164639
1 ORDINANCE NO. 16,463 416
2
3 AN ORDINANCE RECONFIRMING AND AUTHORIZING A
4 GROUND LEASE AGREEMENT AMONG THE CITY OF
LITTLE ROCK, ARKANSAS, AS LESSOR, THE LITTLE
5 ROCK PORT AUTHORITY, AND USF YEAST COMPANY, AS
6 LESSEE; AUTHORIZING A LEASE AGREEMENT BETWEEN
7 THE CITY OF LITTLE ROCK, ARKANSAS AS LESSOR,
8 AND USF YEAST COMPANY, AS LESSEE; AND
DECLARING AN EMERGENCY.
9
10 WHEREAS, Ordinance No. 16,426 authorized the Mayor and the
11 City Clerk to execute a Ground Lease Agreement and Lease
12 Agreement among the City of Little Rock, Arkansas, as Lessor,
13 the Little Rock Port Authority, and USF Yeast Company, as
14 Lessee; and
Wffl;RF.AS, the Ground Lease Agreement and Lease Agreement
15 heretofore approved in Ordinance No. 16,426 has substantially
16 changed since its authorization; and
17 WHEREAS, the Ground Lease Agreement and the Lease Agreement
18 have now been approved.
19 NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF DIRECTORS OF
THE CITY OF LITTLE ROCK, ARKANSAS:
20 SECTION 1. That there be, and there is hereby authorized
21 the execution and delivery of a Lease Agreement by and between
22 the City as Lessor, and the Company as Lessee (the "Lease
23 Agreement"), and a Ground Lease Agreement among the City as
24 Lessor, the Little Rock Port Authority, and the Company as
Lessee (the "Ground Lease Agreement "), and the Mayor and the
25 City Clerk be, and they are hereby, authorized to secure,
26 acknowledge and deliver the Ground Lease Agreement and the Lease
27 Agreement for and on behalf of the City. The Ground Lease
28 Agreement and the Lease Agreement are hereby approved in
29 substantially the same form as the Lease Agreement attached and
its execution shall constitute conclusive evidence of the
30 approval of said Ground Lease Agreement and Lease Agreement.
31 SECTION 2. All other actions authorized by ordinance No.
32 16,426 are hereby reconfirmed by this Ordinance.
33 SECTION 3. There is hereby found and declared to be an
immediate need for the securing and developing of industry in
34 order to provide employment and payrolls, alleviate unemployment
35 and otherwise benefit the public health, safety and welfare of
36
O"
D7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
the City, and inhabitants thereof, and the issuance of the Bonds di 7
authorized hereby and the taking of the other action authorized
hereby are immediately necessary for the accomplishing of these
public benefits and purposes. It is, therefore, declared that an
emergency exists and this Ordinance being necessary for the
immediate preservation of the public peace, health and safety
shall be in force and effect immediately upon and after its
passage.
PASSED: July 28, 1993
�ATTEST: APPROVED:
ASSISTANT CITY NA R
••
418
CITY OF LITTLE ROCK, ARKANSAS
As Lessor
LITTLE ROCK PORT AUTHORITY
and
USF YEAST
As Lessee
LEASE AGREEMENT
Dated as of , 1993
I
LEASE AGREEMENT
TABLE OF CONTENTS
(This Table of Contents is not a part of this Lease
Agreement and is only for convenience of reference.)
Parties . . . . . . . . . . . . . . . . . . . . . . . . .
Section 1.1
Section 1.2
Section 2.1
Section 2.2
Section 2.3
Section 2.4
Section 2.5
Section 2.6
Section 2.7
ARTICLE I
REPRESENTATIONS
Representations and Warranties of
Lessor and Authority . . . .
Representations and Warranties of
Lessee . . . . . . . . . . . . .
ARTICLE II
PREMISES
Demise of Premises . . . . . . . . ,
Conditions . . . . . . . . . . . . .
Quiet Enjoyment . . . . . . . . .
Encumbrances . . . . . . . . . . . ,
Access to Premises . . . . . . . .
419
1
. 1
3
4
4
5
5
5
RailAccess . . . . . . . . . . . . . . . 6
ProcessWater . . . . . . . . . . . . . ... . . 6
ARTICLE III
TERM
Section
3.1
Term . . . . . . . . . . . . . . .
. . . . . 7
Section
3.2
Surrender of Premises . . . . . . . .
. . . . . 7
Section
3.3
Extension Options . . . . . . . . . .
. . . . . 7
Section
3.4
Option to Purchase . . . . . . . . . .
. . . . . 8
Section
3.5
Termination . . . . . . . . . . . . . .
. . . . .8
Section
3.6
Abatement . . . . . . . . . . .
. . . . .8
Section
3.7
Termination or Modification of
Local Cooperation Agreement. . . . . .
. . . . . 9
ARTICLE IV
RENT
Section
4.1
Rent . . . . . . . . . . . . . . . . .
. . . . . 9
Section
4.2
Place of Payment . . . . . . . . . . .
. . . . 10
Section
4.3
No Demand or Set -Off . . . . . . . . .
. . . . 10
ARTICLE V
USE OF PREMISES
Section
5.1
Purpose . . . . . . . . . . . . . . .
. . . . 10
Section
5.2
Construction of Improvements . . . . .
. . . . 10
Section
5.3
Compliance with Law . . . . . . . . .
. . . . 10
Section
5.4
Lessor's Inspection Rights . . . . . .
. . . . 11
� • 420
Section 5.5 Assumption by Lessor of Lessee's
Responsibilities . . . . . . . . . . . .
. - 12
Section
5.6
Closure . . . . . . . . . . . . . . . .
. . . 13
Section
5.7
Relationship with Governmental
Authorities . . . . . . . . . . . . . .
. . . 13
Section
5.8
Wells . . . . . . . . . . . . . . . . .
. . . 13
Section
5.9
Notice of Hazardous Discharge and
Environmental Complaint . . . . . . . .
. . . 13
ARTICLE VI
IMPROVEMENTS
Section
6.1
Lessee's Buildings, Trade Fixtures
and Equipment . . . . . . . . . . . .
. . . 14
Section
6.2
Mortgage or Assignment of Lease . . . .
. . . 14
ARTICLE VII
TAXES
Section
7.1
Taxes . . . . . . . . . . . . . . . . .
. . . 15
ARTICLE VIII
MAINTENANCE AND REPAIRS
Section
8.1
Repair Obligation . . . . . . . . . . .
. . . 15
ARTICLE IX
INSURANCE
Section
9.1
Liability Insurance . . . . . . . . . .
. . . 15
ARTICLE X
DAMAGE AND DESTRUCTION
Section
10.1
Damage to Premises . . . . . . . . . . .
. . . 16
ARTICLE XI
DEFAULT PROVISIONS
Section
11.1
Events of Default . . . . . . . . . . .
. . . 16
Section
11.2
Lessor's Remedies . . . . . . . . . . .
. . . 16
Section
11.3
Interest and Costs . . . . . . . . . . .
. . . 17
Section
11.4
Equitable Remedies . . . . . . . . . . .
. . . 17
Section
11.5
No Waiver . . . . . . . . . . . . . . .
. . . 17
ARTICLE. XII
ASSIGNMENT AND SUBLETTING
Section
12.1
Assignment; Subletting . . . . . . . . .
. . . 18
Section
12.2
Performance . . . . . . . . . . . . . .
. . . 18
S
421
ARTICLE XIII
INDEMNIFICATION
Section 13.1 Indemnification
ARTICLE XIV
MISCELLANEOUS
Section 14.1 Notices . . . . . . . . . .
Section 14.2 Representations . . . . . .
