AGREEMENT
THIS AGREEMENT effective as of the 23rd day of November, 2001, by and
between Xxxx X. Xxxxx, trustee of the Xxxx X. Xxxxx Trust under trust agreement
dated the 13th day of December, 1993, and referred to as "FIRST PARTY", and
Western Plains Energy, L.L.C., a Kansas limited liability company, with its
principal place of business located in Sheridan County, Kansas, with an address
of X.X. Xxx 000, Xxxxx, Xxxxxx, 00000 referred to as "SECOND PARTY", is as
follows:
WHEREAS, FIRST PARTY is the owner in fee simple of the following
described real estate located in Xxxx County, Kansas, to-wit:
A TRACT OF LAND LOCATED IN THE SOUTHWEST QUARTER (SW1/4) OF
SECTION TWO (S02), XXXXXXXX XXXXXX XXXXX (X00X), XXXXX
XXXXXX-XXX XXXX (X00X) OF THE SIXTH PRINCIPAL MERIDIAN (6TH
P.M) IN XXXX COUNTY, KANSAS, MORE PARTICULARLY DESCRIBED AS
FOLLOWS
FROM THE SOUTHWEST CORNER OF SAID SECTION, THENCE, ON AN
ASSUMED BEARING OF N00DEG25'31"E, ALONG THE WEST LINE OF SAID
SECTION, A DISTANCE OF ONE THOUSAND SEVEN HUNDRED FIFTY-FOUR
AND TWENTY-THREE HUNDREDTHS (1754.23) FEET TO THE SOUTH
RIGHT-OF-WAY BOUNDARY OF THE UNION PACIFIC RAILROAD, THENCE
N88DEG42'58"E, ALONG SAID RAILROAD RIGHT-OF-WAY, FOR A
DISTANCE OF ONE THOUSAND THREE HUNDRED FOURTEEN AND
SEVENTY-TWO HUNDREDTHS (1314.72) FEET TO THE EAST LINE OF THE
WEST HALF (W1/2) OF THE SOUTHWEST QUARTER (SW1/4) OF SAID
SECTION, THENCE S00DEG14'21"W, ALONG THE EAST LINE OF THE WEST
HALF (W1/2) OF THE SOUTHWEST QUARTER (SW1/4), FOR A DISTANCE
OF ONE THOUSAND SEVEN HUNDRED EIGHTY-FIVE AND FIFTEEN
HUNDREDTHS (1785.15) FEET TO THE SOUTH LINE OF SAID SECTION,
THENCE N89DEG56'07"W, ALONG THE SOUTH LINE OF SAID SECTION,
FOR A DISTANCE OF ONE THOUSAND THREE HUNDRED NINETEEN AND
NINETY-SIX HUNDREDTHS (1319.96) FEET TO THE POINT OF
BEGINNING, CONTAINING 53.51 ACRES, SAID TRACT BEING SUBJECT TO
COUNTY ROAD RIGHT-OF-WAY, ALONG ITS SOUTH AND WEST BOUNDARIES,
AND HEREINAFTER REFERRED TO AS THE "BLOOM GROUND"; AND
WHEREAS, SECOND PARTY has secured an option to purchase from XxXxxx
Xxxxxxx Xxxxxxxxx, Xxxxxx Xxxxxxx, Xxxxxxx Xxxxxxx and Xxxxxx Xxxxxxx, all being
the heirs
of Xxxxxx Xxxxxxx, deceased, the following described real estate, also
situated in Xxxx County, Kansas, to-wit:
A TRACT OF LAND LOCATED IN THE SOUTH HALF OF SECTION THREE
(S03), TOWNSHIP ELEVEN SOUTH (T11S), RANGE THIRTY-ONE WEST
(R31W) OF THE SIXTH PRINCIPAL MERIDIAN (6TH P.M.) IN XXXX
COUNTY, KANSAS, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHEAST CORNER OF SAID SECTION, THENCE, ON
AN ASSUMED BEARING OF N00DEG25'31"E ALONG THE EAST LINE OF
SAID SECTION, A DISTANCE OF EIGHT HUNDRED SEVENTY-SEVEN AND
ELEVEN HUNDREDTHS (877.11) FEET TO THE POINT OF BEGINNING.
