THIS LEASE AGREEMENT ("Lease") is made this 26th day of June, 2009 (the
"Effective Date"), by and between XXXXXX XXXXXXX and XXXXXXX FARMS
(collectively "Landlord") and BION PA 1 LLC, a Pennsylvania limited liability
WHEREAS, Landlord is owner of that certain parcel of real estate more
particularly described on Exhibit A, attached hereto and made a part hereof
(the "Property"); and
WHEREAS, Landlord and Tenant are parties to that certain Addendum dated
June __, 2009 (including exhibits thereto) (the "Agreement"), attached hereto
and made a part hereof as Exhibit B, pursuant to which Tenant was granted the
right to, inter alia, design, install, construct, operate, maintain and
repair a waste treatment and renewable energy generation system and related
facilities on the Property (the "System"); and
WHEREAS, Landlord and Tenant desire to enter into the within Lease to
permit Tenant to design, install, construct, operate, maintain and repair the
System in, upon, under and across the Property; and
NOW, THEREFORE, for good and valuable consideration, including the
consideration set forth in the Agreement, the receipt and sufficiency of
which are hereby acknowledged, and with the intent to be legally bound,
Landlord and Tenant hereby agree as follows.
1. BASIC LEASE PROVISIONS
(a) Recitals. The foregoing recitals are hereby incorporated herein as
if set forth herein.
(b) Premises. The dashed red line on Exhibit C outlines the Premises.
Exhibit C also shows the general project location for the Bion waste
management system to be installed at the Xxxxxxx Dairy farm and depicts the
general area where construction activity will be take place for installation
of piping, equipment, buildings, electrical, etc. required for a complete and
functional installation. Additionally, Exhibit C shows two locations where
operation and equipment buildings may be located within the Premises. The
location of these facilities will be finalized during the design process
based on site conditions, requirements for Xxxxxxx Farm integration and
project design requirements.
(i) The Premises, includes, but is not limited to, the following,
the location of which is identified as the "Project Work Area" on Exhibit C:
(ii) an existing 1.2 million gallon tank (the "Tank");
(iii) the existing lagoons (the "Lagoon");
(iv) an existing waste storage tank located beneath the walkway
from the milk cow barn to the milk house will serve as the waste reception
basin in the Bion system (the "Basin");
(v) an operations building of approximately 4,000 square feet (the
"Operations Building") to be constructed by the Tenant in the general area
identified as "Building Location 2" on Exhibit C;
(vi) an equipment building of approximately 1,000 square feet
(the "Equipment Building") to be constructed by the Tenant in the general
area identified as "Building Location 1" on Exhibit C;
(vii) sufficient space to accommodate any vehicle parking
associated with the Permitted Use (as hereinafter defined); and
(viii) existing and to-be-installed above and below-ground lines,
pipes and drains to and from the Tank, Lagoon, Basin, Operations Building and
Equipment Building (collectively, the "Lines"); provided, however, that
Tenant shall have the right, as it deems necessary, to move any of the
existing Lines to a location reasonably acceptable to Landlord. Said Lines
will be located within the area identified as the "Project Work area on
Exhibit C with final locations to be coordinated with the Landlord.
(ix) interconnection of farm utilities for Bion system use,
including electrical, water, sewer, and telephone use; provided an
appropriate cost tracking mechanism is established with the Landlord (e.g.
meter installation). The utility interconnection (the "Utility
Interconnection") points may need to take place outside of the Premises due
to infrastructure logistics and Landlord hereby consents to interconnections
in such locations outside the Premises as may be required.
(x) Permitted Use of Premises and portions of the Property outside
of the Premises during the construction phase will include, without
limitation, use for temporary storage of materials and equipment and other
items, construction trailer parking, if necessary, and potentially a space
for interim waste handling equipment/operations while the transition is
taking place from existing waste treatment process to Bion treatment system
operations. Additionally, during construction and start-up operational
periods, additional land areas on Landlord's Property outside the Premises
may be required for location of construction trailers, storage of
construction materials and other purposes. Landlord hereby consents to such
uses of land outside the Premises with such sites to be located on Landlord's
Property at mutually agreed upon location(s).
(xi) space within the Premises for storing solids captured during
Bion's treatment process; provided that the Landlord shall provide for the
space on the Premises only, and Tenant is responsible for the cost of any
equipment or facilities needed for such storage.
