Common use of Leased Premises and Use Clause in Contracts

Leased Premises and Use. Lessor owns the asphalt facilities described on Exhibit A-1 (each a "Facility" and collectively the "Facilities"). For the rentals and upon and subject to the terms and conditions hereinafter set forth, Lessor hereby leases the Facilities to Lessee, and Lessee hereby leases the Facilities from Lessor, subject to the Permitted Encumbrances (as defined herein). The Facilities include the land, buildings, improvements, asphalt storage and processing assets (collectively, the "Leased Premises") along with the associated: (i) storage, use, and occupancy rights to, of, or in any buildings, fixtures, equipment, or other physical assets on the Leased Premises or hereinafter constructed on the Leased Premises, (ii) necessary rights of ingress, egress, storage, and transportation (including all existing rights to rail service to the extent such rights are assignable) to, on, or over the Leased Premises for Lessee and Lessee's agents, invitees, customers, or representatives, as reasonably necessary to further Lessee's operations at the Leased Premises, and (iii) right to receive, use, and enjoy public and private utility services at the Leased Premises, including, but not limited to, sewer, water, electricity, fuel, waste disposal, and telephone all at Lessee's sole expense. The Leased Premises may be used by Lessee for the receipt, storage, manufacturing, blending and shipping of asphalt products and associated raw materials, and all purposes reasonably related thereto, and for no other purpose without Lessor's written consent, which consent shall not be unreasonably withheld. Lessee accepts the Leased Premises on the commencement date of the Term (as defined below) of this Agreement "AS IS", "WHERE IS" without warranty of any kind, express or implied, including, but not limited to, any warranty of habitability, suitability or fitness for a particular purpose, except to the extent specifically set forth in this Agreement. The Leased Premises shall include the rights of Lessor under the leases set forth in Exhibit A-2 (collectively, the “Rail Leases"). Lessee shall be subject to the terms of the Rail Leases and perform all obligations of Lessor as lessee under each of the Rail Leases which accrue during the Term of this Agreement (but not any obligations which survive the termination of any Rail Lease which is terminated prior to the expiration of the Term of this Agreement), except that Lessor shall be obligated to timely pay rents or other sums due thereunder so long as Lessee pays all rent due under the terms of this Agreement. Lessee agrees to indemnify Lessor, and hold it harmless, from and against any and all claims, damages, losses, expenses and liabilities (including reasonable attorneys' fees) incurred as a result of Lessee's non-performance or non-observance of any of Lessor's obligations as lessee under the Rail Leases which, as a result of this Agreement, became an obligation of Lessee. If Lessee makes any payment to Lessor pursuant to this indemnity, Lessee shall be subrogated to the rights of Lessor concerning such payment. Lessee shall not do, nor permit to be done, any act or thing which is, or with notice or the passage of time would be, a default under this Agreement or the Rail Leases. Lessee shall look solely to the lessors under each of the Rail Leases for all services to be provided by such lessors thereunder and shall not, under any circumstances, seek nor require Lessor to perform any of such services, nor shall Lessee make any claim upon Lessor for any damages which may arise by reason of any such lessor's default under the Rail Leases. However, Lessor shall reasonably cooperate with Lessee to exercise or enable Lessee to exercise any rights or remedies available to enforce each Rail Lease for Lessee's benefit in the event of a default by the lessor under each Rail Lease. Lessor agrees to indemnify Lessee, and hold it harmless, from and against any and all claims, damages, losses, expenses and liabilities (including reasonable attorneys' fees) incurred as a result of Lessor's non-performance of its obligations with respect to the Rail Leases as set forth in this paragraph, so long as Lessee has paid all rent due under the terms of this Agreement. Lessor shall not do, nor permit to be done, any act or thing which is, or with notice or the passage of time would be, a default under the Rail Leases. If for any reason the term of any Rail Lease shall terminate prior to the expiration or termination of the Term of this Agreement, the Leased Premises shall automatically exclude the rights of Lessor under such Rail Lease, and Lessor shall not be liable to Lessee by reason thereof unless said termination shall have been caused by the default of Lessor under the applicable Rail Lease, and said Lessor's default was not as a result of a Lessee default hereunder.

