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HomeMy WebLinkAboutNCG140106_Name-Owner Change Legal Doc_20220531Company Use Only File No. oe-076.2040 AC: t000S58 ASSIGNMENT OF AGREEMENT AND CONSENT This ASSIGNMENT OF AGREEMENT AND CONSENT (this "Assignment and Consent") is made effective as of the 31st day of March, 2022 ("Effective Date') by and among ARGOS USA LLC, a Delaware limited liability company ("Existing Licensee" or "Assignor'), HOLLINGSHEAD MATERIALS, LLC, a Tennessee limited liability company ("New Licensee" or "Assignee), and NORTH CAROLINA RAILROAD COMPANY, a North Carolina corporation ("NCRR" or "Consenting Party'). RECITALS WHEREAS, Assignor, as Seller, and Assignee, as Buyer, are parties to that certain Purchase Agreement that is set to be closed on March 31, 2022, where Assignee agrees to purchase certain assets and property of Assignor; and WHEREAS, NCRR and Assignor executed that certain License Agreement dated June 1, 2002 that includes a First Supplemental Document dated March 22, 2011, (the "License"), and incorporated by this reference, and attached hereto as EXHIBIT A, for the property as described in the License ("Premises"); and WHEREAS, Assignor has agreed to assign, and Assignee has agreed to assume, the License and all rights, obligations, covenants, duties and responsibilities arising therein. AGREEMENT AND CONSENT NOW, THEREFORE, in consideration of the foregoing recitals, which are incorporated herein, the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each party hereto Assignor and Assignee hereby agree, and NCRR consents, as follows: 1. Transfer and Assignment. Assignor hereby transfers and assigns to Assignee, and Assignee assumes all of Assignor's rights, obligations, covenants, duties and responsibilities under the License with the following modifications: (a) Notice provisions to Assignor in the License shall be deleted and replaced by the following notice address for the Licensee: Hollingshead Materials, LLC 1136 2nd Avenue North Nashville, TN 37209 Attn: J. D. Kious, General Counsel 2. Terms of License shall Control. Except for those terms expressly defined in this Assignment and Consent, all initially capitalized terms will have the meanings ascribed to them in the License. In the event of any conflict between the terms of the License and this Assignment and Consent, the terms of the License shall control. 3. NCRR's Consent. NCRR hereby consents to the Assignment and Consent upon the conditions contained in this Assignment and Consent and in the License. (a) As of the Effective Date, Assignor shall not be in default of any obligation under the License, monetary, lapse of insurance coverage or otherwise. (b) Assignee shall assume all of Assignor's rights and obligations under the License and shall be jointly and severally liable with Existing Licensee for all obligations under the License. (c) Assignee shall provide to NCRR proof of the insurance required in the License. (d) Following this assignment, Assignee shall be responsible for all License related annual fees. 4. Authority. Each party represents that each is fully authorized to execute this Assignment and Consent and has received all necessary permissions and approvals, if any, necessary to enter this Assignment and Consent. 5. Entire Agreement. This Assignment and Consent contains the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements with respect thereto. 6. Governing Law. This Assignment and Consent shall be interpreted and enforced in accordance with laws of the State of North Carolina (without regard to the principles thereof relating to conflicts of laws). Neither this Assignment and Consent nor the License Agreement shall be recorded. 7. Counterpart Execution. This Assignment and Consent may be executed in counterparts, each of which will be deemed an original document, but all of which will constitute a single document. This document will not be binding on or constitute evidence of a contract between the parties until such time as a counterpart of this document has been executed by each party and a copy thereof delivered to the other party to this Assignment and Consent. The facsimile signature of a party is and shall be deemed to be an original execution and is binding. [SIGNATURES FOLLOWING] AFFIRMING THE ABOVE, the parties have executed this Assignment of Agreement and Consent as of the Effective Date. EXISTING LICENSEE/ASSIGNOR: ARGOS USA LLC, a Delaware limited liability company By: Name: Richard Edwards Title: Vice Proident NEW LICENSEE/ASSIGNEE: HOLLINGSHEAD MATERIALS, LLC, a Tennessee limited liability company By: # Name: Title: COMPANY/CONSENTING PARTY: NORTH CAROLINA RAILROAD, a North Carolina corporation rNJ By: �� Name: Title: Y�� ��• MQLft&cc EX_Mrr A �XCENSE AGREEMENT Company Use Only NCRR File No. o_e-076+2040 AC: t0002558 ASSUMPTION OF AGREEMENT AND CONSENT This ASSUMPTION OF AGREEMENT AND CONSENT ("Assumption and Consent') is made effective as of the __T_ day o 2018 ("Et%etive Date") between ARGOS USA, LLC, a Delaware limited liability co any ("New Licensee), and successor by operation of merger to Southern Equipment Company Inc. (the "Existing Licensee") and NORTH CAROLINA RAILROAD COMPANY, a North Carolina corporation ("NCRR" or "Consenting Party'). RECITALS WHEREAS, SOUTHERN EQUIPMENT COMPANY, INCJdba READY MIXED CONCRETE, a North Carolina corporation ("Original Licensee"), as merging entity, and New Licensee, as the surviving entity, merged as corporate entities per those certain Articles of Merger filed with the North Carolina Secretary of State and the Delaware Secretary of State on July 1, 2016 ( the "Mergers") wherein New Licensee acquired by virtue of the Mergers, certain assets and property of Original Licensee (the "Premises" ); and WHEREAS, NCRR and Original Licensee executed that certain License Agreement dated June 1, 2002, as amended by that certain First Supplemental Document to License Agreement dated as of March 22, 2011, (the "License'), and incorporated by this reference, and attached hereto as EX MIT A, for the Premises as described in the License; and WHEREAS, by operation of the Mergers, New Licensee has agreed to assume, the License and all rights, obligations, covenants, duties and responsibilities arising therein for that certain property as noted in the License (the "Premises"); and WHEREAS, NCRR is willing to consent to the assumption upon the express conditions set forth below. AGRkEA E1!!