NON-EXCLUSIVE CO2 FACILITY SITE LEASE AGREEMENT EXHIBIT “B” TO CARBON DIOXIDE PURCHASE AND SALE AGREEMENT
Exhibit 10.1
NON-EXCLUSIVE CO2 FACILITY
SITE LEASE AGREEMENT
EXHIBIT “B” TO CARBON DIOXIDE PURCHASE AND SALE AGREEMENT
NON-EXCLUSIVE CO2 FACILITY SITE LEASE AGREEMENT
THIS NON-EXCLUSIVE CO2 FACILITY SITE LEASE AGREEMENT (“Agreement”) is made as of
this 11th day of August 2010 by and between CARDINAL ETHANOL (hereinafter called “Lessor”) and EPCO
Carbon Dioxide Products, Inc. (hereinafter called “Lessee”).
1. Lease Site. Lessor, subject to the terms and conditions hereof, hereby grants a
non-exclusive right of entry and Lease to Lessee to install, maintain and operate Lessee’s
CO2 facility (the “CO2 Facility”) at the site described in the Site Survey
attached hereto as Attachment 1 having a street address of 0000 X. 000 X, Xxxxx Xxxx, Xxxxxxx
00000. Lessor makes no warranty or representation that the Site is suitable for the use described
in Paragraph 2 of this Agreement, it being assumed that Lessee has satisfied itself thereof.
Lessor also grants to Lessee the non-exclusive right to develop the land and construct on that land
its CO2 Facility, at Lessee’s sole cost and expense, provided that (i) Lessee or such
providers will submit construction plans for such development and installation to Lessor; (ii) no
construction will take place without Lessor’s prior approval, which approval shall not be
unreasonably withheld, delayed or conditioned, but such approval shall not suggest or imply that
Lessor has obtained or made independent review of such plans, that Lessor takes any responsibility
for the plans or the Facility after it is constructed, it being understood that all such liability
is solely the Lessee’s; and (iii) if any part of Lessor’s facilities or property is damaged as a
result of such construction, Lessee, at its sole cost and expense, will promptly repair the damage
and restore the damaged portion of the CO2 Facility or facilities to substantially the
same condition that it was in prior to the commencement of construction by Lessee.
2. Use of Site. Subject to the availability thereof, and subject to any regulatory
requirements or limitations, Lessee shall use the Equipment to produce, market and sell
food/beverage grade CO2 from the CO2 that Lessee purchases from Lessor under
the Sale and Purchase Agreement dated February 1, 2010, of which this exhibit is attached thereto
and incorporated therein by this reference. The Equipment may be used solely for the purpose of
producing, marketing and selling food/beverage grade CO2. Lessee’s activities and
facilities shall be authorized for this location by any applicable local state or federal governing
entity or regulating body. The legal description of said Site is provided by Lessor and is
attached hereto and made a party hereof as Attachment 2.
3. Lease Term.
(a) The term of this Agreement shall be coterminous with the term of that certain Carbon
Dioxide Purchase and Sale Agreement dated March 8th, 2010 to which this Agreement is attached as
Exhibit B.
(b) This Agreement creates a non-exclusive Lease only and Lessee acknowledges that Lessee
does not and shall not claim at any time any interest or estate of any kind or extent whatsoever
in the real property by virtue of this Agreement or Lessee’s use of the Site. However, EPCO
shall own all plant equipment and buildings that EPCO attaches to the real property and at no
time shall the same become a fixture or part of the realty owned by the Lessor. In connection
with the foregoing, Lessee further acknowledges that in no event shall the relationship between
Lessor and Lessee be deemed to be a so-called Lessor-Lessee relationship and that in no event
shall Lessee be entitled to avail itself of any rights afforded to Lessees under the laws of the
state in which the CO2 Facility is located.
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| CARDINAL ETHANOL | Non-Exclusive CO2 Facility |
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| EPCO Carbon Dioxide, Products, Inc. |
4. Lease Fees.
(a) Commencing upon the Agreement Commencement Date, Lessee shall pay to Lessor an annual
Lease fee of one hundred and 00/100 Dollars ($100.00) (the “Annual Fee”), for each year this
facility Lease agreement is in effect.
