1
EXHIBIT 2.3
GRANT OF EASEMENT AND AGREEMENT
THIS GRANT OF EASEMENT AND AGREEMENT (this "Agreement") is made as of
the 21st day of May, 1996, between CSX REALTY DEVELOPMENT CORPORATION, a Georgia
corporation, THE THREE RIVERS RAILWAY COMPANY, a Pennsylvania corporation, THE
ATLANTIC LAND AND IMPROVEMENT COMPANY, a Virginia corporation, WINSTON-SALEM
SOUTHBOUND RAILWAY COMPANY, a North Carolina corporation, GAINESVILLE MIDLAND
RAILROAD COMPANY, a Georgia corporation and RICHMOND, FREDERICKSBURG AND POTOMAC
RAILWAY COMPANY, a Virginia and Delaware corporation (collectively, "Grantor"),
having an address of 500 Water Street, Jacksonville, Florida 32202, and RAILCOM,
LTD., a Georgia corporation ("RailCom"), having an address of 1819 Peachtree
Road, Suite 315, Atlanta, Georgia 30309.
BACKGROUND
A. Grantor owns, uses, or occupies certain real property underlying
certain outdoor advertising facilities located in various states within the
United States, which facilities are generally listed in Exhibit A attached to
this Agreement (the "Outdoor Advertising Facilities").
B. Pursuant to the Purchase and Sale Agreement dated January 23, 1996,
as amended, between RailCom and Grantor (the "Purchase and Sale Agreement"),
Grantor wishes to grant to RailCom certain easement rights (or such lesser
rights to the greatest extent Seller's interest will support) related to the
Outdoor Advertising Facilities, and RailCom wishes to obtain such easements,
subject to the terms and conditions contained in this Agreement.
TERMS OF AGREEMENT
In consideration of Ten Dollars ($10) and other good and valuable
consideration, the receipt and sufficiency are hereby acknowledged, the parties
agree as follows:
1. Definitions. Terms capitalized in this Agreement are defined in
parentheses in the body of this Agreement, by the Purchase and Sale Agreement,
or as follows:
1.1 "Location" or "Locations" means the site of one or more,
respectively, of the Outdoor Advertising Facilities described on Exhibit A to
this Agreement.
1.2 "Location Sales Price" means the pro-rata portion of the Sales
Price applicable to a Location, determined by multiplying the Net Revenue for
the Location by 7.05.
1.3 "Net Revenue" means the actual revenue received by Grantor and/or
its affiliates from Peterson Enterprises of Orlando, Inc. ("Peterson") as to any
one or more Locations for the twelve (12) month period ending December 31, 1995.
1.4 "Outdoor Advertising Facility" or "Outdoor Advertising Facilities"
means one or more, respectively, of the signboards, painted bulletins and poster
panels commonly known as billboards, including their supporting structures,
which are the subject of this Agreement, and which are described on Exhibit A
attached to this Agreement.
2. Grant of Easement.
2.1 Description of Easement and Easement Property. Grantor hereby
grants to RailCom, in so far as the quality of its title and the limits of its
possessory interests enable it to do so, an easement on, over and across that
portion of Grantor's interest, if any, in real property (whether owned, leased,
licensed or otherwise occupied) in direct contact with that portion of a
structure supporting an Outdoor Advertising Facility where such structure
contacts the
1
2
ground or a bridge, together with the air space occupied by the Outdoor
Advertising Facility (the "Easement Property"). For example, where there is a
billboard which is twenty-five (25) feet wide supported by two (2) poles
connected to the ground, the Easement Property related to such billboard shall
not include the space between the poles, regardless of the fact that the space
lies underneath the billboard supported by such poles, but shall include only
the real property which is directly beneath the two (2) supporting poles, and
the airspace occupied by the Outdoor Advertising Facility.
2.2 Grant of Additional Rights. In addition to the Easement described
in Paragraph 2.1 of this Agreement, Grantor grants the following additional
rights to RailCom:
2.2.1 The right of access to the Easement Property across adjacent
property in which Grantor has a real property interest allowing access to the
extent reasonably necessary and at a location reasonably designated by Grantor
from time to time to permit the activities described in this Agreement at the
Easement Property.
2.2.2 The right to all advertising revenue derived from the
display of advertising copy on Outdoor Advertising Facilities, but not the right
to any other revenue which such facilities may generate.
