Exhibit 10.3
SITE LEASE AND EASEMENT AGREEMENT
Dated as of May 25, 2004
between
KEYSPAN-RAVENSWOOD, LLC
as Ground Lessor
and
SE RAVENSWOOD TRUST
as Ground Lessee
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TABLE OF CONTENTS
Page
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section 1. DEFINITIONS............................................................................1
section 2. GROUND INTEREST........................................................................2
Section 2.1. Ground Interest...................................................................2
Section 2.2. Basic Site Lease Term.............................................................4
Section 2.3. Renewal Site Lease Term...........................................................4
Section 2.4. Return of Ground Interest.........................................................5
Section 2.5. Nonterminability..................................................................5
Section 2.6. Election to Surrender.............................................................5
Section 2.7. Storage, Etc......................................................................6
Section 2.8. Early Termination of Site Lease Term..............................................6
section 3. RENT FOR THE LEASE OF GROUND INTEREST..................................................7
Section 3.1. Rent..............................................................................7
Section 3.2. Taxes and Assessments.............................................................7
Section 3.3. Suspension of Rent and Other Payments.............................................8
Section 3.4. Payment...........................................................................8
section 4. QUIET ENJOYMENT IN FAVOR OF GROUND LESSEE; RELEASE RIGHTS AND RESERVED RIGHTS..........9
Section 4.1. Ground Lessee's Right of Quiet Enjoyment..........................................9
Section 4.2. Ground Lessor's Release Rights....................................................9
Section 4.3. Reserved Rights..................................................................10
Section 4.4. Rights of Third Parties..........................................................11
Section 4.5. Compliance Certificates..........................................................12
Section 4.6. Amendments.......................................................................12
section 5. USE OF GROUND INTEREST................................................................13
Section 5.1. Use..............................................................................13
Section 5.2. Compliance with Environmental Laws...............................................13
Section 5.3. Maintenance; Replacement; Modifications..........................................13
section 6. TRANSFER OF GROUND INTEREST...........................................................14
section 7. LIENS.................................................................................15
Section 7.1. Liens by Ground Lessee...........................................................15
Section 7.2. Liens by the Ground Lessor.......................................................15
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section 8. EVENTS OF LOSS, CONDEMNATION, DAMAGE OR DESTRUCTION...................................15
section 9. SEVERANCE.............................................................................16
section 10. NONMERGER.............................................................................17
section 11. INDEMNIFICATION.......................................................................17
section 12. SECURITY FOR GROUND LESSEE'S OBLIGATION UNDER LESSOR NOTE.............................17
section 13. MISCELLANEOUS.........................................................................18
Section 13.1. Amendments and Waivers...........................................................18
Section 13.2. Notices..........................................................................18
Section 13.3. Survival.........................................................................18
Section 13.4. Successors and Assigns...........................................................18
Section 13.5. Governing Law....................................................................19
Section 13.6. Severability.....................................................................19
Section 13.7. Counterparts.....................................................................19
Section 13.8. Headings and Table of Contents...................................................19
Section 13.9. Further Assurances...............................................................19
Section 13.10. Limitation of Liability..........................................................19
Section 13.11. Measuring Life...................................................................19
Exhibit A Description of Facility Site
Exhibit B-1 Description of Easements
Exhibit B-2 Description of Additional Easements
Exhibit B-3 Description of Additional Property
Exhibit C Description of Retained Site
Exhibit D The Survey
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SITE LEASE AND EASEMENT AGREEMENT
This SITE LEASE AND EASEMENT AGREEMENT, dated as of May 25, 2004 (this
"Site Lease"), between KEYSPAN-RAVENSWOOD, LLC, a New York limited liability
company (the "Ground Lessor" or the "Company"), and SE RAVENSWOOD TRUST, a
Delaware statutory trust (the "Ground Lessee" or the "Owner Lessor").
W I T N E S S E T H:
WHEREAS, the Company (i) owns the Facility Site more particularly described
on Exhibit A hereto, (ii) is the holder of certain easements more particularly
described on Exhibit B-1 hereto (the "Easements") which, together with certain
additional easements to be provided hereby and more particularly described on
Exhibit B-2 hereto (the "Additional Easements"), are necessary for and/or
beneficial to the use and operation of the Facility by the Owner Lessor, and
(iii) owns certain property which is more particularly described in Exhibit B-3
hereto (the "Additional Property") which is beneficial to the use and operation
of the Facility by the Owner Lessor;
WHEREAS, the Company owns the retained site, which is more particularly
described on Exhibit C hereto (the "Retained Site") and is adjacent to the
Facility Site;
WHEREAS, the Owner Lessor has acquired the Facility from the Company
pursuant to the Deed and ▇▇▇▇ of Sale;
WHEREAS, the Facility Site does not include any part of the Facility or the
Retained Site, and no part of the Facility or the Retained Site is being leased
to the Ground Lessee hereunder;
WHEREAS, pursuant to this Site Lease, the Ground Lessor is (i) leasing the
Facility Site to the Ground Lessee, (ii) assigning the Easements to the Ground
Lessee, (iii) granting the Additional Easements to the Ground Lessee, and (iv)
granting the right to use the Additional Property to the Ground Lessee for a
term equal to the Basic Site Lease Term and, subject to the terms hereof, each
Renewal Site Lease Term; and
WHEREAS, concurrently with the execution and delivery of this Site Lease,
the Ground Lessor and the Ground Lessee have entered into a Site Sublease
Agreement (the "Site Sublease"), pursuant to which the Ground Lessee subleases
to the Ground Lessor its leasehold interest in the Facility Site and grants to
the Ground Lessor the right to use the Easements for a term coterminous with
that of the Facility Lease.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
agreements herein contained, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
section 1. DEFINITIONS
Unless the context hereof otherwise requires, capitalized terms used in
this Site Lease, including those in the recitals, and not otherwise defined
herein shall have the respective meanings set forth in Appendix A to that
certain Participation Agreement, dated even date herewith, among the Ground
Lessor, the Ground Lessee, Wilmington Trust Company, SE Ravenswood Lease,
L.L.C., ▇▇▇▇▇ Fargo Bank Northwest, N.A., not in its individual capacity but
solely as Indenture Trustee and ▇▇▇▇▇ Fargo Bank Northwest, N.A., not in its
individual capacity but solely as Pass Through Trustee. The general provisions
of such Appendix A to the Participation Agreement shall apply to the terms used
in this Site Lease.
section 2. GROUND INTEREST
Section 2.1.......Ground Interest. (a) Subject to the covenants and
agreements contained in this Site Lease, the Ground Lessor hereby: (i) leases
the Facility Site to the Ground Lessee; (ii) grants the non-exclusive Additional
Easements to the Ground Lessee; (iii) assigns and conveys the Easements to the
Ground Lessee; and (iv) grants the non-exclusive right, privilege and license to
use the Additional Property to the Ground Lessee. The Ground Lessee's rights,
title and interest in and to the Facility Site, the Easements, the Additional
Easements and the Additional Property shall for purposes of this Site Lease and
the other Operative Documents be referred to collectively as the "Ground
Interest".
(b)......The Ground Lessee acknowledges and agrees that the Easements
assigned to the Ground Lessee under Section 2.1(a) are subject to the following
rights retained by the Ground Lessor (the "Retained Easement Rights") provided
that the exercise by the Ground Lessor of the Retained Easement Rights does not
result in the preclusion of reasonably necessary access to the Facility, or
impair in any material respect the use of the Ground Interest or operation of
the Facility by the Ground Lessee:
(i) the non-exclusive right to use the 12 foot wide and 6 foot deep
common utility trench described in paragraph 6 of Exhibit B to the
Supplemental (Ravenswood) Easement Agreement dated as of February 4, 2003,
by and among Consolidated Edison Company of New York, Inc. ("Con Edison"),
Steam House Leasing, LLC ("SHL") and the Ground Lessor;
(ii) the non-exclusive right to use the 13.8 kv electric feeders and
equipment appurtenant thereto described in Schedule 2.02(a)(5) of the
Amended and Restated Ravenswood Declaration of Easements Agreements dated
June 18, 1999 by and among Con Edison, SHL and the Ground Lessor (the
"DOE");
(iii) the non-exclusive right to use the discharge tunnel described in
Schedule 2.02(a)(8) of the DOE;
(iv) the non-exclusive right to use the steam piping described in
Schedule 2.03(3) of the DOE; and
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(v) the non-exclusive rights to use the 12 foot wide and 6 foot deep
common utility trench described in paragraph 6 of Exhibit B to the SREA for
a 6" fuel oil line and 12" water line currently located in such trench,
which rights will be granted to Con Edison and SHL pursuant to the SREA;
and
(vi) the non-exclusive rights to use the 12 foot wide and 6 foot deep
common utility trench described in paragraph 6 of Exhibit B to the SREA for
a 12" and 16" natural gas lines.
(c)......The conveyances, grants and assignments in Section 2.1(a) is
intended to, among other things, give the Ground Lessee the right of ingress and
egress to the Facility, the right to use and operate the Facility and the other
rights described in Section 5.
(d)......The Ground Lessor and the Ground Lessee understand and agree that
(i) the conveyances, grants and assignments in Section 2.1(a) are subject to
Permitted Liens, (ii) title to the Facility Site, the Retained Site and the
Additional Property remain vested in the Ground Lessor, (iii) the conveyances,
grants and assignments in Section 2.1(a) are subject to the Ground Lessor's
rights under Sections 4.2, 4.3 and 4.4, and (iv) title to the Facility is vested
in the Ground Lessee and no part of the Facility is being leased hereunder.
(e)......With respect to the Additional Easements and Easements granted or
assigned to the Ground Lessee pursuant to Section 2.1(a), the following
provisions shall apply:
(i) The Additional Easements and Easements shall be deemed easements
appurtenant to the parcel of, or interest in, the real property interest
benefited thereby and shall run with such interest or real property and
shall be deemed covenants running with the real property burdened thereby.
(ii) Notwithstanding anything in this Site Lease to the contrary,
the Ground Lessor shall have the right to relocate any Additional
Easement and, subject to obtaining any third party consent, the right
to relocate any Easement, including any facility relating thereto,
provided that (A) the Ground Lessee shall have received an engineer's
certificate (which engineer shall be reasonably satisfactory to the
Ground Lessee, it being understood that an internal engineer at Ground
Lessor or one of its Affiliates would be considered reasonable),
stating that (1) the easement as so relocated will serve the same
purpose as that of said easement immediately prior to such relocation
and will allow the extent and manner of utilization available to the
Ground Lessee prior to such relocation; and (2) the proposed
relocation would not materially interfere with, or materially increase
the cost of the operation and maintenance of the Ground Interest and
the Facility; (B) such relocation shall be done at the sole expense of
the Ground Lessor; and (C) upon the relocation of any such easement,
Ground Lessor shall retain a licensed surveyor to prepare an
appropriate description of the relocated easement and the Ground
Lessor and the Ground Lessee shall, at the Ground Lessor's expense,
amend this Site Lease and the Site Sublease to reflect the relocated
easement and take such actions as are necessary to record such
amendments.