(b) Lessor shall pay any and all property taxes the Site is subject to.
(c) In addition to the Annual Fee, Lessee shall pay any and all use, sales or other tax
(excepting income tax) payable or which may become payable by Lessor as a result of Lessee’s use
of property covered by the lease.
5. Conditions of Lease.
(a) Lessee shall install, maintain, repair, operate, and remove its Equipment during the
term of this Agreement in compliance with recognized industry standards, and will comply with
the requirements of any insurance carrier for the CO2 Facility and with all present
and future rules and regulations imposed by any local, state, or federal authority having
jurisdiction with respect thereto (including, without limitation, the rules and regulations of
the OSHA, EPA, DNR, if applicable).
(b) Upon completion of the installation of the Equipment and prior to conducting any
business from within the CO2 Facility, Lessee shall provide Lessor with “as built”
Plans showing the location of all Equipment, including all cables and conduit.
(c) All work performed at the Site and/or the CO2 Facility in connection with the
installation, modification, change, and removal of Lessee’s Equipment shall be performed at
Lessee’s sole cost and expense in a good, safe and workmanlike manner. All contractors and
subcontractors shall be leased, bonded and insured. Lessee shall maintain workmen’s
compensation insurance in form and amount as is required by law during all such periods of
construction and work.
(d) Lessee shall not use, generate, store or dispose of any Hazardous Substances in or
around the CO2 Facility except in compliance with applicable environmental laws,
rules, ordinances, regulations, or rulings nor cause or permit to occur any violation of any
environmental law and shall not permit its employees, agents, contractors or invitees to violate
any environmental laws. If Lessor, any authority or any third party demands that a clean-up
plan be prepared and that a clean-up be undertaken because of any deposit, spill, discharge, or
other release of Hazardous Substances in violation of applicable environmental laws, rules,
ordinances, regulations or rulings that occurs as a result of Lessee’s use or occupancy of the
Site, then Lessee shall, at Lessee’s own expense, prepare and submit the required plans and all
related bonds and other financial assurances, and Lessee shall carry out all such clean-up plans
following their approval by Lessor and all applicable authorities. Lessee shall promptly
provide all information regarding the use, generation, storage, transportation, or disposal of
Hazardous Substances that is requested by Lessor. If Lessee fails to fulfill any duty imposed
under this Section 5(d) within ten (10) days (or such shorter time dictated by any event of an
emergency nature) of receipt of written notice from Lessor, Lessor may do so and Lessee shall be
responsible for costs thereof, if any; and, in such case, Lessee shall cooperate with Lessor in
order to prepare all documents necessary or appropriate to determine the applicability of the
environmental laws to the Site and Lessee’s use thereof, and for compliance therewith, and
Lessee shall execute all documents promptly upon Lessor’s request. No such action by Lessor and no attempt made by Lessor to
mitigate damages under any environmental law shall constitute a waiver of any of Lessee’s
obligations under this Section 5(d). Lessee’s obligations and
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| EPCO Carbon Dioxide, Products, Inc. |
liabilities under this Section
5(d) shall survive the expiration or early termination of this Agreement. Lessee shall indemnify, defend, protect
and hold harmless Lessor, and its officers, directors, trustees, beneficiaries, shareholders,
partners, agents and employees from all fines, suits, procedures, claims, and actions of every
kind, and all costs associated therewith (including attorneys’ and consultants’ fees) arising
out of or in any way connected with (1) any deposit, spill, discharge, or other release of
Hazardous Substances in violation of applicable environmental laws, rules, ordinances,
regulations or rulings that arises at any time from Lessee’s, its employees’, agents’,
contractors’, or invitees’ use or occupancy of the Site and/or the CO2 Facility; (2)
any failure to provide all information, make all submissions and take all steps required by all
authorities under the environmental laws; and (3) Lessee’s, its employees’, agents’,
contractors’, or invitees’ breach of this subparagraph, whether or not Lessee has acted
negligently with respect to such Hazardous Substances. As used in this subparagraph, the term
“Hazardous Substances” means any substance, waste or other material considered hazardous,
dangerous or toxic under any state, local or federal law, code, ordinance or regulation.
