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RESOLUTION NO. 12,340
2 A RESOLUTION TO AUTHORIZE THE LEASE OF CERTAIN REAL
3 PROPERTY LOCATED IN THE SLACKWATER HARBOR AREA OF
4 THE LITTLE ROCK PORT AUTHORITY INDUSTRIAL PARK;
5 AUTHORIZING THE EXECUTIVE DIRECTOR OF THE LITTLE ROCK
6 PORT AUTHORITY TO EXECUTE APPROPRIATE DOCUMENTS
7 FOR 5.8 ACRES OF LAND KNOWN AS AREA 300, TRACT E; AND
8 FOR OTHER PURPOSES.
9 WHEREAS, Green Way Bio Energy, LLC, an Arkansas limited liability
10 company (the "Tenant "), desires to lease certain real property located in the Little Rock
11 Port Industrial Park owned by the City of Little Rock, Arkansas (the "City "), and which
12 was approved by the Little Rock Port Authority Board of Directors on July 19, 2006, and
13 WHEREAS, Tenant has made an offer in the sum of Twenty Seven Thousand
14 Five Hundred Fifty and 00/100 Dollars ($27,550.00 /year) for the property, and
15 WHEREAS, the Little Rock Board of Directors finds that the proposed lease to
16 the Tenant, attached hereto as "Exhibit A ", will help to secure and develop industry in
17 the Little Rock Port Industrial Park, thereby providing substantial employment and
18 payroll.
19 NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF
20 THE CITY OF LITTLE ROCK:
21 Section 1. The lease of the property for the consideration stated above is
22 approved and the Executive Director of the Little Rock Port Authority is authorized and
23 directed to execute for and on behalf of the City the appropriate documents and the
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appropriate plat and bill of assurance, leasing the property to the Tenant or its designee,
upon full payment of the lease price in the sum of Twenty -Seven Thousand Five
Hundred Fifty and 00/100 Dollars ($27,550.00) per year paid to the Little Rock Port
Authority.
Section 2. The property is substantially described as follows, with such changes
as shall be approved by the City Attorney and the Mayor; the execution of the
appropriate documents authorized by this resolution shall constitute evidence of such
approval:
LEASE AREA TRACT E
LAND DESCRIPTION PART AREA 300
A tract of land situated in the SW 1/4 of the NE 1/4 of Section 15, Township 1
North, Range 11 West, Pulaski County, Arkansas, being more particularly
described as follows:
Commencing at the northwest corner of said Section 15, T -1 -N, R -11 -W;
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, City of Little Rock,
Pulaski County, Arkansas; thence S66 915'00 "E, 1120.38 feet; thence
S23 °45'00 "W, 250.00 feet; thence N66 °15'00 "W, 306.00 feet; thence
S23 945'00 "W, 623.00 feet to a cotton picker spindle found at the
intersection of the easterly right -of -way line of Lindsey Road at the center
line of Industrial Harbor Drive as shown in Plat Book D, Page 142, Circuit
Clerk's Office, Pulaski County Court House, Arkansas; thence along said
center line S66 915'00 "E, 869.77 feet; thence N24 °11'14 "E, 50.00 feet to the
Point of Beginning on the northerly right -of -way line of said Industrial
Harbor Drive; thence continuing N24 °11'14 "E, 624.17 feet to the ordinary
high water line on the southerly bank of the Arkansas River; thence along
the approximate meander of said ordinary high water line 425 feet; thence
S24 °46'04 "W, 580.21 feet to the northerly right -of -way line of Industrial
Harbor Drive; thence along said northerly right -of -way line N66 915'00 "W,
416.56 feet to the Point of Beginning; and containing 5.800 acres (252,659
S.F), more or less.
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I Section 3. Severability. In the event any section, subsection, subdivision,
2 paragraph, subparagraph, item, sentence, clause, phrase, or word of this resolution is
3 declared or adjudged to be invalid or unconstitutional, such declaration or adjudication
4 shall not affect the remaining portions of this resolution, which shall remain in full force
5 and effect as if the portion so declared or adjudged invalid or unconstitutional were not
6 originally a part of this resolution.