Section 14.3 Modifications . . . . . . .
Section 14.4 Successors and Assigns . . .
Section 14.5 Parties in Interest . . . .
Section 14.6 Time is of Essence . . . . .
Section 14.7 Counterparts . . . . . . . .
Section 14.8 Governing Law . . . . . . .
Section 14.9 Recordation . . . . . . . .
Section 14.10 Authority May Perform . . .
Section 14.11 Limited Liability of Lessor
and Authority . . . . . . .
Signature and Seals . . . . . . . . . . . .
Acknowledgments . . . . . . . . . . .
Exhibit A - Permitted Exceptions . . . . .
Exhibit B - Description of Premises . . . .
. . . . 19
. . . . 19
. . . . 19
. . . 20
. . . 20
. . . . 20
. . . . 20
. . . . 20
. . . . 20
20
13 n
. . . . . . . . . 21
. . . . . . . . . 22
. . . . . . . . 25
. . . . . . . . . 26
LEASE AGREEMENT 422
THIS LEASE AGREEMENT made and entered into this day
of , 1993, by and between the CITY OF LITTLE ROCK,
ARKANSAS (the "Lessor ") and the LITTLE ROCK PORT AUTHORITY (the
"Authority "), and USF YEAST, a Delaware general partnership (the
"Lessee ").
ARTICLE I
REPRESENTATIONS
Section 1.1. Representations and Warranties of Lessor
and Authority. Lessor and the Authority make the following
representations, warranties and covenants as the basis for the
undertakings herein contained:
(a) At the time of execution of this Lease, the
Authority has the power to execute and deliver this Lease and to
perform its obligations hereunder; that execution, delivery and
performance of this Lease has been authorized by all requisite
corporate action; and that, as of the date hereof, execution,
delivery and performance of this Lease will not conflict with or
result in a violation of the organizational charter and /or bylaws
of the Authority, of any law, statute, ordinance, regulation,
judgment or order, applicable to the Authority and is not in
violation of nor will it result in a default under any agreement,
undertaking or obligation to which the Authority is a party or by
which it may be bound.
(b) At the time of execution of this Lease, Lessor has
the power to execute and deliver this Lease and to perform its
obligations hereunder; that execution, delivery and performance of
this Lease has been authorized by all requisite municipal action;
and that, as of the date hereof, execution, delivery and
performance of this Lease will not conflict with or result in a
violation of the municipal charter of Lessor or of any law,
statute, ordinance, regulation, judgment or order applicable to
Lessor and is not in violation of nor will it result in a default
under any agreement, undertaking or obligation to which Lessor is
a party or by which it may be bound.
(c) Lessor owns and at all times during the term of this
Lease shall own marketable fee title to the Premises (as
hereinafter defined) and the various access and easement rights to
be created pursuant to Sections 2.5, 2.6 and 2.7 hereof, subject
only to the exceptions set forth in Exhibit A attached hereto
( "Permitted Exceptions "), none of which interfere with use of the
Premises for the Intended Use (as hereinafter defined).
(d) Except for Permitted Exceptions, there are not now
any easements, encumbrances, restrictions, limitations, agreements
1
423
or other undertakings, whether recorded or unrecorded, which, in
the best judgment of Lessor and the Authority, would interfere with
the Intended Use of the - Premises. During the term of this Lease
the Authority shall not grant or enter into any easement,
encumbrance, restriction, limitation, agreement or other
undertaking which would interfere with such Intended Use, and the
Lessor shall use its best efforts to avoid such interference;
provided, however, that road access and rail service to the
Premises pursuant to Sections 2.5 and 2.6 hereof shall be on a non-
exclusive basis.
(e) The Intended Use of the Premises is a permitted use
under the industrial zoning currently applicable to the Premises.
(f) The Premises constitute a legal lot in conformity
with applicable subdivision, land use or other similar laws,
ordinances, regulations, statutes or rules, ownership of which can
be transferred without further governmental approval.
(g) Lessor and the Authority have no reason to believe
that execution, delivery and /or performance of this Lease would
violate the Local Cooperation Agreement dated September 3, 1986,
between the United States of America and the Authority (the "Local
Cooperation Agreement "), or that the Local Cooperation Agreement
prohibits or interferes with the Intended Use of the Premises. To
the best knowledge of the Lessor and the Authority, the Local
Cooperation Agreement is the only such agreement applicable to the
ownership and use of the Premises.
(h) Lessor and the Authority have no reason to believe
that the Premises are not free of Hazardous Material (as
hereinafter defined) except as disclosed in an environmental report
of the Premises dated March 16, 1993, and prepared by Garver &
Garver, P.A., Engineers, Little Rock, Arkansas. Lessee and the
Authority agree that as between themselves and Lessee, the
Authority shall be responsible for any and all costs to comply with
all applicable federal, state and /or local laws, ordinances,
regulations, rules or orders relating to all actual environmental
contamination or any actual threat to the environment to the
extent, and only to the extent, that such contamination or threat
arises from a condition of the Premises which existed prior to the
date of this Lease (a n Pre - Existing Environmental Condition ") and
as ordered pursuant to an order or judgment issued by any
governmental agency. The Authority's obligation to comply with the
order shall be limited to the assets of the Authority itself. Only
the Authority shall clean up, respond to, remediate or negotiate
with the governmental agency to bring the Premises into compliance
with the order or judgment issued by the governmental agency for a
Pre - Existing Environmental Condition. Lessee shall have the right
to review all documents and materials generated in response to any
Pre- Existing Environmental Condition, including without limitation
all consultants' reports, and shall have the right, but not the
M M M M M M M
M M M M M
0
M M
424
obligation, to participate in (but not determine) directly or
through Lessee's consultants, at Lessee's own -cost, the assessment
and preparation of remediation plans to deal with any such Pre -
Existing Environmental Condition. The Authority shall keep the
Lessee apprised of any actions relating to such a judgment or
order, and inform the Lessee reasonably in advance of any
compliance activity and shall cooperate with Lessee so that such
activities disturb the Lessee's operations as little as
practicable. In the event the Authority fails, for any reason, to
comply with the order or judgment, in whole or in part, then upon
notice to the Authority and failure by the Authority to initiate
compliance or otherwise respond in good faith in the appropriate
forum with due diligence by no less than ten (10) business days
prior to the expiration of the time period specified by the
governmental agency (or, absent such specified time period, within
ten (10) business days of said notice), Lessee shall have the
right, but not the obligation, to act in place of the Authority
(and the Authority hereby appoints Lessee its agent for such
purposes) and to take such action as is necessary pursuant to all
applicable laws, statutes, ordinances and relevant regulations
thereunder to ensure compliance or to mitigate, abate, or correct
the contamination or other threat. All reasonable costs and
expenses incurred by Lessee in connection with any such action,
including, without limit, consultant's and legal fees, shall become
immediately due and payable by the Authority to Lessee upon
presentation of an`invoice therefor. Any amount not paid within
ten (10) business days after presentation of such invoice may be
set off against Rent (as hereinafter defined) or other payments due
to Lessor hereunder. Nothing contained herein shall be deemed a
waiver of any statutory or common -law rights now existing or
arising in the future on account of Pre- existing Environmental
Conditions.
Lessor and the Authority acknowledge that the
representations, warranties and covenants of Lessor and the
Authority as set forth herein, constituted a material inducement to
Lessee in entering into this Lease and that Lessee is relying on
the truthfulness and accuracy of these representations and
warranties in entering into the Lease and the transactions
contemplated thereby.
Section 1.2. Representations and Warranties of Lessee.
Lessee makes the following representations, warranties and
covenants as the basis for the undertakings herein contained:
(a) Lessee is a general partnership duly formed under
the laws of the State of Delaware and in good standing under the
laws of such state.
