Reference: Section 17(a)iv
LEASE OF INDUSTRIAL PROPERTY
FROM U.P.
(GRAND ISLAND, NEBRASKA)
LEASE OF INDUSTRIAL PROPERTY
THIS LEASE ("Lease") is entered into on the 13 day of February 1998
between UNION PACIFIC RAILROAD COMPANY ("Lessor") and CXT INCORPORATED, whose
address is North 2420 ▇▇▇▇▇▇▇▇ Road, P. 0. ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇ ("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 Grand Island, Nebraska, as shown on the print dated February 6,
1998, 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 manufacture of concrete ties for the
Lessor's use, and such other uses as may be permitted in the Restated Supply
Agreement referred to in Article II of this Lease, and for no other purpose.
Article II. TERM.
The term of this Lease shall commence on the Thirteenth day of
February, 1998, and shall extend for a term of run coterminous with that
certain Restated Supply Agreement dated October 1, 1997, by and between the
Lessor and lessee. This Lease shall terminate or expire on the same date that
said Restated Supply Agreement terminates or expires.
Article III. RENT.
A. Lessee shall pay to Lessor, in advance, rent of One Dollar ($1.00)
per annum.
B. Not more than once every sixty eight (68) months, Lessor may
redetermine the rent. In the event Lessor does redetermine the rent, Lessor
shall notify Lessee of such change.
Article IV. SPECIAL PROVISIONS.
A. The words, "which shall not be unreasonably withheld." shall be
added to the end of the first
sentence of Section 10.A. of Exhibit B.
B. Section 13.B of Exhibit B shall be deleted.
IN WITNESS WHEREOF, the parties have executed this Lease as of the day
and year first herein written.
UNION PACEFIC RAILROAD COMPANY CXT INCORPORATED
By: /c/▇▇▇▇▇▇▇ ▇. ▇▇▇▇ By: /c/▇. ▇▇▇▇▇
Title: Sr. Mgr. - Real Estate Title: President & CEO
NOTE: New.
IND LS 110695
APPROVED, LAW
EXHIBIT B
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.
3. Lessor reserves (i) the exclusive right to permit third party
placement of advertising signs an the Premises, and (ii) the right to
construct, maintain and operate now and existing facilities (including, without
limitation, trackage, fences, communication facilities, roadways and utilities)
upon, over, across or under the Premises, and to grant to others 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. Lesser 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. Losses shall pay, prior to delinquency, all taxes levied during the
life of this ▇▇▇▇▇ an all personal property and improvements on the Premises
not belonging to Lessor. If such taxes are paid by Lessor, either separately or
an a part of the levy on Lessor's real property, Lessee shall reimburse Lessor
in full within thirty (30) days after rendition of ▇▇▇▇▇▇'▇ ▇▇▇▇.
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
Lesser.
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 sidewalks
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.
3. Lesses 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 Lesee agrees to reimburse
Lessor for all expenses incurred within thirty (30) days after rendition of
▇▇▇▇▇▇'▇ ▇▇▇▇.
D. Lessee shall comply with all governmental laws, ordinances, rules,
regulations and orders relating to Leseee's use of the Premises.
Section 7. HAZARDOUS MATERIALS, SUBSTANCES AND WASTES.
A. Without tho 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. 55 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 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 an 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 Lossor'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
Substances (i) existing 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, it Lessor reasonably 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, aa 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 ▇▇▇▇▇▇'▇ ▇▇▇▇. 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", "pollutant", "contaminant", or "hazardous waste", in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42
U.S.C. SS 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) flamable or explosive, or D)
radioactive; and (iii) such other substances, materials and wastes which are or
become regulated or classified an 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.
Lesee 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 an the
Premises without the prior consent of ▇▇▇▇▇▇. 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 govornmental 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 standards 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 a 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 INDEMNITY
A. As a material part of the consideration for this Lease, Lessee, to
the extent it may lawfully do so, waives and 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 against, 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 penaIty (collectively, "Loss") incurred by any person (including, without
limitation, Lessor, Lessee, or any employee of Lessor or Lessee) and arising
from or related to (i) any use of the Premises by Lessee or any invitee or
licensee of Lessee, (ii) any act or emission 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 expaditiously 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 by Lessee shall be effective unless and until Lessee has
vacated and restored the Premises as required in Section 15A, at which time
Lessor shall refund to Lessee, on a pro rata basis, any unearned rental paid in
advance.
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 an 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 13 A) above and ▇▇▇ Lessee for damages, and/or (c) exercise
such other remedies as Lessor may have at law or in equity. Lesser may enter
and take possession of the Premises by self - help, by changing locks, if
necessary, and may lock out Leesee, 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.
a. 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 ▇▇▇▇ 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 ▇-▇▇▇-▇▇▇-▇▇▇▇ (a 24-hour number) to
determine if fiber optic cable is buried an the Premises. If cable is buried on
the Premises, Lessee will telephone the telecommunications ▇▇▇▇▇▇▇(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 system.
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:
Contracts a Real Estate Department, Room 1100, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇; 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 awarded 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 in
entitled to recover reasonable attorney's fees.
Section 21. ENTIRE AGREEMENT.
This 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., this Lease may be amended only by a written instrument
signed by Lessor and Lessee.