7 Section 4. Repealer. All laws, ordinances, resolutions, policies, or parts of any
8 such material, in conflict with the provisions of this resolution are hereby repealed to
9 the extent of such inconsistency.
10 ADOPTED: September 5, 2006
11 ATTEST:
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Na cy Woo , City Clerk
APPROVED AS TO LEGAL FORM:
Thomas M. Carpenter, City A orney
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APPROVED:
Ji ailey, Mayor
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EXHIBIT "A"
LEASE AGREEMENT
3 THIS LEASE AGREEMENT (this "Lease ") is entered into effective the _day of , 2006 by and
4 between the LITTLE ROCK PORT AUTHORITY, an agency of the City of Little Rock, Arkansas
5 having an address of 7500 Lindsey Road, Little Rock, Arkansas 72206 ( "Landlord "), and GREEN
6 WAY BIO ENERGY, LLC, an Arkansas limited liability company whose address is 616 South Main
7 Street, Stuttgart, Arkansas 72160 (the "Tenant ").
8 WHEREAS, Landlord owns approximately 5.8 acres of real estate located in Little Rock,
9 Arkansas more particularly described in Exhibit "A" attached hereto and made a part hereof (the "Leased
10 Premises ") and;
11 WHEREAS, Landlord desires to lease to Tenant and Tenant desires to lease from Landlord the
12 Leased Premises upon the terms and conditions of this Lease.
13 NOW, THEREFORE, in consideration of the mutual covenants and agreements provided
14 herein, Landlord and Tenant agree as follows:
15 1. Leased Premises. Landlord does hereby lease, demise and let unto Tenant, subject to the
16 terms and reservations herein set forth, and Tenant does hereby lease from Landlord the Leased Premises,
17 subject to existing covenants and restrictions or record, and existing applicable ordinances and codes of
18 the City of Little Rock, Arkansas.
19 2. Lease Term. This Lease shall be for an initial term of five (5) years, commencing on
20 August 17, 2006, and ending on August 16, 2011, (the "Initial Term "). If the Tenant shall have fully
21 performed every agreement and covenant on Tenant's part to have been kept and performed under the
22 terms of this Lease at the time of exercise and at the times of renewal, the Tenant is hereby granted the
23 right and option to extend this Lease, upon the same terms except the amount of rental, for four (4)
24 additional five (5) year periods, with such option(s) to be exercised in writing by the Tenant not later than
25 one hundred eighty (180) days prior to the expiration of the Initial Term or any subsequent renewal term
26 of this Lease (the Initial Term and any renewal term(s), collectively, shall be the "Lease Term "). Should
27 the Tenant exercise the options herein granted to extend this Lease, the minimum Annual Rent (as
28 hereinafter defined) for this Lease shall be recalculated for any such renewal term in accordance with the
29 following procedure:
30 The total amount of the Annual Rent as of the date hereof (and as set forth for each renewal term,
31 as applicable) shall be divided by the figure in the Consumer Price Index — Urban Wage Earners and
32 Clerical Workers (Current Series) appearing in the column "Midwest Urban — All Items" therein for the
33 month corresponding to the commencement date or renewal date of this Lease and then multiplying that
34 amount by the corresponding index for the month next preceding the first month of the then current
35 extended term of this Lease. The Consumer Price Index referred to is the Urban Wage Earners and
36 Clerical Workers (Current Series) 1982 -1984 equals 100 published by the Bureau of Labor Statistics,
37 United States Department of Labor. If the Bureau of Labor Statistics changes the forms or the basis of
38 calculating the noted Consumer Price Index, the parties will agree to a substitute index which most
39 closely approximates the intent of the above adjustment. The foregoing adjustment of Annual Rent shall
40 be made at each five (5) year interval of the Lease (being the start of each renewal term).