2.3 Purpose of Easement. The easement and other rights granted in this
Agreement are for the sole purpose of allowing RailCom or its licensees to
install, construct, maintain, repair, and replace the Outdoor Advertising
Facilities, and use such facilities for the display of advertising copy.
Concerning the Outdoor Advertising Facilities and the Easement Property, Grantor
shall not grant rights to third parties, or exercise any rights on its own
behalf, to install, construct, maintain, repair or replace billboards or to use
the same for outdoor advertising or derive outdoor advertising revenue
therefrom, it being understood that such rights shall be held exclusively by
RailCom for the Outdoor Advertising Facilities supported by structures located
on the Easement Property. Nothing herein shall constitute a conveyance of the
Outdoor Advertising Facilities themselves, it being understood that Grantor does
not own such facilities, but has granted a license to construct such facilities
to third parties, and the third parties own the Outdoor Advertising Facilities.
2.4 Duration and Quality of Easement Rights. The duration of the
easement and other rights granted herein shall be: (i) perpetual, where Grantor
owns fee simple title to the applicable Easement Property; (ii) for the
remaining term of the applicable leasehold, where Grantor is a tenant of the
applicable Easement Property, and (iii) for the remaining term of the applicable
easement or license, where Grantor holds an easement or license to the
applicable Easement Property. The easement and other rights granted herein shall
continue for any renewal or extension of a lease, easement or license underlying
the Easement Property (including, without limitation, any amendment or new
agreement, the effect of which is the continuation of rights of Grantor or its
assignees sufficient to continue the easement, but Grantor and its assignees
shall have no obligation to enter into any such renewal or extension). For the
purposes of this Agreement, the term "easement" shall mean: (i) with regard to
any portion of the Easement Property which is owned by Grantor in fee simple
absolute, an easement; (ii) with regard to any portion of the Easement Property
owned, occupied, used or controlled by Grantor in less than fee simple absolute,
merely a right of occupancy commensurate with the term and extent of Grantor's
and its assignees' rights; and (iii) with regard to any portion of the Easement
Property occupied, used or controlled by Grantor under any other facts or
rights, merely a license or right to occupy commensurate with the term and
extent of Grantor's and its assignees' rights. NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED IN THIS AGREEMENT, SUBJECT TO PARAGRAPH 2.5 OF THIS
AGREEMENT, GRANTOR MAY CANCEL THE EASEMENT AND OTHER RIGHTS GRANTED HEREIN AS TO
ANY ONE OR MORE LOCATIONS TO ACCOMMODATE (AS GRANTOR DEEMS APPROPRIATE IN ITS
SOLE DISCRETION) THE PRESENT AND/OR FUTURE BUSINESS PURPOSES OR OPERATIONS OF
GRANTOR OR ITS AFFILIATES, OR THEIR RESPECTIVE CUSTOMERS AND OTHER THIRD
PARTIES, INCLUDING, WITHOUT LIMITATION, THE INSTALLATION, CONSTRUCTION,
OPERATION, MAINTENANCE, RELOCATION, OR MODIFICATION OF TRACK OR OTHER RAILROAD
FACILITIES, AS WELL AS ANY OTHER FACILITIES OR UTILITIES (WHETHER OR NOT RELATED
TO RAILROAD OPERATIONS, SUCH AS PIPELINES, WIRE LINES, CABLE, MICROWAVE AND
RADIO TOWERS [AND LINE OF SIGHT BETWEEN THEM]), EXCLUDING THE OPERATION OF
OUTDOOR ADVERTISING FACILITIES. THIS PARAGRAPH 2.4 IS GRANTOR'S EXCLUSIVE METHOD
TO CANCEL, WHETHER TEMPORARILY OR PERMANENTLY, THE EASEMENT.