(xii) The existing calve barn (the elongated structure at the
south east corner of the 'Building Location 2' notation) is within the
Premises. Landlord shall continue to have access to and use of the calf barn
unless Landlord and Tenant jointly agree otherwise.
(xiii) In addition, Landlord hereby grants Tenant, effective as of
the Effective Date, a non-exclusive pedestrian and vehicular access easement
over, upon and through the Property to access the Premises from a public road
and perform such other activities as necessary for the Permitted Use, upon
the same terms and conditions as the Premises.
(xiv) As a portion of the Premises contains common and joint
infrastructure use areas essential for the operations of Xxxxxxx Dairy Farm
("Common Areas"), the Common Areas of the Premises shall be jointly used by
Landlord and Tenant subject to mutually agreed upon procedures.
(d) Bio-Security. Due to bio-security concerns, no waste or manure
obtained from outside the Premises or from non-Xxxxxxx sources shall be
processed, stored or used in the System without the prior written consent of
(e) Term. The term of the Lease (the "Term") shall commence on the
Commencement Date and shall expire on the twentieth annual anniversary of the
Commencement Date, unless extended by the parties or sooner terminated
pursuant to the provisions hereof. If Tenant ceases operation of the System
on the Premises for a continuous period of one hundred and eighty (180) days
and is not otherwise engaged in any activity to restart, repair, maintain or
modify the System to restore it to working order, Landlord shall have the
right to terminate the Lease upon thirty (30) days advanced written notice to
(f) Commencement Date. The "Commencement Date" shall be the date
Tenant commences commercial operation of the waste treatment portion of the
(g) Permitted Use. Tenant may use the Premises for the design,
construction, installation, operation, maintenance and repair of the System,
including without limitation such uses set forth above, and any legally
permitted use appurtenant thereto.
Tenant's Address. Xxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxx, President
Landlord's Address: 0000 Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
(h) Brokers. None.
(i) Security Deposit. None.
(j) Exhibits. The following Exhibits are attached to and made a part
of this Lease:
Exhibit A - Legal Description of the Property
Exhibit B - Addendum dated June 26, 2009 (and all exhibits thereto)
Exhibit C - Graphic Depiction of Premises
Exhibit D - Insurance Coverage
2. LEASE OF PREMISES
Landlord hereby leases to Tenant and Tenant hereby takes and hires from
Landlord the Premises for the Term and upon the conditions and agreements set
forth in this Lease.
The consideration for this Lease includes (a) the mutual covenants and
promises contained in the Agreement and (b) the sum of One Dollar ($1.00)
paid by Tenant to Landlord as of the Effective Date. Except as set forth in
this Section 3 and Section 17, Tenant is not responsible for paying any other
monies to Landlord pursuant to this Lease.
(a) Change in Taxes and Special Assessments. Paragraph 12
notwithstanding, the Tenant will pay, as additional rent, any change in all
real estate taxes, charges and assessments levied or assessed on the Premises
during the term of this Lease by any public or governmental body, which may
be assessed or levied by virtue of any business or activity conducted on the
Premises by the Tenant . Tenant shall have all the rights of Landlord to
appeal from any such tax, charge, assessments and levies in the name, place
and stead of Landlord at Tenant's expense, provided that Landlord may require
that the Tenant deposit with Landlord a sum sufficient to pay the entire
amount of the asserted tax, charge, assessment or levy plus interest and
penalty during such appeal.
(b) Loss of Preference. Additionally, if improvements made to the
Premises by the Tenant or any use thereof by the Tenant cause a loss of
preferential status on the portion of the premises retained by the Landlord,
the Tenant will pay as additional rent any additional taxes arising from this
loss of preferential status. Such preferences would include but not be
limited to "Clean and Green".
4. OTHER CHARGES PAYABLE BY TENANT
Except as set forth in Section 3 and Section 17 herein, Tenant is not
responsible for paying any monies to Landlord pursuant to this Lease.
5. ENVIRONMENTAL MATTERS; COMPLIANCE WITH LAWS
(a) Hazardous Materials. "Hazardous Materials" shall mean (i) asbestos
in any form; (ii) urea formaldehyde foam insulation; (iii) transformers or
other equipment that contain dielectric fluid containing levels of
polychlorinated biphenyls in excess of 50 parts per million; and (iv) any
other chemical, material, air pollutant, toxic pollutant, waste, or substance
that is: (1) regulated as toxic or hazardous a pollutant or contaminant or
constitutes a municipal, residual or hazardous waste or exposure to which is
prohibited, limited to regulation by the Resource Conservation and Recovery
Act ("RCRA") (42 U.S.C. Sec. 6901, et seq.), the Comprehensive Environmental
Response, Compensation and Liability Act ("CERCLA") (42 U.S.C. Sec. 9601, et
seq., the Hazardous Materials Transportation Act, as amended, (49 U.S.C. Sec.