(b) At the time of execution of this Lease, Lessee has
the power to execute and deliver this Lease and to perform its
obligations hereunder; that execution, delivery and performance of
3
M
425
this Lease has been authorized by all requisite partnership action;
and that, to the best of the Lessee's knowledge, execution,
delivery and performance of this Lease will not conflict with or
result in a violation of the charter of Lessee or of any law,
statute, ordinance, regulation, judgment or order applicable to
Lessee and is not in violation of nor will it result in a default
under any agreement, undertaking or obligation to which Lessee is
a party or by which it may be bound.
ARTICLE II
PREMISES
Section 2.1. Demise of Premises. Lessor hereby leases
to Lessee, and Lessee takes from Lessor, that certain real property
located in the County of Pulaski, State of Arkansas and described
in Exhibit B attached hereto (the "Premises ").
Section 2.2. Conditions. The demise is made subject to
the following:
(a) Conditions, restrictions, and limitations, if any,
now appearing of record;
(b) zoning ordinances of any municipality, the County of
Pulaski, State of Arkansas, and any other governmental body now
existing or which, may hereafter exist by reason of any legal
authority during the term of this Lease;
(c) Any questions of survey as reflected in a survey
prepared by Garver & Garver, P.A. designated "Tract A - Area 305
Little Rock Port Industrial Park, Little Rock, Arkansas" and dated
June, 1993, the Lessee having satisfied itself as to the boundary
lines and contents of the Premises described in Exhibit B attached
hereto and likewise satisfied itself with the sufficiency of the
present title of the Lessor as reflected in a Title Insurance
Commitment issued by Chicago Title Insurance Company dated April
29, 1993;
(d) The proper performance by the Lessee of all of the
terms and conditions contained in this Lease;
(e) All applicable U.S. Corps of Engineers regulations
and restrictions, including, but not limited to, the Local
Cooperation Agreement dated September 3, 1986, between the United
States of America and the Authority, and the letter dated November
10, 1992, from Kenneth Carter, Chief, Planning Division, addressed
to Bob Brave, Executive Director of the Authority; and
(f) The Bill of Assurance dated December 16, 1971,
recorded in the records of the Circuit Clerk and Ex Officio
Recorder of Pulaski County, Arkansas, in Record Book 1175, at page
543, as heretofore amended and supplemented (including the
Amendment of Bill of Assurance dated July 13, 1977, recorded in the
records of the Circuit Clerk and Ex Officio Recorder of Pulaski
County, Arkansas, as Instrument No. 77- 01316, the Amendment to Bill
of Assurance dated January 24, 1978, recorded in the records of the
Circuit Clerk and Ex Officio Recorder of Pulaski County, Arkansas,
as Instrument No. 78- 10288, the Plat and Bill of Assurance dated
June 18, 1984, recorded in the records of the Circuit Clerk and Ex
Officio Recorder of Pulaski County, Arkansas, as Instrument No. 84-
84- 37604, the Amendment to Bill of Assurance dated December 31,
1990, recorded in the records of the Circuit Clerk and Ex Officio
Recorder of Pulaski County, Arkansas, as Instrument No. 91- 00331,
and the Replat and Amendment to Bill of Assurance dated March 9,
1993, recorded in the records of the Circuit Clerk and Ex Officio
Recorder of Pulaski County, Arkansas, as Instrument No. 93- 14915,
at page 543), and as hereafter amended and supplemented
(collectively, the "Bill of Assurance ").
Section 2.3. Ouiet Enjoyment. Subject to the
provisions of this Lease, Lessor agrees that Lessee shall have
quiet and peaceful possession and use of the Premises and shall
enjoy all of the rights herein granted without interference.
Section 2.4. Encumbrances. (a) Lessee shall in no way
subordinate the fee interest of Lessor in the Premises with any
mortgage, lien or other encumbrance.
(b) Lessee shall, when requested by Lessor or the
Authority, join with Lessor and /or the Authority in taking the
necessary steps to grant sewer, utility, road and street easements
over, along, across and under the Premises, provided that the
location of any such easements and the nature thereof shall not
interfere with the then current or anticipated use of the Premises
by Lessee.
Section 2.5. Access to Premises. (a) The Authority, at
its sole cost and expense, shall provide and maintain in good
condition one paved drive no less than 24 feet wide along the west
side of the Premises from Industrial Harbor Drive to the harbor
north bank. Such drive shall be designed to carry vehicles of
maximum weight as determined under Arkansas law for paved roads
generally. Lessor and the Authority represent that as of the date
hereof, the maximum permitted weight -for motor vehicles under
Arkansas law is 80,000 pounds. During the term of this Lease,
Lessee shall have the non - exclusive right to use such drive in
connection with its operations at the Premises.
(b) Upon the exercise by Lessee of its purchase option
pursuant to Section 3.4 hereof or upon any conveyance by Lessor of
any lard on which the road to be constructed pursuant to this
Section 2.5 is or would be located, Lessor shall cause to be
executed, delivered and recorded a permanent appurtenant right -of-
way easement reasonably acceptable in form and substance to Lessee
5
42.7
for the benefit of the Premises and Lessee, whereby Lessee shall
have the non - exclusive right to use said drive in connection with
its operations at the Premises and whereby the Authority shall be
obligated, at its cost, to cause such road to be maintained in good
condition.
Section 2.6. Rail Access. The Authority, at its sole
cost and expense, shall (i) acquire permanent rights -of -way, which
shall be in the form of an easement appurtenant for the non-
exclusive benefit of the Premises and Lessee, as may be necessary
to establish a rail line (the "Rail Facility ") linking the Premises
with the nationwide rail system. The right -of -way shall be located
immediately adjacent to the Premises either on the west side of the
Premises or the east side of the Premises, as Lessee shall require;
(ii) construct or cause to be constructed the Rail Facility in
conformity with all construction and design standards applicable to
facilities of this type so as to ensure safe and efficient rail
service as required to operate the facility to be built on the
Premises for its Intended Use (as hereinafter defined) ; (iii)
construct or cause to be constructed in conformity with all
applicable construction and design standards, on the Premises at
such locations as may be required by Lessee, up to 600 linear feet
of rail line linked to the Rail Facility, together with such
additional rail line as may be required by Lessee; provided,
however, that the costs to construct any rail line on the Premises
in excess of 600 linear feet shall be paid by Lessee; and (iv)
construct or cause to be constructed a switch to transfer engines
and rail cars from the primary service rail line to the Rail
Facility. The Authority shall be responsible for the proper
maintenance of the Rail Facility at no cost to Lessee including all
switches and signals necessary for the proper operation of the Rail
Facility. Lessee shall cause to be maintained and shall be
responsible for the cost of maintaining any rail line located on
the Premises.
Section 2.7. Process Water. (a) During the term of
this Lease, Lessee shall have the right, at Lessee's cost, to
install, maintain, operate, replace and upgrade any facilities,
including piping, pumping stations and other equipment necessary or
appropriate for the intake and discharge of process water from the
Arkansas River.
(b) Upon the exercise by Lessee of its purchase option
pursuant to Section 3.4 hereof or upon any conveyance by Lessor of
any land burdened by the rights created under this Section 2.7,
Lessor shall cause to be executed, delivered and recorded a
permanent appurtenant right -of -way easement or easements (as Lessee
shall determine) reasonably acceptable in form and substance to
Lessee for the benefit of the Premises and Lessee, whereby Lessee
shall have the right, at Lessee's cost, to install, maintain,
operate, replace and upgrade any facilities, including piping,
428
pumping stations and other equipment necessary or appropriate for
the intake and discharge of process water from the Arkansas River.
