Exhibit 10(s)
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease Agreement") is made this 16th day of December,
1993, by and between MIDWEST GRAIN PRODUCTS, INC., a Kansas corporation
("Lessor"), and CILCORP DEVELOPMENT SERVICES INC., an Illinois corporation
("Lessee"), for the lease of a certain portion of Lessor's premises.
WITNESSETH:
WHEREAS, Lessor owns certain property located on South Front Street in
Pekin, Illinois (the "Premises"), which is more particularly described on
Exhibit A attached hereto and incorporated herein; and
WHEREAS, Lessor operates a processing plant on the Premises; and
WHEREAS, Lessor and Lessee have entered into a Steam Heat Service Agreement
dated December 16, 1993 (the "Steam Heat Service Agreement") which provides,
among other things, for Lessee to construct a Boiler Plant ("the Boiler Plant")
on the Premises to provide steam heat to Lessor's plant; and
WHEREAS, Lessor, Lessee and Lessee's affiliate, Central Illinois Light
Company ("CILCO"), have entered into a Cogeneration Agreement dated December 16,
1993 (the "Cogeneration Agreement"), which gives CILCO the right to install,
operate and maintain electric generating equipment (the "Facility") on the
Premises; and
WHEREAS, Lessor desires to lease to Lessee a certain portion of the
Premises upon which the Boiler Plant and the Facility are to be located (the
"Leased Site"), which Leased Site is more particularly described hereinafter,
and to grant such other rights to Lessee and CILCO as are necessary for Lessee
and CILCO to perform their respective obligations under the Steam Heat Service
Agreement and the Cogeneration Agreement (collectively, the "Agreements").
NOW, THEREFORE, in consideration of the promises and the mutual covenants,
conditions and agreements contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties, each intending to be legally bound, hereby agree as follows:
1. LEASE OF SITE. Lessor hereby leases the Leased Site to Lessee, and
hereby grants, bargains and conveys to Lessee, any easements, rights-of-way and
rights of ingress and egress over, under, across and through the Premises and
the Leased Site which Lessee and its affiliate CILCO may at any time require,
for the purpose of performing any one or more of the activities contemplated
herein and in the Agreements, provided, that the use of such easements,
right-of-way and rights shall not unreasonably interfere with the operation of
Lessor's processing plant on the Premises. Lessor hereby agrees to execute and
record such documents as may be reasonably requested by Lessee and CILCO to
evidence such easements, rights-of-way, and rights of ingress an egress.
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2. TERM.
(a) The initial term of this Lease Agreement shall begin on the date first
set forth above and shall continue until the fifteenth anniversary of the Steam
Commencement Date described in the Steam Heat Service Agreement. When the Steam
Commencement Date is determined pursuant to the Steam Heat Service Agreement,
the date shall be set forth in a document which shall be designated Exhibit B to
this Lease Agreement, signed by the parties hereto, and thereby made a part of
this Lease Agreement.
(b) On or about the twelfth anniversary of the Steam Commencement Date, the
Lessor and Lessee shall enter into negotiations to extend both the Steam Heat
Service Agreement and the Lease Agreement. No later than the thirteenth
anniversary of the Steam Commencement Date, Lessor shall notify Lessee in
writing that it will either: (i) terminate the Lease Agreement at the end of the
initial term of this Lease Agreement and pay Lessee and CILCO an amount equal to
the book value of the Boiler Plant and the Facility (including all capital
investments made in machinery, equipment, structures, foundations, buildings and
other items located on the Leased Site for the purpose of the performing the
Agreements) plus the cost of removing such property of Lessee and CILCO from the
Leased Site and restoring the Leased Site to a clear and level condition, or
(ii) extend the Lease Agreement to enable CILCO to continue to generate
electricity on the site for an additional nineteen years beyond the lease's
initial fifteen year period.
If Lessor does not notify Lessee of its intention by the thirteenth anniversary
of the Steam Commencement Date, Lessor shall be deemed to have chosen option
(ii). As used herein, "book value" shall have the same meaning such term has
under generally accepted accounting principles, after deducting straight line
depreciation over the life of the property or thirty-four years, whichever is
less.
(c) Within one year after expiration of this Lease Agreement or extension
thereof, Lessee shall remove from the Leased Site all improvements, machinery,
equipment, structures, buildings and other items placed thereon by Lessee and
CILCO, and Lessee shall, upon the request of MWG, restore the Leased Site to a
clear and level condition.
3. DESCRIPTION OF LEASED SITE. The Leased Site consists of three-fourths
(0.75) of an acre, more or less, of the Premises. The Boiler Plant and Facility
shall be constructed on the Leased Site. The Legal description of the Leased
Site is as set forth in Exhibit A.
