Exhibit 10.4
GROUND LEASE
THIS GROUND LEASE (the "Ground Lease"), entered into
and effective June__ , 1997 (the "Effective Date"), is by and
between BAYER CORPORATION, an Indiana corporation, ("Bayer") and
EL DORADO NITROGEN COMPANY, an Oklahoma corporation ("EDNC").
W I T N E S S E T H:
WHEREAS, Bayer owns and operates a chemical
manufacturing facility located in Baytown, Chambers County, Texas
(the "Bayer Baytown Plant") where, among other manufacturing
processes, it engages in a manufacturing process that consumes
nitric acid meeting certain agreed-upon specifications ("Nitric
Acid");
WHEREAS, Bayer owns the real property on which the
Bayer Baytown Plant is located ("Bayer Real Property");
WHEREAS, Bayer, EDNC and El Dorado (as hereafter
defined) have entered into that certain Baytown Nitric Acid
Project and Supply Agreement (the "Project and Supply
Agreement"), dated as of the Effective Date, whereby the parties
have agreed that EDNC will construct and operate a chemical
manufacturing facility (the "EDNC Baytown Plant") for the
manufacture of Nitric Acid at the Bayer Baytown Plant;
WHEREAS, Bayer and EDNC have also entered into that
certain Services Agreement (the "Services Agreement"), dated as
of the Effective Date, whereby Bayer has agreed to supply certain
Utilities and Services (each as hereafter defined) to EDNC for
the manufacture of Nitric Acid; and
WHEREAS, Bayer wishes to lease to EDNC a portion of the
Bayer Real Property identified as the Leased Premises in
Section 1.19 herein, upon which EDNC will construct and operate
the EDNC Baytown Plant;
NOW, THEREFORE, in consideration of the premises, and
other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be
legally bound, the parties hereby agree as follows:
SECTION 1: DEFINITIONS
Capitalized terms not otherwise defined herein have the
respective meanings assigned to them in the Project and Supply
Agreement or the Services Agreement. The following terms have
the respective meanings assigned to them for purposes of this
Ground Lease:
1.1 Benefitted Property - Shall have the meaning set
forth in Section 5.14 hereof.
1.2 Chemical Delivery Date - Shall have the meaning
set forth in Section 5.1 hereof.
1.3 Construction Access Easements - Shall have the
meaning set forth in Section 5.1 hereof.
1.4 Construction Easement Term - Shall have the
meaning set forth in Section 5.1 hereof.
1.5 Construction Laydown Area - Shall have the meaning
set forth in Section 5.2 hereof.
1.6 Construction Parking Easements - Shall have the
meaning set forth in Section 5.3 hereof.
1.7 Construction Staging Easements - Shall have the
meaning set forth in Section 5.2 hereof.
1.8 Cross-Block Roads - Shall have the meaning set
forth in Section 5.14 hereof.
1.9 Current Environmental Assessment - Shall mean the
Geotechnical Study and Environmental Baseline Assessment to be
prepared by Geraghty & Miller, Inc. and relating to the Leased
Premises, as more fully described in Section 4.4 hereof.
1.10 Easements - All easements granted to EDNC by Bayer
in (or pursuant to) Section 5 of this Ground Lease for the
purposes described therein.
1.11 EDNC Personnel - Shall mean all officers,
directors, employees, agents and invitees of EDNC.
1.12 El Dorado - Shall mean El Dorado Chemical Company,
an Oklahoma corporation.
1.13 Environmental, Health and Safety Laws - All
applicable federal, state and local laws relating to pollution or
protection of human health or the environment including, without
limitation, all laws, statutes, ordinances, rules, regulations,
orders, codes and notices relating to releases or threatened
releases of pollutants, contaminants, toxic or hazardous
substances or wastes into the environment including, without
limitation, the following statutes, as amended from time to time:
(a) Resource Conservation and Recovery Act ("RCRA");
(b) Comprehensive Environmental Response, Compensation and
Liability Act of 1980; (c) Superfund Amendments and
Reauthorization Act of 1986; (d) Clean Air Act, 42 U.S.C. Section 7401
et seq.; (e) The Clean Water Act, 33 U.S.C. Section 1251 et seq.;
(f) Safe Drinking Water Act, 42 U.S.C. Section 300f et seq.; and
(g) Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.
1.14 Existing Environmental Assessment - Shall mean the
Geotechnical Study and Environmental Baseline Assessment, report
number LA1387.001, dated December 9, 1996, prepared by Geraghty &
Miller, Inc. and relating to the Leased Premises (as hereafter
defined).
1.15 Ground Lease Sublease - Shall mean the Ground
Lease Sublease that constitutes one of the Operative Agreements
(as hereafter defined).
1.16 Industrial District Payments - Those taxes levied
on the Bayer Baytown Plant by the City of Baytown, Texas,
pursuant to the Industrial District Agreement dated April 13,
1992 and executed by and between Bayer and the City of Baytown,
Texas, in the form attached hereto as Exhibit E, as it may be
hereinafter amended from time to time.
1.17 Initial Term - The initial term of this Ground
Lease, commencing on the Effective Date and ending on December 31
of the tenth (10th) calendar year following the Commencement
Date; provided, however, that if the Commencement Date has not
occurred prior to December 31, 2008, then the initial term shall
end on December 31, 2008, unless (a) sooner terminated as
provided for hereunder, (b) extended in accordance with Section 2
of this Ground Lease or (c) extended for a period equal to the
duration of a Force Majeure Event (as such term is defined in the
Project and Supply Agreement) as agreed by the parties.
1.18 Landlord's Lien - Shall mean any lien and/or
security interest now or hereafter created under Texas statutory
or common law in favor of a landlord of real property located in
Texas with respect to any personal property located in or upon
the Leased Premises as security for the rent payable to such
landlord.
1.19 Leased Premises - That certain tract of land in
Bayer Block 12C of approximately 2.755 acres, specifically
described by metes and bounds on the attached Exhibit A, situated
within the Bayer Baytown Plant in Baytown, Chambers County,
Texas.
1.20 Leasehold Improvements - Any and all improvements
constructed by EDNC (whether as construction agent or otherwise)
or on its behalf on the Leased Premises, including without
limitation, buildings, fixtures, tanks, pipes, piperacks,
powerlines, roadways, cables, conduits and other structures
located on the Leased Premises and comprising the EDNC Baytown
Plant.
1.21 New Route Date - Shall have the meaning set forth
in Section 5.1 hereof.
1.22 Operative Agreements - Shall mean the following
financing documents:
(A) Participation Agreement;
(B) Leveraged Lease (as defined in Section 1.45
of the Project and Supply Agreement);
(C) Tax Indemnity Agreement;
(D) Trust Indenture and Security Agreement;
(E) Ground Lease Sublease;
(F) Construction Loan and Security Agreement;
(G) Bayer Agreement (as defined in Section 1.10
of the Project and Supply Agreement); and
(H) Lessor's Consent to Ground Lease Sublease and
Non-Disturbance Agreement;
by and among the parties thereto, and including any other
documents pertaining to such financing of the EDNC Baytown Plant,
which documents Bayer shall have the right to approve in its sole
discretion pursuant to Section 8.1(L) of the Project and Supply
Agreement.
1.23 Perimeter Fence - Shall have the meaning set forth
in Section 5.1 hereof.
1.24 Permits - All necessary federal, state and local
governmental permits, approvals, licenses, authorizations and
consents required in connection with the design, construction and
operation of the EDNC Baytown Plant, including, without
limitation, all construction and environmental permits.
1.25 Permitted Exceptions - Those matters set forth on
the attached Exhibit B.
1.26 Post-Construction Access Easements - Shall have
the meaning set forth in Section 5.5 hereof.
1.27 Post-Construction Easement Term - Shall have the
meaning set forth in Section 5.5 hereof.
1.28 Post-Construction Parking Easements - Shall have
the meaning set forth in Section 5.6 hereof.
1.29 Post-New Route Date Access Easements - Shall have
the meaning set forth in Section 5.4 hereof.