(c) Lessee acknowledges that parties other than Lessee
now or in the future may have rights to install or operate
utilities in the general vicinity of the facilities to be
constructed by Lessee pursuant to the rights granted in this
Section 2.7. Notwithstanding the foregoing, Lessor hereby
represents, warrants and covenants that neither it nor any third
party currently has or in the future will have the right to
interfere with Lessee's use and operation of the facilities to be
constructed pursuant to this Section 2.7. Lessor and the Authority
acknowledge that the facilities to be constructed pursuant to this
Section 2.7 shall be constructed in part off- Premises on other
lands currently owned by Lessor and /or the Authority.
(d) Lessee shall be solely responsible for obtaining all
necessary permits in connection with said intake and discharge of
process water to or from the Arkansas River, and Lessee shall
comply with all applicable federal, state or local laws, ordinances
or rules pertaining to said intake and discharge of said process
water, as well as being solely liable for violations thereof,
including but not limited to any civil or criminal fines or
penalties of any nature whatsoever for the amounts thereof.
ARTICLE III
TERM
Section 3.1. Term. The term of this Lease shall
commence on 1993, and shall end at midnight on
October 29, 2037.
Section 3.2. Surrender of Premises. On the last day of
the term of this Lease or upon termination as hereinafter provided,
Lessee shall surrender the Premises excluding the improvements
thereon to Lessor in good condition and repair except for
reasonable wear and tear and damage by insured casualty. On or
before said day Lessee shall remove all its property, including
buildings, improvements, equipment and other personal property, and
trade fixtures from the Premises. Lessee shall repair any damage
caused by any such removal. Notwithstanding the foregoing
provisions, if Lessee shall fail to remove any property it shall be
obligated to remove hereunder, Lessor may effect such removal for
and at the expense of Lessee.
Section 3.3. Extension Options. Lessee shall have and
is hereby granted the option to extend this Lease beyond the
initial term for forty -five (45) renewal terms of one (1) year
each, for an annual rent of one Hundred Dollars ($100) per year,
payable in advance on the first business day of each year of the
extension term, and otherwise upon the terms, conditions and provi-
sions of this Lease. The options provided for herein shall be
7
M M
• 429
deemed automatically exercised by Lessee (without requirement of
any notice of exercise or timely payment of rent) unless thirty
(30) days prior to the end of the initial term or any extension
term Lessee shall give Lessor and the Authority written notice by
certified or registered mail that Lessee does not elect to have the
lease term extended beyond the then current initial or extension
term.
Section 3.4. Option to Purchase. On the last day of
the initial term of this Lease or, if such day shall not be a
business day, on the first business day thereafter, or at any time
during any extension term of this Lease Agreement, the Lessee shall
have the right and option to purchase the Premises. Such option
may be exercised by the Lessee by giving not less than sixty (60)
days prior written notice thereof to Lessor. The purchase price
payable if Lessee exercises its option to purchase the Premises
shall be One Hundred Dollars ($100). Lessor shall, upon payment of
the purchase price hereinabove specified, deliver to Lessee a
general or special warranty deed transferring good and merchantable
title to the Premises free and clear of all liens and encumbrances
except those to which title was subject when leased hereunder or
resulting from any failure of Lessee to perform any of its
obligations under this Lease.
Section 3.5. Termination. (a) If at any time during
the term of this Lease, Lessee's use or quiet enjoyment of the
Premises for the Intended Use is materially impaired as a result of
a breach of the representations and warranties set forth in Section
1.1 or of Lessor's obligations set forth in Sections 2.3, 2.5, 2.6
and 2.7 and such breach is not cured or corrected to Lessee's
reasonable satisfaction within ninety (90) days after notice to
Lessor and /or the Authority, in addition to any other remedies
available to Lessee under applicable law, Lessee shall have the
right to terminate this Lease without obligation to Lessor or the
Authority; provided, however, Lessee shall not have the right to
terminate this Lease if Lessor and /or the Authority have given
reasonable assurance to Lessee that Lessee will continue to be able
to use the Premises for the Intended Use without interruption, but
the final resolution of the impairment has not occurred within
ninety (90) days after notice to Lessor and /or the Authority.
(b) Lessee shall have the further right to terminate
this Lease at any time within two years from the date hereof
without obligation to Lessor or the Authority in the event Lessee
is unable to commence use of the Premises for its Intended Use due
to failure to receive necessary regulatory permits or due to
failure of Lessor or the Authority to perform any of its
obligations under this Lease.
Section 3.6. Abatement. If Lessee is unable to use the
Premises for its then current use as a result of a breach of this
Lease by Lessor or by the Authority and such inability to use
9
C,
continues for thirty (30) days or longer, in addition to any
remedies Lessee may have under applicable law, the Rent payable
hereunder shall be abated during the period such inability to use
exists, and Lessee shall have the right to set off the amount of
rent so abated against future installments of Rent as they become
due.
430
Section 3.7. Termination or Modification of Local
Cooperation Agreement. Lessor and the Authority agree that if at
any time during the initial term of this Lease the Local
Cooperation Agreement is terminated or modified as to no longer
prohibit fee simple transfer of the Premises to Lessee or if such
requirement is waived, Lessee shall have the right and option to
purchase the Premises at any time thereafter prior to the end of
the initial term by written notice to Lessor. The purchase price
payable if Lessee exercises its option to purchase the Premises
pursuant to this Section 3.6 shall be, at the election of the
Lessee: (i) such purchase price as shall then be agreed upon by the
Authority and the Lessee, or (ii) the aggregate Rent payable under
Section 4.1 for the remainder of the initial term. In the event
Lessee elects to pay the purchase set forth in preceding clause
(ii) , such price shall be payable by the execution and delivery by
Lessee to the Authority of a promissory note bearing no interest in
the principal amount of such aggregate Rent, secured by a first
mortgage on the Premises subject only to Permitted Exceptions,
payable in installments in the same manner as Rent during the
initial term and reasonably acceptable in form and substance to the
Authority. Upon such exercise, Lessor shall deliver title to the
Premises to Lessee in accordance with Section 3.4 hereof.
ARTICLE IV
RENT
Section 4.1. Rent. (a) Lessee shall pay Lessor the
sum of Seven Thousand Five Hundred Dollars ($7,500) per month in
advance on the first day of each month during the initial term of
this Lease (the "Rent ").
(b) The rental specified in paragraph (a) above shall be
abated during the period of construction of the industrial facility
proposed by Lessee to be constructed on the Premises and until the
Lessee starts production and receives income from the first sale of
the product; provided, however, such rental abatement shall in no
event extend beyond the period of twenty -four (24) months from the
commencement of the term of this Lease unless Lessee's failure to
start production and /or receive income arises from a failure by
Lessor or the Authority to perform its obligations hereunder,
including without limitation the obligations set forth in Sections
2.5, 2.6 and 2.7 hereof.
Section 4.2. Place of Payment. All Rent and other
payments to be made by Lessee to Lessor shall be paid to the
4
Authority at the place designated from time to time by the
Authority.
Section 4.3. No Demand or Set -Off. All Rent and other
payments to be made by Lessee to Lessor shall be paid without
demand therefor and without deduction, counterclaim, set -off,
abatement, suspension, deferment, diminution or reduction except as
otherwise provided in this Lease.
ARTICLE V
USE OF PREMISES
Section 5.1. Purpose. The Premises are leased to
Lessee for the purpose of operating a yeast production facility or
other manufacturing facility (the "Intended Use "). Should Lessee
desire to use the Premises for some purpose other than the Intended
Use, Lessee must obtain the prior written approval of the Authority
or its successors or assigns, which approval shall not be
unreasonably withheld; provided, however, that any use of the
Premises shall at all times comply with the Bill of Assurance. It
is understood that the exclusive right to the stevedore business
has been previously granted and is not a permitted use of the
Premises.