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1 3. Lease Rent. Tenant shall pay to Landlord rent annually in advance, in a single
2 installment, no later than the anniversary date of the Lease of each year during the Lease Term ( "Annual
3 Rent "). Annual Rent shall be Four Thousand and No/100 Dollars ($4,000.) per acre or part thereof plus a
4 Seven Hundred Fifty and No /100 Dollars ($750.) per acre or part thereof of the Leased Premises
5 maintenance fee or such rate as the Board of Directors may determine.
6 4. Throughput Fee. In addition to Annual Rent, Tenant shall also pay to Landlord an
7 annual throughput fee, paid in arrears, not later than thirty (30) days following the anniversary date of the
8 Lease of each year during the Lease Term with respect to the prior year or prior partial year, in the
9 amount of the then applicable throughput fee for the Port of Little Rock and Slackwater Harbor. As of the
10 date of the making of this Lease, the annual throughput fee effective for Tenant shall be Ten Cents ($.10)
11 per ton for any and all goods and commodities shipped to or from the Port of Little Rock and Slackwater
12 Harbor by Tenant or on behalf of Tenant by, in, or over the water (but not including service by rail or
13 truck) (the "Throughput Fee ") (provided, however, the Throughput Fee may be increased by the Board
14 of Directors of the Little Rock Port Authority not more frequently than annually, and this Lease shall be
15 automatically amended to reflect the increase upon Tenant's receipt of written notice from Landlord that
16 the Throughput Fee has been increased by action of the Board of Directors of the Little Rock Port
17 Authority, which notice shall state the effective date and the amount of such increase). At the time
18 Tenant shall make payment of the Throughput Fee to Landlord, Tenant shall also produce supporting
19 written documentation to Landlord evidencing the total amount of any and all goods and commodities
20 shipped to or from the Port of Little Rock and Slackwater Harbor by Tenant or on behalf of Tenant for the
21 prior year. In no event whatsoever shall the annual Throughput Fee paid by Tenant to Landlord be less
22 than Five Thousand and No /100 Dollars ($5,000.) (said minimum throughput fee being based on a
23 minimum amount of shipped goods and commodities of 50,000 tons). The Throughput Fee shall not
24 apply to any goods shipped through the Terminal Operator (Logistic Services, Inc.).
25 5. Use of Property. The Leased Premises are leased to the Tenant for the purpose of
26 constructing and operating a biodiesel manufacturing facility and Tenant covenants and agrees with and
27 unto Landlord that the Leased Premises will be used for that purpose and no other, except upon prior
28 written approval of Landlord.
29 6. Insurance. Tenant, at its sole cost and expense, shall maintain insurance on any
30 improvements located on the Leased Premises (in the amount of full replacement value) to keep said
31 improvements insured at all times during the Lease Term against loss or damage by fire and such other
32 hazards as are embraced by the standard extended coverage endorsement approved for use in the State of
33 Arkansas. Tenant shall, during the term of this Lease, maintain public liability insurance on the Leased
34 Premises. The limits of such public liability insurance shall not be less than $500,000 per person,
35 $1,000,000 per accident, and $500,000 for property damage. The policies representing such insurance
36 shall name Landlord, its successors and assigns, and Tenant as insured. Such policies shall contain a
37 clause that the insurer will not cancel or change the insurance without giving Landlord, its successors or
38 assigns, ten (10) day's prior written notice. A certificate of insurance shall be delivered to Landlord to
39 evidence that the policy is in force.
40 7. Repairs and Maintenance. Tenant shall keep and maintain during the Lease Term the
41 Leased Premises and any improvements placed thereon in good order, condition and repair.
42 8. Surrender of Possession. At the end of the Lease Term, Tenant agrees to surrender
43 possession of the Leased Premises to Landlord without demand, by vacating the Leased Premises. Tenant
44 will surrender possession of the Leased Premises to Landlord in the same condition as existed on the date
45 this Lease was executed, ordinary wear and tear excepted. With the prior written approval of Landlord,
46 Tenant may place gravel, concrete, buildings, and other leasehold improvements on the Leased Premises.
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1 9. Compliance with Law. (a) Tenant shall install, maintain, monitor, inspect, inventory,
2 remove, and close the operations on the property in strict compliance with all applicable federal, state and
3 local laws, decisions of the courts and regulations, rules, directives, decrees and orders of the federal,
4 state and local governmental authorities.