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(iii) The following shall apply in interpreting any Additional
Easement or Easement granted or assigned pursuant to Section 2.1(a):
(1) With respect to any easement created by Section 2.1(a), the
words "in," "upon," to," "on," "over," "above," "through" and/or
"under" shall be interpreted to include all of such terms.
(2) Each easement is also a grant of the additional right of
access over the Retained Site as reasonably necessary to accomplish
the purpose of such easement or right, privilege and license, to
perform any obligations hereunder, and to comply with any legal
requirements affecting the Ground Lessee or its property and/or
improvements.
(3) Subject to the provisions of Applicable Laws (including
applicable Environmental Laws) and Permitted Liens, each easement
granted therein shall include the right to maintain, repair and
replace any and all pipes to transport water, waste water, sewer, gas
and other utilities; provided, that the Ground Lessee may not relocate
the pipelines without the consent of the Ground Lessor. It is intended
that there shall be included within such grant any and all rights and
easements needed for the construction, operation, maintenance, repair,
alteration and renovation of the pipelines in such easement areas,
whether any such rights and easements are presently in use, or needed
in the future.
(4) The Ground Lessor in using any portion of the Retained Site
burdened by any easement, right, privilege and license shall be
subject to the limitations set forth in the provisos set forth in
Sections 4.2 and 4.3(a).
(b) With respect to the easements and the rights, privileges and licenses
granted pursuant to Section 2.1(a), the following provisions shall apply:
(i) Except as otherwise expressly provided herein, each easement and
each right, privilege and license granted therein is and shall be a grant,
transfer, conveyance and right of access to and use (subject to the terms
of this Site Lease) to the Ground Lessee, to any permitted assignee of the
Ground Lessee (including, without limitation, the Indenture Trustee) and to
any future permitted sublessee or operator of the Ground Interest.
(ii) Each easement and each right, privilege and license granted
therein shall terminate upon the expiration, surrender or earlier
termination of this Site Lease in accordance with the terms hereof but
shall otherwise, subject to the Ground Lessor's rights under Sections 4.2,
4.3 and 4.4, be irrevocable for so long as (1) the Ground Lessee or any
permitted assignee (including, without limitation, the Indenture Trustee)
owns the Facility and (2) the Facility continues to be located on the
Facility Site.
(iii) Each easement and each right, privilege and license granted
therein may be enjoyed without additional charge or fee to the Ground
Lessee, other than rent payable pursuant to Section 3.1.
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Section 2.2. Basic Site Lease Term. The term of this Site Lease shall
commence on the Closing Date and shall terminate at 11:59 p.m. (New York City
time) on May 25, 2054 (the "Basic Site Lease Term"), subject to early
termination in whole or in part pursuant to Sections 2.6 or 2.8 hereof and
renewal pursuant to Section 2.3 hereof.
Section 2.3. Renewal Site Lease Term. (a) If the Ground Lessor exercises
its option to renew the Facility Lease under Section 15.1 of the Facility Lease
and the reappraised useful life of the Facility as set forth in the appraisal
obtained in connection with such renewal extends beyond the last day of the
original appraised useful life of the Facility set forth in the Closing
Appraisal, the Site Lease Term shall automatically and without further act by
any Person be renewed for a period commencing at 11:59 p.m. (New York City time)
on the last day of the Basic Site Lease Term and terminating at 11:59 p.m. (New
York City time) on the last day of the reappraised useful life of the Facility
set forth in such appraisal. If the Ground Lessor does not elect to exercise its
renewal option under Section 15.1 of the Facility Lease on or prior to the day
that is 12 months prior to the Expiration Date under the Facility Lease and the
reappraised useful life of the Facility as set forth in the report of the
appraiser hereinafter described extends beyond the last day of the Basic Site
Lease Term, the Ground Lessee shall have the option to renew the Site Lease Term
for a period commencing at 11:59 p.m. (New York City time) on the last day of
the Basic Site Lease Term and terminating at 11:59 p.m. (New York City time) on
the last day of the reappraised useful life of the Facility as determined in
accordance with such report. In order to exercise such option the Ground Lessee
must give the Ground Lessor irrevocable written notice prior to the Expiration
Date under the Facility Lease. At the time the Ground Lessee notifies the Ground
Lessor of its election to renew the Site Lease Term under this Section 2.3(a),
the Ground Lessee shall (at the Ground Lessee's sole expense) provide the Ground
Lessor with a report of an appraiser prepared not more than 36 months before
such election, such appraiser to be selected by the Ground Lessee and reasonably
acceptable to the Ground Lessor, stating the reappraised useful life of the
Facility as of the date of such report.
(b) If the Ground Lessor exercises its option to renew the Facility Lease
under Section 15.2 of the Facility Lease and the reappraised useful life of the
Facility as set forth in the appraisal obtained in connection with such renewal
extends beyond the date set forth in Section 2.2 or 2.3(a), as applicable, the
Site Lease Term shall automatically and without further act by any Person be
renewed for a period commencing at 11:59 p.m. (New York City time) on the date
set forth in Section 2.2 or 2.3(a), as applicable, and terminating at 11:59 p.m.
(New York City time) on the last day of the reappraised useful life of the
Facility set forth in such appraisal.
(c) If the Ground Lessor exercises its option to renew the Facility Lease
pursuant to Section 15.3 thereof for a FMV Renewal Lease Term which extends
beyond the remaining Site Lease Term, the then-applicable Site Lease Term shall
automatically and without further act by any Person be renewed for a period
commencing at 11:59 p.m. (New York City time) on the last day of such Site Lease
Term and terminating at 11:59 p.m. (New York City time) on the last day of the
FMV Renewal Lease Term for which the Facility Lease is so extended.
(d) Any renewal term pursuant to this Section 2.3 is referred to herein as
a "Renewal Site Lease Term," and together with the Basic Site Lease Term and all
other Renewal Site Lease Terms, the "Site Lease Term."
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Section 2.4. Return of Ground Interest. Upon the expiration or early
termination or surrender of this Site Lease, the Ground Lessee shall (a) return
the Ground Interest to the Ground Lessor by surrendering the Ground Interest
into the possession of the Ground Lessor and assign the Easements to the Ground
Lessor without representation or warranty, other than a warranty as to the
absence of Owner Trustee's Liens attributable to the Ground Lessee and a
warranty of the Owner Participant as to the absence of Owner Participant's
Liens, but without any other liability or cost to the Ground Lessee, and (b)
upon the request of the Ground Lessor, execute, acknowledge, and deliver a
release (or termination) of the Ground Interest, which release (or termination)
shall be prepared by the Ground Lessor at its expense and in a form reasonably
satisfactory to the Ground Lessee to be duly recorded at the Ground Lessor's
expense with the Register's Office, Queens County, New York. The obligations of
the Ground Lessor and the Ground Lessee under this Section 2.4 shall survive the
expiration, early termination or surrender of this Site Lease.
Section 2.5. Nonterminability. Subject to Sections 2.6 and 2.8 hereof, the
Site Lease Term shall not be terminated nor shall any of the rights granted or
conveyed hereunder to the Ground Lessee be extinguished, or be merged into or
with any other estate, in whole or in part, by any circumstance of any character
or for any reason whatsoever, including any of the following: (a) any loss or
destruction of, or damage to, the Facility, or any Component thereof or
interruption or cessation in use or possession thereof or any part thereof by
the Ground Lessee for any reason whatsoever and of whatever duration, (b) the
condemnation, requisition, expropriation, seizure or other taking of title to or
use of the Facility, any Component thereof or any part thereof by any
Governmental Entity or otherwise, (c) any prohibition, limitation or restriction
on the use by any Person of all or any part of its property or the interference
with such use by any Person, or any eviction by paramount title or otherwise,
(d) any inadequacy, incorrectness or failure of the description of the Facility
Site or the Ground Interest or any part thereof or any rights or property in
which an interest is intended to be granted or conveyed by this Site Lease, (e)
the insolvency, bankruptcy, reorganization or similar proceedings by or against
the Ground Lessor, the Ground Lessee or any other Person, (f) the failure by the
Ground Lessee to comply with Section 3 or Section 5 or any other provision
hereof, or (g) any other reason whatsoever, whether similar or dissimilar to any
of the foregoing.
Section 2.6. Election to Surrender. The Ground Lessee may, so long as the
Lien of the Indenture shall have been terminated or discharged in accordance
with its terms, elect to surrender the Ground Interest and transfer this Site
Lease to the Ground Lessor at any time following the expiration or early
termination of the Facility Lease upon payment of $1.00 to the Ground Lessor,
and in accordance with Section 2.4, but without any other liability or cost to
the Ground Lessee. Upon such surrender, all other obligations and liabilities of
the Ground Lessee hereunder, including its obligation to make rental payments
hereunder, shall automatically be assumed by the Ground Lessor and the Ground
Lessee shall be automatically released therefrom, except as otherwise set forth
in Section 11 and except that the Ground Lessee shall transfer to the Ground
Lessor, by an instrument to be prepared by the Ground Lessor at its expense and
in a form reasonably satisfactory to the Ground Lessee to be duly recorded at
the Ground Lessor's expense with the Register's Office, Queens County, New York,
all of the Ground Lessee's right, title and interest in and to this Site Lease.
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Section 2.7. Storage, Etc. (a) Notwithstanding anything to the contrary
herein, the Ground Lessee shall be under no obligation at any time to remove the
Facility and shall have the right, but not the obligation, upon the expiration
of the Site Lease Term, to require the Ground Lessor, at the Ground Lessor's
sole risk and expense, to dismantle any movable parts comprising the Facility,
remove them from the Facility Site, and cause them to be delivered to a railhead
or other suitable common carrier. Notwithstanding the foregoing, after (but only
after) the Ground Lessee shall have requested the Ground Lessor to dismantle,
remove and ship such parts, the Ground Lessor shall have the option to offer to
purchase the Facility from the Ground Lessee, at a purchase price equal to the
greater of $1.00 (One Dollar) and the Fair Market Sales Value of the Facility
(assuming that the Facility must be removed from the Facility Site and,
therefore, determined for purposes of this Section 2.7(a)after deducting the
estimated cost of decommissioning, dismantlement, removal, shipment and disposal
of the Facility and restoring the Facility Site to its original unimproved
condition). The Ground Lessor must give the Ground Lessee written notice of any
such offer within 30 days after receipt of the request from the Ground Lessee
contemplated in the first sentence of this Section 2.7(a). If the Ground Lessee
accepts such offer, which acceptance shall be in writing and given within 15
days of the Ground Lessor's offer, the Ground Lessor and the Ground Lessee shall
agree upon such Fair Market Sales Value within 15 days after the giving of such
written notice of acceptance or, if the Ground Lessor and the Ground Lessee
shall fail so to agree, such Fair Market Sales Value shall be determined by the
Appraisal Procedure. If the Ground Lessee does not respond in writing to the
Ground Lessor's offer within 15 days of the Ground Lessor's offer, the Ground
Lessee shall be deemed to have accepted such offer. If the Ground Lessee rejects
the Ground Lessor's offer in writing within the aforesaid period, then and in
such event, the Ground Lessor shall have no obligation to dismantle any movable
parts comprising the Facility nor the obligation to remove such parts from the
Facility Site.