4. CONSIDERATION. Lessee shall pay to Lessor, as rent for use of the Lease
Site during the term of this Lease Agreement, the sum of One Dollar ($1.00) per
annum, payable in advance at the execution of this Lease Agreement, and annually
thereafter on the anniversary date of such execution so long as this Lease
Agreement shall be in effect.
5. WARRANTIES AND REPRESENTATIONS OF LESSOR.
(a) Warranty of Authority: Lessor warrants and represents that Lessor is
duly authorized to enter into this Lease Agreement and perform Lessor's duties
and obligations hereunder. Lessor
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further warrants and represents that there are no conditions, rights, easements,
liens, covenants or restrictions, whether of record or otherwise, nor are there
any zoning, building or other land use restrictions, regarding the Leased Site,
which would prohibit Lessor or CILCO from entering upon the Leased Site and
performing their respective obligations under the Agreements, or wold
unreasonably interfere with the activities contemplated herein and in the
Agreements. Lessor, at its own expense, will order a preliminary title
commitment from Chicago Title & Trust Company, showing all matters of record
involving the Leased Site and the Premises.
(b) Warranty of Fitness for Purpose and Environmental Matters. Lessor
warrants and represents that the Leased Site which is the subject hereof is in
good condition and is fit for the purposes contemplated herein and in the
Agreements. Furthermore, the Lessor hereby warrants and represents to the Lessee
that:
(i) the Lessor is not now nor has it been in violation of any
judgment, decree, order, law, license, rule or regulation pertaining to
environmental matters, including, without limitation, those arising under
the Resource Conservation and Recovery Act, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 as amended ("CERCLA"), the
Superfund Amendments and Reauthorization Act of 1986, the Federal Water
Pollution Control Act, the Toxic Substances Control Act, or any other
federal, state or local statute, regulation, ordinance, order or decree
relating to health, safety or the environment (hereinafter, the
"Environmental Laws");
(ii) the Lessor has not received, nor does it contemplate receiving,
notice that it has been identified by the United States Environmental
Protection Agency as a potentially responsible party under CERCLA with
respect to the Leased Site being listed on the National Priorities List
under the Environmental Laws; nor does it contemplate receiving
notification, that any hazardous waste, as defined by the Environmental
Laws ("Hazardous Waste") or any toxic or hazardous substance, hazardous
materials, oil, or other chemicals or substances regulated or defined by
any Environmental Laws ("Hazardous Substances") have been found at the
Leased Site by a federal, state or local agency which is conducting a
remedial investigation or other action pursuant to any Environmental Laws;
and
(iii) that a) no portion of the Leased Site has been used or is being
used for the handling, processing, storage or disposal of Hazardous Waste
of Hazardous Substances and no underground tank or other underground
storage receptacle for Hazardous Waste or Hazardous Substances was or is
located on the Leased Site; b) neither the Lessor nor others have generated
nor are generating nor have permitted to be generated any Hazardous Waste
or Hazardous Substances on the Leased Site; and c) there have been no
releases, including, without limitation, any past or present releasing,
spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, disposing or dumping, or Hazardous Waste of
Hazardous Substances
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by the Lessor or others including prior occupants or other third parties,
on, upon, or into the Leased Site. In addition, to the best of the Lessor's
knowledge, there have been no such releases on, upon, or into any real
property in the vicinity of any of the real properties of the Lessor which,
through soil or groundwater contamination, may have come to be located on
the Leased Site.
(c) Warranty of Quiet Enjoyment: Lessor warrants and represents that, as of
the date of execution of this Lease Agreement, Lessor has good right and full
and marketable title, in fee simple, to the Premises and the Leased Site, with
full right to lease the Leased Site to Lessee for the purpose and uses stated in
this Lease and the Agreements and Lessee, upon complying with and properly
performing all covenants and conditions of this Lease Agreement upon its part to
be performed, shall have and quietly enjoy the Leased Site for the full Term of
this Lease Agreement. Lessor warrants and represents that it will take no action
to prevent Lessee from having quiet and peaceable possession and enjoyment of
the Leased Site during the Term of the Lease Agreement.
(d) Warranty Regarding Liens: Lessor warrants and represents to Lessee that
the leasehold estate granted to Lessee by this Lease Agreement will be free from
all liens, encumbrances, claims, penalties, restrictions and obligations of any
nature whatsoever as of the date of the execution hereof, and that Lessor's
title to the Leased Site is free and clear, and will remain free and clear, from
all liens, encumbrances, claims, penalties, restrictions and obligations except
those set forth on Exhibit C hereto. Lessor warrants and represents that during
the Term of this Lease, Lessor will not take any action having the effect of
altering Lessor's title to the Site as warranted and represented in this
Section.