5 (b) Each year throughout the term of this Lease, on the anniversary date hereof, Tenant shall
6 deliver to Landlord a written statement, executed by a duly authorized representative of Tenant, whereby
7 Tenant does certify, covenant, warrant, and represent to and for the benefit of Landlord that during the
8 preceding year, the Tenant has complied with all laws, ordinances, statutes, rules, and regulations
9 applicable to the Leased Premises and Tenant's operations at the Leased Premises, including, without
10 limit, all maintenance and monitoring requirements and all health, safety, and environmental laws,
11 ordinances, statutes, rules, and regulations, and that, to Tenant's knowledge, the operations of Tenant
12 upon the Leased Premises and any substances placed upon the Leased Premises have not resulted in soil,
13 water or other contamination on, under, or adjacent to the Leased Premises, and do not in any way pose a
14 threat to health, safety or the environment.
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16 10. Landlord's Inspection Rh!hts. Landlord and his representatives shall have the right, at
17 any reasonable time and from time to time, to enter the Leased Premises and to inspect the property and
18 soil and to conduct soil or water sampling, testing, monitoring, digging, drilling, and analyses and to
19 review any documents, materials, inventories, financial data, or notices or correspondence to or from
20 private parties or governmental authorities in connection with the usage of the property. All costs and
21 expenses reasonably incurred by Landlord in connection with inspections shall become due and payable
22 by Tenant as additional rent upon presentation by Landlord of an invoice therefor.
23 11. Assumption by Landlord of Tenant's Responsibilities. In the event Tenant fails or is
24 not able, for any reason, to comply with the applicable federal, state and local laws and its obligations
25 hereunder, in whole or in part, or if Landlord reasonably believes that the usage of the Leased Premises
26 has resulted in or threatens to cause soil, water, or other contamination or pose a threat to health, safety,
27 or the environment, Landlord shall have the right, but not the obligation, to act in place of the Tenant (and
28 Tenant hereby appoints Landlord its agent for such purposes) and to take such action as it may deem
29 necessary or desirable to ensure compliance or to mitigate, abate, or correct the contamination or other
30 threat. All costs and expenses incurred by Landlord in connection with any such action, including,
31 without limitation, consultant's and legal fees, shall become immediately due and payable by Tenant to
32 Landlord as additional rent, upon presentation of an invoice therefor.
33 12. Closure. Upon termination of this Lease, at any time and for any reason, Tenant shall
34 clean up, and remove any hazardous materials as defined below, under and adjacent to the Leased
35 Premises, in accordance with the requirements of federal, state and local law and to the satisfaction of
36 Landlord, and deliver to Landlord a copy of a certificate of closure issued by the applicable authority, if
37 one is deemed to be necessary by Landlord.
38 13. Hazardous Material.