(b) Any sales, transfer or similar taxes resulting from the Ground Lessor
or its designee obtaining any interest in any portion of the Facility, whether
through deemed or actual conveyance or otherwise, shall be paid by the Ground
Lessor. The provisions of this Section 2.7 shall expressly survive the
expiration or earlier termination of the Site Lease Term and any surrender of
this Site Lease pursuant to Section 2.6 hereof.
Section 2.8. Early Termination of Site Lease Term. This Site Lease shall
automatically and without further act by any Person terminate on the earlier of
(i) the Owner Lessor's election to cease operating the Facility (other than in
connection with maintenance or improvements), (ii) the date the Facility Lease
is terminated pursuant to Section 13 of the Facility Lease and the Ground Lessor
purchases the Facility from the Ground Lessee and (iii) the date the Facility
Lease is terminated pursuant to Section 10.2 of the Facility Lease and
Termination Value is paid (other than in connection with a sale of the Owner
Lessor's Interest to a third party). Upon termination of this Site Lease
pursuant to this Section 2.8, the Ground Lessee shall return the Ground Interest
to the Ground Lessor in accordance with Section 2.4.
section 3. RENT FOR THE LEASE AND USE OF FACILITY SITE
Section 3.1. Rent. (a) The Ground Lessee shall pay to the Ground Lessor the
rent stipulated in Sections 3.1(b) and (c) as consideration for the right to
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possession and use of the Facility Site and for the easements and other rights,
privileges and licenses granted, conveyed and otherwise made available to the
Ground Lessee hereunder for the Site Lease Term.
(b)......No rent shall be allocated to the first three months of the Site
Lease Term. Thereafter, allocated rent shall be $243,000 per calendar year (or a
ratable portion thereof in the case of a partial calendar year) for the first
half of the remaining portion of the Site Lease Term through the Expiration Date
under the Facility Lease and $297,000 per calendar year (or a ratable portion
thereof in the case of a partial calendar year) for the second half of the
remaining portion of the Site Lease Term through the Expiration Date under the
Facility Lease. In the event of any renewal of the Facility Lease, the allocated
rent shall be $270,000 per calendar year (or a ratable portion thereof in the
case of a partial calendar year) for the portion of the Site Lease Term
following the Expiration Date under the Facility Lease through the end of the
Facility Lease Term. Subject to Section 3.4 hereof, the rent allocated to each
full or partial calendar year hereunder shall be paid by the Ground Lessee to
the Ground Lessor on December 31 of each year in the amount allocated to such
year (or in the event of a termination of this Site Lease prior to December 31
of a year, the rent payable for such year shall be paid on the last day of the
term hereof in the amount allocated to the portion of the year in which this
Site Lease terminates through the date of such termination).
(c)......After the last day of the Facility Lease Term (the "Ground Rent
Adjustment Date"), the Ground Lessee agrees to pay to the Ground Lessor annual
rent from and after the Ground Rent Adjustment Date equal to the then annual
Fair Market Rental Value of the Facility Site for the remaining period of the
Site Lease Term. Such Fair Market Rental Value (determined on the basis that the
Facility Site was unimproved) shall be determined no earlier than 6 months prior
to the Ground Rent Adjustment Date by agreement of the parties or, if they shall
fail to agree, by the Appraisal Procedure, the costs of which shall be shared
equally by the Ground Lessor and the Ground Lessee. Such annual rent shall be
payable semi-annually in arrears on each January 15, and July 15 during the
remainder of the Site Lease Term and shall be adjusted on the January 1
following the third anniversary of the Ground Rent Adjustment Date, and on
January 1 of every third year thereafter, to reflect the then Fair Market Rental
Value in the manner provided above. All rent for any partial semi-annual period
during which the last day of the Site Lease Term occurs after the Ground Rent
Adjustment Date shall be prorated on the basis of the actual number of days in
such semi-annual period.
Section 3.2. Taxes and Assessments. (a) From and after the expiration or
early termination of the Facility Lease and until the earlier of the expiration
or early termination of the Site Lease Term or surrender or transfer of the
Ground Interest or any portion thereof to the Ground Lessor pursuant to Section
2.6 or Section 6, if the tax lot on which the Facility Site is located has not
been apportioned in accordance with Section 3.5, the Ground Lessee agrees to pay
to the Ground Lessor its pro rata share of all Taxes and assessments, general or
special, taxed, charged, levied, assessed or imposed upon the Facility Site.
Such pro rata share payable by the Ground Lessee shall be determined by
allocating the taxable value between the Ground Lessee and the Ground Lessor for
both the land and the improvements located on the tax lot of which the Facility
Site forms a part. Any Tax and/or assessment payable on the land comprising the
tax lot shall be allocated on a per square foot basis, so that the Ground Lessee
shall pay an amount each tax period equal to the tax assessment per square foot
multiplied by the total square footage of the Facility Site. Any Tax and/or
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assessment on the improvements shall be apportioned so that the Ground Lessee
shall pay any and all Taxes and/or assessments attributable to the Facility.
Such payment shall be due 10 days after notice by the Ground Lessor to Ground
Lessee, but in no event shall such amounts be due prior to the date such Taxes
and assessments are due and payable to a taxing or assessing Governmental
Entity. Prior to the expiration or early termination of the Facility Lease, the
Ground Lessor shall pay all Taxes and assessments, general or special, taxed,
charged, levied, assessed or imposed upon the Facility Site, and so long as the
Facility Site is not at such time apportioned as a separate tax lot, the
remainder of the tax lot of which the Facility Site is a part (including any Tax
or annual charge payable in respect of the Retained Site and the Additional
Property), and the Ground Lessor shall indemnify the Ground Lessee with respect
thereto for such period, as provided in and subject to the terms, conditions and
limitations in, Section 9.2 of the Participation Agreement. After the expiration
of the Facility Lease, Ground Lessor shall pay all Taxes and assessments,
general or special, taxed, charged, levied, assessed or imposed upon the
Retained Site and any other part of the tax lot other than the Facility Site.
(b) .....Taxes and assessments shall be prorated between the Ground Lessor
and the Ground Lessee for (a) the year in which the Site Lease Term expires, as
of the date of expiration of the Site Lease Term and (b) for the year in which
the expiration, surrender or earlier termination of the Site Sublease Term
occurs, as of the date of such expiration, surrender or termination of the Site
Sublease Term.
(c) .....From and after the expiration or termination of the Facility Lease
and until the earlier of the expiration, surrender or termination of the Site
Lease Term pursuant to and in accordance with this Site Lease, the Ground Lessee
shall have the right to contest any Taxes and assessments required to be paid by
the Ground Lessee under this Site Lease, provided the Ground Lessee shall in
good faith and with due diligence contest the same or the validity thereof by
appropriate legal proceedings which shall have the effect of preventing the
collection of the Taxes and assessments from the sale or foreclosure of any Lien
for such Taxes and assessments of the Facility Site during such contest. The
Ground Lessee shall have the right, at its sole expense, to institute and
prosecute, in the Ground Lessor's name, any suit or action to contest any Taxes
and assessments required to be paid by the Ground Lessee or to recover the
amount of any such Taxes and assessments but, in such event, the Ground Lessee
hereby covenants and agrees to indemnify and save the Ground Lessor harmless
from any and all costs and expenses, including reasonable attorneys fees, in
connection with any such suit or action. Any funds recovered by the Ground
Lessee attributable to the period from and after the termination of the Site
Sublease Term until the earlier of the expiration, surrender or termination of
the Site Lease Term as a result of any such suit or action shall belong to the
Ground Lessee, unless the Ground Lessor shall have paid the Tax and assessment
with respect to such period. Any part of such recovery relating to any period
ending on or prior to the expiration or termination of the Site Sublease Term or
any period beginning after the expiration, surrender or termination of the Site
Lease Term shall be paid to the Ground Lessor, unless the Ground Lessee shall
have paid the Tax and assessment with respect to such period. Notwithstanding
the foregoing, the Ground Lessee shall be entitled to reimbursement of any
out-of-pocket costs and expenses incurred in connection with any such suit or
action to the extent of any funds recovered, and any amounts payable to the
Ground Lessor pursuant to the immediately preceding two sentences shall be
reduced by a portion of such out-of-pocket costs and expenses, to be determined
by the Ground Lessor and the Ground Lessee, acting reasonably, taking into
account the amount of the recovery paid to each party.
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(d) .....If, at any time prior to the expiration of the Site
Lease Term, any part of the Retained Site that is part of the same tax lot as
the Facility Site is sold or otherwise transferred or conveyed by Ground Lessor
to someone other than an Affiliate of the Guarantor, the Ground Lessor will
cause the Facility Site to be apportioned as a separate tax lot for New York
City property tax purposes.
Section 3.3. Suspension of Rent and Other Payments. In the event a Lease
Event of Default under the Facility Lease shall have occurred and be continuing
and any amounts remain unpaid to the Ground Lessee under the Facility Lease or
any other Operative Document as a result of such Lease Event of Default,
payments of any amounts owed to the Ground Lessor by the Ground Lessee under
this Site Lease, including, without limitation, payments of rent and other
amounts pursuant to Section 3.1 or 3.2 hereof, may, in the sole discretion of
the Ground Lessee, be suspended until such time as all amounts due and owing by
the Ground Lessor to the Ground Lessee under the Operative Documents shall have
been paid in full.
Section 3.4. Payment. The Ground Lessor and the Ground Lessee agree that,
during the Site Sublease Term, each payment of rent by the Ground Lessee
pursuant to Section 3.1 hereof and each payment of rent by the Ground Lessor, as
sublessee, pursuant to Section 3.1 of the Site Sublease shall be offset, and no
amounts shall be payable by the Ground Lessee or the Ground Lessor in respect
thereof, one against the other.
Section 3.5. Tax Lot Apportionment. Not later than twelve (12) months prior
to the later of the Expiration Date or the expiration date of the last Renewal
Lease Term elected by the Ground Lessor, or in connection with any return of the
Facility pursuant to Section 5.1 of the Facility Lease upon the early
termination of the Facility Lease, as promptly as possible prior to such return,
the Ground Lessor shall commence and thereafter use commercially reasonable
efforts to cause the Facility Site to be treated as a separate tax lot for
property tax purposes in the City of New York; provided, however, that if the
long-term unsecured indebtedness of KeySpan Corporation is rated less than Baa2
by ▇▇▇▇▇'▇ or less than BBB by S&P on the date of expiration or termination of
the Facility Lease and the Facility Site is not in fact treated as a separate
tax lot at such time, the Ground Lessor shall provide to the Ground Lessee and
the Owner Participant adequate financial assurance during the remaining term of
this Site Lease (so long as the Facility Site is not in fact treated as a
separate tax lot) with respect to the ability of the Ground Lessor, or any other
Person responsible therefor, to satisfy the payment of property taxes for
purposes of the City of New York for the entire applicable tax lot.
section 4. QUIET ENJOYMENT IN FAVOR OF GROUND LESSEE; RELEASE RIGHTS AND
RESERVED RIGHTS
Section 4.1. Ground Lessee's Right of Quiet Enjoyment. The Ground Lessor
warrants that it owns good, record and marketable title to the Facility Site
subject only to Permitted Liens and that it has full right and authority to
convey, grant and assign the rights relating to the Ground Interest conveyed,
granted and assigned to the Ground Lessee pursuant to the terms of this Site
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Lease and agrees that, notwithstanding any provision of any other Operative
Document, so long as the Site Lease Term has not been terminated pursuant to the
express provisions of Section 2.8 hereof, neither the Ground Lessor nor any
party acting by, through or under the Ground Lessor shall take or cause to be
taken any action contrary to the Ground Lessee's rights hereunder, including the
right to possession, use and quiet enjoyment of the Ground Interest, subject to
the terms hereof.
