Exhibit 10.15
Lease of Tinian Land
382
================================================================================
(FOR RECORDER'S USE ONLY)
LEASE
This Lease (the "Lease"), is made and entered into as of the ____ day
of __________, 1998 by and between the Commonwealth Utilities Corporation, a
Commonwealth of the Northern Mariana Islands public corporation, hereinafter
referred to as "Lessor", and Telesource CNMI, Inc., a Commonwealth of the
Northern Mariana Islands private corporation, hereinafter referred to as
"Lessee".
Recitals
Whereas, Lessor is the current owner of a fee interest in certain real
property (the "Premises") located in Tinian, Commonwealth of the Northern
Mariana Islands; and
Whereas, in 1997, Lessor and Lessee entered into a contract, more
particularly described as Contract No. CUC-PG-97-C057, pursuant to which Lessee
agreed to build a fully operational 10 Megawatt ("MW") expandable Power Plant
(the "Plant") on the Island of Tinian; and
Whereas, Lessor desires to have the Plant built on the Premises and
to ultimately own and operate the Plant; and
Whereas, Lessee desires and is willing, in accordance with Contract No.
CUC-PG-97-C057, to design and construct the Plant; procure all necessary
equipment and materials; initially own, maintain and operate the Plant; provide
for training and start-up of the Plant; and transfer ownership of the Plant to
Lessee;
WITNESSETH:
383
NOW THEREFORE, In consideration of the rent hereinafter reserved and of
the covenants herein contained to be observed and performed, Lessor does hereby
demise and let unto Lessee, and Lessee does hereby lease from Lessor, the real
property described in section 1:
1) Description of Premises.
The Premises consists of improved and/or unimproved real property,
lying and being situated in Tinian, Commonwealth of the Northern Mariana
Islands, more particularly hereinafter described, together with Lessor's
easements and appurtenances in adjoining and adjacent land, highways, roads,
streets, lanes, whether public or private, reasonably required for the
installation, maintenance, operation and service of sewer, water, gas, power and
other utility lines and for driveways and approaches to and from abutting
highways or streets for the use and benefit of the following described parcel(s)
of real property, including any improvements now or hereinafter situated
thereon:
▇▇▇ ▇▇. ▇▇▇ T 01, containing an area of 20,000 square meters,
more or less, as shown on DLS Check No. 082 T 00, filed with
the Commonwealth Recorder's Office as File No. 98-894 on
March 30, 1998.
The above-described parcel(s) of real property, together with any
existing improvements and/or improvements subsequently erected thereon during
the term of this Lease and the appurtenances and other incidents associated
therewith are collectively referred to in this Lease as the "Premises".
2) Lessor's Warranties of Title.
Lessor represents, warrants and covenants that it owns the Premises and
possesses all right and authority to enter into this Lease for the purposes
set forth herein.
3) Lessor's Warranty of Quiet Enjoyment.
Lessor covenants and agrees that Lessor shall, upon the commencement
date of the term of this Lease as hereinafter set forth, place Lessee in quiet
possession of the Premises and that Lessee, upon paying the rent and other
charges herein provided for and observing and keeping the covenants, conditions,
and terms of this Lease on Lessee's part to be kept or performed, shall lawfully
and quietly hold, occupy and enjoy the Premises during the term of this Lease
without hindrance or molestation by Lessor or any other person claiming by,
through or under Lessor.
384
4) Incorporation by Reference.
The terms and conditions of Contract No. CUC-PG-97-C057 are hereby
incorporated by reference into this Lease with the same force and effect as if
fully set forth herein.
5) Term.
The term of this Lease shall commence (the "Commencement Date") upon
execution of this Lease and shall terminate on the date that Lessee turns over
all title and interest in the Plant to Lessor in accordance with the provisions
of Contract No. CUC-PG-97-C057. Under no circumstances, however, shall the term
of this Lease continue beyond a period of twenty-five (25) years from the
Commencement Date.
6) Rental and Time for Payment of Rental.