39 (a) Tenant will comply with the provisions of all Federal, State or local statutes,
40 laws, ordinances, codes, rules, regulations, orders and decrees regulating, relating to or imposing
41 liability or standards of conduct concerning air emissions, water discharges, noise emissions,
42 solid or liquid storage and disposal, hazardous or toxic waste or substances and other
43 environmental, health or safety matters; and Tenant will have in full force and effect all necessary
44 Federal, State and local licenses, certificates and permits relating to Tenant and the Leased
45 Premises. Tenant hereby agrees to indemnify the Landlord and hold the Landlord harmless from
46 and against any and all losses, liabilities, damages, injuries, costs (including response costs),
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expenses and claims of any and every kind whatsoever paid, incurred or suffered by, or asserted
against, the Landlord 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 Leased Premises property of any Hazardous Material (as hereinafter defined) 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 Tenant. For purposes of this 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 anytime hereafter in effect. If Tenant
receives any notice of the happening of any event involving the use, spill, discharge or cleaning
up of any Hazardous Material (a Hazardous Discharge) or any complaint, order, citation or
notice with regard to air emissions, water discharges, noise emission; or any other environmental,
health or safety matter caused by or resulting directly from the acts or omissions of Tenant (an
Environmental Complaint) from any person or entity, including, without limitation, the United
States Environmental Protection Agency (EPA), then Tenant shall give, within seven (7) business
days, oral and written notice of same to the Landlord. Upon ten (10) day's notice to the Landlord
from any person or entity, including, without limitation, the EPA (except in an emergency),
without limitation of the Landlord's rights under this Lease, the Landlord shall have the right, but
not the obligation, to exercise any of its rights as provided in this Lease or to take such other
actions as it deems reasonably necessary or advisable to clean up, remove, resolve or minimize
the impact of, or otherwise deal with, any such Hazardous Material or Environmental Complaint,
asserting the existence of any Hazardous Material or Environmental Complaint on or pertaining
to the Leased Premises property which, if true, could result in an order, suit or other action
against Tenant, the Landlord, or both by any governmental agency or otherwise which, in the sole
opinion of Landlord, could jeopardize the operation of the Little Rock Port or Slackwater Harbor.
All reasonable costs and expenses incurred by Landlord in the exercise of any such rights shall be
payable by Tenant upon demand.
(b) On or before the effective date of this Lease, Landlord shall provide to Tenant a
Phase I Environmental Site Assessment of the Leased Premises reflecting the current state of
environmental condition of the Leased Premises (the "Baseline ESA "). At the termination of this
Lease for any reason, Tenant shall provide to Landlord not later than ten (10) business days
following the termination of this Lease, a then current Phase I Environmental Site Assessment of
the Leased Premises (the "Closing ESA "), certified to Landlord and Tenant, prepared by a
reputable licensed environmental engineering firm recognized as such by the Arkansas
Department of Environmental Quality ( "ADE "), and generally acceptable to Lender (the
"Closing ESA Firm "). If the Closing ESA reflects any environmental contamination of the
Leased Premises which is not reflected on the Baseline ESA, or environmental contamination
which is at a higher level than that existing on the Baseline ESA, as determined by the Closing
ESA Firm, and which is resulting from, arising out of, or associated with Tenant's use of the
Leased Premises, Tenant shall thereafter be solely responsible for all costs and expenses to
perform further tests or studies, remediation, abatement, negotiations and resolutions with ADEQ,
or other actions necessary to insure that Tenant has restored, or caused to be restored, the Leased
VA
I Premises and surrendered the Leased Premises back to Landlord in a condition which is at least
2 equal to or better than the environmental condition of the Leased Premises as reflected by the
3 Baseline ESA, as determined by the Closing ESA Firm. Upon completing the actions necessary
4 to restore the Leased Premises to a condition which is at least equal to or better than the
5 environmental condition of the Leased Premises as reflected by the Baseline ESA, Tenant shall
6 provide a written, certified, executed report from the Closing ESA Firm, in a form and substance
7 reasonably acceptable to Landlord, certifying that the final condition of the Leased Premises, as
8 surrendered back to Landlord, is equal to or better than the environmental condition of the Leased
9 Premises as reflected by the Baseline ESA. Furthermore, if ADEQ has in any way whatsoever
10 been involved in the review of, inspection of, or oversight of the actions by Tenant or its agents
11 which are necessary to restore the Leased Premises to a condition which is at least equal to or
12 better than the environmental condition of the Leased Premises as reflected by the Baseline ESA,
13 Tenant shall cause ADEQ to issue a no- further action letter, a clearance letter, or such other
14 similar letter of ADEQ acknowledging that the Leased Premises are compliant with applicable
15 ADEQ ordinances, laws, rulings, rules, and regulations.
16 14. Equipment, Furniture and Fixtures. Tenant shall have the right to place, erect, install,
17 maintain and operate on the Leased Premises such equipment, furniture and fixtures which Tenant may
18 reasonably require so long as the same are not in violation of any existing laws, ordinances or
19 governmental regulations. Any equipment, furniture and fixtures or other items placed upon the Leased
20 Premises shall at all times remain the personal property of Tenant. In the event of the ultimate removal of
21 any equipment, furniture and fixtures or other personal property of Tenant, Tenant shall repair any and all
22 damages resulting therefrom.
