Exhibit 10.65
AMENDED GROUND LEASE
This Amended Ground Lease ("Amended Lease") is executed as of the date set
forth on the signature page of this document by and between the County of
Presidio, Texas, acting by and through its duly authorized governing body, the
Presidio County Commissioners Court (the "Lessor") and Agro Power Development,
Inc., a New York corporation, acting by and through its duly authorized
corporate representative (the "Lessee"), and replaces the Lease Agreement
entered into by Lessor and Lessee on the 14th day of March, 1997 in its
entirety. To the extent that any Provision in the Lease is inconsistent with any
provision in this Amended Lease, the provisions in this Amended Lease shall
control The italicized provisions constitute the additions or amendments to the
terms of the original Lease.
This Amended Lease becomes effective on the date when both Lessor and
Lessee have acknowledged in writing that all conditions precedent to this
Amended Lease, found in Section 9.01 herein have been satisfied.
PURPOSE OF THE LEASE
The express purpose of this Amended Lease is for Lessor to provide land for
the development of a commercial greenhouse by Lessee, which will provide
agricultural based jobs and economic Development to the citizens of Presidio
County and the tri-county area. The premises are authorized Exclusively for a
commercial greenhouse operation and no other use is authorized on the premises
without the prior authorization of the Lessor's governing body, the Texas
Department of transportation and the Federal Aviation Administration.
The acreage covered by this Amended Lease is not now needed for
aeronautical purposes, nor is it expected to be needed for such use at any time
in the foreseeable future.
This Amended Lease is a surface lease only, together with the water rights
in the amounts specified in this lease. This lease in no way conveys or leases
any mineral interest in this property.
PROPERTY
The real property located in Presidio County consisting of a tract of
approximately One Hundred Fifty-Five (155) acres commonly referred to as the
"Southern Quandrant" of the Marfa Municipal Airport, as more particularly
described and set out in Exhibit "A" (the "Premises"), which is attached hereto
and incorporated herein for all purposes.
LEASE TERMS
ARTICLE ONE
Section 1.01. LEASE OF PREMISES
In consideration of the mutual covenants, conditions and agreements which
follow, Lessor agrees to rent and lease to Lessee, and Lessee agrees to rent and
lease from Lessor the Premises, together with all improvements located on the
Premises and the right of access to and use of the streets and roads now or
hereafter adjoining the Premises. Lessee, by execution of this Amended Lease,
accepts the leasehold estate, subject only to the title matters described in
Exhibit "B" attached hereto and incorporated herein for all purposes.
Section 1.02 HABENDUM
TO HAVE AND TO HOLD the Premises, together with all and singular the
rights, privileges, and appurtenances thereto attaching or anywise belonging,
exclusively unto Lessee and its Successors in Interest, for the term set forth
in the Amended Lease, subject to the covenants, agreements, terms, provisions
and limitations herein set forth.
Section 1.03. TERM
Unless sooner terminated as may be provided herein, this Amended Lease
shall continue and remain in full force and effect for a term commencing on the
effective date hereof and ending Twenty-five (25) years thereafter (the "Term").
Lessee may extend the Term for one additional period of ten (10) years under the
same terms, conditions and provisions by giving written notice of such Intention
to the Lessor by mail no later than One Hundred Twenty (120) days prior to the
end of the Term (the "Extended Term").
Section 1.04. WARRANTY OF PEACEFUL POSSESSION
Lessor covenants that Lessee, on paying the Rent and performing and
observing all of the covenants and agreements herein contained and provided to
be performed by Lessee, shall and may peaceably and quietly have, hold, occupy,
use and enjoy the Premises during the Term and any Extended Term, and may
exercise all of its rights hereunder. Lessor agrees to warrant and forever
defend Lessee's right to such occupancy, use and enjoyment and the title to the
Premises against the claims of any and all Persons whomsoever lawfully claiming
the same, or any part thereof, subject only to the provisions of this Lease.
Section l.05. RESERVATION OF RIGHT OF FLIGHT
There is hereby reserved to the Lessor, its successors and assigns, for the
use and benefit of the public, a right of flight for the passage of aircraft in
the airspace above the surface of the premises herein leased This public right
of flight shall include the right to cause in said airspace any noise inherent
in the operation of any aircraft used for navigation or flight through the said
airspace or landing at, taking off from or operation on the Marfa Municipal
Airport.