1.30 Renewal Term - Any renewal term of this Ground
Lease subsequent to the Initial Term, each of which shall be five
(5) years in duration.
1.31 Rent - Shall have the meaning set forth in
Section 3.2 hereof.
1.32 Reserved Easements - Shall have the meaning set
forth in Section 5.14 hereof.
1.33 Spills - Shall have the meaning set forth in the
Services Agreement.
1.34 Tap Facilities - Shall have the meaning set forth
in Section 5.7 hereof.
1.35 Term - The Initial Term and any and all Renewal
Terms of this Ground Lease.
1.36 Termination Date - Shall mean the date of
termination of the Project and Supply Agreement as that date is
determined pursuant to Section 17 or Section 21 of the Project
and Supply Agreement.
1.37 Termination Fee - Shall mean the Expiration
Termination Fee, the EDNC Default Termination Fee or the Bayer
Default Termination Fee (each as defined in the Project and
Supply Agreement), whichever is applicable.
1.38 Utilities - Shall have the meaning set forth in
the Services Agreement.
1.39 Waste - Shall have the meaning set forth in the
Services Agreement.
SECTION 2: TERM
This Ground Lease shall commence on the Effective Date
and end at the conclusion of the Initial Term, unless sooner
terminated pursuant to any provision hereof or extended as
provided for herein. The Term of this Ground Lease shall be
automatically renewed for up to six (6) successive Renewal Terms
unless either party to this Ground Lease has given the other
party notice of its intention not to renew this Ground Lease for
the relevant Renewal Term not less than twelve (12) nor more than
eighteen (18) months before the expiration of the Initial Term or
any Renewal Term, as the case may be. Bayer shall have the right
pursuant to Section 17 of the Project and Supply Agreement to
terminate this Ground Lease if EDNC fails to complete
construction and commence operations of the EDNC Baytown Plant
prior to February 1, 1999.
SECTION 3: LEASE AND USE OF LEASED PREMISES
3.1 Lease of Leased Premises
Bayer hereby leases to EDNC and EDNC does hereby rent
and accept from Bayer the Leased Premises, provided, however,
that Bayer further reserves for itself all of the oil, gas and
other minerals in and under and that may be produced from the
Leased Premises. EDNC hereby agrees to design and construct the
EDNC Baytown Plant to meet the criteria set forth on Exhibit C of
the Project and Supply Agreement.
3.2 Rent
(A) EDNC agrees to pay Bayer as rental (the "Rent")
for the use and occupancy of the Leased Premises the amount of
One Hundred Dollars ($100.00) in advance for the Initial Term and
One Hundred Dollars ($100.00) for each Renewal Term. Bayer
acknowledges receipt of such payment for the Initial Term and
further acknowledges that such rental shall be deemed adequate
consideration for all rights granted herein to EDNC.
(B) Except as may be otherwise expressly set
forth herein or in the Project Agreements, it is the intention of
the parties that the Rent payable hereunder shall be absolutely
net to Bayer, so that this Ground Lease shall yield to Bayer the
net Rent during the Initial Term and each Renewal Term, and that
all costs, expenses and obligations relating to the operation and
maintenance of the Leased Premises and Leasehold Improvements
shall be paid by EDNC.
3.3 Use
(A) EDNC shall occupy and use the Leased Premises
only for the production of Nitric Acid and all activities
incidental thereto or associated therewith, including, without
limitation, all storage, transport and research and development
activities related to EDNC's production of Nitric Acid on the
Leased Premises.
(B) Except as provided below, EDNC shall not
drill or excavate on the Leased Premises without the prior
written consent of Bayer, which consent shall not be unreasonably
withheld. Bayer agrees that EDNC may drill or excavate, in
accordance with Exhibit C of the Project and Supply Agreement,
but in no event lower than thirty-two feet (32') below mean sea
level (assuming a ruling grade of not less than twenty-three feet
(23') above mean sea level), for:
(1) Soil testing related to foundation design or
otherwise to determine the suitability of the Leased
Premises for the EDNC Baytown Plant and any future Leasehold
Improvements to be constructed with Bayer's approval under
Section 4.1(D) hereof and otherwise made in conformity with
the requirements of Section 4 hereof;
(2) The construction of the EDNC Baytown Plant
and any future Leasehold Improvements to be constructed with
Bayer's approval under Section 4.1(D) hereof and otherwise
made in conformity with the requirements of Section 4
hereof;
(3) Safety or pollution control measures
necessary in connection with the operation of the EDNC
Baytown Plant;
(4) Determination of the extent of any
contamination arising from any Spills; or
(5) Any additional environmental studies EDNC
reasonably determines to be necessary in connection with the
design and construction of the EDNC Baytown Plant,
including, without limitation, monitor wells that may be
requested by EDNC or required by any governmental entity.
SECTION 4: LEASEHOLD IMPROVEMENTS
4.1 Construction and Ownership of Leasehold
Improvements
(A) EDNC shall have the right and obligation to
construct and install on the Leased Premises all Leasehold
Improvements that EDNC determines are required or desirable for
its operation of the EDNC Baytown Plant; provided, however, that
EDNC agrees (i) it shall, on or before the Commencement Date,
construct and install such Leasehold Improvements in accordance
with the site design specifications agreed upon by the parties
hereto and as described more particularly on the attached
Exhibit C, and (ii) it shall design and construct such Leasehold
Improvements in accordance with all applicable laws, codes and
regulations. Bayer agrees that it will provide to EDNC revisions
to provisions of the General Baytown Site Design Data on the
attached Exhibit C relating to engineering standards, safety and
industrial hygiene as updated or amended throughout the Term.
(B) During the Term, EDNC shall own and operate
the Leasehold Improvements, provided, however, that during the
term of the Ground Lease Sublease, the Sublessee thereunder shall
own the Leasehold Improvements. At the expiration or termination
of this Ground Lease, the Leasehold Improvements shall
automatically become the property of Bayer without further action
by Bayer, EDNC or any other party; provided, however, that in the
event that the Termination Fee is payable by Bayer, Bayer shall
pay such fee.
(C) EDNC shall prepare, file and pay all costs
associated with obtaining all Permits that are required in order
for EDNC to design, construct, repair, restore or operate the
Leasehold Improvements on the Leased Premises, notwithstanding
the fact that a Permit may be required to be issued in the name
of Bayer and regardless of whether any such Permit relates to
activity occurring on or outside of the Leased Premises. If
requested by EDNC, Bayer shall provide to EDNC, in a timely
manner, any necessary information or assistance to enable EDNC to
obtain any Permits that are required in connection with design,
construction, repair, restoration or operation of the Leasehold
Improvements.
(D) Following the Commencement Date, EDNC shall
not make any material modifications to the Leasehold Improvements
without the prior written consent of Bayer, which consent shall
not be unreasonably withheld.
4.2 Maintenance and Repair
During the Term, EDNC shall keep and maintain the
Leased Premises and the Leasehold Improvements in a good state of
repair, reasonable wear and tear excepted.
4.3 Removal
(A) At the expiration or termination of this
Ground Lease and subject to the payment by Bayer of the
Termination Fee, all Leasehold Improvements shall be surrendered
by EDNC to Bayer in accordance with the provisions of this
Section 4.3.
(B) Upon the expiration or termination of this
Ground Lease and subject to the payment by Bayer of any
applicable Termination Fee, EDNC shall surrender to Bayer the
Leased Premises, together with all Leasehold Improvements, in a
condition of good quality, order and repair (reasonable wear and
tear excepted), provided, however, that EDNC shall not be
required to surrender to Bayer any portion of the Leased Premises
that has been permanently taken as a result of eminent domain
power or proceedings pursuant to Section 11.2 hereof.
4.4 Current Environmental Assessment
Not more than thirty (30) days prior to the scheduled
date of the groundbreaking for construction, Bayer shall cause
Geraghty & Miller, Inc. to take all samples necessary to prepare
the Current Environmental Assessment, and shall cause Geraghty &
Miller, Inc. to prepare the Current Environmental Assessment and
deliver copies thereof to Bayer and EDNC. In addition, at the
termination of this Ground Lease, Bayer shall promptly cause a
qualified environmental engineering firm to conduct an exit
assessment and provide copies thereof to EDNC and Bayer.