Leased Premises and Use. Lessor owns the asphalt facilities described on Exhibit A-1 (each a "Facility" and collectively the "Facilities"). For the rentals and upon and subject to the terms and conditions hereinafter set forth, Lessor hereby leases the Facilities to Lessee, and Lessee hereby leases the Facilities from Lessor, subject to the Permitted Encumbrances (as defined herein). The Facilities include the land, buildings, improvements, asphalt storage and processing assets (collectively, the "Leased Premises") along with the associated: (i) storage, use, and occupancy rights to, of, or in any buildings, fixtures, equipment, or other physical assets on the Leased Premises or hereinafter constructed on the Leased Premises, (ii) necessary rights of ingress, egress, storage, and transportation (including all existing rights to rail service to the extent such rights are assignable) to, on, or over the Leased Premises for Lessee and Lessee's agents, invitees, customers, or representatives, as reasonably necessary to further Lessee's operations at the Leased Premises, and (iii) right to receive, use, and enjoy public and private utility services at the Leased Premises, including, such including by the way of example but not being limited to, sewer, water, electricity, fuel, waste disposal, and telephone all at Lessee's sole expense. The Leased Premises may be used by Lessee for the receipt, storage, manufacturing, blending and shipping of asphalt products and associated raw materials, and all purposes reasonably related thereto, and for no other purpose without Lessor's written consent, which consent shall not be unreasonably withheld. Lessee accepts the Leased Premises on the commencement date of the Term (as defined below) of this Agreement "AS IS"'', "WHERE IS" without warranty of any kind, express or implied, including, but not limited to, any warranty of habitability, suitability or fitness for a particular purpose, except to the extent specifically set forth in this Agreement. The Leased Premises shall include the rights of Lessor under the leases set forth in Exhibit A-2 (collectively, the “"Rail Leases"). Lessee shall be subject to the terms of the Rail Leases and perform all obligations of Lessor as lessee under each of the Rail Leases which accrue during the Term of this Agreement (but not any obligations which survive the termination of any Rail Lease which is terminated prior to the expiration of the Term of this Agreement), except that Lessor shall be obligated to timely pay rents or other sums due thereunder so long as Lessee pays all rent due under the terms of this Agreement. Lessee agrees to indemnify Lessor, and hold it harmless, from and against any and all claims, damages, losses, expenses and liabilities (including reasonable attorneys' fees) incurred as a result of Lessee's non-performance or non-observance of any of Lessor's obligations as lessee under the Rail Leases which, as a result of this Agreement, became an obligation of Lessee. If Lessee makes any payment to Lessor pursuant to this indemnity, Lessee shall be subrogated to the rights of Lessor concerning such payment. Lessee shall not do, nor permit to be done, any act or thing which is, or with notice or the passage of time would be, a default under this Agreement or the Rail Leases. Lessee shall look solely to the lessors under each of the Rail Leases for all services to be provided by such lessors thereunder and shall not, under any circumstances, seek nor require Lessor to perform any of such services, nor shall Lessee make any claim upon Lessor for any damages which may arise by reason of any such lessor's default under the Rail Leases. However, Lessor shall reasonably cooperate with Lessee to exercise or enable Lessee to exercise any rights or remedies available to enforce each Rail Lease for Lessee's benefit in the event of a default by the lessor under each Rail Lease. Lessor agrees to indemnify Lessee, and hold it harmless, from and against any and all claims, damages, losses, expenses and liabilities (including reasonable attorneys' fees) incurred as a result of Lessor's non-performance of its obligations with respect to the Rail Leases as set forth in this paragraph, so long as Lessee has paid all rent due under the terms of this Agreement. Lessor shall not do, nor permit to be done, any act or thing which is, or with notice or the passage of time would be, a default under the Rail Leases. If for any reason the term of any Rail Lease shall terminate prior to the expiration or termination of the Term of this Agreement, the Leased Premises shall automatically exclude the rights of Lessor under such Rail Lease, and Lessor shall not be liable to Lessee by reason thereof unless said termination shall have been caused by the default of Lessor under the applicable Rail Lease, and said Lessor's default was not as a result of a Lessee default hereunder. Notwithstanding the foregoing, the Leased Premises shall not include inventories of off-spec product, obsolete raw materials inventories in tanks, bags, totes, drums and boxes, and miscellaneous equipment and incomplete capital improvements unrelated to ordinary operations at the Facilities; such miscellaneous equipment and incomplete capital improvements unrelated to ordinary operations at the Facilities are listed on Exhibit A-3 hereto (the "Excluded Assets"). Lessee assumes no responsibility for the Excluded Assets. Lessor shall use reasonable commercial efforts to remove the Excluded Assets from the Leased Premises within sixty (60) days following the Effective Date; provided, that Lessee acknowledges that SemMaterials, L.P. owns products located on the Leased Premises and has the right to store such products on the Leased Premises until October 31, 2009 or as otherwise set forth in the Access and Use Agreement (as defined herein) and the Terminalling and Storage Agreement (as defined herein). Any Excluded Assets remaining at that time may be secured and stored by Lessee, at Lessor's expense. In addition, the Leased Premises shall not include (i) finished asphalt product owned by SemMaterials, L.P. or its affiliates and not purchased by Lessee and (ii) any rail cars owned or leased by SemMaterials, L.P. or its affiliates.