FROM THE POINT OF BEGINNING, THENCE S89(0)16'29"W FOR A
DISTANCE OF FIVE THOUSAND TWO HUNDRED EIGHTY-TWO AND THIRTY
HUNDREDTHS (5282.30) FEET TO THE WEST LINE OF SAID SECTION,
THENCE N00DEG00'32"E, ALONG THE WEST LINE OF SAID SECTION, FOR
A DISTANCE OF EIGHT HUNDRED TWENTY-FIVE AND FORTY-FOUR
HUNDREDTHS (825.44) FEET TO THE SOUTH RIGHT-OF-WAY BOUNDARY OF
THE UNION PACIFIC RAILROAD, THENCE N88DEG42'58"E, ALONG SAID
RAILROAD RIGHT-OF-WAY, FOR A DISTANCE OF FIVE THOUSAND TWO
HUNDRED EIGHTY-NINE AND FIFTY-NINE HUNDREDTHS (5289.59) FEET
TO THE EAST LINE OF SAID SECTION, THENCE S00DEG25'31"W, ALONG
THE EAST LINE OF SAID SECTION, FOR A DISTANCE OF EIGHT HUNDRED
SEVENTY-SEVEN AND ELEVEN HUNDREDTHS (877.11) FEET TO THE POINT
OF BEGINNING, CONTAINING 103.28 ACRES, SAID TRACT BEING
SUBJECT TO COUNTY ROAD RIGHT-OF-WAY ALONG ITS EAST BOUNDARY,
AND HEREINAFTER REFERRED TO AS THE "XXXXXXX GROUND"; AND
WHEREAS FIRST PARTY is the owner, in fee simple, of the following
described property:
THE EAST HALF (E1/4) OF SECTION THIRTY FIVE (S35), TOWNSHIP
TEN SOUTH (T10S), RANGE THIRTY-ONE WEST (R31W) OF THE SIXTH
PRINCIPAL MERIDIAN (6TH P.M.), XXXXXX COUNTY, KANSAS, AND THE
NORTHWEST QUARTER (NW1/4) OF SECTION TWO (S02) AND THAT PART
OF THE SOUTHWEST QUARTER (SW1/4) OF SECTION TWO (S02) LYING
NORTH OF THE UNION PACIFIC RAILROAD RIGHT-OF-WAY, BOTH IN
TOWNSHIP ELEVEN SOUTH (T11S), RANGE THIRTY-ONE WEST (R31W),
XXXX COUNTY, KANSAS,
and SECOND PARTY seeks an easement over this property for the purposes of
constructing, operating, maintaining and repairing a water delivery line from a
water well to be located on the SOUTH EAST QUARTER (SE1/4) OF SECTION TWENTY SIX
(S26), TOWNSHIP TEN SOUTH (T10S), RANGE THIRTY ONE WEST (R31W) OF THE SIXTH
PRINCIPAL MERIDIAN (6TH P.M.), XXXXXX COUNTY, KANSAS, to the BLOOM GROUND.
WHEREAS in the event that the SECOND PARTY exercises its option to
purchase the XXXXXXX GROUND the parties, IN CONSIDERATION of their mutual
promises as set out below, agree as follows:
SECTION ONE
FIRST PARTY agrees to trade to the SECOND PARTY the BLOOM GROUND and
grant to SECOND PARTY a water line easement at an agreed upon price of One
Hundred Fifty Three Thousand Two Hundred Eighty Dollars ($153,280.00) for the
SECOND PARTY'S interest in the XXXXXXX GROUND at an agreed upon price of One
Hundred Three Thousand Two Hundred Eighty Dollars ($103,280.00).
The "boot" to be paid to FIRST PARTY by SECOND PARTY, as hereinafter
provided, shall be Fifty Thousand Dollars ($50,000.00) more than the purchase
price of the XXXXXXX GROUND. The additional monies paid are allocated to the
water line easement and to the well, pump, casing, underground pipe and
improvements located on the BLOOM GROUND, excluding that property identified in
paragraph two of Section Four.
SECTION TWO
The parties intend that the exchange contemplated by this agreement
shall be reviewed as an exchange of "like-kind" investment property under the
provisions of the Internal Revenue Code Section 1031(a) for deferring the
recognition of gain. If either party fails to qualify under Section 1031(a),
then each party is responsible for the payment of any tax due on their
respective property.
SECTION THREE
For the purpose of this agreement, the property of the FIRST PARTY is
valued at One Hundred Fifty Three Thousand Two Hundred Eighty Dollars
($153,280.00) and the property,
upon the exercise of the Xxxxxxx option belonging to the SECOND PARTY, is valued
at One Hundred Three Thousand Two Hundred Eighty Dollars ($103,280.00).
Settlement of the difference of the value shall be made in the following manner.
SECOND PARTY shall pay to the FIRST PARTY, upon the execution
of this agreement, the sum of Five Thousand Dollars
($5,000.00), which shall be non refundable and in
consideration of FIRST PARTY'S granting time to SECOND PARTY
until March 1, 2003, to exercise its option to purchase the
XXXXXXX GROUND and consummating the like-kind exchange
contemplated by this agreement. On the day of the exchange of
deeds, SECOND PARTY shall pay to the FIRST PARTY, in cash, the
sum of Forty Five Thousand Dollars ($45,000.00). In the year
of exchange, FIRST PARTY shall be responsible to ensure that
all real estate taxes and assessments on the BLOOM GROUND for
prior years have been paid in full and SECOND PARTY shall be
responsible to ensure that all real estate taxes and
assessments on the XXXXXXX GROUND for prior years have been
paid in full. After the exchange of properties, the parties
will each assume responsibility for the current year real
estate taxes on the ground that each is receiving.
SECTION FOUR
This like-kind exchange agreement is expressly contingent upon the
following:
1. The exercise of the option by SECOND PARTY on the
XXXXXXX GROUND and the closing on the purchase of
said ground by SECOND PARTY.