(e) Indemnity: It is expressly understood and agreed to by the parties
hereto that Lessee, in executing this Lease Agreement, does so in reliance on
the foregoing and representations, and that the breach, falsity or invalidity of
any one of them shall, at Lessee's option, be deemed a total breach of this
Lease Agreement unless corrected or rectified within thirty (30) days after
written notice thereof to Lessor. Lessor agrees to defend, protect, indemnify
and save harmless Lessee and its affiliate CILCO, and their respective agents
and employees, of and from any loss, claim, damage, liability, cost or expense,
including attorney's fees, arising out of the existence of any substance located
on the Leased Site or the Premises on or prior to the date first set forth
above, or arising out of the breach, falsity or invalidity of any one or more of
the warranties and representations contained in this Section and elsewhere in
this Lease Agreement, which indemnity Lessor agrees shall survive any
termination of this Lease Agreement.
6. ENCUMBRANCES. During the Term of this Lease, Lessor shall not encumber,
in any manner whatsoever, all or any portion of Lessor's interest in this Lease
or Lessor's fee interest in the land constituting the Leased Site without
Lessee's prior written consent, which consent shall not be unreasonably
withheld.
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7. FURTHER ASSURANCES. If either Lessee or Lessor reasonably determines or
is reasonably advised that any further instruments or any other things are
necessary or desirable to carry out the terms of this Lease Agreement, including
any documents necessary for Lessee or CILCO to obtain construction or permanent
project financing for the construction and operation of the Boiler Plant or
Facility, the other party will execute and deliver all such instruments and
assurances and do all things reasonably necessary and proper to carry out the
terms of this Lease Agreement.
8. GENERAL LIABILITIES. Lessee has obtained general liability insurance
(not less than $1,000,000 per person or $2,000,000 per accident for bodily
injury or death; $1,000,000 for property damage) against losses caused by or
originating out of this Lease, and further Lessee shall maintain Workers
Compensation insurance in no less than statutory provided limits.
9. DEFAULT. In the event of default hereunder by any party, the
non-defaulting party may exercise any and all remedies that ------- are
available to it at law or in equity.
10. RECORDING. This Lease Agreement, or a Memorandum of Lease reflecting
the terms and conditions of this Lease Agreement, may, --------- at Lessee's
discretion, be recorded at any time upon or following execution of this Lease
Agreement. Lessee shall pay all costs of recording, including recording taxes,
if any.
11. REAL PROPERTY TAXES AND OTHER MATTERS. All property taxes and
assessments levied or assessed against the Leased Site and the improvements
thereon by a governmental authority, including any special assessments imposed
on or against said Leased Site for the construction or improvement of public
works in, on, or about said Leased Site, shall be paid, before they become
delinquent, by Lessor. If Lessor shall fail to pay any taxes or assessments by
their due dates, or shall fail to keep current all payments due on mortgages or
other encumbrances, Lessee may perform any act or make any payment which Lessee
deems necessary for the preservation of the Lease Agreement and Lessee's
interest therein, and may cure any and all defaults of Lessor in making payments
with respect to the Leased Site and the Premises.
All sums so paid or incurred by Lessee, together with interest at ten percent
(10%) per annum, and any reasonable legal fees incurred by Lessee in connection
therewith shall be payable to Lessee by Lessor on demand. The performance of any
act or payment by Lessee, as aforesaid, shall not be deemed a waiver or release
of any obligation or default on the part of Lessor.
12. UTILITIES. Lessor, at its expense, shall provide the Lease Site with
connections to its well water system, fire protection system, storm water and
sewer system and electric system as well as the city water system. The actual
hookup of the Leased Site to each system shall be at Lessee's expense.
13. STORM WATER; PLANT WASTES.
(a) Lessee shall be allowed to discharge runoff water into Lessor's
existing storm water system.
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(b) Lessee shall have the right to discharge boiler blowdown and other
plant wastes into Lessor's waste water treatment system, provided Lessor
can accept the plant wastes under Lessor's waste water treatment permits.
14. OWNERSHIP OF PROPERTY. All machinery, equipment, structures, fixtures,
and other improvements and items placed upon the Leased Site by Lessee or by
CILCO shall at all times be and remain the respective property of Lessee and
CILCO, and may be removed by Lessee or CILCO, as the case may be, at any time
and from time to time, up to and including one year after the termination of
this Lease Agreement. This paragraph shall not be construed to relieve Lessee of
its obligations under the Steam Heat Service Agreement.
15. CONSTRUCTION STORAGE. Lessor grants Lessee and CILCO the right and
license to store equipment, material, machinery and tools temporarily during
initial construction of the Boiler Plant and Facility on the off-site area noted
in Exhibit D. Lessor grants Lessee and CILCO unrestricted access to and from
this area during the construction period.