SECTION 5: EASEMENTS
5.1 Construction Access Easements
Bayer hereby grants to EDNC the non-exclusive,
temporary easements of ingress and egress over the Bayer Baytown
Plant, at the locations and for the types of traffic, more
particularly described on Exhibit D attached hereto, for the
purposes of transporting vehicles, equipment and personnel during
the initial design and subsequent construction of the Leasehold
Improvements on the Leased Premises. These easements, designated
"Construction Access Easements" on Exhibit D, shall have a term
(the "Construction Easement Term") which commences on the
Effective Date and ends on the New Route Date. The term "New
Route Date" means the date upon which deliveries of process
chemicals (such as nitric acid or benzene) to the EDNC Baytown
Plant (or to the aniline plant which will be immediately adjacent
thereto) begin in connection with the production of
mononitrobenzene (the "Chemical Delivery Date"), or such earlier
date which is reasonably deemed to be appropriate by Bayer if the
fence which Bayer will construct around the EDNC Baytown Plant
(the "Perimeter Fence") is completed prior to the Chemical
Delivery Date.
5.2 Construction Staging Easements
Bayer hereby grants to EDNC, for the Construction
Easement Term, the exclusive, temporary easement on the Bayer
Baytown Plant, at the location more particularly described on
Exhibit D, for use as a staging and storage area (the
"Construction Laydown Area") during the construction of the
Leasehold Improvements on the Leased Premises. This easement is
designated the "Construction Staging Easement" on Exhibit D.
EDNC shall fence, at its own expense, all staging and storage
areas during any period in which the use of such areas is
required.
5.3 Construction Parking Easements
Bayer hereby grants to EDNC, for the Construction
Easement Term, the non-exclusive, temporary easement on the Bayer
Baytown Plant, at the locations more particularly described on
Exhibit D, for use as parking areas during the construction of
the Leasehold Improvements on the Leased Premises. These
easements are designated the "Construction Parking Easements" on
Exhibit D.
5.4 Post-New Route Date Access Easements
Bayer hereby grants to EDNC the non-exclusive,
temporary easements of ingress and egress over the Bayer Baytown
Plant, at the locations and for the types of traffic, more
particularly described on Exhibit D attached hereto, for the
purposes of transporting vehicles, equipment and personnel during
the initial design and subsequent construction of the Leasehold
Improvements on the Leased Premises. These easements, designated
"Post-New Route Date Access Easements" on Exhibit D, shall have a
term which commences on the New Route Date and ends on the
Commencement Date.
5.5 Post-Construction Access Easements
Bayer hereby grants to EDNC, for a term (the "Post-
Construction Easement Term") which begins on the Commencement
Date and ends on the date this Ground Lease expires or is
terminated, non-exclusive, temporary easements of ingress and
egress over the Bayer Baytown Plant, at the locations, and for
the types of traffic, more particularly described on Exhibit D
and designated "Post-Construction Access Easements" thereon, for
the purpose of providing EDNC reasonable access to the Leased
Premises.
5.6 Post-Construction Parking Easements
Bayer hereby grants to EDNC, for the Post-Construction
Easement Term, non-exclusive, temporary easements of ingress and
egress over the Bayer Baytown Plant, at the locations more
particularly described on Exhibit D and designated "Post-
Construction Parking Easements" thereon, for use as parking
areas.
5.7 Tap Easements
Bayer hereby grants to EDNC, for a term which commences
on the Effective Date and ends on the date this Ground Lease
expires or is terminated, non-exclusive, temporary easements to
tap into (in each case, at such points as shall be designated by
Bayer) and use the following systems:
A. Bayer's sanitary and storm sewer systems as
shown on Annex D-6 attached hereto;
B. Bayer's electrical ground-loop system, as
shown on Annex D-3 attached hereto;
C. Bayer's fire water system, as shown on Annex
D-4 attached hereto; and
D. Bayer's pipe bridge system, as shown on
Annex D-5 attached hereto to the extent
necessary to supply ammonia, chlorine,
caustic and the following utilities to the
EDNC Baytown Plant:
water;
nitrogen;
air;
steam;
electricity;
communication equipment; and
natural gas;
provided, however, that (1) the commencement of the term of such
easements to tap into and use such systems shall be delayed, in
the case of any system which is not available for use as of the
Effective Date, until such time as it becomes available for use
and (2) EDNC shall (and is hereby granted the easements necessary
to) maintain, repair and replace all such pipes, wires, valves
and related equipment and facilities installed by EDNC (the "Tap
Facilities") to accomplish and operate such Tap Facilities from
the point where such Tap Facilities enter Bayer's system back to
the point where such Tap Facilities leave the EDNC Baytown Plant.
5.8 Additional Easements Related to Leasehold Repairs
and Improvements
Bayer shall grant any other non-exclusive easements
over property Bayer then owns, including, but not limited to,
(A) construction and staging easements reasonably requested by
EDNC and reasonably necessary for making repairs to the Leasehold
Improvements or designing and constructing additional Leasehold
Improvements and (B) such other easements which, in the
reasonable judgment of EDNC, are or may be necessary in order for
EDNC to (1) perform its obligations under this Ground Lease and
the Services Agreement and/or (2) operate the EDNC Baytown Plant.
Bayer shall have the sole right to designate the locations and
terms of any further easements granted under this Section 5.8;
provided, however, that Bayer shall act reasonably and in good
faith consult with EDNC prior to designating the locations of any
such additional easements.
5.9 Bayer's Right to Use and Grant Other Easements
Bayer retains, reserves and shall continue to use and
to grant to other parties the right to use all non-exclusive
Easements and/or the areas affected thereby for any and all
purposes, provided, however, that Bayer shall not materially
interfere with EDNC's use of the Easements or grant to other
parties the right to do so.
5.10 Granting of Alternative Easements
In the event the Easements or any part thereof
interfere substantially with the use and occupation of the Bayer
Baytown Plant or the operation of any of the improvements located
at such Plant, or in the event it becomes necessary or desirable
for Bayer or its successors or assigns to use the property that
is subject to the Easements or any portion thereof for the
construction, erection, transportation or installation of
additional machinery, equipment, buildings or other facilities,
then EDNC, upon receipt of written notice from Bayer, agrees to
abandon, release and discharge the Easements conveyed herein,
provided, however, that prior to or upon any such abandonment,
release and discharge Bayer (1) promptly conveys to EDNC
alternative easements that will provide EDNC with substantially
equivalent rights under the same terms and conditions set forth
herein and (2) promptly reimburses EDNC (either by means of
direct reimbursement or by means of the Additional Capital
Investment mechanism of Section 3.9 of the Project and Supply
Agreement) for all reasonable costs incurred in relocating to and
improving such alternative easements.
5.11 General
Except as expressly stated herein, the Easements
granted by Bayer under or pursuant to this Section 5 are non-
exclusive and are expressly subject to all other easements,
leases, rights and encumbrances, whether or not recorded, at or
on the Bayer Real Property and are granted without any warranty
of title, express or implied, by Bayer, provided, however, that
Bayer warrants to EDNC the right to use the Easements (other than
those granted under Section 5.8 hereof) consistent with their
terms. Unless terminated sooner pursuant to this Section 5,
EDNC's rights in such Easements shall terminate upon the earlier
of the expiration of the Term or the Termination Date. EDNC
shall exercise reasonable efforts to use such Easements in such a
manner so as to minimize disruption to the operations of Bayer,
its tenants and their respective successors and assigns at the
Bayer Baytown Plant.
5.12 Rules and Regulations
Use of all Easements granted by Bayer under or pursuant
to this Section 5 shall be governed by reasonable rules and
regulations promulgated by Bayer from time to time, which rules
and regulations shall be uniformly applied and consistently
enforced.