Section l.06. RESTRICTION PROHIBITING OBSTRUCTIONS TO AIR NAVIGATION
Lessee is strictly prohibited from causing the erection of structures or
growth of natural objects that would constitute an obstruction to air
navigation.
Section 1.07. RESTRICTION PROHIBITING INTERFERENCE WITH AIR NAVIGATION AND
COMMUNICATION
Lessee is strictly prohibited from engaging in any activity on the land
that would interfere with or be a hazard to the flight of aircraft over the land
or to and from the airport or interfere with fair navigation and to
communication facilities serving the airport.
Section l.08. INCORPORATION OF TITLE VI.CIVIL RIGHTS ASSURANCE OBLIGATIONS
Both Lessee and Lessor will comply with such state and federal rules and
regulations as are promulgated to assure that no person shall, on the grounds of
race, creed, color, national origin, sex, age, or handicap be excluded from
participating in any activity conducted under or benefitting from any funds
received under this Amended Lease. This assurance obligates the Lessor and
Lessee, and their successors in interest for the full Term and any applicable
Extended Term of the Amended Lease.
ARTICLE TWO
Section 2.01. DEFINITIONS
In addition to such other defined terms as may be set forth in this Amended
Lease, the terms below shall have the following meanings:
"Premises"- the Land and improvements described on Amended Exhibit "A".
"Rent"- the Base Rent amount.
"Lessee"- includes any Successor in Interest or Permitted Assignee. Any
such Successor in Interest or Permitted Assignee is bound by all the terms
and conditions contained herein including the exclusive use of the Premises
as a commercial greenhouse operation.
ARTICLE THREE
Section-3.0l. BASE RENT
Commencing with the effective date of this Amended Lease and continuing for
the first five (5) years of the Term, Lessee shall pay to Lessor a monthly lease
amount of One Thousand Dollars ($1,000.00). The first such payment of Base Rent
shall be due and payable on the Effective Date of this Amended Lease and like
installments shall be due and payable on the same numbered day of each month
thereafter during the first five (5) years of the Term.
For the remaining twenty (20) years of the Term and any extended Term, the
Base Rent amount will be adjusted annually in accordance with the most recent
Consumer Price Index figures. In the event of a drop in the CPI, under no
circumstances will the lease payments fall below the base amount of One Thousand
Dollars ($1,000.00) a month.
ARTICLE FOUR
Section 4.01. LESSEE TO PAY COSTS
Lessee will develop and construct the greenhouse facilities on the Premises
at its own cost and expense. Lessee will insure an adequate drainage system so
as not to interfere with the primary purpose of the airport. Lessor shall not
have any financial obligation or other obligation of any kind under this Lease
except as specifically set forth herein.
Section 4.02. IMPROVEMENTS
All improvements built or constructed upon the Premises and all equipment
used in Connection therewith by Lessee shall be and remain the property of
Lessee and may be disassembled, taken down and removed by the Lessee at the end
of the Term or any Extended Term or upon earlier termination occasioned by an
Event of Default.
Section 4.03. RIGHT OF INSPECTION
Lessor reserves the right to enter and inspect the leased premises in order
to ensure that no Events of Default are occurring and in order to protect the
adjoining Marfa Municipal Airport. Lessee agrees to allow such entrance and
inspection by Lessor as is reasonable and agreed upon by Lessee and Lessor under
the circumstances.
In case of an emergency situation such as a fire, flood, or other calamity,
Lessee grants Lessor the authority to enter immediately onto the property and to
act to protect the best interests of the Marfa Municipal Airport and the
surrounding landowners without obtaining prior consent from Lessee. In all other
circumstances, Lessor will give Lessee written notice of their request to enter
and inspect the premises.
ARTICLE FIVE
Section 5.01. EVENTS OF DEFAULT
Any one of the following events shall be deemed to be an "Event of Default"
by Lessee under this Amended Lease.
A. Lessee shall fail to pay any sum required to be paid to Lessor under
the terms and provisions of this Amended Lease and such failure shall
not be cured within sixty (60) days after Lessee's receipt of written
notice from Lessor of such failure.
B. Lessee shall permanently close its commercial greenhouse operation on
the Premises, or shall stop doing business as a commercial greenhouse
without the
prior consent of Lessor. If the greenhouse operation is closed for a
period of twelve (12) months, it shall be deemed to be permanently
closed for the purposes of this section.
