Exhibit 4.15-b
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COMPANY LEASE AGREEMENT
Between
KEYSPAN-GLENWOOD
ENERGY CENTER, LLC
and
NASSAU COUNTY
INDUSTRIAL DEVELOPMENT AGENCY
Dated as of November 1, 2003
$53,275,000
Nassau County Industrial Development Agency
Industrial Development Revenue Bonds,
(KeySpan-Glenwood Energy Center, LLC) Series 2003A
Affecting the Facility located at the Facility Realty
described in Appendix A hereto in the Town of Oyster Bay,
County of Nassau and State of New York
PHILLIPS LYTLE LLP
1100 Franklin Avenue, 4th floor
Garden City, New York 11530
Attention: Milan K. Tyler, Esq.
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COMPANY LEASE AGREEMENT
THIS COMPANY LEASE AGREEMENT, dated as of November 1, 2003 (this "Company
Lease"), by and between KEYSPAN-GLENWOOD ENERGY CENTER, LLC, a limited liability
company organized and existing under and by virtue of the laws of the State of
Delaware, having its principal office at c/o KeySpan Corporation, One MetroTech
Center, Brooklyn, New York 11201, party of the first part (the "Company"), and
NASSAU COUNTY INDUSTRIAL DEVELOPMENT AGENCY, Mineola, New York, a corporate
governmental agency constituting a body corporate and politic and a public
benefit corporation duly organized and existing under the laws of the State of
New York (the "Agency"), having its principal office at 400 County Seat Drive,
Mineola, New York 11501, party of the second part (the "Agency") (capitalized
terms used in the recitals to and within this Company Lease and not otherwise
defined herein shall have the respective meanings assigned to such terms in the
Indenture referred to below):
W I T N E S S E T H:
WHEREAS, the New York State Industrial Development Agency Act, constituting
Title 1 of Article 18-A of the General Municipal Law, Chapter 24 of the
Consolidated Laws of New York, as amended (the "Enabling Act") has been
heretofore enacted by the Legislature of the State of New York for the purposes,
among others, of providing for the creation of industrial development agencies
in the several counties, cities, villages and towns in the State of New York, to
promote, develop, encourage, assist and advance the job opportunities, health,
general prosperity and economic welfare of the people of the State of New York
and to improve their prosperity and standard of living; and
WHEREAS, the Agency has been heretofore established under said Enabling Act
pursuant to Chapter 674 of the 1975 Laws of New York, as amended (together with
the Enabling Act, the "Act"), and is authorized to acquire real property and
interests therein, buildings and other improvements thereon and machinery and
equipment in connection therewith for the purposes set forth above, and to lease
the same as herein more particularly described; and
WHEREAS, the Agency is further authorized by the Act to issue its
industrial development revenue bonds payable solely from and secured by the
revenues derived from the leasing of the land, buildings and other improvements
and the machinery and equipment so acquired; and
WHEREAS, the Company and KeySpan have entered into negotiations with the
Agency in connection with a "project" as such term is defined in the Act (the
"Project") consisting of the refinancing of certain costs incurred by the
Company in connection with the acquisition and construction of three buildings
of approximately 1,700 square feet each and one building of approximately 5,000
square feet and the acquisition and installation therein of two single cycle
generating units to be used by the Company for the purpose of providing an
aggregate of approximately 79 megawatts to the existing Long Island electric
grid (the "Facility"); and
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WHEREAS, the Facility is located on an existing 2.9 acre site known as The
Glenwood Energy Center, and located on the eastern shore of Hempstead Harbor, in
the Town of Oyster Bay (the "Facility Realty") as more particularly described in
Appendix A hereto; and
WHEREAS, the Agency has determined that Agency financing assistance is
necessary to provide employment in, and is beneficial for the economy and
prosperity of, the inhabitants of Nassau County and is reasonably necessary to
induce the Company to proceed with the Project; and
WHEREAS, as a result of such negotiations, the Company has requested the
Agency to issue its bonds in the aggregate principal amount of $53,275,000 to
finance a portion of the costs of the Project; and
WHEREAS, the Agency adopted a bond resolution on November 24, 2003,
authorizing the Project and the issuance of its industrial development revenue
bonds to finance a portion of the costs of the Project, the leasing of the
Facility to the Agency and the subleasing of the Facility to the Company (the
"Bond Resolution"); and
WHEREAS, contemporaneously with the execution of this Company Lease, the
Agency and the Company have entered into a Lease Agreement of even date herewith
(herein referred to as the "Lease Agreement"), providing for the financing of a
portion of the costs of the Project by the Agency and the leasing of the
Facility to the Company; and
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and representations hereinafter contained, the Company and the Agency
hereby agree as follows:
ARTICLE 1.