5.13 Temporary Interruptions
If in the reasonable judgment of Bayer, it becomes
necessary or advisable to relocate any parking or access
easements on a temporary basis (i.e., for not more than six (6)
months), Bayer may do so by giving EDNC at least thirty (30) days
prior written notice thereof, provided, however, that Bayer shall
in good faith consult with EDNC prior to designating such
temporary relocations. If in the reasonable judgment of Bayer,
it becomes necessary or advisable to relocate any access
easements because of any emergency, Bayer may do so immediately
without giving any formal notice to EDNC.
5.14 Reserved Easements
Notwithstanding anything in this Ground Lease or any of
the other Project Agreements, Bayer hereby reserves, for the
benefit of all real property (other than the Leased Premises)
which Bayer presently owns in Baytown, Texas, including without
limitation, the Bayer Baytown Plant, and each portion thereof
(collectively the "Benefitted Property"), the following non-
exclusive, perpetual easements (collectively, the "Reserved
Easements"): (A) to use, maintain, repair and replace those roads
which are shown as the "Cross-Block Roads" on Annex D-6, attached
hereto and (B) to locate, construct, use, operate, maintain,
repair and replace and gain access to and from the following
matters on, over, under and through the Leased Premises:
(1) The electrical ground loop system, as shown
on Annex D-3 attached hereto, including all conduit, wires and
other equipment and facilities necessary therefor or related
thereto;
(2) The fire water system, as shown on Annex D-4
attached hereto, including all valves, pipes and other equipment
and facilities necessary therefor or related thereto;
(3) The pipe bridges and supports therefor, as
shown on Annex D-5 attached hereto, together with an easement to
interface and tie into the pipes of EDNC to the extent necessary
to operate the systems for which such pipes were designed;
(4) The electric power cable which connects the
transformer to the electric substation, as shown on Annex D-5
attached hereto; and
(5) All other systems, wires, conduits, pipes,
valves, supports and other equipment and facilities necessary
therefor or related thereto which, in the reasonable judgment of
Bayer, are or may be necessary in order for Bayer to (i) perform
its obligations under this Ground Lease, the Services Agreement
or any of the other Project Agreements and/or (ii) utilize any
utility or system which, at any time hereafter, serves not only
the Leased Premises, but also any other area of the Bayer Baytown
Plant as well.
5.15 Bayer's Right to Reserve Other Easements
Bayer retains and reserves the right, from time to
time, to reserve additional easements for the benefit of the
Bayer Baytown Plant on, over, under and through the Leased
Premises.
5.16 No Material Interference
Bayer agrees that, in the exercise of its rights under
Sections 5.10 through and including 5.15 hereof, it shall not act
in a manner which would materially interfere with the operations
of EDNC and its permitted successors and assigns at the Leased
Premises.
5.17 Recordation of New or Alternative Easements
Any new or alternative easement that is created
pursuant to the provisions of Section 5.8, 5.10 or 5.15 hereof
shall expressly terminate any easement that it replaces, shall be
in recordable form and shall be recorded by Bayer with the County
Clerk of Chambers County, Texas.
SECTION 6: COVENANTS
6.1 Quiet Enjoyment
Subject to Permitted Exceptions and to the performance
by EDNC of its obligations under this Ground Lease, EDNC shall
peaceably and quietly hold and enjoy the Leased Premises for the
Term, without hindrance from Bayer, or persons or entities
claiming by, through or under Bayer.
6.2 Estoppel Certificates
Upon not less than fifteen (15) days prior written
request by a party hereto, the other party shall execute,
acknowledge and deliver to the requesting party a statement in
writing certifying that this Ground Lease is unmodified and in
full force and effect and that the responding party has no
defenses, offsets or counterclaims against its obligations to
perform its covenants under this Ground Lease (or, if there have
been any modifications, that this Ground Lease is in full force
and effect as modified and stating the modifications and, if
there are any defenses, offsets or counterclaims, setting them
forth in reasonable detail). Any such statement delivered
pursuant to this Section 6.2 may be relied upon by any
prospective purchaser or mortgagee of Bayer's fee interest in the
Leased Premises or any prospective assignee of such mortgage.
6.3 Compliance with Environmental, Health and Safety
Laws
Bayer covenants and warrants that:
(1) other than may be indicated in the Existing
Environmental Assessment, it has not filed and has not been
required to file any notice under any Environmental, Health and
Safety Law indicating past or present treatment, storage or
disposal of any Waste or reporting a Spill or release of any
Waste into the environment on or from the Leased Premises;
(2) other than may be indicated in the Existing
Environmental Assessment, there is no soil contamination in, on
or under the Leased Premises and no Waste has been generated,
treated, stored or disposed of or placed in violation of any
Environmental, Health and Safety Law on any part of the Leased
Premises;
(3) there are no underground tanks located on or
under the Leased Premises;
(4) other than may be indicated in the Existing
Environmental Assessment, there is no contaminated groundwater on
or under the Leased Premises; and
(5) in addition to the other indemnifications
contained herein or in the other Project Agreements, Bayer agrees
to indemnify and hold harmless EDNC from and against any and all
losses, damages, claims, costs, liabilities and expenses
(including reasonable attorney's fees) arising from the soil or
ground water contamination identified in the Existing
Environmental Assessment or that may be identified in the Current
Environmental Assessment. Without prior written consent of EDNC,
which consent shall not be unreasonably withheld, Bayer shall not
voluntarily undertake any remediation plans or other corrective
action on the Leased Premises that would unreasonably interfere
with the operations of EDNC on the Leased Premises as
contemplated by the Project Agreements.
6.4 Waiver of Landlord's Lien
During the term of the Leveraged Lease, Bayer hereby
waives any Landlord's Lien that Bayer has or hereafter acquires
to the lien and security interests that will be granted by EDNC
or the Sublessee with respect to the Leasehold Improvements in
order to secure EDNC's or the Sublessee's obligations under the
Trust Indenture and Security Agreement and the Construction Loan
and Security Agreement.
SECTION 7: LIENS
7.1 No Liens
Except for those liens which are expressly permitted by
the Ground Lease Sublease, EDNC shall not suffer or permit to
exist any liens (including consensual liens and mechanics' and
materialmen's liens) to be filed against Bayer's fee interest or
EDNC's leasehold interest in the Leased Premises nor against any
Leasehold Improvements on the Leased Premises.
7.2 Removal of Liens
If any liens arising from work performed for, or
material provided to, EDNC or any of its contractors or agents,
or action or inaction of EDNC or any of its contractors or
agents, shall be recorded against the leasehold interest in the
Leased Premises or any Leasehold Improvements thereon, then EDNC
shall cause the same to be removed promptly or, in the
alternative, if EDNC in good faith desires to contest the same,
it may do so, but in such case EDNC shall indemnify and hold
Bayer harmless from all liability for damages occasioned thereby
and shall, in the event of a judgment or foreclosure on said
lien, cause the same to be discharged and removed prior to the
execution of such judgment.
SECTION 8: TAXES
8.1 Industrial District Payments and Ad Valorem Taxes
and Assessments
(1) During the Term, EDNC shall be responsible
for and pay all Industrial District Payments and ad valorem taxes
and assessments, both general and special, levied on the Leased
Premises or the Leasehold Improvements in accordance with this
Section 8.1.
(2) EDNC will either (i) with the assistance of
Bayer, execute an agreement with the City of Baytown, Texas (the
"City") regarding additional payments to the City as a result of
the construction of the Leasehold Improvements or (ii) timely pay
to Bayer, upon Bayer's notification to EDNC, any Industrial
District Payment, ad valorem tax or assessment levied on the
Leased Premises or the Leasehold Improvements.
(3) If EDNC and the City execute an agreement
pursuant to Section 8.1(2) hereunder, such execution shall not
relieve EDNC of liability for any taxes levied on the Leased
Premises as a consequence of the Leasehold Improvements between
the Effective Date and the execution of such agreement.