Section 4.2. Ground Lessor's Release Rights. Notwithstanding Section 4.1
hereof or any other provisions in this Site Lease to the contrary, the Ground
Lessor shall have the right from time to time, without being deemed to breach
the foregoing covenant of quiet enjoyment or any other provision of this Site
Lease, in furtherance of the purposes permitted by Section 4.3 or otherwise, to
(i) grant, create or release one or more non-exclusive rights of way and
easements in, upon, to, on, over, above, under through or in respect of, or the
right, privilege and right to use, any portions of the Facility Site, the
Retained Site and the Additional Property and (ii) lease or convey one or more
leasehold interests or licenses in one or more portions of the Retained Site
(including any facility located thereon at any time) and the Additional Property
to one or more lessees of leasehold interests or licenses (collectively the
"Ground Lessor's Release Rights"); provided, however, that no Significant Lease
Default or Lease Event of Default shall have occurred and be continuing and the
Ground Lessee shall have received an engineer's certificate (which engineer
shall be reasonably satisfactory to the Ground Lessee, it being understood that
an internal engineer at Ground Lessor or one of its Affiliates would be
considered reasonable), stating that no property, interest, right of way,
easement, leasehold interest, or license so granted, released, leased or
conveyed (the "Released Property") shall result in the preclusion of reasonably
necessary access to the Facility, materially diminish the residual value,
utility or remaining useful life of the Facility or impair in any material
respect the use of the Ground Interest or the use or operation of the Facility
in substantially the same manner and to substantially the same extent as was
permitted immediately prior to the exercise of the Ground Lessor's Release
Rights. Any third party may conclusively, and without further act, inquiry or
investigation, rely upon an Officer's Certificate of the Ground Lessor to the
effect that any such grant, release or conveyance complies with this Section 4.2
without the necessity of any further inquiry, investigation or determination. In
light of the nature of the Released Property to be granted, released, leased or
conveyed, either (x) this Site Lease shall be subject to the interest created in
connection with the Released Property and the Released Property shall be subject
to this Site Lease or (y) the Released Property shall no longer be a part of the
Ground Interest and shall automatically be deemed to be subject to or released
from the effect of this Site Lease and any Lien on the Ground Interest or
otherwise under this Site Lease, in either case, without the necessity of the
execution, delivery or recording of any further instrument whatsoever. At the
expense of the Ground Lessor, either party shall, at the request of the other,
execute and deliver such documents and instruments as may be reasonably
requested by the Ground Lessor to evidence the foregoing. The Ground Lessor may
exercise its rights under this Section 4.2 with or without receiving
compensation, all of which if any, shall be for the benefit of the Ground
Lessor.
Section 4.3. Reserved Rights. (a) Notwithstanding Section 4.1 or any other
provisions in this Site Lease to the contrary, the Ground Lessor reserves a
right, right of way, and easement on, over, under and across the Facility Site,
and shall have the right from time to time, without being deemed to breach the
foregoing covenant of quiet enjoyment or any other provision of this Site Lease,
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to do any of the following, and to grant any other Person the right to do, or to
grant such Person the right to grant to any other Person the right to do, any of
the following (any such Person, an "Additional Owner"):
(i) operate, use, repair, alter, restore, renew, replace, remove,
upgrade, expand, maintain and relocate any facility located at any time on
the Retained Site and the Additional Property;
(ii) construct, own and operate additional facilities (each, an
"Additional Facility") on or adjacent to the Facility Site, provided that
any Additional Facility on the Facility Site shall constitute a Several
Modification under the Facility Lease;
(iii) erect, construct, install, operate, use, repair, alter, restore,
renew, replace, remove, upgrade, expand, maintain and relocate facilities
and structures (other than the Facility) on, over, under or across the
Facility Site, including, without limitation, other electric power lines,
transmission lines, telephone, television and telecommunication lines, fire
protection systems, safety sensor and monitoring systems and utility lines
and systems and other items, as may be reasonably necessary or desirable
for the operation or use of any facility located at any time on the
Retained Site or the Additional Property, including but not limited to
transmission lines and related pipes, conduits, poles, wires, cables and
interconnection facilities to transport electricity from and to any
facility located at any time on the Retained Site;
(iv) use and consume the natural resources of or relating to the
Facility Site as may be reasonably necessary in connection with the
operation of any facility located at any time on the Retained Site;
provided, that, prior to the exercise of any of the rights reserved in clauses
(i) through (iv) above, the Ground Lessee shall have received an Officer's
Certificate together with an engineer's certificate (which engineer shall be
reasonably satisfactory to the Ground Lessee, it being understood that an
internal engineer at Ground Lessor or one of its Affiliates would be considered
reasonable), stating that the exercise of the rights reserved in clauses (i)
through (iv) above, individually or in the aggregate, shall not result in the
preclusion of reasonably necessary access to the Facility, materially diminish
the residual value, utility or remaining useful life of the Facility, or impair
in any material respect the use of the Ground Interest or the use or operation
of the Facility in substantially the same manner and to substantially the same
extent as was permitted prior to the Closing Date. At the expense of the Ground
Lessor, either party shall, at the request of the other, execute and deliver
such documents and instruments as may be reasonably requested to evidence its
rights hereunder. The Ground Lessor may exercise its rights under this Section
4.3 with or without receiving compensation, all of which if any, shall be for
the benefit of the Ground Lessor.
(b) Notwithstanding the foregoing, the Ground Lessor's and any Additional
Owner's right to use the Additional Property shall be limited to any excess
capacity in the Additional Property over the utilization rights granted to the
Ground Lessee pursuant to Section 2.1 hereof. If at any time the Ground Lessor
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or any Additional Owner requires more than such excess capacity of the
Additional Property, then the Ground Lessor or such Additional Owner shall
upgrade the Additional Property, as the case may be, at its sole cost and
expense. If at any time following the expiration or termination of the Facility
Lease and return of the Facility to the Ground Lessee (or upon reasonable
request and notice from the Ground Lessor, prior to the termination or
expiration of the Site Sublease or return of the Facility to the Ground Lessee),
the Additional Property is being, or will be, used by the Ground Lessor, or any
Additional Owner and the Ground Lessee, subject to the provisions of Section 5
of the Facility Lease and Section 5.6 of the Participation Agreement, the
parties agree to cooperate with each other and to enter into mutually agreeable
arrangements, each acting reasonably and in good faith, with respect to joint
operation, maintenance and use of, and allocations of costs and expenses with
respect to, the Additional Property, as the case may be; provided, that all
costs and expenses (other than costs and expenses relating to expansion of the
Additional Property to increase the capacity thereof, which shall be allocated
as described above) shall be shared by the parties based upon their respective
use of the capacity of the Additional Property, as the case may be.
Section 4.4. Rights of Third Parties. Subject to Section 12 hereof, the
Ground Lessee agrees that during the Site Lease Term, the Ground Lessee will not
(i) grant any security interest, leasehold mortgage or deed to secure debt, or
any other Lien on the Facility Site, (ii) sublease or assign this Site Lease,
except pursuant to the Site Sublease, or (iii) otherwise encumber, cause to be
encumbered or convey all or part of the Ground Lessee's interest hereunder
unless such grant, sublease, assignment, encumbrance or conveyance expressly
provides that the Ground Lessee's interest under this Site Lease is subject to
the Ground Lessor's Release Rights set forth in Section 4.2 and the rights of
the Ground Lessor in Section 4.3, that any such grant, sublease, assignment,
encumbrance or conveyance shall automatically be subject to such rights without
the necessity of the execution, delivery or recording of any further instrument
whatsoever, and that the other party to such grant, sublease, assignment,
encumbrance or conveyance shall, at the request and expense of the Ground
Lessor, execute and deliver such documents and instruments as may be reasonably
requested by the Ground Lessor to evidence its rights hereunder.
Section 4.5. Compliance Certificates. The Ground Lessee shall provide
within fifteen (15) days of request by the Ground Lessor, an Officer's
Certificate of the Ground Lessee to the effect that the Released Property that
has been or is proposed to be granted, released, leased or conveyed pursuant to
the provisions of Section 4.2 hereof, or rights that have been or are proposed
to be exercised pursuant to the provisions of Section 4.3 hereof, either (x)
complies with the requirements of Section 4.2 or 4.3 hereof, as applicable, or
(y) does not comply with Section 4.2 or 4.3 hereof and stating in reasonable
detail the basis of any such non-compliance. In connection with the furnishing
of any such certificate, the Ground Lessee shall be entitled to rely upon,
without further investigation, an Officer's Certificate to the Ground Lessee
(which certification as to clause (iii) below shall be confirmed by an
engineer's certificate, which engineer shall be reasonably satisfactory to the
Ground Lessee, it being understood that an internal engineer at Ground Lessor or
one of its Affiliates would be considered reasonable) that such action or
actions shall not (i) result in the preclusion of reasonably necessary access to
the Facility, (ii) materially diminish the residual value, utility or remaining
useful life of the Facility or (iii) impair in any material respect the use of
the Ground Interest or the use or operation of the Facility.
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Section 4.6. SREA. The Ground Lessor and the Ground Lessee acknowledge that
notwithstanding the assignment of the Easements under the SREA to the Ground
Lessee, the Ground Lessor shall remain responsible for all obligations under the
SREA and the Ground Lessee is not assuming any such obligations. The Ground
Lessor shall retain the right to enter into or consent to any amendment,
modification or supplement to the SREA; provided, that the Ground Lessor may
not, without the prior written consent of the Ground Lessee, enter into or
consent to any such amendment, modification or supplement that could reasonably
be expected to have an adverse effect on the rights of the Ground Lessee or, so
long as the Lien of the Indenture shall not have been terminated or discharged,
the Indenture Trustee, unless such modification or supplement is required by
Applicable Law or is necessary to operate or maintain the Facility in compliance
with Applicable Law. The Ground Lessor shall provide the Ground Lessee with a
copy of any proposed amendments to the SREA at least 30 days prior to the
proposed effective date of such amendment. The Ground Lessor covenants and
agrees that it shall use commercially reasonable efforts to complete, within 6
months of the Closing Date, at the Ground Lessor's sole cost and expense, all of
its obligations under the SREA, including, without limitation, the provisions of
Section 6.1 of the SREA, and the Ground Lessor and the Ground Lessee shall, if
necessary, amend the Site Lease and the Site Sublease to reflect any changes to
the Easements.
section 5. USE OF GROUND INTEREST
Section 5.1. Use. The Ground Lessee's rights hereunder to use the Ground
Interest during the Site Lease Term shall be limited to the right of the Ground
Lessee to use (a) the Facility Site in connection with the use, operation,
maintenance, repair, upgrade, improvement, alteration, removal, restoration and
modification of the Facility in accordance with the terms of the Operative
Documents, which shall include the right to construct, install, operate, use,
repair and relocate facilities, equipment and/or structures on or under the
Facility Site, including buildings, roads, paths, walkways, sanitary sewers,
storm drains, water, gas and/or oil mains, waste disposal systems, electric
power lines, transmission lines, telephone, television and telecommunication
lines, fire protection systems, safety sensor and monitoring systems and utility
lines and systems, all as are reasonably necessary or advisable for the
commercial operation of the Facility; (b) the Easements and Additional Easements
in connection with the use and operation of the Facility; and (c) the Additional
Property for the use and operation of the Facility; provided, that the Ground
Lessee may not relocate or expand any easement or any facility relating thereto.