C. Lessee shall change the nature or methods of the operation of the
commercial greenhouse in any manner which increases the use of water
from the underground xxxxx on the property by twenty-five percent
(25%) or more over a base line of 160,000,000 gallons per year. This
provision shall not limit in any way the use or amount of water
consumed from other sources.
D. Lessee shall fail to perform any other covenant in this agreement,
other than those listed above, required to be performed under the
terms and provisions of this Amended Lease and such failure shall not
be cured within One Hundred Twenty (120) days after receipt of written
notice from Lessor of such failure, unless a longer time is granted by
duly authorized action of the governing body of Lessor.
E. A court having jurisdiction shall enter an order for relief in any
involuntary case commenced against Lessee, as debtor, under the
Federal Bankruptcy Code, as now or hereafter constituted, or the entry
of a decree or order by a court having jurisdiction over the Premises
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator, or other similar official of or for Lessee or any
substantial part of the properties of Lessee or ordering the winding
up or liquidation of the affairs of Lessee.
F. The commencement by Lessee of a voluntary case under the Federal
Bankruptcy Code, as now or hereafter constituted, or the consent or
acquiescence by Lessee to the commencement of a case under such Code
or law or to the appointment of or taking possession by custodian,
receiver, liquidator, assignee, trustee, sequestrator, or other
similar official of or for Lessee or any substantial part of the
properties of Lessee.
G. Lessee shall fail to comply with the provisions contained in Sections
1.05 through 1.08 of this Amended Lease, as required by the Federal
Aviation Administration and the Texas Department of Transportation,
and Lessee shall fail to initiate measures to cure such default within
ten (10) days of notice thereof
Section 5.02. LESSOR'S RIGHT TO EXPEL
Should any of the above Events of Default occur during the Term or any
Extended Term and Lessee fails to cure such event after receiving applicable
notice thereof, Lessor may, at its option, declare this Amended Lease and all
rights and interests created by it to be terminated. In the event that Lessor
terminates the Amended Lease, Lessee shall be given written notice to vacate the
premises by Lessor, and Lessee so agrees to vacate the Premises and to remove
all improvements and restore the Premises to its pre-Lease condition within Two
Hundred Seventy (270) days after receipt of such notice.
Section 5.03. LIQUIDATED DAMAGES
Both Lessor and Lessee agree that Lessor would suffer damages as a result
of such Amended Lease termination. Lessee hereby agrees that a reasonable sum
for liquidated damages in the event of lease termination due to Lessee's default
would be a lump sum payment to Lessor of One-Third (1/3) of all remaining rents
due under the Term or the Extended Term of the Amended Lease. The time period
for computing the liquidated damages begins as of the date of default or of the
last lease payment, whichever is later in time. Venue for any suit to enforce
this provision lies exclusively in the district court of Presidio County, Texas.
Section 5.04. RIGHTS OF LESSOR CUMULATIVE
All rights and remedies of Lessor provided for in this Amended Lease shall
be construed and held to be cumulative, and no single right or remedy shall be
exclusive of any other which is consistent with the former. Lessor shall have
the right to pursue any or all of the rights or remedies set forth herein, as
well as any other consistent remedy or relief which may be available at law or
in equity, but which is not set forth herein. No waiver by Lessor of a breach of
any of the covenants, conditions or restrictions of this Amended Lease shall be
construed or held to be a waiver of any succeeding or preceding breach of the
same or of any other covenant, condition or restriction herein contained. The
failure of Lessor to insist in any one or more cases upon the strict performance
of any of the covenants of this Amended Lease, or to exercise any option herein
contained, shall not be construed as a waiver or relinquishment of future
breaches of such covenant or option.
ARTICLE SIX
Section 6.01. LESSOR DEFAULT
Should Lessor fail to perform any of the obligations or covenants contained
in this Amended Lease, and such failure shall not be cured within sixty (60)
days after receipt of written notice from Lessee of such failure, then Lessee
shall be entitled to enforce any one or more of the following rights and
remedies:
A. Lessee shall be entitled to cease paying all Rent and other amounts
owed to Lessor under this Amended Lease until such time as the default
is cured;
B. Lessee shall be entitled to require Lessor to specifically perform its
obligations under this Amended Lease or restrain or enjoin Lessor from
continuing the activities that constitute the default of Lessor; and
C. Lessee shall be entitled to exercise all other rights and remedies
available to Lessee under this Amended Lease or otherwise available to
Lessee at law or in equity as a consequence of the Lessor's default.