(4) If EDNC in good faith either:
(A) disputes the amount of such Industrial
District Payment or ad valorem tax or assessment attributable to
the value of the Leased Premises and the Leasehold Improvements;
or
(B) desires to contest any Industrial
District Payment or ad valorem tax or assessment on the Leased
Premises and the Leasehold Improvements, then EDNC shall pay to
Bayer in accordance with Section 8.1(1) any amount EDNC does not
dispute and shall cause any liability arising from such failure
to pay to be discharged and removed before the enforcement of any
lien related to such liability.
8.2 Other Taxes
In addition to the above taxes, EDNC shall also pay all
federal, state or local sales, excise or use taxes levied against
the activities on the Leased Premises, or against the Leasehold
Improvements. EDNC shall also submit a list of the personal
property leased by EDNC and maintained on the Leased Premises to
the appropriate official of Chambers County and shall pay all
taxes applicable thereto. At the request of Bayer, EDNC shall
provide Bayer with evidence of such payments.
8.3 Information
EDNC agrees to allow any appropriate taxing authority
reasonable access to the Leased Premises and the Leasehold
Improvements upon reasonable notice to EDNC and subject to
compliance with Bayer and EDNC health, safety and welfare
policies. EDNC also agrees to furnish such documentary
information as reasonably required by such authority.
SECTION 9: INDEMNIFICATION
The parties shall have the indemnification rights set
forth in Section 18 of the Project and Supply Agreement.
SECTION 10: TERMINATION
This Ground Lease:
(1) may be terminated in accordance with the
provisions of Sections 2, 11 or 13 hereof;
(2) shall be terminated upon the termination of
the Project and Supply Agreement in accordance with
Sections 17 and 21 of the Project and Supply Agreement.
SECTION 11: CASUALTY AND CONDEMNATION
11.1 Casualty
(1) In the event of damage or destruction to the
Leased Premises or the Leasehold Improvements, EDNC agrees to
restore the Leasehold Improvements to a condition consistent with
the design and production capacity designated in the Project and
Supply Agreement for the initial construction. In the event the
Delivery Systems or other assets of Bayer reasonably related to
the Nitric Acid operations at the Bayer Baytown Plant have also
been damaged to an extent that renders such assets unsuitable for
their intended use, EDNC shall have no obligation to restore the
EDNC Baytown Plant until such Bayer assets are restored by Bayer
or EDNC receives adequate assurances from Bayer that such Bayer
assets shall be restored in a timely manner.
(2) Upon such damage or destruction to the
Leasehold Improvements described in Section 11.1(1) above and
during any period of restoration, the obligations of the parties
shall abate under the Project Agreements pending restoration.
11.2 Condemnation
(1) Interests of Parties
If the Leased Premises or any part thereof shall
be taken for public or quasi-public purposes by condemnation as a
result of any action or proceeding in eminent domain, or shall be
transferred in lieu of condemnation to any authority entitled to
exercise the power of eminent domain, then the interests of Bayer
and EDNC in the award of consideration for such transfer and the
effect of the taking or transfer on this Ground Lease shall be as
provided by this Section 11.2.
(2) Total Taking
In the event the entire Leased Premises is taken
or so transferred, this Ground Lease and all of the right, title
and interest thereunder shall terminate on the date title to such
land so taken or transferred vests in the condemning authority.
The proceeds of such condemnation shall first be distributed to
EDNC (or, during the term of the Operative Agreements, the owner
of the Leasehold Improvements) in an amount equal to (i) the
Stipulated Loss Value (as such term is defined in the Operative
Agreements), if the Operative Agreements are then in effect, or
(ii) the EDNC Default Termination Fee, if the Operative
Agreements are no longer in effect. All excess, if any, shall be
distributed to Bayer.
(3) Partial Taking - Termination
In the event of the taking or transfer of only a
part of the Leased Premises leaving the remainder of the Leased
Premises in such location, or in such form, shape or reduced size
as to be not effectively and practicably usable in the reasonable
opinion of EDNC for the operation of the EDNC Baytown Plant, this
Ground Lease and all right, title, and interest thereunder shall
terminate on the date title to the land or the portion thereof so
taken or transferred vests in the condemning authority; provided,
however, that the proceeds from such partial taking shall first
be distributed to EDNC (or, during the term of the Operative
Agreements, the owner of the Leasehold Improvements) up to an
amount equal to (i) the Stipulated Loss Value (as such term is
defined in the Operative Agreements), if the Operative Agreements
are then in effect, or (ii) the EDNC Default Termination Fee, if
the Operative Agreements are no longer in effect. All excess, if
any, shall be distributed to Bayer.
(4) Partial Taking - Continuation
In the event of such taking or transfer of only a
part of the Leased Premises leaving the remainder of the Leased
Premises in such location and in such form, shape, or size as to
be used effectively and practicably in the opinion of EDNC for
the operation of the EDNC Baytown Plant, this Ground Lease shall
terminate as to the portion of the Leased Premises so taken or
transferred as of the date title to such portion vests in the
condemning authority, but shall continue in full force and effect
as to the portion of the Leased Premises not so taken or
transferred. The proceeds of such partial taking shall first be
distributed to EDNC (or, during the term of the Operative
Agreements, the owner of the Leasehold Improvements) in an amount
sufficient to compensate EDNC for the then-existing market value
of the Leasehold Improvements taken and any relocation expenses
for Leasehold Improvements not taken. All excess, if any, shall
be distributed to Bayer.
(5) Voluntary Conveyance
A voluntary conveyance by Bayer to a public
utility, agency or authority under threat of a taking under the
power of eminent domain in lieu of formal proceedings shall be
deemed a taking within the meaning of this Section 11.2.
SECTION 12: REMEDIES
12.1 Remedies
If either party fails to comply with any term or
condition or fulfill any obligation imposed under this Ground
Lease, then the other party may exercise any one of the remedies
afforded such party under Section 16 of the Project and Supply
Agreement.
12.2 Attorneys' Fees
If a suit or action is instituted in connection with
any dispute arising out of this Ground Lease, then the prevailing
party is entitled to recover reasonable costs and expenses,
including reasonable attorneys' fees and other costs incurred in
connection with enforcing this Ground Lease.
SECTION 13: TERMINATION RIGHTS
In addition to those termination rights which are
expressly set forth in this Ground Lease, the obligations, rights
and interests of the parties under this Ground Lease and the
Project Agreements are subject to (i) termination, at the option
of either party, or automatic termination, upon the occurrence of
certain Events of Default and other events as more specifically
described in Section 17 of the Project and Supply Agreement; or
(ii) certain rights of Bayer to pay a specified sum to EDNC and
to terminate this Ground Lease if EDNC receives an offer to sell
any securities of EDNC or any material portion of the EDNC
Baytown Plant to a third party, upon the occurrence of a Change
of Control Event, as more specifically described in Section 21 of
the Project and Supply Agreement. The above-described provisions
of the Project and Supply Agreement are incorporated herein by
reference as if fully set forth herein.
SECTION 14: UTILITIES AND SERVICES
Utilities and Services will be provided to the Leased
Premises in accordance with the terms and conditions of the
Services Agreement. The Services Agreement, a copy of which is
attached hereto as Exhibit F, is incorporated herein and made a
part hereof. In the event of any inconsistency between the
Services Agreement and this Ground Lease, the provisions of this
Ground Lease shall control.
SECTION 15: MISCELLANEOUS
15.1 Notices
Any notice, communication or statement required or
permitted to be given hereunder shall be in writing and deemed to
have been sufficiently given when delivered in person, or on the
second Business Day following the date of transmission by U.S.
certified or registered mail, return receipt requested, or on the
Business Day following the date of transmission by overnight
courier, to the address of the respective party below:
Bayer Corporation
100 Bayer Road
Pittsburgh, PA 15205-9741
Attn: Controller, Polymers Division
Attn: Assistant General Counsel,
Polymers Division
El Dorado Nitrogen Company
16 South Pennsylvania Avenue
Oklahoma City, Oklahoma 73107
Attn: President
and to:
El Dorado Chemical Company
655 Craig Road, Suite 322
St. Louis, Missouri 63141
Attn: Vice President, Industrial Chemicals
LSB Industries, Inc.