Section 5.2. Construction of Improvements. (a) All
contractors and subcontractors involved in the usage of the
Premises as set outs herein shall be fully licensed.
(b) Prior to commencing work Lessee shall deliver to
Lessor copies of all permits or authorizations required by ap-
plicable local ordinances and federal and state law.
Section 5.3. Compliance with Law. (a) Lessee shall
install, maintain, monitor, operate, inspect, inventory, remove all
waste, and close the operations on the Premises in strict
compliance with all applicable federal, state and local laws,
decisions of the courts and regulations, rules, directives, decrees
and orders of the federal, state and local governmental
authorities. Without limiting the generality of the foregoing,
Lessee shall comply with the provisions of all federal, state and
local statutes, laws, ordinances, codes, rules, regulations, orders
and decrees regulating, relating to or imposing liability or
standards of conduct concerning air emissions, water discharges,
.noise emissions, solid or liquid storage and disposal of hazardous
or toxic waste or substances, and other environmental, health or
safety matters. Lessee shall comply with all applicable U.S. Corps
of Engineers regulations.
(b) Lessee shall have in full force and
necessary federal (including, without limitation, U.
Engineers), state and local licenses, certificates
10
431
effect all
S. Corps of
and permits
432
(including particularly all necessary environmental permits),
relating to Lessee and its operations on the Premises.
(c) Each year throughout the term of this Lease, on the
anniversary date hereof, Lessee shall deliver to Lessor and the
Authority a letter stating that during the preceding year, the
Lessee has to Lessee's knowledge after reasonable investigation
complied with all applicable federal, state and local laws as
provided hereunder, including, without limitation, all maintenance
and monitoring requirements, and that, to Lessee's knowledge after
reasonable investigation, the substances placed upon the property
have not resulted in soil, water or other contamination on, under,
or adjacent to the Premises and do not pose a threat to health,
safety or the environment; provided, however, that the failure of
Lessee to deliver such letter shall not constitute an event of
default hereunder.
Section 5.4. Lessor's Inspection Rights. Lessor, the
Authority or their respective representatives, upon identifying a
condition which could constitute a violation of applicable
environmental protection laws or regulations, upon reasonable prior
notice and without interfering with Lessee's operations on the
Premises, may from time to time enter the Premises and reasonably
inspect (without conducting any tests unless mutually agreed upon)
the soil, the air, the water, and the Premises of Lessor relating
to the specifically identified condition. In addition, but not
more than once every twelve (12) months, a general inspection may
be conducted at the request of the Lessor or the Authority by an
independent registered engineer selected by the Lessee. Based on
such engineer's professional judgment, the general inspection may
include soil, air, or water sampling, testing, monitoring, digging,
drilling, and analysis, or review of any documents, inventories, or
notices or correspondence to or from nontax governmental
authorities in connection with the usage of the property.
All inspection activities (including all sampling,
testing, monitoring, digging, drilling and analyses, and any
reports relating thereto) by or on behalf of Lessor shall be
conducted at Lessor's sole cost and expense. Promptly upon
request, Lessor shall provide to Lessee copies of all test results,
analysis, reports, recommendations or other documents produced in
connection with the exercise of Lessor's inspection rights.
subject in all respects to the requirements of applicable law,
Lessor agrees not to disclose any information gathered as a result
of such inspection reports to any third party (unless required to
do so by applicable law or except in the event of a suspected
reportable release requiring immediate remediation or containment)
and not to take any action Lessor may be entitled to take under
this Lease or under applicable law based on the result of such
inspection before reviewing the same with Lessee and providing to
Lessee a reasonable opportunity to evaluate the accuracy of any
such information, including if requested by Lessee, the opportunity
11
M M M M
433
to conduct additional tests or other evaluations at its own cost.
If, in connection with any inspection conducted by Lessor,
information of a trade secret or proprietary nature which if
disclosed would provide an advantage to a competitor is acquired by
Lessor, then upon notice from Lessee, Lessor shall refrain from
disclosing such information to the extent such non - disclosure is
permitted by applicable law and shall cooperate with Lessee's
efforts to further protect the proprietary or trade secret nature
of such information.
Any drilling or digging below the surface of the Premises
shall be conducted only with prior written notice to Lessee and
only after providing to Lessee a reasonable opportunity to advise
Lessor and /or the Authority, as the case may be, as to any possible
adverse impacts which could arise from such drilling or digging.
All drilling, digging or other activities conducted at the Premises
shall be conducted only by persons or firms licensed and otherwise
fully qualified to conduct such activities and only pursuant to a
written contract. Any such person or entity, prior to commencing
any activity at the Premises, shall provide to Lessee a certificate
of insurance evidencing such insurance coverage and naming Lessee
as a named insured under said insurance coverage.
Section 5.5. Assumption by Lessor of Lessee's
Responsibilities. In the event Lessee fails, for any reason, to
comply with the applicable federal, state and local laws, statutes,
ordinances and relevant regulations thereunder and its obligations
hereunder, in whole or in part, relating to environmental matters
or other matters with respect to which Lessor or the Authority in
any way could be held liable, then upon notice to Lessee and
failure by Lessee to initiate compliance or otherwise respond in
good faith in the appropriate forum with due diligence by no less
than ten (10) business days prior to the expiration of the time
period specified by the applicable federal, state or local
authority (or, absent such specified time period, within ten (10)
business days of said notice) , Lessor shall have the right, but not
the obligation, to act in place of the Lessee (and Lessee hereby
appoints Lessor its agent for such purposes) and to take such
action as is necessary pursuant to all applicable laws, statutes,
ordinances and relevant regulations thereunder to ensure compliance
or to mitigate, abate, or correct the contamination or other
threat. All reasonable costs and expenses incurred by Lessor in
connection with any such action, including, without limit,
consultant's and legal fees, shall become immediately due and
payable by Lessee to Lessor as additional rent, upon presentation
of an invoice therefor. Nothing contained herein shall be deemed
a waiver of any statutory or common -law rights now existing or
arising in the future on account of the environmental or other
matters hereinabove referred to.
Section 5.6. Closure. Upon termination of this Lease,
at any time and for any reason (other than due to the exercise of
12
M M
434
Lessee's purchase option pursuant to Section 3.4), Lessee shall at
Lessee's expense, within sixty (60) days from the date of such
termination, remove its materials and related equipment and close,
clean up, and remove any Hazardous Material (as hereinafter
defined) on, under and adjacent to the Premises which Lessee has
placed or allowed to be placed upon the Premises, in accordance
with the requirements of federal, state and local law and to the
satisfaction of Lessor, and deliver to Lessor a copy of a
certificate of closure issued by the applicable authority, if such
certificates of closure are generally available for comparable
facilities. For purposes of this Lease and Agreement, "Hazardous
Material" means and includes any hazardous, toxic or dangerous
waste, substance or material defined as such in (or for purposes
of) the Comprehensive Environmental Response, Compensation and
Liability Act, the Resource Conservation and Recovery Act, any
so- called "Superfund" or "Superlien" law, or any other federal,
state or local statute, law, ordinance, code, rule, regulation,
order or decree regulating, relating to, or imposing liability or
standards of conduct concerning, any hazardous, toxic or dangerous
waste, substance or material, as now or at any time hereafter in
effect.