Upon execution of this Lease, Lessee shall pay Lessor One Hundred
Dollars ($100.00) as rent for the entire term of this Lease. No other sums shall
be due and owing by Lessee to Lessor except as stated herein.
7) Utilities and Charges.
Lessee will pay all charges for water, electricity, telephone and other
utilities used upon the Premises during the term of this Lease.
8) Fire and Casualty Insurance.
Lessee shall keep all improvements erected on the Premises insured
against loss or damage by fire or other casualty in accordance with Section 17.4
of Contract No. CUC-PG-97-C057
9) Use of Premises.
Lessee intends to erect a fully operational 10 MW expandable Power
Plant on the Premises.
385
10) Removal of Improvements, Soil, Etc. Not to Constitute Waste;
Crossing Boundaries.
Lessee shall have the right at any time during the term of this Lease
to alter, demolish or remove any and all improvements on the Premises so long as
such action does not violate the terms of Contract No. CUC-PG-97-C057. Lessee
shall also have the right in connection with any development of the property to
remove vegetation and to excavate and to remove sand, soil, and other materials
from the Premises. In no event shall any such action constitute waste and the
Lessor hereby releases Lessee from any obligation to restore the Premises to the
condition existing upon the commencement date of this Lease. Lessee may also
build, alter, demolish or remove improvements which cross one or more boundary
lines of the Premises, provided that Lessee first obtains any required
governmental or regulatory approval. Lessor agrees to join, assist and cooperate
with Lessee in applying for any such required approval at Lessee's expense.
11) Assignability and Subleasing - Consent Required
Lessee may not assign this Lease or any part hereof nor sublet all or a
portion of the Premises without the written consent of the Lessor. Such consent
when requested shall not be unreasonably withheld or delayed.
12) Condemnation.
If the entire Premises shall be taken by any lawful authority under the
power of eminent domain then this Lease shall terminate. Eminent domain
proceedings resulting in the condemnation of a part of the Premises, but leaving
the remaining Premises usable by Lessee for the purposes described herein, will
not terminate this Lease unless Lessee, at its option, terminates the Lease by
giving written notice of termination to Lessor. Any condemnation award shall be
apportioned between Lessor and Lessee as may be provided by law at the time of
the execution of this Lease, except that Lessee shall be entitled to the entire
award made with respect to the improvements on the Premises.
13) Unavoidable Delay--Force Majeure.
If either party shall be delayed or prevented from the performance of
any act required by this Lease by reason of acts of God, strikes, lockouts,
labor troubles, inability to procure materials, or other cause, without fault
and beyond the reasonable control of the party obligated (financial inability
excepted) performance of such act shall be excused for the period of the delay;
provided, however, nothing in this section shall excuse Lessee from the prompt
payment of any rental or other charge required of Lessee except as may be
expressly provided elsewhere in this Lease.
386
14) Termination.
If Contract No. CUC-PG-97-C057 is terminated for any reason, then this
Lease shall terminate as well.
15) Gender.
The use of any gender shall include any and all genders and the use of
any number shall be construed as singular or plural, as the case may be.
16) Paragraph Headings.
The headings of paragraphs herein are inserted only for convenience and
reference and shall in no way define or limit the scope or intent of any
provision of this Lease.
17) Successors and Assigns.
This Lease shall inure to the benefit of and be binding upon all of the
parties hereto and their respective successors and assigns.
18) Counterparts.
This Lease may be executed in several counterparts each of which shall
be deemed an original but all of which shall constitute one and the same
agreement, which shall be binding upon all parties hereto notwithstanding that
all of the parties are not signatories to the same counterpart.
19) Computation of Time.
The time in which any act provided by this Lease is to be done is
computed by excluding the first day and including the last, unless the last day
is a Saturday, Sunday, or holiday, and then it is also excluded. The term
"holiday" shall mean all holidays specified by the laws of the Commonwealth of
the Northern Mariana Islands or declared by executive authority.
387
20) Conditions and Covenants.