2
3
2.5 Termination of Location(s) by Grantor. If, prior to March 31, 2026
(which time certain shall not change if this Agreement is used in relation to
New Assets), the easement and other rights set forth herein as to any one or
more Locations are terminated permanently in the manner expressly provided for
in Paragraph 2.4 of this Agreement, or if the use of a Location on real property
leased or licensed or otherwise occupied by Grantor permanently terminates by
reason of the termination of such lease or license or possessory right, then at
no cost to RailCom Grantor shall use reasonable efforts to substitute as soon as
is feasible a comparable (in terms of revenue- generating potential),
replacement Location on real property owned or occupied by Grantor or CSXT (if
reasonably possible, in the immediate vicinity of the terminated Location),
provided, however, that RailCom shall have the responsibility to identify
potential replacement locations, for the review and reasonable approval of
Grantor in good faith. Any location substituted for another shall be placed in
the pool for the original Location for the purpose of RailCom's payment of
License Fees pursuant to Paragraph 4 of the Purchase and Sale Agreement, and
shall for all purposes of this Agreement and the Purchase and Sale Agreement be
deemed a "Location". If Grantor, in the exercise of reasonable efforts, fails to
approve a substitute location within one hundred twenty (120) days following
delivery of notice by RailCom of potential locations, then Grantor shall pay to
RailCom the then (as of the date such Easement and other rights are terminated)
"Hypothetical Unamortized Balance" for such Location, as such term is defined in
Paragraph 4.2 hereof, which shall be RailCom's sole remedy for such termination.
Prior to Grantor providing a substitute location or the payment by Grantor to
RailCom, RailCom and its successors and assigns, shall reconvey to Grantor all
of their right, title and interest in the Location and the easement and all
other rights therefor, and, if no substitute location is agreed upon, shall
assign to Grantor any applicable license agreement related to such Location (all
free of any management agreement). Any advertising revenues or license fees
generated by any reconveyed Location shall be prorated on an accrual basis as of
the date of reconveyance, in the same manner provided by Paragraph 3.2 of the
Purchase and Sale Agreement. Grantor shall cause all reconveyance documents to
be prepared and shall pay all recording costs and transfer taxes related to such
reconveyance. Furthermore, if a substitute location is agreed upon, such
location shall replace the description of the original location attached hereto,
and such location may be reflected in a Short-Form Notice, as described in
Paragraph 2.1 of the Purchase and Sale Agreement.
2.6 Termination of Location(s) Beyond Grantor's Control. If for any
reason not encompassed by Paragraph 2.4 or 2.5 of this Agreement, the easement
for a Location is temporarily or permanently terminated, RailCom shall have no
recourse whatsoever against Grantor, provided that RailCom shall be entitled to
make claim for and receive such consideration, if any, as is provided by law for
such termination, from third parties.
2.7 Irrevocable Easement. Notwithstanding anything in this Agreement
to the contrary, but expressly subject to Paragraphs 2.4, 2.5 and 2.6 of this
Agreement, the easement and other rights granted pursuant to this Agreement
shall run with the land and be irrevocable, it being understood that should
RailCom default in the performance of any obligation hereunder, Grantor may not
revoke the easement granted herein or any easement; provided, however, Grantor's
recourse and remedies shall not otherwise be limited, and Grantor shall be free
to pursue any other recourse or remedy available at law or in equity, including,
without limitation, the right to pursue a judgment for damages against RailCom
and obtain satisfaction thereof from any and all assets of RailCom (including,
without limitation, the easement granted herein).
2.8 Visual Impairment of Location. If the view of the advertising copy
located on an Outdoor Advertising Facility is materially impaired by a man-made
facility constructed on real property owned or controlled by Grantor or its
affiliates, and such material impairment causes the revenue generated by such
facility to be reduced, RailCom may deem that such Location has been terminated
by Grantor pursuant to Paragraph 2.4 of this Agreement, and the disposition of
such Location shall be governed by Paragraph 2.5 of this Agreement.
3. Limitations on Easement.
3.1 General Limitations. In addition to the other limitations
contained herein, including, without limitation, Paragraph 2.4 hereof, the
easement and other rights granted herein are subject to: (i) the generally
applicable operating rules and practices of Grantor and its affiliates,
including, without limitation, the insurance and indemnification requirements as
they exist from time to time generally applicable to rights of entry on real
property
3
4
in which Grantor and its affiliates have an interest; (ii) Grantor's and its
affiliates' track clearance standards in effect from time to time; (iii)
existing railroad facilities, public utilities, and other cable, wire, pipeline
and utility facilities currently located in, on, over, under, or across the
Easement Property and to all instruments, agreements, easements and rights
therefor, whether recorded or not; and (iv) such other conditions and
limitations as the parties may mutually agree upon. Furthermore, RailCom agrees
that the easement and other rights granted herein permit the Outdoor Advertising
Facilities to be used only for the lawful display of advertising copy, and not
for any other purpose. For example, no bullhorns, loudspeakers, transmitters,
antennae or dishes may be placed on the Outdoor Advertising Structures by
RailCom and/or its assignees or licensees.