(e) In no event shall any mechanic’s materialmen’s or other lien be filed against Lessor,
the CO2 Facility, the land on which the CO2 Facility is located (“Land”)
or Lessee for work claimed to have been done for, or materials claimed to have been furnished
to, Lessee. In the event such lien is nevertheless filed or is threatened, Lessee shall
discharge such lien within thirty (30) days thereafter, at Lessee’s sole cost and expense, by
the payment thereof or by filing any bond required by law, and Lessee hereby agrees to indemnify
and save Lessor harmless from any reasonable legal expenses which Lessor actually incurs as a
result of the filing of the lien or notice of intent and/or from any loss or liability incurred
as a result of any such lien threatened or filed against Lessor, the CO2 Facility,
the Land. If Lessee shall fail to discharge any such mechanics’ or materialmen’s lien, Lessor
may, at its option, after providing Lessee with ten (10) days prior written notice discharge the
same and treat the cost thereof as an Additional Fee payable with the next installment of the
Base Fee becoming due; it being hereby expressly covenanted and agreed that such discharge by
Lessor shall not be deemed to waive or release the default of Lessee in not discharging the
same. It is understood and agreed by Lessor and Lessee that all work performed by or on behalf
of Lessee in or around the CO2 Facility shall be conducted on behalf of Lessee, and
Lessor shall have no liability with respect thereto. It is further understood and agreed that
in the event Lessor shall give its written consent to Lessee’s performing of any such work, such
written consent shall not be deemed to be an agreement or consent by Lessor to subject Lessor’s
interest in the CO2 Facility or the Land to any mechanics’ or materialmen’s liens
which may be filed in respect of any such work made by or on behalf of Lessee.
6. Lessee
Non-Interference. Lessor shall provide to Lessee 7 day/week, 24 hour access
to the Site for the installation, maintenance and operation of the CO2 Facility. All
access to the Site shall be subject to the continuing control of, and reasonable security and
safety procedures established by, Lessor.
7. Responsibilities of Lessee.
(a) Lessor shall not provide any equipment or wiring to Lessee. All expenses for
installation, maintenance, operation and removal of the Equipment on Lessee’s side of the
matchpoint shall be borne by Lessee. Any damage caused by Lessee in the installation,
maintenance, operation and removal of the Equipment shall be repaired at Lessee’s expense.
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| EPCO Carbon Dioxide, Products, Inc. |
(b) Lessee, at its sole cost and expense, shall be responsible for the maintenance of its
Equipment and improvements, if any, at the Site and shall keep the Equipment in the Site in good
order, repair and condition throughout the term of this Agreement and shall promptly and
adequately repair any damage to the Site and/or the CO2 Facility caused by Lessee or
the Equipment by restoring the damaged area(s) to substantially the condition they existed in
prior to the damage. Lessee shall not create any nuisance, interfere with, annoy or disturb any
other third party or Lessor. Lessor shall have no obligation to obtain Leases for Lessee, or to
maintain, insure, operate or safeguard Lessee’s Equipment. The Equipment, and any other
personal property at the Site and/or the CO2 Facility belonging to Lessee, shall be
there at the sole risk of Lessee, and Lessor shall not be liable for damage thereto or theft,
misappropriation or loss thereof unless caused by the acts or omissions of Lessor, their
respective agents, employees, contractors, trustees, shareholders or directors.