►T AND CONSENT NOW, THEREFORE, in consideration of the foregoing recitals, which are incorporated herein, the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledge by New Licensee and NOt con;;;, as follows: 1. Transfer and Assumption. New Licensee assumes all of Original Licensee's rights, obligations, covenants, duties and responsibilities under the License with the following modifications: (a) Notice provisions to Original licensee in the License shall be deleted and replaced by the following notice address for the Licensee (for booth notices and invoices): Argos USA, LLC 3015 Windward Plaza, Suite 300 Alpharetta, GA 30005 Attn: US Land Manager 2. Terms of Lleense shall Control. Except for those terms expressly defined in this Consent, all initially capitalized terms will have the meanings ascribed to them in the License. in the event of any conflict between the terms of the License and this Assumption and.Cousent, the terms of the License shall control. 3. Effective Date. This Assumption and Consent shall be considered effective on the date noted above. 4. NCRR's Consent. NCRR hereby consents to the assumption upon the conditions contained in this Assumption and Consent and in the License. (a) As of the Effective Date, New Licensee shall not be in default of any obligation under the License, monetary, lapse of insurance coverage or otherwise. (b) NCRR's consent is predicated on receiving all requested information from New Licensee (including, but not limited to, corporate documentation, insurance certificates, etc.) and said information provided by New Licensee being true and correct in every material respect. NCRR shall determine the eligibility of New Licensee based on such information in its sole and absolute discretion. (e) NCRR's consent shall not be effective unless all parties have executed and delivered this Assumption and Consent. (d) New Licensee shall assume all of Original Licensee's rights and obligations under the License and shall be jointly and severally liable with Existing -Licensee for all obligations under the License. (e) New Licensee is respona'ble for the annual payment of the License Fee (as defined in the License) which is due and payable on June 1, 2019, and every year after, and invoiced by NCRR the month prior. New Licensee acimowledges and agrees that NCRR K will not be effecting a reconciliation and all monetary reconciliation will have been be completed exclusively between Original Licensee and New Licensee during the merger. (f) Contemporaneously with the execution of this Assumption, New Licensee shall provide to NCRR proof of the insurance required in the License. The insurance previously obtained by Original Licensee is not transferable or assignable. New Licensee shall obtain the -required insurance, including paying any risk finance fee, as outlined in the License. (g) Following this assumption, New Licensee shall be responsible for all annual fees, if any, owed to the NCRR as set forth in the License. 5. Effect of Assumption and Consent. This Assimnption and Consent does not modify any of New Licensee's duties and obligations under the License (except as noted herein), all of which shall remain' in full force and effect. New Licensee represents and warrants to NCRR that NCRR's consent to the Assumption shall not be deemed to (i) operate as a waiver of any provision or condition of the License, (ii) modify any provision or condition of the License, or (iii) operate as a consent to any subsequent Assumption of the License, as to which NCRR's further written consent must first be obtained. 6. Acknowledgment by New Licensee. By its execution of this Assumption and Consent (a) New Licensee acknowledges that it has read and hereby confirms the terns, provisions and oonditfons of the License and ' (b) New Licensee agrees to the terms and conditions of this Assumption and Consent and of the License. 7. Authority. By its execution of this Assumption and Consent (a) Each party represents that each has received all necessary permissions and approvals, if any, necessary to enter this Assignment and Consent; (b) Assignee acknowledges that it has read and hereby confirms the terms, provisions and conditions of the License, and (c) Assignee agrees to the terms and conditions of this Assumption and Consent and of the License. 8. Binding Effect. This instrument shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors and assigns. 9. Further Assurances. Each party shall take such futher actions and enter into such further conveyances and document as may reasonably be required in order to effect the provisions and intent of this Assumption and Consent. 10. Entire Agreement. This Assumption and Consent contains the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements with respect thereto. 11. Governing Law. This Assumption and Consent shall be interpreted and enforced in accordance with laws of the State of North Carolina (without regard to the principles thereof relating to conflicts of laws). Neither this Assumption and Consent nor the License Agreement shall be recorded. 3 12. CommUrpart Eaecation. JMe Assumption and Count may be exmuled in o0runberparts, eacb of which will be deemed an original document, but aU of which will constitute a single document. This document will not be bWiag on or constitute evidence of a contract between the parties until each time as a counterpart of this document bas been executed by each patty and a copy thereof delivered to the other party to this Assumption and Consent, The facsimile signature of a party is and shall be deemed to be an original exeartion and is bbWiT,& AMRMING THE ABOVE, the parties have executed this Assumption of Agneememt and Consent as of the Effective Date. NEW LICENSEE: ARGOS USA, LLC, a Delaware limited liability company By. — Name: Mark Prybylsld Title: Semetary and General Counsel COMPANY/CONSRNTING PARTY: NORTH CAROLINA RAILROAD, a North Carolina emparation By: — Name: _ 7� �CA Title: roald v r A- % ef- Ah 4 Radhwd the Oafy NS TUM1 slfon Na 49364 NCRR Fde No o_W642040 M Now Activity No, 1043706 AG: TOODOC+�o NORTH CAROUNA COUNTY OF CRAVEN V-XBIBIT A LICENSE AGREEMENT 1,1CFASK AGREEMENT THIS AGRE MENT, made and entered into this 1st day of June, 2002. by and b@lwom NORTH CAROL INA RAILROAD COMPANY, a North Carolina corporation, hcrdmf* styled Company; SOUIUM EQUIPMENT COMPANY. INC.. a North Carolina oespmorion, DBA RVADY MIXED (.