The Company hereby leases to the Agency, and the Agency hereby leases from
the Company, the Facility described in Appendix A hereto, including all
improvements thereto and equipment now or hereafter located therein but
excluding the Lessee's Property as defined in the Lease Agreement, for the term
herein provided and for use as provided in the Lease Agreement. It is the
intention of the Company and the Agency that the Agency shall have a leasehold
interest in all improvements hereafter constructed by the Company at the
Facility (other than the Lessee's Property) as and when the same are constructed
thereon. Accordingly, the Company and the Agency agree that the Agency shall
hold leasehold title to all improvements hereafter constructed by the Company at
the Facility, together with all equipment used or procured for use in connection
therewith (other than the Lessee's Property).
ARTICLE 2.
The term of this Company Lease shall commence on the date of original
issuance of the Bonds and expire on the earlier of (i) the date the Bonds shall
have been paid in full in accordance with Article X of the Indenture or (ii) the
termination of the Lease Agreement.
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ARTICLE 3.
The rental hereunder shall be one dollar ($1), receipt of which is hereby
acknowledged by the Company.
ARTICLE 4.
The Company hereby delivers possession of the Facility to the Agency.
ARTICLE 5.
The Company represents and warrants that it owns merchantable title to the
Facility and has full right and lawful authority to enter into this Company
Lease for the full term hereof, that the execution, delivery and performance by
the Company of this Company Lease and the consummation of the transactions
herein contemplated have been duly authorized by all requisite corporate action
on the part of the Company and will not violate (i) any applicable provision of
law, or any order of any court or agency of government having jurisdiction
thereover, (ii) the articles of organization or operating agreement of the
Company, or (iii) any indenture, agreement or other instrument to which the
Company is a party or which it or any of its property is subject to or bound by,
or be in conflict with or result in a breach of or constitute (with due notice
and/or lapse of time) a default under any such material indenture, agreement or
other instrument, which violation, conflict, breach or default would have a
material adverse effect upon the affairs, assets, properties, business or
financial condition of the Company. The Company covenants and agrees that, so
long as the Lease Agreement shall be in full force and effect, the Agency shall
have, hold and enjoy a valid leasehold estate in the Facility, and the Company
shall whenever necessary take all necessary action to that end.
ARTICLE 6.
The Agency represents and warrants that it has full right and lawful
authority to enter into this Company Lease for the full term hereof.
ARTICLE 7.
Except as otherwise permitted by Sections 6.1 or 9.3 of the Lease
Agreement, neither the Agency nor the Company shall (i) assign or transfer this
Company Lease, nor sublease the whole or any part of the Facility nor subject
this Company Lease to any lien, claim, mortgage, encumbrance or servitude other
than Permitted Encumbrances, in any manner, nor (ii) sell, assign, convey or
otherwise dispose of the Facility or any part thereof (other than a release of a
portion of the Facility pursuant to Section 6.4 of the Lease Agreement), during
the term of this Company Lease, in any manner, to any Person, except that the
Agency shall (y) assign its interest hereunder to the Trustee as contemplated by
the Indenture and (z) sublease the Facility to the Company pursuant to the Lease
Agreement for a term not greater than the term herein provided and the Company
may sell, sublease or otherwise dispose of all or portions of the Facility in
accordance with the Lease Agreement.
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ARTICLE 8.
Except for the Security Documents, this Company Lease contains the entire
agreement between the parties hereto with respect to the subject matter hereof
and all prior negotiations and agreements are merged in this Company Lease. This
Company Lease may not be changed, modified or discharged in whole or in part and
no oral or executory agreement shall be effective to change, modify or discharge
in whole or in part this Company Lease or any obligations under this Company
Lease, unless such agreement is set forth in a written instrument executed by
the Company and the Agency. No consent or approval of the Company shall be
deemed to have been given or to be effective for any purposes unless such
consent or approval is set forth in a written instrument executed by the
Company. No consent or approval of the Agency shall be deemed to have been given
or to be effective for any purposes unless such consent or approval is set forth
in a written instrument executed by the Agency.
ARTICLE 9.
All notices required to be given or authorized to be given by any party
pursuant to this Company Lease shall be in writing and shall be served
personally or sent by hand delivery or overnight delivery by a national courier
service, addressed as follows:
If to the Agency: Nassau County Industrial Development Agency
400 County Seat Drive
Mineola, New York 11501
Attention: Executive Director
If to the Company: Keyspan-Glenwood Energy Center, LLC
c/o KeySpan Corporation
One MetroTech Center
Brooklyn, New York 11201
Attention: Treasurer (with a copy to
The General Counsel, at the same address)
The Agency and the Company may, by like notice, designate any further or
different addresses to which subsequent notices shall be sent. A copy of any
notice given to the Agency or the Company under this Company Lease shall also be
given to the Trustee at the address indicated in Section 13.03 in the Indenture.