(c) Lessee shall keep and maintain in first-class order, condition and repair (including any
such replacement, periodic painting, and restoration as is required for that purpose) the Site and
the CO2 Facility (collectively, the “Premises”) and every part thereof and any and all
appurtenances hereto located, including, but without limitation, the exterior and interior portion
of all doors, door checks, windows, all plumbing and sewage facilities within the Premises,
fixtures, heating and air conditioning and electrical systems, sprinkler systems, walls, floors and
ceilings, and shall make any repairs required to be made in the Premises due to burglary of the
Premises or other illegal acts on the Premises or any damage to the Premises caused by a strike
involving the Lessee or its employees. Lessee shall replace, at its expense, any and all glass in
and about the Premises which is damaged or broken from any cause whatsoever except due to the gross
negligence or willful misconduct of Lessor, its agents or employees. Such maintenance and repairs
shall be performed with due diligence, lien-free and in a first-class and workmanlike manner, by
Leased contractor(s) which are selected by Lessee. In accordance with any applicable local
regulations, and at its own expense, Lessee shall: (1) place any rubbish or other matter outside
the building or in the Premises only in such containers as are authorized from time to time by
Lessor and pay the cost of removal of all of Lessee’s refuse or rubbish. If Lessor shall provide
or designate a service for picking up refuse or garbage, Lessee shall use the same at its sole
cost; (2) see that there are no undue accumulations of garbage and refuse; keep the same in proper
containers on the interior of the Premises, until called for collection; remove the same at
Lessee’s expense; (3) keep the outside areas immediately adjoining the Premises clean and free from
ice and not place or permit any rubbish, obstructions or merchandise in such areas; and (4) keep
the Premises clean, orderly, sanitary and free from objectionable noise, odors, insects, vermin and
other pests. Lessee agrees not to make or permit any objectionable noise or odor to emit from the
Premises unless the same is in compliance with all state, federal and local laws and approved in
writing in advance by Lessor.
d. Provided that Lessee is not in default in the performance of its obligations hereunder, at
the expiration of this Agreement or earlier termination thereof, Lessee shall remove all of
Lessee’s Equipment at Lessee’s sole cost and expense in accordance with the terms of this
Agreement. Any and all removal of Lessee’s Equipment shall be performed (i) by a qualified, Leased
and bonded contractor previously approved by Lessor and in accordance with a previously approved
removal plan, such approval not to be unreasonably withheld, delayed or conditioned and (ii) in a
workmanlike manner, without any interference, damage or destruction to any other equipment,
structures or operations of the Lessor, or any other equipment of others thereon. If Lessee fails
to remove such Equipment within 180 days of the expiration or earlier termination of this
Agreement, the Lessor may remove and dispose of such Equipment at Lessee’s sole cost and expense.
Any and all interference or damage caused to the Site, Lessor’s equipment or equipment of other
Lessees by such removal shall be repaired or eliminated by Lessee at Lessee’s sole cost and
expense. If Lessee fails to make such repairs within ten (10) days after the occurrence of such
damage, injury or interference, Lessor may upon ten (10) days prior written perform all the
necessary repairs at Lessee’s cost and expense, and such sum shall be immediately due upon the
rendering of an invoice as an additional fee hereunder. Upon the
termination or expiration of this Agreement, Lessee must deliver the Site to Lessor free of
any and all Hazardous Materials brought onto the site by Lessee.
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8. Lessee Indemnification. Lessee agrees to indemnify, defend and hold Lessor, its
agents, trustees, employees, shareholders, directors, harmless from any and all damages and all
costs, including reasonable attorneys’ fees, for any damage done to Lessor as a result of the
installation, operation, maintenance, repair or removal of Lessee’s Equipment or other
improvements. Lessee hereby assumes the risk of the inability to operate as a result of any
structural or power failures at the Site and/or the CO2 Facility or failure of Lessee or
Lessee’s Equipment for any reason whatsoever and agrees to indemnify and hold Lessor harmless from
all damages and costs of defending any claim or suit for damages of any kind including business
interruption (and attorney’s fees) asserted against Lessor by reason of such failure unless such
damages and costs are caused by the acts, or omissions of Lessor, and its respective agents,
employees, contractors, trustees, shareholders and directors. In no event shall Lessor be liable
under this Agreement for any consequential, punitive, indirect or other extraordinary damages.
9. Lessee’s Liability if Increases in Assessed Value of Lease Site. Lessee shall be
responsible for the declaration and payment of any applicable taxes or assessments against the
personal property of Lessee located in or around the site. Lessee hereby acknowledges that the
existence of Lessee’s Equipment and other improvements at the Site may result in an increase in the
assessed value of the Site. Lessee agrees to reimburse Lessor, upon receipt of documentation
reasonably satisfactory to Lessee showing that Lessee’s Equipment or Lessee’s other improvements
caused an increase in the assessed value of the Site, (subject to Lessee having the right to
obtain, on Lessor’s behalf, an exemption for the same), for Lessee’s proportionate share of any
increases in the real estate taxes payable by Lessor as a consequence of the increase in assessed
valuation. Lessor hereby agrees to cooperate with Lessee, at Lessee’s sole cost and expense, to
obtain an abatement of any such increased assessment.