1801, et seq. ("TSCA") (15 U.S.C. Sec. 2601, et seq.), the Toxic Substances
Control Act, and Clean Air Act, as amended (42 U.S.C. Sec. 7401) and the
Clean Water Act, ("CWA") (33 U.S.C. Sec. 1251, et seq.) or any amendment
thereto, or any other federal, state, county, regional, local or other
governmental statute, regulation, or authority, or which, even if not so
regulated, may or could pose a hazard to the health and safety of the
occupants of the Premises or the owners of properties adjacent to the
Premises and is either (2) present in amounts in excess of that permitted or
deemed safe under applicable law or (3) handled, stored or otherwise used in
any way that is prohibited or deemed unsafe under applicable law.
(b) Indemnity. Landlord shall indemnify Tenant and hold Tenant, its
directors, officers, employees, agents, successors and assigns (each a
"Tenant Party"), harmless from and against all loss, damage, and expense
(including, without limitation, attorneys' fees, environmental experts' fees,
and costs incurred in the investigation, defense, and settlement of claims)
associated with or arising in connection with Hazardous Materials or
environmental laws to the extent such arise out of the generation or presence
of Hazardous Materials at or on the Premises that existed as of the Effective
Date and Hazardous Materials at or on the Premises which were released,
discharged or generated by Landlord from its adjacent property.
(c) Tenant's Covenants. Tenant agrees that, at all times during the
Term, Tenant shall:
(i) not cause or knowingly permit any Hazardous Materials to
escape, seep, leak, spill or be discharged, emitted or released from the
Premises in violation of any applicable environmental law or regulation;
(ii) notify Landlord of any release of Hazardous Material or any
notice of any such release from any governmental agency; and
(iii) indemnify and hold Landlord harmless from any and all
demands, claims causes of action, penalties, liabilities, damages and
expenses (including attorney's fees and cost of cleanup or remediation)
incurred by Landlord as a result of the presence of Hazardous Materials in or
about the Premises caused by the operations of Tenant at the Premises.
6. QUIET ENJOYMENT
(a) Landlord's Warranties. Landlord warrants (i) that it has legal and
beneficial title to the Premises, free and clear of all adverse proprietary
claims, (ii) that it has full right to execute and to perform the obligations
of this Lease and to lease the Premises to Tenant pursuant to the provisions
of this Lease without the joinder or consent of any other party, (iii) that
this Lease and the Premises and access thereto are not encumbered in any way
which would preclude Tenant's use and occupancy of the Premises pursuant to
this Lease, (iv) that Landlord shall not enter into an agreement or action
that would breach the provisions of this Lease, and (v) that any sale or
transfer of the Property or the Premises by Landlord from and after the
Effective Date through the expiration of the Term of this Lease shall be made
subject to the provisions of this Lease.
(b) No Interference. Landlord covenants and warrants that Tenant shall
peaceably and quietly have, hold, and enjoy the Premises during the Term
without molestation, hindrance, or interference.
Landlord warrants and represents that the Premises, access thereto and
Tenant's use thereof (as stated herein) are and shall be, as of the Effective
Date, in compliance with all applicable zoning or building codes, ordinances,
regulations, statutes, rules, orders, restrictions of record, restrictive
covenants, and other applicable legal requirements, including, without
limitation, the Occupational Safety and Health Act (OSHA) and the Americans
with Disabilities Act (ADA).
8. DUE DILIGENCE / CONDITION OF PREMISES
(a) Due Diligence Materials. Within five (5) days after the Effective
Date, Landlord shall provide Tenant with any and all engineering studies,
surveys, reports, permits, environmental studies, governmental notices,
environmental covenants, title reports, geotechnical reports, leases, service
contracts, Environmental Site Assessment reports and other information
possessed by Landlord and pertaining to the Property (the "Due Diligence
Materials") for review and evaluation by Tenant. Tenant shall review such
items and other information it deems appropriate to review regarding the
status and condition of the Property, including but not limited to, issues of
title, geotechnical and environmental matters.
