazardous substances which were deposited on the site prior to
occupancy by TENANT and must be cleaned up shall be the responsibility of
LANDLORD. Any toxic or hazardous substances or wastes which are deposited
an the Site by TENANT shall be TENANT's responsibility. TENANT's
responsibility pursuant to ouch service termination of this lease shall
survive expiration or earlier termination of this lease.
(c) TENANT shall have the right to contest by appropriate legal
proceedings diligently conducted in good faith, in the name of TENANT, or
LANDLORD (if legally required), or both (if legally required), without cost
or expense to LANDLORD, the validity or application of any law, ordinance,
rule. regulation or requirement of the nature referred to in subparagraph
(a) of this Paragraph and, if by
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the terms of any such law, ordinance, order. rule, regulation or
requirement, compliance therewith may legally be delayed pending the
prosecution Of any such proceeding, TENANT may delay such compliance
therewith until the final determination
of such proceeding.
(d) LANDLORD agrees to execute and deliver any appropriate papers or
other instruments which may be necessary or proper to permit TENANT so to
contest the validity or application of any such law, ordinance, order,
rule, regulation or requirement and to fully cooperate with TENANT in such
contest.
12. ACCESS TO PREMISES . LANDLORD or LANDLORD'S agents and designees
shall have the right to enter upon LEASED PREMISES at all reasonable times
to examine same and to maintain any of its utility or other systems located
thereon.
13. ASSIGNMENT AND SUBLETTING. TENANT may not assign this Lease, or
sublet all or any part of LEASED PREMISES except that LANDLORD shall
consent to an assignment of this lease to the financing institution
selected by TENANT in connection with the financing of the cogeneration
facility.
14. SIGNS. No signs. advertisement or notices other than those
required by law, shall be affixed to or placed upon any part of LEASED
PREMISES by TENANT except in such manner and of such size. design and color
as shall be approved in advance in writing by LANDLORD.
15. INSURANCE.
(a) TENANT shall provide at its expense and keep in force during the
term of this Lease, general liability insurance in a good and solvent
insurance company or companies licensed to do business in the State of New
Jersey, covering all of its liabilities hereunder and in accordance with
the
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limits set forth in STEAM CONTRACT.
(b) TENANT shall provide at its expense, and keep in force during the
term of this Lease insurance on the buildings and improvements an the
LEASED PREMISES insured by a responsible and reputable insurance company or
companies against loss or damage by fire and such other hazards an are
currently embraced in the standard extended coverage endorsement in the
State of New Jersey, and in an amount equal to the full insurable Value Of
said buildings and improvements.
(c) All insurance policies carried or caused to be carried by TENANT
shall be issued in the name of TENANT and the LANDLORD, as their respective
interests may appear.
(d) In the event that the insurance proceeds received are
insufficient to restore, repair, or rebuild said buildings and
improvements, TENANT covenants and agrees that it will pay the balance of
the amount necessary to restore such buildings or improvements to restore
to their former state or erect other buildings and improvements, provided
the value thereof is at least equal to the value of the buildings and
improvements immediately prior to such damage or destruction. Any excess
of insurance proceeds over the cost of repairing or rebuilding shall belong
to TENANT.
(a) TENANT, in its discretion, may carry such insurance under a
blanket fire and other hazards and causes insurance policy or policies
issued to TENANT covering the LEASED PREMISES and other premises or
property. However, a certificate or true copy thereof evidencing said
insurance shall be delivered to LANDLORD on LANDLORD's written request. 16.
WAIVER OF SUBROGATION. All insurance policies carried by TENANT covering
LEASED PREMISES. including, but not limited to. contents, fire and casualty
insurance, shall
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expressly waive any right on the part of the insurer against the LANDLORD.
The TENANT agrees that its policies will include such waiver clause or
endorsement.
17. CASUALTY. In the event that, at any time, during the term of
this Lease, the buildings and improvements on LEASED PREMISES shall be
destroyed or damaged in whole or in part by fire or other cause within the
extended coverage of the fire insurance policies carried by TENANT in
accordance with this Lease, then, TENANT, at its own cost and expense,
shall, cause the same to be repaired, replaced or rebuilt within a period
of time which, under all prevailing circumstances, shall be reasonable. In
the event LANDLORD's facility located adjacent to LEASED PREMISES shall
also have been damaged an or about the same time as TENANT's facility, then
as a condition precedent to TENANT's duty to rebuild hereunder LANDLORD
shall deliver to TENANT a letter indicating that it plans to rebuild its
facility within a two year period and will upon the completion of its
facility have a need for steam in accordance with the STEAM CONTRACT.