10. Notices. All notices required to be given hereunder shall be deemed to be duly
given in writing either by delivery or by certified or registered mail, return receipt requested,
at the following addresses or at such other address as may be designated in writing by either
party:
| If to Lessor: | CARDINAL ETHANOL | |||
| 0000 X. 000 X | ||||
| Xxxxx Xxxx, XX 00000 | ||||
| If to Lessee: | EPCO Carbon Dioxide Products, Inc. | |||
| 0000 Xxxxxx Xxxxxx | ||||
| Xxxxxx, Xx 00000 | ||||
| Telephone: (000) 000-0000 | ||||
| FAX: (000) 000-0000 |
Notice given by mail shall be deemed given three (3) calendar days after the date of mailing
thereof. If Notice is given by an overnight carrier that maintains records of delivery, then
Notice shall be deemed given one business day after delivery to a nationally recognized overnight
delivery service (e.g. Federal Express, Airborne Express, etc.).
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11. Lessee’s Default and Lessor’s Remedies.
(a) Each of the following shall be deemed a breach and default of this Agreement (each of
which individually or collectively is referred to as a “Default”): (i) Lessee’s failure to pay
the Annual Base Fee, any additional fees or other payments or sums due hereunder; (ii) Lessee’s abandonment
of either the Equipment or that portion of the Site upon which the Equipment is installed; (iii)
any case, proceeding, or other action under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors,
seeking to have an order for relief entered with respect to Lessee, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with
respect to Lessee or Lessee’s debts and obligations; (iv) the making by Lessee of any assignment
or any other arrangement for the general benefit of creditors under any state statute; (v) the
breach of or default under any of the terms, conditions or covenants contained herein required
to be performed by Lessee; or (vi) Lessee’s failure to abide by any term of the CO2
Sale and Purchase Agreement that the parties execute.
(b) In the case of any Default, Lessor shall be entitled, at Lessor’s option after thirty
(30) days written notice to Lessee and Lessee’s continued failure to cure the default within
said period of written notice, to: (i) terminate this Agreement, Lessee shall remain liable for
all fees, additional fees and other sums due under this Agreement through the effective date of
termination, (ii) remove all of Lessee’s Equipment, improvements or personal property,
including, but not limited to, all Equipment located at the Site, at Lessee’s sole cost and
expense; or (iii) to disconnect power to the Site and/or to Lessee’s Equipment. Any termination
of this Agreement shall terminate the Carbon Dioxide Purchase and Sale Agreement. In addition to
and not in lieu of the foregoing or any other remedies, in the event that Lessor, by reason of
any Default, incurs any costs or expenses on behalf of Lessee or in connection with Lessee’s
obligations hereunder, Lessee shall reimburse Lessor for such sums, as an additional fee due
hereunder within thirty (30) days of Lessor’s rendering of an invoice to Lessee.
(c) If Lessee fails to perform any covenant or observe any condition to be performed or
observed by Lessee hereunder or fails to make any payment to any third party, Lessor may, but
shall not be required to, on behalf of Lessee at Lessee’s cost and expense perform such covenant
and/or take such steps as Lessor may deem necessary or appropriate upon ten (10) days prior
written notice, and in such case Lessor shall have the right to all costs and expenses incurred
by Lessor in so doing, including reasonable attorneys’ fees, which shall be paid by Lessee to
Lessor within thirty (30) days of receipt of a written invoice from Lessor, plus interest
thereon at the annual rate of eighteen percent (18%). Lessor’s exercise of its right under this
subparagraph shall be in addition to and not in lieu of nor shall in any way prejudice or waive
any rights Lessor might otherwise have against Lessee by reason of Lessee’s Default.