23 15. Signage. Tenant shall have the right to install signage on.the Leased Premises subject to
24 the prior written approval of Landlord concerning the type, height, size, shape, lettering, and lighting of
25 such signage, and provided that such signage is in all respects compliant with applicable City of Little
26 Rock, Arkansas signage ordinances.
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16. Indemnity Auainst Damage or Iniury. Tenant agrees to defend, indemnify, and hold
harmless the Landlord against any claim, expense, loss or liability as a result of any breach by Tenant,
Tenant's agents, servants, employees, customers, visitors or licensees, of any covenant or condition of
this Lease, or as a result of Tenant's use or occupancy of the Leased Premises, or as a result of the
carelessness, negligence, or improper conduct of Tenant, Tenant's agents, servants, employees,
customers, visitors or licensees. Tenant agrees to keep and maintain at all times during the Lease Term, in
full force and effect, with a company or companies acceptable to Landlord, insurance against third party
liability by reason of Tenant's occupancy of the Leased Premises with limits of liability thereunder of not
less than $500,000 per person, $1,000,000 per accident, and $500,000 coverage for property damage, and
Landlord shall be a named insured in such policies.
Tenant hereby waives, releases, acquits, and forever discharges Landlord, Landlord's directors,
officers, employees, agents, partners, or any other person acting on behalf of Landlord, of and from any
and all claims, actions, causes of action, demands, rights, damages, costs, expenses, or compensation
whatsoever, direct or indirect, known or unknown, foreseen or unforeseen, which Tenant now has or
which may arise in the future on account of or in any way growing out of or in connection with the
physical condition of the real property or any law or regulation applicable thereto, or the existence or
condition of any fill, excavation, or filled ground on or within the real property which may affect the
installation, use, maintenance, monitoring, and operations of the Tenant on said property.
17. Quiet Enjoyment. Tenant shall peacefully hold and quietly enjoy the Leased Premises
without interruption by Landlord, or any person claiming by, through or under Landlord.
1 18. Assignment. Tenant agrees that it will not assign this Agreement, or sublet any of the
2 Leased Premises, in whole or in part to any person, firm, corporation or other legal entity without first
3 obtaining the Landlord's written permission to make such assignment or sublease, such consent not to be
4 unreasonably withheld. If any such assignment or sublease is made without consent of the Landlord, this
5 Agreement shall automatically terminate.
6 19. Events of Default. The following shall be deemed the events of default under this Lease:
7 (a) The failure of Tenant to pay when due the Annual Rent, the Throughput Fee or additional
8 charges provided for in this Lease, and the continuation of such failure for a period of ten
9 (10) days thereafter.
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11 (b) The failure of Tenant to perform any term, condition, covenant or agreement of this
12 Lease, excluding the payment of Rent, the Throughput Fee, or additional charges, and the
13 continuation of such failure for a period of thirty (30) days after Tenant has been given
14 written notice specifying the same.
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16 20. Tenant's Default. In the event of any default by Tenant, Landlord may, at its option, at
17 any time:
18 (a) Terminate this Lease and immediately re -enter and take possession of the Leased
19 Premises. Tenant shall pay sums due prior to the time of such termination.
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21 (b) Take possession of the Leased Premises and expel Tenant and then terminate this Lease,
22 or from time to time, without terminating this Lease re -let the Leased Premises upon such
23 terms and conditions as Landlord may deem advisable; Landlord shall have no obligation
24 to re -let or otherwise mitigate the loss. No taking of possession of the Leased Premises
25 by Landlord shall be construed as an election on Landlord's part to terminate this Lease
26 unless a written notice of such intention be given to Tenant. Landlord shall receive all
27 proceeds from any re- letting of the Leased Premises and shall apply them to the payment
28 of all such amounts as may become due under this Lease. If the amounts so received by
29 Landlord are insufficient to pay amounts due and becoming due hereunder, Tenant shall
30 pay the Landlord upon demand by Landlord such deficiency.