3.2 Reserved Rights, Generally. Subject to Paragraphs 2.4, 2.5, 2.6,
2.7 and 2.8 of this Agreement, Grantor reserves for itself (and its successors
and assigns): (i) the paramount right to occupy, possess and use the Easement
Property for any and all railroad and other purposes of Grantor and its
affiliates consistent with Grantor's and its affiliates' present or future
operations and needs, including but not limited to the right to construct,
reconstruct, relocate, operate, maintain, repair, renew, replace and remove
tracks, signals, wires, and other railroad or other facilities as now exist or
which may in the future be located in, upon, over, or across the Easement
Property; and (ii) the right to grant other easements, licenses and/or rights in
the Easement Property (other than for outdoor advertising at the Locations).
3.3 Modifications of Existing Outdoor Advertising Facilities. Any
replacement, changes or modification of the existing Outdoor Advertising
Facilities (including, without limitation, upgrades of boards or supporting
structures that may occupy more ground or airspace at the Location) shall be
subject to Grantor's approval, which approval shall not be withheld, unless
Grantor determines, in Grantor's and its affiliates' sole discretion, that such
replacement, change or modification may adversely affect the rail or other
operations (as such operations exist at the time of such proposed replacement,
modification, or change, or as reasonably anticipated by Grantor or its
affiliates in the future) of Grantor, its affiliates or their customers or any
other third parties (including the operations of parties with whom Grantor or
its affiliates enter into contracts for any purpose or activity, other than
contracts which allow outdoor advertising outside of the immediate vicinity of
the Locations) or impose obligations or liability on Grantor or its affiliates
which otherwise would not be imposed. RailCom agrees that all work permitted in
this Paragraph shall be done in a good and workmanlike manner, in compliance
with all laws and American Railway Engineering Association standards, without
interference with other structures in place. Prior to initiating any such work,
RailCom shall furnish Grantor with a copy of plans for the same, for Grantor's
review and approval, and all work must be done in accordance with the approved
plans. The parties agree that the specific manner and timing of such work shall
be determined jointly by RailCom and Grantor's or its affiliates' division
engineer (or such other individual designated by Grantor). Grantor and RailCom
agree to cooperate in good faith with respect to any proposed replacement,
modification or change. Nothing herein shall constitute an agreement on the part
of Grantor to allow additional Locations pursuant to this Paragraph 3.3. If any
approved modification causes the Easement Property to change, RailCom, and its
successors and assigns agree to reconvey to Grantor or its affiliates all of the
Easement Property which is no longer in direct contact with a structure
supporting an Outdoor Advertising Facility and any unused airspace, and
Grantor's interest in any additional Easement Property shall be conveyed by
Grantor to RailCom. RailCom shall pay all recording costs and transfer taxes
related to such conveyances, but no additional purchase price or license fees
shall be due from RailCom to Grantor as to such modified Location.
4. Title to the Easement Property.
4.1 Title Subject to All Matters. The conveyance of the easement and
all other rights granted herein are subject to all existing covenants,
restrictions, easements, licenses, mortgages, deeds of trust, security
instruments, and all other documents and agreements whatsoever affecting title
to the Easement Property.