*ONCWM herchwitur styled Licensee; and NORFOIX SOU11111?RN RAILWAY COMPANY, here1=fter sl)4ed "NSR": X111NM2SSElIf. THAT the PARTIES 11FRFT0. for and in consideration ofthe covenants hereinafter made. agree as follows: ARTICLE L Company. insofar as its right, title. and interest enables it so ludo, and without wanamty and subject to all encumbrances, covenants and casements to which CompaWs title may be subject, hereby grants unto 11censee the right to occupy and on for the purpose or purposes hereinafter mentitmed: The nonexclusive right to use and occupy, for the purpose or purposes hereinafter descnbed, that certain reel property of the Company. located at Milepost e-076 plus 2,040 feet and consisting of 110,000 square feet, more or las% said real property being morn particulmly described on Xxlft t A. dated August 1, 20DI, attached hereto and incorporated herein by this reference (hereinafter "Lend"), togthw v►dth the right to occupy and maintain existing conete plant, including binkinS was and fence (heWwafier "Improvements"), said Improvements being constructed, operated and maintained at i,ieemeee's expense In such a manntr as will not interfere with the operatiorm of Company nr endanger pennons or pi of Company. and in accordance with (a) plemm and specifkoh ms (if any) shown on Amu !M Ll. attacked hereto and Incorporated herein by this reference and any other specifications prescribed by Company, (b) applicable govettal regulathmv or laws. and (c) applicable specifications edupted by the American Railway Enginecting Association when not In conflict with plans. specifications or regulations mentioned in (a) and (b) 'above. The Land and Improvements are hamin collectively mfan W to as the "Premises." During the term of ibis Agreement, the Improvernerts eonsltuded by licensee shall not becinme a fixture(s) upon the realty, but shall remtain the laopmty of Licensee. Company reserves unto Itself. and its permiltees, the permanent right to maintain, operat% renew, or reoomstMcl upon, undcr, or over the Premises, any existing or fiuure pipe, electric transmission, telephone, Idegroph, signal lines, package. or any other facilities. Licensee agrees that its occupation and Far+ W X00211Wnyr_ wp ZM414 WORD 212434 the"f may have to use any road or hhghway, or portion tbereof. which may be located upon or which may traverse the Prenrim. ART1C1.> 2. 1.10eascc will use the Pamins for the purpose of storing gravel, mixing concrete and parldog in connection with Licensee's ready mix business, in accordatwx with this l.itetnse Agreement and for no other purpose withom the written consent of Camp my. The premisee shell be a private parking eras for the use and convenience of Licensee, its agents, employees. patrons and invitees only. and is not intended as a parking aura for Wo use of the public In general, and to the end of pmventigg the use of the Premises for a public parking area, l.iceum even that it win, a1 its own oast and expense, eonamd and maintain during the life of this License Agreement upon the Premises, at a location to be approved by Company, a signboard clearly indicating that tho parking area is for the private purposes of licensee. L.ieertcee further agrees that no gasoline or other flu amble liquid shell be stored or handled upon the Ftemim (ettcept fuel in furl tanks of vehicles parked lbereon) in accordance with this Liceatsa AVUUM ttt and for no ether purpose without the written consent of Company. TWs license is a personal privilege to Licensee and shell not be amdlpcd without the written consent of Company, nor alias Lioanoee, except with such written consent, permit the Premises to be used for any pmpose by my other ply, finn e lion. ARTICLE 3. Licensee will pay an aontel fee to Company of ON&TE OUSAM F01M41UNURED THIRTY-SEVF.N DOLLARS (SI,437.00). payable annually in advance, bghming as of the Id day of Jume, 20M. which is the affective date hereof The amount of the annual foe will increase each year by three percent (3%), the effective date of which is the anniversary date of the effective date of this Licaruaa A memant, unless Llcaeaor and Licensee agree to a greater amount or this License Agreement is terminated by either parry. If Licensee shall dellsult in the payment of rental or other sums dare hereunder, for a period of 30 days viler the sauce shell be due, a late paymennt charge in the amount of Twenty -Five Doll= (S25.00) of sash t+etn or other No; duo for each month or portion thereof dim the same shall remain unpaid shall be charged to Licensee. Licensee will pay such late payment Charge together with she rental and odrer suns duo hereunder. If Company cancels or terminates this agreement for any reason except default of Licensee. Company shall ref cad to lAcenaee its pro rate portion of roast paid far the unexpired period. but if company cancels or terminates because of default of I.ioerrsee, then ['.ompasy may retain the rest paid for the unexpired period as damages. ARMW 4. Licensee will pay to Company wkWo thirty (30) days of imroico therefor amounts sufl'rcicnt to cover all taxes, license fees. or other Charger asaassed or levied upon the Premises or because of the property of Licensee or the business conducted by Liomwee upturn the Premises. Licensee will also pay to Company within thirty (30) days of invoice therefor i m mu sufficient to cover all assessments or charges made against rho Premises or against Company as owner of the Premises for at" or sidewalk paving or other public impnnimcnis. Al the option of Company, I.hoetnsec shaft pay Company for such taxes, license fees, charges amd assessments either in lump sums or In annual installments upon demand by Company. AH'!'1CLE 1, Licensee will not change, alter or modify the 14emisea, including any change in grade, and specifically shall not construct or install upon the Anemises any buildings, struchm, or improvements. unless specifically permitted hereby or by written consent of Company. I.k ertsee will rat make any attentions in, additions to. or nopmvemetrts to the premises or any improvements thereon, or the appurtenances thereto, of any kind whatsoever, without the written cunscmt of Company being rust obtained. Company Shan have no obligation to fnraish to Licensee any water, heat, light, or adw public utilities for use by Licensee in Licensee's occupation and use of the Premises and any improvements thereon. Any alterations of or addilkma to the I'mmiees and any improvements dmeon to supply such Udlities which may be :Wade by l.ioerrsee with the Consent of Company shall be of character and deafp approved by Company and shall be installed and maintained at the expense of L.icerme and