16 South Pennsylvania Avenue
Oklahoma City, Oklahoma 73107
Attn: General Counsel
Either party may, by notice given as aforesaid, change its
address or the party that receives its notice for all subsequent
notices.
15.2 Applicable Law; Submission to Jurisdiction;
Consent to Service of Process
The place of performance of this Ground Lease is the
State of Texas and the internal laws of said State, without
reference to its conflicts of laws provisions, shall govern the
rights of the parties hereto. The parties hereby irrevocably
submit to the jurisdiction of the United States District Court
for the Southern District of Texas and consent to service of
process as more fully set forth in Section 22 of the Project and
Supply Agreement.
15.3 Assignment
EDNC shall not assign or encumber its respective rights
and obligations under this Ground Lease and shall not sublease
the Leased Premises, in whole or in part, to any other party
without first obtaining the express written consent of Bayer,
which consent may be granted or withheld by Bayer in its sole
discretion, provided, however, that EDNC shall be permitted
(i) to sublease the Leased Premises and to encumber the Ground
Lease Sublease but, in each case, only to the extent contemplated
by the Operative Agreements, and (ii) to collaterally assign its
rights under this Ground Lease to the Owner Trustee, the
Construction Loan Agent and/or the Indenture Trustee under the
Operative Agreements. The Ground Lease Sublease must provide
that, except as expressly provided in this Ground Lease, it is
subject and subordinate to the terms of this Ground Lease.
15.4 Invalidity of Particular Provision
If any term or provision of this Ground Lease or the
application thereof to any person or circumstance shall be
invalid or unenforceable to any extent, the remainder of this
Ground Lease, or the application of such term or provision to
persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Ground Lease shall be valid and be
enforced to the fullest extent permitted by law.
15.5 Construction
The singular form of any word used herein shall include
the plural, and vice versa. The headings or titles used herein
are for convenience only. They do not constitute a part of this
Ground Lease and shall not affect the meaning, construction or
effect of the provisions hereof and do not constitute a part of
this Ground Lease. In the event of any conflict between the
provisions hereof and the provisions of the Project and Supply
Agreement, the provisions of the Project and Supply Agreement
shall apply.
15.6 Relationship of Parties
Nothing contained in or done pursuant to this Ground
Lease or any of the Project Agreements shall be deemed or
construed by the parties hereto, or by any third party, to create
the relationship of principal and agent, partnership, joint
venture or any association whatsoever between Bayer and EDNC. It
is expressly understood and agreed that no provisions contained
in this Ground Lease, nor any acts of the parties hereto, shall
be deemed to create any relationship between Bayer and EDNC other
than the relationship of landlord and tenant.
15.7 Entire Agreement
This Ground Lease and the Project Agreements, together
with all of the exhibits and schedules attached hereto and
thereto, contain the entire understanding of the parties and
supersede any prior understanding and agreements between them
respecting the subject matter hereof and thereof. There are no
agreements, arrangements or understandings, oral or written,
between and among the parties hereto relating to the subject
matter of this Ground Lease and the other Project Agreements that
are not set forth or expressly referred to herein.
15.8 Modification
This Ground Lease shall not be modified or amended,
except by written instrument executed by the duly authorized
officers of the parties hereto.
15.9 Recordation of Ground Lease and Termination
Notices
The parties agree that Bayer shall cause this Ground
Lease to be recorded in the office of the County Clerk of
Chambers County, Texas. The parties also agree to execute, and
Bayer shall record with such office, any documents which either
party reasonably requests from the other in order to reflect in
the public records the expiration or termination of this Ground
Lease and the expiration or termination of any of the Easements.
15.10 Dispute Resolution
If any dispute arises concerning or related to this
Ground Lease, the parties shall resolve such dispute in
accordance with the dispute resolution provisions set forth in
Section 22 of the Project and Supply Agreement.
15.11 Counterparts
This Ground Lease may be executed in two or more
counterparts, each of which shall be deemed an original, but all
of which taken together constitute one instrument.
15.12 Waiver
No waiver by Bayer or EDNC of any default or breach of
any covenant, condition or stipulation herein shall be treated as
a waiver of any subsequent default or breach of the same or any
other covenant, condition or stipulation hereof.
15.13 Amendment of Operative Agreements
EDNC shall comply with each of its obligations under
each of the Operative Agreements and shall not amend any of the
Operative Agreements if such amendment materially adversely
affects Bayer without first obtaining the prior written consent
of Bayer, which consent Bayer may not unreasonably withhold.
15.14 No Merger
The rights and estate created by this Ground Lease
shall not, under any circumstances, be deemed to have merged into
any other estate or interest now owned or hereafter acquired by
Bayer (or any successor or assign of Bayer) unless Bayer shall
have consented to such merger in writing.
15.15 Binding Effect
This Ground Lease shall be binding upon, and inure to
the benefit of, EDNC and Bayer and their respective permitted
successors and assigns. Notwithstanding the foregoing, the
rights of Bayer under this Ground Lease shall, to the extent that
they relate to (or inure to the benefit of) any of the Benefitted
Property (except the EDNC Baytown Plant), shall not be deemed to
have been assigned to any successor or assignee of Bayer unless,
and only to the extent that, Bayer (or its designated "Successor
or Assignee") designates such successor or assign as "Bayer's
Successor or Assignee" in a document that is executed by Bayer
(or any such Bayer's Successor or Assignee) and recorded in the
office of the Clerk of Chambers County, Texas.
IN WITNESS WHEREOF, the parties hereto have executed
this Ground Lease effective as of the date first above written.
EL DORADO NITROGEN COMPANY BAYER CORPORATION
By: ______________________ By:__________________________
Name:_____________________ Name:________________________
Title:____________________ Title: ______________________
STATE of
COUNTY of
This instrument was acknowledged before me on
_____________ __, 1997, by ____________________________, the
______________________ of El Dorado Nitrogen Company, an Oklahoma
corporation, on behalf of said corporation.
[SEAL OF NOTARY] ____________________________
Notary Public in and for the
State of __________________
My Commission Expires:
_______________________________ _____________________________
Printed Name of Notary
STATE of___________________
COUNTY of__________________
This instrument was acknowledged before me on
_____________ __, 1997, by ____________________, the
_________________________________ of Bayer Corporation, an
Indiana corporation, on behalf of said corporation.
[SEAL OF NOTARY] ______________________________
Notary Public in and for the
State of______________________
My Commission Expires:
_______________________________ _______________________________
Printed Name of Notary
EXHIBIT LIST
A Metes and Bounds Description of the Leased Premises
B Permitted Exceptions
C Design Criteria
D Easements
E Industrial District Agreement
F Services Agreement
EXHIBIT A
METES AND BOUNDS DESCRIPTION OF THE LEASED PREMISES
See attached copy.
EXHIBIT B
PERMITTED EXCEPTIONS
The lien of real estate taxes and assessments, both
general and special, those matters which are set forth in items 2
through and including 13 of Schedule B to the title commitment
issued by Chicago Title Insurance Company (No. 44-901-80-201789-
B) on August 26, 1996, effective May 24, 1996, and all matters
shown on the survey prepared by Busch, Hutchison & Associates,
Inc. (Job No. 96-1074), dated June 11, 1996 as revised through
August 1, 1996.
EXHIBIT C
GENERAL BAYTOWN SITE DESIGN DATA
Plants on the Bayer Baytown site are to be designed and
constructed according to the then-current guidelines as outlined
by Bayer design requirements in the areas of:
1. Battery Limits/Interface
. Piping -- preventing backflow and cross-contamination
of chemicals/utilities, for example.
. Instrument/electrical
. Civil, structural, architectural
. Communications - phones, PA, alarms, radios, hot lines,
data links
. Painting - color coding/identification (see attached
Table of Color Codes)
. Noise level of 80 dBA weighted over 8 hours
. As a minimum, the following national codes and
standards - NEC, NFPA, NEMA, ACI, ASCE, AISC, ASME,
ANSI, API
2. Then-Current Long Range Site Development Plan - location of:
. Railroads
. Roads
. Piperacks
. Firewater piping
. Sanitary sewers
. Power cabling
Improvements will be handled consistent with the then-
current Long Range Site Development Plan.