(b) Due Diligence Period. Landlord hereby grants Tenant a license to
access the Property as of the Effective Date and Tenant and its
representatives, nominee, agents, assignee and/or contractors shall have from
the Effective Date until 5 p.m. (Pennsylvania time) on the date that is sixty
(60) days from the Effective Date (the "Due Diligence Period") to complete an
examination of the Premises and to perform or cause to be performed such
invasive and non-invasive tests, studies, reviews and examinations as may be
deemed necessary or advisable by Tenant, including, without limitation,
surveys, engineering and environmental site assessments, test borings, soil
bearing tests, geotechnical analyses and analyses of soil, groundwater and
other samples. Tenant may terminate this Lease for any reason or no reason
by advising Seller of the same in writing on or before the expiration of the
Due Diligence Period. In such event, this Lease and the Agreement shall
become null and void, and neither party shall have any further rights or
obligations under this Lease or the Agreement, except for those obligations
that expressly survive the termination of this Lease or the Agreement. In
the event that Tenant does not terminate this Lease pursuant to the this
Section 8(b), then Tenant shall have a continuing license, until the
Commencement Date, for the design, construction and installation of the
9. IMPROVEMENTS, ALTERATIONS AND ADDITIONS
(a) Improvements, Alterations and Additions. Tenant may make
improvements on the Property in accordance with plans, specifications and
designs approved in advance by the Landlord, said approval not to be
unreasonably withheld, conditioned or delayed. Notwithstanding the
foregoing, Tenant may, without the prior written approval of Landlord, (a)
construct, erect, install, modify, repair, and/or maintain the Operations
Building, Equipment Building and Lines, (b) construct and/or install on the
Premises such other roads, facilities, buildings, lines, utilities and
improvements that Tenant deems necessary for the Permitted Use.
(b) Utility Service(s). Landlord shall use its commercially reasonable
best efforts to make available to Tenant access to all facilities for
restrooms, HVAC, gas, water, sewer, electricity and any other utilities or
services to the Premises reasonably necessary for the Permitted Use.
Should such utilities or services not be available to Tenant on the Premises,
Tenant shall notify Landlord of the absence of such utilities or services,
and Landlord shall cooperate with and provide assistance to Tenant's efforts
to make or cause to be made such utilities or services available to the
Tenant at the Premises with Tenant responsible for any additional third party
costs incurred by Landlord in connection therewith. In the event such
utilities or services cannot be made available to the Tenant at the Premises
as stated herein and Landlord fails to make or cause to be made such service
available to Tenant within a reasonable period not to exceed 60 days, Tenant
may immediately terminate this Lease by providing written notice to Landlord.
The location of any utilities or services to the Premises shall be determined
by Tenant. Tenant shall be solely responsible for all costs related to
arranging for such utility services including the cost of separately metering
and paying all utility charges servicing and supplied only to the Premises.
(c) Restoration. At expiration or termination of the Lease, Tenant
shall restore the Premises to a condition reasonably similar and
operationally equivalent to the condition existing as of the Effective Date.
Notwithstanding anything to the contrary in this Lease or as may be required
by law, any improvements made to the Premises or Property by Tenant shall
remain the property of the Tenant and Tenant may remove the same upon
expiration or termination of this Lease. Any such property not removed by
Tenant shall become the property of Landlord.
10. MAINTENANCE AND REPAIR
Tenant shall repair and maintain, in good order and condition, the
Lines, Operations Building and Equipment Building, Tenant's personal property
and any utility lines located on, or running to or from, the Premises.
(a) Landlord's Insurance. Landlord shall carry with companies rated no
less than "A" by Best or a comparable insurance rating service the following
insurance: (1) "Special Form" property insurance, including but not limited
to, fire, windstorm, vandalism, malicious mischief, and flood and earthquake
insurance if the Premises is located within a high risk category as
determined by an appropriate regulatory entity, but excluding terrorism, on
the Operations Building, Equipment Building, Tank and Lagoon for the full
replacement value thereof with Tenant as a named insured as its interest may
appear with respect to the Premises, and (2) "General Liability with General
Aggregate Amount & Per Occurrence Limit" insurance having limits of at least
$4,000,000.00 combined single limit with Tenant named as an additional
insured. A copy of such policy or certificate thereof shall be supplied to
Tenant upon request.
(b) Tenant's Insurance. During the Term Tenant shall, at its sole cost
and expense, pay for and keep in force insurance in amounts and coverages
that are customary within the waste remediation and renewable energy
production industry. Landlord shall be named an "additional insured" on all
said insurance policies of Tenant. All premiums and charges for the
aforesaid insurance shall be paid by Tenant. Tenant shall not violate or
permit to be violated any condition of any of said policies and Tenant shall
perform and satisfy the requirements of the companies writing such policies.