Section 5.2. Compliance with Environmental Laws. The Ground Lessee will
comply with all Environmental Laws of any Governmental Entity having
jurisdiction as the same pertain to the Facility Site, unless such noncompliance
could not reasonably be expected to result in a Material Adverse Effect;
provided however that the Ground Lessee may, in good faith and by appropriate
proceedings, diligently contest the validity or applicability of any
Environmental Law in any reasonable manner that (A) does not involve any risk of
foreclosure, sale or forfeiture or loss of the Facility or the Facility Site (in
each case unless such risk is not material) or the impairment of the use,
operation or maintenance of the Facility in any material respect, and (B) could
not result in any criminal liability being incurred by, or could not reasonably
be expected to have any material adverse effect on the interests of, the Owner
Participant or the Ground Lessee; provided, however, that at all times during
14
the term of the Site Sublease, so long as the Ground Lessee has not dispossessed
the Ground Lessor of the Facility Site, the Ground Lessor, pursuant to the Site
Sublease, shall be obligated to perform, and the Ground Lessee shall be deemed
to have performed, the obligations under this Section 5 (whether or not it shall
have performed its obligations under the Site Sublease, the Facility Lease or
the other Operative Documents). Notwithstanding the foregoing, the Ground Lessee
shall not be responsible for compliance with any requirements of Environmental
Laws to the extent such requirements are attributable to any action, omission,
event, circumstance or condition occurring or existing prior to (i) such return
of the Ground Interest to the Ground Lessee upon the termination or expiration
of the Site Sublease or (ii) such dispossession of the Ground Lessor from the
Facility Site by the Ground Lessee.
Section 5.3. Maintenance; Replacement; Modifications. During the Site Lease
Term, the Ground Lessor agrees, with respect to the Additional Property, to
maintain, repair, replace and modify such equipment and facilities in accordance
with the maintenance, replacement and modification requirements prescribed in
Sections 7.1, 7.2, 8.1 and 8.2 of the Facility Lease with respect to the
Facility (without regard to whether the Facility Lease is then in effect). The
Ground Lessor reserves the right to remove any such equipment or facilities that
become surplus or obsolete in accordance with the standards prescribed in
Section 7.2 of the Facility Lease applied as if such provision pertained to the
facilities located on the Retained Site. During the period from and after the
end of the Site Sublease Term, the Ground Lessee shall reimburse the Ground
Lessor for an equitable portion of the costs and expenses incurred by the Ground
Lessor to perform its maintenance, repair and related obligations with respect
to such equipment and facilities, based upon the relative manner and extent of
utilization for the use and operation of the Facility and for the use and
operation of other facilities.
section 6. TRANSFER OF GROUND INTEREST
The Ground Lessee expressly agrees that the Ground Lessee shall not
transfer the Ground Interest except as part of the Ground Lessee's transfer of
the Owner Lessor's Interest pursuant to the Operative Documents. The Ground
Lessor acknowledges that (x) the Ground Lessee shall have the right to transfer
and convey the Ground Interest as part of a transfer under and in accordance
with Section 10.2(a), 13.3, 14.4, or 17.1 of the Facility Lease in connection
with the Ground Lessee's transfer thereunder of the Owner Lessor's Interest and
the Ground Lessor and the Ground Lessee agree to comply with the provisions of
the applicable sections of the Facility Lease in connection with such transfer
to the extent required thereunder, (y) the Ground Lessee's interest hereunder
may be transferred together with the Owner Lessor's Interest to the Indenture
Trustee or an Affiliate of the Indenture Trustee or any other Person who is the
purchaser thereof in foreclosure of the Lien of the Indenture or by deed in lieu
of any such foreclosure or after any such foreclosure or deed in lieu of
foreclosure, and (z) at all times, subject to Section 13.2 of the Participation
Agreement following the expiration or termination, for any reason whatsoever, of
the Facility Lease, the Ground Lessee may transfer or assign its rights and
obligations under this Site Lease, or permit the sublease, sub-sublease or
occupancy of the Ground Interest to or by any third person, or mortgage its
interest in the Ground Interest so long as the transferee, sublessee or
mortgagee is simultaneously acquiring a similar interest in the Facility and, if
the Lien of the Indenture has not been terminated or discharged, the Indenture
Trustee has given its prior written consent; provided, however, that, in
connection with any mortgage by the Ground Lessee of its interest in the Ground
15
Interest, the Ground Lessor shall not unreasonably withhold its consent to any
modification of this Site Lease as is requested by any lender to preserve or
protect the lien granted to such lender in connection with its mortgage so long
as such modification would not subject the Ground Lessor to any unreimbursed
cost or expense and would not otherwise be disadvantageous to the Ground Lessor,
and provided, further, that the Ground Lessee agrees to pay all reasonable costs
and expenses incurred by the Ground Lessor in connection with any such requested
modification. With respect to an assignment only, the Ground Lessee shall be
relieved of its obligations under this Site Lease from and after the date of
such transfer or assignment so long as the transfer or assignment is made in
accordance with clause (z) above and the transferee or assignee assumes and
agrees to perform all obligations and liabilities of the Ground Lessee under
this Site Lease pursuant to such agreements, and on such terms, as shall be
reasonably satisfactory to the Ground Lessor and if the Lien of the Indenture
has not been terminated or discharged, with the consent of the Indenture
Trustee.
The Ground Lessee acknowledges and agrees that at all times after the
expiration or termination, for any reason whatsoever, of the Facility Lease, the
Ground Lessor may convey the Facility Site and transfer or assign its rights and
obligations under this Site Lease to any third person with the prior written
consent of the Ground Lessee and, if the Lien of the Indenture has not been
terminated or discharged, the Indenture Trustee (such consent, in the case of
the Ground Lessee, not to be unreasonably withheld). With respect to any such
assignment, the Ground Lessor shall be relieved of its obligations under this
Site Lease from and after the date of such conveyance and transfer or assignment
so long as the transferee or assignee assumes and agrees to perform all
obligations and liabilities of the Ground Lessor under this Site Lease pursuant
to such agreements, and on such terms, as shall be reasonably satisfactory to
the Ground Lessee and if the Lien of the Indenture has not been terminated or
discharged, with the consent of the Indenture Trustee.
section 7. LIENS
Section 7.1. Liens by Ground Lessee. The Ground Lessee agrees that it will
not, directly or indirectly, create, incur, assume or suffer to exist any Owner
Trustee's Liens attributable to it on or with respect to the Ground Interest,
and the Ground Lessee shall promptly notify the Ground Lessor of the imposition
of any such Lien of which the Ground Lessee is aware and shall promptly, at its
own expense, take such action as may be necessary to fully discharge or release
any such Lien or contest any such Lien in good faith and with due diligence by
appropriate legal proceedings and provided that the Ground Lessee shall provide
the Ground Lessor with reasonable security as may be required by the Ground
Lessor in connection with any such contest.
Section 7.2. Liens by the Ground Lessor. The Ground Lessor hereby covenants
that it will not, directly or indirectly, create, incur, assume or suffer to
exist any Liens or other encumbrances on or with respect to the Ground Interest,
other than Permitted Liens. The Ground Lessor shall promptly notify the Ground
Lessee of the imposition of any such Lien or other encumbrances described in the
immediately preceding sentence of which the Ground Lessor is aware and shall
promptly, at its own expense, take such action as may be necessary to fully
discharge or release any such Lien or contest any such Lien in good faith and
with due diligence by appropriate legal proceedings and provided that the Ground
16
Lessor shall provide the Ground Lessee with reasonable security as may be
required by the Ground Lessee in connection with any such contest. It being
understood that until the earlier of the expiration or termination of the
Facility Lease, the Ground Lessor shall be deemed to have complied with this
Section 7.2, so long as it is in compliance with its obligations, as Lessee,
under Section 6 of the Facility Lease.
section 8. EVENTS OF LOSS, CONDEMNATION, DAMAGE OR DESTRUCTION
(a) If at any time during the Facility Lease Term a Requisition or other
Event of Loss occurs or other casualty occurs, the terms and provisions of the
Facility Lease shall govern and control the rights and obligations of the
parties hereto.
(b) If at any time after the expiration or termination, for any reason
whatsoever, of the Facility Lease and until the earlier of the expiration,
surrender or termination of the Site Lease Term, the Ground Interest or any
portion thereof is the subject of a Requisition, the proceeds of such
Requisition shall be divided between the Ground Lessor and the Ground Lessee in
the proportions specified in the condemnation award or agreement of transfer or,
if not so specified, in proportion to the fair market value of the Ground
Lessor's and the Ground Lessee's respective interests in the Ground Interest;
provided that so long as the Lien of the Indenture shall not have been
terminated or discharged, all amounts payable to the Ground Lessee pursuant to
this clause (b) shall be payable to the Indenture Trustee for application
pursuant to the Indenture.
(c) If, at any time after the expiration or termination, for any reason
whatsoever, of the Facility Lease and until the earlier of the expiration,
surrender or termination of the Site Lease Term, the Facility or any part
thereof is damaged or destroyed by any fire or other casualty, the Ground Lessee
shall not, except to the extent expressly required under any other Operative
Document or under Applicable Laws, be obligated to repair or replace the
Facility, notwithstanding the availability of insurance proceeds for repair. All
proceeds received by the Ground Lessee from insurance with respect to any
casualty or property damage occurring on or after the expiration or termination
of the Facility Lease, but during which period this Site Lease remains in
effect, shall be applied as the Ground Lessee may elect.
(d) To the extent that a Requisition occurs with respect to the Facility
after the expiration or termination of the Facility Lease and until the earlier
of the expiration, surrender or termination of the Site Lease Term, the proceeds
of such Requisition shall be paid solely to the Ground Lessee.
(e) To the extent that a Requisition occurs with respect to both the
Facility and the Ground Interest after the expiration or termination of the
Facility Lease and until the earlier of the expiration, surrender or termination
of the Site Lease Term, and the condemnation award or agreement of transfer
fails to specify how the proceeds of such Requisition shall be divided between
the Ground Lessor and the Ground Lessee, the proceeds of such Requisition shall
be divided between the Ground Lessor and the Ground Lessee equitably in
accordance with the principles set forth in paragraphs (b) and (d) above.