All notices, certificates and other communications hereunder shall be deemed
given on the date such notices, certificates or other communication are served
personally or sent, if sent by hand delivery, or on the following Business Day,
if sent by overnight delivery.
ARTICLE 10.
THIS COMPANY LEASE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE PRINCIPLES OF
THE CONFLICTS OF LAWS THEREOF.
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The terms of this Company Lease are and shall be binding upon and inure to
the benefit of the Agency and the Company and their respective successors and
assigns.
If any one or more of the provisions of this Company Lease shall be ruled
invalid by any court of competent jurisdiction, the invalidity of such
provisions(s) shall not affect any of the remaining provisions hereof, but this
Company Lease shall be construed and enforced as if such illegal or invalid
provision had not been contained herein.
ARTICLE 11.
This Company Lease shall become effective upon the date of the original
issuance of the Bonds. It may be simultaneously executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
ARTICLE 12.
All covenants, stipulations, promises, agreements and obligations of the
Agency or the Company, as applicable, contained in this Company Lease shall be
deemed to be the covenants, stipulations, promises, agreements and obligations
of the Agency and the Company, as the case may be, and not of any member,
director, officer, employee or agent of the Agency or the Company in his or her
individual capacity, and no recourse shall be had for the payment of any amounts
hereunder against any member, director, officer, employee or agent of the Agency
or the Company. In addition, in the performance of the agreements of the Agency
herein contained, any obligation it may incur for the payment of money shall not
subject the Agency to any pecuniary or other liability nor create a debt of the
State of New York or of the County of Nassau and neither the State of New York
nor the County of Nassau shall be liable on any obligation so incurred, but any
such obligation shall be payable solely out of the lease rentals, revenues and
receipts derived from or in connection with the Facility and payable to the
Agency by the Company under the Lease Agreement.
ARTICLE 13.
The Agency and the Company agree that this Company Lease or a memorandum
hereof shall be recorded by the Agency in the appropriate office of the Register
of Nassau County.
ARTICLE 14.
The use of the Facility and all other rights, duties, liabilities and
obligations of the Company and the Agency with respect thereto and the Project
to be constructed, leased and operated and the financing thereof, not fixed in
this Company Lease, shall be as set forth in the Lease Agreement.
ARTICLE 15.
The Company, in compliance with Section 13 of the Lien Law, covenants that
the Company will receive the consideration for this conveyance and will hold the
right to receive such consideration in a manner consistent with Section 13 of
the Lien Law.
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IN WITNESS WHEREOF, the Company has caused its corporate name to be
subscribed hereto by its Authorized Representative and the Agency has caused its
name to be hereunto subscribed by its duly authorized Chairperson, Vice
Chairperson, Executive Director or Administrative Director, all being done as of
the year and day first above written.
KEYSPAN-GLENWOOD ENERGY CENTER, LLC
By: /s/
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Name:Michael Nilsen
Title: Vice President and Treasurer
NASSAU COUNTY INDUSTRIAL
DEVELOPMENT AGENCY
By: /s/
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Joseph Gioino
Executive Director
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STATE OF NEW YORK )
) s.s.:
COUNTY OF NEW YORK )
On the 25th day of November in the year two thousand three, before me, the
undersigned, personally appeared Michael Nilsen, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual whose
name is subscribed to the within instrument and acknowledged to me that he
executed the same in his capacity, and that by his signature on the instrument,
the individual, or the person upon behalf of which the individual acted,
executed the instrument.
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Notary Public
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STATE OF NEW YORK )
) s.s.:
COUNTY OF NEW YORK )
On the 25th day of November in the year two thousand and three, before me,
the undersigned, personally appeared Joseph Gioino, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual whose
name is subscribed to the within instrument and acknowledged to me that he
executed the same in his capacity, and that by his signature on the instrument,
the individual, or the person upon behalf of which the individual acted,
executed the instrument.
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Notary Public
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APPENDIX A
DESCRIPTION OF FACILITY
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The Facility means the refinancing of certain costs incurred by the Lessee in
connection with the acquisition and construction of three buildings of
approximately 1,700 square feet and one building of approximately 5,000 square
feet and the acquisition and installation therein of two single cycle generating
units located on an existing 2.9 acre facility known as The Glenwood Energy
Center, and located on the eastern shore of Hempstead Harbor, in the Town of
Oyster Bay (the "Facility"), to be used by the Lessee for the purpose of
providing an aggregate of approximately 79 megawatts to the existing Long Island
electric grid. Said building and generating units are located on that certain
lot, piece and parcel of land described in the legal description attached
hereto, known as the Facility Realty.
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DESCRIPTION OF FACILITY REALTY
See attached description
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