Section 5.7. Relationship with Governmental
Authorities. (a) Subject to the requirements set forth in Section
5.4, Lessee hereby authorizes Lessor to communicate, verbally or in
writing, with any governmental authority on any matter relating to
the installation, use, maintenance, testing, operation, removal, or
closure of the Lessee's operations on the Premises, the substances
contained thereon, or the equipment or Lessee's operations in
connection therewith. Lessor and the Authority shall use their
best efforts to assure that copies of any correspondence or other
documents to or from Lessor and other governmental authorities
relating to the Premises and /or any aspect of Lessee's activities
thereon not otherwise provided to Lessee shall be provided to
Lessee in the normal course of business without the need for a
specific request by Lessee.
(b) Lessee shall immediately forward to Lessor and the
Authority copies of any and all notices, correspondence, warnings
received from any governmental authority in connection with its
usage of the Premises, the substances contained thereon, or the
equipment or Lessee's operations in connection therewith.
Section 5.8. Wells. Lessee may install wells on the
Premises in compliance with all applicable federal (including,
without limitation, U.S. Corps of Engineers), state and local
environmental laws.
Section 5.9. Notice of Hazardous Discharge and
Environmental Complaint. If Lessee receives any notice of, or its
senior on -site manager becomes aware of, (i) the happening of any
material event or the existence of any material conditions
13
435
involving the use, spill, discharge, storage, transport or cleaning
up of any Hazardous Material ( "Hazardous Discharge ") which, if
uncorrected, could jeopardize the operation of the Little Rock
Port, or (ii) any complaint, order, citation, or notice from an
enforcement agency which could result in a penalty, judgment,
agency decision, or judicial decision with regard to air emissions,
hazardous waste storage, soil condition, ground water, radon flux,
USTs, PCBs, or asbestos on the Premises or any other environmental
matter caused by or resulting from the acts or omissions of the
Lessee (an Environmental Complaint "), then Lessee shall promptly
give oral and written notice of the Environmental Complaint to the
Authority.
ARTICLE VI
IMPROVEMENTS
Section 6.1. Lessee's Bullaings iraae rixcure5 anu
Equipment. Lessor agrees that all improvements, trade fixtures,
signs, equipment, furniture, or other personal property of whatever
kind and nature kept or installed on the Premises by Lessee shall
not become the property of Lessor as a part of the realty no matter
how affixed to the Premises and may be removed by Lessee at any
time and from time to time during the entire term of this Lease.
Upon request by Lessee, Lessor shall execute and deliver at no cost
to Lessee any real estate consent or waiver forms submitted by any
vendors, lessors, mortgagees, or holders or owners of any
improvements, trade fixtures, signs, equipment, furniture, or other
personal property of any kind and description kept or installed on
the Premises setting forth the fact that Lessor waives, in favor of
vendor, lessor, mortgagee, or any holder or owner, any lien, claim
interest or other right therein superior to that of such vendor,
lessor, mortgagee, or any holder or owner, any lien, claim,
interest or other right therein superior to that of such vendor,
lessor, mortgagee, holder or owner. Lessor shall further
acknowledge that property covered by such consent or waiver forms
is personal property and is not to become a part of the Premises no
matter how affixed thereto and that such property may be removed
from the Premises by the vendor, lessor, mortgagee, holder or owner
at any time upon default in the terms of the mortgage or other
similar documents, free and clear of any claim or lien of Lessor.
Section 6.2. Mortgage or Assignment of Lease. Lessor
agrees that Lessee may mortgage or assign this Lease to the lending
institution of the Lessee's choosing if Lessee is required to do so
in order to obtain financing for construction or installation of
improvements on the Premises. Nothing herein, however, shall allow
Lessee to subordinate or mortgage the Premises.
14
ARTICLE VII
TAXES
Section 7.1. Taxes. Lessor has represented to Lessee,
and Lessor and Lessee acknowledge that under their and other
interpretations of present law, the Premises will not be subject to
ad valorem taxation by the State of Arkansas or by any political or
taxing subdivision thereof, if the Premises fulfill a public
purpose, and this factor, among others, materially induced the
Lessee to enter into this Lease. However, the Authority covenants
and agrees to be responsible for all real property taxes, special
improvement taxes, and other governmental impositions and charges,
if any, which may be levied or assessed upon the Premises;
provided, however, that nothing contained herein shall require the
Authority to cause to be paid any such taxes, impositions or
charges so long as the validity thereof is being contested in good
faith and by appropriate legal proceedings. The obligation set
forth in the preceding sentence is a special obligation of the
Authority payable solely from its revenues, and nothing in this
Lease should be considered as pledging any funds or assets of the
Lessor.
ARTICLE VIII
MAINTENANCE AND REPAIRS
Section 8.1. Repair obligation. All improvements
including, wit— hout 'limitation, plumbing, heating, roof, exterior
and interior walls, all structural components, electrical,
mechanical, air conditioning and ventilating work which are now or
may hereafter be erected or placed in the Premises at any time
during said term shall be kept, including all glass (but not
including parking and other outside areas and sidewalks in front or
appurtenant to the same), in good and substantial order and repair
(making all necessary replacements thereto) by the Lessee at its
sole cost and expense, normal wear and tear excepted.
ARTICLE IX
INSURANCE
Section 9.1. Liability Insurance. Lessee shall, during
the term of this Lease, maintain public liability insurance on the
Premises. The limits of such public liability insurance shall not
be less than $300,000 per person, $1,000,000 per accident, and
$50,000 for property damage. The policy representing such
insurance shall name Lessor, its successors and assigns, and Lessee
as insured. Such policy shall contain a clause that the insurer
will not cancel or change the insurance without giving Lessor, its
successors or assigns, ten (10) days' prior written notice. A
certificate of insurance shall be delivered to Lessor to evidence
that the policy is in force. Lessee may, with Lessor's prior
written approval, set aside and maintain an adequate insurance fund
in an amount sufficient to provide for the above minimum limits for
15
M M M M t - M M M M M M
0
0
437
public liability. The security or collateral for such fund shall
also be subject to Lessor's prior written approval, which approval
shall not be unreasonably withheld.
ARTICLE X
DAMAGE AND DESTRUCTION
section 10.1. Damage to Premises. If the Premises shall
be damaged by fire, the elements, unavoidable accident or other
casualty, except as described in the following sentence, the Rent
shall not abate but this Lease shall continue in full force and
effect. If however, the Premises are rendered unsuitable by
natural causes, Acts of God, condemnation, exploitation or other
taking, for the purposes as leased and such condition continues for
more than 120 days, Lessee may terminate and cancel this Lease
effective as of the date that the Premises were rendered
unsuitable, without further liability and all remaining Rent shall
abate.
ARTICLE XI
DEFAULT PROVISIONS
Section 11.1. Events of Default. The occurrence of any
of the following shall be deemed an event of default under this
Lease:
(a) The failure of Lessee to pay when due the Rent or
any additional charges provided for in this Lease, and the
continuation of such failure for a period of ten (10) days after
written notice thereof by the Lessor or the Authority.
(b) The failure of Lessee in any material respect to
observe and perform any covenant, condition or agreement on its
part to be observed or performed as set forth in Sections 5.4, 5.5,
5.6 and 5.9 hereof.
(c) The failure of either party to perform any other
term, condition, covenant or agreement of this Lease, and the
continuation of such failure for a period of thirty (30) days after
the other party has been given written notice specifying the same
or in a case where default cannot be cured within thirty (30) days,
if the defaulting party shall not promptly within such period,
commence and diligently pursue to completion the remedy of such
default.
Section 11.2. Lessor's Remedies. Upon the occurrence of
an event of default by Lessee, Lessor may, at its option, at any
time:
(a) Terminate this Lease and immediately re -enter and
take possession of the Premises. Lessee shall pay the Rents and
other sums due prior to the time of such termination.