3. Overall Site Architectural Aesthetics
. Buildings, structures, and grounds similar or equal in
appearance to surrounding/adjacent Bayer plant.
DESIGN/PROCESS SAFETY
Plants on the Bayer Baytown site are to be operated in accordance
with principles of OSHA 1910.119 (Process Safety Management),
Risk Management Program, and Responsible Care.
Certain Bayer procedures are recommended to be incorporated into
the internal operating procedures of companies located on the
Bayer sites and certain are required (those marked with an
asterisk). At the orientation, Bayer will provide its current
procedures (all of which are subject to modification upon
reasonable prior notice) including, but not limited to, the
following:
. Control building air intake analyzers
. Breathing air systems
. Firewater/sprinkler systems
. Phosgene badges and breathing air
. Evacuation
. Alarms
. X-rays of welding
. Respiratory protection
. Security
. Emergency
ENVIRONMENTAL
. Concrete pads and sumps shall be designed to prevent impact
on ground water and Bayer environmental control systems
related to process, storm, or wash waters.
. Tank car or truck loading/unloading -- all operations to be
contained; splash loading of chemicals will not be
permitted.
. Visible emissions, high noise levels, or objectionable odors
that detract from overall community impression of Bayer and
site companies will not be permitted.
LONG-TERM APPEARANCE
. Plants on the Bayer Baytown site are to be maintained
similar in appearance to surrounding/adjacent Bayer plant.
TABLE OF COLOR CODES
UTILITY PIPING COLOR FEDERAL NUMBER
Plant Air Med. Gray 16314
Breathing White 17925
Inst. Air Med. Gray 16314
Nitrogen Lt. Blue 35250
Oxygen White 17925
Steam HP Black 17038
Steam LP Black 17038
Steam Utl. Black 17038
Hydrogen Yellow 13655
Tower Water Med. Gray 16314
Chill Water Med. Gray 16314
Plant Water Med. Gray 16314
Potable Water Med. Gray 16314
Hot Water Med. Gray 16314
Fire Water Red 11350
Brine Med. Gray 16314
Ammonia Dr. Blue 15065
Nat. Gas Yellow 13655
Fuel Oil Yellow 13655
PROCESS PIPING COLOR FEDERAL NUMBER
Phosgene L. Orange 12473
Phosgene Gas Orange 12473
Chlorine Orange 12473
Nitric Acid Dr. Blue 15065
Sulfuric Dr. Blue 15065
HCL Dr. Blue 15065
CO2 Yellow 13655
Freon Yellow 13655
Safety Shower/ Day Glo 38901
Eyewash Green 14491
Solvents Yellow 13655
Aniline Dr. Blue 15065
Tanks/Vessels Med. Green 14491
Hand Rails Black 17038
All hand rails/ladder cages, coupling guards, paint Yellow/Black.
Note: All colors are "Bayer Approved" to match existing color
scheme.
EXHIBIT D
I. Construction Access Easements.
(1) Access to and from the Construction Laydown
Area for those EDNC Personnel (except EDNC non-managerial
employees) and those construction managers (which, including
their administrative personnel, are herein referred to as the
"Construction Managers") who are driving Company Cars (as
hereinafter defined) shall be accomplished solely by way of the
route which includes Highway FM 565, West Bay Road and 12th
Avenue, which roads, together with all other roads referred to
herein, are shown on Annexes D-1 (the "Construction Easements
Drawing") and D-2 (the "Post-Construction Easements Drawing").
The term "Company Car" means a car, van, or truck that is owned
or rented by EDNC or any of its construction contractors and has
been authorized for entry by Bayer's security director for
purposes of this Ground Lease;
(2) Access to and from the Construction Parking
Lots (as hereinafter defined) for all construction personnel
(other than those Construction Managers who are driving Company
Cars) shall be accomplished solely by way of the route which
includes Highway FM 1405, 9th Avenue, "A" Street and 10th Avenue;
(3) Access to and from the Construction Parking
Lots (as hereinafter defined) to and from the Construction
Laydown Area (as hereinafter defined) by all construction
personnel (other than those Construction Managers who are driving
Company Cars) shall be accomplished solely by means of a bus or
van (in either case, to be provided by EDNC, at its sole expense
(the "Shuttle Bus"), provided that EDNC may permit its contractor
to provide such Shuttle Bus) using the route which includes "C"
Street and 11th or 12th Avenue;
(4) Access to and from Parking Lot A (as
hereinafter defined) for all non-managerial EDNC employees and
all other EDNC Personnel who are not driving Company Cars shall
be accomplished solely by means of the Applicable Route. The
term "Applicable Route" means the route which Bayer designates
from time to time by giving notice to EDNC, which route shall
either include (a) West Bay Road, 10th Avenue and "BI" Street, or
(b) if "C" Street is constructed, FM 565, "C" Street, 10th Avenue
and "BI" Street. Until Bayer notifies EDNC to the contrary, the
Applicable Route shall be the one which includes West Bay Road,
10th Avenue and "BI" Street;
(5) Access to and from Parking Lot A and the
Construction Laydown Area by EDNC non-managerial employees and
all other EDNC Personnel who are not driving Company Cars shall
be accomplished solely by means of a bus or van (in either case,
to be provided by EDNC at its sole expense), using the route
which includes "C" Street and 11th or 12th Avenue; and
(6) Access to and from the Construction Laydown
Area for any construction deliveries shall be as follows: any
construction deliveries which involve materials or equipment that
arrive by way of the Cedar Bayou shall be unloaded at the point
designated as the "Beach Area" on the Construction Easements
Drawing, and then delivered to the Construction Laydown Area
solely by means of the route which includes West Bay Road and
12th Avenue; all other deliveries to and from the Construction
Laydown Area shall be accomplished solely by means of the route
which includes Highway FM 565, West Bay Road and 12th Avenue;
provided, however, that when the absorber column is delivered,
the parties will cooperate with each other in order to determine
an alternate route for such column, if necessary.
II. Construction Staging Easements. The Construction
Laydown Area shall be that portion of Block 11 C which is
designated as the "Construction Laydown Area" on the Construction
Easements Drawing. This easement includes the right to locate
one (1) or more construction trailers in the southwest corner of
the Construction Laydown Area.
III. Construction Parking Easements.
(1) Those EDNC Personnel (except EDNC
non-managerial employees) and those Construction Managers who are
driving Company Cars shall park in the Construction Laydown Area;
(2) All construction personnel (other than those
Construction Managers who are driving Company Cars) and all
maintenance support personnel shall park in the areas (the
"Construction Parking Lots") shown as Block 9 B1 and Block 9 B,
as shown on the Construction Easements Drawing;
(3) All EDNC non-managerial employees and all
other EDNC Personnel who are not driving Company Cars shall park
in Parking Lot A;
(4) EDNC shall park the Shuttle Bus in the
Construction Laydown Area; and
(5) For purposes of subparagraph (2) hereof, such
construction personnel may use up to a maximum of one hundred
sixty-five (165) non-designated parking spaces in Block 9 B1 and
Block 9 B. For purposes of subparagraph (3) hereof, such EDNC
Personnel may use up to a maximum of twenty (20) non-designated
parking spaces in Parking Lot A.