17
section 9. SEVERANCE
The Facility, Components, Replacement Components, all equipment at any time
acquired by the Ground Lessee and located on the Facility Site and each part
thereof have been severed by agreement and intention of the parties hereto from
the Facility Site and from title thereto and (i) shall be considered as personal
property of the Ground Lessee, (ii) even though attached or affixed to or
installed upon the Facility Site, as the case may be, shall not be considered to
be fixtures or a part of the Facility Site and (iii) shall not be or become
subject to the Lien of any mortgage encumbering the Facility Site (other than
the Indenture, if then in effect). The Ground Lessor waives any rights it may
have under the laws of the State of New York arising under this Site Lease or
otherwise (except as expressly provided in the Operative Documents) to any Lien
upon, or any right to distress or attachment upon, or any other interest in, any
item constituting part of the Facility, Components, Replacement Components or
any equipment and other property at any time acquired by the Ground Lessee and
located on the Facility Site. The Ground Lessor acknowledges that the Ground
Lessee is the legal, equitable and beneficial owner of the Facility, Components,
Replacement Components and all such other equipment and property relating solely
to the Facility at any time acquired by the Ground Lessee and located on the
Facility Site and covenants and agrees that, subject to any limitations in and
to the terms and conditions of this Site Lease and the other Operative
Documents, following the expiration or earlier termination of the Facility Lease
and during the Site Lease Term upon (without limitation of the provisions of
Section 2.7 hereof) the expiration or earlier termination of this Site Lease,
the Ground Lessee shall have the right to remove, from time to time, the
Facility, Components, Replacement Components or any part thereof or any such
other equipment and property relating solely to the Facility at any time
acquired by the Ground Lessee, from the Facility Site. The Ground Lessee waives
any rights it may have under the laws of the State of New York or otherwise to
any Lien upon, or right of attachment (other than a leasehold interest in or
right to use, as the case may be) with respect to, the Facility Site, any
facility located at any time on the Retained Site, the Additional Property, or
any part thereof.
section 10. NONMERGER
The reversionary interest of the Ground Lessor in the Ground Interest shall
not merge into any interest in the Ground Interest conveyed by this Site Lease
even if such reversionary interest and such interest leased are at any time
vested in or held directly or indirectly by the same Person, but this Site Lease
shall nonetheless remain in full force and effect in accordance with its terms
notwithstanding such vesting or holding unless and until the Person holding such
interests shall execute an instrument effecting such merger and shall duly
record such instrument. No such instrument of merger shall be executed and
recorded unless and until the Lien of the Indenture on the Indenture Estate has
been terminated or discharged in accordance with the terms thereof.
section 11. INDEMNIFICATION
The Ground Lessee shall indemnify, protect, save and hold harmless the
Ground Lessor, from and against, any and all Claims imposed on, incurred by or
asserted against the Ground Lessor, to the extent (but only to the extent)
relating to or arising out of any of the following (other than claims for which
the Ground Lessor is responsible under Section 5.3 of the Facility Lease or
18
Section 9.1 of the Participation Agreement) which are attributable to any
action, omission, event, circumstance or condition occurring or existing after
the return of the Facility Site and Easements to the Ground Sublessor pursuant
to Section 2.4 of the Site Sublease and prior to the return of the Ground
Interest to the Ground Lessor in accordance with Section 2.4 or Section 2.6
hereof: (i) the ownership, possession, operation, maintenance, modification,
repair, rebuilding, alteration, restoration, refurbishing, or other use or
non-use of the Facility, or (ii) the presence, use, storage, transportation,
treatment or manufacture of any Hazardous Material in, at, under or from the
Facility or the Facility Site but not, for avoidance of doubt, in each case to
the extent such claims are attributable to (a) any action, omission, event,
circumstance or condition occurring or existing prior to such return of the
Facility Site and Easements to the Ground Sublessor upon the termination or
expiration of the Site Sublease or (b) any action or omission by the Ground
Lessor. The obligations of the Ground Lessee under this Section 11 shall survive
the termination of this Site Lease.
section 12. SECURITY FOR GROUND LESSEE'S OBLIGATION UNDER NOTES
In order to secure the Notes, the Ground Lessee will, by the Indenture,
assign and ▇▇▇▇▇ ▇ ▇▇▇▇ to the Indenture Trustee in and to, inter alia, all of
the Ground Lessee's right, title and interest in, to and under this Site Lease,
the Site Sublease and the Ground Interest (other than Excepted Payments and
Excepted Rights). The Ground Lessor hereby consents to such assignment and
creation of such Lien and acknowledges receipt of copies of the Indenture, it
being understood that such consent shall not affect any requirement or the
absence of any requirement for any consent under any other circumstances. Unless
and until the Ground Lessor shall have received written notice from the
Indenture Trustee that the Lien of the Indenture has been terminated or
discharged, the Indenture Trustee under the Indenture shall have the rights of
the Ground Lessee under this Site Lease to the extent set forth in and subject
in each case to the exceptions set forth in the Indenture.
section 13. MISCELLANEOUS
Section 13.1. Amendments and Waivers. No term, covenant, agreement or
condition of this Site Lease may be terminated, amended or compliance therewith
waived (either generally or in a particular instance, retroactively or
prospectively) except by an instrument or instruments in writing executed by
each party hereto.
Section 13.2. Notices. Unless otherwise expressly specified or permitted by
the terms hereof, all communications and notices provided for herein shall be in
writing or by a telecommunications device capable of creating a written record,
and any such notice shall become effective (a) upon personal delivery thereof,
including by overnight mail or courier service, (b) in the case of notice by
United States mail, certified or registered, postage prepaid, return receipt
requested, upon receipt thereof, or (c) in the case of notice by such a
telecommunications device, upon transmission thereof, provided such transmission
is promptly confirmed by either of the methods set forth in clauses (a) or (b)
above, in each case addressed to such party hereto and copy party at its address
set forth below or at such other address as such party or copy party may from
time to time designate by written notice to the other parties:
19
If to the Ground Lessor:
KeySpan-Ravenswood, LLC
c/o KeySpan Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Ground Lessee:
SE Ravenswood Trust
c/o Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
with a copy to the Owner Participant:
SE Ravenswood Lease, L.L.C.
c/o Southern Energy Finance Company, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Director of Capital Markets and Leasing
with a copy to:
c/o Southern Energy Finance Company, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Financial Manager
20
and to the Indenture Trustee (for so long as the Lien of the Indenture
has not been terminated or discharged):
▇▇▇▇▇ Fargo Bank Northwest, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Services
and to the Pass Through Trustee (for so long as the Lien of the
Indenture has not been terminated or discharged):
▇▇▇▇▇ Fargo Bank Northwest, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Services
Section 13.3. Survival. Except as expressly set forth herein, the
warranties and covenants made by each party hereto shall not survive the
expiration or termination of this Site Lease in accordance with its terms.
Section 13.4. Successors and Assigns. This Site Lease shall be binding upon
and shall inure to the benefit of, and shall be enforceable by, the parties
hereto and their respective successors and permitted assigns as permitted by and
in accordance with the terms hereof.
Section 13.5. Governing Law. This Site Lease has been delivered in the
State of New York and shall be in all respects governed by and construed in
accordance with the laws of the State of New York, including all matters of
construction, validity and performance.
Section 13.6. Severability. Any provision of this Site Lease that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 13.7. Counterparts. This Site Lease may be executed in separate
counterparts, each of which, when so executed and delivered shall be an
original, but all such counterparts shall together constitute but one and the
same instrument.
Section 13.8. Headings and Table of Contents. The headings of the sections
of this Site Lease and the Table of Contents are inserted for purposes of
convenience only and shall not be construed to affect the meaning or
construction of any of the provisions hereof.
Section 13.9. Further Assurances. Each party hereto will promptly and duly
execute and deliver such further documents to make such further assurances for
21
and take such further action reasonably requested by the other party, all as may
be reasonably necessary to carry out more effectively the intent and purpose of
this Site Lease.
Section 13.10. Limitation of Liability. It is expressly understood and
agreed by the parties hereto that (a) this Site Lease is executed and delivered
by the Trust Company not individually or personally but solely as Owner Trustee
under the Trust Agreement, in the exercise of the powers and authority conferred
and vested in it pursuant thereto, (b) each of the representations, undertakings
and agreements herein made on the part of the Owner Lessor is made and intended
not as personal representations, undertakings and agreements by the Trust
Company, but is made and intended for the purpose for binding only the Owner
Lessor, (c) nothing herein contained shall be construed as creating any
liability on the Trust Company, individually or personally, to perform any
covenant either expressed or implied contained herein, all such liability, if
any, being expressly waived by the parties hereto or by any Person claiming by,
through or under the parties hereto and (d) under no circumstances shall the
Trust Company be personally liable for the payment of any indebtedness or
expenses of the Owner Lessor or be liable for the breach or failure of any
obligation, representation, warranty or covenant made or undertaken by the Owner
Lessor under this Site Lease.
Section 13.11. Measuring Life. If and to the extent that any of the rights
and privileges granted under this Site Lease, would, in the absence of the
limitation imposed by this sentence, be invalid or unenforceable as being in
violation of the rule against perpetuities or any other rule or law relating to
the vesting of interests in property or the suspension of the power of
alienation of property, then it is agreed that notwithstanding any other
provision of this Site Lease, such options, rights and privileges, subject to
the respective conditions hereof governing the exercise of such options, rights
and privileges, will be exercisable only during (a) the longer of (i) a period
which will end twenty-one (21) years after the death of the last survivor of the
descendants living on the date of the execution of this Site Lease of the
following Presidents of the United States: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇.
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.▇. ▇▇▇▇,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇ or (ii) the period provided under the
Uniform Statutory Rule Against Perpetuities or (b) the specific applicable
period of time expressed in this Site Lease, whichever of (a) and (b) is
shorter.
22
IN WITNESS WHEREOF, the parties hereto have caused this Site Lease to be
duly executed and delivered under seal by their respective officers thereunto
duly authorized.
KEYSPAN-RAVENSWOOD, LLC,
as Ground Lessor
By:
----------------------------------------------
Name:
Title:
SE RAVENSWOOD TRUST,
as Ground Lessee
By: Wilmington Trust Company, not in its individual
capacity but solely as Owner Trustee
By:
-----------------------------------------
Name:
Title:
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) ss:
COUNTY OF NEW YORK )
On this ___ day of May 2004, before me, the undersigned,
personally appeared _________________, 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/she executed the same in
his/her capacity, and that by his/her signature on the instrument, the
individual, or the person on behalf of which the individual acted, executed the
instrument.
----------------------
Notary
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On this ___ day of May 2004, before me, the undersigned,
personally appeared _________________, 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/she executed the same in
his/her capacity, and that by his/her signature on the instrument, the
individual, or the person on behalf of which the individual acted, executed the
instrument.