2. The reservation of a life estate for the benefit of
and the use by Xxxxxxx Xxxxxxxx, of the double-wide
modular home and the out buildings located in the
BLOOM GROUND with a legal description as follows:
A TRACT OF LAND LOCATED IN THE SOUTHWEST QUARTER
(SW1/4) OF SECTION TWO (S02), XXXXXXXX XXXXXX XXXXX
(X00X), XXXXX XXXXXX-XXX XXXX (X00X) OF THE SIXTH
PRINCIPAL MERIDIAN (6TH P.M.) IN XXXX COUNTY, KANSAS,
MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHWEST CORNER OF SAID SECTION,
THENCE, ON AN ASSUMED BEARING OF S89DEG56'07"E, ALONG
THE SOUTH LINE OF SAID SECTION, A DISTANCE OF ONE
HUNDRED FIFTY-ONE AND SEVENTY-FOUR HUNDREDTHS
(151.74) FEET TO THE POINT OF BEGINNING. FROM THE
POINT OF BEGINNING, THENCE N01DEG06'11"E FOR A
DISTANCE OF ONE HUNDRED NINETY-SEVEN AND FIFTY-SEVEN
HUNDREDTHS (197.57) FEET, THENCE S89DEG08'50"E, FOR A
DISTANCE OF TWO HUNDRED EIGHT-TWO AND THREE
HUNDREDTHS (282.03) FEET, THENCE S01DEG06'11"W FOR A
DISTANCE OF ONE HUNDRED NINETY-THREE AND SIXTY-NINE
HUNDREDTHS (193.69) FEET TO THE SOUTH LINE OF SAID
SECTION, THENCE N89DEG56'07"W, ALONG THE SOUTH LINE
OF SAID SECTION, FOR A DISTANCE OF TWO HUNDRED
EIGHTY-TWO AND EIGHT HUNDREDTHS (282.08) FEET TO THE
POINT OF BEGINNING, CONTAINING 1.27 ACRES, SAID TRACT
BEING SUBJECT TO COUNTY ROAD RIGHT-OF-WAY ALONG ITS
SOUTH BOUNDARY,
for the natural life of Xx. Xxxxxxxx. The life
tenant, or his heirs or assigns, shall have the right
to remove the doublewide modular home and out
buildings hereinbefore described at any time during
the reservation of the life estate or within 90 days
following the termination of the life estate. In the
event the property is not removed within the time
period as hereinbefore just set out, the same shall
be determined as abandoned to the SECOND PARTY,
thereby allowing SECOND PARTY to dispose of the same
as it deems fit.
3. The right of the FIRST PARTY to dry land farm that
portion of the BLOOM GROUND not being utilized by the
SECOND PARTY for purposes of an ethanol production
facility for a period of five (5) years following the
consummation of the like-kind exchange contemplated
by this agreement. The terms of said lease will be
those terms consistent with the normal practice in
Northwest Kansas with the FIRST PARTY being entitled
to two-thirds (2/3) of the crop production and
government payments and the party of the SECOND PARTY
being entitled to one-third (1/3).
4. FIRST PARTY assigning, transferring and setting over
unto SECOND PARTY, by proper instruments of
assignment and transfer the entire interest, free and
clear of any liens and/or encumbrances those leases
of FIRST PARTY as lessee and in and to certain
railroad right-of-way leases and/or industrial tract
agreements with Union Pacific Railroad Company, lease
audit number OMA5650, Exhibit "A" which is hereto
attached and made a part of this agreement.
5. The granting of an easement for the construction of a
water line easement over and across THE EAST HALF
(E1/4) OF SECTION THIRTY FIVE (S35), TOWNSHIP TEN
SOUTH (T10S), RANGE THIRTY-ONE WEST (R31W) OF THE
SIXTH PRINCIPAL MERIDIAN (6TH P.M.), XXXXXX COUNTY,
KANSAS, AND THE NORTHWEST QUARTER (NW1/4) OF SECTION
TWO (S02) AND THAT PART OF THE SOUTHWEST QUARTER
(SW1/4) OF SECTION TWO (S02) LYING NORTH OF THE UNION
PACIFIC RAILROAD RIGHT-OF-WAY, BOTH IN TOWNSHIP
ELEVEN SOUTH (T11S), RANGE THIRTY-ONE WEST (R31W),
XXXX COUNTY, KANSAS.
SECTION FIVE
Upon consummation of the like-kind as contemplated by this agreement
and in consideration of the mutual promises, covenants and payments hereinbefore
set out, the FIRST PARTY hereby assigns to the SECOND PARTY a voluntary waiver
and dismissal of water rights to the following described water and water rights
as described in appropriation Water Right File NO. 14302 to all water and water
rights appurtenant to that portion of the Northwest Quarter of the Southwest
Quarter (NW1/4SW1/4) of said Section Two (2), lying North of the Union Pacific
right-of-way And to the South Half of the Northwest Quarter (S1/2NW1/4) of
Section Two (2), Township Eleven (11) South, Range Thirty-One (31) West of the
6th P.M., Xxxx County, Kansas.