In accordance Form No. N0021tWoyl. WP 2M 14 WORD 212434 �I with the supiremerns of Company as to proper intreailation and constncion, Lioew4sea ageing to pay all expenses and charges for such utilities and to install separate matets necessary in o mtectioa therewith. Any alterations of or additions to the electric light or power wires or fim m Van the Prennises and any impovaaews thereon which may he made by Licensee with the consent of Company sha11 be made in strict accord with the requirements of the National Electrical Cade and at the expanse of l,laersee. Licernne, while in Possession hereunder. shall amply, and cater its agents, employers, contredars and invheed to comply. with all such reasonable rules and regulations as may be proscribed by Company looking to the prevention of fine and compliance with insurance contracts and policies. AR17CL E A I.ieeasea shall obtain all permits, certificates, licenses, arld euthariz atom acquired by any govartmnettal sutbority Tor its use and occupancy of the Premises and any improvements thareon. is its oonatrutnian, lnahtamanoe, operation, use and oecrpamty' of the Premises and any improvements thuteaa. to the cxkxd sueb activity is permitted haraunder. Liansec win amply with the requirements of all Wand, state, and local safay, health. environmental, and sanitation laws, mb"6 teguladorts. and archness, and, all at its own expanse make oil oorrcclious, repairs, or additions to the Premises or the improvements lint eon which are necessary to ensure compliance with such laws, rules, eegulationsr, and ordimanas ARTICLE 7. Licensee will voastruct and maintain the Improvements, at its expense, in such manner as will trot interfere with operations of Company or asdanip persons or property of Company. and in accordance with (s) the plans and specifications anselted Lento and any a tim specaGcations prescribed bY.Company. (b) applicable resalatiaas prescribed by statute or by governmental authority, and (c) appliezble speeillemions of she National Elecideai Safety Code when not in conflict with pions, 4"N ific odons or regulations mnmtics W in (a) and (b) above. All improvements shall be kept in good repair ad presentable condition. and shall not be modifred, roloralml or otherwise shared esAq* with the written consent of Company. Licensee will be responsible for an snow and ire remm al and will keep the Premises in safe, class and sanitary condition, free of wane, trash, car unseniuq or flammable matter, and preveur the posting of advertising bills or. signs upon the Premises, except for any signs expraWy approved herein. AR97 Ll j, licensee shall pay within thirty (30) days after notice, satisfy, and discharge all claims, judgments or liars for material "or labor, turd or empioyed by Licensee or its agents in the Construction, repak maiatemauce, at removal of any buildings or strueiena located upon the Premiare, whether lire buildings or stmetums-shall, under the temps of this agreement. be the property of Company or Lice nsocti and it.ioensee shell indemnify and save harmless Company, its officers, agents and employees, horn all such claims, judgments, liens, or demands whatsoaver. Such indemmnity shall survive The expbWoo or termination of this Agreement. @ gnm 9. (a) Ptiurto entry on the premises and/or commencement of use, occupancy, consinnion, maintenance or repair of any improvements thereon. to the efteal amch activities an pCumilted hereunder, l iennsee shall procure and thereafter maintain a policy of general liability insurance, eantainias products and completed operations mud etmbactual liability a►4waM with a combined single limit of oat less than $1,000.000 and oacutrance. Said policy(les) shall none Company as an additional insured. (b) Prior to entry on the Premises and/or eommetncerneal of asc, occupancy, construction, mahnteamm or repair of any improvements thereon, to the extent such activities am permitted hereunder, Licensee shall procure sad thereafter maintain a Railroad protective Liability Insurance Policy with Company as the named insured having a e:wnbbwd single limit of S2,000.000 each oecnneenct and Sb,Ot>tf.000 aggregate. tram No. NMRWsyL W P 206414 WORp 21243a (e) 76e isonan ce required herein shall be of such form and eometu as may be acceptable to Corupamy. Evidence of such insurance (a certificate of insurance far the general liability insurance policy and the original policy Of Railroad Protective Liability hatmanca) must be ittmtisited to and Vp vved by COatpany, prior to entry on the Promises audlor oommoncemeat of use, occupancy, eonabttetioa maintenance or repair of any improvements therean, to the extent sea activities am parmillod hateunder. The iassamcc required hatcle shell not Omit the liabilityassunted by the Liceasse under this Agreement. ARTICI&A As used hereln. "Ifasardous Materials"shall mean any chemical subatattcos, sabostus or asbustowcontoning materials, fatmaldehyde, polyiehk tided bipheayb petroleum or petroleum products or any toxic, carcinogenic, tadioaetivc, dangerow or bazardous material, substance, waft contatmittent, Or pollutes! regulated now or Walter by any federal, state or local stanme, law, ordinance, cads, salts regu�son, order mr decree. Liecroses shall not causc peamit or allow any If ordous Materials to be placed, rioted, dumped, dispensed. relcased. dissbarged, used. sold, trmspotted, or located on or within any portico of the Premises by Ucerssac or Licensee's egeks, mccucess, atalgmeeut, tenants, sublerma. offices. directors, members, partners, principals, empicyees. unwgs, convectors, subcomtmcim, invites, guests or others subject to Lieemaca's tmpervision, direction or control. Lietsn w agrees to give CAUMPSMY pmampt written notice of any discovery, discharge, release or threatened discherp or threatened release of any Hazardous Materials on or about the Premises. Lioenseo agrees to promptly close up any Hazardous Materiels which ere placed, stored, dusuped, dispostxl, nAmmed, d wkged. used, sold, transported or located on or within any portion of the Premises by l icartsee, or Lietmaee's agents, Ip0e6e0:4, assignees, 6e=96 eubtenamts, oflioers, directors members, patlnvrs, principals, Smployegs. sw4ftte. oonlmdoes, suboantrae tors, mvrtees, getasta or Others subject to Licensee's supavnia% direction or control, and to eesmodiste end remove any such contamitmtion relating to the •Premises, at its arst and expense. in compliance with all applicablo laws. ordinance!, toles or regulations then in effect, st no