16. ASSIGNMENT. This Lease Agreement shall not be assignable by either
party hereto without the prior written consent of the other party, provided,
however, in conjunction with any assignment of the Steam Heat Service Agreement
to CILCO, Lessee may assign its interest in this Lease Agreement to CILCO
without the consent of Lessor, and in the event of re-assignment of the Steam
Heat Service Agreement to Lessee by CILCO, this Lease Agreement may be
re-assigned to Lessee without Lessor's consent. Any assignment which may be made
hereunder without Lessor's consent shall release the assignor of all duties and
obligations under this Lease Agreement for the period after the assignment.
17. SUCCESSORS AND ASSIGNS. All of the terms and provisions of this Lease
Agreement, and the parties' respective rights and obligations hereunder, shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
18. INTEGRATION AND AMENDMENT. The exhibits attached to this Lease
Agreement are a part of this Lease Agreement. The Agreements and this Lease
Agreement constitute the entire agreement of the parties and may not be modified
except by written instrument signed by the parties in interest at the time of
the modification.
19. NOTICES. Except as provided herein to the contrary, any notice or other
communication required or permitted under this Lease Agreement shall be in
writing, and shall be deemed to have been given when actually delivered, when
received by telephone facsimile (provided such receipt is verified by
telephone), or when deposited in the United States mail, postage prepaid, for
mailing by certified or registered mail, return receipt requested, addressed as
follows:
If to Lessor: Midwest Grain Products, Inc.
South Front Street
P.O. Box 1069
Pekin, IL 61554
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If to Lessee: CILICORP Development Services Inc.
300 Hamilton Boulevard
Suite 300
Peoria, IL 61602
Or to such other person or address as the party entitled to notice may specify
from time to time in a notice duly given as provided herein.
20. SEVERABILITY. If any provision of the Lease Agreement is in violation
of any law or regulation, this Lease Agreement shall be interpreted by striking
the provision or provisions which violates said law or regulation, and the
remainder of the Lease Agreement shall be enforceable as though the stricken
provision or provisions did not exist.
21. COVENANTS TO RUN WITH LAND AND SECURITY. The parties hereto intent that
each and every covenant contained herein shall be appurtenant to and run with
the land generally described and discussed herein as the Leased Site and the
Premises, and all obligations of Lessor shall be secured thereby.
22. GOVERNING LAW. This Lease Agreement shall be governed by the laws of
the State of Illinois.
23. VENUE. The venue for any judicial action regarding this Lease Agreement
shall be Tazewell County, Illinois.
IN WITNESS WHEREOF, the parties hereto have caused this Lease Agreement to
be executed by their duly authorized officers as of the date first hereinabove
written.
MIDWEST GRAIN PRODUCTS, INC.
By: /s/ Ladd M. Seaberg
Name: Ladd M. Seaberg
Title: President and CEO
Witness: /s/ Brian T. Cahill
CILICORP DEVELOPMENT SERVICES, INC.
By: /S/ Lawrence H. Haynes
Name: Lawrence H. Haynes
Title: President
Witness: /s/ illegible signature
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EXHIBIT A: LEGAL DESCRIPTION OF THE PREMISES AND LEASED SITE
EXHIBIT B: STEAM COMMENCEMENT DATE [reserved]
EXHIBIT C: ENCUMBRANCES
EXHIBIT D: AREA FOR CONSTRUCTION STORAGE
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STATE OF ILLINOIS )
_________ ) SS
COUNTY OF TAZEWELL )
I, the undersigned, a Notary Public in and for said County in the State
aforesaid, DO HEREBY CERTIFY that Ladd M. Seaberg personally known to me to be
the President and CEO of MIDWEST GRAIN PRODUCTS, INC. and personally known to me
to be the same person whose name is subscribed to the foregoing instrument,
appeared before me this day in person, and acknowledged that as such delivered
the said instrument as such , pursuant to authority granted by such corporation,
and as the free and voluntary act of said corporation, for the uses and purposes
therein set forth.
Given under my hand and official Notarial Seal this 16th day of December,
1993.
/s/ Margaret E. Simpson
[SEAL] Notary Public
STATE OF ILLINOIS )
) SS
COUNTY OF TAZEWELL )
I, the undersigned, a Notary Public in and for said County in the State
aforesaid, DO HEREBY CERTIFY that Lawrence H. Haynes personally known to me to
be the President of CILCORP DEVELOPMENT SERVICES INC. and personally known to me
to be the same person whose name is subscribed to the foregoing instrument,
appeared before me this day in person, and acknowledged that as such delivered
the said instrument as such , pursuant to authority granted by such corporation,
and as the free and voluntary act of said corporation, for the uses and purposes
therein set forth.
Given under my hand and official Notarial Seal this 16th day of December,
1993.
/s/ Wilma E. Ward
Notary Public
[SEAL]
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