SECTION SIX
Each party shall furnish to the other a current commitment for an
owners title insurance policy in the amount of the value of the respective
properties being exchanged and reflecting an unencumbered good and merchantable
title on or before thirty (30) days following the execution by the SECOND PARTY
of the option to purchase the XXXXXXX GROUND. Each party shall pay the costs of
the title insurance premium on the property they are exchanging. Upon receipt of
the title commitment, the party to receive the property shall have ten (10) days
to examine the commitment and notify the other, in writing, of any defects. Each
party will then have thirty (30) days following notice of the defects, to cure
the title of defects for which notification has been given. If title defects
cannot be cured by the closing date, the parties can grant an extension of time
during which the party responsible for curing any defects shall use reasonable,
good faith efforts to clear the title defects. In the event of the party's
failure to cure the defects within the extension period, this shall result in
the termination of this exchange agreement.
SECTION SEVEN
It is contemplated and agreed to by the parties hereto that upon the
execution of this agreement, the payment of Five Thousand Dollars ($5,000.00) as
provided herein, and upon the securing of the appropriate deeds and documents of
transfer to the SECOND PARTY of the XXXXXXX GROUND, FIRST PARTY will also
execute the appropriate deeds, easements and transfer documents with both sets
of deeds and transfer documents then being placed with an escrow agent agreeable
to all parties. Said deeds and documents will be held by the escrow agent until
March 1, 2003, or if the option is exercised prior to that time, to the exercise
of the option, at which time the escrow agent will be directed, upon receipt of
the unpaid funds, to distribute the deeds and documents to the party to receive
the same as per this agreement. All future and/or deferred payments shall be
paid through said escrow agent. In the event SECOND PARTY does not exercise its
option to purchase the XXXXXXX GROUND within the time provided herein, then the
escrow agent shall be instructed to return the executed deeds and documents to
the respective parties entitled thereto.
SECTION EIGHT
Upon the exercise of the option by the SECOND PARTY to purchase the
XXXXXXX GROUND, each party agrees to take every step to expedite the conclusion
of this transaction. Each party agrees to execute a proper warranty deed to the
property being conveyed, and, upon completion of the transaction, each party is
to be give immediate possession of the property being conveyed to that party.
SECTION NINE
The parties agree that upon the exercise of the option by the SECOND
PARTY and the conclusion of this transaction, SECOND PARTY shall be responsible
for the payment of
reasonable damages for crop loss occasioned by FIRST PARTY, and/or its tenants,
as a result of the construction, operation, maintenance and repairing of the
water line to be placed on FIRST PARTY'S real estate pursuant to the easement
contemplated by this agreement. SECOND PARTY agrees to construct said water line
in as close proximity to the county road that runs North-South along the
property subject to the water line easement so as to minimize damage to, and
disruption of the use of, FIRST PARTY'S property.
SECTION TEN
This agreement shall be enforceable pursuant to the laws of the State
of Kansas and any action brought to enforce this matter shall be brought in Xxxx
County, Kansas.
SECTION ELEVEN
Any notice required or permitted to be given by the terms of this
agreement shall, in all cases, be considered to mean notice in writing, signed
by or on behalf of the party giving notice.
SECTION TWELVE
It is specifically declared and agreed that time is of the essence in
this agreement.
SECTION THIRTEEN
All disputes, claims, or questions regarding the rights and obligations
of the parties under the terms of the agreement are subject to mediation. Either
party may make a demand for mediation by filing such demand in writing with the
other party within three (3) days after the dispute first arises.
SECTION FOURTEEN
In the event that any action is filed in relation to this agreement,
the unsuccessful party in the action shall pay to the successful party, in
addition to all sums that either party may be called upon to pay, a reasonable
sum for the successful party's attorney fees.
SECTION FIFTEEN
This agreement shall constitute the entire agreement between the
parties, and any prior understanding or representation of any kind preceding the
date of this agreement should not be binding upon either party, except to the
extent incorporated in this agreement.
SECTION SIXTEEN
Any modification of this agreement or additional obligations assumed by
either party in connection with this agreement shall be binding only if
evidenced in a writing signed by each party or an authorized representative of
each party.
SECTION SEVENTEEN
This agreement shall bind and inure to the benefit of the respective
heirs, personal representatives, successors and assigns of the parties.
IN WITNESS WHEREOF each party to this agreement has caused it to be
executed on the date indicated below.
XXXX X. XXXXX TRUST WESTERN PLAINS ENERGY, L.L.C.
UNDER TRUST AGREEMENT DATED
DECEMBER 13, 1993
BY: /s/ Xxxx X. Xxxxx, Trustee BY: /s/ Xxxx Xxxxxxxx, CFO
-------------------------- ----------------------------------
Xxxx X. Xxxxx, Trustee Xxxx Xxxxxxxx, Chief Financial Officer
ACKNOWLEDGEMENT
STATE OF KANSAS, COUNTY OF XXXX, XX:
BE IT REMEMBERED, that on this 23rd day of November, 2001, before me,
the undersigned, a Notary Public within and for the County and State aforesaid,
came Xxxx X. Xxxxx, Trustee of the XXXX X. XXXXX TRUST, under trust agreement
dated the 13th day of December, 1993, who is personally known to me to be the
same person who executed the above Agreement and such person duly acknowledged
the execution of the same.