Section 6.02. RIGHTS OF LESSEE CUMULATIVE
All rights and remedies of Lessee provided for in this Amended Lease shall
be construed and held to be cumulative, and no single right or remedy shall be
exclusive of any other which is consistent with the former. Lessee shall have
the right to pursue any or all of the rights or remedies set forth herein, as
well as any other consistent remedy or relief which may be available at law or
in equity, but which is not set forth herein. No waiver by Lessee of a breach of
any of the covenants, Conditions or restrictions of this Amended Lease shall be
construed or held to be a waiver of any succeeding or preceding breach of the
same or of any other covenant, condition or restriction herein contained. The
failure of Lessee to insist in any one or more cases upon the strict performance
of any of the covenants of this Amended Lease, or to exercise any option herein
contained, shall not be construed as a waiver or relinquishment of future
breaches of such covenant or option.
ARTICLE SEVEN
Section 7.01. ASSIGNMENT BY LESSEE
This Amended Lease is assignable by Lessee as collateral to secure
financing or to any other entity solely for operation of a commercial greenhouse
operation on the Premises ("Permitted Assignee").
Lessee is hereby authorized to assign its interest in this Amended Lease to
its affiliate Village Farms of Marfa, L. P., a limited partnership organized
under the laws of Delaware. Any Affiliate or Permitted Assignee of Lessee who
assumes Lessee's responsibilities under this Amended Lease hereby agrees to be
bound by and fully comply with all terms of the Amended Lease.
Section 7.02. SALE OR ASSIGNMENT BY LESSOR
Any sale or mortgage of the Premises of Lessor or any liens placed or
suffered by Lessor encumbering Lessor's interest shall be expressly subject and
subordinate to this Amended Lease, to all obligations of Lessor hereunder, and
to all the rights, titles, interests and estates of Lessee created or arising
hereunder.
ARTICLE EIGHT
Section 8.01. PAYMENT OF TAXES
As the public property of Lessor is to be leased to Lessee, a private
corporation, for the purpose of a private commercial enterprise, there is no
exemption from ad valorem taxation under the Texas Constitution. Both Lessor and
Lessee have agreed that a tax abatement is not appropriate under the
circumstances, and Lessee agrees to pay all assessed ad valorem taxes on the
Premises attributable to the leasehold interest of Lessee when due during the
Term and any extension of the Term.
ARTICLE NINE
Section 9.01. CONDITIONS PRECEDENT TO THIS AMENDED LEASE
Notwithstanding any and all other provisions, this Amended Lease shall not
be effective or binding on the Lessee or the Lessor until the following
conditions have occurred or been completed to the satisfaction of Lessee and
Lessor, as evidenced by an acknowledgment signed and dated by both parties and
attached to this Amended Lease as Exhibit "C " and made a part hereof for all
purposes:
A. A complete corrected survey with plat and metes and bounds description
of the Premises shall be completed and added to the Amended Lease as
Exhibit "A".
B. An environmental site survey has been conducted on the Premises
showing the Premise to be free of all Hazardous Materials or other
contaminates.
C. Evidence of good title to the leasehold estate under this Amended
Lease is established to the satisfaction of the Lessee of the
leasehold estate. Such evidence may be a title policy commitment
issued by a reputable title insurance company insuring the leasehold
title of Lessee in such amount as necessary to satisfy the Lessee that
the leasehold title with all improvements is adequately insured
against adverse claims; or such other title evidence satisfactory to
the Lessee.
D. Satisfactory evidence that no easements or other encumbrances exist on
the property which would interfere with the intended use of the
Premises by Lessee.
E. This Amended Lease is further contingent upon Lessee's successful
closing of all financial borrowing necessary for Lessee to fund the
contemplated project.
F. This Lease is further contingent upon Lessor's obtaining written
consent to the Amended Lease from the Texas Department of
Transportation and the Federal Aviation Administration.
ARTICLE TEN
Section 10.01. NOTICES
Notices or communications to Lessor or Lessee required or appropriate under
this Amended Lease shall be in writing, sent by (a) personal delivery, or (b)
expedited delivery service with proof of delivery, or (c) registered or
certified United States mail, postage prepaid, or (d) prepaid telecopy
ifconfirmed by expedited delivery service or by mail in the manner previously
described, address is as follows:
if to Lessee: Chief Executive Officer
Agro Power Development, Inc.