cost Or 090M to Company. Liccosee sVm to defend, indemrdtly and hold Company barmlass from and against any and all claims, demand:, )udgmenS, dumages, actiama, causes of action, bduries, oosis of my clean-up or mmediwiou, adrministrative Orders, omnae w agreements and orders, Itabilltias, titres, penalties, costs. atronreVs fees, eotsultwWo farts and expenses proximaicly cayse:d in whole or in part by the existence on or about the Premises of Hazwdous Materials if and to the cam such llazardou: Materiels am placed, stored, dumped, disposed, whased, dischargal. uard, sold, transported or located on or within any portion of the Promises by Lioemaem or Licensee's agents, liconsea , assignees, tenants, subteutants, offices. directors. members, partners, principals, employees, servants. contraaoa, nbcwtm oM invit+xs, guests or 01bM subject to Licensee's supervision, direction or coattol, The obligations of Lioensce in this Aidele 10 shall survive the expiration or caller lamination of this License Agmetognt and shall apply regardless of awieseeoce or negligence or allegations therwon the part of alther party. Licemsee understands that Company tuakes no warranties or representations regandimg the condition of or title to the Premises. Moo= takes the Peataieos -AS 111" and expmoly waives any and all claims againat•Compnsy relating to or arising from the condition of or till* to the Promise and the property surrounding the premises, including without limitation, airy claims and costs relating to cammmeatal contamin�tion under any appiicmbie laws (such as, without limitation, time which taigM arise under CERCi.A, RCRA, said the North Canopus (XI Pollution and llawd= Substances Act). eR Wt t 1. Tha liability of the parties to this agreement, U bctweca themselves, for death, personal injury, and property loss and damage which occws on or about the Premises during the tam of this agreement or which otherwise acean by reason of, or. arises out of, or Is Incidental to, the use of oecupeacy by Lim of the: Premises covered by this agromat, shall be determined in accordance with the following provisions regardless of considerations of fault or negligam: Anm No. M-11tweyl. WP 206414 WORD 2124]4 (a) Ucansee shall be solely respcwslble for, and shall bar all Ilnbilhty, claims, loss, damage, expense (inak diag atle nwYs fees) or etsts for loss of or damage to property and/or personal Wury (including death) resulting from fire; (b) Licensee shall be solely reaponeble for. and shall beer all liability, claims, foss, damage, expense (including attorneys fees) or costa for loss of or damage to property and/or personal injury (including death) which occurs on or about the Premises during ilia teem of this apteunm W which otherwise occurs by resroo of, or arises out of, or is incidental to, the use or occupancy by Ucetsw of the Premises, unless such leas, damage or injury shall bt causal solely by the negtigemce of company. (e) Lieaosee hereby agrees to indemnify and save harmless Company. its ofrmn, apyertts and employees, Jim and against any and a" liability, claims, loss, damage, expense (Including attomeya fees) or cis Gar personal injuries (including death) and/or p gmty damage to whomsoever or wllatsoevcr armed and undt3 u*m by Licensee in this Article 11. 'ibis isdemmily shall survive arty expiration or termination of this Agrecmew. (d) Knowledge on the pan of Comparsy of s continuing violation of the teems of ibis agreement by Licensee shell wnslitute neither an omission nor acquiescence an the pad ofCompany, and shall in no event relieve l.foe:asae of arty of the responsibilities imposed upon l.icensae hereunder. Al LIM 12, (a) In connection with Ida Ow of the Promises covered by Wks agreement, Licensee agrees to observe and be bound by the rules of the Company with respect to standard elearoam for all railroad uncles located on or adjacent to the Premises covered by this agreement; do is to say, the lJo a me agtm to maintain and preserve an overhead space of 23 fed measured perpagdreularly from the top of the rail (except that ovrrbead cleatence where wire -lines extend over said tracts ahahl be such as may be prescribed by the Cnnepiny) and a space of IN feet in width, measuued 9 feet on each side hem the centerline of said track; provided, however, that the sW clearance of 9 feet mast be imaeased one and one-half (1-1/2) inches for every degtae of curvatum which space shall be crept cleat of my obstruction whatever, including but not Waited to, all via& cs, facilities, or propntty of the Licensee which are at may be placed or at ec ted above or parallel to Bald oasis. tb) Notwithstanding anything contained In ibis agreemcm, and inespective of any joint or amcutrimg ttegligrnce of Company. Liaises shall assume We respmnsibRity for and sball indemnify, save harmless, and defend Company, its of%ms, agents and employees, from and against ail calms, actions, or legal proceediogs.arisimg, in whole or in part, from the failure of Licenses to amply with any elewance ree Imments act forth in ibis agreea►ext. In this conneotkak it is specifically understood that knowledge on the part of Company of a violation of any shah clawasoo requirements, whether such knowledge is actual or implied, shall not constitute a waiver and shall not relieve Lioea9ee of its obligations to indemnify Company for losses and claims resulting hom any such violetion, Al1`TICLB 13. In the event that this whole or any part of the Promises occupied by Uoensce hereunder shall be taken for any purpose under the power of eminent domain, Licensee, except as hereafter provided, Anil not be entitled to Am in any award resulting dean any such tddng, nor d a)h Licensee have any chdra against the Company for any expense which may be incurred by Licum as a result of such taking or as a resuh of termination of this agreement by reason of such taking, w kwrainaller provided. ltlotwithstantling the foregoing. Lieu WWI be entitled to seek compensation firm the ennndcmning authority for the value of the improvements of Licenses located an the Premises; it being undexatood by licensee, however. that Licensee shall so be entitled to slave with the Licensee ensee in city portion of an award related to the value of Licmae A license interest in the area condemned. In the evem r Fenn Nu. NDl12RW&Yl, wP 2D641d WO1tD 212434 t,! that the taking shall be of the whole of the property herein occupied by P.iecnsce or of such part as shall *der the Premises untenantable for the uses at each limo made of