(d) Lessor’s rights and remedies set forth in this Agreement are cumulative and in addition
to Lessor’s rights and remedies at law or in equity, including those available as a result of
any anticipatory breach of this Agreement. Lessor’s exercise of any right or remedy shall not
prevent the concurrent or subsequent exercise of any other right or remedy. Lessor’s delay or
failure to exercise or enforce any of Lessor’s rights or remedies or Lessee’s obligations shall
not constitute a waiver of such rights, remedies or obligations.
12. Assignment and Subordination.
(a) Lessor and Lessee reserve the right to assign, transfer, and sublet the property upon
which the Site is located and/or its interests in this agreement.
(b) This Agreement is subject and subordinate at all times to all ground or underlying
leases, all mortgages, all covenants, restrictions, easements, and encumbrances that may now or
hereafter affect such CO2 Facility or real property of which the Site forms a part,
and all future renewals, modifications, consolidations, replacements and extensions thereof. This clause shall be
self-operative and no further instrument of subordination shall be required by any mortgagee.
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(c) Lessee agrees, at any time and from time to time, within thirty (30) days following any
written request which Lessor may make from time to time, to execute, acknowledge and deliver to
Lessor a written statement containing all information requested by Lessor, including but not
limited to (i) certification that this Agreement is unmodified and in full force and effect (or
if there have been modifications, that the Agreement is in full force and effect as modified and
stating the modifications), (ii) a statement regarding the dates to which Lessee has paid Lease
fees and other charges hereunder, and (iii) a statement as to whether, to the best of Lessee’s
knowledge, Lessor is in breach or default in the performance of any covenant or condition
contained within this Agreement, and, if so, a specification of each such breach or default of
which Lessee may have knowledge.
13. Lessor Non-Waiver. This Agreement is made subject to all local, state and federal
laws and regulations now or hereafter in force, and shall not be modified, extended or terminated
(other than as set forth herein) except by an instrument duly signed by Lessor and Lessee. Waiver
of a breach of any provision hereof under any circumstances will not constitute a waiver of any
subsequent breach of such provision, or of a breach of any other provision of this Agreement.
Neither this Agreement nor any rights hereunder may be assigned, transferred or otherwise
encumbered by Lessee without prior written consent of Lessor.
14. Governing Law, Forum and Jurisdiction. The validity, construction and enforcement
of this Agreement shall be determined in accordance with the laws of Indiana, without reference to
its conflicts of laws principles, and any action arising under this Agreement shall be brought
exclusively in Indiana. Both parties consent to the personal jurisdiction of the state courts
located in Indiana.
15. Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original and all of which together shall constitute one and the same
document.
16. Integration Clause.
(a) This Agreement, together with the CO2 Sale and Purchase Agreement executed
by the parties hereto, constitutes the entire agreement of the parties hereto and shall
supersede all prior offers, negotiations and agreements.
(b) No amendment or modification of this Agreement shall be valid unless made in writing
and signed by the parties hereto by their respective authorized representatives.
17. No Partnership. Nothing contained in this Agreement shall be deemed or construed
to create a partnership or joint venture of or between Lessor and Lessee, or to create any other
relationship between the parties hereto other than that of Lessor and Lessee.
18. Rules and Regulations. Lessee shall comply with all building rules and
regulations, as amended from time to time.
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19. Miscellaneous:
(a) Headings are for reference only, and do not affect the meaning of any paragraph.
(b) Any provision of this Agreement which 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.
(c) The failure of either Party to require strict compliance with any of the terms and
conditions of this Agreement in any one situation shall not constitute a waiver of any of the
terms and conditions of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written
above.
| WITNESS/ATTEST: | LESSOR: CARDINAL ETHANOL |
|||
| /s/ Xxxxxxx X. Xxxxx | By: | /s/ Xxxxxxx Xxxxxxx | ||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | President and CEO | |||
| WITNESS/ATTEST: | LESSEE: EPCO CARBON DIOXIDE PRODUCTS, INC. |
|||
| /s/ Xxxxxx X. Xxxxxx | By: | /s/ Xxxxxxx X. Xxxxx | ||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Executive Vice President | |||
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A-1
EXHIBIT 1
The Leased Site Survey
(Please attach diagram/drawings of installation)
B-1
EXHIBIT 2
(Legal description and/or plat of Site)
C-1