00 Xxxxx Xxxxx
Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000
if to Lessor: Presidio County Judge
Xxxx Xxxxxx Xxx 000
Xxxxx, Xxxxx 00000
with a copy to: Presidio County Xxxxxxxx
Xxxx Xxxxxx Xxxxxx X
Xxxxx, Xxxxx 00000
or to such other address or to the attention of such other person as hereafter
shall be designated in writing by such party. Any such notice or communication
shall be deemed to have been given either at the time of personal delivery or,
in the case of delivery service or mail, as of the date of deposit in the mail
in the manner provided herein, or in the case of telecopy, upon receipt.
Section 10.02. APPLICABLE LAW
This Amended Lease shall be construed under and in accordance with the laws
of the State of Texas, and all obligations of the parties created hereunder are
performable in Presidio County, Texas. Venue for any action arising out of this
Amended Lease shall lie exclusively in the state district court of Presidio
County, Texas.
Section 10.03. RIGHTS CUMULATIVE
All rights, options and remedies of Lessor and Lessee contained in this
Amended Lease shall be construed and held to be cumulative and no one of them
shall be exclusive of the other. Lessor and Lessee shall each have the right to
pursue any one or all of such remedies or any other remedy or relief which may
be provided by law or in equity whether or not stated in this Amended Lease.
Section 10.04. NONWAIVER
No waiver by Lessor or Lessee of a breach of any of the covenants,
conditions or restrictions of this Amended Lease shall constitute a waiver by
Lessor or Lessee of any subsequent breach of any of the covenants, conditions or
restrictions of this Amended Lease. The failure of Lessor or Lessee to insist in
any one or more cases upon the strict performance of any of the covenants of the
Lease, or to exercise any option herein contained, shall not be construed as a
waiver or relinquishment for the future of such covenant or option. A receipt by
Lessor or acceptance of payment by Lessor of rent with knowledge of the breach
of any covenant hereof shall not be deemed a waiver of such breach, and no
waiver, change, modification or discharge by Lessor or Lessee of any provision
of this Amended Lease shall be deemed to have been made or shall be effective
unless properly authorized, expressed in writing and signed by the party to be
charged.
Section 10.05. TERMINOLOGY
Unless the context of this Amended Lease clearly requires otherwise, (a)
pronouns, wherever used herein, and of whatever gender, shall include natural
persons and corporations and associations of every kind and character; (b) the
singular shall include the plural wherever
and as often as may be appropriate (c) the word "includes" or "including" shall
mean "including without limitation".
The section, article and other headings in this Amended Lease are for
reference purposes and shall not control or affect the construction of this
Amended Lease or the interpretation hereof in any respect. Article, section and
subsection and exhibit references are to this Amended Lease unless otherwise
specified. All references to a specific time of day in this Amended Lease shall
be based upon Central Standard Time.
Section 10.06. SEVERABILITY
If any clause or provision of this Amended Lease is illegal, invalid or
unenforceable under present or future laws effective during the Term or any
extended Term of this Amended Lease, then and in that event, it is the intention
of the parties hereto that the remainder of this Amended Lease shall not be
affected thereby.
Section 10.07. ENTIRE AGREEMENT
This Amended Lease, together with the exhibits attached hereto, contains
the final and entire agreement between the parties hereto and contains all of
the terms and conditions agreed upon, and no other agreements, oral or
otherwise, regarding the subject matter of this Amended Lease shall be deemed to
exist or to bind the parties hereto; it being the intent of the parties that
neither shall be bound any term, condition or representation not herein written.
Section 10.08. AMENDMENT
No amendment, modification or alteration of the terms of this Amended Lease
shall be binding unless the same be in writing, dated on or subsequent to the
date hereof, and duly executed by Lessee and by Lessor. Lessor's approval of an
amendment, modification or alteration of the terms of the Lease is binding only
if voted upon in open session at a duly called and authorized meeting of the
governing body of Lessor, the Presidio County Commissioners Court, with the
agenda of such meeting being properly posted in accordance with the requirements
of the Texas Open Meetings Act.
Section 10.09. SUCCESSORS IN INTEREST
All of the covenants, agreements, terms and conditions to be observed and
performed by the parties hereto shall be applicable to and binding upon their
respective successors and assignees, including, any successor by merger,
consolidation of Lessee into another business entity, or permitted assignment
(the "Successor in Interest").