the Premises by the licensee, that iris aVwmm d and all sights and iNermu acquired hrremrader :ball terminate as of the date of the vesting of title to the p vpMy in the emndenuting sud a ny. and in so evert shall Licensaa have any claim for rho Wino of any nme hed pariod of this agreement. provided, however, drat.' sobje t to any claims of Company under other provisions of this agtecmcak Company will aef tud to Licensee its pro rats portion of rat paid for the unexpired terns, as provided in Article 3 hereof ARTICI 14 'Phis agreement shall continue in eilbo home the date berainabove act forth until Uoenaee's dghts hcrounder Oro terminated by either party upon thirty (30) days written notice to the Other patty. Oxcept that if Men= shell default in the payment of rentsh. or violate airy odor covenants herein. Company may termitate Licensee's dgbls under this agreement by 10 days' written notice to Licensee of election so to do; service of such notice to be made either (a) by delivering a aW of the notice to Licensee, or (b) by mailing the some to or leaving it at the hest known address of Licensee and posting in any conapiarous plow upon the Promises. Any indemnities contained in this Agreement shall survive the expiration or temtinadon of tks Agreement. Neither this Agteetawl nor the COlumm may be assigned in whole or in part by Licensee, and l.icensue shall not enter into any sublicense or sublease of the Pmatisca. AR7ICLE IS - (a) Within five days of giving or mcciving notice of tettainadon of Licensee's rights unda this agreement, Licensee aball furnish Company with a written certification that the Renisee have not been contaminated by Licensee's operations, or if a condition of conlamicetion exists or is believed to exist on any pan of the Premises, P.ie:emme :ball give written notice of that fact to Company, and Liexalsee shall pmmtpdiy eliminate said condition. (b) Upon the expiration or termination of Limon's rights under this agreement, felr wbatcvcr cause. I.ioealsec will vacate the rrcrnises immediately, remove all personal property and improvements owned by or placed thereon by License% and have the Remises, including the subsurface, in as good order and condition as the }'remises may have been prior to the on and occupation thereofby Licensee and free Raul holes, obstructions, debris, wastes. or contamination of any kind. - (e) if Licensee fails to restore the prmrtisea as pmaWM herein prior to the data that Liroanree is required to vacate such Premises, then Company may, at its option elect: (a) to become the owner ofall ptssoru d propety and haprovemtents which licensee has furled to remove without any clo un or consideration whatsoever therefor by of to Idontsee, its successors or assigns, or (b) at the ask cast and expense of Licensee. to remove or to aramge for the removal of all such property, improvements. obanudiow. debase. waste, and oontaminwioa, and to resume or to arrange for the Aston anon of both the surface: and the subsuMve of the Promises to as good order and condition as the Premises may have been prior to the use and oesmxpation thereof by Licensee. Promptly upon bill rbxdwed by Company, Lioemscr sbail pay to Company the total coat of such removal and restoration. Including. but not rushed to, the cat of cleaning up and removing any contaminated soil or water. ARIV-1X M If Licensee fails to vacate the Premises prior to the date that Licenser is rngaired to Mate such Premises. Company may, in addition to any other legal remedy it may have, *war and take Posses" of the Premises, oust Licensee and all paaaxs holding under Licausm and mature or ammp to restore the surface and subsurface of the Raaises, as described in Article ill above. Company may also, after reasamble notice'to Licensee, talon possession of any property and impmvements. including structures. if any. left on the Promises by licenses and dispose of the same by sale or otherwise far the Forth Na MM1LWg1. WPZM14 WORD ZIM 10 structures, if any, left on the Premises by Licensee and dispose of the same by sale or otherwise for Ilse purpose of applying the proceeds against unpaid rental or to other payments due under file terms of this agreement. or for other purposes as hereinafter mentioned. if. in Company's judgment, any property or improvements so left on the Premises by license is c"faminated, has no value, or cannot be conveniently sold, Company may dispose of the same without notice to Licensee in such manner as Company may determine to relieve itself of the burden of caring for such property and improvements, without aemotability, to Licensee. AMCi.M In addition to any outer rights of entry reserved herein. Company reserves unto itaelfand its perminees the right to enter upe►n the Premises at any time for operation, maintenance, reconstruction, repair, or relocation of any building, trackage, or other structures located on the Premises; for inspection of the Pn rnises; for taking whatever cum —dive actions the Company deems necessary to eliminate any vinhdion of Articles 10. 15, and 16 if, in the Company's judgment, the steps taken by Licensee are inadequate or not timely; and for any other lawful purpose. _T_jLM. 11 is agreed between the parties that the applicable statute of limitations shall be tolled and shall not begin to run against Company in connection with any controversy or dispute arising under the provisions of Articles 10, 15, 16, and 17 hereof until Company has received actual written notice of noncompliance with the aforementioned articles. A1tTICL,E 19. Licensee agrees to pay all costs and expenses, including, but not limited to, reasonable attorneys' and consultants' fees, incurred by Company in connection with enforcing the perfenmanoe of any of the provisions of this agreement. (�RTjCC1,R_2it. if any provision of this Agreament. or the application thereof to any person or circumstance. shall, for any reason and to any extent, be invalid or unenforceable, the remainder of this agreement and the application of such provision to other persons or circumstances shall not be af%cted thereby but rather shall be enforceable to the fullest extent permitted by law. ARTICLE 21. Licensee hereby agrees that the indannitics it undertakes in favor of Company, its officers, agents and employees, in this agreement will also apply in favor of the corporate afiiliatcs of Company and to their respective officers, agents and employees as fully as if they were specified as indemnilees herein. Any notice m-suited or permitted to