----------------------
Notary
24
EXHIBIT A
to
Site Lease Agreement
--------------------
DESCRIPTION OF FACILITY SITE
----------------------------
All that certain piece or parcel of land, situate, lying, and being at
Ravenswood Cogeneration Facility in Long Island City, the Borough and County of
Queens, City and State of New York, bounded and described as follows:
Beginning at the point of a newly constructed building within Parcel "A" having
coordinates of N277358.47 and E607681.66 in the New York State Plane Coordinate
System of 1927, which beginning point is distant the following three courses
from an angle point on the westerly side of ▇▇▇▇▇▇ Boulevard (75 feet wide),
which angle point is located at the intersection of 38th Avenue (75 feet wide),
as said Boulevard and Avenue are shown on map #4297, titled "the Elimination of
▇▇▇▇ ▇▇▇▇▇▇ and 38th Avenue between ▇▇▇▇▇▇ Boulevard and the East River, along
with the layout of Sewer Easements", dated November 28, 1962 and adopted by the
Board of Estimate of the City of New York on July 25th, 1963 (Map #4297) which
map was filed at Topographical Bureau, Borough of Queens, City of New York on
August 9, 1963 thence;
A. North 25o02'04" East a distance of 476.77 feet in the right of way of
▇▇▇▇▇▇ Boulevard to a point, thence;
▇. ▇▇▇▇▇ ▇▇▇▇▇'▇▇" ▇▇▇▇ a distance of 214.15 feet at right angle from the
previous course to a point being the original point of beginning of the Con
Edison Lease area, thence;
C. South 23o48'54" West a distance of 9.07 feet to the point of beginning of
the Facility Site, running thence;
1. ▇▇▇▇▇ ▇▇▇▇▇'▇▇" ▇▇▇▇ a distance of 43.51 feet along the perimeter of the
said Facility Site area to a point, thence;
2. North 32o20'17" East a distance of 4.31 feet along the same to a point,
thence;
3. ▇▇▇▇▇ ▇▇▇▇▇'▇▇" ▇▇▇▇ a distance of 22.03 feet along the same to a point,
thence;
4. North 30o48'33" East a distance of 0.55 feet along the same to a point,
thence;
5. ▇▇▇▇▇ ▇▇▇▇▇'▇▇" ▇▇▇▇ a distance of 30.24 feet along the same to a point,
thence;
6. South 30o48'33" West a distance of 30.23 feet along the same to a point,
thence;
7. ▇▇▇▇▇ ▇▇▇▇▇'▇▇" ▇▇▇▇ a distance of 30.52 feet along the same to a point,
thence;
8. South 30o48'33" West a distance of 13.79 feet along the same to a point,
thence;
9. ▇▇▇▇▇ ▇▇▇▇▇'▇▇" ▇▇▇▇ a distance of 9.74 feet along the same to a point,
thence;
10. South 30o48'33" West a distance of 107.85 feet along the same to a point,
thence;
EXH. A
11. North 59o11'27" West a distance of 20.80 feet along the same to a point,
thence;
12. South 30o48'33" West a distance of 85.62 feet along the same to a point,
thence;
13. ▇▇▇▇▇ ▇▇▇▇▇'▇▇" ▇▇▇▇ a distance of 28.29 feet along the same to a point,
thence;
14. South 30o48'33" West a distance of 82.39 feet along the same to a point,
thence;
15. North 59o11'27" West a distance of 57.01 feet along the same to a point,
thence;
16. North 30o48'33" East a distance of 13.49 feet along the same to a point,
thence;
17. North 59o11'27" West a distance of 51.01 feet along the same to a point,
thence;
18. North 30o48'33" East a distance of 16.72 feet along the same to a point,
thence;
19. North 59o11'27" West a distance of 41.34 feet along the same to a point,
thence;
20. North 30o48'33" East a distance of 18.65 feet along the same to a point,
thence;
21. North 59o11'27" West a distance of 123.57 feet along the same to a point,
thence;
22. North 30o48'33" East a distance of 163.89 feet to a point, thence;
23. ▇▇▇▇▇ ▇▇▇▇▇'▇▇" ▇▇▇▇ a distance of 6.58 feet to a point, thence;
24. ▇▇▇▇▇ ▇▇▇▇▇'▇▇" ▇▇▇▇ a distance of 10.27 feet along facility site area to a
point, thence;
25. ▇▇▇▇▇ ▇▇▇▇▇'▇▇" ▇▇▇▇ a distance of 117.09 feet along said facility site
area to a point, thence;
26. North 30o48'33" East a distance of 76.07 feet along the same to a point,
thence;
27. North 59o11'27" West a distance of 4.63 feet along the same to a point,
thence;
28. North 30o48'33" East a distance of 25.31 feet along the same to the Point
and Place of Beginning.
Containing: 1.380 Acres (60,095 Square Feet), more or less.
Being known as the Facility Site, on map entitled "Facility Site Within Parcel
"A", Long Island City, Queens, New York", prepared by GEOD Corporation, dated
April 22, 2004, as last revised May 24, 2004.
EXH. A
EXHIBIT B-1
to
Site Lease Agreement
--------------------
DESCRIPTION OF EASEMENTS
------------------------
A. The easements originally granted to the Ground Lessor pursuant to that
certain Supplemental (Ravenswood) Easement Agreement ("SREA"), dated as of
February 4, 2003, by and among Consolidated Edison Company of New York, Inc.,
Steam House Leasing, LLC and the Ground Lessor (the "SREA Easements"), which
agreement shall be recorded in the Queens County Register's Office immediately
prior to the Memorandum of Site Lease, as follows:
1. Installation, erection, construction, reconstruction, maintenance,
repair, rebuilding, modification, renovation, inspection, testing and operation
of a concrete "stack" and the concrete foundation on which it is constructed.
2. Installation, erection, construction, reconstruction, maintenance,
repair, rebuilding, modification, renovation, inspection, testing and operation
of a building to house the Continuous Emission Monitoring System "CEMS".
3. Installation, erection, construction, reconstruction, maintenance,
repair, rebuilding, modification, renovation, inspection, testing and operation
of an "Aqueous Ammonia Tank in Dike," as well as an area appurtenant thereto for
the installation, erection, construction, reconstruction, maintenance, repair,
rebuilding, modification, renovation, inspection, testing and operation of an
oil water separator.
4. Installation, erection, construction, reconstruction, maintenance,
repair, rebuilding, modification, renovation, inspection, testing and operation
of (A) a building to house a gas compressor and (B) lubricating oil containment
and storage tanks and systems, a hot gas scrubber, coalescing filter, recycling
cooler, fuel gas heater, related piping and electrical conduits.
5. Installation, erection, construction, reconstruction, maintenance,
repair, rebuilding, modification, renovation, inspection, testing and operation
of (A) an underground kerosene fuel line and (B) electric lines located in an
underground trench.
EXH. B-1
6. Installation, erection, construction, reconstruction, maintenance,
repair, rebuilding, modification, renovation, inspection, testing and operation
of a 12 foot wide underground common utility trench.
7. Installation, erection, construction, reconstruction, maintenance,
repair, rebuilding, modification, renovation, inspection, testing and operation
of an above grade export steam line.
8. Installation, erection, construction, reconstruction, maintenance,
repair, rebuilding, modification, renovation, inspection, testing and operation
of a "138 KV underground cable line".
9. Installation, erection, construction, reconstruction, maintenance,
repair, rebuilding, modification, renovation, inspection, testing and operation
of a "Sanitary Sewer Line".
10. Installation, erection, construction, reconstruction, maintenance,
repair, rebuilding, modification, renovation, inspection, testing and operation
of a "12" Fire Protection Loop".
11. Installation, erection, construction, reconstruction, maintenance,
repair, rebuilding, modification, renovation, inspection, testing and operation
of a "31G04 Feeder Breaker G4E," and appurtenant equipment (including, but not
limited to, appurtenant generator breakers, motor operated disconnect switches,
ground switches, voltage regulators, transformers, manually operated disconnect
switches, circuit breakers).
12. Installation, erection, construction, reconstruction, maintenance,
repair, rebuilding, modification, renovation, inspection, testing and operation
of a "Natural Gas Feeder Line".
B. The easements originally granted to the Ground Lessor as described in
Schedule 2.02(a)(5), Schedule 2.02(a)(8) and Schedule 2.03(3) of that certain
Amended and Restated Ravenswood Declaration of Easements Agreement ("DOE"),
dated June 18, 1999, by and among Consolidated Edison Company of New York, Inc.,
Steam House Leasing, LLC and the Ground Lessor (the "DOE Easements," and
collectively with the SREA Easements, the "Easements"), recorded in the Queens
County Register's Office on June 30, 1999 in Reel 5294, Page 2470, as follows:
EXH. B-1
1. An Easement over a portion of ▇▇▇▇▇▇ Substation for the maintenance,
repair, operation, inspection and replacement of electrical feeders ▇▇▇, ▇▇▇,
▇▇▇, ▇▇▇, ▇▇▇, and C2A.
2. An Easement over a portion of ▇▇▇▇▇▇ Substation for the maintenance,
repair, operation and inspection of the Discharge Tunnel.
3. An Easement for the operation, inspection, testing, repair, replacement
and maintenance of all steam piping downstream of the 2 6" revenue meters.
The Easements are depicted on the attached Survey prepared by GEOD Corporation,
dated April 22, 2004, as last revised May 24, 2004 (provided, however, that any
conflict between the description on the Survey and the actual location of the
Easement shall be resolved in favor of the actual location of the Easement).
EXH. B-1
EXHIBIT B-2
to
Site Lease Agreement
--------------------
DESCRIPTION OF ADDITIONAL EASEMENTS
-----------------------------------
I. A non-exclusive easement for installation, erection, construction,
reconstruction, maintenance, repair, rebuilding, modification, renovation,
inspection, testing and operation of a GIS Substation and related buildings as
shown on the Survey.
II. A non-exclusive easement for installation, erection, construction,
reconstruction, maintenance, repair, rebuilding, modification, renovation,
inspection, testing and operation of a 6 foot deep underground common utility
trench as shown on the Survey.
III. A non-exclusive easement for installation, erection, construction,
reconstruction, maintenance, repair, rebuilding, modification, renovation,
inspection, testing and operation of a 4" kerosene line as shown on the Survey.
IV. A non-exclusive easement for installation, erection, construction,
reconstruction, maintenance, repair, rebuilding, modification, renovation,
inspection, testing and operation of a 138kV underground cable from the Facility
to ▇▇▇▇▇▇ Substation as shown on the Survey.
V. A non-exclusive easement for the maintenance, repair, inspection,
testing and operation of water meter houses No. 1, 2 and 3 as shown on the
Survey and supply piping to the Facility.
VI. A non-exclusive easement for the maintenance, repair, inspection,
testing and operation of the Discharge Tunnel from the south side of the
Administration Building along west side of ▇▇▇▇▇▇ Substation to the southwest
corner of the property as shown on the Survey.
EXH. B-2
VII. A non-exclusive easement for the maintenance, repair, inspection,
testing and operation of the Black Start Gas Turbine and associated feeders to
▇▇▇▇ ▇ as shown on the Survey.
VIII. A non-exclusive easement for vehicular and pedestrian ingress to
and egress from the Facility over the existing road as shown on the Survey.
IX. A non-exclusive easement to maintain, repair, inspect, test and operate
any and all water pipelines, waste water and sewer pipelines, gas pipelines, and
other utility pipelines providing utilities to the Facility, together with an
easement for ingress and egress over and across the Retained Site as may be
reasonably necessary to use the foregoing facilities.
X. A non-exclusive easement for the installation, erection, construction,
reconstruction, maintenance, repair, rebuilding, modification, renovation,
inspection, testing and operation of a storm water discharge pipe.
XI. A non-exclusive easement for the installation, erection, construction,
reconstruction, maintenance, repair, rebuilding, modification, renovation,
inspection, testing and operation of a storm water discharge pipe from the
Facility over and across the Retained Site to the East River.