The terms of this Amended Lease become applicable to any Mortgagee,
Assignee or Successor in Interest immediately upon the date of foreclosure on
Lessee's interest in this Lease, upon the recordation of a Deed in Lieu of
Foreclosure, or upon transfer of legal ownership of Lessee's interest in this
Lease to any another business entity, including a Mortgagee or Assignee. Any
such Mortgagee, Assignee or Successor in Interest shall be responsible for
curing any prior default by the Lessee if that is reasonably, possible, paying
any back taxes owed by the Lessee, and complying with all terms and conditions
of this Amended Lease until the end of the Term or Extended Term of this Amended
Lease.
Section 10.10. HAZARDOUS MATERIALS
Notwithstanding anything contained in this Amended Lease to the contrary,
if Lessee finds any Hazardous Materials (hereinafter defined) on the Premises as
a result of the environmental survey to be conducted pursuant to this Lease,
then Lessee shall have the right to terminate this Lease by delivering written
notice thereof to Lessor. If Lessee terminates this Lease as a result of finding
Hazardous Materials on the Premises, then neither party hereto shall have any
further rights, duties or obligations hereunder.
Lessee hereby agrees that no hazardous materials will be deposited on the
leased premises during the Term or Extended Term of this Amended Lease, except
for those used in Lessee's agricultural operations. Lessee agrees to handle and
dispose of these substances in accordance with all applicable state and federal
environmental laws, rules and regulations. Should hazardous materials be
deposited on the premises in violation of any applicable environmental law, rule
or regulation during the Term or Extended Term of the Amended Lease, Lessee
agrees to be financially responsible for any clean up which is necessary to
restore the premises to its pre-Lease condition.
As used in this Amended Lease, "Hazardous Materials" shall mean (I) any
"Hazardous Waste" is defined by the Resource Conservation and Recovery Act of
1976 (42 U. S.C. Section 6091 et seq.), is amended from time to time, and
regulations promulgated thereunder; (ii) any "hazardous substance" as defined by
the Comprehensive Environmental Response, Compensation and Liability Action of
1980 (42 U.S.C. Section 6091 et seq. ), as amended from time to time, and
regulations Promulgated thereunder, (iii) polychlorinated biphenyls; (iv)
underground storage tanks, whether empty, filled or partially filled with any
substance; (v) any substance the presence of which on the Premises is prohibited
by any governmental requirements; and (vi) any other substance which by any
Governmental requirements requires special handling or notification of any
federal, state or local governmental entity in its collection, storage,
treatment or disposal.
ARTICLE ELEVEN
Section 11.01. ATTORNEY'S FEES.
If either party is required to commence legal proceedings relating to this
Amended Lease, the prevailing party shall be entitled to receive reimbursement
for its reasonable attorney's fees and costs of suit.
EXECUTED by the respective parties on the dates specified on the following
page. When all preconditions to this Amended Ground Lease, as set out in Section
9. 01 herein, have been accomplished to the satisfaction of the Lessor and
Lessee, such parties shall acknowledge that fact in writing and on that date
this Amended Ground Lease shall come into full force and effect.
PRESIDIO COUNTY, TEXAS AGRO POWER DEVELOPMENT, INC.
"Lessor" "Lessee"
----------------------------- -----------------------------
Xxxx Xxxxxxx, Xx Xxxxxx Xxxxxxxx
Presidio County Judge President
ATTEST:
----------------------------- -----------------------------
Xxxxxx Xxxx Xxxxxx Xxxx
Presidio County Clerk Presidio County Clerk
STATE OF TEXAS ss.
COUNTY OF PRESIDIO ss.
Before me, the undersigned authority, on this day personally appeared Xxxx
Xxxxxxx, Xx., known to me to be the person whose name is subscribed to the
foregoing Amended Ground Lease, and known to me to be the Presidio County Judge,
and acknowledged to me that he executed said instrument for the purposes and
consideration herein expressed, and in the capacity therein stated.
SUBSCRIBED AND SWORN TO before me this ____ day of _____________, 1997, to
which witness my hand and official seal.
--------------------------------------
Xxxxxxx Xxxxxxx
Notary Public, in and for the State of
Texas
STATE OF TEXAS ss.
COUNTY OF PRESIDIO ss.
Before me, the undersigned authority, on this day personally appeared
Xxxxxx Xxxxxxxx, known to me to be the person whose name is subscribed to the
foregoing Amended Ground Lease, and known to me to be the President of Agro
Power Development, Inc., a New York corporation, and acknowledged to me that he
executed said instrument for the purposes and consideration herein (-expressed,
and in the capacity therein stated.