be deliverid hereunder shall he deemed to be delivered, when deposited In the United State Postal Service, postage prepaid, registered or certified mail, return receipt requested, addressed to Company or Licensee, as the case may be, at the address set forth below. Company: North Carolina Railroad Company 2909 Highwoois Blvd. Suite 100 Raleigh, North Carolina 27604 Licensee: Southern liquiprnem Company. Inc. dba Ready Mixed Concrete P.U. Box 27326 Raleigh. North Carolina 27611 ARTICLE 23. Any consent of the Company requested or required pursuant to this agreement may he given, withheld, conditioned or delayed. in the sole: and unfettered discretion of the Company. ART1 XF.. , No waiver by either party of any one breach of covenant or default by the other party shall he construed as a waiver of any other or subsotlwat breach or default on the part of the other party. Also, no declaration of expiration or termination of this agreement shall be construed to release the tither Form No.141)e121tWoyr. %VP20(414 WORP212434 11 pasty from any cavenmnt or obligation as in which the other par[y may be in detha at the deft of such eapisadion or tuvaination. ARM-92L Tbc [aims se! Wh in the attachad EwhU.consisting of two pages and titled "Agreement and Consent of Norfolk Somhern Railway Company;" are ineasporated itno tbis Agreenum as if Be [both verbatim heron. IN WITNESS WHFJtF,OI-. the pasties hereto have executed this agreement in triplicate. each post being an arigiml, as of" date hessdnabove first recited. COMPANY: NORTH C O NA 46RD CO.NpANY By: v 1. L Skip qr �opet'ty anR;Sr J.ICIi:tYSEE: 301Jq=RN RQUIPMMT COMPANY. INC. abe'i�ady M)MJ 4*L Title: "Tn — b$s NORFOIX somrHERNRAQ.WAY COMPANY 1169- By. Title: �t tium+ ty - NQD2RwayL wP 2%414 WORD II2434 a 12 W �r I EXHIBIT A — Aupst 19 2001 Mile Post EC•76 + Z040 fed qwn� ��101117•'A /Ma. 1 li dlt► m/Y64H� 3 EM Area Licensed by North Carolina �— — — Railroad Company to Souwrn ��1"',A F*ipmeni Company, Inc. - - RN --- ---� � SOUTHERN w _ _ (80,00D sq ft.) wun�We - _ Parcels No. I & 2 10 vt + AGl:ktil►f W1' A4ND CONSE%*T OF NORFOLX i,Dt1TJJi:9tN RAILWAY COh&A_-NV W11BR.E.a.S. CcFany, Licaasec, mid NSR dedw to eases into the attached Lioeme Agtee=W, I ftWdW the tnopa:rty dettaAwd ttxrcln (snit Tremiaes") NOW "HFRMRE, in cAasadef4fta of the above torah h And die promises and spec m conWmd garcon, as w+cU os for Odra goad and valuable co underation, the receipt and sunicionq of which is hereby aclatowledgcd, NSR. Compny. and Lianne agree as forimn: 1. NSR gaves its eaaseat to the Y,irena Agtctznetat pmam. to the terms and eoadiuotts of Sus Ca MML All of 60 semis of this 0011504 sue havbs oteowrated by reference into the Licenrc Ap-amucut 'she teats "h"SR" as used in ft A,greernsnt and Caaimt said at ants) in the 1.irxase Ap aanent ai" include NSR's oSiwY, Agbnts and e*aycc:4 aatl any parent company, subsidiary or afaliste ofM)t and their oftxmi, agftw and employe=. 2. 'Ike pnrtift aauce and tusderswid that tail' nght or claitu of Company hold in of by virtue of tax Iac=w Agrfe=t shall sko route to the benefit of, and be mfomeable by NSR or by any sueeeam r or ante of Cornpmy or NSR, and NSR shall not be nqtoussbk for any obuptioas, duties ar kdetatDWO of 0oat1my to l.iecnsce tender the Lita w Agractneat NSR resena any PMcxU ng rq ts, tdairm end deft ses agsinat Company and Umixec and acid rights, eminis And dePenxes shall cat be waived or litrdW in say way by the Iaot= Agreaaaettt. ' Licensee undenituds that NSk ttWw no wwmsft ar ropr+esmogona rcgatding tie condition of Of test to the Preaches. Liaensoc takeS lha 14emi"ea 'A5 IS" amd axpn=d1y vMvcs any and All claims against NSR stilatsAg to to a duing Sow the condition of air title to the Ptartti:es avd the PfgP=V aaeratnu tg the Preraisc3, mcludiq without Uiniudim, any claims slid vests ta:tub" to rat+iloamegtsr) coatamitantnaa ardet arty applicable taws (ptah as, widout lawtatiml, theca which aught aNaae amdau CERCIA. RC1tA, and tilt Nostb Carolma Oil Pofttetm and Namduaa Subslanas Act). 4. Without dw wdsitiat vonsaa of NSk, (a) neittaci the Liearrase Agro matt Boor this Consent may by Ase3gtied in whole 02 in pan by CAsoVM or Jacalsm (H) Lkensee dot] no eater into any Aklicnue or sublease of Pn=ines; and CHO the License Ag;eettwit sled) not br amended by Corapatty or l.ia:eaatee. No etmaaxt by NSR to coy sublease, subtiauase, assignursatt, w Amendment or the Lkaam Agra=mt dmU be cnasUted b be coamd to spy Sw*ar subhme. sublicense, asstgoreent, air amendr ens, oftac License Agrees "t. 3. In oaliaidKaatian of the ritMs g UPW by NSR to Licensor by this Consent, i.ibe»me ages to halemitify and hold NSR hattnttn to at am extent as Cogg my b indesttAMd and held ltarradesa P=Uanl to the: Licertre Agriammi. N additkab widaut inniting the indettmit6s ptovided in the Licaasc Arvesnaant. Licensee speetfimMyshall ludenuufyand hold ba rahm NSR float and aapiattat any and sti attoraays fees. costs, aatge:ues, liabilities. injurim, cbdm (itarltuimg third patty throng 831d stay clouts under any aMranUMMAl taws and rcgWatiotur hvmb ss CERCL.A. RCRA, end ilea Nrtnh t araliva Oil PoUudm sua llaaurdaat Saduitanees Control Act) and daeaagca wbinf $atlf Ot related to (1) the l.tcente Agteetaftl; (2) any acts or oiniulba by. Lict near at a new the Pmnjj zs, (1) Llceaaards vtoluKw of envi nmeatcl lava and w4aalstimas, INKS (4) etavttamnaaatal contamination caused by Licensee. Far Ira poses of this parograph, the teams LJae M shall atom its_ofiSa ws. etwplayees, aged, connow ms, guests or ismtees. to:,p Nu-.NW1 tWsyL WP 20C414 WM-0 2.204 14 NSR attest he Si;en at I=, thirty (30) dayb ntelice prior te.. flu: utiticipalud pbweromi of any equipulat, sreveture, libe ty, f xtLwc. Or other improvement on the P(ftTd,C5 other than those permitted by the t.iMM Agrrsment and approval ofNSR moral be given bekwe steeds placeuieat b undertakctl. C:orgtatny nod NSk ague cleat, by entering into chit- Cionetent, ji) NSR it, not m I&X any adm =OD 102* 4C ouy = bt:tareem NSR and Comitaay; (ill trotgmy to tux maksttg arty adnfisteioa regatdiaS any trattter bMteu NSR and Company; (M) NSR is not %2ivb* any etaita or defem" tegatng Ca.