1W
r �r �r r � r r rr s ar �■r r� r� �■r r
438
(b) Take possession of the Premises and expel Lessee and
then terminate this Lease, or from time to time, without
terminating this Lease relet the Premises upon such terms and
conditions as Lessor may deem advisable; Lessor shall have no
obligation to relet or otherwise mitigate the loss. No taking of
possession of the Premises by Lessor shall be construed as an
election on Lessor's part to terminate this Lease unless a written
notice of such intention be given to Lessee. Lessor shall receive
all proceeds from any reletting of the Premises and shall apply
them to the payment of all such amounts as may become due under
this Lease. If the amounts so received by Lessor are insufficient
to pay amounts due and becoming due hereunder, Lessee shall pay the
Lessor upon demand by Lessor such deficiency.
(c) Pursue all additional remedies as Lessor may have
under this Lease and at law and in equity.
No exercise of Lessor's remedies hereunder shall impair
Lessee's title to any improvements erected upon the Premises or the
equipment, trade fixtures and other personalty located on the
Premises and Lessee shall have the right to remove the same from
the Premises in an orderly manner notwithstanding any such exercise
of Lessor's remedies.
Section 11.3. Interest and Costs. Any sum accruing to
either party under the terms of this Lease which shall not be paid
when due shall bear interest at the highest rate allowed by law
from the date the same becomes due and payable until paid. In the
event either party hereto brings or commences legal proceedings to
enforce any of the terms of this Lease, the successful party shall
then be entitled to receive from the other party, in every such
action commenced, a reasonable sum as attorney's fees and costs, to
be fixed by the court in the same action.
Section 11.4. Equitable Remedies. In addition to the
remedies provided either party upon default of the other in this
Article XI, Lessor and Lessee shall each be entitled to specific
performance, and injunctive or other appropriate equitable relief
for any breach or threatened breach of any of the provisions of
this Lease, notwithstanding the availability of an adequate remedy
at law, and each party hereby waives the right to raise such
defense in any proceeding in equity.
section 11.5. No Waiver. The
Lessee to seek redress for violation, or to
performance of any covenant or condition of
prevent a subsequent act, which would have
a violation, from having all the force and
violation. The receipt by Lessor of rent
breach of any covenant of this Lease shall
of such breach. No provision of this Lease
IM
failure of Lessor or
insist upon the strict
this Lease, shall not
originally constituted
effect of an original
with knowledge of the
not be deemed a waiver
shall be deemed to have
,■� a a r r o_ .r a a a r a a .r a
been waived by Lessor or Lessee unless such waiver be in writing
signed by Lessor or Lessee, as the case may be.
ARTICLE XII
ASSIGNMENT AND SUBLETTING
Section 12.1. Assignment Subletting• Subject to the
prior written consent of the Lessor (which consent shall not be
unreasonably withheld) , Lessee may assign this Lease or sublet all
or a part of the Premises to any corporation, partnership or person
whose use of the Premises will comply with Article V of this Lease,
provided that any such sublease or assignment shall expressly be
subject to the provisions of this Lease, and provided further, that
no such assignment or sublease shall affect or reduce any
obligation of Lessee hereunder, and all obligations of Lessee
hereunder shall continue in full effect as the obligations of a
principal and not as a guarantor or surety, to the same extent as
though no assignment or sublease had been made.
Section 12.2. Performance. Any act required to be
performed by Lessee pursuant to the terms of this Lease may be
performed by any sublessee or assignee of Lessee and the
performance of such act shall be deemed to be performance by Lessee
and shall be acceptable as Lessee's act by Lessor.
ARTICLE XIII
` INDEMNIFICATION
Section 13.1. Indemnification. (a) Lessee shall save
Lessor and the Authority harmless from all claims by or on behalf
of any person, firm or corporation arising from the conduct or
management of, or from any work or thing done on, the Premises
during the term, and from all claims arising during the term from:
(i) Any condition of the Premises (except
conditions existing prior to the commencement of the term
of this Lease);
(ii) Any breach or default on the part of Lessee in
the performance of any of its obligations under this
Lease;
(iii) Any act or negligence of Lessee or any of its
agents, contractors, servants, employees or licensees; or
(iv) Any act or negligence of any assignee or
sublessee of Lessee, or of any agents, contractors,
servants, employees or licensees of any assignees or
sublessee of Lessee.
(b) In addition to the indemnification set forth in (a)
above, Lessee hereby agrees to indemnify Lessor and the Authority
Pf]
r �s r sr rr r r r r +■� e r r .� r
and hold them harmless from and against any and all losses,
liabilities, damages, injuries, costs (including response costs),
expenses and claims of any and every kind whatsoever paid, incurred
or suffered by, or asserted against, Lessor and /or the Authority
for or with respect to, or as a direct or indirect result of, the
presence on or under, or the escape, seepage, leakage, spillage,
discharge, emission, discharging or release from or on, the
Premises of any Hazardous Material (as hereinabove defined) placed
under, on, above or upon the Premises during the term, including,
without limitation, any losses, liabilities, damages, injuries,
costs (including response costs), expenses or claims asserted or
arising under the Comprehensive Environmental Response,
Compensation and Liability Act, the Resource Conservation and
Recovery Act, any so- called "Superfund" or "Superlien" law, or any
other federal, state or local statute, law, ordinance, code, rule,
regulation, order or decree regulating, relating to or imposing
liability or standards of conduct concerning any Hazardous
Material, to the extent caused by or resulting directly from the
acts or omissions of Lessee.
(c) Lessee shall save Lessor and the Authority harmless
from all costs and expenses incurred in, or in connection with, any
such claim except as excluded herein arising as aforesaid, or in
connection with any action or proceeding brought thereon, and upon
notice from Lessor or the Authority, Lessee shall defend Lessor and
the Authority in any such action or proceeding brought against
Lessor or the Authority.
(d) Notwithstanding the foregoing, Lessee's indemnity
obligations hereunder any other obligation under this Section 13.1
shall not extend to any claim arising from the negligence or
intentional acts of Lessor, the Authority, its or their agents,
officers of employees.
ARTICLE XIV
MISCELLANEOUS
Section 14.1. Notices. Any notice, consent, request,
claim or other communication hereunder shall be in writing and
shall be deemed to have been duly given if delivered or mailed by
registered or certified mail, return receipt requested, to the
address shown for the respective party at the conclusion of this
Lease. Such addresses may be changed by any party by notice given
in the manner provided above.
section 14.2. Representations. All statements contained
in any certificate or other instrument delivered by or on behalf of
the parties pursuant hereto, or in connection with the transaction
contemplated hereby, shall be deemed representations and warranties
by the party giving same.
19
0 0
M M w
Section 14.3. Modifications. This Lease contains all
the terms and conditions agreed upon by the parties hereto with
respect to the transactions contemplated hereby, and shall not be
amended or modified except by written instrument signed by all of
the parties.
Section 14.4. Successors and Assigns. This Lease shall
be binding upon and inure to the benefit of the representatives,
heirs, estates, successors and assigns to the parties hereto.
Section 14.5. Parties in Interest. Nothing expressed or
implied in this Lease is intended, or shall be construed, to confer
upon or give any person, firm or corporation, other than the
parties hereto and the Authority, their successors and assigns, any
benefits, rights or remedies under or by reason of this Lease.
Section 14.6. Time Is of Essence. Time is of the
essence of this Lease.
Section 14.7. Counterparts. This Lease may be executed
simultaneously in two or more counterparts, each of which shall be
deemed an original, but all of which shall constitute one and the
same instrument.