4.2 Title Indemnity. Without limiting the express obligations of
Grantor set forth in this Paragraph 4.2, and in Paragraph 9 of the Purchase and
Sale Agreement, the conveyance of the easement and other rights granted herein
is without any warranty whatsoever (without limitation, Grantor specifically
makes no warranty as to the accuracy or legal sufficiency of the description of
any Location contained in Exhibit A). Grantor agrees to defend, indemnify and
4
5
hold harmless RailCom from and against any damages, costs, lost revenue,
liabilities, claims, actions, and expenses (including reasonable attorneys'
fees) RailCom suffers or incurs by reason of third party claims against title or
rights to the easement granted to RailCom hereunder as to any Location which
adversely affects the revenue generated by such Location; provided, however,
that Grantor's liability to RailCom under this Agreement shall be limited, as to
each affected Location, to the then hypothetical unamortized balance of the
Location Sales Price (assuming the Location Sales Price was financed at an
interest rate of eleven percent (11%) per annum, fully amortized over a term of
ten (10) years, payable in equal payments of principal and interest due on the
last day of each month, in arrears, with the first payment due on the last day
of the calendar month which immediately follows the calendar month of the
Closing Date) (the "Hypothetical Unamortized Balance"). For example, if a
Location generated Net Revenue of $900, its Location Sales Price would be $6,345
($900 x 7.05). If that Location was terminated 50 months after the Closing Date
due to a breach of the title indemnity contained in Paragraph 4.2 by Grantor,
the hypothetical unamortized balance for the Location would be $4,501 ($6,345
amortized at an interest rate of 11% per annum, providing equal monthly payments
of principal and interest of $87.40, with principal "paid" of $1,844). Prior to
the payment by Grantor of damages related to any Location, RailCom and its
successors and assigns shall reconvey to Grantor all of their right, title and
interest in such Location and the easement
therefor and assign to Grantor any license agreement related to such Location
(all free of any management agreement). Any advertising revenues or license fees
generated by any reconveyed Location shall be prorated on an accrual basis as of
the date of reconveyance, in accordance with Paragraph 3.2 of the Purchase and
Sale Agreement. The remedy granted in this Paragraph 4.2 shall be RailCom's sole
remedy for any breach of the title indemnity contained in this Paragraph 4.2.
Grantor shall cause all reconveyance documents to be prepared and shall pay all
recording costs and transfer taxes related to the reconveyance.
5. License Fees and Other Obligations. Pursuant to the Purchase and Sale
Agreement, additional sums called License Fees shall be due from RailCom to
Grantor in consideration of the easement and other rights granted herein. Upon
any transfer of a Location by RailCom and/or the transfer of the easement and
other rights granted herein as to any Location or the transfer of any interest
therein as permitted by Paragraph 10.3 hereof, the obligation to pay License
Fees and all other obligations hereunder shall continue to be an obligation of
RailCom, but shall also run with the Location and the easement and the land, and
shall be binding upon the new owner of such interests and all future owners
until all such obligations are satisfied.
6. Indemnification by RailCom. RailCom hereby agrees to protect,
indemnify, and save harmless Grantor, its affiliates, and their directors,
shareholders, officers and employees, from and against any and all liability,
claims, demands, suits or liens, including reasonable attorneys' fees and
expenses, made or brought by reason of RailCom's or its contractors' or
licensees' acts or omissions, or the acts or omissions of RailCom's or its
contractors' or licensees' agents, servants, or employees, or arising from or
related to, in any way, the exercise by RailCom or its licensees of the rights
granted to RailCom in accordance with this Agreement. RailCom's indemnity shall
cover, by way of example and not limitation, the death of or an injury to any
person or persons, including the death of or an injury to an agent, servant, or
employee of RailCom or its contractors or licensees or Grantor, and damage to
any property.
7. Insurance. RailCom further agrees to maintain appropriate insurance
policies (including, but not limited to, commercial general liability
insurance), having limits reasonably acceptable to Grantor (in its reasonable
discretion), naming Grantor and its affiliates as an additional insureds, and
subject to such other terms and conditions as Grantor may reasonably request
from time to time in accordance with its customary risk management practices.
Grantor shall have the right to designate by written notice to RailCom the
insurance policies required by RailCom under this Agreement. At a minimum, the
following policies of insurance shall be required to be maintained by RailCom:
7.1 Commercial General Liability Insurance. Commercial General
Liability Insurance with a limit of no less than Three Million Dollars
($3,000,000) combined single limit per occurrence for all bodily injury and
property damage, which may be provided by one policy or a base policy with an
umbrella.
5
6
7.2 Railroad Protection Liability Insurance. RailCom shall provide, or
cause the applicable licensee to provide, Railroad Protective Liability
Insurance, in the event of and during the course of any construction and
demolition work done within fifty (50) feet of any railroad track, with a limit
of no less than Three Million Dollars ($3,000,000) combined single limit per
occurrence for all bodily injury and property damage.
7.3 Automotive Liability Insurance. RailCom shall provide, or cause
the applicable licensee to provide, automotive liability insurance with a limit
no less than One Million Dollars ($1,000,000) combined single limit per
occurrence, for all bodily injury and property damage.