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32 (c) Pursue all additional remedies as Landlord may have under this Lease and at law and in
33 equity.
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35 21. Reservation of Railroad Right of Way. Tenant does hereby expressly acknowledge
36 and agree that certain railroad tracks and supporting equipment are located upon and across certain
37 portions of the Leased Premises; such railroad tracks and supporting equipment are vital and necessary to
38 the functions of Landlord as a Port Authority, and, as such, Tenant does hereby expressly acknowledge
39 and agree that any and all such railroad tracks and any supporting equipment currently located on any part
40 of the Leased Premises, including an area extending outward on all sides thereof for a distance of twenty-
41 five feet (25') (the "Railroad Right of Way ") shall be reserved unto Landlord, its successors and assigns
42 as a right of way and easement for on, over, and across the Leased Premises for ingress, egress, access,
43 and use for railroad operation purposes, including all rights to enter onto such Railroad Right of Way for
44 necessary, inspections, maintenance, repairs, and replacements.
45 Landlord acknowledges that Tenant may from time to time request the ability to construct a
46 pipeline that crosses under said Railroad Right of Way, and /or make railroad track connections onto the
47 Railroad Right of Way; Landlord agrees that it will cooperate in good faith with Tenant to allow Tenant
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I such crossings and connections where deemed commercially reasonable and compliant with safety
2 requirements, rules, and regulations, as determined by Landlord.
3 22. Brokers. Tenant and Landlord each represent to the other that it has dealt with no broker
4 in connection with this Lease and each shall hold the other harmless from and against any and all liability,
5 loss, damage, expense, claim, action, demand, suit or obligation arising out of or relating to a breach of
6 such representation.
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23. General Terms, Covenants and Agreements.
(a) Time of Essence. It is mutually agreed that time is of the essence in the performance of
each and every term, covenant and condition of this Lease.
(b) Entirety, Amendment and Waiver. This Lease constitutes the entire understanding and
agreement by and between the parties hereto relative to the subject matters herein set
forth. There are no terms, obligations, covenants, statements, representations, warranties
or conditions relating to the subject matters hereof other than those specifically contained
herein. This Lease supersedes all prior oral or written negotiations, agreements and
covenants relative to the subject matters herein contained. No amendment or modification
of the terms of this Lease shall be deemed valid unless first reduced to writing and signed
by both parties hereto and no waiver of any of the terms of this Lease shall be binding
unless reduced to writing and signed by the party or parties sought to be charged with
such waiver.
(c) Binding Effect. It is agreed that the provisions, covenants and conditions of this Lease
shall be binding upon each of the parties hereto and their successors and assigns.
(d) Notices and Communications. All notices required or which may be given under the
terms of this Lease or any other communications between Landlord and Tenant provided
by the terms hereof or pertaining or relating to this Lease shall be deemed to be properly
given and served if reduced to writing and sent by registered or certified mail, postage
prepaid, return receipt requested, and if intended for Landlord, addressed to Little Rock
Port Authority at 7500 Lindsey Road, Little Rock, Arkansas 72206, and if intended for
Tenant, addressed to Green Way Bio Energy, LLC at 616 South Main Street, Stuttgart,
AR 72160. Unless otherwise stated, the effective date of any such notice or
communication shall be the date on which the same is received. Either party hereto may
change the address to which notice is to be sent to such party by prior written notice to
the other.
(e) Applicable Law. This Lease has been prepared in accordance with the laws of the State
of Arkansas and is to be interpreted, construed and enforced in accordance with the laws
of said state.