IV. Post-New Route Date Access Easements.
(1) Access to and from the Construction Laydown
Area for those EDNC Personnel (except EDNC non-managerial
employees) and those Construction Managers who are driving
Company Cars shall be accomplished solely by way of the route
which includes Highway FM 565, West Bay Road, 10th Avenue,
"BI" Street, the ("Construction and Visitor's Gate") as shown on
the Post-Construction Easement Drawing) and 13th Avenue;
(2) Access to and from the Construction Parking
Lots for all construction personnel (other than the Construction
Managers who are driving Company Cars) shall be accomplished
solely by way of the route which includes Highway FM 1405, 9th
Avenue, "A" Street and 10th Avenue;
(3) Access to and from the Construction Parking
Lots to and from the Construction Laydown Area by construction
personnel (other than Construction Managers who are driving
Company Cars) shall be accomplished solely by means of a bus or
van (in either case, to be provided by EDNC, at its sole expense)
using the route which includes "BI" Street, the Construction and
Visitor's Gate and 13th Avenue;
(4) Access to and from Parking Lot A (as
hereinafter defined) for all non-managerial EDNC employees and
all other EDNC Personnel who are not driving Company Cars shall
be accomplished solely by means of the Applicable Route;
(5) Access to and from Parking Lot A and the
Leased Premises by all non-managerial EDNC employees and all
other EDNC Personnel who are not driving Company Cars shall be
accomplished solely by means of walking, using the route which
includes "BI" Street, the Construction and Visitor's Gate and
13th Avenue. All EDNC Personnel parking in Parking Lot A shall
log in and out with their Bayer-issued identification badges at
the Bayer employee gate;
(6) Access to and from the Construction Laydown
Area for any construction deliveries shall be as follows: any
construction deliveries which involve materials and equipment
that arrive by way of the Cedar Bayou shall be unloaded at the
point designated as the "Beach Area" on the Construction
Easements Drawing and then delivered to the Construction Laydown
Area solely by means of the route which includes West Bay Road
and 12th Avenue. All other deliveries to and from the
Construction Laydown Area shall be accomplished solely by means
of the route which includes West Bay Road, 10th Avenue, "BI"
Street, the Construction and Visitor's Gate, 13th Avenue and
those Block 12 access Roads which are shown on Annex D-6 attached
hereto;
(7) If any deliveries are being made to the
Construction Laydown Area from the Beach Area at a time when the
Perimeter Fence has been constructed, EDNC shall have the right,
at its expense, to dismantle such fence and secure the area (in
accordance with Bayer's security procedures, as reasonably
established by Bayer's director of security) for such time and to
such extent as may reasonably be necessary in order to complete
such deliveries; provided, however that (a) EDNC shall, at its
expense, promptly restore such fence to its previous condition,
and (b) the time during which such circumstances may exist shall
never exceed forty-eight (48) hours on any particular occasion;
(8) Access to and from the Leased Premises for
transporting all products, raw materials and wastes and making
other deliveries (other than those which relate to any
construction activities) to and from the Leased Premises shall be
accomplished solely by way of the route which, in the case of
inbound traffic, includes Highway FM 1405, Mobay Road, West Bay
Road, Bayer's delivery gate at 17th Avenue, "D" Street, 13th
Avenue, Block 12 Access Roads, and 12th Avenue, and, in the case
of outbound traffic, includes Block 12 Access Roads, 13th Avenue,
"D" Street, 17th Avenue, Bayer's delivery gate, West Bay Road,
Mobay Road and Highway FM 1405. All deliveries made pursuant to
this subsection (8) shall include checking in and out at Bayer's
truck delivery gate (the "Delivery Gate") and, if appropriate,
weighing in and out at Bayer's truck scale (the "Truck Scale"),
in each case, as shown on the Post-Construction Easements
Drawing;
(9) Access to and from Parking Lot B (as
hereinafter defined) by all maintenance support personnel shall
be accomplished solely by way of the Applicable Route which
includes Highway FM 565, West Bay Road, 10th Avenue and "BI"
Street; and
(10) Access to and from Parking Lot B and the
Leased Premises by all maintenance personnel who are entitled to
park in such parking lot shall be accomplished solely by walking,
using the same routes and procedures which are described in
subsection V(3) of this Exhibit D, provided, however, that any
maintenance personnel who are driving vehicles which are needed
to support the maintenance activity that is to be performed at
the Leased Premises, may proceed directly to the Leased Premises
(after logging in) solely by means of the route which includes
West Bay Road, 10th Avenue, "BI" Street, the Construction and
Visitor's Gate and 13th Avenue.
V. Post-Construction Access Easements.
(1) Access to and from the Leased Premises for
those EDNC Personnel (except EDNC non-managerial employees) who
are driving Company Cars shall be accomplished solely by means of
the route which includes Highway FM 565, West Bay Road, 10th
Avenue, the Construction and Visitor's Gate, "BI" Street and 13th
Avenue;
(2) Access to and from Parking Lot A for all EDNC
non-managerial employees and all other EDNC Personnel who are not
driving Company Cars shall be accomplished solely by way of the
route which includes Highway FM 1405, Highway FM 565, West Bay
Road, 10th Avenue and "BI" Street;
(3) Access to and from Parking Lot A and the
Leased Premises by all EDNC Personnel who are entitled to park in
such parking lot shall be accomplished solely by means of
walking, using the route which includes "BI" Street, the
"Construction and Visitor's Gate" and 13th Avenue. All EDNC
Personnel parking in Parking Lot A shall log in and out with
their Bayer-issued identification badges at the Bayer employee
gate;
(4) Access to and from Parking Lot B (as
hereinafter defined) by all construction personnel (including all
Construction Managers) and all maintenance support personnel
shall be accomplished solely by way of the route which includes
Highway FM 565, West Bay Road, 10th Avenue and "BI" Street;
(5) Access to and from Parking Lot B and the
Leased Premises by all construction personnel and maintenance
support personnel who are entitled to park in such parking lot
shall be accomplished solely by walking, using the same routes
and procedures which are described in subsection V(3) of this
Exhibit D, provided, however, that any construction personnel and
maintenance support personnel who are driving vehicles which are
needed to support the construction or maintenance activity that
is to be performed at the Leased Premises, may proceed directly
to the Leased Premises (after logging in) solely by means of the
route which includes West Bay Road, 10th Avenue, "BI" Street, the
Construction and Visitor's Gate and 13th Avenue;
(6) Access to and from the Leased Premises for
transporting all products, raw materials and wastes and for
making other deliveries (other than those which relate to any
construction activities) to and from the Leased Premises shall be
accomplished solely by way of the same routes and procedures
described in subsection IV(8) of this Exhibit D;
(7) Access to and from the Leased Premises for
making any deliveries to and from the Leased Premises relating to
construction activities shall be accomplished solely by way of
the route which includes Highway FM 1405, Highway FM 565, West
Bay Road, 10th Avenue and "BI" Street; and
(8) Access to and from any other areas of the
Bayer Baytown Plant by EDNC Personnel shall be accomplished over
routes which are reasonable under the circumstances, but only to
the extent that such access is reasonably necessary for the
conduct of their business thereon.
VI. Post-Construction Parking Easements.
(1) Those EDNC Personnel (except EDNC
non-managerial employees) who are driving Company Cars and those
construction personnel and maintenance support personnel who are
permitted to drive their vehicles to the Leased Premises pursuant
to subsection V(5) of this Exhibit D shall park on the Leased
Premises;
(2) All EDNC non-managerial employees and all
other EDNC Personnel who are not driving Company Cars shall park
in the area ("Parking Lot A") comprised of Block 11 B1 and 12 B1,
as shown on the Post-Construction Easements Drawing;
(3) All construction personnel (including the
Construction Managers) who are not driving Company Cars and all
maintenance support personnel shall park in the area ("Parking
Lot B") shown as Block 11 B on the Post-Construction Easements
Drawing; and
(4) For purposes of paragraph (2) hereof, such
EDNC Personnel may use up to a maximum of twenty (20)
non-designated parking spaces in Block 11 B1 and 12 B1. For
purposes of paragraph (3) hereof, such construction personnel and
maintenance support personnel may use up to a maximum of fifty
(50) non-designated parking spaces in Block 11 B.
VII. Disabled Persons. Notwithstanding anything in
this Ground Lease to the contrary, all EDNC Personnel and
construction personnel who are disabled to any extent shall enjoy
the benefits of the easements provided hereby subject, however,
to such reasonable limitations as Bayer's safety manager or
safety director may approve, which approval must be requested in
advance by EDNC.
EXHIBIT E
INDUSTRIAL DISTRICT AGREEMENT
See attached copy.
EXHIBIT F
SERVICES AGREEMENT
See attached copy.