18. CONDEMNATION. In the event that the whole or any part of LEASED
PREMISES be taken by virtue of eminent domain or for any public or quasi-
public use, the parties shall be entitled to share in the compensation and
award in accordance with the following provisions:
(a) If the whole of LEASED PREMISES shall be taken, then this
Lease shall cease and determine and LANDLORD shall first receive a sum
equal to the fair market value of the land taken, considered as
vacant, unencumbered and unrestricted land an of the date of taking,
together with interest thereon from the date of taking to the date of
payment at the rate paid on the
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award, and if such value shall be officially determined and stated in
the condemnation proceedings, then the amount thereof shall control
for the purposes of this provision, otherwise the same, unless agreed
upon by the parties to this Lease, shall be determined by arbitration
in accordance with the rules then obtaining of the American
Arbitration Association in the County of Middlesex, State of New
Jersey. TENANT in such case shall receive and retain the remainder at
the award, and interest.
(b) If only a part of LEASED PREMISES shall be taken, then
LANDLORD shall first receive a sum equal to the fair market value of
the land taken, considered as unencumbered and unrestricted land, as
of the vacant, unencumbered and unrestricted land, as of the date of
taking plus the resulting or consequential damage, if any, to the
remaining part of the land of LEASED PREMISES, considered as vacant,
unencumbered and unrestricted land as of the date of taking, with any
interest thereon from the date of taking to the date of payment at the
rate paid on the award, and if such value and such resulting or
consequential damage be officially determined and stated in the
condemnation proceedings, then the amount thereof shall control for
the purposes of this provision, otherwise the same, unless agreed upon
by the parties to this Lease, shall be determined by arbitration in
accordance with the rules then obtaining of the American Arbitration
Association in the County of Middlesex, State of New Jersey, and
TENANT in each case shall receive the remainder of the award and
interest;
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(i) If the remaining part of LEASED PREMISES not so taken cannot
be adequately restored, repaired or reconstructed so as to constitute
a complete architectural unit of substantially the same usefulness,
design and construction, having regard to the taking, as immediately
before such taking, capable of producing, after the payment of all
operating expense thereof, the minimum annual rant, additional rent
and other charges herein reserved, the debt service charges on any
then existing leasehold mortgages hold by a permitted leasehold
mortgagee, and after the performance of all covenants, terms,
agreements and provisions herein and by law provided to be performed
and paid by TENANT, a fair and reasonable net annual income, as
hereinafter determined, then TENANT shall have the right, to be
exercised by written notice to LANDLORD within sixty (60) days after
the date of taking, to terminate this Lease as to such remaining part
of LEASED PREMISES not so taken on a date to be specified in said
notice not earlier than the date of such taking, in which came TENANT
shall pay and satisfy all rent due and accrued hereunder up to such
date at such termination including all sums of additional rent and all
other charges and shall perform all of the obligations of the TENANT
hereunder to such date and thereupon this Lease and the term hereby
demised shall cease and determine. Should the parties be unable to
agree as to whether the part not taken is susceptible of adequate
restoration, repair or reconstruction as aforesaid, such controversy
shall be determined by arbitration in accordance with the rules
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then obtaining of the American Arbitration Association in the County
of Middlesex, State of New Jersey:
(ii) If the Lease is not terminated as hereinabove provided,
then, as to the premises not taken in such condemnation proceeding,
TENANT shall proceed, at its own cost and expense, to make an adequate
restoration, repair or reconstruction of the part of the building not
taken or to rebuild a now building upon the part of the land not
taken. If the part of the award so paid to TENANT shall be
insufficient fully to pay for such restoration, repair or
reconstruction, TENANT shall nevertheless pay the excess cost thereof,
and shall fully pay for all such restoration, repair or
reconstruction, and complete the same to the satisfaction of LANDLORD
and free from mechanic's or materialmen's liens and security interests
of all kinds, and shall at all times save LANDLORD free and harmless
from any and all such liens;
(c) In case of a second or any other additional partial taking
or takings from time to time, the provisions hereinabove contained
shall apply to each partial taking.
(d) The foregoing provisions of this paragraph shall apply only
to a taking of the fee of the whole or of a part of LEASED PREMISES.
In the case of the taking of an easement or of any interest less than
a fee, the parties hereto shall claim and shall be entitled to receive
art award and compensation therefor in accordance with their
respective legal rights.
19. FEE MORTGAGES. TENANT may not, without the written consent of
LANDLORD, mortgage or otherwise create a
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security interest upon LANDLORDIS fee interest in LEASED PREMISES.
LANDLORD may arbitrarily withhold such consent or make such consent subject
to any conditions it deems appropriate.