All such policies shall name Grantor and its affiliates as additional
insureds, and shall provide for at least thirty (30) days prior notice to
Grantor of any cancellation or modification of such policies. The form of such
policies and the companies issuing such policies must be acceptable to Grantor,
in Grantor's reasonable discretion. Upon request, RailCom shall provide Grantor
with a certified copy of all policies of insurance maintained by RailCom
pursuant to this Paragraph. In addition, at all times RailCom and its
contractors and licensees shall maintain workers compensation insurance as
required by law and such workers compensation insurance shall contain a waiver
of subrogation in favor of Grantor and its affiliates. Securing such insurance
shall not limit RailCom's liability to Grantor under this Agreement, but shall
be additional security therefor.
8. Use of Easement.
8.1 Compliance with Laws. RailCom agrees that it shall comply with all
statutes, laws, ordinance, rules, regulations and requirements of all
governmental entities concerning the Outdoor Advertising Facilities.
8.2 Maintenance of Outdoor Advertising Facilities. RailCom shall cause
the Outdoor Advertising Facilities to at all times be maintained in a
first-class, safe condition. In the event RailCom fails to do so, Grantor may
undertake such maintenance, the cost of which shall immediately be due from
RailCom to Grantor, and, in addition to Grantor's other rights, such cost shall
bear interest at the rate of twelve percent (12%) per annum if not paid by
RailCom to Grantor within thirty (30) days after notice of such amount from
Grantor to RailCom.
8.3 Utilities. RailCom shall be solely responsible for all utilities
used by or for the Outdoor Advertising Facilities. Upon the reasonable written
request of RailCom, Grantor shall grant licenses for electric utilities to
provide electricity to the Outdoor Advertising Facilities, using the standard
form of Grantor's utility license agreement.
8.4 No Construction or Other Liens. RailCom shall cause all work done
in relation to the Outdoor Advertising Facilities to promptly be paid for in
full. RailCom shall indemnify, protect and defend Grantor, including reasonable
attorneys' fees and costs, from and against any potential construction liens
attributable to RailCom and its licensees affecting the Easement Property and
Grantor's interest in the real property underlying and adjacent to the Easement
Property.
8.5 Approval of License and Management Forms. Prior to RailCom's
entering into any new license, management, or any other agreement concerning any
of the Locations, Grantor must approve the contents of the form of such
agreements, which approval shall not be unreasonably withheld. Grantor shall not
require approval of each individual license, management or other agreement, but
only the form thereof. Upon such approval, RailCom may use such agreements until
it receives written notice from Grantor that additional changes are required to
the form, in Grantor's reasonable discretion.
8.6 Removal of Objectional Advertising Matter. At all times, RailCom
shall cause to be removed, within thirty (30) days of written notice from
Grantor to RailCom, any advertising matter or copy on an Outdoor Advertising
Facility which is objectionable to Grantor, in Grantor's reasonable discretion.
8.7 Enforcement of License Agreements. RailCom agrees that it shall
enforce compliance by its licensees with each of the terms and conditions of the
License Agreements (and all modifications and renewals thereof) and all
6
7
new license agreements concerning the Locations, provided, that in the
reasonable judgment of RailCom, such enforcement shall cause an economic benefit
to RailCom or the Grantor.
9. Successors and Assigns. This Agreement shall run with the land, and
shall be binding upon the parties hereto, and their successors and assigns.
10. Miscellaneous.
10.1 Entire Agreement. This Agreement and the Purchase and Sale
Agreement set forth and constitute the entire agreement and understanding
between the parties with respect to the subject matter hereof, and supersede any
and all prior agreements, understandings, promises and representations, whether
oral or written, between the parties with respect to the subject matter hereof.
This Agreement may not be released, discharged, amended or modified in any
manner except by an instrument in writing, making specific reference to this
Agreement, and signed by the duly authorized representatives of both parties.
10.2 Relationship of the Parties. This Agreement shall not create an
agency, partnership, joint venture, or employer/employee relationship between
the parties, and nothing in this Agreement shall be deemed to authorize either
party to act for, represent or bind the other.
10.3 Assignment. Grantor may assign its rights and obligations under
this Agreement, provided that Grantor shall remain liable for all obligations
hereunder unless expressly released by RailCom. RailCom may assign or pledge its
rights under this Agreement provided, in the case of such assignment or pledge
(including, without limitation, the conveyance of any interest in the easement
granted herein), (i) the assignee expressly assumes RailCom's obligations under
this Agreement, (ii) Grantor's rights under this Agreement are not diminished
thereby, and (iii) RailCom is not released from its liabilities and obligations
hereunder, and remains fully liable therefor.