IN TESTIMONY WHEREOF, I have hereunto set my hand and seal the day and
year first above written.
/s/ Xxxx Xxx Xxxxxxx
--------------------
Notary Public
My term expires: 0-00-00
XXXXXXXXXXXXXX
XXXXX XX XXXXXX, XXXXXX OF XXXX:
BE IT REMEMBERED, that on this 24 day of November, 2001, before me, the
undersigned, a notary public in and for the county and State aforesaid came Xxxx
Xxxxxxxx, Chief Financial Officer, of Western Plains Energy, LLC, a corporation
duly organized, incorporated and existing under and by virtue of the laws of
Kansas, who is personally known to me to be the same person who executed the
within instrument of writing and such person duly acknowledged the execution of
the same to be the act and deed of said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand, and affixed my
official seal the day and year last above-mentioned.
/s/ Xxxx Xxx Xxxxxxx
--------------------
Notary Public
My term expires: 1-29-06
EXHIBIT A
LEASE OF PROPERTY
THIS LEASE ("Lease") is entered into on the 11th day of December, 1995
between UNION PACIFIC RAILROAD COMPANY ("Lessor"), and XXXXX, XXXX X., an
individual, whose address is Xxxx X. Xxxxx, Xx. 0, Xxxxxx, XX 00000 ("Lessee").
IT IS AGREED BETWEEN THE PARTIES AS FOLLOWS:
Article I. PREMISES; USE.
Lessor leases to Lessee and Lessee leases from Lessor the premises
("Premises"), at Campus, Kansas, as shown on the print dated November 7, 1995
marked Exhibit A, hereto attached and made a part hereof, subject to the
provisions of this Lease and of Exhibit B attached hereto and made a part
hereof. The Premises may be used for agricultural purposes and purposes
incidental thereto, only, and for no other purpose.
Article II. TERM.
The term of this Lease shall commence on February 14, 1996, and unless
sooner terminated as provided in this Lease, shall extend for one year and
thereafter shall automatically be extended from year to year.
Article III. RENT.
A. Lessee shall pay to Lessor, in advance, rent of Ten Dollars ($10.00)
per year, payable five (5) years in advance.
B. Not more than once every five (5) years, Lessor may redetermine the
rent. In the event Lessor does redetermine the rent, Lessor shall notify Lessee
of such change.
Article IV. SPECIAL PROVISION - CANCELLATION.
Effective upon commencement of the term of this Lease, the Lease dated
April 28, 1981, identified as Audit No. OMA5650, together with any and all
supplements and amendments, is cancelled and superseded by this Lease, except
for any rights, obligations or liabilities arising under such prior lease
before cancellation, including any consent to conditional assignment, chattel
agreement, or consent to sublease.
IN WITNESS WHEREOF, the parties have executed this Lease as of the date
and year first above written.
UNION PACIFIC RAILROAD COMPANY XXXXX, XXXX X.
By: /s/ X.X. Xxxx By: /s/ Xxxx X. Xxxxx
----------------------------------- ----------------------------
Sr. Manager - Real Estate
Note: Cancels and Supersedes Lease OMA560 dated 4/28/81.
EXHIBIT A TO LEASE AUDIT NUMBER OMA5650
[Map Not Reproduced]
EXHIBIT B TO LEASE AUDIT NUMBER OMA5650
SECTION 1. IMPROVEMENTS.
No improvements placed upon the Premises by Lessee shall become a part
of the realty.
SECTION 2. RESERVATIONS AND PRIOR RIGHTS.
A. Lessor reserves to itself, its agents and contractors, the
right to enter the Premises at such times as will not
unreasonably interfere with Lessee's use of the Premises.
X. Xxxxxx reserve (i) the exclusive right to permit third party
placement of advertising signs on the Premises, and (ii) the
right to construct, maintain and operate new and existing
facilities (including, without limitation, trackage, fences,
communication facilities, roadways and utilities) upon, over,
across or under the Premises, and to grant to other such
rights, provided that Lessee's use of the Premises is not
interfered with unreasonably.
C. This Lease is made subject to all outstanding rights, whether
or not of record. Lessor reserves the right to renew such
outstanding rights.
SECTION 3. PAYMENT OF RENT.
Rent (which includes the annual rent and all other amounts to be paid
by Lessee under this Lease) shall be paid in lawful money of the United States
of America, at such place as shall be designated by the Lessor, and without
offset or deduction.
SECTION 4. TAXES AND ASSESSMENTS.
A. Lessee shall pay, prior to delinquency, all taxes levied
during the life of this Lease on all personal property and
improvements on the Premises not belonging to Lessor. If such
taxes are paid by Lessor, either separtely or as a part of the
levy on Lessor's real property, Lessee shall reimburse Lessor
in full within thirty (30) days after rendition of Xxxxxx'x
xxxx.
B. If the Premises are specially assessed for public
improvements, the annual rent will be automatically increased
by 12% of the full assessment amount.