During the construction period, the insurance coverages shall be as set forth
at Exhibit D hereto, which insurance shall be provided by Tenant's general
contractor. Upon completion of the construction of the Project on the
Premises, Bion shall pay for and keep in force insurance in such amounts and
coverages as are required by secured lender , the Pennsylvania Infrastructure
Investment Authority, supplemented, if necessary, to constitute coverages
that are customary within the waste remediation and renewable energy
production industry for an installation like the System, provided that such
liability coverage shall be no less than $4,000,000.00.
(c) Waiver of Subrogation. Landlord and Tenant hereby release each
other and anyone claiming through or under the other by way of subrogation
from all liability for any loss of or damage to property, including
improvements, buildings and personal property, whether or not caused by the
negligence or fault of the other party. Landlord and Tenant shall cause each
insurance policy carried by them to be written to provide that the insurer
waives all rights of recovery by way of subrogation against the other party
hereto in connection with any loss or damage covered by the policy.
Landlord shall pay, in a timely manner before delinquency, all real
estate taxes, assessments, and charges by any public authority, which are
general or special, ordinary or extraordinary, foreseen or unforeseen, or of
any kind and nature whatsoever which shall be assessed and levied upon the
Property or the Premises or any part thereof during the Term as they shall
13. ASSIGNMENT AND SUBLETTING
Tenant shall not assign this Lease, or sublet all or any portion of the
Premises without the prior written consent of Landlord, said consent not to
be unreasonably withheld, conditioned or delayed.
14. DEFAULTS; REMEDIES
(a) Defaults. An Event of Default shall have occurred if
(i) Either party shall be in default in observing any covenant or
representation contain in this Lease and/or performing any of its obligations
in this Lease, where such failure continues for thirty (30) days after the
date of written notice thereof from the other party; and provided further, if
the nature of the default is such that the same cannot reasonably be cured
within such thirty (30) day period, a failure by the non-performing party to
commence such cure within said thirty (30) day period and thereafter
diligently prosecute the same to completion; and/or
(ii) Either party shall be in default of the Agreement beyond any
applicable cure period.
(b) Remedies. Upon the occurrence of an Event of Default, the non-
defaulting party shall be entitled to terminate this Lease and may exercise
any remedies provided for in the Agreement.
15. CASUALTY LOSS
Should the Premises or any part be damaged by fire, flood, storm, civil
commotion, or other similar cause (a "Casualty") to an extent that it is not
repairable within sixty (60) days (the "Repair Period") from the date of such
Casualty, then Tenant may, at its option, upon five (5) days' written notice
to Landlord, terminate this Lease as of the date of such Casualty.
16. EMINENT DOMAIN
If the Building or the Premises shall be condemned or taken in its
entirety for public use by any city, county, state or public authority, the
federal government or any other entity having the power of eminent domain
(collectively a "Taking"), or if any partial Taking shall interfere with
Tenant's use of or access to the Premises, as determined by Tenant, then
Tenant may, at its option, upon five (5) days' written notice to Landlord,
terminate this Lease as of the date of such Taking.
Each party hereby agrees to defend, indemnify, and hold harmless the
other party from and against any and all claims, causes, causes of action,
suits, proceedings, judgments, costs, expenses (including court costs, and
attorneys' fees) and any liability of whatsoever nature (collectively, a
"Loss"), including, without limitation, a Loss occasioned by personal injury,
including death (and including without limitation any claims in the nature of
workers' compensation or similar statutory claims, immunity against which is
hereby waived by each party) or property damage with respect to the Premises
or Tenant's use and occupancy thereof to the extent that any such Loss is
caused by the acts, omissions or negligence of the indemnifying party, or
that of its employees, agents or invitees; provided, however, the foregoing
indemnification shall not extend to any such Loss as may be caused by, result
from or be attributable to the acts, omissions or negligence of the party
claiming a right of indemnification, or that of its employees, agents or
invitees. In addition, Landlord agrees to defend, indemnify, and hold
harmless each Tenant Party from and against any Loss related to or caused by
any untrue or misleading representation or warranty by Landlord, or any
breach by Landlord of any representation or warranty, contained in this Lease
or the Agreement.