(f) Duplicate Originals. Any fully executed copy of this Lease shall be deemed for all
purposes as a duplicate original hereof.
(g) Attornev Fees and Costs. In the event either party hereto shall file an action to enforce
any agreement contained in this Lease or for breach of any covenant or condition hereof,
then the prevailing party in any such action shall be entitled to recover from the other
party or parties a reasonable attorneys' fees for the services of the prevailing party's
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I attorney, together with any and all costs of such action, said fees to be fixed by a court
2 having competent jurisdiction over the subject matter in dispute.
3
4 24. Date of Agreement. The "Effective Date" of this Agreement shall be the date first
5 written in the preamble of this Agreement.
C1l
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(Signatures contained on following page.)
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I IN WITNESS WHEREOF, Landlord and Tenant have executed and delivered this Lease as of
2 the date first above written.
3 LANDLORD:
4 LITTLE ROCK PORT AUTHORITY
5 By:
6 Name: Paul Latture
7 Title: Executive Director
8 Date:
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TENANT:
GREEN WAY BIO ENERGY, LLC:
By:
Name: John Keith Thompson
Title: Managing Member
Date:
ACKNOWLEDGMENT
STATE OF ARKANSAS )
)SS.
COUNTY OF PULASKI )
On this the day of , 2006, before me, the
undersigned officer, personally appeared Paul Latture, who acknowledged himself to be the
Executive Director of the Little Rock Port Authority, an agency of the City of Little Rock, and
that he, as such Executive Director, being authorized so to do, executed the foregoing instrument
for the purposes therein contained, by signing the name of the authority by himself as Executive
Director.
In witness whereof I hereunto set my hand and official seal.
My Commission Expires:
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NOTARY PUBLIC
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ACKNOWLEDGMENT
STATE OF ARKANSAS )
)SS.
COUNTY OF )
On this the day of , 2006, before me,
the undersigned officer, personally appeared John Keith Thompson, who acknowledged himself
to be the Managing Member of GREEN WAY BIO ENERGY, LLC, An Arkansas limited
liability company, and that he, as such Managing Member, being authorized so to do, executed
the foregoing instrument for the purposes therein contained, by signing the name of the company
by himself as Managing Member.
In witness whereof I hereunto set my hand and official seal.
My Commission Expires:
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NOTARY PUBLIC
EXHIBIT "A"
Legal Description of the Leased Premises
LEASE AREA TRACT E
LAND DESCRIPTION PART AREA 300
A tract of land situated in the SW '/4 of the NE '/4 of Section 15, Township 1 North,
Range 11 West, Pulaski County, Arkansas, being more particularly described as follows:
Commencing at the northwest corner of said Section 15, T -1 -N, R -11 -W; 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, City of Little Rock, Pulaski County, Arkansas; thence
S66 015'00 "E, 1120.38 feet; thence S23 045'00 "W, 250.00 feet; thence N66 015'00 "W,
306.00 feet; thence S23 °45'00 "W, 623.00 feet to a cotton picker spindle found at the
intersection of the easterly right -of -way line of Lindsey Road at the center line of
Industrial Harbor Drive as shown in Plat Book D, Page 142, Circuit Clerk's Office,
Pulaski County Court House, Arkansas; thence along said center line S66 °1 5'00 "E,
869.77 feet; thence N24 °11' 14 "E, 50.00 feet to the Point of Beginning on the northerly
right -of -way line of said Industrial Harbor Drive; thence continuing N24 °11' 14 "E,
624.17 feet to the ordinary high water line on the southerly bank of the Arkansas River;
thence along the approximate meander of said ordinary high water line 425 feet; thence
S24 046'04 "W, 580.21 feet to the northerly right -of -way line of Industrial Harbor Drive;
thence along said northerly right -of -way line N66 °15'00 "W, 416.56 feet to the Point of
Beginning; and containing 5.800 acres (252,659 SY), more or less.
EXHIBIT 66A -1"
Depiction of Leased Premises
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