10.4 Choice of Law. This Agreement shall be deemed to have been
entered into in the State of Florida, and its interpretation, construction, and
the remedies for its enforcement and breach are to be applied pursuant to and in
accordance with the laws of the State of Florida. The venue for any litigation
arising out of this Agreement shall be Duval County, Florida without regard to
its conflicts of law rules.
10.5 No Waiver. No waiver of any right under this Agreement shall be
deemed effective unless contained in writing and signed on behalf of the party
charged with such waiver, and no waiver of any right shall be deemed to be a
waiver of any future right or any other right arising under this Agreement.
Except as expressly provided herein and in the Purchase and Sale Agreement, all
rights, remedies, undertaking, obligations, and agreements contained in this
Agreement shall be cumulative and none of them shall be a limitation of any
other remedy, right, undertaking, obligation, or agreement.
10.6 Headings. Headings in this Agreement are included for ease of
reference only and shall have no legal effect.
10.7 No Interpretation Against Drafter. Each party has participated
fully in the negotiation and drafting of this Agreement,and any ambiguities in
this Agreement shall not be interpreted against either party.
7
8
10.8 Notices. Any notices permitted or required under this Agreement
shall be in writing and shall be deemed delivered upon personal delivery, or
upon the expiration of three (3) business days following sent by registered or
certified mail, postage pre-paid; or upon the expiration of one (1) business day
following deposit with overnight courier; to the addresses set forth below or to
such other address in the United States that the party may hereafter specify:
(a) To Grantor:
William P. Coffing, Jr.
Assistant Vice President
CSX Real Property, Inc.
Suite 100
6737 Southpoint Drive, S.
Jacksonville, Florida 32216
with a copy to:
Mark S. Hoffmann, Esquire
General Counsel
Law Department
CSX Transportation, Inc.
500 Water Street
Jacksonville, Florida 32202
(b) To RailCom:
Eugene Martini, Executive Vice President
RailCom, Ltd.
1819 Peachtree Road, Suite 315
Atlanta, Georgia 30309
with a copy to:
Kevin R. Armbruster, Esquire
Cushing, Morris, Armbruster & Jones
2110 Peachtree Center
Cain Tower
229 Peachtree Street Northeast
Atlanta, Georgia 30303
10.9 Recordable Documents. If requested by RailCom, at RailCom's sole
cost, Grantor agrees to execute a separate, recordable Short-Form Notice of
Easement, in the form attached hereto as Exhibit B, as to each Location, subject
to there being a legal description approved by Grantor for each such Location,
as more fully provided in Paragraph 2.1 of the Purchase and Sale Agreement.
10.10 Vendor's Lien. This Agreement and the conveyance described
herein is subject to a vendor's lien to secure RailCom's repayment of a
promissory note from RailCom to CSX Realty Development Corporation (as designee
for Grantor) of even date herewith in the principal amount of $18,480,655 (the
"Note"). Such vendor's lien shall remain in full force and effect until the Note
is paid in full.
8
9
The parties have executed this Agreement as of the date first written
above.