SECTION 5. WATER RIGHTS.
This Lease does not include any right to the use of water under any
water right of Lessor, or to establish any water rights except in the name of
Lessor.
SECTION 6. CARE AND USE OF PREMISES.
A. Lessee shall use reasonable care and caution against damage or
destruction to the Premises. Lessee shall not use or permit
the use of the Premises for any unlawful purpose, maintain any
nuisance, permit any waste, or use the Premises in any way
that creates a hazard to persons or property. Lessee shall
keep the Premises in a safe, neat, clean and presentable
condition, and in good condition and repair. Lessee shall keep
the sidealks and public ways on the Premises, and the walkways
appurtenant to any railroad spur track(s) on or serving the
Premises, free and clear from any substance which might create
a hazard and all water flow shall be directed away from the
tracks of the Lessor.
B. Lessee shall not permit any sign on the Premises, except signs
relating to Lessee's business.
C. If any improvement on the Premises not belonging to Lessor is
damaged or destroyed by fire or other casualty, Lessee shall,
within thirty (30) days after such casualty, remove all debris
resulting therefrom. If Lessee fails to do so, Lessor may
remove such debris, and Lessee agrees to reimburse Lessor for
all expenses incurred within thirty (30) days after rendition
of Xxxxxx'x xxxx.
D. Lessee shall comply with all governmental laws, ordinances,
rules, regulations and orders relating to Lessee's use of the
Premises.
SECTION 7. HAZARDOUS MATERIALS, SUBSTANCES AND WASTES.
A. Without the prior written consent of Lessor, Lessee shall not
use or permit the use of the Premises for the generation, use,
treatment, manufacture, production, storage or recycling of
any Hazardous Substances, except that Lessee may use (i) small
quantities of common chemicals such as adhesives, lubricants
and cleaning fluids in order to conduct business at the
Premises and (ii) other Hazardous Substances, other than
hazardous wastes as defined in the Resource Conservation and
Recovery Act, 42 U.S.C. Sections 6901, ET SEQ., as amended
("RCRA"), that are necessary for the conduct of Lessee's
business at the Premises as specified in Article I. The
consent of Lessor may be withheld by Lessor for any reason
whatsoever, and may be subject to conditions in addition to
those set forth below. It shall be the sole responsibility of
Lessee to determine whether or not a contemplated use of the
Premises is a Hazardous Substance use.
B. In no event shall Lessee (i) release, discharge or dispose of
any Hazardous Substances, (ii) bring any hazardous wastes as
defined in RCRA onto the Premises, (iii) install or use on the
Premises any underground storage tanks, or (iv) store any
Hazardous Substances within one hundred feet (100') of the
center line of any main track.
C. If Lessee uses or permits the use of the Premises for a
Hazardous Substance use, with or without Lessor's consent,
Lessee shall furnish to Lessor copies of all permits,
identification numbers and notices issued by governmental
agencies in connection with such Hazardous Substance use,
together with such other information on the Hazardous
Substance use as may be requested by Lessor. If requested by
Lessor, Lessee shall cause to be performed an environmental
assessment of the Premises upon termination of the Lease and
shall furnish Lessor a copy of such report, at Lessee's sole
cost and expense.
D. Without limitation of the provisions of Section 12 of this
Exhibit B, Lessee shall be responsible for all damages,
losses, costs, expenses, claims, fines and penalties related
in any manner to any Hazardous Substance use of the Premises
(or any property in proximity to the Premises) during the term
of this Lease or, if longer, during Lessee's occupancy of the
Premises, regardless of Lessor's consent to such use, or any
negligence, misconduct or strict liability of any Indemnified
Party (as defined in Section 12), and including, without
limitation, (i) any diminution in the value of the Premises
and/or any adjacent property of any of the Indemnified
Parties, and (ii) the cost and expense of clean-up,
restoration, containment, remediation, decontamination,
removal, investigation, monitoring, closure or post-closure.
Notwithstanding the foregoing, Lessee shall not be responsible
for Hazardous Substance (i) exisitng on, in or under the
Premises prior to the earlier to occur of the commencement of
the term of the Lease or Lessee's taking occupancy of the
Premises, or (ii) migrating from adjacent property not
controlled by Lessee, or (iii) placed on, in or under the
Premises by any of the Indemnified Parties, except where the
Hazardous Substance is discovered by, or the contamination is
exacerbated by, any excavation or investigation undertaken by
or at the behest of Lessee. Lessee shall have the burden of
proving by a preponderance of the evidence that any exceptions
of the foregoing to Lessee's responsibility for Hazardous
Substances applies.