XII. A non-exclusive easement for the maintenance, repair, inspection,
testing and operation of all facilities which encroach onto the Retained Site as
shown on the Survey.
XIII. A non-exclusive easement for the maintenance, repair, inspection,
testing and operation of the Overhead Steam Line as shown on the Survey.
The Additional Easements are depicted on the attached Survey prepared by
GEOD Corporation, dated April 22, 2004, as last revised May 25, 2004 (provided,
however, that any conflict between the description on the Survey and the actual
location of an Easement shall be resolved in favor of the actual location of the
Easement).
EXH. B-2
EXHIBIT B-3
to
Site Lease Agreement
--------------------
DESCRIPTION OF ADDITIONAL PROPERTY
----------------------------------
1. Circulating Water System - discharge tunnel from south side of LIC Funding
Lease Area along west side of ▇▇▇▇▇▇ Substation to southwest corner of
property.
2. City Water Supply System - supply piping from ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇, ▇▇. ▇ and
No. 3 to Units 1, 2, and 3.
3. Electrical Feeders - 13.8kV light and power feeders ▇▇▇, ▇▇▇, ▇▇▇, ▇▇▇,
▇▇▇, and C2A for Unit 3.
4. Steam Supply from "A" House - piping to Units 1, 2, and 3.
5. Black Start Gas Turbine (GT-1) and associated feeders to Units 3.
EXH. B-3
EXH. C
EXHIBIT C
to
Site Lease Agreement
--------------------
DESCRIPTION OF RETAINED SITE
----------------------------
PARCEL I (RAVENSWOOD GENERATING STATION PARCEL A)
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All that certain plot, piece or parcel of land including land now or formerly
under water, situate, lying and being at Ravenswood in the Borough and County of
Queens, City and State of New York, bounded and described as follows:
BEGINNING at a point on the westerly side of ▇▇▇▇▇▇ Boulevard at the extreme
southeasterly end of the arc of a curve connecting the southerly side of 36th
Avenue with the westerly side of ▇▇▇▇▇▇ Boulevard;
RUNNING THENCE southerly along the westerly side of ▇▇▇▇▇▇ Boulevard, 981.30
feet to an angle point;
THENCE southerly still along the westerly side of ▇▇▇▇▇▇ Boulevard, 675.44 feet;
THENCE westerly along a line forming an interior angle of 96 degrees 49 minutes
42 seconds with the westerly side of ▇▇▇▇▇▇ Boulevard, 52.52 feet;
THENCE northerly along a line forming an interior angle of 90 degrees 56 minutes
05 seconds with the last mentioned course, 29.12 feet;
THENCE westerly along a line forming an interior angle of 270 degrees 54 minutes
55 seconds with the last mentioned course, 465.83 feet;
THENCE southerly along a line forming an interior angle of 270 degrees 04
minutes 03 seconds with the last mentioned course, 344.55 feet;
THENCE westerly along a line forming an interior angle of 86 degrees 35 minutes
25 seconds with the last mentioned course 149.56 feet to the United States
Pierhead and Bulkhead approved by the Secretary of War on June 30, 1947;
THENCE northerly along said pierhead and bulkhead line, 290.42 feet to an angle
point;
THENCE northerly still along said pierhead and bulkhead line, 1171.01 feet to an
angle point;
THENCE northerly still along said pierhead and bulkhead line, 466.21 feet to the
southerly side of 36th Avenue;
EXH. C
THENCE easterly along the southerly side of 36th Avenue, 12.07 feet to the angle
point;
THENCE easterly still along the southerly side of ▇▇▇▇ ▇▇▇▇▇▇ 38.45 feet to a
point of curvature;
THENCE easterly still along the southerly side of 36th Avenue on a curve bearing
to the left having a radius of 2061.00 feet, and a central angle of 08 degrees
56 minutes 17 seconds a distance of 321.51 feet to a point of tangency;
THENCE easterly still along the southerly side of 36th Avenue, 278.69 feet to
the extreme northwesterly end of the arc of the curve, first above mentioned,
connecting the southerly side of ▇▇▇▇ ▇▇▇▇▇▇ to the westerly side of ▇▇▇▇▇▇
Boulevard;
THENCE along the aforementioned arc of the curve bearing to the right having a
radius of 15.00 feet and a central angle of 90 degrees 00 minutes 00 seconds, a
distance of 23.56 feet to the westerly side of ▇▇▇▇▇▇ Boulevard at the point or
place of BEGINNING.
EXCEPTING the following described premises:
All that certain plot, piece or parcel of land, situate, lying and being at
Ravenswood Cogeneration Facility in Long Island City, the Borough and County of
Queens, City and State of New York, bounded and described as follows:
BEGINNING at the point of a newly constructed building within Parcel "A" having
coordinates of N277358.47 and E607681.66 in the New York State Plane Coordinate
System of 1927, which beginning point is distant the following three courses
from an angle point on the westerly side of ▇▇▇▇▇▇ Boulevard (75 feet wide),
which angle point is located at the intersection of 38th Avenue (75 feet wide),
as said Boulevard and Avenue are shown on Map #4297, titled "the Elimination of
▇▇▇▇ ▇▇▇▇▇▇ and 38th Avenue between ▇▇▇▇▇▇ Boulevard and the East River, along
with the layout of Sewer Easements", dated November 28, 1962 and adopted by the
Board of Estimate of the City of New York on July 25th, 1963 (Map #4297) which
map was filed at Topographical Bureau, Borough of Queens, City of New York on
August 9, 1963, thence;
A. North 25 degrees 02 minutes 04 seconds East a distance of 476.77 feet in
the right of way of ▇▇▇▇▇▇ Boulevard to a point, thence;
B. North 64 degrees 57 minutes 56 seconds West a distance of 214.15 feet at
a right angle from the previous course to a point being the original point
of beginning of the Con Edison Lease area, thence;
C. South 23 degrees 48 minutes 54 seconds West a distance of 9.07 feet to
the point of beginning of the Facility Site, running thence;
1. South 59 degrees 11 minutes 27 seconds East a distance of 43.51 feet
along the perimeter of the said Facility Site area to a point, thence;
EXH. C
2. North 32 degrees 20 minutes 17 seconds East a distance of 4.31 feet
along the same to a point, thence;
3. South 59 degrees 20 minutes 48 seconds East a distance of 22.03 feet
along the same to a point, thence;
4. North 30 degrees 48 minutes 33 seconds East a distance of 0.55 feet
along the same to a point, thence;
5. South 59 degrees 11 minutes 27 seconds East a distance of 30.24 feet
along the same to a point, thence;
6. South 30 degrees 48 minutes 33 seconds West a distance of 30.23 feet
along the same to a point, thence;
7. South 59 degrees 11 minutes 27 seconds East a distance of 30.52 feet
along the same to a point, thence;
8. South 30 degrees 48 minutes 33 seconds West a distance of 13.79 feet
along the same to a point, thence;
9. South 59 degrees 11 minutes 27 seconds East a distance of 9.74 feet
along the same to a point, thence;
10. South 30 degrees 48 minutes 33 seconds West a distance of 107.85 feet
along the same to a point, thence;
11. North 59 degrees 11 minutes 27 seconds West a distance of 20.80 feet
along the same to a point, thence;
12. South 30 degrees 48 minutes 33 seconds West a distance of 85.62 feet
along the same to a point, thence;
13. South 59 degrees 11 minutes 27 seconds East a distance of 28.29 feet
along the same to a point, thence;
14. South 30 degrees 48 minutes 33 seconds West a distance of 82.39 feet
along the same to a point, thence;
15. North 59 degrees 11 minutes 27 seconds West a distance of 57.01 feet
along the same to a point, thence;
16. North 30 degrees 48 minutes 33 seconds East a distance of 13.49 feet
along the same to a point, thence;
17. North 59 degrees 11 minutes 27 seconds West a distance of 51.01 feet
along the same to a point, thence;
18. North 30 degrees 48 minutes 33 seconds East a distance of 16.72 feet
along the same to a point, thence;
EXH. C
19. North 59 degrees 11 minutes 27 seconds West a distance of 41.34 feet
along the same to a point, thence;
20. North 30 degrees 48 minutes 33 seconds East a distance of 18.65 feet
along the same to a point, thence;
21. North 59 degrees 11 minutes 27 seconds West a distance of 123.57 feet
along the same to a point, thence;
22. North 30 degrees 48 minutes 33 seconds East a distance of 163.89 feet
to a point, thence;
23. South 64 degrees 14 minutes 53 seconds East a distance of 6.85 feet to
a point, thence;
24. South 60 degrees 36 minutes 23 seconds East a distance of 10.27 feet
along Facility Site area to a point, thence;
25. South 59 degrees 11 minutes 27 seconds East a distance of 117.09 feet
along said Facility Site area to a point, thence;
26. North 30 degrees 48 minutes 33 seconds East a distance of 76.07 feet
along the same to a point, thence;
27. North 59 degrees 11 minutes 27 seconds West a distance of 4.63 feet
along the same to a point, thence;
28. North 30 degrees 48 minutes 33 seconds East a distance of 25.31 feet
along the same to the point or place of beginning.
PARCEL II (▇▇▇▇▇▇ OIL TANK FARM PARCEL D):
------------------------------------------
All that certain plot, piece or parcel of land including land now or formerly
under water, situate, lying and being at Ravenswood in the Borough and County of
Queens, City and State of New York, bounded and described as follows:
BEGINNING at a point on the northerly side of ▇▇▇▇ ▇▇▇▇▇▇ distant 11.10 feet
westerly from the extreme southwesterly end of the arc of a curve connecting the
northerly side of 36th Avenue with the westerly side of ▇▇▇▇▇▇ Boulevard;
RUNNING THENCE westerly along the northerly side of 36th Avenue, 267.59 feet to
a point of curvature;
THENCE westerly still along the northerly side of 36th Avenue on a curve bearing
to the right having a radius of 1934.00 feet, and a central angle of 00 degrees
30 minutes 51 seconds a distance of 17.36 feet to a point of tangency;
EXH. C
THENCE northwesterly along a line forming an interior angle of 119 degrees 05
minutes 28 seconds with the tangent to the preceding course (which tangent forms
the aforesaid point of tangency) 18.81 feet;
THENCE northerly along a line forming an interior angle of 151 degrees 53
minutes 55 seconds with the last mentioned course, 71.37 feet;
THENCE easterly along a line forming an interior angle of 89 degrees 33 minutes
57 seconds with the last mentioned course, 160.85 feet;
THENCE southerly along a line forming an interior angle of 89 degrees 47 minutes
41 seconds with the last mentioned course, 62.83 feet;
THENCE easterly along a line forming an interior angle of 269 degrees 54 minutes
41 seconds with the last mentioned course, 133.82 feet;
THENCE southerly along a line forming an interior angle of 90 degrees 22 minutes
41 seconds with the last mentioned course, 24.65 feet to the northerly side of
▇▇▇▇ ▇▇▇▇▇▇ at the point or place of BEGINNING.
EXH. C
EXHIBIT D
to
Site Lease Agreement
--------------------
THE SURVEY
----------
EXH. D