SUBSCRIBED AND SWORN TO before me this ____day _________of, 1997, to which
witness my hand and official seal.
--------------------------------------
Xxxxxxx Xxxxxxx
Notary Public, in and for the State of
Texas
EXHIBIT A
FIELD NOTES DESCRIBING A 155.72 ACRE TRACT OF LAND, IN SECTIONS 249, 250, 251,
AND 000, XXXXX 0, XX&XX XX XXXXXXX XXXXXX, XXXXXXXX XXXXXX, XXXXX. THE 155.72
ACRE TRACT IS PART OF THE PROPERTY CONVEYED FROM XXXXXXX XXXX XXXXXX, ET AL, TO
PRESIDIO COUNTY BY WARRANTY DEED RECORDED IN VOLUME 113, PAGE 223, AND FROM MRS.
W.A. XXXXX, ET AL, BY WARRANTY DEED RECORED IN VOLUME 113, PAGE 221, DEED
RECORDS SAID 155.72 ACRE TRACT OF LAND BEING MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
BEGINNING at a 5/8 inch rebar set at the intersection of the West right-of-way
line of State Highway 17, as marked on the ground, and the Southwest BRL of
runway 12-30 of Marfa Municipal Airport, for the Northeast corner of this tract,
said BRL is parallel to and 390 feet Southwest of the centerline of said runway
12-30, whence a concrete highway right-of-way marker found in said right-of-way
line bears North 17(0)15'36' East 1403.75 feet, and a 1/2 inch iron pipe with an
aluminum cap marked "PIPER SURVEYING COMPANY, 249, 250, 251, 252, XXX 0, PLS
1974", found at the common corner of Sections 000, 000, 000, xxx 000, Xxxxx 0,
XX&XX RR Company Survey, Presidio County, Texas, bears South 70(0)45'24" West
1341.99 feet, and from said found, 1/2 inch iron pipe a one inch iron pipe
marked "SE150, NE153, NW249, SW252", found in center of a rock mound, at the
common corner of Sections 150, 153, 249, and 252, of Xxxxxxxx 000, 000, 000, xxx
000, xxxx Xxxxx 8, bears South 89(0)58'53" West 5303.86 feet, property for Xxxxx
Xxxxxxx 00 conveyed from A.S. Gage Estate to State of Texas, right-of-way
recorded in volume 113, page 180, deed records, property in Section 250 and
Section 251, said Block 8, conveyed from Xxxxxxx Xxxx Xxxxxx, et al, to Presidio
County by warranty deed recorded in volume 113, page 223, deed records, and
property in Section 249 and Section 252, said Block 8, conveyed from Mrs. W.A.
Xxxxx, et al, to Presidio County by warranty deed recorded in volume 113, page
221, deed records;
THENCE South 17(0)15'36" West with said West right-of-way line, at 462.77 feet
the common line of Section 251 and Section 250, said Block 8, and at 695.48 feet
pass a found concrete highway right-of-way marker, continuing for a total
distance of 1047.62 feet to a six inch wood post, a fence corner at the
Southeast corner of said airport, for the Southeast corner of this tract;
THENCE South 89(0)56'24" West with the South boundary line of said airport
property and a wire fence line, at 955.19 feet the common line of said Section
250 and Section 249, continuing for a total distance of 4326.42 feet to a 5/8
inch rebar set at the intersection of said South boundary line and the Southeast
BRL of runway 3-21 of said airport, for the Southwest corner of this tract, said
BRL is parallel to and 265 feet Southeast of the projected centerline of said
runway 3-21;
THENCE North 45(0)01'32" East with said BRL, at 794.83 feet the common line of
said Section 249, and Section 252, continuing for a total distance of 1148.62
feet to a 5/8 inch rebar, set at the intersection of said BRL and the Southwest
line of the protection zone of runway 3-21, for a corner of this tract;
THENCE South 44(0)58'28" East 85.0 feet, with said protection zone Southwest
line, to a 5/8 inch rebar set at the South corner of said protection zone, for
an interior corner of this tract;
THENCE North 39(0)18'53" East 854.25 feet with the Southeast line of said
protection zone, to a 5/8 inch rebar set at the intersection of said protection
zone Southeast line and said BRL, for a corner of this tract;
THENCE North 45(0)01'32' East 312.24 feet with said BRL, to a 5/8 inch rebar set
at a BRL xxxxx, being 65.5 feet Southwest of the centerline of taxiway entering
said runway 3-21, for a corner of this tract;
THENCE South 89(0)59'14" East 424.65 feet, with said BRL, to a 5/8 inch rebar
set at a BRL xxxxx, for a corner of this tract;
THENCE North 45(0)00'01' East 1269.14 feet, with said BRL, to a 5/8 inch rebar
set at a BRL xxxxx, for a corner of this tract;
THENCE South 89(0)59'35" East 155.54 feet, with said BRL, to a 5/8 inch rebar
set at a BRL xxxxx, for a corner of this tract;
THENCE South 44(0)59'1 1" East with said BRL, being parallel to and 390 feet
Southwest of the centerline of runway 12-30 of said airport, at 371.13 feet the
common line of said Section 252 and Section 251, continuing for a total distance
of 2157.03 feet to the "Point of Beginning".