E. In addition to the other rights and remedies of Lessor under
this Lease or as may be provided by law, if Lessor reaonsably
determines that the Premises may have been used during the
term of this Lease or any prior lease with Lessee for all or
any portion of the Premises, or are being used for any
Hazardous Substance use, with or without Lessor's consent
thereto, and that a release or other contamination may have
occurred, Lessor may, at its election and at any time during
the life of this Lease or thereafter (i) cause the Premises
and/or any adjacent premises of Lessor to be tested,
investigated, or monitored for the presence of any Hazardous
Substance, (ii) cause any Hazardous Substance to be removed
from the Premises and any adjacent lands of Lessor, (iii)
cause to be performed any restoration of the Premises and any
adjacent lands of Lessor, and (iv) cause to be performed any
remediation of, or response to, the environmental condition of
the Premises and the adjacent lands of Lessor, as Landlord
reasonably may deem necessary or desirable, and the cost and
expense thereof shall be reimbursed by Lessee to Lessor within
thirty (30) days after rendition of Xxxxxx'x xxxx. In
addition, Lessor may, at its election, require Lessee, at
Lessee's sole cost and expense, to perform
such work, in which event, Lessee shall promptly commence to
perform and thereafter diligently prosecute to completion such
work, using one or more contractors and a supervising
consulting engineer approved in advance by Lessor.
F. For purposes of this Section 7, the term "Hazardous
Substance" shall mean (i) those substances included within
the definitions of "hazardous substance", "polluant",
"contaminant", or "hazardous waste", in the Comprehensive
Environmental Response, Compensation and Liability Act of
1980, 42 U.S.C. Sections 9601, ET SEQ., as amended or in
RCRA, the regulations promulgated pursuant to either such
Act, or state laws and regulations similar to or
promulgated pursuant to either such Act, (ii) any material,
waste or substance which is (A) petroleum, (B) asbestos,
(C) flammable or explosive, or (D) radioactive; and (iii)
such other substances, materials and wastes which are or
become regulated or classified as hazardous or toxic under
federal, state or local law.
SECTION 8. UTILITIES.
A. Lessee will arrange and pay for all utilities and services
supplied to the Premises or to Lessee.
B. All utilities and services will be separately metered to
Lessee. If not separately metered, Lessee shall pay its
proportionate share as reasonably determined by Lessor.
SECTION 9. LIENS.
Lessee shall not allow any liens to attach to the Premises for any
services, labor or materials furnished to the Premises or otherwise arising from
Lessee's use of the Premises. Lessor shall have the right to discharge any such
liens at Lessee's expense.
SECTION 10. ALTERATIONS AND IMPROVEMENTS; CLEARANCES.
A. No alterations, improvements or installations may be made on
the Premises without the prior consent of Lessor. Such
consent, if given, shall be subject to the needs and
requirements of the Lessor in the operation of its Railroad
and to such other conditions as Lessor determines to impose.
In all events such consent shall be conditioned upon strict
conformance with all applicable governmental requirements and
Lessor's then-current clearance standards.
B. All alterations, improvements or installations shall be at
Lessee's sole cost and expense.
C. Lessee shall comply with Lessor's then-current clearance
standards, except (i) where to do so would cause Lessee to
violate an applicable governmental requirement, or (ii) for
any improvement or device in place prior to Lessee taking
possession of the Premises if such improvement or device
complied with Lessor's clearance standard at the time of its
installation.
D. Any actual or implied knowledge of Lessor of a violation of
the clearance requirements of this Lease or of any
governmental requirements shall not relieve Lessee of the
obligation to comply with such requirements, nor shall any
consent of Lessor be deemed to be representation of such
compliance.
SECTION 11. AS-IS.
Lessee accepts the Premises in its present condition with all faults,
whether patent or latent, and without warranties or covenants, express or
implied. Lessee acknowledges that Lessor shall have no duty to maintain, repair
or improve the Premises.
SECTION 12. RELEASE AND INDEMNIFY.
A. As a material part of the consideration for this Lease,
Lessee, to the extent it may lawfully do so, waives the
releases any and all claims against Lessor for, and agrees to
indemnify, defend and hold harmless Lessor, its affiliates,
and its and their officers, agents and employees ("Indemnified
Parties") from and agsint, any loss, damage (including,
without limitation, punitive or consequential damages),
injury, liability, claim, demand, cost or expense (including,
without limitation, attorneys' fees and court costs), fine or
penalty (collectively, "Loss") incurred by any person
(including, without limitation, Lessor, Lessee, or any
employee of Lessee) and arisng from or related to (i) any use
of the Premises by Lessee or any invitee or licensee of
Lessee, (ii) any act or omission of Lessee, its officers,
agents, employees, licensees or invitees, or (iii) any breach
of this Lease by Lessee.
B. The foregoing release and indemnity shall apply regardless of
any negligence, misconduct or strict liability of any
Indemnified Party, except that the indemnity, only, shall not
apply to any Loss caused by the sole, active and direct
negligence of any Indemnified Party if the Loss (i) was not
occasioned by fire or other casualty, or (ii) was not
occasioned by water, including, without limitation, water
damage due to the position, location, construction or
condition of any structures or other improvements or
facilities of any Indemnified Party.
C. Where applicable to the Loss, the liability provisions of any
contract between Lessor and Lessee covering the carriage of
shipments or trackage serving the Premises shall govern the
Loss and shall supersede the provisions of this Section 12.
D. No provision of this Lease with respect to insurance shall
limit the extent of the release and indemnity provisions of
this Section 12.
SECTION 13. TERMINATION.