Witnesses: CSX REALTY DEVELOPMENT CORPORATION,
a Georgia corporation
_____________________________
Printed Name: By: /S/ Patricia J. Aftoora
---------------------------------------
_____________________________ _______________, Vice President
Printed Name:
(CORPORATE SEAL)
THE THREE RIVERS RAILWAY COMPANY,
a Pennsylvania corporation
_____________________________
Printed Name: By: /S/ Patricia J. Aftoora
---------------------------------------
_____________________________ _______________, Vice President
Printed Name:
(CORPORATE SEAL)
THE ATLANTIC LAND AND IMPROVEMENT COMPANY,
a Virginia corporation
_____________________________
Printed Name: By: /S/ Patricia J. Aftoora
---------------------------------------
_____________________________ _______________, Vice President
Printed Name:
(CORPORATE SEAL)
WINSTON-SALEM SOUTHBOUND RAILWAY COMPANY,
a North Carolina corporation
_____________________________
Printed Name: By: /S/ Patricia J. Aftoora
---------------------------------------
_____________________________ _______________, Vice President
Printed Name:
(CORPORATE SEAL)
GAINESVILLE MIDLAND RAILROAD COMPANY,
a Georgia corporation
_____________________________
Printed Name: By: /S/ Patricia J. Aftoora
---------------------------------------
_____________________________ _______________, Vice President
Printed Name:
9
10
(CORPORATE SEAL)
RICHMOND, FREDERICKSBURG AND POTOMAC RAILWAY
COMPANY, a Virginia and Delaware corporation
_____________________________
Printed Name: By: /S/ Patricia J. Aftoora
----------------------------------------
_____________________________ ____________, Vice President
Printed Name:
(CORPORATE SEAL)
RAILCOM, LTD., a Georgia corporation
_____________________________
Printed Name: By: /S/ Wilds L. Pierce
----------------------------------------
_____________________________ ____________, President
Printed Name:
(CORPORATE SEAL)
10
11
STATE OF _________________
COUNTY OF ___________________
The foregoing instrument was signed, sealed and delivered in my
presence this _________ day of _______ ____, 1996 by___________________________,
the __________________ President of CSX REALTY DEVELOPMENT CORPORATION, a
Virginia corporation, on behalf of the corporation. He/She / / is personally
known to me or / / has produced______________________________ as identification.
(type of identification)
_____________________________
Print Name:
Notary Public, State of ______ Commission Number: ________________ My
Commission expires: ______________
STATE OF _____________
COUNTY OF _______________
The foregoing instrument was signed, sealed and delivered in my
presence this ________ day of ________, 1996 by ________________________,
the ________ President of THE THREE RIVERS RAILWAY COMPANY, a Pennsylvania
corporation, on behalf of the corporation. He/She / / is personally known to
me or / / has produced ________________________________ as identification.
(type of identification)
_____________________________
Print Name:
Notary Public, State of ________ Commission Number: ______________ My
Commission expires: ______________
STATE OF _____________
COUNTY OF _______________
The foregoing instrument was signed, sealed and delivered in my
presence this ________ day of _______, 1996 by ________________________________,
the ________ President of THE ATLANTIC LAND AND IMPROVEMENT COMPANY, a Virginia
corporation, on behalf of the corporation. He/She / / is personally known to me
or / / has produced __________________________________________as identification.
(type of identification)
_____________________________
Print Name:
Notary Public, State of ________ Commission Number: ______________ My
Commission expires: ______________
STATE OF _____________
COUNTY OF _______________
The foregoing instrument was signed, sealed and delivered in my
presence this ________ day of ________, 1996 by _______________________________,
the ________ President of WINSTON-SALEM SOUTHBOUND RAILWAY COMPANY, a North
Carolina corporation, on behalf of the corporation. He/She / / is personally
known to me or / / has produced ______________________________as identification.
(type of identification)
_____________________________
Print Name:
Notary Public, State of ________ Commission Number: ______________ My
Commission expires: ______________
11
12
STATE OF _____________
COUNTY OF _______________
The foregoing instrument was signed, sealed and delivered in my
presence this ________ day of ________, 1996 by ______________________________,
the ________ President of GAINESVILLE MIDLAND RAILROAD COMPANY, a Georgia
corporation, on behalf of the corporation. He/She / / is personally known to me
or / / has produced ____________________________ as identification.
(type of identification)
_____________________________
Print Name:
Notary Public, State of ________ Commission Number: ______________ My
Commission expires: ______________
STATE OF _____________
COUNTY OF _______________
The foregoing instrument was signed, sealed and delivered in my
presence this ________ day of ________, 1996 by _____________________________,
the ________ President of RICHMOND, FREDERICKSBURG AND POTOMAC RAILWAY COMPANY,
a Virginia and Delaware corporation, on behalf of the corporation. He/She / / is
personally known to me or / / has produced ____________________________________
as identification.
(type of identification)
_____________________________
Print Name:
Notary Public, State of ________ Commission Number: ______________ My
Commission expires: ______________
STATE OF ______________
COUNTY OF _____________
The foregoing instrument was signed, sealed and delivered in my
presence this ________ day of ________, 1996 by _____________________________,
the _______ President of RAILCOM, LTD., a Georgia corporation, on behalf of the
corporation. He/She / / is personally known to me or / / has produced __________
as identification.
(type of identification)
_____________________________
Print Name:
Notary Public, State of ________ Commission Number: ______________ My
Commission expires: ______________
12