BY THE
LESSEE, LESSEE MAY
OR (I) TERMINATE THIS LEASE, OR (II) EXERCISE ANY OTHER
REMEDY AVAILABLE TO LESSEE AT LAW OR IN EQUITY.
SECTION 13.05.
OTHER ETHANOL PLANTS.
THE COMMISSION AGREES, SUBJECT TO
THE PROVISIONS BELOW, DURING THE DEMISED TERM, NOT TO ENTER INTO A NEW LEASE OF
PROPERTY AT THE PORT FOR THE CONSTRUCTION OF ANOTHER ETHANOL PRODUCTION
FACILITY.
SUCH AGREEMENT IS SUBJECT TO ALL RIGHTS OF EXISTING TENANTS AT THE
PORT UNDER EXISTING AGREEMENTS.
SUCH AGREEMENT SHALL TERMINATE AND BE OF NO
FURTHER FORCE AND EFFECT IMMEDIATELY UPON THE OCCURRENCE OF ANY ONE OF THE
FOLLOWING EVENTS:
(I)
TERMINATION OF THIS LEASE;
(II)
FAILURE TO MEET THE CONSTRUCTION/OPERATION
TIME FRAMES SET FORTH IN SECTION 4.01(B) HEREOF;
36
(III)
FAILURE TO PRODUCE SUFFICIENT ETHANOL TO
MEET THE MINIMUM REQUIREMENTS SET FORTH IN SECTION 3.04 HEREOF;
(IV)
FAILURE TO MEET THE JOB CREATION REQUIREMENTS
OF SECTION 11.01(H) HEREOF; OR
(V)
ANY EVENT OF DEFAULT OTHER THAN (II) THRU
(IV) ABOVE OCCURS UNDER THE LEASE AND IS NOT CURED AFTER THIRTY (30) DAYS PRIOR
WRITTEN NOTICE FROM THE COMMISSION.
THE COMMISSION REPRESENTS AND WARRANTS THAT IT HAS NOT GRANTED ANY OTHER PERSON
A LEASE OR RIGHT TO CONSTRUCT OR OPERATE ANOTHER ETHANOL PRODUCTION FACILITY AT
THE PORT.
THE COMMISSION AGREES THAT, IN THE EVENT OF A BREACH OF THE
PROVISIONS OF THIS SECTION, THE DAMAGES TO LESSEE MAY BE DIFFICULT OR IMPOSSIBLE
TO DETERMINE AND, ACCORDINGLY, THE PROVISIONS OF THIS SECTION MAY BE ENFORCED BY
AN ACTION OR PROCEEDING FOR INJUNCTION AND/OR SPECIFIC PERFORMANCE OR ANY REMEDY
AVAILABLE TO LESSEE AT LAW OR IN EQUITY.
SECTION 13.06.
REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
THE
COMMISSION MAKES THE FOLLOWING REPRESENTATIONS, WARRANTIES AND AGREEMENTS:
(A)
THE COMMISSION IS A BODY POLITIC AND CORPORATE DULY CREATED,
VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE STATE OF INDIANA.
THE COMMISSION HAS FULL RIGHT, POWER AND AUTHORITY TO EXECUTE AND DELIVER THIS
LEASE.
(B)
NEITHER THE EXECUTION AND DELIVERY OF THIS LEASE, NOR THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY, NOR COMPLIANCE WITH THE
TERMS, CONDITIONS AND PROVISIONS HEREOF WILL CONFLICT WITH OR RESULT IN A BREACH
OF ANY LAW OR ANY REGULATION, ORDER, WRIT, INJUNCTION OR DECREE OF ANY COURT OR
GOVERNMENTAL INSTRUMENTALITY OR AGENCY OR ANY AGREEMENT OR INSTRUMENT TO WHICH
THE COMMISSION IS A PARTY OR BY WHICH IT OR ITS PROPERTY ARE SUBJECT OR BOUND,
OR CONSTITUTE A DEFAULT THEREUNDER OR RESULT IN THE CREATION OR IMPOSITION OF
ANY LIEN, CHARGE, SECURITY INTEREST OR ENCUMBRANCE OF ANY NATURE WHATSOEVER UPON
ANY OF THE PROPERTY OF THE COMMISSION PURSUANT TO THE TERMS OF ANY SUCH
AGREEMENT OR INSTRUMENT.
(C)
THE EXECUTION AND DELIVERY OF THIS LEASE HAS BEEN DULY AUTHORIZED
BY ALL NECESSARY ACTION ON THE PART OF THE COMMISSION, AND NO AUTHORIZATION,
APPROVAL OR CONSENT BY, OR FROM, ANY OTHER GOVERNMENTAL OR PUBLIC REGULATORY
AUTHORITY IS NECESSARY FOR THE COMMISSION TO ENTER INTO THE SAME, EXCEPT FOR THE
ATTORNEY GENERAL OF THE STATE OF INDIANA AND THE GOVERNOR AS