A. Lessor may terminate this Lease by giving Lessee notice of
termination, if Lessee (i) fails to pay rent within fifteen
(15) days after the due date, or (ii) defaults under any other
obligation of Lessee under this Lease and, after written
notice is given by Lessor to Lessee specifying the default,
Lessee fails either to immediately commence to cure the
default, or to complete the cure expeditiously but in all
events within thirty (30) days after the default notice is
given.
B. Notwithstanding the term of this Lease set forth in Article
II.A., Lessor or Lessee may terminate this Lease without cause
upon thirty (30) days' notice to the other party; provided,
however, that at Lessor's election, no such termination be
Lessee shall be effective unless and until Lessee has vacated
and restored the Premises as required in Section 15A.
SECTION 14. LESSOR'S REMEDIES.
Lessor's remedies for Lessee's default are to (a) enter and take
possession of the Premises, without terminating this Lease, and relet the
Premises on behalf of Lessee, collect and receive the rent from reletting, and
charge Lessee for the cost of reletting and/or (b) terminate this Lease as
provided in Section 13A above and xxx Lessee for damages, and/or (c) exercise
such other remedies as Lessor may have at law or in equity. Lessor may enter and
take possession of the Premises by self-help, by changing locks, if necessary,
and may lock out Lessee, all without being liable for damages.
SECTION 15. VACATION OF PREMISES; REMOVAL OF LESSEE'S PROPERTY.
A. Upon termination howsoever of this Lease, Lessee (i) shall
have peaceably and quietly vacated and surrendered possession
of the Premises to Lessor, without Lessor giving any notice to
quit or demand for possession, and (ii) shall have removed
from the Premises all structures, property and other materials
not belonging to Lessor, and restored the surface of the
ground to as good a condition as the same was in before such
structures were erected, including, without limitation, the
removal of foundations, the filling in of excavations and
pits, and the removal of debris and rubbish.
B. If Lessee has not completed such removal and restoration
within thirty (30) days after termination of this Lease,
Lessor may, at its election, and at any time or times, (i)
perform the work and Lessee shall reimburse Lessor for the
cost thereof within thirty (30) days after xxxx is rendered,
(ii) take title to all or any portion of such structures or
property by giving notice of such election to Lessee, and/or
(iii) treat Lessee as a holdover tenant at will until such
removal and restoration is completed.
SECTION 16. FIBER OPTICS.
Lessee shall telephone Lessor at 0-000-000-0000 (a 24-hour number) to
determine if fiber optic cable is buried on the Premises. If cable is buried on
the Premises, Lessee will telephone the telecommunications company(ies), arrange
for a cable locator, and make arrangements for relocation or other protection of
the cable. Notwithstanding compliance by Lessee with this Section 16, the
release and indemnity provisions of Section 12 above shall apply fully to any
damage or destruction of any telecommunications systems.
SECTION 17. NOTICES.
Any notice, consent or approval to be given under this Lease shall be
in writing, and personally served, sent by reputable courier service, or sent by
certified mail, postage prepaid, return receipt requested, to Lessor at:
Xxxxxxxxx & Xxxx Xxxxxx Xxxxxxxxxx, Xxxx 0000, 0000 Xxxxx Xxxxxx, Xxxxx,
Xxxxxxxx 00000; and to Lessee at the above address, or such other address as a
party may designate in notice given to the other party. Mailed notices shall be
deemed served five (5) days after deposit in the U.S. Mail. Notices which are
personally served or sent by courier service shall be deemed served upon
receipt.
SECTION 18. ASSIGNMENT.
A. Lessee shall not sublease the Premises, in whole or in part,
or assign, encumber or transfer (by operation of law or
otherwise) this Lease, without the prior consent of Lessor,
which consent may be denied at Lessor's sole and absolute
discretion. Any purported transfer or assignment without
Lessor's consent shall be void and shall be a default by
Lessee.
B. Subject to this Section 18, this Lease shall be binding upon
and inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, successors and
assigns.
SECTION 19. CONDEMNATION.
If, as reasonably determined by Lessor, the Premises cannot be used by
Lessee because of a condemnation or sale in lieu of condemnation, then this
Lease shall automatically terminate. Lessor shall be entitled to the entire
award or proceeds for any total or partial condemnation or sale in lieu thereof,
including, without limitation, any award or proceeds for the value of the
leasehold estate created by this Lease. Notwithstanding the foregoing, Lessee
shall have the right to pursue recovery from the condemning authority of such
compensation as may be separately award to Lessee for Lessee's relocation
expenses, the taking of Lessee's personal property and fixtures, and the
interruption of or damage to Lessee's business.
SECTION 20. ATTORNEY'S FEES.
If either party retains an attorney to enforce this Lease (including,
without limitation, the indemnity provisions of this Lease), the prevailing
party is entitled to recover reasonable attorney's fees.
SECTION 21. ENTIRE AGREEMENT.
The Lease is the entire agreement between the parties, and supersedes
all other oral or written agreements between the parties pertaining to this
transaction. Except for the unilateral redetermination of annual rent as
provided in Article III.A., this Lease may be amended only by a written
instrument signed by Lessor and Lessee.