18. NOTICE OF CHANGES
Landlord agrees to provide Tenant with reasonable advance notice of any
and all proposed changes on the Property or the Premises that may affect the
19. RENEWABLE SERVICES ENERGY AGREEMENT
Tenant agrees that it will supply a certain amount of energy to the
Landlord as a by-product of the System once the System is capable of
producing the same. Landlord and Tenant shall negotiate in good faith the
terms of a Renewable Energy Services Agreement governing the production and
use of such energy at such time that the System is capable of producing the
same. The preliminary form the Renewable Energy Services Agreement is
attached hereto and made a part hereof as Exhibit D.
20. MISCELLANEOUS PROVISIONS
(a) Severability. A determination by a court of competent jurisdiction
that any provision of this Lease or any part thereof is illegal or
unenforceable shall not cancel or invalidate the remainder of such provision
of this Lease, which shall remain in full force and effect.
(b) Interpretation. The captions of the Articles or Sections or
Paragraphs of this Lease are to assist the parties in reading this Lease and
are not a part of the terms or provisions of this Lease. Whenever required
by the context of this Lease, the singular shall include the plural and the
plural shall include the singular. The masculine, feminine and neuter
genders shall each include the other. In any provision relating to the
conduct, acts or omissions of Tenant or Landlord, the term "Tenant" or
"Landlord", as the case may be, shall include the particular party's agents,
employees, contractors, invitees and successors.
(c) Incorporation of Prior Agreements; Modifications. Except for the
Agreement, this Lease is the only agreement between the parties pertaining to
the lease of the Premises and no other agreements are effective. All
amendments to this Lease shall be in writing and signed by all parties. In
the event that the terms of this Lease conflict with the terms of the
Agreement, then the terms of the Agreement shall control.
(d) Notices. All notices required or permitted under this Lease shall
be in writing and shall be personally delivered or sent by certified mail,
return receipt requested, postage prepaid. Notices to Tenant or Landlord
shall be delivered to the address specified in Article 1 above. All notices
shall be effective two (2) days after dispatch or upon delivery, whichever is
earlier. Either party may change its notice address upon written notice to
the other party.
(e) No Recordation. Neither party shall record this Lease without
prior written consent from the other party.
(f) Binding Effect; Choice of Law. This Lease binds any party who
legally acquires any rights or interest in this Lease from Landlord or
Tenant. However, Landlord shall have no obligation to Tenant's successor
unless the rights or interests of Tenant's successor are acquired in
accordance with the terms of this Lease. The laws of the state in which the
Premises is located shall govern this Lease.
(g) Corporate Authority. Each person signing this Lease on behalf of a
party hereto represents and warrants that he has full authority to do so and
that this Lease binds the corporation.
(h) Force Majeure. If Tenant cannot perform any of its obligations
(excluding payment obligations) due to events beyond Tenant's control, the
time provided for performing such obligations shall be extended by a period
of time equal to the duration of such events. Events beyond Tenant's control
include, but are not limited to, acts of God, war, civil commotion, labor
disputes, strikes, fire, flood or other casualty, shortages of labor or
material, government regulation or restriction and weather conditions.
(i) Execution of Lease. This Lease may be executed in counterparts
and, when all counterpart documents are executed, the counterparts shall
constitute a single binding instrument.
(j) No Brokers. Landlord and Tenant each warrant that they have dealt
with no real estate broker in connection with this transaction.
(k) Attorneys' Fees. If either party named herein brings an action to
enforce the terms of the Lease or declare rights thereunder, the prevailing
party in any such action, trial or appeal thereon shall be entitled to its
reasonable attorneys' fees to be paid by the losing party as fixed by the
court in the same or separate suit, and whether or not such action is pursued
to decision or judgment.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF the parties hereto have executed this Lease as of the
day and year first above written.
ATTEST/WITNESS: LANDLORD: XXXXXX XXXXXXX and XXXXXXX FARMS
/s/ By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx, individually and as
controlling shareholder/partner of all
entities owning Xxxxxxx Farms, including
without limitation, Xxxx X. Xxxxxxx & Sons,
a partnership, all of which shall be bound
by the signature above.
ATTEST/WITNESS: TENANT: BION PA 1 LLC
/s/ Xxxxxxxx Paradise By:/s/ Xxxx X. Xxxxx 6/30/09
Name: Xxxx Xxxxx
LEGAL DESCRIPTION OF SITE
June _, 2009 ADDENDUM
GRAPHIC DEPICTION OF SITE, PREMISES AND ACCESS EASEMENT