All the provisions of this Lease shall be deemed as running with the
land, and construed to be "conditions" as well as "covenants" as though the word
specifically expressing or imparting covenants and conditions were used in
separate provisions. Whenever in this Lease any words of obligation or duty are
used in connection with either party, such words shall have the force and effect
as though framed in the form of express covenants on the part of the party
obligated.
21) No Waiver of Breach.
No failure by either Lessor or Lessee to insist upon the strict
performance by the other of any covenant, agreement, term, or condition of this
Lease or to exercise any right or remedy consequent upon a breach thereof shall
constitute a waiver of any such breach or such covenant, agreement, term, or
condition. No waiver of any breach shall affect or alter this Lease but each and
every covenant, condition, agreement and the term of this Lease shall continue
in full force and effect with respect to any other then existing or subsequent
breach.
22) Time of the Essence.
Time is of the essence of this Lease, and of each provision.
23) Entire Agreement.
This Lease, together with any exhibits or documents identified or
referred to herein, contains the entire agreement of the parties with respect to
the matters covered herein as of the date of execution hereof, and no other
agreement, statement, or promise made by any party, or to any employee, officer,
or agent of any party prior in time to the date of this Lease shall be binding
or valid.
24) Attorneys' Fees.
In the event either party shall bring any action or proceeding for
damages on alleged breach of any provisions of this Lease, to recover rents, or
to enforce, protect or establish any right or remedy hereunder, then the
prevailing party shall be entitled to recover as a part of such action or
proceeding, reasonable attorneys' fees incurred and court costs.
388
25) Modification.
This Lease is not subject to modification except in writing, duly
signed by the parties to be charged thereunder.
26) Effect of Partial Invalidity/Severability.
If for any reason whatsoever any of the provisions herein shall be
unenforceable or ineffective, the same shall be deemed severable from the
remainder hereof and shall in no way impair the validity of this Lease, and the
remaining provisions shall be and otherwise remain in full force and effect.
27) Governing Law.
The laws of the Commonwealth of the Northern Mariana Islands shall
govern the validity, construction and effect of this Lease.
28) Remedies Cumulative.
The various rights, options, elections or remedies of Lessor and
Lessee, respectively, contained in this Lease shall be cumulative and no one of
them shall be construed as exclusive of any other, or of any other right,
priority or remedy allowed or provided for by law or in equity and not expressly
waived in this Lease.
29) Covenant to Execute Additional Instruments.
The parties agree to execute and deliver any instruments in writing
necessary to carry out the agreement, term, condition, or assurance in this
Lease whenever the occasion shall arise and request for such instruments shall
be made.
30) No Third Party Beneficiary.
Except as otherwise provided elsewhere herein, this Lease and all
rights hereunder are intended for the sole benefit of the parties hereto and
shall not imply or create any rights on the part of, or obligations to, any
other entity or individual not a party to this Lease.
389
IN WITNESS WHEREOF, the parties have executed this Lease as of the day
and year first above written.
LESSOR:
COMMONWEALTH UTILITIES CORPORATION
By:
Name:
Its:
LESSEE:
TELESOURCE CNMI, INC.
By:
Name:
Its:
390
A C K N O W L E D G M E N T S
COMMONWEALTH OF THE )
NORTHERN MARIANA ISLANDS )
) ss:
SAIPAN )
ON THIS day of , 19 , before me, a notary public in and for the
Commonwealth of the Northern Mariana Islands, personally appeared
________________, known to me to be the of the Commonwealth Utilities
Corporation, whose name is subscribed to the foregoing instrument, and
acknowledged to me that she executed the same for the purposes and
considerations contained therein.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year first above written.
(official signature and seal of notary)
COMMONWEALTH OF THE )
NORTHERN MARIANA ISLANDS )
) ss:
SAIPAN )
ON THIS day of , 19 , before me, a notary public in and for the
Commonwealth of the Northern Mariana Islands, personally appeared , known to me
to be the of Telesource CNMI, Inc., whose name is subscribed to the foregoing
instrument, and acknowledged to me that he executed the same on behalf of said
corporation, in such capacity, being fully authorized to do so, and for the
purposes and considerations contained therein.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year first above written.
(official signature and seal of notary)
391