--4my or any affslitm of C..VVR y, (iv) tiny is oat WW nog eny. claim or defense apinrt NSR; (v) NSR claw ant wawa or ptcjudiot any prrfition. claim or dofome with regard to MY legal or 4&Adttrabva prurr odhrgs in which Company or W aflr"tlttttes and NSR ate eurfeutly involved or tray become invov4 including but not litmtcd to any ebum or defatese with aspect to any laeachold righb. envtrentnu tai obligation or liability, pmeemoryr IWIU, to holdover or nort buldover smlus of C:ompwy; and (vi) (am ny doe8 ut4 wt ive or prqudiCe any 1)(10fidob. chum or defeaese wit!. regard to any legal or adodanisGsuve ptomdinp at which Company or its affiliates and AL9R euu cuumtly involved or may be involved. tnoluding but no: Hn*M to any claim or defense: with remwet io any leasehold rights, a nviraeuetaretol obligntiaa ea libbilitY, possessory tights, or holdover or tson-holdaner status ofCompany. A. Licensee acknowledges that N.qR has am made any inspection of the: prertdees and tlat tax Paami cs Inc latate:d eu or oettr active M- ifsCetive raih7)3d facilhleS, ettrucnnes, orselate d pttspetty. 9. (a) Prior to entry (POO the PreadM Liecns.. shall ". v o puliey of ge:nertu bability itauranee e =Uut ft products and completed opei iations nod coaftclual liability dove -rage with a cambinod- single limit of not less than $ 1.000,0oo feu each adxteyunft. Serd policy shall WW. "NSR,, ate an I'"itim al ittsuned. (b) Ltcaraw or its eonwetur also shall preu:tnr: and nauntam a Railroad hatecteve lAali ty butttranee Policy with NSR as the seiner- !wised a ed having it combined sittgta limit' of 42-000,000. each (imutmm, and 56,000,WD in din aftg aptc. (0 The ens tetox c regUUW iWen shall be Of VLWh furor and content W nay be aoceptable.to WA IvW=0 of such itesvrmee. (a aWifemte of inu ratum far the gin oral liabibey insmrsum policy and the odginal policy of Railroad psouetive 112bi ity instttauec) nurse ba furnished to NSR at NOR Risk A+laubpr, Three Corari=ial Plane. Nurfalk VA 2351OM (tu asset, other e;stttent addres€ provided to L iamm) and approved by HSR pnor to Momee's entry on tbo Anchises 71se irMsOnca requited becin shall mot iindt the liability aestsmcd by Lieeresws utedar this Ctntsew or ftLiee nse Alinement F6x=Nd.r1'.1D2RWbyL WP2Clt4l4 WORD214c3+ 15 First Sup_ elemental Document to_Lieense A_r -ement iiailr- eW the lh* - - — 1NS Aetivity No. 1155354 NCRR Mile No. a e4176421140 AC: t00M= Fimt Supplemental Document to License Agre ment This Fint Supplement to License Agreement is marts by and between NORTH CAR01 NA RAILROAD COMPANY, a North Carolina eurIiaratiom, Mompany"); and the SOY ERN EOUIPMFNT COMPANY, 1NC,1 dho READY MIXED CONCRM a Nnah (wWirm Corporation ("l.icrnaec'q, and NORFOLK 50t1' WFJtN RAILWAY LVMPANY ("100") and Is effective as of the Inver of the dates that each puny signed ac shown below (•' Eff"Ove Date"). WHERE -AS. Company. NSR and Licensee eoteo+ed Into that Gamin Agreement dated the Ie of June. 2002, (the -Agreement") concerning certain real property located in Craven County, City of Havelock, North Carolina located at Milepost e:-076, plus 2040 feet and oonsissing of $0, 000 square feet, more or loan, and; WHEREAS, the parties desire to mo0y the Agreement to increase the area to be: licam d, to includL any improverneaols not previously stated as hnprovesne nts, to allow for the construction, use:, nrainlesnanex, and removal of a c name apron on a private driveway, to expend the use of the Premises, allow anntber to am the Premises, and for the Mcensexe to ratify and reaffirm the turnes and conditions of the Agreement. NOW. TIIF.REFORI:., fim and in annsideradrin of the mutual covenants of Company, NSR and Licensee, and for other good and valuable consideration. the nwcipt and adequacy of which is hereby acknowledged, Cornpmy, NSR and Liesntsm hereby auNract and agnee emeb with the other as follows: I. Article 1 of die Agmease ni is hereby mudifred to increase fire square foot am from 90,000 square fees, more or lass, to 184, 849 square feet, more or less. 2. Arlicie 1 of tour Agreemod is hereby modified by deleting "August 1, 2001• and Inserting "September 33, 2010.' 16 3. Article I of the Agreement is hereby modified by deleting "and maintain existing concrete plant", and inserting "together with the right to construct, use, and maintain the amicmt driveway apron as described on Exhibit A-1; along with ingress and egress from the public road Miller Doulcvard (SR 1745) and the right to occupy, maintain. and use the misting gravel private driveway; and the right to occupy, maintain, use aid remove the existing concrete plant and associalod impmveme nts which include, but are not limited to, a track shed. unloading pit with con%vor belt, hopperos with con myor belt, aggregate bins or storage areas, concrete slabs, concrete blacks, wooden and metal fencing and gates, trunk scales, once building, flag poles, silos, and parking area ( hemita fter "Improvements"). 4. Article I of the Agreement is hereby mudif ed by deleting the rice and reference to Exhibit A. on line thirteen of said article and inserting "Exhibit A -I % 5. Article 1 of the Agreement is hereby modified by insetting the following after the last serene or Article 1: "Licensee agraw and undemands that some portion of the Premise$ may be used by Hanson Aggregates Southeast, Inc., a Licensee under a separate agreement." 6. Replace Exhibit A, dated August 1, 2001 with Exhibit A, dated gqg cntlw 15, 2010, attached hereto and incorporated herein. 7. Attach hamo and incorporate. herein, Exhibit A-1, dated September 15, 2010. S. Iacens ce hereby -acknowledges that it has read and agreed to all terms and conditions of the Agreement and &$roes to he bound by those terms and conditions as if it were the original party to the Agreement. 9. Except as amended herein, Company, NSR and Licensee acknowledge and agree that all other terms, conditions and pmviskms of the Arvement not otherwise inconsistent herewith are hereby ratified and reaffirmed and remain in full form and effect. Unless otherwise herein amended, all defined temps used he:rain shall have the: same meanutgs as used in the Agreement. IN WITNr%SS WHEREOF, the patties hereto have executed this First Supplcrnernt to License Agreement. 17 m uu NORTH CAROLINA RAILROAD COMPANY Ole BY. Title: r —.L&6 ¢ - Rumell. Jr. Date: Real Estate SOUTHERN IF4UIPMENT COMPANY, INC., "I DV MI LD CONCRETE ]BY Date: NORNOLKSOUY'. LRN AILWAYCOMPANY Title 18 G EXHIBIT A --SEPTEMBER 15,2010 Milepost e-076 plus 2,040 (+/-) Feel Havelock, Craven County. North Carolina . . . . . . ............................. :_ *j 7� L2OU�n% T �vTwlj mmIlAm NOWPARC!'IN& I Y EXHIBIT A-1 — AUGUST 16, 2010 Milepost e-076 plus (+/.) 2040 Feet Havelock, Craven County, North Carolina k V. , m Construction of 1. Private Driveway Aproi i z - qAO-fw SIB W-2-1k k 3 7 '02, ' Aeors" 117'oem b"P W 6* A 20