20. DEFAULT. If either party hereto defaults in carrying out any of
such party's covenants and agreements herein contained for a period of
thirty (30) days after written demand for compliance has been made, such
default, at the option of the party not in default, shall give LANDLORD any
and all remedies it may be entitled to in law or in equity.
21. BANKRUPTCY AND INSOLVENCY If, after the commencement of the term
of this Lease: (a) TENANT then having the title to the leasehold estate
created hereunder shall while having such title be adjudicated a bankrupt
or adjudged to be insolvent; (b) a receiver or trustee shall be appointed
for the aforesaid TENANT'S property and affairs; (c) the aforesaid TENANT
shall make an assignment for the benefit of creditors or shall file a
petition in bankruptcy or insolvency or for reorganization or shall make
application for the appointment of a receiver; or (d) any execution or
attachment shall be issued against the aforesaid TENANT or any of the
aforesaid TENANT'S property, whereby LEASED PREMISES or any building or
buildings or any improvements thereon shall be taken or occupied or
attempted to be taken or occupied by someone other than the aforesaid
TENANT, except as may herein be permitted, and such adjudication,
appointment, assignment, petition. execution or attachment shall not be set
aside, vacated. discharged or bonded within one hundred twenty (120) days
after the issuance of the same, then a default hereunder shall be deemed to
have occurred so that the provisions of this Paragraph shall become
effective and LANDLORD shall have the rights and remedies
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provided for therein. Notwithstanding anything to the contrary hereinabove
contained, upon the occurrence of a default pursuant to this Paragraph, if
the rent due and payable hereunder shall continue to be paid and the other
covenants, conditions and agreements of this Lease on TENANT'S part to be
kept and performed shall continue to be kept and performed, no event of
default shall have been deemed to have occurred and the provisions of this
Paragraph shall not become effective.
22. WAIVERS. Failure of LANDLORD or TENANT to complain of any act or
omission on the part of the other party no matter how long the same may
continue, shall not be deemed to be a waiver by said party of any of its
rights hereunder. No waiver by LANDLORD or TENANT at any time, express or
implied, of any breach of any provision of this Lease shall be deemed a
waiver of a breach of any other provision of this Lease or a consent to any
subsequent breach of the same or any other provision.
23. NOTICES. Every notice, approval, consent or other communication
authorized or required by this Lease shall not be effective unless same
shall be in writing and sent postage prepaid by United States registered or
certified mail, return receipt requested, directed to the other party as
follows:
To Landlord
E. I. du Pont de Nemours and Company
Corporate Real Estate
Material and Logistics Department
1007 Market Street
Wilmington, Delaware 19898
To Tenant
O'Brien Energy Systems, Inc.
225 South Eighth Street
Philadelphia, PA 19106
Attention Jeffrey D. Barnes,
Executive Vice President
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24. SURRENDER. At the expiration or termination at this Lease,
TENANT agrees to deliver up LEASED PREMISES together with all buildings or
other improvements erected thereon, to LANDLORD in good order and condition
and make good all damage to LEASED PREMISES, ordinary wear and tear
excepted, subject however to the acquisition by LANDLORD of all or a
portion of the cogeneration facility in accordance with Article 5(B) of the
STEAM CONTRACT. That portion of the cogeneration facility not purchased by
LANDLORD as provided hereunder shall be removed by TENANT from the LEASED
PREMISES within twelve (L2) months following the expiration or earlier
termination of this lease. If TENANT fails to so remove, LANDLORD shall
have the right to remove the same at TENANT's expense.
25. GOVERNING LAW. This Leas* and the performance thereof shall be
governed, interpreted, construed and regulated by the laws of the State of
New Jersey.
26. PARTIAL INVALIDITY. If any term. covenant, condition or
provision of this Lease or the application thereof to any person or
circumstance shall, at any time or to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such term
or provision to persons or circumstances other than those as to which it is
hold invalid or unenforceable, shall not be affected thereby, and each
term, covenant, condition and provision of this Lease shall be valid and be
enforced to the fullest extent permitted by law.
27. SHORT FORM LEASE. The parties will at any time, at the request
of either one, promptly execute duplicate originals of an instrument, in
recordable form, which will constitute a short form of lease, setting forth
a description of LEASED PREMISES, the term of this Lease and any other
portions thereof as either party may request.
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28. SUCCESSION. All of the covenants. agreements. conditions and
undertakings of this Lease shall extend and inure to and be binding upon
the successors and permitted assigns of the respective parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed an the day and year first above written.
ATTEST:
/s/
Assistant Secretary
ATTEST:
/s/ Sanders Newman
E. I. DU PONT DE NEMOURS AND COMPANY
/s/
PROPERTIES MANAGER
O'BRIEN ENERGY SYSTEMS, INC.
By /s/ Jeffrey D. Barnes
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