CONTAINING 39.74 acres in Section 249, 13.37 acres in Section 250, 30.51 acres
in Section 251, and 72.10 acres in Section 252, for a total of 155.72 acres,
more or less.
EXHIBIT B
Commitment Number:
G.F. Number A-0005-97
EXCEPTIONS FROM COVERAGE
In addition to the Exclusions and Conditions and Stipulations, your Policy will
not cover loss, costs, attorney's fees, and expenses resulting from
1. The following restrictive covenants of record itemized below (We must either
insert specific recording data or delete this exceptions):
as shown in Surrender of Leasehold dated March 10, 1947 from United States
of America to County of Presidio Texas, filed for record May 3, 1947 in
Volume 125, Page 212, Deed Records of Presidio County, Texas.
2. Any discrepancies, conflicts or shortages in area or boundary lines, or any
encroachments or protrusions, or any overlapping of improvements.
3. Homestead or community property or survivorship rights, if any, of any spouse
of any insured. (Applies to the Owner Policy only.)
4. Any titles or rights asserted by anyone, including, but not limited to,
persons, the public, corporations, governments or other entities,
a. to tidelands, or lands comprising the shores or beds of navigable or
perennial rivers and streams, lakes, bays, gulfs or oceans, or
b. to lands beyond the line of the harbor or bulkhead lines as established
or changed by any government, or
c. to filled in lands, or artificial islands, or
d. to statutory water rights, including riparian rights, or
e. to the area extending from the line of mean low tide to the line of
vegetation, or the right of access to that area or easement along and
across that area.
(Applies to the Owner Policy only.)
5. Standby fees, taxes and assessments by any taxing authority for the year 19__
and subsequent years. and subsequent taxes and assessments by any taxing
authority for prior years due to change in land usage or ownership.
6. The terms and conditions of the documents creating your interest in the land.
7. Materials furnished or labor performed in connection with planned
construction before signing and delivering the lien document described in
Schedule A, if the land is part of the homestead of the owner. (Applies to the
Mortgagee Title Policy Binder on Interim Construction Loan only, and may be
deleted if satisfactory evidence is furnished to us before a binder is issued.)
8. Liens and leases that affect the title to the land, but that are subordinate
to the lien of the insured mortgage. (Applies to Mortgagee Policy only.)
9. The following matters and all terms of the documents creating or offering
evidence of the matters (We must insert matters or delete this exception.):
(a) Leasehold Estate by that certain Lease Agreement between The County of
Presidio, Texas, as Lessor and Agro Power Development, Inc., as Lessee,
dated to be effective as of the 14th day of March, 1997, filed for record
in Volume ___, Page _, Deed Records of Presidio County, Texas, assigned to
Village Farms of Marfa, L.P. by Assignment of Lease dated , filed for
record in Volume __, Page __, Deed Records of Presidio County, Texas.
(b) Easement dated October 9, 1978, from the County of Presidio, Texas to
Southwestern Xxxx Telephone Company, of record in Volume 218, Page 480,
Deed Records of Presidio County, Texas.
(c) Reversionary rights as set forth in Surrender of Leasehold dated March
10, 1947 from the United States of America to the County of Presidio Texas,
of record in Volume 125, Page 212, Deed Records of Presidio County, Texas.
(d) Title to all oil, gas and minerals and other elements not constituting
part of the surface estate in the property described on Schedule A,
together with all rights, privileges and immunities relating thereto.
(e) Building restriction line as shown on the survey made by Xxxxxx
Xxxxxxx, Registered Professional Land Surveyor for the State of Texas,
dated May 7, 1997.