Section 14.8. Governing Law. This Lease shall be
governed by and construed under the laws of the State of Arkansas.
Section 14.9. Recordation. Lessor and Lessee agree that
upon execution of this Lease, that Lessee shall cause a copy of
same to be recorded in the office of the Circuit Clerk and Ex
Officio Recorder of Pulaski County, Arkansas.
Section 14.10. Authority May Perform. The Authority may
perform all covenants and obligations of the - Lessor under this
Lease. All notices required to be given to the Lessor hereunder
shall be deemed given when given to the Authority, and all notices,
consents and approvals in favor of or required by Lessor hereunder
may be given by the Authority in its sole discretion.
441
Section 14.11. Limited Liability of Lessor and Authority.
It is understood that the representations, warranties and covenants
of Lessor and the Authority contained in this Lease shall not
create any general obligation or liability of Lessor or the
Authority and that any obligation or liability of Lessor or the
Authority for any breach hereunder is a special obligation payable
solely from Authority revenues.
20
M r
r r r■ �r �r r� r r � r � � �
• 442
IN WITNESS WHEREOF, Lessor, the Authority, and Lessee
have caused this Lease to be executed in their respective corporate
names and their respective corporate seals to be hereunto affixed
and attested by their duly authorized officers, all as of the date
first above written.
ATTEST:
City Clerk
(SEAL)
ATTEST:
Executive Director
(SEAL)
ATTEST:
Geoffrey P. O'Conner
Vice President - Finance
and Administration
(SEAL)
CITY OF LITTLE ROCK, ARKANSAS
LITTLE ROCK PORT AUTHORITY
By
Chairman
USF YEAST
By
Michael P. Lavalle
President
21
i i� i i i� i ■� i� i i i�
• • 443
ACKNOWLEDGMENT
STATE OF ARKANSAS )
COUNTY PULASKI )
Before me, a Notary Public duly commissioned, qualified
and acting, within and for the County and State aforesaid, appeared
in person this date the within named Jim Dailey and Robbie Hancock,
Mayor and City Clerk, respectively, of the City of Little Rock,
Arkansas, a municipal corporation, to me personally well known, who
stated that they were duly authorized in their respective
capacities to execute the foregoing instrument for and in the name
of the City, and further stated and acknowledged that they had
signed, executed and delivered the foregoing instrument for the
consideration, uses and purposes therein mentioned and set forth.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
official seal this day of , 1993.
My commission expires:
(SEAL)
22
Notary Public
ACKNOWLEDGMENT 44 4
STATE OF ARKANSAS
COUNTY PULASKI )
Before me, a Notary Public duly commissioned, qualified
and acting, within and for the County and State aforesaid, appeared
in person this date the within named James Cobb, and Robert G.
Brave, Chairman and Executive Director, respectively, of the Little
Rock Port Authority, a municipal port authority, to me personally
well known, who stated that they were duly authorized in their
respective capacities to execute the foregoing instrument for and
in the name of the Authority, and further stated and acknowledged
that they had signed, executed and delivered the foregoing
instrument for the consideration, uses and purposes therein
mentioned and set forth.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
official seal this day of , 1993.
My commission expires:
(SEAL)
23
Notary Public
441;
ACKNOWLEDGMENT
STATE OF )
COUNTY OF )
Before me, a Notary Public duly commissioned, qualified
and acting within and for the County and State aforesaid, appeared
in person this date the within named Michael H. Lavalle and
Geoffrey P. O'Conner, President and Vice President- Finance and
Administration, respectively, of USF Yeast, a Delaware general
partnership, to me personally well known, who stated that they were
duly authorized in their respective capacities to execute the
foregoing instrument for and in the name and behalf of the
partnership, and further stated and acknowledged that they had so
signed, executed and delivered the foregoing instrument for the
considerations, uses and purposes therein mentioned and set forth.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
official seal this day of 1992.
My commission expiVes:
(SEAL)
w
Notary Public
EXHIBIT A
PERMITTED EXCEPTIONS
1. This Lease Agreement.
2. The Local Cooperation Agreement.
3. The Bill of Assurance.
4. Defects, liens, encumbrances, adverse claims and other
matters set forth in the Commitment for Title Insurance dated April
29,1993, issued by Chicago Title Insurance Company with respect to
the Premises.
5. Conditions, restrictions, and limitations, if any, now
appearing of record.
6. Liens for taxes and assessments not currently due and
payable.
7. Utility, access and other easements and rights of way,
restrictions, reversions and exceptions approved by Lessor and
Lessee in accordance with the terms of this Lease.
8. Such minor defects, irregularities, encumbrances,
easements, rights of way, and clouds on title as normally exist
with respect to properties similar in character to the Premises and
as do not, in the reasonable judgment of Lessee, impair the value
or utility of the Premises or the marketability of title to the
Premises.
25
M M M M M M M M a M M M
EXHIBIT B
DESCRIPTION OF PREMISES
0
M M M
447
The following described real estate situated in Pulaski
County, Arkansas, to -wit:
A parcel of land situated in the Ez of Section 15,
Township 1 North, Range 11 West, Pulaski County,
Arkansas, being more particularly described as follows:
Commencing at the Northwest corner of Section 15,
Township 1 North, Range 11 West; thence East, 1,858.35
feet; thence South 592.72 feet to the Northwest corner of
Tract A, Area 302, Little Rock Port Industrial Park;
thence South 66 degrees 15 minutes 45 seconds East,
1,120.38 feet along the Northerly line of said Tract A,
Area 302; thence South 23 degrees 44 minutes 15 seconds
West, 250.00 feet along the Easterly line of said Tract
A, Area 302; thence continuing along said Easterly line
of Tract A, North 66 degrees 15 minutes 45 seconds West,
306.00 feet; thence continuing along said Easterly line
of Tract A, Area 302 and the East right of way line of
Lindsey Road, South 23 degrees 44 minutes 15 seconds West
623.00 feet to the center line of Industrial Harbor Drive
as shown on a plat recorded in Book D, Page 142, Circuit
Clerk's Office, Pulaski County, Arkansas; thence South 66
degrees 15 minutes 45 seconds East, along said center
line 1,437.80 feet; thence continuing along said center
line along a tangent curve to the left, having a radius
of 716.20 feet, and a chord bearing and distance of South
73 degrees 12 minutes 45 seconds East, 173.32 feet, for
a distance of 173.75 feet; thence continuing along said
center line South 80 degrees 09 minutes 45 seconds East,
683.31 feet; thence South 09 degrees 50 minutes 15
seconds West, to the South 100 foot right of way line of
said Industrial Harbor Drive, 50.00 feet to the point of
beginning; thence along said South 100 foot right of way
line South 80 degrees 09 minutes 45 seconds East, 421.45
feet; thence continuing along said South 100 foot right
of way line along a tangent curve to the right having a
radius of 666.20 feet, a chord bearing and distance of
South 62 degrees 43 minutes 18 seconds East, 399.34 feet,
for a distance of 405.58 feet; thence South 07 degrees 17
minutes 57 seconds West, 1,486.52 feet to the ordinary
highwater mark (elevation 234.0) of the Slackwater
Harbor; thence North 87 degrees 43 minutes 02 seconds
West, along the ordinary highwater mark, 799.41 feet to
a point being 100 feet East of the East easement line of
a 100 foot Arkansas Power and Light Company easement
recorded in Book 1201, Page 297, in the said Circuit
Clerk's Office; thence North 07 degrees 17 minutes 57
seconds East, along a line parallel with said 100 foot
0
Arkansas Power and Light Company easement, 1,711.54 feet
to the point of beginning, a /k /a Tract A, Area 305,
Little Rock Port Industrial Park.
27